Football: Maternity Rights and the FIFA Regulations on the Status and Transfer of Players
By Frankie Parry-Barker, Mills & Reeve, LLP, Solicitors, United Kingdom
Introduction
This Post considers the addition of new pregnancy and maternity rights for female professional players within the FIFA Regulations on the Status and Transfer of Players (RSTP). These rights came into force on 1 January 2021 and comply with the recommended standards of the International Labour Organisation’s Maternity Protection Convention. We look further at the details of these rights, the impact on female players and clubs and what this means for the future of female football.
Please note that all articles referred to are those within the RSTP.
Pregnancy and Maternity Rights
The RSTP defines maternity leave as ‘a minimum period of 14 weeks’ paid absence granted to a female player due to her pregnancy, of which a minimum of eight weeks must occur after the birth of the child’. Article 18(7) confirms players will receive two-thirds of their salary during this leave, or alternatively, beneficial conditions that can be applied by national laws – whichever is more.
Article 18quater introduces the following special rights for female players:
- A contract may not be made ‘subject to’ a player’s pregnancy.
- A contract cannot be terminated by a club on the grounds of a player’s pregnancy.
- Compensation will be due if there is such termination, including sanctions on the club.
- The rights for pregnant players to:
- continue providing sport services (playing and training);
- provide alternative employment services to the club instead of (a);
- determine their own commencement date of maternity leave; and
- return to football after maternity leave.
- Players will be provided with sufficient facilities relating to breastfeeding and other medical and physical support on their return.
Contractual rights & compensation
A club must not terminate a player’s contract on the grounds of her pregnancy or maternity leave; this will be seen as an unlawful termination. There is a presumption that any termination during a pregnancy or maternity leave will have been made on the grounds of the pregnancy. The onus is on the club to prove otherwise.
The compensation payable for such termination will depend upon whether the player has signed a new contract. If not, they will be entitled to the residual value of the terminated contract. If they have, they will be entitled to the difference in wages between the new contract and the one terminated. The player is also entitled to an extra 6 months’ salary under the terminated contract in either of these situations.
The club will be banned from any new registrations of players for two annual registration periods (transfer windows) including the replacement of the pregnant player (discussed further below). This sanction can be given alongside a cumulative fine.
During the pregnancy and maternity leave
As set out above, female players who become pregnant will still have the opportunity to play and train for the club, including in competitions, or otherwise take on alternative employment services within the club. This will depend upon what is safe for the player. In assessing this, the treating practitioner and medical professional will confirm safe and best practice.
It is important to note that, whether a player continues to provide sporting services or alternative services, she will still receive her full salary. The club must work with the player and assist in providing any alternative workplan until the player starts maternity leave. The start of the maternity leave is to be wholly decided by the player who will take into account the minimum requirement of 8 out of 14 weeks to fall after the birth. If the club intervenes in this decision or applies any form of pressure as to the commencement date, they will be sanctioned by the FIFA Disciplinary Committee.
Return to work
A player will be able to return to football activity after her maternity leave, again with the confirmation from the practitioner and medical professional. What is not clear, is what should happen if the return is not deemed safe after the full 14 weeks of maternity leave. This may be decided separately for independent cases, and it is important for both clubs and players to talk this through with medical professionals. Once they have returned, clubs are obliged to allow players to breastfeed, and provide the appropriate facilities to do so. Clubs should also provide medical and physical support during the return to work.
Please note that the medical professional used should be decided between the player and the club. It is possible that this will be the club’s doctor.
Transfer rights
FIFA now allows football clubs to register a female player outside the normal transfer window should a player become pregnant, that is to replace them. A female player returning from maternity leave can also be registered outside the transfer window and should be encouraged to take part in domestic competitions. These exceptions are contained in Article 6(1) – ‘Registration Periods’.
However, it is important to remember that, if a club terminates a contract on the grounds of a pregnancy or maternity leave, it will lose the right to register any new players. This includes loss of the right to register a replacement player outside of the transfer window (see Article 6(1)(a)).
Conclusion
The amendments to the RSTP provide female football players with layers of protection during pregnancy and subsequent maternity leave. The special rights contained in Article 18quater provide clarity, certainty and relief, no longer discouraging players from starting their own family. 14 weeks, however, may be seen as too short of a time, particularly in the return to such a physically demanding career. Players might choose to take extra unpaid time off and negotiate further with clubs.
Football clubs are also provided with clear obligations, helping them to work together with players in what can be a daunting time. The transfer exceptions will allow new players to have opportunities within clubs whilst still providing job security post birth, for those on maternity leave. This may also help clubs with the return of and, therefore, retention of players. These amendments help to incorporate a minimum level of understanding and standards around pregnancy and maternity leave across the female football industry.
It will be interesting to see how these rights are put into practice as female football continues to thrive.
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