Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – January 2019 - By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

 

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Overdue payables in action: Reviewing two years of FIFA jurisprudence on the 12bis procedure – Part 2. By Frans M. de Weger and Frank John Vrolijk.

Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.

This second blog will focus specifically on the sanctions available for FIFA under Article 12bis. It will provide explanatory guidelines covering the sanctions imposed during the period surveyed.


Introduction

The possibility to impose sanctions under article 12bis constitutes one of the pillars of the 12bis procedure. Pursuant to Article 12bis of the RSTP, edition 2016, the DRC and the PSC may impose a sanction on a club if the club is found to have delayed a due payment for more than 30 days without a prima facie contractual basis[1] and the creditor have put the debtor club in default in writing, granting a deadline of at least 10 days.[2] The jurisprudence in relation to Article 12bis also shows that sanctions are imposed ex officio by the DRC or the PSC and not per request of the claimant.More...





Exploring the Validity of Unilateral Extension Options in Football – Part 2: The view of the DRC and the CAS. By Saverio Spera

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law at King’s College London. He is currently an intern at the ASSER International Sports Law Centre. 

This blog is a follow up to my previous contribution on the validity of Unilateral Extension Options (hereafter UEOs) under national and European law. It focuses on the different approaches taken to UEOs by the FIFA Dispute Resolution Chamber (DRC) and the Court of arbitration for sport (CAS). While in general the DRC has adopted a strict approach towards their validity, the CAS has followed a more liberal trend. Nonetheless, the two judicial bodies share a common conclusion: UEOs are not necessarily invalid. In this second blog I will provide an overview of the similarities and differences of the two judicial bodies in tackling UEOs. More...

The Validity of Unilateral Extension Options in Football – Part 1: A European Legal Mess. By Saverio Spera

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law at King’s College London. He is currently an intern at the ASSER International Sports Law Centre.

                 

In the football world the use of unilateral extension options (hereafter UEOs) in favour of the clubs is common practice. Clubs in Europe and, especially, South America make extensive use of this type of contractual clauses, since it gives them the exclusive possibility to prolong the employment relationship with players whose contracts are about to come to an end. This option gives to a club the right to extend the duration of a player’s contract for a certain agreed period after its initial expiry, provided that some previously negotiated conditions are met. In particular, these clauses allow clubs to sign young promising players for short-term contracts, in order to ascertain their potential, and then extend the length of their contracts.[1] Here lies the great value of UEOs for clubs: they can let the player go if he is not performing as expected, or unilaterally retain him if he is deemed valuable. Although an indisputably beneficial contractual tool for any football club, these clauses are especially useful to clubs specialized in the development of young players.[2] After the Bosman case, clubs have increasingly used these clauses in order to prevent players from leaving their clubs for free at the end of their contracts.[3] The FIFA Regulations do not contain any provisions regulating this practice, consequently the duty of clarifying the scope and validity of the options lied with the national courts, the FIFA Dispute Resolution Chamber (DRC) and the CAS. This two-part blog will attempt to provide the first general overview on the issue.[4] My first blog will be dedicated to the validity of UEOs clauses in light of national laws and of the jurisprudence of numerous European jurisdictions. In a second blog, I will review the jurisprudence of the DRC and the CAS on this matter. More...

The legality of surety undertakings in relation to minor football players: the Lokilo case. By Adriaan Wijckmans

Editor's note: Adriaan Wijckmans is an associate specialized in sports law at the Belgium law firm Altius.

In a recent judgment, the Brussels Court of First Instance confirmed the legality of a so-called surety undertaking, i.e. an agreement in which the parents of a minor playing football guarantee that their child will sign a professional contract with a football club as soon as the child reaches the legal age of majority.

This long-awaited ruling was hailed, on the one hand, by clubs as a much needed and eagerly anticipated confirmation of a long-standing practice in Belgian football[1] and, on the other hand, criticised by FIFPro, the international player’s trade union, in a scathing press release. More...



FIFA's Responsibility for Human Rights Abuses in Qatar – Part II: The Zurich Court's Ruling - By Tomáš Grell

Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.

This is a follow-up contribution to my previous blog on FIFA's responsibility for human rights abuses in Qatar published last week. Whereas the previous part has examined the lawsuit filed with the Commercial Court of the Canton of Zurich ('Court') jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs') against FIFA, this second part will focus on the Court's ruling dated 3 January 2017 ('Ruling').[1]  More...



FIFA's Responsibility for Human Rights Abuses in Qatar - Part I: The Claims Against FIFA - By Tomáš Grell

Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.

