The USA women’s national soccer team (colloquially referred to as the “USWNT”) last week reached a settlement with the US Soccer federation in a long-running dispute over pay disparity between the men’s and women’s teams. As well as $24m in back pay, the settlement also includes a pledge that the players of both the USWNT and the men’s team will be paid on par with one another going forward, at least in relation to their international duties. The contrast is especially stark in US soccer, where the history of pay disparity sits inversely proportionate to the respective teams’ achievements – the USWNT have won four World Cups and four Olympic titles, while their male equivalents peaked at 3rd place in the 1930 World Cup and have not made it past the last 8 since. Former USWNT player Hope Solo put the situation aptly, saying that the men’s team “get paid more just to show up than we get paid to win major championships”.

Of course, female athletes being paid less than their equivalent male counterparts is unfortunately not a new or isolated problem. In England, average salaries in the Women’s Super League (the highest tier of women’s football) are estimated to be in the ballpark of £30,000 per year, with the highest earners capping out at around £200,000. By contrast, the average salary in the men’s team at Brentford – who pay the lowest in this season’s men’s Premier League – is thought to be over £750,000. Other high-profile industries are also not immune, with media organisations in particular being roundly criticised for failing to pay female talent equivalent rates to men.

The obvious thought here is that discrimination on the grounds of gender is unlawful in the UK, and with all businesses with more than 250 employees required to report gender pay gap data, there would seem to be no place for companies in the spotlight to hide. So why do these enormous discrepancies still exist in so many fields?

An uneven playing field

In the UK, gender-based pay discrimination is governed principally by the Equality Act 2010. In brief, this implies new terms (or amendments to existing terms) into the contracts of employees, so that they are not any less favourable than the contracts of employees of the opposite sex doing “equal work”.

This latter term is likely to be the first port of call for a team wishing to justify paying its male stars astronomically more than their female counterparts. However, it is far from a get-out-of-jail-free card. “Equal work” for the purposes of the legislation is broken down into three categories – work of equal value, work rated as equivalent on a formal job evaluation scheme (such as is used in public sector pay banding), or the nebulous idea of “like work”; only one category needs to exist to form the basis of an equal pay claim. It is the latter of these that is likely to be most dangerous to English sports teams.

“Like work” generally indicates that the work performed by two employees is the same or broadly similar, and any differences do not have practical significance in setting the terms on which their work is carried out. Before an Employment Tribunal, this will involve looking at the skills and knowledge needed to do each role, and then assessing whether any of the differences that do exist should be relevant to the terms of employment (and especially, how much the two individuals are paid).

The likely argument for, say, a football team here would be that the difference in the required skill level between men’s and women’s competitions is inherently wide, such that a female player is not performing “like work” to a male player and therefore not entitled to be paid at an equal rate. The rare occasions where professional male and female teams have played one another might be said to bear this out, with even the USWNT losing 5-2 to the under-15 boys’ team of club side FC Dallas in 2017, whilst the reigning World Cup champions. However, given the infinitesimally tiny margins that tend to separate competitors in elite sports, it is nevertheless arguable that these distinctions are insufficient to use as a basis for determining the terms of work. Remove the gender element from such a scenario and things become a lot less clear cut – one would expect a title-chasing team to consistently and emphatically beat a relegation favourite, but that does not mean that their players are doing different work.

Of the other two “equal work” varieties, neither is (for the most part) likely to be of particular concern to sporting bodies, with job evaluation schemes effectively unheard of in the sporting sphere, and the value distinction between male and female sports usually well entrenched given the gulf in viewership (and revenues from viewers and sponsors) between the two. Ironically, however, were the USWNT to be subject to the Equality Act this might be an argument in their favour – given their success and the oversaturation of the US sports market, they are generally more popular and marketable than the men’s team.

Material factors

The other fallback for sports teams in equal pay claims is likely to be the “material factor” defence. In straightforward terms, this allows an employer to avoid an equal pay claim where there is a genuine material factor, unrelated to sex and not itself tainted by sex discrimination, that is the reason for the disparity; and relying on that factor is a necessary and proportionate means of achieving a legitimate aim of the employer.

One of the more obvious material factors that sports organisations might point to as justifying pay disparity is “market forces”. The rationale is that it may be necessary to pay a certain rate for a male-dominated role in order to avoid a shortage of suitable staff, without the same being true of a female-dominated role. The sporting equivalent would be that in order to maintain a team capable of being competitive to an average level in its league, a male player of suitable quality inevitably attracts a higher salary due to the wage competition from other teams and the comparative revenue each department generates.

However, this argument is controversial and can clearly be problematic, in that the lower market rate for female labour is a hangover of traditional attitudes towards women’s role in society (such as sports being a domain only appropriate for men). The inherently sexist logic underpinning this ought to be obviously incompatible with legislation promoting equality. In practice, the Employment Tribunals have permitted market forces arguments to be used, but there is a significant hurdle in showing that the market itself is not tainted by sex-based discriminatory attitudes, whether contemporary or historic. 

Another pitfall is that the “market rate” must be considered from the same perspective, whether that is the role or the specific individual. This was the BBC’s undoing when they were sued by presenter Samira Ahmed, with a tribunal finding that while Ms Ahmed had been paid a “market rate” based on the role she was filling, her comparator Jeremy Vine was paid whatever figure the BBC deemed necessary to secure his services. In other words, Ms Ahmed’s pay was determined by the market of options for the role, and Mr Vine’s by the market for bidders for his services. It does not take much thought to imagine the same rationale being applied to a team picking the best-value “first-team quality” striker for its women’s team, but deciding to pay Cristiano Ronaldo whatever it takes to get him to sign for its men’s team. 

To an extent, sporting employment does represent a unique case, in that the male and female labour markets are artificially segregated from one another. Indeed, the Equality Act specifically exempts discrimination about participation in sporting activities from claims, as long as the sport is “gender affected” (namely, the physical differences between average men and women would create a disadvantage for one gender). Athletes’ pay does not fall within the ambit of this exception, but it does serve to underline how the “market forces” factor may be a risky one to rely upon. If gender segregation was opened up and female players permitted to play for men’s teams, one would expect female salaries to significantly increase accordingly.

Another route

Given the muddy waters that an equal pay claim would involve, perhaps the fastest route for female athletes to achieve pay parity will be through less formal methods – principally, public pressure. This has had some degree of success in football in recent years – Wales and Ireland have recently joined a number of other nations in guaranteeing equal pay to male and female national team players. However, there remains work to be done particularly at club level, where there is a much more competitive market for wages (players, after all, cannot be “transferred” between national sides). Much of this will depend on increasing viewership for female sport, since this will in turn feed into increased broadcast and sponsorship revenues allowing the market for salaries to grow. The fight is not over in the US either, with Hope Solo criticising the partly contingent nature of the USWNT’s settlement as “[not] equal pay and it’s not what this fight was about”. With increasing public discourse and awareness, the direction of travel would seem to be correct, but there is no doubt still much distance to go.