The goal seemed like something more than just a goal, just as the game seemed like something more than just a game. When Carli Lloyd sped past a defender fifteen minutes into the final of the Women’s World Cup last July and launched a shot halfway across the field, the long arc of the ball suggested how far women’s sports had come. It was a shot that required boldness, strength, and astonishing accuracy. Not a Hail Mary, not a wish or dream, it was a statement of skill and mastery. This is what athletes can do, it said. This is what sports can be.
For a brief moment last summer, the U.S. women’s national team was everywhere. The team’s 5–2 final win over Japan was watched by more than twenty-five million people in the United States, the largest-ever television audience for any English-speaking broadcast of any soccer game, men’s or women’s. Afterward, there were tweets from celebrities and a phone call from the President; there was a ticker-tape parade down New York City’s Canyon of Heroes. For the July 20th issue of Sports Illustrated, each player and the team’s coach got her own cover.
Had the team followed the pattern established after the women’s national team’s victory in the 1999 World Cup, it would have then retreated. The players would have gone back to the National Women’s Soccer League, where the crowds number about five thousand and the national coverage is nonexistent, and would not be heard from again until the Rio Olympics.
But even as the team celebrated its tremendous win, it was engaged in tense collective-bargaining-agreement negotiations with U.S. Soccer. At issue was whether the women would be compensated at the same level as the men—which, they contend, U.S. Soccer refused even to put on the table. In February, U.S. Soccer sued the union representing the players in a dispute over the validity of the terms of the old collective-bargaining agreement, which includes a no-strike clause. At the end of March, Carli Lloyd, Becky Sauerbrunn, Alex Morgan, Megan Rapinoe, and Hope Solo went public. They filed a federal complaint accusing U.S. Soccer of wage discrimination. They earned significantly less money—roughly a quarter less, according to the complaint—despite dramatically outperforming the men’s national team, and despite producing nearly $20 million more in revenue for U.S. Soccer than what the men’s team brought in. (The U.S. Soccer Federation disputes those numbers.)
The women are making two different appeals, one aimed at the Equal Employment Opportunity Commission, where the case was filed, and one aimed at the public. One argument is economic and grounded in employment law. The other is about social justice. The reason they went public, their lawyer, Jeffrey Kessler, told me, is that they feel an obligation to speak for women in the workplace. “It’s about doing the right thing, the fair thing,” Lloyd wrote in an Op-Ed for the New York Times. “It’s about treating people the way they deserve to be treated, no matter their gender.” The implicit assumption is that those two arguments are inseparable—in the women’s formulation, equal pay for equal play. Money is respect.
Yesterday, the lawsuit filed by U.S. Soccer advanced in the court of law, and the case filed by the players advanced in the court of public opinion. In Chicago, a judge reserved ruling in U.S. Soccer’s lawsuit, increasing the chances that the two sides could go to trial, perhaps before the Olympics begin in August. And at the Capitol, the Senate unanimously passed a nonbinding resolution that calls upon U.S. Soccer to “immediately end gender pay inequity and to treat all athletes with the respect and dignity those athletes deserve.”
In the days following their filing, Lloyd, Sauerbrunn, Morgan, Rapinoe, and Solo went on a media blitz. The last time we’d seen them, they’d been parading down the Canyon of Heroes through a blizzard of confetti. Now they were describing inadequate playing conditions, unequal support for travel, food, and accommodations, and a compensation structure that systematically discriminated against them. The press listened. The columnists weighed in. So did President Barack Obama. “The Daily Show” ran a segment celebrating them and satirizing the other side. The women were winners who’d been wronged. And what, exactly, had the men done to deserve more than the women?
“I don’t want to use the word deserve in any of this,” Sunil Gulati, the president of the United States Soccer Federation, toldSports Illustrated. “I’d reverse the question: Do you think revenue should matter at all in determination of compensation in a market economy?”
Gulati, who happens to be a senior economics lecturer at Columbia University, points out that the revenue from last year was a fairly big anomaly, and that, the final rounds of the Women’s World Cup notwithstanding, the men’s team consistently draws bigger audiences in stadiums and on television. He argues that the women’s financial figures are cherry-picked and taken out of context, and that the bonus money comes from FIFA, not from U.S. Soccer. He argues that the women have chosen stability—in the form of salaries and medical coverage—over the men’s pay-for-play structure. The women, meanwhile, argue that their spectacular 2014 season was not an aberration, and that they will continue to produce a large share of domestic revenue—an argument that is reflected even in U.S. Soccer’s own budget projections. (FIFA, they may add, is not exactly a good organization to hide behind.) They argue that the salary structure is merely a lump sum, and that what the men could make by playing the same number of games as the women would add up to a higher figure. The men are offered higher incentives across the board. (“The women do have a maternity benefit,” Kessler allowed. “Frankly, these days, the men should have one, too, but they didn’t bargain for it. But that’s hardly enough to offset the difference in pay.”) They point to unequal conditions for analogous work: playing on hazardous turf instead of on grass; flying economy while the men flew business; receiving a lower per diem than their male counterparts and lower sponsor-appearance fees.
