Equal Pay for Equal Work?

Equal Pay for Equal Work? The Quest of the U.S. Women’s National Soccer Team For Gender Equity

Equal pay for equal work. Men and women should be paid the same for the same work. It’s a simple idea that’s impossible to argue with. Several star players of the World Cup-winning U.S. Women’s National Team (USWNT) have filed a claim under the Equal Pay Act that may test the limits of that proposition. The soccer players of the World Cup winning US Women’s National Team are trying to use the EPA to achieve greater pay equality with their male counterparts. They filed a complaint with the Equal Employment Opportunity Commission in March 2016. The US Soccer Federation (USSF) contends that the women are paid roughly equally with men – as a percentage of game revenue they create. The USSF may also argue that the members of the USWNT and of the USMNT are not engaged in equal work. Thus, the claim by the UWNT raises questions as to both of the central issues of the Equal Pay Act – What is equal work and what is equal pay?

Do the members of the USWNT team engage in equal work?

Under the Equal Pay Act, equal pay is only required for equal work “on the jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working condition.” 29 USC § 206(d)(1). Equal does not, however, mean identical. The applicable regulations define equal as “substantially equal” – which is not particularly illuminating. 29 C.F.R. § 1620.13.

The statutory language requires one to look at the “skill,” the “effort,” the “responsibility,” and the “working condition.” Each of these factors is the subject of regulations that attempt to refine the concepts. “Skill includes consideration of such factors as experience, training, education, and ability.” 29 C.F.R. § 1620.13. “Effort is concerned with the measurement of the physical or mental exertion needed for the performance of a job.” 29 C.F.R. § 1620.16. Minor differences in effort cannot support inequality in pay. Id. “Responsibility is concerned with the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation.” 29 C.F.R. § 1620.17.

The members of the USWNT certainly perform equal work in many respects. They train full-time; they play 90 minute games on the same fields, with the same ball, shooting at the same goal. The official FIFA “Laws of the Game” are the same for men and women.

The USSF may argue, however, that below the surface the work is not equal. They may contend that the jobs do not require “equal skill.” There is no question that the women are exceptionally skilled. They would absolutely embarrass most men on the field. However, at the highest level, the physical skills of the members of the USWNT are not equal to those of the USMNT. That is, if the women of the USWNT had to compete directly with the USMNT for spots on one team, they would not be selected. The biological advantages of size, speed, and strength are simply too great for the men. But this fact may well be irrelevant. The women, in reality, do not have to compete with the men. And, but for the biological advantages, the women are certainly as skilled as the men.
In addition, the USSF may argue that the men and women do not have jobs of equal responsibility because the men generate significantly more revenue than the women. Indeed, the Ninth Circuit accepted a similar argument in holding that USC could pay its men’s basketball coach more than its women’s basketball coach – because the men’s coach was responsible for generating about 90 times the revenue of the women’s coach. Stanley v. Univ. of S. California, 13 F.3d 1313, 1321 (9th Cir. 1994). The women of the USWNT dispute this as a factual matter – they point to projections from USSF that show the USWNT out-earning the USMNT in the next several years. Further, it’s not clear how relevant this difference is – neither the men nor the women are “responsible” for revenue generation, their job is to play and to win.

Do the members of the USWNT team receive equal pay?

Equal pay under the Equal Pay Act means an equal rate of pay, when looking at all forms of compensation and benefits. In most cases, this is a fairly simple analysis – comparing men’s versus women’s yearly salaries or hourly wages.

The members of the USWNT point to several significant discrepancies between their pay and that of the USMNT. For instance, the women would earn $99,000 each if they won 20 exhibition matches (the minimum number required of them). The men would earn about $263,320 if they won twenty matches and $100,000 just for losing 20 matches. Some of the figures most cited in news coverage has been the mounts for per diems and sponsorship appearances: The women receive $60 a day for expenses versus $75 for the men; the women receive $3,000 for a sponsor appearance versus $3,750 for the men. While relatively minor, these discrepancies are virtually impossible to defend standing alone.

The women, however, also receive guaranteed benefits that the men do not. For being on the USWNT, each player receives a salary of $72,000, plus fringe benefits. The men are paid strictly on a game by game or tournament by tournament basis. Further, U.S. Soccer claims that the women have actually received a higher percentage of “game revenue” than the men have over the last decade. However, such “game revenue” excludes significant sums like revenue for TV rights – which the USSF receives jointly for the right to broadcast both men’s and women’s games. In addition, the men receive far greater bonuses for participating in the World Cup, but FIFA pays USSF far more for the men’s World Cup than the Women’s World Cup (presumably because the men’s World Cup is significantly more popular and lucrative worldwide). It would appear, therefore, that the argument over equal pay will be complicated. Do you look at raw compensation numbers or compensation as a percentage of revenue? If so, what revenue do you include? How do you compare the security of a fixed salary versus the risk of game-to-game compensation, which depends upon the coach selecting a player among the many eligible?

The EEOC will have to grapple with these questions as it investigates the women’s complaint. If it goes that far, the federal courts will also have to grapple with them. Whatever the result, as a fan, I hope to see the USWNT focused on the next major goal of Olympic gold this summer in Rio.

In this article, I will examine only the federal Equal Pay Act. There is a California equivalent. There is substantial overlap between the two, but the statutory language of the California act is different in some respects. Obviously, if you have a California case, you will want to evaluate the application of the California Equal Pay Act. Cal. Labor Code § 1197.5.

In terms of size and shape, and the rules regarding the fields, the men and women are identical. But one of the women’s complaints has been that they are forced to play on fields that would be unacceptable for men’s games – particularly artificial turf, which many elite soccer players despise.

In this way, sports represents a rather unique employment scenario. It is hard to imagine another situation where men and women can legitimately do the same job in a segregated environment.

The women of the USWNT rightly point out that they have certainly won far more than the men. The women won the last World Cup. The men lost before the quarter-finals.