Maternity rights and female football players

A recent case before the FIFA Dispute Resolution Chamber (DRC) between Sara Björk Gunnarsdóttir and French football team Olympique Lyonnais shone a light on the maternity regulations under the FIFA Regulations on the Status and Transfer of Players (‘RSTP’).

Background

Ms Gunnarsdóttir (the ‘Player’) is an Icelandic player who signed a contract with the French club Olympique Lyonnais (the ‘Club’) on 1 July 2020 for two seasons. In March 2021, the Player informed the club that she was pregnant. On 26 March she was prescribed sick leave due to her pregnancy.  Thereafter there was a video call between the Player and the Club, at which it was agreed she could return to her home country of Iceland for the remainder of the pregnancy. The Club facilitated her in getting social security allowance from the French state.

Subsequently, the Player was not paid in her entirety and correspondence was sent on her behalf to find out why she had not received her full salary. She did not receive an answer from the Club.  There was a meeting with a representative of the Player and the Club where it was allegedly agreed that the Club would revert with an explanation along with receipts of payments made at that stage.

On 13 July 2021, the Player sent her first default notice to the Respondent requesting the payment of the different of monthly salaries and housing allowance from April 2021 to June 2021.  On 2 August 2021 the Club responded to say she had been placed on sick leave and was not allowed to practice any occupation and that she wanted to go back to Iceland as soon as possible and stay there for the rest of her pregnancy.  The Club then went on to say that as she had not provided any sporting services or any other alternate employment during her pregnancy until her maternity leave, then she was subject to the rules regarding sick leave compensation.

The Player wrote back on 6 August arguing her right to receive full remuneration under the RSTP as the right to receive remuneration during pregnancy was not subject to any conditions. She also noted that the Club had never mentioned the possibility of her working in any other way, but did say that she would make herself available to provide employment services.  She continued to request the difference in monies paid and what she believed to be owed to her.  The Club reiterated the position it had made on 2 August 2021 but did not engage with her on the issue of her providing other employment services.

The Player filed the claim to the FIFA DRC on 10 September 2021.

RSTP

FIFA introduced provisions around maternity and pregnancy in 2021 in Part VI of the RSTP entitled ‘Special Provisions relating to Female Players’.  More generally this prevents clubs from dismissing players who are or become pregnant, are on maternity leave, or utilise rights related to maternity in general. Any club who does this will be considered to have dismissed the player without just cause.

Further in that Part relates to the section at issue here, Art.18quater paragraph 4(a) and (b).  The wording of the sections are as follows:

“ 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;”

DRC’s Jurisdiction

The Club raised an objection in respect of the DRC’s jurisdiction to deal with the matter.  It argued that because the parties agreed to the Player’s employment contract, and it stated that it would be governed by the French Sports Code which makes reference to the French Labour Code therein, then the parties had agreed that the Labour Court would have exclusive jurisdiction to adjudicate on any dispute arising from the employment contract.  The Player argued that this was not a jurisdiction clause.

The DRC considered whether the Player had accepted the jurisdiction of French labour courts, as an exception to FIFA’s jurisdiction, over any dispute possibly arising from her relationship with the Club.  The DRC did not take the Club’s view on jurisdiction and the employment contract.  It noted that the there was no specific jurisdiction clause within the contract, and also that the contract referred to French state law but other for a, including the French Football Federation.

The DRC noted that for the parties to agree to decline the competence of FIFA to act in these circumstances, then it must be clear, exclusive and unequivocal.  That was not the case in this matter, and the DRC found that it had jurisdiction to hear the matter.

Arguments

The Player argued that article 18quater paragraph 4(b) RSTP did apply and that she was due the difference in monies between what she was paid and what she was owed in salary and in housing allowance.  She argued that whilst she had the right to provide an alternative employment service, this was not a prerequisite for this section of the RSTP to apply.

The Club argued that for either article 18quater paragraph 4(a) or (b) RSTP to apply then she would either have had to continue her sports services or provided non-sports services for the Club.  It was argued that “given that the Claimant did not make any request concerning the possibility of continuing to carry out her services in an alternate matter, and in view of her insistence to return to Iceland as soon as possible to be near her relatives for the monitoring of her pregnancy, the prerequisites of art.18quater par.4 lit a) and b) of the FIFA Regulations were clearly not fulfilled’.

Therefore the Club submitted that she had been compensated in accordance with the legal and contractual provisions provided for under French law and that she had received everything that she was due.

DRC Decision

It is worth highlighting that in its decision, the DRC acknowledged that generally, the maternity provisions enshrined the duty of care of the employer with the main objective to provide protection for the pregnancy of a player.

The DRC firstly accepted that article 18quater paragraph 4(a) RSTP did not apply whereby her medical practitioner had said she could not provide sporting services.  It then turned to consider whether 18quater paragraph 4(b) applied.

It appears from the DRC’s decision that it was somewhat unimpressed with the manner in which the Club had handled the matter, noting that the correspondence which the Player had sent ‘remained unattended by the Respondent for several weeks’. The DRC then pointed out that the Player did, in her letter of 6 August 2021, make herself available for alternative services.

The DRC took the view that once the Player had offered alternative services, it was for the Club to be clear as to the consequences of her returning to Iceland and the financial implications should she not provide alternative services.  It also stated that it is generally for the Club, as employer, to be the one who has the responsibility to offer an alternate employment to the Player.  The Club in this case failed to do so.

As a result, the DRC decided that the Club had to pay the Claimant in the amount of €82,094.82 in outstanding remuneration, along with 5% interest per annum.

Take Away Points

It is clear that the DRC is taking its role in respect of the new maternity rights seriously further to this case.

It is important to note that the onus will generally be on football clubs to seek alternate employment for players when they are pregnant, and it should not really be up to players to suggest that they can do alternate non-sporting roles.  Further, clubs should be transparent with players where there is a suggestion that they will not be paid if they do not take on alternate employment.  It would seem difficult for a club to suggest that there is absolutely no role for a player to play which is not sporting as it were, and this might be of more relevance where a player does not wish to take on such roles. How the DRC would view such cases still remains to be seen.

It will be interesting to see whether there will be a spike in litigation in the DRC in respect of 18quater more generally, and whether the rights in relation to maternity and pregnancy will be respected by clubs in light of the general increase in popularity in the women’s game.

For further information on this topic, please contact Laura Graham at lgraham@reddycharlton.ie