The question posed in the headline is apparently the basis of a theory being advanced by the U.S. Soccer Federation in the lawsuit brought by U.S. Women’s National Team players seeking equal pay. To the extent that this theory is accepted by the courts, it has the potential to reshape all women’s sport in the United States.
From a USSF filing yesterday (emphasis in original):
“To prevail on their motion, Plaintiffs must show, based on the facts when viewed in the light most favorable to U.S. Soccer, that any reasonable juror would conclude that U.S. Soccer intentionally paid Plaintiffs less money that it otherwise would have, simply because they are women.”
One need look no further than page 11 of the filing to see USSF making an argument that women are inherently inferior to men, concluding: “Plaintiffs have cited no case (there is none) suggesting that two jobs requiring materially different levels of strength and speed, where those physical attributes are fundamental to the job, may constitute comparable jobs for [Equal Pay Act] purposes.”
There are two issues to unpack here. The first is the USSF claim that women are inherently inferior in a soccer sense to men. This can be seen — obviously and undeniably — in the lengthy annotated excerpt below. (I note as an aside that USSF relies on Doriane Coleman, who was also enlisted by IAAF in their campaign against Caster Semenya.)
The second issue is more a matter of law and policy, and that is whether Olympic athletes in male and female competitions can be said to be performing the same job. To parse this claim it is essential to recognize that USSF is not a professional sports league nor a private employer. It is a quasi-state organization authorized by U.S. legislation with very specific policy objectives.
Specifically, the US Soccer Federation is one of 47 organizations in the United States that serve as a “national governing body” for an Olympic sport. USSF exists under US law, the so-called Ted Stevens Olympic Act (or Amateur Sports Act of 1978). The Stevens Act (here in PDF) created an organizational framework for Olympic sports, centered on the US Olympic Committee and the establishment of national governing bodies for individual sports.
Among the goals of the Stevens Act are:
“to obtain for the United States, directly or by delegation to the appropriate national governing body, the most competent amateur representation possible in each event of the Olympic Games, the Paralympic Games, and Pan-American Games.”
It would seem fairly obvious that by “most competent representation possible” the law is referring to sporting competence as exhibited in international competitions. We want athletes who are the world’s best, who can win tournaments and medals. That is what the Olympics are about and medal counts are, for better or worse, an important criterion in how national governing bodies are judged.
In their pursuit of sporting success, the Stevens Act imposes certain legal requirements on the USOC and national governing bodies, among them:
“For the sport that it governs, a national governing body shall provide equitable support and encouragement for participation by women where separate programs for male and female athletes are conducted on a national basis.”
We can take a look at several other U.S. Olympic national governing bodies — where “strength and speed” matter to performance — and see how they compensate their elite athletes.
- USA Weightlifting: “USA Weightlifting primarily targets its stipend program at the athletes most likely to score qualification points for the 2020 Olympic Games, and those athletes most likely to win international medals at key IWF and PAWF events, especially those likely to compete at the 2020 Olympic Games and 2019 Pan American Games.” USA weightlifting does not provide greater stipends to men versus women, or to men or women who lift greater weight than other men or women.
- USA Judo: Provides equal stipends “overall across all weight divisions and genders” determined “according to points on the IJF Olympic Ranking List.”
- USA Track and Field: Provides equal support to men and women, based on medals and rankings (and not absolute metrics such as time), for instance, “Tier 1” athletes are those who: “Medaled in either of the two most recent World Champs/Olympics; or Have achieved a top-10 world rank in the year-end rankings by Track & Field News; or Have achieved a top-5 world rank in in the past 2 years by Track & Field News.”
Of note, in addition to male and female categories, weightlifting and judo have weight classes — and presumably athletes in higher weight classes can generally lift greater weight and are stronger fighters than those in lower weight classes. Neither USA Weightlifting nor USA Judo offer greater compensations based on “strength and speed” within male or female categories. The same goes for USA Track and Field, which is based on measured event outcomes.
What matters for relative compensation across each of these national governing bodies is the relative performance in international competition under the Olympic movement, with performance at the Olympics values most highly. This approach to compensation reflects the explicit intent of the Amateur Sports Act.
The Amateur Sports Act was implemented to facilitate and enhance U.S. athlete performance in international competitions under the Olympic movement. It was not created to facilitate or enhance revenue generation by non-profit national governing bodies, and it was explicitly to consider men’s and women’s sport as “equitable.”
If the theory advanced by USSF were to be endorsed by the courts, then it would set a precedent that all female athletes under U.S. Olympic national governing bodies should be compensated less then their male counterparts simply because they may have less “strength and speed.”
The expansive claims by the USSF — rooted in biological sex — threaten to reshape all of women’s sport in profound ways. Watch this space.