Fédération Internationale de Football Association (“FIFA”) scored a momentous goal on 1st January 2021 when amendments concerning “specific labour conditions for professional female players” in international football were formally implemented through the FIFA Regulations on the Status and Transfer of Players (Ed. Jan. 2021) (“RSTP”). This long-overdue amendment to the RSTP seeks to create “new global minimum standards” on maternity leave and conditions pertaining to pregnancy and is being touted as a significant step towards creating more favourable working conditions for female football players.
Following are the key inclusions regarding pregnancy and maternity conditions in the RSTP:
1. All female players, irrespective of their national football association and domestic labour laws, will be entitled to paid maternity leave (equivalent to two-thirds of their contracted salary) for a minimum of fourteen (14) weeks, of which not less than eight weeks of leave must be sanctioned for the postnatal period. However, it needs to be borne in mind that a player shall have the sole discretion to decide the duration of her maternity leave and appropriate sanctions would be imposed by the FIFA Disciplinary Committee on clubs that pressurize or force a player to take her maternity leave for a specific time period according to the club’s convenience.
Since the standards are global minimum standards, therefore the players could be entitled to more generous protections as per the national labour laws of their club’s domicile or applicable collective bargaining agreements.
2. In order to fill the vacancy in the squad owing to a player deciding to take maternity leave, clubs will be entitled to sign a substitute even outside a transfer window to temporarily replace such player who is on maternity leave.
Even the players who have completed their maternity leave can be registered with a club, outside a transfer window.
3. The validity of an employment contract cannot be made subject to the player becoming pregnant or exercising her maternity rights.
4. Unilateral termination of an employment contract by a club will be treated as a termination without just cause if the same has been terminated on the grounds of the player becoming pregnant or exercising her maternity rights. The consequences of such termination would be that the club would be obligated to pay compensation to the player, and it would also be subject to sporting sanctions, which may be combined with a fine.
This provision would act as a deterrent for clubs against leaving the players in the lurch after they become pregnant.
5. Once a player becomes aware of her pregnancy, she will have the right to continue providing sporting services to her club provided that her treating practitioner and an independent medical professional deem it safe for her to do so. During pregnancy, the club is also obligated to allow the player to provide employment services in an “alternate manner”.
6. The club would also be under the obligation to reintegrate the player into footballing activity post her return from maternity leave. Further, the club would have a duty to provide adequate facilities to the players in order to enable her to breastfeed her infant whilst providing sporting services to her club.
These amendments will allow female footballers to remain off the field for a certain number of weeks to take care of themselves as well as their newborn child while also ensuring that they get an opportunity to return back to the field. This will help in bringing stability, security and certainty in both professional and personal lives of the female players who ex-ante the amendment were juggling their sporting career with maternity, and this, in turn, will help keep female players longer in the game.
While the aforementioned amendments could be considered to be a welcome development, in the opinion of the authors, there is some scope for improvement in the said reforms and the following recommendations can be taken into account to make the protections more robust –
1. There has been no recognition of adoption and surrogacy leave – One of the primary purposes behind granting of maternity leave is to foster healthy child development. However, since this amendment fails to extend the maternity leave benefits to those players who adopt a child or have a child through surrogacy, adopted babies or surrogate babies of the players may be deprived of healthy development during their early childhood days unless protections are accorded by the national labour laws of the player’s club’s domicile or applicable collective bargaining agreements.
2. There has been no recognition of miscarriage leave – A woman not only requires time off from professional work during her pregnancy or after the birth of the child, but also in the event of the unfortunate occurrence of a miscarriage. Miscarriage leave becomes all the more important since a miscarriage can be an immensely traumatic experience for a woman and in many cases a person may require a substantial amount of time to recover physically as well as emotionally from such loss. Therefore, the provision of a few weeks of post-miscarriage leave could be included in the regulations.
3. There has been no recognition of paternity leave – Involvement of both the parents is vital during the early stages of development of a child. However, there has been no inclusion of paternity leave in the RSTP and this lack of paternity leave reinforces traditional gender stereotypes. In fact, castigation of paternity leave still looms large over professional sports. Therefore, it is recommended that paternity benefits should be expressly provided under the RSTP, as this would reflect gender neutrality and would also lead to the balanced development of a child during its early stages.
4. Financial burden on the clubs - Keeping the necessity of inclusion of pregnancy and maternity conditions aside, this amendment will increase the financial burden on clubs which are already facing financial difficulties owing to the pandemic. It is pertinent to note that national labour laws of some countries provide that maternity leave costs will be shared between the government and the employer. Applying the same to the footballing world, it is recommended that at least until the clubs recover from the Covid crisis, national associations should split the maternity leave costs with clubs, say in the proportion of 70 (club):30 (national association).
5. Failure to define ‘alternate employment’ – While the amendment provides that the players during their pregnancy shall have the right to provide services in an ‘alternate manner’ and in such case they will be entitled to receive their full remuneration until such time that they decide to utilize their maternity leave, it fails to define or lay down broad categories regarding what constitutes ‘alternate employment’.
This ambiguity could give rise to disputes between clubs and its players wherein, on the one hand, a player might argue that the services that she wishes to get engaged in constitute ‘alternate employment’, while on the other hand, the club might argue that it falls outside the scope of ‘alternate employment’ or they do not have any vacancy in the alternate employment that the player wishes to get engaged in. The basis of this dispute would in most likelihood be that the player would want to receive her full remuneration by getting engaged with her club through alternate employment and if the club is of the view that the player would not add any meaningful contribution through alternate employment, it would want the player to take her maternity leave because in that case, the club would only be required to pay two-thirds of the player’s contracted salary.
In view of the above, the authors are of the opinion that, while the amendments concerning “pregnancy and maternity conditions” are a step in the right direction, there is still ample scope and an imminent need for taking more progressive steps towards ensuring more favourable working conditions for female players. The same has also been echoed by the FIFPro general secretary, Jonas Baer-Hoffmann, who while acknowledging the progressive steps taken by FIFA said: “This is only a first step, because these regulations represent a minimum set of protections. We will continue to push – internationally and domestically – for more holistic parental policies and even more favourable conditions, such as longer maternity periods and considerations for parents in general.”
Having said that, FIFA has stated that this reform is only the beginning of the development of more regulatory reforms and policies along the same lines. Emilio García Silvero, the Chief Legal and Compliance Officer of FIFA, has stated: “We would like to see how these new regulations work within the market as a first step and we are fully committed to moving ahead with more projects when it comes to the labour conditions of female players.”
* We would like to thank Harsh Malpani (5th year law student, NMIMS, Mumbai) who is currently doing an internship with Sensato Sports Law, for his invaluable contribution.