Brooklyn Law Review


Despite winning numerous World Cup championships and securing the title as the number one female soccer team in the world, the United States Women’s National Team (USWNT) has taken the silver medal to its male counterpart, the United States Men’s National Team (USMNT), in one specific area: compensation. In an effort to level the playing field, the USWNT recently filed a lawsuit under the Equal Pay Act (EPA) against its single common employer, United States Soccer Federation (USSF), which owns both the USWNT and the USMNT. At first blush, it might be hard to reconcile this phenomenon. However, upon closer analysis, it becomes apparent that the EPA—a doctrine embedded in our jurisprudence to promote the concept of “equal pay for equal work”—enables a perverse consequence within the professional sports industry. For single common employers of gendered professional sports teams, such as USSF, the EPA can effectively be used as both a sword and a shield in justifying disparate compensation. Specifically, although the EPA prohibits wage discrimination for equal work based on sex, it allows for differences in wages so long as such differences are based on any other factor other than sex. Otherwise known as the “factor other than sex” defense, this affirmative defense provides single common employers in professional sports with a unique and unwavering power. In its most rigid reading under a nationally recognized circuit split, the factor other than sex defense can be fulfilled by an employer’s demonstration of a legitimate business justification for its disparate wages. In traditional industries, legitimate business justifications for compensation structures are often found in experience, training and/or educational degrees. Yet, in professional sports, the compensation of each team is often determined by game revenue, advertisements/sponsorships and market success—a wholly different analysis than that of a traditional labor industry. Not only does this provide for inaccurate comparisons, but single common employers of gendered professional sports teams functionally control each team’s game schedule, collective advertising, team sponsorships, ticket sales, and game amenities. This control allows an employer to differentiate wages based on its own predetermined business justifications and wholly evade EPA liability through the factor other than sex defense. Not only does the factor other than sex defense provide an escape route for single common employers in professional sports, but the EPA’s three-step burden shifting mechanism does not take into account the unique intricacies of the professional sports industry, providing plaintiffs with a nearly insurmountable burden when presenting claims. In order to remedy this pervasive problem, a three-step solution is suggested. As a first step, courts should follow the more rigid reading of the factor other than sex defense that accepts only legitimate business justifications. Although not a complete solution alone, remedying this circuit split would be important for uniformity in our nation and plaintiffs bringing EPA claims. Second, the EPA should revise its burden shifting scheme to resemble that of antitrust law. While the substance of the doctrine may be unrelated to the EPA, antitrust law has been able to account for the nature and structure of the professional sports industry. It uses a distinct burden shifting mechanism, while also allowing plaintiffs to present alternative, less restrictive paths for the defendant. In doing so, this would lessen the burden on plaintiffs and prevent an employer from hiding behind its own, potentially skewed business justifications. Finally, similar to antitrust doctrine, the EPA should provide for a final balancing by the courts between the prejudicial effect of the wage discrepancies on the plaintiff and the benefits the employer might receive from the compensation structure. This three-tiered approach would provide an easier pathway to equality for professional sports plaintiffs while also ensuring that a single common employer in professional sports uses its control for the benefit, rather than to the detriment, of its gendered teams.