THE FIGHT OFF THE FIELD - LEGAL ISSUES SURROUNDING COMPENSATION OF FEMALE PROFESSIONAL ATHLETES - SEGAL MCCAMBRIDGE
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The United States players stand on the field during player introductions with their tops turned inside out as part of the team's equal
pay campaign before the SheBelieves Cup match against Japan at Toyota Stadium on March 11, 2020 in Frisco, Texas. In March 2019,
28 players of the USWNT filed a federal lawsuit alleging USSF violated two federal laws: the Equal Pay Act and Title VII of the Civil
Rights Act of 1964. (Photo by Alika Jenner/Getty Images)
THE FIGHTOFF THEFIELD
Legal Issues Surrounding Compensation
of Female Professional Athletes
By Mari Bryn Dowdy and Mailise Marks
“Let’s not forget the fight off the field. It’s time we pay our USWNT equally.”
–VICE PRESIDENT KAMALA HARRIS ON TWITTER, JUNE 11, 2019
“To @USWNT: don’t give up this fight. This is not over yet.”
–PRESIDENT JOE BIDEN ON TWITTER, MAY 2, 2020
30 NEW JERSEY LAWYER | FEBRUARY 2021 NJSBA.COME
very professional league and sports organization in
the United States has its own structure of compen-
sation and benefits. While the level of pay varies
from sport to sport, a common reality has arguably
existed since the advent of professional sports in
society: female athletes consistently make less than men.
Generally, athletes sign a contract with a particular team consisting of a base
salary and usually a signing bonus. The base salary is typically guaranteed
money, even if the athlete is injured or later released from the team. Athletes
may also receive performance bonuses based on their team’s success, such as
qualifying for tournaments or championships.1 Athletes who are represented by
labor unions (i.e. U.S. Women’s National Soccer Team Players Association or
Women’s National Basketball Players Association) regularly engage in contract
negotiations with their employers. Non-union athletes are typically represented
by advocate organizations (i.e. National Women’s Hockey League Players’ Asso-
ciation or Commission for Equity in Women’s Surfing). Unlike unions, these
entities do not engage in collective bargaining.2 Union athletes are able to use
their collective bargaining agreements (CBA) to push for improvements in pay, MARI BRYN DOWDY is an associate attor-
ney with Segal McCambridge Singer &
benefits and working conditions. Athletes may also seek to challenge the league
Mahoney, Ltd., working within the firm’s
itself or even attempt to form new leagues when collective bargaining agree- Sports, Entertainment and Recreation
ments result in gender inequality. practice group. Dowdy is admitted in state
and federal court in Texas and represents
Gendered pay discrimination for professional athletes is not a novel issue and clients in complex and class action litiga-
the fight for equality has continued to present day, even headlining some of the tion, as well as product liability, premises
liability and personal injury defense.
biggest labor disputes in recent sports history. From the basketball court, to the
soccer pitch and even the hockey rink, women’s fight for fair compensation in
professional sports presents an amalgamation of legal issues. In recent years,
female athletes have made great strides in bringing these issues to the public’s
attention. However, as illustrated below, these steps are just the beginning of
making truly substantial changes toward equality for professional female ath-
letes. These disputes, negotiations and agreements brought many of legal issues
into the national spotlight.
MAILISE MARKS is an associate attorney
USWNT: The Long Battle
with Segal McCambridge Singer &
In March 2016, five U.S. Women’s National Team soccer players—Carli Lloyd, Mahoney, Ltd., working within the firm’s
Alex Morgan, Megan Rapinoe, Rebecca Sauerbrunn and Hope Solo—filed a dis- Sports, Entertainment and Recreation
practice group. Marks, who is admitted in
crimination complaint with the Equal Employment Opportunity Connecticut, Massachusetts, New Jersey
Commission (EEOC) alleging wage discrimination. This was a necessary proce- and New York, litigates in an array of
matters, including premises liability
dural step before a federal discrimination lawsuit could be filed against their
defense in multiple jurisdictions.
