Equal Pay for Superior Play: Wage Discrimination and the U.S. Women’s National Team

Research Team Members: Barbara Osborne and Stacy L. Kelly

Why did you do this study?

This study evolved from a broader study examining gender discrimination in the sport workplace on an international scale. The Women’s National Soccer team is arguable the most recognizable and successful women’s team in the United States having won three World Cup titles, four Olympic gold medals, seven CONCACAF Gold Cups, and ten Algarve Cups. Despite this success, the Women’s National Team (WNT) is paid significantly less than their counterparts on the Men’s National Team, both in salary and performance bonuses.

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Last May, five members of the WNT filed a complaint with the Equal Employment Opportunity Commission claiming wage discrimination. The publicity surrounding the complaint prompted a non-binding resolution passed unanimously by the US Senate calling for the United States Soccer Federation (US Soccer or USSF) to “immediately eliminate gender pay inequity and to treat all athletes with the same respect and dignity.”(1) In her statement on the Senate floor before the resolution was adopted, Senator Patty Murray (D-Wash.) stated:

…this isn’t just about the money. It’s also about the message it sends to women and girls across our country and the world. The pay gap between the men and women’s national soccer teams is emblematic of what is happening all across our country. On average, women get paid just 79 cents for every dollar a man makes. This is at a time when women, more than ever, are likely to be the primary breadwinner for their family. The wage gap isn’t just unfair to women. It hurts families. And it hurts our economy.

What did you do and what did you find in this study?

The legal battles of the WNT provide a unique opportunity to examine the gender wage gap in professional sport in the United States. This complaint invokes the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, as well as collective bargaining and labor law to determine whether a difference in wages, game bonuses, per diems and appearance fees paid to the women’s team as compared to the men’s national team amounts to sex discrimination.

The legislation: Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964

The Equal Pay Act (EPA) prohibits employers from discriminating between employees on the basis of sex. To state a valid cause of action under the EPA, the complainant must prove the employer paid different wages to an employee of the opposite sex for equal or substantially equal work. Equal or substantially equal work is measured by the amount of skill, effort, and responsibility in performing the job under similar working conditions. The employer may assert any of four affirmative defenses to justify differential pay: seniority, merit, quantity or quality of production, or any factor other than the sex of the employee. While Title VII provides much broader protection against sex discrimination in the workplace, wage discrimination claims are analyzed under the same rubric as the EPA.

The WNT is uniquely situated as it is the only women’s professional team in the United States with the same employer as the men’s team. This allows the WNT players to establish an equal comparator – simply comparing salaries of men’s teams in a league like the NBA to the salaries provided to women’s teams in the WNBA is not allowed under the EPA because the employees (the athletes) do not have the same employer; the basketball players are employed by their respective teams, not a league, and not a single employer.

The next step is to determine whether the jobs are substantially equal. It appears that the pregame, game and post-game duties of the WNT players are substantially the same and/or greater than those of the MNT players. All players are expected to maintain their conditioning and overall health such as by undergoing rigorous training routines (endurance running, weight training, etc.) and adhering to certain nutrition, physical therapy and other regimens;   maintain their skills by attending training camps and frequent practices, participating in skills drills, and playing scrimmages and other practice events; . travel nationally and internationally as necessary for competitive games which are exactly the same in length, physical and mental demand, and playing environment and conditions; and promote a positive image for soccer through media and other appearances. While it appears that the players’ jobs are equal, it is arguable that the WNT players actually work harder than the MNT, as they spend more time in training camp, play far more games, travel more, and participate in media sessions, among other things, than MNT players.

osborne_figAlthough they work harder (or at least equally hard) compared to the MNT, the WNT is paid less and the research indicates US Soccer also fails in affirmative defenses: seniority, merit, quantity or quality of production, or any factor other than the sex of the employee. Many WNT members have more years’ experience compared to MNT players, the WNT has been far more successful on the international stage than the MNT, and they play more games and make more promotional appearances per year. The WNT also generates more revenue for US Soccer than the MNT, and inequities in payments from FIFA, the international governing body for soccer, for World Cup performance bonuses are based on the sex of the players, thus negating that category of defense.

 Collective Bargaining and Labor Law Defenses for US Soccer

 U.S. Soccer argues that comparing the men’s and women’s wages is apples-to-oranges due to the structures of their respective collective bargaining agreements. The MNT and the WNT are both represented by players’ unions that negotiate a contract (the collective bargaining agreement) for each team. The women have a salary based system supplemented by benefits including health insurance, maternity leave, and severance pay and game-win bonuses. The men, on the other hand, have a “per-game” agreement that is supplemented by game-win bonuses.  US Soccer claims any discrepancies are based on the agreement structures requested and agreed on by the respective players’ unions and not out of discriminatory practices by U.S. Soccer.   However, federal labor law regulations state inclusion in a collective bargaining agreement of unequal rates of pay does not constitute a defense. Any and all provisions in a collective bargaining agreement which provide unequal rates of pay in conflict with the requirements of the EPA are null and void and of no effect.

How do these finding impact the public?

As previously stated, the gender wage gap in the United States is a serious social problem. Our country’s obsession with sport and the visibility of the WNT provides a platform to shed light on this problem, as well as gender discrimination in the sport industry in general. This research educates the public about the various statutes that protect against gender wage discrimination as well as the failings of this legislation to adequately address the problem.

(1)  S. Res. 462, 114th Cong. (2016).

 

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