Could the US Women’s Pay Deal Go Global? Here are the legal path to equal pay – and the obstacles to be met on that road

It was the shot that was heard all the way around the world of women’s football.

Three months ago, on 22 February, the players of the US Women’s National Team and US Soccer announced an agreement to finally bring their equal pay dispute to a close.

As part of the settlement deal it saw $22 million directly to the players – to be decided by the players on how it should be spent – and additional $2 million into a fund for players’ post-playing careers and charitable endeavours.

It also included a pledge that the players of both the USWNT and the men’s team will be paid equally in relation to the international duties going forward. The deal was ratified when a Collective Bargaining Agreement (CBA) was executed on 29 April.

This was huge news: It brought to an end almost six years of litigation, initially brought by a small group of players, including Meghan Rapinoe. The USWNT is also not only the best, most successful and most marketable women’s football team on earth; it had a powerful symbolic resonance far beyond the United States. As its World Cup winning goalkeeper Hope Solo put it, they had for long put up with a situation where the underperforming men’s team “get paid more just to show up than we get paid to win major championships”.

Equal pay, writes Joe McMorrow, senior associate at Pinsent Masons Leeds practice, “will help shape the narrative around equality within the sport.”

“Paying women less feeds into the narrative that women’s football is ‘lesser’ than the men’s game. There is then a negative multiplier effect wherein because the public perception becomes that the women’s game is ‘lesser’, interest in the women’s game as well as investment, marketing, branding and opportunities within the women’s game are lower.”

Broader spread

But the deal also posed a more fundamental question: could such developments ever happen elsewhere?

What put the USWNT in a strong position were strong unions who had negotiated collective bargaining agreements (CBAs) with their member association. This formed the basis of their legal case and ultimate settlement. The players alleged that US Soccer had told the USWNT Players’ Association that they did not merit equal pay, and that the federation had never been willing to offer a system of compensation commensurate with the structure offered to the men’s CBA.

Women’s football is in such an undeveloped situation in most parts of the world that these first steps haven’t yet been addressed in most territories. Even where there are strong unions – such as Australia – legal threats on pay equality have failed to gain momentum. The Australian PFA challenged FIFA during and after the 2019 Women’s World Cup regarding standards and prize money, drawing a contrast with the men's World Cup. The legal case never went anywhere, but it formed the basis of a CBA that saw dramatically improved pay and conditions.

The PFA chief executive John Didulica described it at the time as “a unique deal” that “sets the model for where all federations and players – male and female – can take the game to unlock the incredible social and commercial opportunity that, in particular, women’s football presents.”

A similar deal in Ireland came off the back of a public scandal in which the Women’s National Team were – amongst other indignities – found to be sharing kits and changing in airport toilets so that they could hand it back at the end of international duty. Ireland’s men’s captain Seamus Coleman said he hoped the FAI decision would act “as an inspiration to many other nations to follow suit”.

In Finland in 2019 the government’s Ombudsman for Equality assessed whether the Finnish FA’s practice concerning match-specific national team compensations complied with its Equality Act. It found that aspects of the women’s pay deal were discriminatory (although it also paid tribute to the FA’s work in promoting gender equality and solidarity payments).

“Equality in terms of national team compensations would be a clear statement from FAF indicating that women's and men's football are equally valuable and important,” said Ombudsman for Equality Jukka Maarianvaara. Later that year the Finnish FA reached a pay settlement with its women footballers before any need to legislate in favour of female athletes was considered necessary.

UK legislative hurdles

UK gender-based discrimination is governed principally by the 2010 Equality Act, which ensures employment contracts are not any less favourable than contracts of members of the opposite sex doing “equal work”. Teams paying male athletes significantly more than their female counterparts may seek justify those arrangements by falling back on the “equal work” terminology and the significant differences between male and female sport in terms of performance, audience and finances.

But, according to Chris Deeley, an employment solicitor at JMW Solicitors London practice, this is “far from a get-out-of-jail-free card.”

Deeley says that “equal work” is separated into three categories - work of equal value, work rated as equivalent on a formal job evaluation scheme, or the idea of “like work” – and only one category needs to exist to form the basis of an equal pay claim. Deeley says it is the idea of “like work” is most likely to form the basis for an equal pay claim in the UK.

“‘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,” he says.

“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.”

Deeley says that those lobbying against such an equal pay settlement could point to the “inherently wide” skill gap between men’s and women’s football, which could be considered “that a female player is not performing “like work” to a male player and therefore not entitled to be paid at an equal rate.” He points to the USWNT losing 5-2 to the under-15 boys’ team of FC Dallas in 2017, whilst the reigning World Cup champions as an example of this.

“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,” he adds.

“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.”

Equality act initiatives

Deeley doesn’t believe that the two other “equal work” varieties would be of “particular concern” to sporting bodies or clubs seeking to stave off equal pay claims.

“Job evaluation schemes are effectively unheard of in the sporting sphere, and the value distinction between male and female sports is usually well entrenched given the gulf in viewership and revenues from viewers and sponsors between the two,” he says.

“Ironically, however, were the USWNT to be subject to the UK 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.”

International movement

Yet the notion of an international response to gender pay disparity in sport – perhaps along the lines of the mid-90s Bosman case that brought freedom of contract via the European courts – has never materialised.

A players union source says that “when there has been a backlash in an individual country, like Norway or Ireland, a federation has stepped in and it has seen off a coordinated international response.”

The source believes that the key is equality of revenues from FIFA competitions. Until prize money men’s and women’s World Cups are paid equally disparities will persist. “Everything hinges on the amount of prize money.”

“World Cup prize money drives revenue in women’s football. Players tend to be given a percentage of this. A member association may give male and female players equal percentages, but the fact is the men’s World Cup pays significantly more.” Indeed the 2022 men’s tournament sees $440 million paid out to 32 teams; in 2019 the women’s tournament paid $30 million to 24 teams.

A leading sports lawyer with experience of international federation affairs told us: “The Swiss constitution talks about equal treatment, which would apply to FIFA applying equal treatment to its member associations. Could a challenge be made to FIFA not providing the same standards or prize money at WWC versus Men’s World Cup? I’m not sure it would succeed, but would be worth a punt.”

Public pressure

Deeley believes that the fastest and most clear cut route towards pay parity may not come via the law at all.

“To an extent, sporting employment does represent a unique case, in that the male and female labour markets are artificially segregated from one another,” he says.

“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.”

Instead, he thinks public pressure is more likely to achieve resolutions. This has long happened in tennis – in 2007 Wimbledon became the last Grand Slam tournament to award equal prize money, despite women’s games being limited to a maximum of three sets – and has started to happen in football too. Scotland, Wales and Norway’s are other national teams to have gained equal pay deals after public pressure.

“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,” he says.