employer, the United States Soccer Federation.3 In April 2017, the two sides
announced they had ratified a new five-year CBA, which included an increase to
NJSBA.COM NEW JERSEY LAWYER | FEBRUARY 2021 31both base pay and bonuses. However, granted USSF’s motion for summary needs. Each team will have between 18 the new agreement still allegedly did judgment on the players’ wage discrimi- and 21 “professional positions” for staff. not represent equal pay with the men’s nation claims but preserved the working Additionally, under a venue selection national team. Additionally, the agree- conditions claims based on alleged dis- policy included as part of the settle- ment did not attempt to resolve the crimination in air travel, hotel accom- ment, the federation will “seek to pro- EEOC charge. modations and medical and training vide equally acceptable venues and field The EEOC officially ended its investi- support. In the 32-page ruling, Judge playing surfaces” for the national teams. gation in February 2019 and issued right Klauser includes an extensive history of In settling the issues related to work- to sue letters to the players, which estab- the CBA negotiations between USSF and ing conditions, the path is now cleared lished that the players had exhausted the USWNTPA over the past decade. He for the team to appeal Judge Klausner’s their obligation to seek resolution held that that members of the women’s May ruling that rejected their equal pay through the EEOC.4 In March 2019, 28 team knowingly and willingly sacrificed claims. Levinson confirmed in Decem- players of the USWNT filed a federal potential earning power in their CBA ber, “we now intend to file our appeal to lawsuit in the U.S. District Court for the negotiations in exchange for the securi- the Court’s decision which does not Central District of California alleging ty of guaranteed annual salaries from account for the central fact in this case USSF violated two federal laws: the USSF. In other words, the women reject- that women players have been paid at Equal Pay Act and Title VII of the Civil ed a pay-to-play structure similar to the lesser rates than men who do the same Rights Act of 1964. The players alleged one in the men’s agreement and instead job.”6 While a ruling on the USWNT’s the USSF engaged in gender discrimina- accepted greater base salaries and bene- remaining claims would become case tion on the basis of pay and other con- fits. “Plaintiffs cannot now retroactively precedent for future union-management ditions of employment, e.g. allegedly deem their CBA worse than the MNT disputes, the appeal process—between substandard training conditions and CBA by reference to what they would 15 to 32 months—could still complicate travel accommodations. have made had they been paid under negotiations when the current CBA The Equal Pay Act prohibits employ- the MNT’s pay-to-play structure when expires this year.7 ers from wage discrimination on the they themselves rejected such a struc- basis of sex but does not automatically ture,” Klausner stated. WNBA: The Recent Victory obligate employers to pay men and USWNT have flatly rejected this rul- After 23 seasons of subpar playing women employees the same wages as ing and confirmed their intent to appeal conditions the WNBA secured a progres- the comparison of “work” is not always the decision to the Ninth Circuit Court sive new collective bargaining agree- straightforward. Rather, the analysis of Appeals. “The argument that women ment in January 2020, which had a involves a careful comparison of rele- gave up a right to equal pay by accept- record 90% player vote.8 The new CBA vant job descriptions, including assess- ing the best collective bargaining agree- raises the WNBA salary cap by 30% and ing whether the jobs require equal skill, ment possible in response to the federa- boosts maximum annual salaries from effort and responsibility and are per- tion’s refusal to put equal pay on the $117,500 to $215,000. Players will also formed under similar working condi- table is not legit reason for continuing be able to earn up to $250,000 apiece tions. Ultimately, the employer must to discriminate against them,” said from a $1.6 million pool the league is show that the difference is due to a non- Molly Levinson, USWNT spokesperson. dedicating to marketing agreements and discriminatory reason(s). In other In December 2020, the USWNT and will gain free agency after five years words, an employer must have lawful U.S. Soccer agreed to settle their claims (down from six). Teams will also provide reasons for the pay disparity. The USSF of unequal working conditions before housing with two bedrooms for athletes denied the players’ claims, arguing in a trial was scheduled to begin in January with children, individual hotel rooms May 2019 court filing that the pay dif- 2021 (Hays, 2020).5 According to the on the road and flight upgrades. The ferential between the men and women proposed settlement, USSF agrees to pro- groundbreaking provisions of the agree- players is “based on differences in aggre- vide an equal number of charter flights, ment though focus on players who are gate revenue generated by the different as well as comparable hotel accommo- mothers or expecting parents. Under the teams and/or any other factor other dations. USSF will also enact a new old CBA, athletes who had children lost than sex” and that the two teams are “Senior National Team Professional Sup- pay when they lost work time and had “physically and functionally separate port Policy” that seeks to ensure equali- to cover their own childcare costs; now, organizations.” ty of staffing while allowing each players will receive their full salaries dur- In May 2020, Judge Gary Klausner national team flexibility for its specific ing leave and a $5,000 stipend for child- 32 NEW JERSEY LAWYER | FEBRUARY 2021 NJSBA.COM
unequal pay and working conditions
continued to plague women’s profes-
sional leagues and when the Canadian
Women’s Hockey League folded in 2019,
North America players were left with
only one women’s hockey league in
which to play: the National Women’s
Hockey League.
