The legal world never stands still and one area that is evolving at a considerable pace is the legislation relating to the gender pay gap. This is as true in the world of sports as it is in how gender diversity can play a crucial role in driving business sustainability and improving business financial performance.
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 June 8, 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 revenues 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 soccer 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 US Soccer Federation. 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 March 8 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 revenues for the USSF – but get paid less.
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. 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.
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.
In my fight for athletes’ rights, I have represented numerous player unions, and college and professional athletes, including in the “deflategate” case for New England Patriots quarterback Tom Brady, and South African runner Caster Semenya.
Although I did not represent Semenya in her most recent legal battles, I believe the case against her by the IAAF is fundamentally sexist. Any claimed advantage that Semenya has due to her biology is natural. No drugs or doping is involved. No one questions a male athlete who has natural biological advantages. In fact, all world class athletes have such natural advantages. It is discriminatory and cruel for the IAAF to only subject women to these rules, in which someone like Semenya is required to take artificial drugs to suppress her natural biological condition in order to compete.
These cases illustrate how legal issues in sports, like in other businesses, can affect the most fundamental rights of the individual. However, it is important to recognise also that issues are not only prevalent in the US. During my recent visit to the UAE, it was apparent that the UAE government is becoming increasingly aware of how gender diversity can play a crucial role in the development of the country, both in business and in sport. Our recent UAE Diversity & Inclusion survey showed that D&I is present in many workplaces as an ideal that organisations strive towards and as a practical reality. It is however, not so prevalent in the world of women’s sport – yet. With the growth of women’s sport in the region, I expect this to change quickly. I am lucky to be in a position to fight for the rule of law and promote social justice.
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Jeffrey Kessler, co-executive chairman of Winston & Strawn
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