GLADIATHER LAW: The USWNT & The Equal Pay Act
Yesterday the sports world was set abuzz when it was announced that members of the US Women’s National Team (USWNT) filed a charge with the Equal Employment Opportunity Commission (EEOC) against the US Soccer Federation (USSF). Based in the Equal Pay Act of 1963 (EPA), the complaint states that the USSF has discriminated against the USWNT by paying its athletes less than it pays the athletes for the US Men’s National Team (USMNT) despite the USWNT earning considerable more in revenue and advancing/winning more in major tournaments. In fact, the USWNT earned around $20 million more last year than the men’s team, but was paid about four times less. Take a look at the data:
It looks pretty bad folks. While the USSF has yet to respond to the charge we know, from an earlier lawsuit, that the USSF will likely assert that the USWNT doesn’t have a valid claim because they have a collective bargaining agreement (CBA) in effect until December 2016. With all the legal acronyms involved with this one, I figured today would be a good day for a new installment of GladiatHer Law. So let’s work through this.
What Does the Law Say?
The EPA requires that men and women in the same workplace be given equal pay* for equal work. While their jobs don’t have to be identical, they need to be substantially equal in skill, effort and responsibility. The work also needs to be performed under similar working conditions within the same establishment. Pay differentials are allowed for non-sexual factors like seniority and merit. In other words, a male first-year associate should expect to make the same as a female first-year associate, not as female third-year associate.
Who Enforces the EPA?
The EEOC and courts are responsible for enforcing the EPA. If someone believes they are being subjected to wage discrimination they may file a complaint in court or file a charge with the EEOC (like the USWNT did). An EEOC charge requires the EEOC to investigate the claim. If the EEOC finds evidence of wage discrimination, the parties are given an opportunity to voluntarily settle the matter. If settlement does not work, the EEOC will determine if it should file a lawsuit against the employer. If the EEOC declines to file the lawsuit, it will provide the claimant with a Notice-of-Right-to-Sue**, letting the claimant know that they can sue the employer in court.
So Does the USWNT Have a Winning Charge?
On the surface, it appears that the USWNT has an excellent case for wage discrimination. They, along with the USMNT, are professional, international soccer players employed by the USSF. Each team plays in similar international play like the World Cup and the Olympics. The training, travel and responsibilities are arguably identical. As far as merit goes, it would seem that the USWNT’s record (especially as of late) has significantly surpassed that of the USMNT.
But when you scratch the surface, there are some things that might muddy the waters. For instance, seniority is a valid reason for pay differentials. While the individual players on the USMNT might not have seniority over the individual players for the USWNT, the USMNT as a whole has been in existence since 1885, an entire 100 years more than the USWNT. That’s 100 more years of experience, competition, revenue and notoriety garnered as an organization. The teams operate as a unit and negotiate their wages as a unit, not as individuals, so as a unit the USMNT has more seniority than the USWNT.
That last point brings up what might be a big problem for the USWNT’s charge, the existence of a CBA. A CBA is an agreement between employees and an employer that regulates salaries and certain conditions, requirements for the parties. If the USSF successfully claims that the USWNT negotiated a fair and lawful CBA that is in effect until December 2016, then the USWNT might have to wait to renegotiate new salaries. But that’s a big “if” because the law is clear: the existence of a CBA with unequal rates of pay in conflict with the EPA will be held as “null and void and of no effect.” In other words if the USWNT can show that the rationale for the pay differentials in two separate CBAs is differences in sex, then the USWNT may be able to sustain its charge and negotiate new salaries or sue the USSF.
So What’s Your Take on This Sporty Esquire?
I’m glad you asked. Contrary to what you might think, I don’t believe that the EPA charge is in the best interest of the USWNT. I want fairness, and fairness doesn’t always mean the same exact pay. What I believe is fair is for athletes to be paid based on their worth, accomplishments and earning potential. I think that the best vehicle for that is a CBA. The USWNT is sophisticated and accomplished enough to negotiate salaries independent of men. In fact, it’s in their best interest to negotiate salaries separate from men because they have proven that they are a more valuable organization than the USMNT. Using the EPA may have the unintended affect of limiting the earning potential of the USWNT because it will link the USWNT to the accomplishments of men. Now this is not to suggest that the EPA isn’t needed, because it is, but in this instance women can stand on their own and they should. The USWNT plays big and earns, so they should get paid big, bigger than the USMNT.
*So we’re clear your pay includes all forms of compensation, like overtime, stock options and vacation time, not just what’s on your pay check.
**The EEOC may also give this Notice-of-Right-to-Sue if it does not determine that wage discrimination has occurred.