During the NWHL’s inaugural season
in 2015, player salaries ranged between
$10,000 and $26,000. Players were
stunned when the league announced in
2016 that it was cutting salaries in order
to keep the league afloat.11 However,
without a CBA, players did not have
much recourse unless they were willing
to walk out. Ultimately, over 200 players
decided they would not play in any pro-
fessional North American leagues in
2019 unless working conditions
Nneke Ogwumike of the Los Angeles Sparks is the president of the WNBA Players Asso- improved, and they and formed the Pro-
ciation. The WNBA players secured a progressive new collective bargaining agreement in fessional Women’s Hockey Players’ Asso-
January 2020. The new CBA raises the WNBA salary cap by 30% and boosts maximum
ciation.12 The PWHPA then led a six-stop
annual salaries from $117,500 to $215,000. (Photo by Douglas P. DeFelice/Getty Images)
barnstorming Dream Gap Tour across
the U.S. and Canada. The hope was that
care costs. Additionally, veteran players table but may also represent just how the Dream Gap Tour would fill a short,
(those who have played at least one sea- much further women must go before one-season void without professional
son) will receive up to $60,000 to cover achieving equal compensation. women’s hockey, but when no new,
costs related to adoption, surrogacy and “sustainable” league was formed by the
IVF treatments. The new CBA even man- NWHL and PWHPA: The New Fight time the PWHPA finished its tour in
dates players are given a private place In 2017, the U.S. Women’s National March 2020, PWHPA was unsure of its
for nursing. Hockey Team boycotted the world future. The COVID-19 pandemic inten-
Although the new WNBA calendar championships of the International Ice sified that uncertainty.
will make it harder to play overseas and Hockey Federation after contract nego- Then, in October 2020, Secret
stateside in the same year, the higher tiations had broken down. Thirteen announced its pledge of $1 million to
salaries will hopefully relieve the pres- days after the boycott was announced, the PWHPA, the largest financial com-
sure athletes feel to travel overseas in the team was able to secure a new deal mitment ever made to professional
the off-season to supplement their that improved the team’s annual com- women’s hockey in North America.13
income. Additionally, the league agreed pensation to roughly $70,000 per player, This contribution not only helped play-
to prepare and promote players for plus performance bonuses, and included ers return to the ice but also ensured the
coaching and others jobs in the offsea- travel and insurance provisions com- Dream Gap Tour would continue.
son. As innovative as these new changes mensurate with what the men’s national PWHPA head and Hockey Hall of Famer
are, their total cost is about $1 million team received. USA Hockey also agreed Jayna Hefford confirmed the $1 million
per WNBA team per year, which means to other player requests, such as estab- from Secret will be divided between
the proportion of league revenues paid lishing a committee to look into how operational costs, cash prizes for players
to players will rise only from approxi- the federation could improve its market- on the 2021 Dream Gap Tour and lastly,
mately 20% to 30%, in contrast to most ing, scheduling, public relations efforts media and marketing to ensure the
major sports which are at around 50%.9 and promotion of the women’s game, PWHPA remains visible.14
This may appear as WNBA players leav- plus fundraising and other efforts for Meanwhile, the NWHL has made
ing considerable cash on the negotiating girls’ developmental teams.10 However, improvements since 2016. In 2019, the
NJSBA.COM NEW JERSEY LAWYER | FEBRUARY 2021 33salary cap for each team increased from story/pay-discrimination-women- /id/28971949/analysis-equal-pay-
$100,000 to $150,000, and players start- sports-labor-issue sports-really-means-fight-goes-us-
ed receiving 50% of revenue from 3. The USSF, a 501(c)(3) not-for-profit women-soccer
league-level sponsorship and media entity, employs more than 500 10. Kaplan, E. and Carlisle, J. (2020,
deals, which included agreements with people, including all current and June 3) USWNT lawsuit versus U.S.
