We hope you weren’t late to the game on Sunday. In the World Cup final, soccer’s biggest stage, the United States Women’s National Team scored three exciting goals in the opening minutes and led 4-1 at halftime against defending world champion Japan. It was a scoring frenzy that soccer fans rarely see and aren’t likely to see again for a long time. The team went on to win the game in impressive fashion, with a final score of 5-2. The game capped off an impressive run by the U.S. women, which included last week’s upset of top-ranked Germany. According to preliminary ratings, a record number of Americans tuned in to cheer the U.S. women on in the final—as many viewers as tuned into Game 7 of the World Series last year.
That’s the good news. The bad news? These phenomenal athletes are paid pennies compared to their male counterparts. As Mary Pilon reports on Politico, the prize for being World Cup champions is $35 million for male teams, but $2 million for female teams. This stark disparity is reflective of the athletes’ everyday salaries. Soccer players in the National Women’s Soccer League receive salaries ranging from $6,000 to $30,000, and teams have salary caps of $200,000, whereas Major League Soccer, the male soccer league, has team salary caps of $3.1 million. A Fusion report estimates that first division women’s soccer players make a whopping 98.6% less than their male counterparts.
Title VII and the federal Equal Pay Act (“EPA”) are not the likely avenues for solving this problem, given the unique circumstances of professional athletics.
The EEOC has said that differences in “revenue” generation and “marketplace value” may be viable affirmative defenses when it comes to differentiating pay for college athletic coaches, and one can imagine that similar defenses could apply to professional athletic organizations. Additionally, male and female professional athletes aren’t often employed by the same organization, making it impossible to identify comparators within the organization.
However, other employees suffering from wage disparities often can seek relief under these and similar state laws. Under the EPA, an employee will have a viable claim if she can show that her job is substantially similar to a male employee who is paid more. In evaluating whether jobs are functionally similar, courts look at skill, effort, responsibility and working conditions—and they must look beyond the titles of the jobs to see if they are functionally similar. If the employee establishes a male comparator, the employer must have an affirmative defense explaining the wage disparity in order to avoid liability. The criteria that serve as affirmative defenses are a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a factor other than sex. Unlike most discrimination claims, the employee does not need to prove discriminatory intent in order to succeed.
Women’s skills in the workplace, their ability to perform the same job functions as men, are not televised as are those of female athletes. Every day jobs are not spectator sports. As women’s sports continue to gain ground in popularity, the corporations that televise, fund, and promote them will, we can hope, have no choice but to level the pay playing field. Wimbeldon is there now thanks in large part to the efforts of one Billie Jean King in forming the Women’s Tennis Association, which, in turn, “launched a public opinion campaign in France and Britain.” Perhaps the US Women’s win on Sunday will help sway the tide of public opinion in favor of equal pay in both sports arenas and in the workplace.