On 2 December 2010, the FIFA Executive Committee elected Qatar as host of the 2022 FIFA World Cup ('World Cup'), thereby triggering a wave of controversies which underlined, for the most part, the country's modest size, lack of football history, local climate, disproportionate costs or corruption that accompanied the selection procedure. Furthermore, opponents of the decision to award the World Cup to the tiny oil-rich Gulf country also emphasized the country's negative human rights record.

More than six years later, on 3 January 2017, the Commercial Court of the Canton of Zurich ('Court') dismissed the lawsuit filed against FIFA[1] jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs').[2] The Plaintiffs requested the Court to find FIFA responsible for alleged human rights violations of migrant workers in connection with the World Cup in Qatar. Had the Plaintiffs' claims been upheld by the Court, such decision would have had far-reaching consequences on the fate of thousands of migrants, mostly from India, Nepal and Bangladesh, who are currently working on the construction of sporting facilities and other infrastructure associated with organization of the World Cup. More...

Introducing the new legal challenges of E-Sports. By N. Emre Bilginoglu

Editor’s Note: Emre Bilginoglu[1] is an attorney in Istanbul and the co-founder of the Turkish E-Sports Players Association, a non-profit based in Istanbul that aims to provide assistance to professional gamers and to work on the relevant laws affecting them. 


The world is witnessing the rise of a new sport that is growing at an incredible speed: E-Sports. We are only starting to understand its legal implications and challenges.

In recent years, E-Sports has managed to attract thousands of fans to arenas to see a group of people play a video game. These people are literally professional gamers (cyber athletes)[2] who make money by competing in tournaments. Not all video games have tournaments in which professional players compete against each other.

The most played games in E-Sports competitions are League of Legends (LoL), Defense of the Ancients 2 (DotA 2) and Counter-Strike: Global Offensive (CS:GO). LoL and DotA are both Multiplayer online battle arena (MOBA) games, a genre of strategy video games in which the player controls a single character in one of two teams. The goal of the game is to destroy the opponent’s main structure. CS:GO is a first-person shooter (FPS) game, a genre of video games where the player engages combat through a first-person perspective. The main objective in CS:GO is to eliminate the opposing team or to terrorize or counter-terrorize, planting bombs or rescuing hostages. Other games that have (popular) E-Sports competitions include Starcraft II (real time strategy), Hearthstone (collectible card video game), Call of Duty (FPS) and FIFA (football).

The gaming requires cooperation between team players, a high level of concentration, rapid reactions and some seriously fast clicking. E-Sports is a groovy term to describe organized competitive computer gaming. The E-Sports industry is exponentially growing, amounting to values expressed in billions of dollars. According to Newzoo, a website dedicated to the collection of E-Sports data, there are some 250 million occasional viewers of E-Sports with Asia-Pacific accounting for half of the total amount. The growth of the industry is indubitably supported by online streaming media platforms. This article aims to explain what E-Sports is and to give the readers an insight on the key legal questions raised by it. More...


Brexit and EU law: Beyond the Premier League (Part 1). By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

The result of the Brexit referendum on 23 June 2016 took the European Union (almost) by surprise. A lot has been said and written about the impact of the United Kingdom leaving the EU. As in all other areas, the British sport sector will also face the effects of the modification of the relationship between the EU and its (probable) former Member State, the UK. It is nearly impossible to foresee all consequences as the UK has not even triggered article 50 TFEU yet to officially start the exit negotiations. However, as the UK position toward the EU will change in any case, this two-part blog aims to examine the main practical implications of such an exit for the UK, but also for the EU, in relation to the actual application of EU law in sport and the EU sport policy.

Unless stated otherwise, the use of the terms Brexit in this blog should be understood as a complete exit of the UK from the European Union. This blog focus in particular on this worst case scenario and its consequences for UK sport. However, it is highly improbable that the future Brexit negotiations with the EU will end up without some kind of special agreement between the two parties the first of which being an EEA type of agreement with full access to the internal market and applicability of EU law. 

The first part of this blog will examined the consequences for UK sport in terms of access to the EU internal market and the applicability of free movement principles. The second part is focused on specific impacts with regard of others domain of EU law for professional and grassroots UK sport.  More...

