[co-author: Arianna Criscione*]

The issue of player compensation has permeated the women’s soccer global landscape since the beginning.  As of late, the issue of equal pay has been top of mind since the USWNT achieved the settlement in 2022.  The focus of this blog is “Pay-Secrecy.”  (For more information on Equal Pay, check out this blog and this one.) As of the date of this blog, there is no federal (meaning nation-wide) law that requires companies (clubs or leagues) to maintain a culture of pay transparency among all employees.  However, as we will discuss below, clubs and leagues must be aware of: (1) state-specific laws that prohibit secrecy among employees, and (2) the National Labor Relations Board (NLRB) that affords non-supervisory employees (ie- players) the right to discuss compensation.  

Football Expert’s Take:  For so long players, especially female players, were made to believe that if you are lucky enough to get paid to play the sport you love then you should be happy with that. Seldom did players question beyond the paycheck, apartment and a couple other perks. Players consider themselves athletes not employees of the club. These clubs have power. This most likely stems from the progression of our sporting system in the States.  In the U.S., you start as a youth player and are usually paying the club for the privilege to play. Then you move into the college system, which has changed slightly due to NIL, but you are still a player not an employee of the university. By the time you are professional, you are not conscious that you are now an employee and have rights separate from your on-field performance. And whose responsibility is it to educate the players? The club or league (employer)? The player (employee)? Should the players be talking to each other and sharing what they know? In the locker room are they even allowed to talk about their salary or contracts? Sports is inherently not a transparent industry and for players it can be even more complicated. 

What is the point of these laws?

In the U.S., there is a patchwork of laws that prohibit employers from requiring secrecy among employees as it relates to compensation (“Anti-Secrecy Laws”). These allow compensation communication among employees. The driving force behind these anti-secrecy laws, and the NLRB’s steadfast position on transparency is the recognition that historical pay inequities are carried forward if there is no transparency and these recent efforts seek to remedy cultures of unequal pay, and to ensure that employees can discuss wages and organize themselves.  The thought is, the more employees can discuss compensation, the more fairness in pay.  This blog focuses on non-supervisory employees (players).  Prudent clubs will consult with counsel on evaluating pay-secrecy among supervisory and c-suite executives.  

Football Expert’s Take: In sport there is an inherent sense of competition which at times spreads from the field into the locker room. Many players are unwilling to discuss salary for many reasons namely: (1) they don’t want to be judged and/or (2) they don’t want to create tension among their teammates. Many would assume that on-field performance directly correlates to pay; however, in sport that is not always the case.

The result of secrecy as it relates to compensation, is that the players are  in the dark about the going rate of the market. The solution is a more transparent atmosphere.  This will only happen, if players understand that they have the right to open up and have conversations.  This can have a tremendous effect on the market for women footballers.  For women’s sports, the industry is still very nascent and even finding data online can not only be tedious but lead to a dead end as it just doesn’t exist. 

NLRA: Player Communication About Compensation is Protected and Concerted Activity

In the U.S., the NLRB is the governing body that interprets and implements the National Labor Relations Act (“NLRA” or “Act”).  The Act sets out protections for non-supervisory employees. Many U.S. employers mistakenly believe that the NLRB only applies to an organized (unionized) workforce.  That is wrong.  The Act applies to all non-supervisory employees- union or not.  

While there is much attention on Collective Bargaining Agreements in US women’s sports (see WNBA and NWSL CBA’s), the reality is that individual clubs and players are not well-versed on what is actually protected, even without a CBA.  

Section 7 of the Act affords employees the right, among other things, “to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.”  Since 1956, the Supreme Court has protected wage discussions.  The thought was (and still is), “[t]he right of self-organization depends in some measure on the ability of employees to learn the advantages of self organization from others.”  It is an embedded American employment principle that non-supervisory employees have the right to discuss their wages with others, even though management has long discouraged it formally and informally.

The bottom line when it comes to exposure under the NLRA, is that most employees do not know how to pursue redress against a violative employer.  As a result, many employers get away with violative cultures. 

EXAMPLE: Let’s say there is a club where the executives prohibit players from discussing their salaries.  What can a player do?  

