Equal pay and treatment in football – the legal risks for clubs and governing bodies
Recently, there have been a number of high-profile issues regarding equal pay and equal treatment in football. As the women’s game continues to grow, it is essential for governing bodies and clubs to understand their legal duties in relation to equal pay and equal treatment, and to be aware of the claims that could arise regarding any disparity between their male and female players.
On the eve of the Women’s World Cup kicking off in New Zealand and Australia in July, members of both England’s Lionesses and Jamaica’s The Reggae Girlz took to social media to announce publicly their disputes with their governing bodies regarding equal pay and treatment. England captain Millie Bright published an open letter signed by all 24 members of the Lionesses squad regarding the players’ discussions with the FA surrounding bonus structures for international tournaments as well as the restriction on players’ commercial activities whilst on international duty. Discussions are due to recommence between the parties once the tournament comes to a close. Some Reggae Girlz team members shared a lengthy post, criticising the Jamaica Football Federation’s failure to resolve issues raised by the players, touching upon the disorganisation of camp logistics and lack of financial support amongst other concerns.
With the tournament now well under way and hitting the headlines more than ever before, we’ve taken a dive into what equal pay means, how close we are to achieving it and the potential legal claims that governing bodies and clubs should be aware of.
What do we mean by equal pay in football?
Equal pay relates to the amount of money that male players and female players are paid to play football.
At a domestic level, players are generally employed and paid salaries by their club. The way national team players are paid is different to domestic leagues, and international pay also varies from country to country. Generally, however, pay for international players is split into various categories, which might include salary (in some cases), appearance fees, appearance bonuses, camp fees and tournament bonuses. This will typically be paid by the governing body, such as the FA, the FAW or U.S. Soccer.
Equal treatment is a related, but distinct, principle to equal pay. Equal treatment relates to differences in how male and female players are treated by their governing body and club. This might include, for example, disparity between male and female players in the training facilities, medical support, transport and the support generally that is available to them.
The amount of money paid to clubs is also relevant to the equal pay dispute. This includes funding from governing bodies and rights holders.
How close are we to achieving equality in football?
In the international sphere, there has been significant progress on equal pay in the last few years. In January 2023, the Football Association of Wales (FAW) announced that its women’s and men’s international players will earn equal pay for playing internationally. The men’s team will take a 25% pay reduction to enable this. In 2020, the FA made a similar move and equalised match fees and match bonuses for England men’s and women’s national teams.
A swathe of other nations have also taken steps towards equal pay for their men’s and women’s national teams, including the Republic of Ireland, Brazil, Norway, Australia, New Zealand and Spain.
What’s not clear in all cases, however, is whether there are (and if so, how big) discrepancies in other areas across these teams, such as funding for camps and tournaments, travel arrangements, training facilities and medical and nutritional advice. The key point here is that equality in football is not limited to pay. It covers the various forms of financial and non-financial support that men’s and women’s players receive from governing bodies and clubs. The complaints raised by The Reggae Girlz against the Jamaica Football Federation focuses on these issues.
Further, at the domestic level, there remains a significant gap in salaries. The top players in the men’s Premier League can earn salaries in excess of £250,000 per week (on top of high-value sponsorship deals). In stark contrast, the top women’s players in England earn roughly the same in a year, and it’s not unusual for full-time players to have salaries of £20,000-30,000 per year in the top two women’s domestic leagues in England.
There is also huge disparity in tournament prize money. For example, at this year’s Women’s World Cup, the total prize money on offer is £86m compared to the £344m prize pot available at the 2022 Men’s World Cup in Qatar.
In the domestic game, league and tournament bonuses face similar discrepancies. Recently, Lewes FC called for equal FA cup prize money. Lewes Women received £45,000 for winning three ties in the Women’s FA Cup, whereas the men's teams who entered at the third round were paid £450,000. The prize money for winning the FA Cup in the 22/23 season was £100,000 for the women, as compared to £2m for the men.
What disputes can arise over inequality in football?
The disputes and issues that might arise in relation to equality depend on the legal jurisdiction as well as the existing payment framework for players. We have considered below some examples of disputes that have arisen in this space.
Complaints against US Soccer
In 2016, some of the US Women’s National Team (“USWNT”) players filed a complaint against US Soccer, accusing US Soccer of violating American equality laws under the Equal Pay Act 1962 and Civil Rights Act 1964.
Broadly speaking, the Equal Pay Act 1962 makes inequality in wages between people of different sexes who perform substantially equal jobs illegal whilst the Civil Rights Act 1964 prohibits discrimination on the basis of race, colour, religion, sex or national origin.
The complaint alleged that US Soccer breached this legislation by systemically paying women players less than their male counterparts despite the women performing similar duties and, at times, out performing the men and earning more profit for US Soccer. In addition, the complaint alleged that US Soccer provided unequal playing, training and travel conditions, and unequal promotion for games.
The complaint eventually settled in 2022 for $24 million, comprised of $22m in backpay and $2m in grants for players’ service to the game after retirement. Further, in May 2022, agreements were reached for equal pay for competing in international games and tournaments.
Significantly, in December 2022 the US House passed the “Equal Pay for Team USA Act” which will require all athletes representing the United States in global competition to receive equal pay and benefits in their sport, regardless of gender. The USWNT dispute was a driving factor behind this legislation.
Legal Action Against Scottish Football Association
In December 2022, members of the Scotland women’s national team announced that they were taking legal action against the Scottish Football Association (“SFA”) to address “long-standing issues of inequality in pay and conditions”.
