23 January 2023
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.