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A few weeks ago, the media spread the news of the agreement reached between Norway’s football federation and its football trade union. Based on a precedent by their Danish neighbors, under this agreement, the players of the national men’s football team have decided to assign part of their pay to the national women’s football team to achieve equal pay for all.

This agreement will be applied in a sport in which, like most sectors and professional sports, there is a considerable gender pay gap between male and female football players.

In professional football, the best female football player earns only 1.27% of the base salary her male counterpart earns, not considering image, television and sponsorship rights (football players obtain a substantial amount of their earnings from these sources).

Given this reality, it is worthwhile analyzing whether these salary differences could imply gender-based discrimination from a Spanish labor law perspective. To do so, we must consider some of our case law precedents in which possible discrimination was considered based on different salary systems for men and women.

Let us consider the Supreme Court judgment of May 14, 2014, analyzing the possible discriminatory nature, direct or indirect, of the business practice of paying a larger voluntary plus to a department made up largely of men, compared to that paid to a department made up exclusively of women, when the two departments belong to the same professional group.

The Supreme Court concluded that the difference in the pay of the plus amounts implied indirect gender-based discrimination given that there was no reasonable objective cause (higher qualifications, dedication and performance) to justify the different pay treatment favoring one of the departments. However, in the case of football, as is the case of many sports, there does seem to exist that “reasonable objective cause” to rule out discrimination: most male football players’ salaries are linked to the higher invoicing amounts generated by
men’s football in comparison to women's football (higher television earnings, image rights more valued, better sponsorship contracts for their teams).

This objective cause could be used to justify the existing salary difference in non-profit making professional football clubs (apart from Real Madrid Club de Fútbol, Fútbol Club Barcelona, Athletic Club de Bilbao and Club Atlético Osasuna, Spain’s large football teams are incorporated as public limited sports companies).

However, given the undeniable connection with the public of national federations and teams, in their case, it would be wise to introduce other measures similar to those adopted by the Norwegian football federation, to place the salaries of female and male football players on a par. This would be apart from the premiums or other variable incomes that could be more directly related with the generation of business by the teams in question.

Also, in Spain, we do not have a collective bargaining agreement that guarantees basic salary conditions for professional female football players. The football profession’s collective bargaining agreement, signed by the Spanish National Professional Football League and the Association of Spanish Football Players only applies to the 42 male football clubs that are members of the league.

Therefore, it would be worth considering creating a professional league of female football clubs with sufficient negotiating capacity to sign a collective bargaining agreement with the more representative associations of female football players, to establish specific minimum salaries. This would help reduce or, at least control, the salary gap that exists in professional football and in other sectors.

Authors: Valentín Garcia and Jaime Pavía

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Área derecho Deportivo

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