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Gender pay equality in sports

Copyrights: Jamie Smed

Gender pay equality in sports

As we enter the semi-finals of the Women’s World Cup, with England facing the USA on Tuesday 2 July and the Netherlands fighting Sweden for a place in the final on Wednesday 3 July, renowned attorney at international law firm Winston & Strawn Jeffrey Kessler gives his thoughts on the ongoing pay equality case in the background, brought by the USA team.

I recently took on one of the highest-profile cases in the history of gender equality in sports – the USA women’s football team's gender discrimination lawsuit against the United States Soccer Federation (USSF). This case and its hoped-for successful outcome has potential ramifications far beyond professional sports as it could set an example for gender pay equity in the workplace on a global basis.

The US team started the defence of their title at the World Cup in France on 8 June, with the pay equity lawsuit proceeding at the same time. The case was brought after years of struggle over this issue, as the most successful women’s team in the world continues to make much less than the US men’s team, also employed by the USSF.

The unfairness of this discrimination was evident in the fact that the US women’s team has generated more revenue for the USSF than the men’s team since 2015, but still made considerably less in salaries and bonuses. They also have been more popular in the US than the men’s team in recent years, due to their phenomenal success.

When nearly 27 million Americans tuned into the women’s football World Cup final in July 2015, they had no idea how many records were about to be broken. Apart from being the most-watched soccer game in US history, the US Women’s National Team became the first team in the world to win three separate women’s football World Cup titles and participate in a game with the most goals of any men’s or women’s World Cup final. But their pay told a different story.

Despite being well-loved victors by fans everywhere, the US team received a bonus of just $1.725m from their employer, the USSF. A year earlier, that same federation had awarded the US men’s team bonuses totalling $5.375m after they lost in the round of 16. The same type of pay discrimination exists when the team plays friendlies and non-World Cup events. So why are the women getting paid so much less?

I had no hesitation when asked to lead this lawsuit with my partner Cardelle Spangler, which was filed on 8 March this year – on International Women’s Day. All 28 members of the current team sued their employer, the USSF, for gender discrimination. The suit argued that male and female footballers have the same job – they play on the same size field; use the same size ball; have the same duration of matches; and play by the same rules.  They also generate more revenue for the USSF, but get paid less.

The women’s complaints go beyond money. They play more games on AstroTurf, which is more dangerous than real grass; they don’t receive the same level of travel and accommodation; and the USSF doesn’t put as much effort into marketing and promoting their games. All of this is illegal under US law.

The facts of the case for the Women’s National Team are clear – it is the clearest case of gender-based discrimination – the women have the same employer and exactly the same job. The difference is the women are indisputably far more successful than the men, not just in a competitive sense, but also in an economic sense. I hope that this case will not only achieve pay equity for the team, but that this fight will inspire others to fight for gender equity.

  • Jeffrey L. Kessler is the Winston & Strawn LLP co-executive chairman and co-chair of the firm’s Sports Law and Competition Law Practices. Jeffrey focuses his practice on all aspects of antitrust/competition, sports law, intellectual property (IP), complex litigation, and government criminal and civil investigations. He has been lead counsel in some of the most complex antitrust, sports law, and intellectual property law cases in the country, including major jury trials. In the area of sports law, he is widely known for having worked on many of the leading sports litigations in history, including the Freeman McNeil litigation which brought free agency to the NFL, the Junior Bridgeman litigation which brought free agency to the NBA, the Jenkins and Alston litigations, which have struck down the compensation rules for D-1 basketball and football in the NCAA, the “deflate gate and bounty-gate” cases  for the NFL Players’ union, CAS arbitrations for Oscar Pistorius and Caster Semenya, and the Women’s National Team case for gender pay equity.

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Jeffrey L. Kessler

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Tuesday, July 2, 2019 - 10:44