Is the Playing Field Level?
The issue of gender equality in sports is front and center. While not a new issue, recent lawsuits are challenging the practice of paying female athletes substantially less for similar work than male athletes.
In 2017, the history of gender inequity in sports was highlighted in the motion picture, Battle of the Sexes. The film depicted the epic, nationally televised, 1973 tennis match between female tennis star Billie Jean King and her male counterpart Bobby Riggs, portrayed as a male chauvinist. King was the first female tennis player to win over $100,000 in a year prior to this epic match. The tennis match between these players sent an important message that women deserved the same amount of prize money and respect as males. As set forth in this article, this message continues to resonate today in sports.
Title IX: High School and College
Gender equity in sports starts in preschool, with Title IX prohibiting gender discrimination in athletic programs receiving Federal financial assistance. Schools must ensure that their athletic programs (1) accommodate the interests and abilities of the students as a whole and (2) that specific program components required under Title IX are equal for males and females. Although Title IX has been around for over 47 years, schools are still finding themselves in the crosshairs for claims of discrimination in sports programs. In October 2018, the Lauderdale County School District in Mississippi settled a Title IX lawsuit alleging inequities between the baseball and softball programs. Eastern Michigan University recently found itself on the receiving end of an injunction requiring reinstatement of the women’s tennis program, despite the fact that the school cut men’s programs too. Red Bluff Joint Union High School settled a lawsuit arguing that the facilities for girls’ sports were not comparable to those provided for the boys. After the girls’ varsity coach voiced concerns over the inequality, her contract was not renewed, which gave rise to a retaliation complaint. Title IX’s reach is far and courts continue to hold that financial hardship does not excuse Title IX’s requirements. Ensuring the right balance is not easy but schools should conduct audits of their entire programs to identify any possible areas needing balance and not rely on financial burden as an excuse.
During the last few years, we have seen a number of lawsuits across the country filed by professional female NFL cheerleaders regarding low wages. Historically, cheerleading was a prestigious sport for men, with five former U.S. presidents having been college cheerleaders. However, the landscape has since changed with the sport being dominated by women, which has brought pay disparity issues to the forefront. By way of example, in 2014, former Buffalo Jills cheerleaders sued the NFL and the Buffalo Bills alleging they were paid less than minimum wage and required to work team appearances for free. That same year, an Oakland Raiders cheerleader sued the Oakland Raiders for wage theft. In 2017, a class action lawsuit filed by a former San Francisco cheerleader, on behalf of other NFL cheerleaders, against the NFL and 26 of its teams alleging the NFL and the teams engaged in collusion to suppress their wages was dismissed. The Court found no evidence was presented of collusion or violations of antitrust laws. However, that decision did not prevent other former NFL cheerleaders from filing similar claims regarding pay inequity. In 2018, former NFL cheerleaders sued the Houston Texans alleging, among other things, that they have been paid less than minimum wage, paid less than what they were promised, and/or not paid overtime for their work on game days and for other team related activities. While many of the lawsuits are settled, they are an example of the lingering issues regarding pay in sports, especially those generating revenue in the billions.
Bottom line is that pay disparity in professional sports is rampant. Consider the difference between what professional baseball players earn compared to professional softball players and men’s professional basketball players when compared to their female counterparts. Whether or not they are performing equal work is hotly contested.
A case filed by the U.S. Women’s Soccer team against U.S. Soccer, alleging that U.S. Soccer has a policy and practice of discriminating against the women’s national team, by paying them less than similarly situated members of the men’s team will address the issue of whether the female athletes are doing equal work for less pay. To prevail on an Equal Pay Act claim, the players must prove that they do equal work for less pay, which can be difficult to prove. If there is a disparity, U.S. Soccer can prevail if it shows a seniority system, a merit system, a pay system based on quantity or quality, or, the catchall, any fact other than sex. The Women’s Soccer team has some good facts on their side: they have consistently been more successful than the men’s team but are paid markedly less. That said, the collective bargaining agreement could be a hindrance on their claim, and U.S. Soccer will certainly argue that the women’s team is less profitable than the men’s.
There are also success stories for female athletes pursuing equal pay, which are on the rise. In March 2017, after the women’s national hockey broadcasted that it would boycott the world championship if U.S.A. Hockey did not increase their wages, U.S.A. Hockey responded swiftly by increasing the female athletes training stipend and prize money. Likewise, female surfers challenged the industry’s practice of having substantially larger prize money for the male surfers than the females, despite participating in the same sport. In 2018, the California state agency that issues permits for a major surfing competition in Half Moon Bay required equal pay for prize money for men and women as a condition precedent for granting the permit for the event. While there is a long way to go, we are slowly beginning to see change.
Coaches and Athletic Directors
Is the playing field level for coaches? Are the women leaders paid the same as their male counterparts for the same work? College coaches and athletic directors generally have three avenues in federal law to challenge unequal pay: Title IX, Title VII and the Equal Pay Act. Challenging pay under Title IX is difficult. The U.S. Department of Education’s Office of Civil Rights (“OCR”) focuses the inquiry on the effect on the athletes – not the coaching staff. Specifically, according to the OCR, a school violates Title IX with regard to pay to coaching and athletic directors only if it denies the female athletes access to coaching of equivalent quality, nature or availability by paying the women’s coaches less than the men’s coaches. Title VII, however, focuses on the effect on the coach, not the athlete.
State and local statutes may provide additional avenues for pay equality claims. For example, Massachusetts enacted a pay equity statute that prohibits employers from paying wages less than that paid to employees of the opposite sex for work of like or comparable character. This law and Harvard’s internal review of its compensation structure resulted in Harvard announcing that there was disparity in pay and that it was changing its compensation system for coaches. This change resulted in proactively adjusting the salaries of some coaches and implementing a compensation system that considers various factors including coaching level, program size, revenue generation, and level of experience. With other state and local jurisdictions enacting broader laws, universities should be proactive in implementing change before being subject to a challenge.
So how do we level the playing field? Below are some considerations to minimize pay disparity issues:
- High schools and colleges should conduct audits of their entire programs, to ensure that their athletic programs comply with Title IX and proactively implement changes.
- Universities and professional sports programs should review their compensation packages to ensure they are gender neutral, comply with federal law, and be able to articulate and prove factors other than gender as being the cause of any pay disparities.
- Universities and professional sports programs should review the state and local laws to ensure they are compliant with broader protections that may exist.