Cassandra Brumback*
Allyson Felix (Felix) was once one of Nike’s most marketed athletes. Allyson Felix, Allyson Felix: My Own Nike Pregnancy Story, N.Y. Times (May 22, 2019), https://www.nytimes.com/2019/05/22/opinion/allyson-felix-pregnancy-nike.html. She holds nine Olympic medals and is the United States’ most decorated female runner of all time. Id. However, when Felix told Nike she was pregnant in 2018, Nike proposed a 70% pay reduction. Id. This did not sit well with Felix, who fought for a contractual guarantee that she would not be penalized for her pregnancy. Id. Nike refused, causing Felix to break from the company and secure a more beneficial contract with the women-focused apparel brand Athleta in July 2019. Chris Chavez, Allyson Felix Signs Athleta Sponsorship After Nike Dispute for Maternity Policy Change, Sports Illustrated (July 31, 2019), https://www.si.com/olympics/2019/07/31/allyson-felix-athleta-sponsorship-nike-maternity-leave-policy.
Felix’s struggle for fair payment during her pregnancy contributes to the growing outcry for women’s rights and equality in sports. Rory Carroll, Felix Says Female Athletes Are United for Change, Reuters (Aug. 3, 2019, 7:51 PM), https://www.reuters.com/article/us-athletics-felix/felix-says-female-athletes-are-united-for-change-idUSKCN1UT0LV. The United States Women’s National Soccer Team’s (USWNT) World Cup victory and its ongoing battle to achieve equal pay with the United States Men’s National Team spurred national conversations on the subject. Id.
Like the USWNT, Felix’s story focuses on the contractual inequalities between female and male athletes. Id. The USWNT alleges discrimination because the women athletes play and excel in the same sport as the men’s team, only to receive less payment. Sarah Kanoy, Pregnancy Clauses in Female Athletic Contracts: Discriminatory, or Just the Industry Standard?, 85 UMKC L. Rev. 1033, 1038 (2017). In Felix’s case, the discrimination is more nuanced. Although she was apparently pleased with her pre-pregnancy compensation, Felix, as well as other woman athletes, was negatively affected by a gender-specific clause stating that pregnancy was a “failure to perform” that would result in either reduced compensation or no compensation at all until the athlete returns to top form. Id. at 1039. Because pregnancy is a gender-specific condition, these clauses only affect women. Id. at 1045.
Pregnancy clauses enforce outdated myths concerning women’s bodies and effectively require women athletes to choose between having a career and having a family. Id. at 1049. While some women voluntarily choose to focus on one or the other, women like Felix, who want both, deserve a viable opportunity to do so. Id. In other words, because male athletes are free to pursue an athletic career and a family, women should have the same option. Id. Although case law and industry practice support treating pregnancy as an injury and paying pregnant athletes less, recent developments indicate that this current industry practice may be shifting to include protections for women like Felix. Id. at 1048; Jenna West, Athletes Speak Out Against Nike’s Lack of Maternity Leave Protection, Other Companies Make Change, Sports Illustrated (May 24, 2019), https://www.si.com/olympics/2019/05/23/nike-maternity-protection-sponsorships-contract-allyson-felix-alysia-montano.
I. Pregnancy Clauses in Sports Contracts and Applicable Laws
As expert Sarah Kanoy explains, sports contracts are complex documents that require the parties to consider hundreds of different factors. Kanoy, supra at 1038. Unfortunately for athletes, many contracts include some kind of clause that reduces or eliminates compensation if the athlete “is no longer able to perform at the level expected.” Id. at 1039. For women, one such clause is the pregnancy clause, which is defined as a “substantially limiting [rule] provided for female athletes that serve[s] to regulate pregnancy during the duration of their athletic contracts.” Id. at 1038.
The exact form and requirements of the pregnancy clause can vary, but generally, the clause has the effect of treating pregnancy as a debilitating injury. Id. In some instances, the athlete must get a doctor’s clearance to continue to compete, which gives a doctor more control over the athlete’s career than she has for herself. Id. at 1039. Kanoy argues that this requirement contributes to the misguided assumption that pregnancy weakens women and prevents them from competing. Id. at 1042. Furthermore, medical experts conclude that pregnancy is often not a severe limitation to a woman’s training, and that most women can train for the majority of their pregnancy without complications. Id.