Asser International Sports Law Blog | Women’s Football and the Fundamental Right to Occupational Health and Safety: FIFA’s Responsibility to Regulate Female Specific Health Issues - By Ella Limbach

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Women’s Football and the Fundamental Right to Occupational Health and Safety: FIFA’s Responsibility to Regulate Female Specific Health Issues - By Ella Limbach

Editor's noteElla Limbach is currently completing her master’s degree in International Sport Development and Politics at the German Sport University Cologne. Her interests include human rights of athletes, labour rights in sport, the intersection of gender, human rights and sport and the working conditions in women’s football. Previously, she graduated from Utrecht University with a LL.M in Public International Law with a specialization in International Human Rights Law. This blog was written during Ella's internship at the Asser Institute where she conducted research for the H.E.R.O. project. The topic of this blog is also the subject of her master's thesis.

Women’s football has experienced exponential growth over the past decade, though the professionalization of the women’s game continues to face barriers that can be tied to the historical exclusion of women from football and insufficient investment on many levels. While attendance records have been broken and media coverage has increased, the rise in attention also highlighted the need for special accommodations for female footballers regarding health and safety at the workplace. Female footballers face gender specific circumstances which can have an impact on their health such as menstruation, anterior cruciate ligament (ACL) injuries and the impact of maternity. As the recent ILO Brief on ‘Professional athletes and the fundamental principles and rights at work' states “gender issues related to [occupational health and safety] risks are often neglected (p. 23).” While it could be argued that from a human rights point of view article 13(c) of the Convention on the Elimination of Discrimination of Women stipulates “the right to participate in […] sports [on an equal basis to men],” reality shows that so far practices of men’s football were simply applied to women’s football without taking into consideration the physiological differences between male and female players and the implications that can have for female players’ health. The ILO Declaration on Fundamental Principles and Rights at Work(ILO Declaration, amended in 2022) includes “a safe and healthy working environment” as one of the fundamental rights at work (Art. 2e). This begs the question whether the scope of the right to occupational health and safety at the workplace includes the consideration of female specific health issues in women’s football.

Scope of the fundamental right to occupational health and safety

 The ILO Declaration also identifies the Convention on Occupational Health and Safety (No. 155, 1981) and the Convention on a Promotional Framework for Occupational Health and Safety (No. 187, 2006) as fundamental frameworks guaranteeing the right to occupational health and safety. In its Brief on ‘Professional athletes and the fundamental principles and rights at work’ the ILO reaffirms that athletes get their right to occupational health and safety through these two conventions. The Occupational Health and Safety Convention “applies to all branches of economic activity (Art. 1),” and as football is a global industry generating billions in revenue, it should be included within the scope of the convention. Article 3 provides that the term health includes physical elements affecting safety at work. Article 4 reads the following: 

1. “Each Member shall, in the light of national conditions and practice, and in consultation with the most representative organisations of employers and workers, formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment.

2. The aim of the policy shall be to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, by minimising, so far as is reasonably practicable, the causes of hazards inherent in the working environment.” 

Applying this to football, could mean that signatory states of the Occupational Health and Safety Convention shall consult FIFA and their respective national federations, clubs and player unions to mitigate hazards specific to football. Moreover, the employers are obligated to ensure “workplaces, […] equipment and processes under their control are safe and without risk to health (Art. 16(1).” The cost of ensuring safety and health at the workplace shall not be covered by athletes according to article 21. 

The Convention on a Promotional Framework for Occupational Health and Safety emphasizes that “the principle of prevention is accorded the highest priority (Art. 1d).” It also calls for continuous improvement of occupational safety and health in order to prevent injuries (Art. 2). The national policy shall be supported by a national occupational safety and health system which amongst others should include laws and regulations and collective agreements, compliance mechanisms, research and data collection and analysis on occupational injuries and diseases (Art. 4). While maternity is not discussed within the context of the above mentioned conventions, the ILO’s Maternity Protection Convention (No. 183, 2000) protects the health of pregnant or breastfeeding women by ensuring that they are not obliged to perform work which is harmful or poses a risk to the health of the mother or the child (Art. 3). It also stipulates a minimum of 14 weeks maternity leave (Art. 4).

Health concerns specific to women’s football

Female footballers face several barriers that are unique to their experience as women. Generally, there is a lack of education on female physiology and health and how it affects performance. Several risks are specific to women’s football and must be differentiated from the men’s game. Here three different points are assessed: the impact of menstruation on training, performance and injury risk, ACL injuries and maternity. These have already been identified by Martínez-Lagunas, Niessen and Hartmann in 2014 for necessitating specific adaptations to the training of female players due to their difference in physiology compared to men.