The details of this legal action are yet to be confirmed. However, it is likely that the claim will be brought under the Equality Act 2010. This is the central piece of anti-discrimination legislation, covering pay and treatment, which applies throughout the UK.
The 2010 Act provides that men and women should receive equal payment for equal work. If a woman employee is not paid the same as her male colleague, her employer must show that there is a material factor that justifies the difference in pay.
We expect that the Scotland women’s national team will seek to argue that the SFA has breached this legislation due to inequality in the money and resources provided to the men’s and women’s teams.
Strike Action in Canada
In February 2023, the Canadian women’s football team announced that they would be going on strike over pay equity concerns and a lack of funding.
However, just a day after the announcement, the women confirmed that they would not be striking due to potential legal action by Canada Soccer. Canada Soccer took the view that the players were not in a legal position to strike under Ontario labour law.
The players alleged that Canada Soccer had threatened to take legal action to force the players to return to the pitch and recover damages from the players’ association and the players personally.
Since then, discussions have continued, but were put to one side for the duration of the tournament, echoing similar moves by players for England and Nigeria. It remains to be seen what the contents of any impending new deal with the federation might be.
Key takeaways for clubs and governing bodies to avoid disputes and manage your reputation
What might claims look like?
As seen in both the American and Scottish legal cases, equal pay claims in football are likely to involve the women’s players alleging that they are performing equal work to their male counterparts and that, as a result, the governing body or club must give them equal pay.
Importantly, it is likely that “pay” for the purposes of such claims will include all contractual terms, such as basic pay, bonuses and other benefits.
In addition, legal action brought by female players is likely to include allegations regarding unequal treatment. These will usually involve claims that the governing body or club has discriminated against female players by treating them less favourably than their male counterparts because of their sex. Disparity between male and female players in, for example, the training facilities, medical support, transport and nutrition that is available to them could form the basis of these claims.
In the UK, it is likely that equal pay claims would be brought under the equity of terms provisions of the Equality Act 2010, whilst equal treatment claims will be brought under the 2010 Act’s discrimination provisions.
In jurisdictions outside the UK, claims are likely to be based on similar principles set out in the equality legislation applicable in that country.
Clubs and governing bodies should also be aware of potential strike action. Strike action is a sensitive issue; it involves detailed legal rights and duties and is likely to attract media attention and public interest. Clubs, governing bodies – and indeed players - should therefore approach strike action with care.
How can claims be avoided?
In the UK, the Equality Act 2010 will apply to players who are employed under a contract of employment or any other contract to personally do work. This means that claims could be brought against both national governing bodies and clubs, whenever they have playing contracts in place with a player.
It is also important to recognise that equal pay and equal treatment issues are not just unique to football. Governing bodies and clubs across all sports should carefully consider how they pay and treat their men’s and women’s players.
To minimise the risk of equal pay claims, governing bodies and clubs should:
- carefully consider whether their male and female players are carrying out “like work”, “work rated as equivalent” and/or “work of equal value”. These are detailed legal points and professional advice may be needed;
- review the pay scales and remuneration structures between their male and female players. This will include an assessment of the salaries, appearance fees and bonuses that are paid to male and female players; and
- ensure that male and female players are paid equally if they are performing equal work.
In relation to equal treatment claims, governing bodies and clubs should also carefully consider the allocation of resource between male and female players, such as training facilities, medical support, transport and nutrition.
Governing bodies and clubs will need to justify any disparity in resources with genuine reasons (i.e business need, limited resources) and they must not treat male or female players differently purely because of their sex.
As well as considering their legal duties and the risk of legal claims, governing bodies and clubs should be proactive and engage with players to understand concerns they have before they develop into legal issues.
Early engagement allows governing bodies and clubs to understand any issues regarding equal pay and treatment, and work collaboratively with players to reach agreements that resolve equality concerns and avoid the risk of legal action being commenced.
What are the reputational issues related to equal pay?
The debate on equal pay has been in the headlines a lot recently, meaning there’s a business argument as well as a moral and legal one for tackling equal pay related issues head on now.
Given the profile of women’s sport is only continuing to grow (growth in women’s football is “unlike any other sport” according to a FIFA report), arguments relating to equal pay and equal treatment are not going to disappear any time soon, and these issues can cause reputational damage to organisations who are not considered to be approaching equal pay and treatment in an appropriate manner. While it is not likely that pay in domestic football will be equalised, it’s vital that clubs treat female players with respect, and that all factors affecting the women’s game are considered when developing and reconsidering pay scales and structures.
What’s more, being a club seen to take equal pay seriously is not only important for reputation, but also for player retention and recruitment. Women’s players alive to the issue of equal pay don’t want clubs to shy away from discussions surrounding equal pay and want transparency over how pay scales and remuneration are decided.
We’ve recently seen that, even in the international sphere, players are willing to sacrifice play time over equal pay issues. For example, Ballon D’Or winner Ada Hegerberg stepped back from international duties for almost 5 years due to unequal treatment of the women’s national team, and the Canadian women’s national team recently threatened to go on strike. Other teams have made headline statements against their governing bodies. Not only do these kinds of actions make the news – they may also have a significant impact on performance on the pitch.
How we can help
Irwin Mitchell has a full offering on environmental, social and governance issues in sport and regularly works with clients in the sector. Get in touch with Tom Barnard to find out more.
