Shipman & Goodwin – On March 31, 2016, came word that members of the U.S. National Women’s Soccer Team are filing a discrimination complaint against the U.S. Soccer Federation on the grounds that they are paid less than their male counterparts.
According to press reports, “the filing, citing figures from the USSF’s 2015 financial report, says that despite the women’s team generating nearly $20 million more revenue last year than the US men’s team, the women are paid almost four times less.”
U.S. Soccer issued its own release arguing: “While we have not seen this complaint and can’t comment on the specifics of it, we are disappointed about this action. We have been a world leader in women’s soccer and are proud of the commitment we have made to building the women’s game in the United States over the past 30 years.”
This is not the first time this argument has been raised. But it continues the forceful arguments of female athletes arguing that the pay disparity is at a minimum, unfair, or in other cases, illegal.
Women to Kona
For example, Connecticut attorney Kelly Burns Gallagher has been talking about the disparities in the triathlon world for a while. The 50 Women to Kona movement notes that “At the World Championships for the Ironman Triathlon in Kona, Hawaii, the professional men have 50 qualifying spots and the professional women have only 35. We are asking you to help stop this unequal allocation by sending a message to the World Triathlon Corporation and its CEO, Andrew Messick.”
And recently in tennis, a tennis tournament director resigned after suggesting that women tennis players owe their success to their male counterparts.
There is no doubt that the argument of equal pay for female athletes has strong appeal. I’ve watched the women’s World Cup, for example, with the same enthusiasm as I do the men’s World Cup (and written about my love of U.S. Soccer too). Tennis has, for the most part, adopted the laudable position that tournament payouts should be the same for men and women.
But the lawyer in me recognizes that the legal issues aren’t neat and tidy. We’ve seen it come up in golf where LPGA golfer Stacy Lewis recently argued that LPGA players should be paid the same as their male counterparts on the PGA.
In that case, however, there are arguments that each tour has different endorsement deals, different sponsors and different viewer audiences.
Equal Pay Act
The Equal Pay Act (which may or may not get the soccer players to victory, depending on the legal arguments raised) mandates that that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. Title VII can also be raised; it does not require that the job of the person claiming discrimination be substantially equal to that of a higher paid person of the other sex, but unlike the EPA, Title VII requires proof of intent to discriminate on the basis of sex.
So how does one make a claim under the EPA? Simply stated, by showing that the jobs require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment defined as follows (and as noted by the Workplace Fairness site):
Skill: measured by factors such as the experience, ability, education, and training required to perform the job.
Effort: the amount of physical or mental exertion needed to perform the job.
Responsibility: the degree of accountability required in performing the job.
Working conditions: encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation, and (2) hazards.
It is this argument that the soccer players will likely try to advance. But as noted by The New York Times, there are likely to be several arguments that U.S. Soccer will respond with including that the law allows for different payments on factors other than gender:
U.S. Soccer could counter that the players’ pay is collectively bargained, and that the players agreed to all issues, including compensation and working conditions like whether the team must play on artificial turf on not. (The federation and the women’s players’ union are continuing discussions on compensation in a new collective bargaining agreement amid the current action.)
U.S. Soccer also receives substantially higher payouts from FIFA, world soccer’s governing body, for participation in the men’s World Cup. But the women’s complaint seems to take aim at a bigger share of domestic revenue, like sponsorships and television contracts.
Who will win? My guess is that we won’t know because ultimately U.S. Soccer and the soccer players will reach an agreement, perhaps as part of a new bargaining agreement. But the arguments about pay disparity between male and female athletes and coaches will live on.