In a circular dated 8 October 2021, FIFA reminded member associations of their obligation to transpose the provisions on maternity of professional players adopted at the end of 2020.Is the French Football Federation (FFF) concerned? Indeed, French law already provides protective conditions for employees.
FIFA amendments in favor of professional female footballers
On December 4, 2020, FIFA Council voted to adopt amendments to the Regulations on the Status and Transfer of Players (RSTJ).
These new provisions deal with pregnancy and maternity leave of " professional footballers ».
Note that the FFF, in the state of its regulations season 2021/2022, still reserves the term of "professional"to male practitioners only. Indeed, article 46 of the Regulations generals of the FFF have:
"1. Is professional, elite, trainee, aspirant, apprentice, any player having obtained this quality, either by the registration of a contract binding him to his club, or by the decision of the Federation. The provisions of the status of these players appear in the Professional Football Charter.
The delay of FIFA member associations in transposing the amendments
Please note: : this derogation does not apply to article 6 paragraph 1 of the FIFA Regulations which means that, in accordance with article 1, paragraph 3, a), it is binding and must be included, without modification, in the regulations national member associations in terms of transfers. The FFF should therefore specify in its regulations that a club can register a player to replace another party on maternity leave or register a player returning from maternity leave, outside the two annual registration periods.
More favorable working conditions for footballers under employment contract in French law?
In general, for employees, French labor law provides longer maternity leave than FIFA: except in special circumstances, the duration in principle is 16 weeks, 10 of which are taken following childbirth according to Article L. 1225-17 of the Labor Code which Article 7.3.1 of the CCNS makes direct referral.
With regard to article 18 paragraph 7 on remuneration, the existence of more advantageous conditions in French law is more difficult to determine because the assessment criteria are not identical. FIFA reasons on a monthly basis whereas France has chosen daily allowances depending on several factors (calculation provided for by Article R. 323-4 of the Social Security Code and by the Health Insurance simulator).
For the new article 18c, paragraph-by-paragraph reasoning seems more appropriate.
First, French law provides for the prohibition of subjecting the validity of a contract to a state of pregnancy or to maternity leave, like the Regulation (Article L. 1225-1 of the Labor Code).
Then, it is also forbidden to terminate an employment contract on the grounds of pregnancy or taking maternity leave (Articles L. 1225-4 to L. 1225-4-2 of the French Labor Code). However, the Regulations for the Status and Transfer of Players are innovative in that they pose a simple presumption abusive termination for reasons of pregnancy.
Article 18c, paragraph 2, a) : " Unless proven otherwise, it is presumed that the unilateral termination of a contract by a club during pregnancy or maternity leave has occurred due to the pregnancy of the player concerned».
If the player's employment contract is terminated for one of the reasons in article 18c paragraph 2, both FIFA and French law provide for compensation:
- For FIFA: in the event of termination without just cause, it is awarded compensation equivalent to the residual value of the prematurely terminated contract. If the player has already signed a new contract in the meantime, the value of the new contract for the period corresponding to the remaining term of the prematurely terminated contract is deducted from the residual value of the prematurely terminated contract. In both cases, the Regulation grants additional compensation " corresponding to 6 monthly salaries of the prematurely terminated contract ”(Cf. paragraph 3, a, iv).
- For the Labor Code, Article L. 1243-4 paragraph 1er provides that abusive termination of the fixed-term employment contract " entitles the employee to damages in an amount at least equal to the remuneration he would have received until the end of the contract, without prejudice to the termination indemnity provided for in article L. 1243- 8 ". What's more, the employer can be ordered to pay damages in compensation for a loss distinct from the compensation covering the loss of wages until the initial end of the contract (Cass. Soc. July 3, 2019, n ° 18-12.306 : " which (the first paragraph of article L.1243-4 of the Labor Code) fixes only the minimum of the damages that must be perceived by the employee whose fixed-term contract has been unlawfully terminated ").
The CCNS does not provide more precision, Article 4.7.3.3 paragraph 8 relating to the specific employment contract of the Sports Code providing that " The terms of termination of the specific fixed-term contract are those defined by the labor code ».
Then the player's rights listed above by 18 articlec are also translated into French legislation (Articles L. 1225-7 et seq. of the French Labor Code).
However, this provides an additional protective precision for employees by imposing a period from which they can no longer work:
Article L. 1225-29 of the Labor Code : " It is forbidden to employ the employee for a period of eight weeks in total before and after childbirth.
It is forbidden to employ the employee within six weeks of giving birth. ».
A professional footballer can provide other types of services (in accordance with the RSTJ):
Article L. 1225-7 Of the Labor Code : " A pregnant employee may be temporarily assigned to another job, at her own initiative or that of the employer, if her medically established state of health so requires (...).
The change of assignment does not entail any reduction in remuneration ».
Finally, the Labor Code provides for conditions similar to those of fifa with regard to breastfeeding and milk extraction in Articles L. 1225-30 to L. 1225-33:
Article L. 1225-30 of the Labor Code : " For one year from the day of birth, an employee breastfeeding her child has one hour per day for this purpose during working hours. ».
Article L. 1225-31 of the Labor Code : "The employee can breastfeed her child in the establishment ».
Conclusion on the comparison of French legal provisions and FIFA regulations on maternity protection for professional football players
Note, however, that to date (2021/2022 season), several player profiles participate in the French Women's Championship of the 1st division, the D1 Arkéma (which depends on the FFF).
Indeed, the players who participate in the women's D1 are not all salaried players with a full-time employment contract. Thus, cSome still have "amateur" status and others only have a part-time employment contract. As Senator Yves Détraigne (Marne - UC) underlines in a written question to the Minister Delegate for Sports on October 7, 2021, « half of the players have part-time contracts and supplement their salary with another professional activity ».
What about the protection of the latter which do not exactly correspond to the definition of "professional player" of FIFA?
