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Elite female athletes – competing for maternity rights on the largest playing fields

Posted: 29/09/2023

The rise in the popularity of women’s sport has brought into sharp focus the lack of pregnancy/maternity rights and support for female athletes. Nike faced widespread criticism in 2020 when one of the most decorated runners of all time, Allyson Felix, revealed that during a 2018 contract renegotiation the brand, as her sponsor, had allegedly asked her to take a 70% pay cut when she became pregnant and refused to guarantee her fees if she did not perform at the highest standard following birth. Allyson left Nike shortly after.

In another case, fellow Olympian Kara Goucher ran a half-marathon three months after she gave birth, because she was told that Nike would cease payments under her sponsorship contract until she started racing again. While sponsor-friendly agreements meant that this conduct may not have been a technical breach of contract, it was reputationally damaging for Nike, whose advertising celebrating motherhood in elite sport was subsequently decried as hollow.

Earlier this year, Naida Hutchinson, former England Roses netball player and mum, spoke about the maternity challenges elite netballers in this country face in the first episode of Penningtons Manches Cooper’s ‘Fair play’ podcast, discussing how there is little maternity support in English netball. She highlighted how former teammates had to be full time athletes, full time mums and have full time jobs in light of the lack of funding in their sport.

With growing professionalism in women’s sport, it is vital that athletes are protected and supported throughout their careers. A key aspect of this is support before, during and after pregnancy, as would be the case in any normal employment relationship. A number of sports governing bodies, including FIFA, as well as sponsorship brands, have introduced and/or improved maternity rights for athletes, and Nike itself has improved its maternity policy, reportedly now guaranteeing an athlete’s pay and bonuses for 18 months around pregnancy. Such steps are vital to help empower female athletes to make life decisions without fear of ‘remuneration retribution’ and to combat pregnancy or maternity related discrimination.

Maternity rights in football

The same issues hit the football field in 2022 when Sara Björk Gunnarsdóttir (captain of Iceland and current Juventus player) achieved a landmark victory for pregnancy/maternity rights in football – the first ruling of its kind since FIFA's maternity regulations came into force in January 2021.

Sara became pregnant in March 2021 while playing for Olympique Lyonnais (Lyon) and had to inform the club after missing a match because of morning sickness. It was agreed that she would return to Iceland to be close to her family and partner and she was signed off on sick leave by Lyon. However, it was understood that she would be paid her salary in accordance with FIFA’s 2021 Minimum Labour Conditions for Players policy, and its Regulations on the Status and Transfer of Players 2021, as the reason for her absence was her pregnancy. The regulations state:

‘Female players are entitled to maternity leave [defined as a minimum period of 14 weeks’ paid absence granted to a female player due to her pregnancy, of which a minimum of 8 weeks must occur after the birth of the child] during the term of their contract, paid at the equivalent of two thirds of their contracted salary. Where more beneficial conditions are provided in the applicable national law in the country of their club’s domicile or an applicable collective bargaining agreement, these beneficial conditions shall prevail’ (Article 18 paragraph 7).

‘[A player has the right to] 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’ (Article 18quater paragraph 4(b)).

It quickly became clear that Lyon was not making the required payments in apparent breach of the regulations. As of July 2021, Sara was owed €44,828 for outstanding salary and benefits.

Lyon’s position, elucidated in correspondence and submissions, was that it did not owe Sara any further monies; Sara was only entitled to sick leave compensation, particularly because she did not provide sporting services or other alternate employment while pregnant (which Lyon stated was a prerequisite to receiving full remuneration until she utilised maternity leave, as per Article 18quater of the regulations), so the position reverted to the rights/obligations under the employment agreement and French law.

As a result, Sara had been placed on sick leave in March 2021 after which she would be paid daily allowances between April and September 2021 plus ‘reinstatement of daily benefits’, in accordance with the French Social Security Code, and the collective agreement on working time applicable within the club. Lyon did concede that it would be obliged to pay Sara two thirds of her salary for 14 weeks from 24 September 2021 (the date it said Sara would commence her maternity leave), as per Article 18 of the regulations. 

Sara objected to the club’s interpretation of Article 18quater of the regulations, arguing that her right to receive full remuneration during her pregnancy, before utilising maternity leave, was not subject to any condition and that Lyon had never mentioned the possibility of alternate work (and it was expressly incumbent upon them to do so). She offered to make herself available for alternate employment services; for example, she offered to help ‘build a storytelling campaign about her journey as an elite athlete, in an elite club, starting a family’.

The case in the DRC

The case arrived in front of the Football Tribunal of FIFA’s Dispute Resolution Chamber (DRC) in May 2022.

