Author: Ece Ozsu
Introduction
On 4 December 2020, the FIFA Council approved the amendments to the Regulations on the Status and Transfer of Players (“RSTP”) endorsed by the FIFA Football Stakeholders Committee in November, 2020. One of the most essential additions to the RSTP is the provision regarding pregnancy and maternity for female professional players. This article focuses on the minimum labour standards for female professional players introduced in the amendments to the RSTP, which were also notified to all member associations through circular numbered 1743.[1]The amendments came into force on 1 January 2021.
Firstly, the RSTP has always been applicable both for male and female professional players. However, it did not cover any specific provisions regarding pregnancy and maternity. The introduced amendments mentioned, above, regarding female players include the definition of maternity leave, mandatory remuneration during pregnancy, special provisions before, during, and after pregnancy, and the exception of the registration periods where a female player takes maternity leave.
Maternity Leave and Mandatory Remuneration
In the “Definition” section of the RSTP, maternity leave is not explicitly defined 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 be taken after the birth of the child.”
The newly introduced article of paragraph 7 of the existing Article 18 states that the equivalent of two-thirds of a female player’s contracted salary during the term of the contract must be paid, unless more beneficial conditions can be applied according to the national law or collective bargaining agreement.
New Article 18quater of RSTP
New Article 18quater of the RSTP is introduced and includes special provisions for only female players. This new Article sets the minimum standards for protection of female players in the event of pregnancy, and special rights during and after the pregnancy, including the right to return to work and breastfeeding.
Protection in the Event of Pregnancy
The validity of a contract may not be made subject to a player being or becoming pregnant, being on maternity leave, or exercising her maternity rights, in general.
Also, clubs are prohibited from terminating a contract on the grounds of a player being or becoming pregnant, being on maternity leave, or exercising her rights related to maternity, in general. If a club unilaterally terminates a contract for the afore-mentioned reasons, such termination shall be deemed to have been made without just cause. In addition, unless proven to the contrary, any unilateral termination of a contract by a club that occurs during a pregnancy or maternity leave shall be presumed to have occurred as a result of a player being or becoming pregnant. Paragraph 3 of the new Article 18quater includes the consequences of such unjust termination for the clubs: The obligation to pay compensation equivalent to the residual value of the contract plus an additional compensation corresponding to six monthly salaries to the player, and sporting sanctions, cumulatively, with a fine may be imposed on the clubs.
Rights of Pregnant Players
In the event of pregnancy, female players have a right to choose to continue providing sporting services, or to provide employment services in an alternate manner.
A pregnant player can choose to participate in sporting competitions and provide sporting services upon confirmation from her treating practitioner, as well as from an independent medical professional, that it is safe for her to do so. In such case, the club’s obligation is to respect the decision of the player and form an appropriate plan to provide the player’s participation in a safe manner, prioritizing the player’s health and that of the unborn child.
If a pregnant player is found to be unsuitable to continue football activities by her treating practitioner, or she simply chooses not to provide sporting services to the club, of her free will, the player shall have a right to provide alternative services to the club. In such case, the club and player should agree on the alternate services. Meanwhile, the club’s obligation to respect the decision and work with the player to formalise a plan for her alternate employment continues. It must also be noted that the player is entitled to receive her full remuneration during the period in which she provides alternative services, until such time that she takes maternity leave.
All pregnant players shall have a right to independently determine the commencement date of her maternity leave taking into consideration the minimum periods provided in the definition of maternity leave. Within this context, any club that pressures or forces a player to take maternity leave at a specific time will be sanctioned by the FIFA Disciplinary Committee.
Right to Return to Football Activity
Moreover, both the right to return to football activity and receive full remuneration is secured with the new Article 18quater of the RSTP.
The player has the right to return to work after she completes maternity leave and upon confirmation from her treating practitioner and an independent medical professional that it is safe for her to do so. In such case, the club has the obligation to respect her decision and reintegrate the player into football activity, and to provide adequate ongoing medical support.
Following her return to football activity, the player has the right to receive her full remuneration guaranteed under the same conditions as was established in her contract prior to her maternity leave.
Right to Breastfeed
Finally, Article 18quater establishes the player’s right to a safe environment, particularly, with respect to breastfeeding. A player must be provided the opportunity to breastfeed an infant and/or express breast milk while providing sporting services to her club. Clubs are required to provide suitable facilities in accordance with their applicable national legislation in the country of a club’s domicile or collective bargaining agreement.
Registration of Female Players
As a general rule, football players may only be registered during one of the two annual registration periods, commonly known as the transfer windows, the dates of which are fixed by the national associations. The amendments to the RSTP include two specific exceptions to this general rule of registration for female players who has taken maternity leave.
Article 6(1) (a) of the RSTP now sets the first exception to this rule in which to register a female player outside of a registration period wherein to temporarily replace another female player who has taken maternity leave. In this instance, the period of the contract of the temporary replacement female player shall be, unless otherwise mutually agreed upon, from the date of registration, until the day prior to the start of the first registration period after the return of the female player who has taken maternity leave.
The second exception to the rule to register a female player outside of the usual registration period, is to reintegrate a player when she completes her period of maternity leave. This exception is directly related to the female player’s right to return to work, as set out in the new Article of 18quater of the RSTP.
Associations must adapt their domestic rules, accordingly. Meanwhile, the RSTP clearly states that priority must be given to ensure that a female player who has returned from maternity leave is eligible to participate in domestic competitions, as well as the sporting integrity of the relevant competition.
Cohesiveness
It must be noted that the above-mentioned amendments are binding at the national level according to Article 1.3(a) of the RSTP. Member associations are obliged to implement these provisions as a minimum standard, unless more favorable conditions are available pursuant to the application of national law. In other words, a minimum standard is to be applied globally where each member association is free to set higher and stronger provisions that protect female players within their national laws. The minimum standards for female players must also be implemented domestically by member associations no later than 30 June 2021.
Conclusion
The minimum regulatory framework provided within the RSTP is focused on specific employment matters of maternity and pregnancy and aims to provide protection for female players before, during, and after childbirth; a safe and inclusive work environment; and to ensure contractual stability. With the introduction of the amendments to the RSTP, fundamental rights of female players have begun to be protected on a regulatory basis. All of these minimum requirements set forth in the RSTP are in compliance with the minimum standards recommended by the International Labour Organisation’s Maternity Protection Convention, 2000.
[1]For the circular, please see: https://resources.fifa.com/image/upload/1743-amendments-rstp-and-procedural-rules-x5672.pdf?cloudid=pchzzmjnv5po1vaw8mar.