Some versions of the pregnancy clause require the athlete to “red-shirt” or sit out for the season, while others allow the sponsor to severely decrease payment or even terminate the employment agreement. Id. at 1047. These versions are justified as a way of drafting athletic contracts because courts have frequently found that “in every contract of employment there is an implied condition that the employee will be physically capable of performing his duties at the time appointed.” Strader v. Collins, 116 N.Y.S.2d 318, 322 (N.Y. App. Div. 1952); Stein v. Bruce, 366 S.W.2d 732, 734 (Mo. Ct. App. 1963).
Despite the discriminatory nature of pregnancy clauses, there are several laws that protect pregnant women from discrimination in the United States. Kanoy, supra at 1044. First, the Equal Pay Act of 1963 prohibits discrimination on the basis of sex “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions[.]” 29 U.S.C. § 206(d)(1) (2012). Second, in 1964 Congress enacted Title VII, which made sex-based employment discrimination illegal. 42 U.S.C. § 2000(e) (2012). Third, the Pregnancy Discrimination Act (PDA) amended Title VII to ensure that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes[.]” 42 U.S.C. § 2000e(k) (2012).
Unfortunately for women athletes, these legal protections have had very little effect on the sports industry. Kanoy, supra at 1047. Sponsors, teams, and athletic associations frame pregnancy clauses as simple “failure to perform” clauses, which are present in both male and female athletes’ contracts. Id. Thus, by framing the pregnancy clause as a “failure to perform” clause, sex discrimination is difficult for women athletes to prove. Id.
II. Recent Developments in the Industry Practice of Sports Contracts
Although Felix failed to reach an agreement with Nike that would adequately support her as a mother, she succeeded in drawing attention to the issue and inspiring a vicious backlash against Nike. West, supra. In May 2019, Felix broke her non-disclosure agreement with Nike and wrote an op-ed for the New York Times detailing her experience, following the examples set by fellow Nike athletes Alysia Montano, Kara Goucher, and Phoebe Wright; who also shared their stories. Felix, supra. The public was shocked to learn about the proposed 70% pay cut for Felix and of Nike’s lack of empathy for her as she underwent an emergency C-section and delivered her daughter at just thirty-two weeks. West, supra.
The public’s surprise is partially due to Nike’s own advertising and mixed messages regarding social progress and women’s rights. West, supra. A recent Nike ad dubbed “Dream Crazier” endorses the USWNT fight for equal pay and even features narration by Serena Williams saying, “winning 23 grand slams, having a baby, and then coming back for more . . . It’s only crazy until you do it.” Christopher Brito, Nike’s New Serena Williams Ad Encourages Girls to “Dream Crazier”, CBS News (Feb. 25, 2019, 4:09 PM), https://www.cbsnews.com/news/serena-williams-oscars-2019-nike-ad-colin-kaepernick-dream-crazier/. Felix, Montano, and others were quick to point out the hypocrisy of Nike’s willingness to profit from popular women’s movements while denying maternity protections for its athletes. Felix, supra.
Following the backlash, Nike announced its new pregnancy policy, which included twelve months of guaranteed protection from failure-to-perform clauses. West, supra. Most importantly, other companies noticed and followed Nike’s lead—namely Burton, Brooks, and Nuun. Id. Their prompt actions after Nike’s announcement indicate the potential for a new industry standard in athletic contracts. Id.
III. Courts Should Enforce the PDA in Athletic Contracts and Congress Should Regulate Sports Contracts More Thoroughly
Although Nike is arguably the most influential sports company, athletic sponsors, sports teams, and organizations have a long way to go before every female athlete is guaranteed freedom from pregnancy discrimination. See West, supra. First, companies should be encouraged to take a proactive approach and voluntarily add a clause in every contact which indicates that the athlete will not be penalized for pregnancy. See id. Second, courts should actively enforce the PDA in athletic contract disputes where it is clear that the intent of the “failure to perform” clause is to apply to pregnant women, rather than just routine injuries. See Kanoy, supra at 1036. This will ensure that Title VII and the PDA achieve the effect desired by Congress in employment scenarios. See id. Because the courts have held that professional athletes should be treated as employees for employment law purposes, it follows that athletes should be provided protections under Title VII and the PDA. See Brown v. Pro Football Inc., 518 U.S. 231, 231 (1996).
*Cassandra Brumback is a second-year day student at the University of Baltimore School of Law, where she is a staff editor for the Law Review and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. Cassandra is the Vice President of the Latin American Law Students Association, a law scholar for Professor John Bessler’s civil procedure class, and a research assistant for Professor Robert Lande. This summer, she will join Venable LLP as a summer associate.
University of Baltimore Law Review 