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New FIFA family leave for female players and coaches

“FIFA has bolstered the protections it offers to female players by introducing minimum adoption and family benefits to complement its existing maternity leave and pay provisions. It has also extended the scope of these regulations to cover female coaches.

In England, the changes will be less of a step change than in other countries – through a mixture of legislation and employer willingness to give enhanced benefits – although the new rights do, for the most part, exceed our statutory minimums, and the broad wording perhaps encompasses more than anticipated.”

Adam Melling – Associate, Employment and Sport

Adam Melling

new FIFA family leave

FIFA has announced new regulations for female players and coaches. Female coaches will now benefit from the existing maternity leave and pay entitlements for female players, and female players and coaches will also benefit from new leave and pay entitlements for adopters and non-biological mothers. FIFA has also introduced protections to ensure female players receive full pay while absent for menstrual reasons.

We look at the interaction with the statutory position on family leave in England, discrimination legislation and the PFA’s collective agreement with The FA on maternity leave and pay. We also look at menstrual-related absence and whether FIFA’s regulations give female players more protection.

What are the new family leave FIFA regulations for female football players and coaches?

Effective from 1 June 2024, female coaches worldwide are now entitled to receive the same maternity benefits as female players, namely, 14 weeks’ maternity leave paid at two-thirds of their contracted salary.

The regulations now also include two new types of leave:

Adoption

  • Female players and coaches are entitled to up to 8 weeks’ paid adoption leave as follows:
  • 8 weeks if the child is younger than 2;
  • 4 weeks if the child is between 2 and 4 years’ old; or
  • 2 weeks if the child is older than 4.
  • The leave must be taken within six months of the date of ‘formal adoption’.

Family leave

  • For female players or coaches ‘other than the biological mother’ of a child, they may take up to 8 weeks’ paid leave.
  • This leave must be taken within six months of birth.

As with maternity, the pay entitlement for both is two-thirds of their contracted salary for the full period of leave.

Unlike the significant body of legislation and case law in England on family leave – particularly maternity leave – there is very little to guide clubs on the scope of these provisions. For example:

  1. There are no prescriptive notice requirements for taking the leave. Indeed, the regulations provide that the player/coach has the right to ‘independently determine’ the commencement date of their leave and a club will be sanctioned if it ‘pressures’ them to take it at a specific time.
  2. FIFA’s guidance indicates that the family leave entitlement is intended to cover ‘non-biological mothers‘, although who that extends to in practice is unclear.
  3. It is not clear if all the leave must be taken in the first 6 months of ‘formal adoption’ or birth, or if it must merely commence in the first six months. The natural reading of the regulations and guidance indicate the former.

It’s hoped that further guidance will be published to complement the new rights. Until then, it would seem prudent to review policies to set reasonable expectations.

How will the new regulations apply in England?

While the new provisions are binding on The FA (and therefore all clubs) with effect from 1 June 2024, it would seem a reasonable bet that the PFA and The FA will engage in similar discussions as they did for maternity pay for female players (in which they agreed that mothers should receive the first 14 weeks at full pay (including weekly wage and other remuneration and benefits) instead of FIFA’s two-thirds of contracted salary). In other words, full pay for (up to) 8 weeks’ adoption/family leave.

It would seem likely that the League Managers Association and League Coaches Association will to follow suit for coaches.

Some key areas where the FIFA regulations are, or appear to be, broader than English legislation:

  • The FIFA protections are a Day 1 right. Under English legislation, the pay entitlement requires an employee to be continuously employed for 26 weeks by a specified date (which varies depending on the type of leave).
  • Under English legislation, where a child is being adopted, only one parent may receive statutory adoption leave/pay (the other parent may be entitled to paternity and/or shared parental leave/pay – on which, see below). Under the FIFA regulations, it would seem that both parents would be entitled to FIFA’s adoption leave and pay.
  • Under English legislation, step-parents cannot benefit from statutory adoption leave/pay upon adopting their step-child. Under the FIFA regulations, there is no such carve-out.
  • ‘Family leave’ is not a distinct right in English legislation. Broadly, a biological mother would take maternity leave (or adoption leave in certain circumstances) and their partner (regardless of sex) would take paternity leave. If the mother sacrifices some of her maternity/adoption leave, the partner could also take shared parental leave. Pay for paternity and shared parental leave is capped at a rate set by the government – currently £184.03 per week. FIFA’s leave therefore appears to be an appealing enhancement to the statutory position.

Where statutory adoption leave and pay do apply though, statutory adoption pay exceeds the FIFA entitlement for the first six weeks of leave (as statutory adoption pay is 90% of their normal weekly remuneration for the first six weeks, as opposed to FIFA’s two-thirds of contracted salary).

A missing piece of the puzzle?

English law protects special treatment afforded to a woman in connection with pregnancy, childbirth or maternity. In other words, giving a woman enhanced maternity leave or pay does not give rise to a direct discrimination claim for male employees.

However, the same does not follow for wider family-related rights. While FIFA is to be applauded for recognising the need to extend family leave to cover female player/coach adopters and ‘non-biological mothers’, the elephant in the room is that both of those situations can (and should) clearly also apply to men. Clubs should exercise caution giving divergent leave and pay entitlements to men and women outside of maternity leave.

Menstrual-related absences

FIFA’s new regulations give a female player the right to be absent from training or matches, and to receive her full remuneration during such period of absence, ‘whenever her menstrual health so requires’. Such absences must be supported by a valid medical certificate issued by her personal gynaecologist or specialist medical practitioner. It is unclear why this has not been extended to female coaches.

In England, it may be that sex and/or disability discrimination legislation (and the obligation to make reasonable adjustments) already protects female players in this regard. However, the unambiguous wording of the regulations is interesting and arguably ring-fences menstrual-related absences from any challenge by an employer, even where the level of absence is unsustainable to the business.

New FIFA family leave for female players and coaches family leave rights: How we can support you

The new female family leave rights offer welcome protection for female players and coaches. However, they lack detail and the lack of uniform application of adoption and family leave rights to the men’s game raises questions about discrimination. For the time being, we would encourage clubs to review policies on family-related leave and sickness absence and treat each case on its own facts. At present, the broad wording of the new regulations arguably requires clubs to treat adoption and family leave and menstrual-related absences more broadly than comparable rights under English legislation and, perhaps, than FIFA intended.

Contact Charlotte Smith or Adam Melling for further discussion on these issues.

Adam
Melling

Associate

Employment & Sport

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Charlotte
Smith

Partner

Employment & Sport

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