The first issue for the DRC to decide was whether it had jurisdiction to deal with the case (which Lyon disputed). The DRC highlighted that, in order for parties to agree to decline the competence of FIFA, the agreement must be clear, exclusive, and unequivocal. In the contract between Sara and Lyon (which was silent on FIFA’s jurisdiction), the DRC found there was not sufficient clarity to suggest that any of the numerous named bodies (the French labour courts, the Convention Collective Nationale du Sport and the Players’ Status Commission of the French Football Federation) were exclusively competent to hear the dispute. It also noted that Lyon failed to raise the issue in its initial submissions. As such, the DRC found it did have jurisdiction to hear the matter.

As regards the substantive issue of Sara’s maternity entitlements, the DRC found that the club failed to consider alternate employment opportunities during Sara’s pregnancy, despite her offering alternate services. Further, when considering the wording of the regulations, the club owed a duty of care to Sara and so it was Lyon’s responsibility to offer alternate employment and to inform Sara about the consequences of her going on maternity leave, including the impact on her salary.

As such, the DRC found that Sara was entitled to be fully remunerated as of 1 April 2021 until the commencement of her maternity leave, when she would be entitled to two thirds of her salary for 14 weeks (in accordance with Article 18 of the regulations). It therefore found that Lyon was liable to pay to Sara €82,094.82 plus interest of 5%, within 45 days, failing which it would face a transfer ban of up to three consecutive transfer windows until all sums were paid.

Lyon’s stance in respect of Sara’s pregnancy/maternity pay appears questionable both from a legal and reputational standpoint. Even if Lyon believed it had a relatively strong defence under French national law, the optics of a professional football club refusing to pay a player her pregnancy/maternity entitlement are not attractive. Sara has also been very public about her case and highlighted the difficulties of being a professional footballer and becoming pregnant, which has further damaged the club’s reputation.

As stated by UK Sport, ‘starting a family and being an elite athlete should not be mutually exclusive’. It was therefore vitally important for FIFA to introduce its minimum standards for maternity rights, and that its dispute resolution arm enforced them rigorously. Before FIFA introduced the policy, maternity rights had not been regulated globally within football, which was an impediment to many players staying in the game and reaching their peak. It is easy to see, therefore, why this judgment was so welcomed throughout the industry.

The legacy of the Gunnarsdóttir case

This case should have a lasting legacy for a number of reasons but two key ones stand out. Firstly, the ruling is likely to embolden players and athletes to challenge internal policies/decisions taken contrary to governing bodies’ rules and regulations. Secondly, national governing bodies and clubs should review their existing pregnancy/maternity rules to ensure they are fair and protect players’ welfare, and are in accordance with any regulations.

Similar scrutiny was quick to arrive on British soil. Around 18 months after the introduction of FIFA’s maternity rights, the FA and Professional Players Association agreed a significant policy which saw players in the Barclays FA Women’s Super League and FA Women’s Championship receive enhanced maternity pay (meaning a player going on maternity leave will now be paid 100% of her salary and any other remuneration and benefits for the first 14 weeks, before reverting to the statutory rate).

The policy forms part of a club’s licensing agreement and, in order to retain that licence, a club must offer it to all of its players. However, some British players have been very vocal about the reality of the FA’s policy. Earlier this year, Emma Mukandi (Scottish footballer and Reading FC captain) spoke about her experience during her pregnancy in 2021 and return to football in 2022. Emma reportedly faked an injury when eight weeks pregnant and was reluctant to announce her pregnancy to Reading FC in case it ‘didn’t go down well’. She asked how female athletes were expected to return to football after three and a half months, when their bodies (which undergo such seismic stress and change during pregnancy and birth) are their jobs (and require full physical strength and conditioning to play), and concluded that the policy’s draftsperson was ‘surely not someone who’s played football and had a baby’.

It will certainly be interesting to see how market forces drive clubs’ strategy regarding enhanced maternity pay and how this can be deployed to attract and retain talent. A recent CIPD report found that, while 33% of UK companies surveyed offered only statutory maternity pay, 21% offered 26 weeks of enhanced pay (at or near the full salary) followed by 13 weeks at the statutory rate.

Affordability will undoubtedly be a primary factor in clubs’ policies, but with the growth and rising interest in women’s football leading to top clubs selling out (or close to selling out) Premier League stadiums (at the time of writing, Arsenal women’s team had sold approximately 50,000 seats of the 60,000-capacity Emirates stadium for their 1 October 2023 game against Liverpool) and landmark sponsorship agreements being agreed, such enhancements could start to become achievable.

At Penningtons Manches Cooper, we regularly advise on pregnancy/maternity disputes and the interpretation and application of sports governing bodies’ rules and regulations, including FIFA’s Regulation on the Status and Transfer of Players. If you have any issues or related questions, please do get in contact with the authors of this article, Eva McHale or Tom Cleeve. 

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