First, menstrual cycle disfunctions are not uncommon for athletes. FIFA has recognised the lack of scientific literature on the health of female athletes and has through reviewing current literature developed the FIFA Female Health Projectaiming to provide educational resources for all stakeholders in women’s football. That can include having infrequent periods, not ovulating, heavy bleeding and pain. These can be tied to disease, genetics, as well as stress which is common in the competitive environment of professional football. Stress can be caused by workload, travel and psychological pressure. In addition, if players experience lower energy levels, they are more prone to injury. There are a number of symptoms women experience during their period such as cramps, fatigue, disturbed sleep and back and leg pain. The impact of nutrition on menstrual health also should be monitored, the same applies to hydration. Therefore, health issues related to menstruation should be taken more seriously in football and women players should receive proper care.

Secondly, women’s football has suffered what many describe as an epidemic concerning the number of players suffering ACL injuries. Injuries arising out of being employed as footballers in general are not uncommon, however the rise in ACL injuries is alarming. ACL tears are twice as likely in women, a higher likelihood also recognised by the ILO in its Brief. About two thirds of ACL injuries occur without physical contact. In addition, ACL injuries take between six to twelve months to recover, which has a large impact on a footballer’s career. Not much research has been done on the topic but a few potential reasons as to why that is the case have been identified by stakeholders in women’s football such as FIFPRO and academics especially within the field of sport medicine. For one, football boots and kits are designed based on the male physique and many female players reported having issues with their shoes. Another possible reason for ACL injuries could be inconsistency of the match calendar experienced by some players. Female players experience underload due to fewer teams, shorter seasons and longer breaks as well as long lasting discrimination of the women’s game which impacts its professionalization. However, at the same time parts of an elite player’s season are characterized by overload where players play a high number of games in a short period of time. For some players the increase in workload and decrease in recovery through a packed competition schedule may also be an issue, though this issue does not exclusively impact women’s football. Nevertheless, on the elite level women face less structured match calendar and more precarious conditions regarding medical treatment and recovery.

Thirdly, female players have to arrange their career with family planning. As FIFPRO reports, many women in football had to leave the sport early because they wish to become mothers and current structures in elite football were not allowing both, being a mother and a professional football player. Childcare support and maternity pay are rarely provided. While FIFA has developed protections of players during and after pregnancy, FIFPRO has recently shown that the regulations have not been implemented by most of FIFA’s member associations. Moreover, pregnant professional players previously reported that medical care throughout their pregnancy especially regarding training and support as to which exercises are beneficial during pregnancy are lacking. Lastly, an early return after pregnancy can also lead to health implications if not monitored.

FIFA’s responsibility to ensure respect for ILO Conventions throughout football

FIFA is the world governing body for football and has committed to respecting internationally recognised human rights throughout its activities. The FIFA Statutes state that “FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights.” Moreover, FIFA published a ‘Human Rights Policy’ in 2017, which refers to the UN Guiding Principles for Business and Human Rights (UNGPs). As highlighted by the UNGPs, internationally recognized human rights include at least some ILO Conventions. Therefore, FIFA following its own commitment to respect and strive to promote human rights, should ensure that throughout football minimum standards of health and safety aligned with ILO requirements are in place. FIFA should, therefore, be deemed to be bound under FIFA law to ensure respect with ILO Conventions throughout its activities (including regulations affecting professional football players). In fact, FIFA has started to include a set of ‘Special Provisions Relating to Female Players’ in their Regulations on the Status and Transfer of Players (RSTP). For example, menstruation and maternity leave. 

Current status of female players health regulations by FIFA 

When looking at the risks specific to female players the question arises how FIFA and national football federations contribute to realizing the right to health and safety at work. FIFA has launched the Women’s Health, Wellbeing, and Performance Project in 2023, consulting 20 experts to investigate the female physiology and women’s health challenges. It covers all three topics and should be available to FIFA stakeholders in full soon. Some of its objectives include increased research, awareness, optimized training and access to screening and monitoring tools. It is yet to be seen whether this project will positively impact players health.

The Special Provisions Relating to Female Players included in the Regulations on the Status and Transfer of Players (RSTP) are also relevant here. Indeed, an article related to menstruation has recently been added to FIFA’s RSTP. It requires a club to respect a player’s needs regarding their menstrual cycle and health (Art. 18quinquies), meaning, if a player receives a medical certificate by her gynaecologist or another medical professional, the player has the right to miss trainings or games due to her menstrual health without consequences for her pay. FIFPRO points out that while this does not differentiate from taking a certificate to excuse them from training or games due to illness, it provides legal certainty that menstruation is covered by sick leave.

