In what has been described as a “wake-up call for all clubs” a two-time Champions League winner, (“Player”), has recently secured a landmark judgment against a major women’s football club, (“Club”), in relation to the enforcement of FIFA’s maternity benefits (“Judgment”).
Focussing in particular on the reasoning and impact of the Judgment, this article considers the changing landscape of maternity in women’s sport and the scope for further progress in relation to the maternity rights granted to female athletes.
1. FIFA Maternity Regulations: application and interpretation
In January 2021, the Fédération Internationale de Football Association (“FIFA”) updated its Regulations on the Status and Transfer of Players (“Regulations”) to include ‘Minimum Labour Conditions for Players’ which aim to better protect female players’ working conditions in women’s football. The additional conditions include, inter alia, a provision which concerns a player’s entitlement to remuneration during pregnancy and for pregnant players to have the right to provide services to their club in an alternate manner (new article 18quater).
In particular, par. 4 lit a) and lit b) provide that:
“4. Where a player becomes pregnant, she has the right, during the term of her contract, to:
a) continue providing sporting services to her club (i.e. playing and training), following confirmation from her treating practitioner and an independent medical professional (chosen by consensus between the player and her club) that it is safe for her to do so. In such cases, her club has an obligation to respect the decision and formalise a plan for her continued sporting participation in a safe manner, prioritising her health and that of the unborn child;
b) provide employment services to her club in an alternate manner, should her treating practitioner deem that it is not safe for her to continue sporting services, or should she choose not to exercise her right to continue providing sporting services. In such cases, her club has an obligation to respect the decision and work with the player to formalise a plan for her alternate employment. The player shall be entitled to receive her full remuneration, until such time that she utilises maternity leave”,
It was this provision, and in particular par. 4 lit b), which was at the heart of the dispute between the Player and the Club in the Judgment.
The Player informed the Club of her pregnancy in March 2021. In April 2021, after withdrawing from the squad for an important league fixture due to morning sickness, the Player was placed on sick leave and returned to her home country with the Club’s agreement. The Player did not provide alternate services to the Club following her departure. Shortly after returning home, the Player realised that she was only being paid a fraction of her salary.
On 10 September 2021, the Player initiated proceedings before the Football Tribunal of FIFA’s Dispute Resolution Chamber (“DRC”). The Player requested her outstanding salaries between 1 April 2021 and 24 September 2021 (from the commencement of her sick leave until the commencement of her maternity leave).
The Club’s position was that the Player did not provide sporting services nor any other alternate employment during her pregnancy until her maternity leave and as such she was not entitled to benefit from the Regulations. Instead, the rules regarding her sick leave were subject to the Club’s company agreement and domestic legislation.
The Player’s position was that:
- her doctors had established that she “was not in the position to continue providing sporting services”;
- having the “right” or possibility of providing alternate employment services did not constitute a prerequisite to continue receiving the payment of her full salary;
- in any event, the Club did not respond to her offer to make herself available to provide alternate employment services;
- the Regulations provided for “full remuneration, unless more favourable conditions would apply under domestic rules” which was not satisfied in this instance; and
- the Club’s refusal to comply with the Regulations amounted to discrimination.
The DRC found in favour of the Player and highlighted that:
- par. 4 lit a) and lit b) of new article 18quater were implemented specifically with the footballing profession in mind and its nature encompassed a certain limitation for pregnant players to continue to provide their services;
- the maternity provisions in general enshrined a duty of care on the employer with the main objective to provide protection for the pregnancy of players;
- the Club had an obligation to clarify the consequences of the Player’s departure;
- the Club, as the employer, had the responsibility to offer an alternate employment to the Player;
- the Player had made herself available for alternate services; and
- the Club failed to address any possibilities regarding alternate employment.
The Player was the first to bring a successful claim against a football club pursuant to the Regulations.
There is undoubtedly still progress to be made to ensure adherence to the Regulations, but, in the midst of a historic time for women’s football, the Judgment provides some guarantee of the rights of female footballers during pregnancy and represents another step towards the goal of achieving gender equality.
2. Maternity leave and return to play across female sport
Attempts to increase flexibility for women taking maternity leave and, in particular, to promote women’s return to sport, can be seen across other sports besides football, for example:
(a) Rugby: The Rugby Football Union and Rugby Players’ Association have recently announced a “game changing” new policy under which England players will receive 26 weeks of maternity leave on full pay. The new policy also includes the option for pregnant players to be able to perform other roles within rugby until their maternity leave starts and babies will be able to able to travel with players to games;
(b) Cycling: Thanks in large part to Lizzie Deignan and her Trek-Segafredo team, the cycling world has similarly seen changing attitudes. Deignan returned to racing post-partum to win the Women's Tour (2019), Liège-Bastogne-Liège (2020) and the first edition of Paris-Roubaix Femmes (2021) and has recently extended her contract with Trek-Segafredo to the end of 2024, following the birth of her second child. This comes after the Union Cycliste Internationale introduced the first-ever maternity clause into Women’s World Tour contracts, allowing women to take three months’ leave whilst receiving 100% of their salary, followed by an additional five months at 50% of their salary;
(c) Bobsleigh and Skeleton: The International Bobsleigh and Skeleton Federation have granted greater flexibility around maternity, granting quota spots for athletes who miss a season due to maternity leave. This new quota rule will come into force for the next Olympic cycle; and
(d) Equestrian sports: The Fédération Equestre Internationale announced increased flexibility at end of 2022, including the option for female athletes to adapt the duration of their leave to their individual situations and allowing riders to retain 50% of their ranking points during any such leave.
Progress can also be seen in non-professional sport. For example, the London Marathon has introduced a deferral option so that women who are pregnant or postpartum and qualified for ‘Good For Age’ will not have to re-qualify into the elite category.
3. What lies ahead?
The recent legislative changes and landmark Judgment provide a wakeup call to employers of female athletes. Against this backdrop, the landscape for maternity and return to play in women’s sport will inevitably continue to change and develop, and more doors will be opened for women in sport to pursue paths as both athletes and mothers, should they choose.