Settling the USWNT v. USSF “Equal Pay for Equal Play” Dispute: How Class Action Certification Engenders Settlement and Why Weak or Goal-oriented Certification Analysis Deserves a Red Card

“Equal pay for equal play”—it is a war cry that the United States Women’s National Team (“USWNT”) has directed at the United States Soccer Federation (“USSF”) for years now.[1]  USWNT players like Alex Morgan, Carli Lloyd, and Megan Rapinoe have led this charge, arguing that they should be paid equal to their male counterparts because the quality of their performance is equal, if not superior, to the male players’.[2]  After making little headway over several years, USWNT players filed a putative collective and class action suit in March of 2019 against the USSF for discriminatory pay and working conditions.[3]  Within months, the USWNT earned arguably its biggest victory since the World Cup championship in 2019 —the United States District Court granted the USWNT’s motion for collective and class certification.[4]  Settlement discussions promptly followed and on August 11, 2022, the presiding federal judge granted preliminary approval of a settlement reached by the two parties.  Additionally, the USSF will pay $22 million to the USWNT players and will pay another $2 million to support “post-playing career goals and charitable efforts related to women’s and girls’ soccer.”[5]    

To earn class certification, proposed classes must satisfy the requirements set forth by Federal Rule of Civil Procedure 23.[6]  Like soccer, certification under Rule 23 is a game of two halves.  Rule 23(a) governs the first half.  It permits a class action suit only if (1) “the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of . . . the class; and (4) the representative parties will fairly and adequately protect the interests of the class.”[7]  Rule 23(b) governs the second half.[8]  If Rule 23(a)’s four prerequisites are met, the proposed class must then qualify as one of the class types described in Rule 23(b).[9] 

The motion for certification is usually a defining moment in class action litigation.  If the motion is granted, it is often considered “the end of the road” for defendants.[10]  While the certification procedure does not contemplate the merits of a case, it does transfer liability determinations from N juries into the hands of just one jury.[11]  Thus, both intuition and precedent speak to the “intense pressure to settle” that certification places on defendants.[12]  Of course, this pressure is not inherently bad or inherently unique to class actions.  Class settlements eradicate otherwise time—and resource—consuming litigation from already congested court dockets.[13]  And, perhaps, to some extent, the pressure felt upon class certification is not entirely unlike the pressure felt after a defendant’s motion for summary judgment is denied.  Yet, it is predominately in the class action context that we see settlements of remarkable size—e.g., settlements to the tune of $24 million, as seen here, or even $3.4 billion, as seen in a 2009 settlement between the federal government and thousands of Native Americans across the country.[14]  

It is precisely because stakes are so high in class action litigation that courts should heed Judge Richard Posner’s warning against weak certification analysis or “bend[ing] the normal rules” for certification and settlement’s sake.[15]  With millions, if not billions, of dollars on the line, Rule 23 requirements deserve “undiluted, even heightened, attention.”[16]  Anything less may warrant a class action red card: class decertification.

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[1]  See, e.g., Carli Lloyd, Carli Lloyd: Why I’m Fighting for Equal Pay, N.Y. Times (Apr. 10, 2016), https://www.nytimes.com/2016/04/11/sports/soccer/carli-lloyd-why-im-fighting-for-equal-pay.html (championing the USWNT movement against the USSF and explaining the alleged gender discrimination that has inspired the team’s efforts).

[2]  Id.

[3]  Plaintiff’s Collective Action Complaint for Violations of the Equal Pay Act & Class Action Complaint for Violations of Title VII of the Civil Rights Act of 1964, Morgan v. United States Soccer Fed’n, Inc., No. 2:19-cv-01717 (C.D. Cal. Mar. 8, 2019).

[4]  Morgan v. United States Soccer Fed’n, Inc., No. 2:19-cv-01717-RGK-AGR, 2019 WL 7166978 (C.D. Cal. Nov. 8, 2019).

[5]  Order Re: Motion for Preliminary Approval of Class Action Settlement, Morgan v. United States Soccer Fed’n, Inc., No. 2:19-cv-01717-RGK-AGR (C.D. Cal. Aug. 11, 2022).  The final settlement approval hearing for the USWNT and USSF is set for December 5th, 2022.

[6]  Fed. R. Civ. P. 23.

[7]  Id. at 23(a).

[8]  Id. at 23(b).

[9]  Id.  For reference, the USWNT was certified under Rule 23(b)(2) and (b)(3) as “injunctive relief” and “damages” classes, respectively.  Morgan, 2019 WL 7166978, at *10.

[10]  Michelle Gillette, Class Action – Life After Class Certification, Cromwell & Moring LLP (Jan. 2017), https://www.crowell.com/files/Litigation-Forecast-2017-Crowell-Moring.pdf.

[11]  N is the algebraic symbol for natural numbers.  Natural numbers are positive integers, excluded zero.  As written here, represents the number of juries that would otherwise hear individual suits if those suits were not collectively filed as a class action.  Thus,  could be relatively few or as many as several million.  At any rate, N does not equal one in this context.

[12]  In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298 (7th Cir. 1995) (citing Milton Handler, The Shift from Substantive to Procedural Innovations in Antitrust Suits, 71 Colum. L. Rev. 1, 8–9 (1971); William Simon, Class Actions—Useful Tool or Engine of Destruction, 55 F.R.D. 375 (1972); Marc Galanter, Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc’y Rev. 95, 143, 143 n.121 (1974); Charles D. Schoor, Class Actions: The Right to Solicit, 16 Santa Clara L. Rev. 215, 239–40, 40 n.82 (1976); Joseph Grundfest, Disimplying Private Rights of Action under the Federal Securities Laws: The Commission’s Authority, 107 Harv. L. Rev. 963, 973 n.38 (1994); Lester Brickman, On the Relevance of the Admissibility of Scientific Evidence: Tort System Outcomes Are Principally Determined by Lawyer’s Rates of Return, 15 Cardozo L. Rev. 1755, 1780–82 (1994); Note, Conflicts in Class Actions and Protection of Absent Class Members, 91 Yale L.J. 590, 605 n.67 (1982)).

[13]  Greg Land and Amanda Bronstad, Can We Talk? Eyeing COVID-Clogged Dockets, Judges Push Civil Cases to Settle, ALM Global (July 30, 2021, 5:37 PM), https://www.law.com/2021/07/30/can-we-talk-eyeing-covid-clogged-dockets-judges-push-civil-cases-to-settle/?slreturn=20220801122436 (speaking to the impact COVID-19 has had on clogged dockets and judges’ subsequent inclinations to “trim dockets or move cases quickly,” including by settlement).

[14]  Will Fritz, 10 Largest Class Action Settlements in American History, Top Class Actions (June 7, 2021), https://topclassactions.com/in-depth/10-largest-class-action-settlements-in-american-history/.  

[15]  Rhone-Poulenc Rorer, Inc., 51 F.3d at 1304.

[16]  Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (referencing the level of intensity with which lower courts should analyze Rule 23 requirements, especially when analyzed on a joint motion for conditional class certification that seeks certification and settlement approval simultaneously).