Working Twice as Hard for Less Than Half as Much: A Sociolegal Critique of the Gendered Justifications Perpetuating Unequal Pay in Sports

Abstract

“The difference is the total amount of revenue.  It’s not a gender issue.  It’s a revenue issue.”  This was Mark Cuban’s response when called out about the pay gap between men’s and women’s professional basketball players by Women’s National Basketball Association (WNBA) player Skylar Diggins-Smith.  So often when the question, “Why do male athletes get paid more than female athletes?” arises, the response is, “Because men’s sports generate more revenue.”  While men’s sports typically do generate more revenue, people seldom consider why this is the case.  Is it because men produce a higher quality product?  Is it because men’s sports require more skill?  Is it because men tend to win more international competitions?  This Note argues that none of these explanations account for the differences in revenue and the subsequent pay gap, and contrary to the opinion expressed by Mark Cuban, the three are inseparable:  The wage gap is both a revenue and gender issue.  Through the lens of feminist theory and critical race theory, I argue that men’s sports generate more revenue than women’s sports in part because consumer preferences are rooted in internalized racism, sexism, and homophobia.

A foundational assumption of feminist theory is that, because society organizes people based on stereotypical gender roles, women are expected to perform gender in ways that conform to hegemonic femininity.  A key component of critical race theory is intersectionality, which puts forth idea that people experience discrimination because of multiple marginalized identities.  Therefore, women who play sports, especially Black women and queer women, directly defy hegemonic femininity by exhibiting characteristics that do not conform to the way society expects women to look and behave.  As a result, I argue that one reason why consumers do not want to watch women—let alone women who possess several marginalized identities—play sports, is that these women are not performing gender in the way that consumers expect of them.

From Kathryn Johnston cutting off her hair in order to play Little League Baseball in 1950, to Katherine Switzer registering under a pseudonym in 1967 to participate in the (then men’s-only) Boston Marathon, women throughout history have fought for equality in the sports industry.  With the passage of Title IX in 1972, the future looked promising for creating equal opportunities for women in sports.  However, even after the passage of Title IX, we have seen female athletes threatening to boycott major sporting events, protesting unequal facilities, and, most recently, suing governing organizations for gender discrimination.

Leagues and teams generate most of their revenue from three sources:  media rights, gate receipts, and sponsorships.  It is no coincidence that these main sources of revenue are largely dictated by consumer viewership and demand.  Under the Equal Pay Act of 1963, it is generally illegal for employers to discriminate on the basis of sex regarding wages.  Further, in Diaz v. Pan American World Airways, Inc., the Fifth Circuit held that employers cannot discriminate based on consumer preferences unless consumer preferences are essential to a company’s ability to perform its main function or service.  This Note argues that because women in sports directly contradict notions of femininity, consumer’s desire to watch women play sports is adversely affected, thereby lowering their revenue-generating potential.  As a result, by paying women lower wages based on revenue, leagues, teams, and governing organizations are discriminating against women athletes and coaches based on consumer preferences, thereby potentially violating the Equal Pay Act.

Part I provides a historical and current look at the state of women in sports.  Part II argues that the simple rationale that “men generate more revenue” quells the fight for equal pay because it fails to consider the reality of why men generate more revenue—which is in part attributable to consumer preferences that are rooted in sexism, homophobia, and racism.  Part III analyzes sports examples in order to introduce the theoretical underpinnings of feminist theory and critical race theory and the application of these theories to legal doctrine.  Lastly, Part IV proposes that the doctrine set forth in Diaz should be expanded and applied to the sports context.  Doing so would allow women in sports to argue that an important reason why men generate more revenue is due to consumers internalized sexism, racism, and homophobia; therefore, basing compensation off revenue is discriminating based on consumer preferences.