“You have a funny situation here—a rare niche of explicit, complete segregation,
but the same work,” Cynthia Estlund, a professor of labor and employment law and workplace governance at New York University, told me. “So in one way it's a really clear case, but it could get really complicated, depending on how courts see the role of ‘the market.’ ”
But the more important case may be the one that the women are making out of court. “The bigger action, I suspect,” Estlund continued, “is in the political domain.”
No one disputes that the players deserve respect and dignity. But what does that mean—not only for the women’s soccer players, but for female athletes?
In many respects, we are at a high point for women’s sports. The quality of play, across sports, has improved exponentially in the past few decades, as girls have grown up with the full benefits of a system slowly built after Title IX—and with the examples of female champions. Last year, a woman was named_ Sports Illustrated_’s Sportsperson of the Year. In a few months, female athletes will be showcased as some of the Rio Olympics’ biggest stars. And while female athletes are still routinely judged on the basis of their looks, when Vogue featured Morgan in its April issue, the most memorable feature of the photogenic woman was her massive, muscular quads.
Still, the recent financial success of the women’s national team is exceptional. Professional sports are more (and more and more) about money, and the money is still where it has always been: with the men. Sports remain one of the last boys’ clubs in mainstream culture. Women’s professional leagues have struggled. The W.N.B.A. has made it to its twentieth season, and many people know the names of Breanna Stewart and Brittney Griner, but ratings are down; in 2015, attendance was the lowest it has ever been. Salaries are so small that most women make their living playing overseas during the off-season. A professional women’s hockey league débuted this winter, with four teams; players make between ten thousand dollars and twenty-six thousand dollars. The league’s entire budget is less than an average N.H.L. salary.
The National Women’s Soccer League, which was started in 2012, has managed to survive, unlike two predecessors. Still, the numbers are grim. Top-tier U.S. players make a base of fifty-four thousand dollars, and an added seventy-two thousand for playing for the national team, but their salaries are paid by the U.S. Soccer Federation. (The Canadian Soccer Association has a similar arrangement.) Salaries for players not on the national team range from seven thousand two hundred dollars to thirty-nine thousand seven hundred dollars. Due in large part to the U.S.’s spectacular World Cup win last summer, average attendance in the N.W.S.L. was up last year by nearly twenty-two per cent—but only to 5,046. (Average attendance in the men’s professional league, Major League Soccer, by contrast, was 21,574.)
These low numbers only tell a small part of the story. According to a 2015 U.S.C. study that surveyed L.A. broadcast affiliates and ESPN’s “SportsCenter_,”network affiliates in 2014 devoted 3.2 per cent of airtime to coverage of women’s sports. “SportsCenter” _devoted only two per cent. Of the four hundred and five “SportsCenter” segments in the sample, three hundred and seventy-six featured men’s sports, sixteen were gender-neutral, and thirteen covered women. In the whole month of November, “SportsCenter” aired only two short spots on a women’s sport, and both were about the University of Connecticut’s basketball team, one of the most successful dynasties in history. During that month, there was no coverage of women’s sports on the network affiliates at all. Women’s sports are caught in a vicious cycle: the demand is so low partially because there’s so little mainstream coverage, but there’s so little coverage because there’s so little demand.
There has been progress; broadcasters and hosts no longer routinely refer to women, whether athletes or fans, in a casually sexist way (and, when they do, they are usually swiftly condemned). And it’s possible, of course, that women’s sports are becoming more entrenched in popular culture. Even in the past few years, ESPN, the biggest media force in American sports, has made a concerted push to show more female sports and to feature more female broadcasters and analysts (until ESPN shut down the site Grantland, last October, I was an ESPN employee). The new editor of ESPN The Magazine, Alison Overholt, is also the editor of the women’s-sports site espnW, and the magazine’s current cover features W.N.B.A. players. You can even watch college softball on ESPNU.
Still, ESPN is a company that likes to say that it knows its audience and knows what its audience wants. And there is no question what that is: N.F.L. football, more N.F.L. football, college football, men’s basketball, baseball, and the occasional hockey fight. According to that U.S.C. study, coverage of women’s sports was actually lower in 2014 than it was in 1999 (8.7 per cent) and even in 1989 (five per cent). By that metric, at least, if the sports business is a zero-sum game, then it only seems like women’s sports are gaining. They’re actually losing ground.
Tennis is the only sport where men’s and women’s winnings are even remotely equitable, and even then, they are the same only at the Grand Slams and a few other tournaments. Equal prize money took decades of activism, notably by Billie Jean King, and it remains, in certain quarters, controversial. In March, Raymond Moore, the head of the BNP Paribas Open, resigned after saying that female players “ride on the coattails of the men,” among other remarks derisive to women. When asked about Moore’s comments, Novak Djokovic, the top-ranked men’s player, diplomatically praised his female colleagues but used the occasion to suggest that the men’s tour should push for a larger share of earnings than the women, presumably even at the majors. “I think that our men’s tennis world, A.T.P. world, should fight for more because the stats are showing that we have much more spectators on the men’s tennis matches,” Djokovic said. “I think that’s one of the reasons why maybe we should get awarded more. Women should fight for what they think they deserve and we should fight for what we think we deserve.” A month later, Ion Tiriac, the owner of the Madrid Open—one of only three tournaments beside the majors to offer men and women the same prize money—told the_ Times_ that he did not think the women merited equal pay, and that it would probably become unsustainable. (He also volunteered his preference for women’s long legs.) Many players on the men’s tour share this views that, when the women gain, the men lose. They believe that they “deserve” more because men’s tennis brings in higher revenues.
