FIFA Regulations on Pregnancy and Player/Coach Contracts
On May 31, 2024, FIFA issued the June 2024 edition of the Regulations on the Status and Transfer of Players. This latest edition includes Section 6, which is the “Special Provisions Relating to Female Players.” FIFA lays out regulations that relate to employment contracts and pregnancy or adoption. This blog explores FIFA’s principles and its interplay with U.S. Law.
FIFA’s Special Provisions Relating to Adoption and Family Leave: Principles of Contract
Validity of the Contract. Section 18(1) reads as follows:
The validity of a contract may not be made subject to the taking of, or the result of, a pregnancy test, the player becoming pregnant during its term, being on maternity, adoption or family leave, or utilising rights related to maternity, adoption or family leave in general.
FIFA Break Down.
When conducting the FIFA and USA comparison, it is crucial to evaluate the FIFA definitions of the bolded words above:
FIFA Definition of Maternity Leave - A minimum period of 14 weeks’ paid absence granted to a female player/coach due to her pregnancy, of which a minimum of eight weeks must occur after the birth of the child.
U.S. Assessment.
#1. Gender. The defintion includes the pronoun “her.” U.S. employers must be aware of using gender in their player contracts. By way of brief background, in 2020, the U.S. Supreme Court issued an opinion in Bostock v. Clayton County. This pivotal decision held that that sexual orientation and gender identity are protected under Title VII. (NOTE: Title VII is the law that prohibits employers from discriminating against employees on the basis of religion, sex, gender identity, national origin, sexual orientation, and race.) In light of the U.S. law, it is good practice (and one that minimizes risk) to use phrases like “indivdual who carries a child” or “carrying individual.” Lastly, it behooves employers to consider using language like “parental leave” or "pregnancy and adoption leave” as opposed to “maternity leave.”
#2. Duration of Leave. FIFA’s definition calls for 14 weeks of paid leave. This is quite generous when compared to the U.S. laws on pregancy leave. As discussed here, there is a patchwork of laws in the U.S. that determine the duration of pregnancy or adoption leave. The below high level overview demonstrates the varied duration of time off during for each law:
The Pregnant Workers Fairness Act indicates that a leave of absence is a valid accommodation for an employee. There is no set length of time
The Family Medical Leave Act requires certain employers to allow eligible employees to provide 12 weeks of unpaid protected leave.
Not to mention there are vaious state laws that could impose a higher standard than the federal base line.
While it is true that U.S. leagues and Clubs that disregard the 14 week paid leave regulation would not face U.S. liability, they could face disciplinary sanctions. (NOTE: Such sanctions will be discussed below.)
FIFA Definition of Adoption Leave. For analysis on the FIFA Adoption Leave Regulation, read this.
FIFA Definition of Family Leave - [A] minimum of eight weeks’ paid absence granted to a female player/coach other than the biological mother following the firth of the child. The family leave must be taken within six months of the date of birth of the child and cannot be accumulated with adoption leave for the same child.
U.S. Assessment.
#1. Gender. Much like the Adoption Policy, this regulation is discriminatory against men. As written, this leave applies only to female players and thereby expressly excludes (discriminates against) men. This policy is discriminatory under a disparate treatment theory since is expressly excludes men. For more on policies that are expressly discriminatory, read this.
#2. FMLA. As discussed above, in the United States, certain employers are required to allow eligible employees to take 12 weeks of unpaid leave and still keep their job available. U.S. clubs and leagues should account for this additional time;and now, they must ensure that 8 of those weeks are paid leave (per FIFA). (NOTE: Again, Clubs should adhere to FIFA’s regulations to avoid possible sanctions.)
U.S. Assessment
These regulations are generally in line with the U.S. law, where employers cannot discriminate against an individual on the basis of gender (which includes pregnancy). Employers in the US cannot terminate an employee on the basis of pregnancy or adoption, absent an undue burden. Additionally, US Employers cannot refuse to hire an individual based on
Title VII and the Pregnant Workers Fairness Act are the key laws that protect indivduals who carry children. For more information on these laws, read this.
Another law worth noting is the Family Medical Leave Act. This law provides for protected leave for individuals who carry a child or adopt/foster a child. Read this for more information.
All three of the aforementioned laws prohibit retaliation.
Lastly, it is important to remember that these laws apply to candidates and current employees. In other words, just like the FIFA regulations, a Club cannot fail to sign a player because they are pregnat. If a player signs and is pregnant, their contract cannot be terminated.
Damages and Remedies for Termination of Contract Because of Pregnancy
The FIFA Regs outline damages recoverable for the individual (player or coach), along with sanctions for violating clubs. If the employment relationship is terminated, absent another reasont here is an assumption that the termination was based on pregnancy/adoption, and therefore the termination will be viewed as a termination without just cause.
The remedies are as follows:
If the player/coach does not have a new contract. The player/coach does not have a new contract, then they are entitled to:
Payment under the old contract for the final term (“Residual”); and
An additional 6 months of pay under the contract.
If the player/coach has a new contract. When an agreement is terminated, and the individual has another contract lined up, then the player/coach is entitled to:
The residual of the old contract shall be deducted by the new contract payment terms; and
6 months of pay under the terminated contract.
US Assessment: Clubs and leagues should take into account FIFA’s requirements, so as to avoid disciplinary sanctions. With that being said, various laws allow for other types of remedies are available under U.S. laws. For instance, Title VII allows for individuals to seek (1) injunctive relief, (2) back pay, (3) front pay, (4) compensatory damages, (5) punitive damages, and/or (6) attorneys fees/costs.
Why Should US Clubs and Leagues Pay Attention to These Regulations?
As explained above, there are differences between the FIFA regulations and the US law. There are areas where the FIFA regulation is more generous that most US law (ie- 14 weeks paid leave), and areas where the US law affords more time off (ie- FMLA). With that being said, Clubs and Leagues should draft any policy or make any employment decision with these FIFA regulations in mind.
The FIFA regulations state that it can institute sanctions on a club discipline a Club that fails to adhere to these standards. The regulations outline the following sanctions:
Club will be banned from registering any new female players (nationally or internationally) for two entire and consecutive registration periorganids; and
Monetary fines
What Now?
Coaches. Coaches, at least in the United States, are not covered by a Collective Bargaining Agreement (“CBA”). Clubs and Leagues should ensure that they are taking into account U.S. laws and FIFA regulations. Coach could technically seek monetary remedies under US Law that go beyond the FIFA regulations, and also seek FIFA sanctions (ie- 2 registration window ban).
Clubs. Clubs must take into account the US laws andthe FIFA regulations.
Players. Players should seek counsel to understand the local laws of their club, in addition to the FIFA regulations.