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Sara Björk Gunnarsdóttir
(‘Sara‘) is an Icelandic footballer
currently playing for Juventus in Italy and is also the captain of
the Icelandic national team. In May 2022, FIFA ordered her then
club, Olympique Lyonnais (‘Lyon‘) in
France to pay her unpaid salaries of more than €82,000
(£72,000) as a consequence of back dated maternity pay.
In what has been described as a “wake-up call for all
clubs”, this landmark case saw FIFA’s regulations take
precedence over French law and helps guarantee the rights of female
football players during pregnancy.
This article looks at the background and facts of the dispute,
FIFA’s new maternity policy, and how this was utilised by Sara
to achieve her stunning victory.
Background
Early in March 2021, Sara fell pregnant. However, this special
moment was immediately consumed by anxiety and fear. Her first
thoughts were how she was going to break this news to her then
club.
Sara kept matters quiet for the first few weeks and only
informed Lyon’s club doctor. Matters changed when Sara could
not play in a crucial match against arch-rivals, Paris
Saint-Germain after having acute morning sickness the previous
day.
Sara met with Lyon’s club director to arrange the next
steps. She was advised to stop playing at this point and, as
Covid-19 was still sweeping France at this point, she was worried
how this could affect her pregnancy. She wanted to fly back to
Iceland for the remainder of the process, to be close to her
partner and family. The club agreed and signed off her absence.
However, once back in Iceland, Sara realised that Lyon were not
paying her salary in line with FIFA’s maternity policy for
women’s football. In fact, Sara only received a fraction of her
monthly salary, and this continued into the following month.
Nevertheless, she continued to press Lyon to pay her salaries.
However, after months passing with no resolution, Sara filed a
claim before the Football Tribunal of FIFA’s Dispute Resolution
Chamber on 10 September 2021.
FIFA: Women’s Football
FIFA introduced a new maternity policy in January 2021. Under this
policy:
“A female player is entitled to maternity leave,
defined as a minimum period of 14 weeks’ paid absence –
with at least eight weeks after birth – during the term of
the contract, paid at the equivalent of two thirds of her
contracted salary.”
Art 18 of FIFA’s new maternity policy, also states that:
“No female player should ever suffer a disadvantage of
any sort on the basis of her pregnancy. As a consequence, the
unilateral termination of a female player’s contract on the
grounds of her becoming pregnant will be considered a termination
without just cause.”
FIFA – Dispute Resolution Chamber
Sara’s position
It was asserted (by Sara’s legal representatives) that:
“…the FIFA [Regulations] are clear and
provide for full remuneration, unless more favourable conditions
would apply under domestic rules.”
Current French maternity provisions are less favourable and, as
a consequence, it was argued that FIFA Regulations should apply in
this instance. It was further argued that in line with the
“spirit” of the Regulations:
“…the pregnancy and maternity dispositions were
implemented to protect female players in such pivotal and central
moment of their lives not only as professional footballers but also
as individuals”.
Sara asserted that this matter fell under Art 18 of FIFA’s
Regulations of the Status and Transfer of Players
(‘Regulations‘), specifically art.
18quater par. 4 b) which states when a player becomes pregnant, she
has the right, during the term of her contract, to:
“provide services to the club in an alternate manner,
should her treating practitioner deem that it is not safe for her
to continue her sporting services, or should she choose not to
exercise her right to continue to continue providing sporting
services. In such a case, the player shall be entitled to receive
her full remuneration, until such time as she utilises maternity
leave”.
Sara’s legal representatives asserted that the parties
agreed she could travel back to Iceland, taken into consideration
the outburst of COVID-19 cases within the team and that Lyon never
“display[ed] any opposition”.
By refusing to follow the Regulations, Lyon had
discriminated against her. Sara’s legal team stressed
that “maternity should never constitute a source of
discrimination in employment, including in that of receiving
salaries”, the latter being an “essential step
to ensuring gender equality”.
It was stated that Sara had only received a small percentage of
her monthly salaries and her employment contract with Lyon was
governed by French law under the collective bargaining agreement
applicable to female players equally ensured full remuneration for
90 days following the beginning of Sara’s leave.
Lyon’s position
Lyon maintained the FFT did not have jurisdiction to hear the
dispute. Lyon declared the employment contract between the parties
referred explicitly to the French labour Court to the extent
that:
“The labour court shall have exclusive jurisdiction,
regardless of the amount of the claim, to hear the disputes
referred to in this chapter. Any agreement to the contrary is
deemed unwritten (…).” (free translation from
French)”.
Lyon further claimed, “that there is not a single
reference in the contract to the DRC [FIFA’s Dispute Resolution
Chamber] or any other arbitral institution”.
It was also submitted by Lyon that it had done everything in its
power to allow Sara to return to Iceland while benefiting from the
social security allowance.
Furthermore, given that Sara did not make any request concerning
the possibility of continuing to carry out her services in an
alternate matter, and in view of her insistence to return to
Iceland as soon as possible to be near her relatives for the
monitoring of her pregnancy, the prerequisites of the Regulations
were clearly not fulfilled.
FIFA’s Decision
Firstly, the DRC Chamber (the
‘Chamber‘) considered whether it was
competent to deal with this case. It noted that the employment
contract did not contain any explicit jurisdiction clause in favour
of the respective labour court. The Chamber recalled its
long-standing jurisprudence that a choice of jurisdiction by means
of which the parties agree to decline the competence of FIFA must
be clear, exclusive, and unequivocal.
Turning towards the dispute itself, the Chamber acknowledged
that the crucial element of this dispute lay in the application and
interpretation of art. 18quater par. 4 lit. a) and lit. b) of the
Regulations, concerning the player’s entitlement to
remuneration during her pregnancy.
The Chamber acknowledged that the maternity provision – in
general – enshrined the duty of care of the employer with the
main objective to provide protection for the pregnancy of a
player.
It was also acknowledged by Lyon that Sara would not provide
sporting services during her pregnancy.
The Chamber equally acknowledged that Lyon had never mentioned
the possibility of Sara continuing to work in an alternate way. The
Chamber concluded that Lyon failed to address any possibilities
regarding Sara’s alternative employment during her pregnancy,
and Sara had made herself available for alternate services by means
of her letter to Lyon in August 2021.
Therefore, the Chamber decided that Lyon was liable to pay Sara
the amounts claimed as outstanding under the contract. FIFA also
stated in its judgement that Lyon had 45 days (from the decision),
to pay Sara, otherwise the club would be given a transfer ban.
The decision of the DRC can be viewed in full
here.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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