Dunkin Donuts and Twitch, a video former members of the men’s and Soccer explained: Defining the pay
streaming service used for game broad- women’s national teams. gaps, what’s at stake for both sides.
casts.15 In December 2020, NBCSN and 4. The right to sue letters could have ESPN. Retrieved from espn.com/
the NWHL reached a deal to televise been issued as early as Fall 2016 but soccer/united-states-usaw/story/
league playoff games for the COVID- the players likely did not request 4071258/uswnt-lawsuit-versus-us-
abbreviated 2021 season. 16
Given that the letters since they were soccer-explained-defining-the-pay-
these developments still do not result in negotiating a new CBA with USSF gapswhats-at-stake-for-both-sides
NWHL players earning a livable wage, (McCann, 2019). 11. Berkman, S. (2016, November 22)
the PWHPA continues to hold out for a 5. Hays, G. (2020, December 1) Pay Cults Jolt Women’s Pro League
league that can provide one. Ultimately, USWNT, U.S. Soccer settle part of and Leave Its Future Uncertain. The
the future success of women’s profes- equality suit; equal wages still New York Times. Retrieved from
sional sports organizations in a post- unresolved. ESPN. Retrieved from nytimes.com/2016/11/22/sports/ho
pandemic era will rely not only on equi- espn.com/soccer/united-states- ckey/nwhl-pay-cut-salary.html
table compensation for its players but usaw/story/4251125/uswntus- 12. Ayala, E. (2019, May 6) ‘We’re not
also large investments in the organiza- soccer-settles-part-of-equality-suit- going to play’: Will a player boycott
tions themselves. equal-wages-still-unresolved save women’s hockey…or harm it?
Since the creation of the Equal Pay 6. Cohen, L. (2020, December 2) The Guardian. Retrieved from
Act and Title IX, female athletes in the USWNT will get “long overdue theguardian.com/sport/2019/may/0
United States have been fighting to equal working conditions” in 6/womens-hockey-boycott-north-
compete on the same footing as men. settlement with U.S. Soccer. CBS america-nwhl-cwhl
Today, female professional athletes are News. Retrieved from cbsnews.com/ 13. Kaplan, E. (2020, October 28) Inside
building public support, organizations news/uswnt-equal-working- the $1 million commitment that
and partnerships in order to create a conditions-settlement-us-soccer/ will elevate the Professional
market that supports their skills and 7. McCann, C. and Novy-Williams, E. Women’s Hockey Player Association
pays them what they are truly worth. (2020, December 1) USWNT Partial Dream Gap Tour. ESPN. Retrieved
Once sports reemerge from the freeze of Settlement Sets Up Appeal Which from espn.com/nhl/story/_/
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and federations will no doubt continue Retrieved from sportico.com/law/ commitment-elevate-professional-
to face evolving expectations and novel analysis/2020/uswnt-us-womens- women-hockey-player-association-
issues as they answer the fundamental soccer-team-settlement- dream-gap-tour
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1. Perras, C. (2019) Moving Towards from onlabor.org/demographics-and- story/_/id/28647361/amid-nwhl-
Equal Pay for Professional Female identity-in-the-new-wnba-wnbpa- boycott-little-tlc-going-long-way-
Athletes: What We Can Learn from cba-2/#:~:text=And%20proof%20of% boston-pride
Equal Pay Legislation in Iceland. 20this%20is,CBA%20with%20just% 16. O’Brien, J. (2020, December 22)
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from mckinneylaw.iu.edu/iiclr/pdf/ 9. Keating, P. (2020, May 14) Analysis: Cup Semifinals and Final live on
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Retrieved from teenvogue.com/ from espn.com/espnw/story/_ final-will-air-on-nbcsn-feb-4-5/
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