Background:

The claimant was employed as a professional football player for the respondent, a very successful football club in France.  The contract between the two outlined that the respondent would ensure that the claimant benefits from the general social security stem for the entire duration of her employment.  This further indicated that there would be full pay for three months sick pay.

The claimant informed the respondent in March 2021 that she was pregnant. She was given ‘sick leave’ in March 2021 and she was allowed to return to Iceland (her country of birth).

The claimant’s salary was not paid in full though and this led to the UNFP (the Union representing professional footballers in France) inquiring as to why it had not been paid.   This was backed up by the FIFA Regulations as well as the Collective Bargaining agreement in France.

The respondent later replied stating that as the claimant did not provide sporting services or any other alternate employment she was subject to the rules regarding sick leave compensation in accordance with the company’s agreement and the French legislation. The respondent’s main argument was that the claimant had urgently and insistently requested that she return to Iceland to be under the supervision of an Icelandic speaking specialist. They did not want to interfere with the personal decision but would have an effect on the social security allowances which were condition on being resident. The daily social security allowance only provides for €45.99 per day.  This was until she went on maternity leave.  The FIFA Regulations though indicated that there was a right to receive full remuneration until the claimant decides to utilise her maternity leave.  The claimant was never asked nor told about the possibility of taking on alternative duties.

The claimant then commenced her maternity leave in September 2021 but the issue of the payment between March 2021 and September remained outstanding.   The claimant then brought proceedings to the FIFA Football Tribunal for determination.

Outcome:

The issue the panel had to determine was in relation to whether full payment was to be provided and the interpretation of Article 18 of the FIFA Regulations relating to the provision of alternative employment services.  The claimant’s point was that she was never given an opportunity and had she been given an opportunity she would have taken it.  The Panel noted that there were no alternative services provided yet by letter in August 2021 the claimant did make herself available when it was only raised with the claimant.   Accordingly, the Panel found that it was for the respondent, who bore the heavier duty of care, to address the possibilities of alternative employment rather than the claimant having to take a pro-active position.  As a result, the Panel concluded that the respondent remunerate the claimant fully from the position between the announcement of her pregnancy and the beginning of her maternity.

Practical Guidance for Employers:

This is a fairly trivial, yet interesting, case.  It demonstrates the extent to which external agreements to the legislative position within the particular jurisdiction may have an effect on the entitlement to particular employment protections.  In this case, the FIFA Regulations relating to the treatment of female footballers outlined an additional protection vis-à-vis payments in the case of pregnancy.  The Panel here has emboldened that protection by outlining that it is the requirement of the employer to outline the alternative forms of employment as outlined within those Regulations rather than the employee being pro-active in that respect.