19 March 2019 - Article
The gap can vary significantly between sports but fundamentally male athletes tend to earn more than female athletes, particularly at the elite level. Pay falls into two broad categories: income from sponsorship and endorsement deals on the one hand; and payment for performance on the other, comprising prize money and/or payments under an employment contract.
Generally speaking, there is inequality on both sides of this coin. Whilst tennis offers equal prize money in all grand slams since 2007, prizes for women's only events can be a lot lower than for similar level men's only events. The inequality widens when considering the inequality in money earned through sponsorship and endorsements. For example, Forbes reported that the highest earning male tennis player (Roger Federer) earned $58 million in 2015 from this income stream, whereas the highest earning female player in 2015 (Maria Sharapova) earned less than half – $23 million. This is not an uncommon pattern in other sports.
What action are sporting organisations and governing bodies taking in respect of the gap?
Much of the action being taken is not directly in respect of pay, but addresses wider issues of gender inequality in sport that ultimately feed into the issue of pay. Three such issues which are fundamental to improving equality in sport are representation, facilities, and societal attitudes.
Female representation in governance of elite sport has long needed addressing. FIFA is a prime example of governance being a barrier to success. Former President Sepp Blatter infamously said in 2004 that women should play in 'more feminine clothes like they do in volleyball'. In a speech coinciding with the first female participation at a FIFA congress in 2013, Blatter remarked 'say something, ladies. You are always speaking at home, now you can say something here.' However, this now appears to be improving. Moya Dodd, a member of FIFA's Executive Committee (ExCo) and one of the women at whom Blatter's comment was aimed, has recently tabled a proposal to increase female representation on FIFA's ExCo to at least 30%.
In the UK, there has been a long-standing aspiration for governing bodies to have 25% of their boards made up of women. UK Sport has not yet made this a hard quota to access funding, but the message has been more diverse and inclusive boards are required. It is likely that once progress is made on this front, women's sport issues will receive more attention.
Inequality in elite level facilities was highlighted during the 2015 FIFA Women's World Cup, which was played on artificial grass despite players and teams protesting beforehand. Although there were reasons given by the organisers, it is unthinkable that the equivalent men's World Cup would be played on anything other than grass. Similarly, in elite club football there is a remarkable gulf in the facilities available. Despite being successful and filled with international players, the women's teams of Arsenal and Chelsea respectively play their home games at the stadiums of Borehamwood FC and Staines Town FC. One positive example in this respect is Doncaster Rovers Belles, who are currently in the process of building a multi-million pound training facility, the first dedicated elite women's training facility in the UK.
Action to address societal attitudes to women's sport is also key to closing the pay gap in the long term. To this end, initiatives such as Sport England's 'This Girl Can' campaign are crucial. The campaign actively encourages female participation in sport at all levels. The size and scale of the high profile campaign was unprecedented for Sport England, showing the level of commitment to women's sport. Public service broadcasters are also playing their part with a noticeable effort from the BBC in particular to give coverage to women's sport over the last couple of years where before there was none, or very little. In time hopefully this will create a larger market for broadcasting women's sport and so coverage from subscription providers will increase. This will be a key part in battling pay inequality as broadcasting revenue and increased sponsorship will have a direct effect on sums payable to athletes.
What action have elite athletes themselves taken to address the inequality?
Historically, high profile individuals championing the cause of equal pay have been an indispensable factor in successfully closing the gap. Nobody embodies this better than Billie Jean King, whose huge contribution to the campaign for pay equality is as laudable as her 39 Grand Slam titles on the court. Venus Williams was similarly key in persuading the All England Lawn Tennis and Croquet Club to equalise prize money for Wimbledon in 2007.
The most notable action taken recently has been in relation to soccer, by the US Women's National Team. US Soccer, the governing body and employer for both genders, reportedly pays female player $99,000 per annum, whereas male players are paid $263,320 on the same basis. Five of the players who won the Women's World Cup in 2015, led by Carli Lloyd who scored a hat trick in the final, have filed a complaint with the Equal Employment Opportunity Commission in the US, demanding equal pay for equal work. This has the potential to be a watershed moment for women's sport and will no doubt be watched closely internationally.
Can the inequality ever be justified?
The Equality Act 2010 sets out the legal framework for enforcing equal pay. Firstly, it is necessary for the athlete to be an employee (which is defined broadly) and to point to other employees of the same employer who they say are paid more than them. This may not be straightforward in sport, for example if athletes are not obviously 'employed', or there is a separate entity employing each team. Secondly, it is necessary to show that the work in question is equal (i.e. it is 'like work', rated equivalent or of equal value) (sections 64 and 65). Finally, any difference in pay may be justified if there is a genuine material factor (which is not itself tainted by discrimination) which is driving the difference in pay (section 69).
Put simply, in the context of UK football this means that even if it was possible to show that the work undertaken by male and female players was equal, it may be possible for clubs to assert that gulf in salaries was justified on the basis that clubs receive substantially more revenue from their men's team than their women's team. Whether or not such defence would be successful would depend on the circumstances of each case.
If the US women's national team's claim was considered under the Equality Act, it would by no means be certain to fail. The gulf in compensation there is against the backdrop of a far more successful women's team. The women are three-time world champions and top of the FIFA rankings, whereas the men have never progressed beyond the quarter-finals of a World Cup, and are placed 29th in the FIFA rankings. Culturally, the women's team are more popular and arguably more marketable in the US than the men, all of which could be relevant to the determination of a claim under the Equality Act.
What effect can lucrative broadcasting and sponsorship deals have on advancing women's sport?
Broadcasting deals, particularly television rights, are absolutely paramount, and are the most powerful force affecting the modern business of sport. Visibility is arguably the single most important factor in advancing both women's sport in general and in achieving equal pay. Without broadcasting deals in place, sponsorship and endorsements will be harder to come by and less lucrative.
However, whereas there is a degree of legal protection in respect of salary and arguably prize money it is hard to see how any claims could be brought in respect of the unequal sums paid to female athletes by way of sponsorship and endorsements, or the unequal distribution of broadcasting deals. These arrangements would likely fall outside the scope of protection in the Equality Act.
Nevertheless, the comments of David Nathanson, head of business operations at Fox Sports, indicate that broadcasters are alive to the huge potential of women's sport to generate revenues. Fox will show all FIFA world cups up to 2022, and Nathanson said 'we valued the Women's World Cup almost as highly as the men's', adding that 'women players are an inspiration – you don't have to explain that to advertisers.'
Put simply, television exposure leads to increased advertising and bigger and wealthier sponsors. In the long term this can only be positive in terms of closing the gender pay gap. On a basic level, as the amount of money in the industry increases, it is inevitable that it will eventually end up in the pockets of the athletes, without whom there would be no product.
Sponsor pressure may also be a factor. It is widely acknowledged that sponsors of the Oxford and Cambridge Boat Race Newton Investment Management and its CEO Helena Morrissey played a key role in encouraging the women's boat race to take place on the Thames at the same time as the men's and therefore giving television coverage to that event for the first time.
The US Women's team provide a clear example of the line that can be drawn linking increased visibility to increased pay. The Women's World Cup final in July 2015 was the most watched soccer match of any gender ever in the US – 25.4 million viewers saw the USA beat Japan 5-2 in Vancouver. On the team's return, the first ever ticker-tape parade for a female sports team was held in their honour in New York. Less than a year later, the claim for equal pay has been filed. The visibility and exposure facilitated their public status, which can now be used as a springboard in their attempt to achieve parity in pay.
This article was first published on Lexis®PSL Employment analysis on 12 April 2016. Click for a free trial of Lexis®PSL