They are not wrong about the revenues—in 2014, the men’s tour made $37.4 million more than the women’s tour—but there are reasonable arguments for the women, too. “The issue of equal [pay] goes way beyond one element of broadcast agreements,” the C.E.O. of the Women’s Tennis Association, Steve Simon, told the W.T.A. Web site. “The WTA and the ATP at these combined events are both contributing to that brand and that product,” he said. Men and women play on the same courts, at the same stadiums, and are marketed together at combined events. Both the tours are supported by the popularity of a small number of players, including women, and combined tournaments are quick to capitalize on their presence. (The difference in the revenue, furthermore, can fluctuate; in 2008, it was only $2.6 million. It will likely narrow again when Roger Federer retires.) Moore was right to say that much of tennis’s recent success can be traced to two players, Federer and Rafael Nadal.But he was wrong to suggest that only the women have benefitted. Djokovic, who has never achieved the same level of popularity, does, too.
Wimbledon is the most recent major to award men and women equal winnings. It made the decision in 2007, but not because women were bringing in more tickets or higher sponsorship deals, or because the women threatened to go to court. (They would not have been able to, even if they had wanted to. The W.T.A. and A.T.P. are separate entities, unlike U.S. Soccer, which is the employer for both the men and women. “The issue is obviously related, in terms of gender equity, but the legal terms just don’t apply,” Kessler said.) Wimbledon is hardly the vanguard of social equality, but it recognized the moral argument. “This year, taking into account both the over-all progression and the fact that broader social factors are also relevant to the decision,” the chairman said, in a statement, “they have decided that the time is right to bring this subject to a logical conclusion and eliminate the difference.”
Equal pay hardly hurt Wimbledon. Prize money nearly doubled between 2010 and 2015—for the men and women alike.
Case Study: £20,000 Equal Pay Claim Recovered Through Judicial Mediation
From our office in Gatwick & Crawley, Fiona Martin and Matthew Grant recovered £20,000 and a reference through taking part in Judicial Mediation on a complicated sex discrimination and Equal Pay claim.
Joanna worked as a Field Sales Executive at SLM Plc where her role was to sell telephone and internet solutions to small and medium-sized businesses. Like the other members of her team, Joanna had sales targets to meet and she received commission depending on how many sales she made, over and above her target.
Ian joined SLM, also as a Field Sales Executive. Joanna came to learn that despite his sales results being poor, Ian was earning more than her. This made Joanna suspicious.
Joanna discovered that Ian’s sales targets were lower than hers and also his salary was £7,000 more than hers. Joanna did not believe this was fair as she was more experienced than Ian and had more responsibility.
Joanna raised a number of informal complaints with her manager, Steve, about her pay but he did not take her complaints seriously. Steve eventually offered Joanna a more senior Business Manager with the same basic salary as Ian. No compensation was offered for the differential in pay between her and Ian.
Unfortunately, Joanna’s new role was problematic as the targets provided were unachievable due to insufficient support from the sales team. Joanna realised that she had been “short-changed” and she continued to press her equal pay complaint.
Joanna was called to a meeting where she was told she had no future with SLM and was given a Compromise Agreement (now known as a Settlement Agreement) which only reflected her notice period. Her work pass was taken from her and she was escorted from the building. She approached Fiona Martin for help.
What Martin Searle Solicitors did
Fiona Martin advised Joanna on the different complaints she had including unfair dismissal, victimisation, sex discrimination and Equal Pay.
Fiona, with the assistance of Equal Pay specialist Matthew Grant, helped Joanna raise a grievance and drafted her employment tribunal claim arguing that Joanna and Ian did “like work” as Field Sales Executives. They also argued that moving Joanna to the Business Manager role was an act of victimisation. To encourage a speedy settlement, Fiona put forward sensible figures in without prejudice negotiations to SLM. However, these were not accepted.
Joanna managed to obtain another job at a higher salary within three months of being dismissed which cut off her claim for continuing loss of earnings.
To avoid Joanna having to pay for the cost of a three day hearing, Martin Searle Solicitors suggested to SLM and the Employment Tribunal that Judicial Mediation would be an effective way of achieving a fair settlement.
A one day Judicial Mediation hearing enabled us to agree a settlement sum based on:
- The difference between Joanna and Ian’s salaries for almost 2 years
- The commission she lost out on due to having unrealistic targets
With interest and an uplift under the ACAS Code, as the company had not gone through a fair dismissal procedure, Joanna recovered in excess of £20,000 for her Equal Pay claim.
Our expert employment law team can assist both employers and employees in handling equal pay issues. Contact us today on 01273 609911, or email email@example.com to find out more.
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