• UNIONIZED: If the club is organized (unionized), then that player can go to their Union representative to seek information or grieve discipline.  The Union will then guide the player and the next steps.
• NON-UNION:  But let’s say that the club is NOT organized.  What happens then? The player will have to seek legal counsel or do their own research on how to file an Unfair Labor Practice Charge (ULP) with the NLRB.  Even if the ULP is filed and the Board finds a violation, for the most part, the threat to the company is low.  Typically, the club will have to “change their ways” and, in the worst case, pay a fine, though there are some efforts to make the consequences of violating the NLRA more severe.

Football Expert’s Take: The harsh reality is that most player’s do not read their contracts or CBA’s cover-to-cover, they usually rely on their agents. It’s also a reality that many agents do not digest the CBA’s or contracts and advise their clients, even if they should. This means most players only know the key takeaways from the CBA that have been cited in the news, or discussed in the locker room. What players need to know is that CBA’s are filled with a lot of valuable information. Players are missing out. It usually takes an extreme situation for someone to dive deep into the document and learn the necessary and relevant information.. Could we not have the CBA rewritten in a way that is more accessible to the player’s ? Why aren’t classes or webinars offered on a topic to topic basis to explain the player’s their rights? Many companies have employees read the employee handbook or have online training to make sure that everyone is aware and working from the same information. Why is this not the norm? Why do we continue a culture of silence?

What is Pay-Secrecy?

As we discussed above, the threat of a ULP is fairly low for an organization.  As a result, some states have ratcheted up the pressure by passing their own pay anti-secrecy laws.  These states include, but are not limited to, California, Connecticut, Massachusetts, New York and New Hampshire.

Unlike the NLRB enforcement mechanism, these state laws allow for a private right of action for violation of pay transparency laws and allow an employee can recover liquidated damages and penalties.  In other words, clubs located in these jurisdictions are more exposed to more material monetary, legal and public relations exposure.

Football Expert’s Take:  Professionalizing women’s football is so much more than making sure that women are paid correctly. It is the entire ecosystem around the players. Some clubs have focused on this aspect and really dug into the importance of the training facility, staff around the players and medical, but none have taken the same approach to the importance of front office staff. There needs to be a professional environment from A-Z. This means hiring the right people for every role and making sure the organizational structure is clear and adequate for the jobs that need to be done. Women’s football has the opportunity to build an impenetrable structure from the locker room to the board room. Clubs cannot just focus on the employees (players) on the field.  They must ensure the employees in the front office are qualified and in the proper roles.  Failing to look at all employees (on and off the pitch) will inevitably affect the on-field performance. If a General Manager is hired who instills a culture of silence as it relates to compensation, that exposes the club and league to liability. The employer needs to ensure that all employees are educated to protect the clubs and thereby the players. 

It is not enough to hire incredible people and then request them to do multiple jobs and cover multiple roles. These employees must be educated on their rights. You would never buy a goalkeeper and then at the 75th minute of every game ask her to play right wing but in the office staff this has unfortunately become the norm. 

Bottom Line From the Legal Expert

The freer these players feel, the more comfortable they will be in their club, and the better they will perform.  These principles are not unique to the sports world.  In general, when employees can communicate without the fear of retaliation, the company performs better.  Clubs and leagues must ensure that their supervisory employees, including coaches, understand the laws of the club jurisdiction.  

Bottom Line from the Footballer

There is fundamentally no reason to keep employees in the dark about pay scales from the field to the office. A club and organization that respects and believes in their employees will always have a better result. At the end of the day a club is just that: a club, whether it’s the on field employees or in the office employees everyone wants to be a part of a winning team, a winning team stems from a culture of inclusivity and a desire to work together to win. The best way for this to happen is a top-down method that is open and transparent especially when it comes to pay, this will have a lasting effect especially on the field. 

*Arianna Criscione is a former professional football player having finished her career at Paris Saint-Germain (PSG) where she had a dual role as a player and as Women’s Sponsorship Manager for the past two seasons at the French club. Previously joining PSG she played in Italy, France, Sweden, Netherlands and Norway, and earned several caps with the Italian Women’s National Team, as well as appearances in the UEFA Women’s Champions League.

She now uses her experience and creativity to help football stakeholders to build sustainable and accelerated blueprints that raise the women’s game.