Employment

This summer, the FIFA Women’s World Cup achieved unprecedented levels of publicity and became the most-watched female football tournament on TV in the UK. Whilst the levels of popularity for the female game continue to grow, there has been much debate surrounding the levels of pay which female players receive in comparison to their male counterparts.

Prize money vs. popularity

The prize money for the FIFA Women’s World Cup winning team in France this year was $4 million, in stark contrast to the $38 million reward for the winners of the 2018 men’s tournament.

The sporting industry often defends the gender pay disparity which exists by referring to the fact that earnings are heavily influenced by the popularity of the sports and its participants. Whilst the tide is turning, certain women’s sports still struggle to generate comparable levels of interest and therefore revenue when compared to male competitions. Many consider it to be the responsibility of individual sporting bodies to even the playing field by investing more in marketing and promotion opportunities for female sports in order to increase their levels of remuneration.

The US female soccer team is an example of a team starting to fight back. It is widely acknowledged that they are more successful than the US men’s team, with some reports suggesting that they also generate more match revenue, however they still earn substantially less. As a result the female team has commenced legal action against the US Soccer Federation. The claim includes a comparison that if both the male and female national teams each won twenty scheduled friendly matches; the female team would earn an a maximum of $4,950 per game whilst ‘similarly situated’ men’s national team players would earn an average of $13,166 per game.

Equal pay – the legal position

Employers have a legal duty under the Equality Act 2010 to ensure that men and women receive equal pay for equal work.

For equal pay claims there has to be an actual comparator – a person of the opposite sex, employed by the same employer (typically at the same establishment or under similar terms and conditions) who performs or has performed equal work.

When it comes to sport, there are a couple of factors which make it a more complex task to apply the equal pay legislation, which include:

  • the exception under the Equality Act 2010 whereby it is not unlawful to divide sports by sex and organise separate sporting competitions for male and female athletes if the sport is a ‘gender-affected activity’ – i.e. where physical strength, stamina or physique could play to the disadvantage of one sex compared to another, which may make it hard to determine whether the work is of ‘equal value’, and;
  • the fact that at certain levels of sport, female athletes are unlikely to be employed by the same employer as those in the equivalent male team, which is a necessary pre-requisite to raising an equal pay claim.

Comment

When looking at pay in elite sport the question will not, therefore, necessarily be one of equal pay in a legal sense – as the players may not have the same employer; or may not be able to bring their work within the definition of ‘equal value’. More generally pay disparity between athletes of different genders is something that will be improved when women’s sport is showcased and treated on an equal footing by the media, sponsors and employers alike.

Equal pay deals with whether men and women are paid the same for carrying out the same or similar jobs;  whilst the gender pay gap shows the difference in average pay between men and women in a workforce. For many employers in the UK, the gender pay gap has been high on their agenda as since April 2018 companies in the private sector with 250 or more employees have been obliged to publish annual data on their gender pay gap.

For more information on equal pay and the gender pay gap reporting obligations, please get in touch with your usual Brodies contact. Brodies Workbox users may also want to take a look at our pages on Equal Pay and Gender Pay Gap Reporting.

With thanks to Robyn Connolly and Rebecca Neilson, summer students with Brodies, for their help with drafting this blog.

Katie Spearman

Practice Development Lawyer at Brodies LLP
Katie is an Assistant Practice Development Lawyer within the employment team. Her role involves assisting with the development and maintenance of Brodies BResourceFull Workbox, our award-winning online HR and employment law resource. Katie also provides practical, up-to-date legal materials for clients as well as her colleagues in the employment team and regularly blogs on the latest topical employment law issues.
Katie Spearman