While research and support on ACL prevention and treatment has been lacking overall, FIFPRO, the Professional Footballer Association England, Nike and Leeds Beckett University have launched a project aiming to reduce ACL injuries in women’s football, the findings of which they will also make available to FIFA. The study will run for three years and examine players of the Women’s Super League which is England’s top-tier women’s football league. They will also track players workload, travel and appearances. From the findings best practice will be identified. 

Finally, FIFA, with support of FIFPRO, established maternity regulations in 2021 which are included in the RSTP (Art. 18quater). These must be implemented by member associations in their national regulations. Female players are now granted a minimum of 14 weeks of maternity leave, including eight weeks after childbirth, two more weeks as required by the ILO Convention. In its latest advocacy, FIFPRO advocated for 10 weeks after childbirth. Additionally, players receive two thirds of their salary during maternity leave. The FIFA RSTP also give players the autonomy to decide when to stop playing while pregnant, as long as it not considered a risk to the health of both player and child, with clubs having to accept the player’s decision. During their pregnancy clubs must also provide the opportunity for players to do alternative work. As of 2024, the RSTP include adoption leave of eight weeks, if the child is under two years old, and family leave for non-childbearing parents of eight weeks (Art. 18(7)). They now also included a postpartum plan and the obligation of clubs to provide adequate ongoing medical support. After already engaging heavily with the topic, FIFPRO recently published a guide on supporting players during pregnancy and in returning to play which was developed “with football players who actually experienced motherhood while they were professionals and with doctors and physiotherapists specialised in maternity in professional sport.” While the RSTPs include a postpartum plan to be agreed between player and club without including recommendations, the question remains in how far the best practices identified in the guide will be transposed by FIFA in the next RSTPs.

The implementation of the rights enshrined in the FIFA RSTP by national federations is still lacking, however. For example, the case of Sara Björk Gunnarsdóttir against her former club Olympique Lyonnais shows that clubs are not necessarily upholding the provisions related to maternity protection. The dispute arose because Lyon failed to continue paying Gunnarsdóttir’s salary during her pregnancy in contravention with FIFA’s maternity regulations, but in line with French law. Gunnarsdóttir won the case before the FIFA Dispute Resolution Chamber. However, (financial) sanctions for non-compliance are often insufficient and not effective in providing incentives for clubs to adhere to the rules, and in the worst case could even lead to national football federations allocating less resources to women’s football, thus also impacting the adherence with the RSTP. There is also a risk of double standards, between national and international players, as rules and regulations may apply differently to them. 

Conclusions and the way forward

The right to health and safety is a fundamental right at work therefore it should also apply to professional female footballers. ILO conventions impose primary duties onto signatories of the Conventions and while FIFA is a Swiss association and thus not directly bound by ILO Conventions, it can be argued that because of its commitments to uphold internationally recognized human rights in line with the UNGPs it should adhere to ILO conventions. In addition to FIFA’s responsibility through its own commitments and as the global regulator of football there are several other duty bearers that play a relevant role. Because member states should consult with representatives of employers one could argue that national football federations and clubs, in their role as employers of players, and the states in which they are located have a shared responsibility to fulfil the right to occupational health and safety at the work for female footballers. Consequently, because the ILO requires that employers create a safe working environment minimizing causes of hazards, having adjusted training programs and doing the necessary research and studies on the health and safety of female footballers will be a necessity for clubs and federations. To provide a practical example, developing football boots adapted to female physicality might be an obligation under article 16(1) of the Occupational Health and Safety Convention.

As has been outlined above, there is no question on whether menstruation, ACL injuries and maternity affect the health and wellbeing of female athletes at the workplace and thus fall under the ILO’s scope of the fundamental right to occupational health and safety at the workplace. While FIFA has begun to work on including female specific health issues in their regulations, the national implementation of the relevant provisions is still lacking efficiency. Thus, more active pursuit of national football associations and club’s adherence should be high on FIFA’s to do list. Moreover, FIFPRO must be credited with a lot of work regarding the implementation of these rights. As the global football players union, it represents the workers in this case and thus it can be seen as a positive step that FIFA is to a certain extent implementing their recommendations. Though it is clear that FIFA needs to take greater responsibility as long as serious issues, such as extensive workload and the impact on players health, continue to be highlighted by FIFPRO without meaningful action by FIFA. Overall, a way forward would include establishing effective mechanisms to ensure that relevant provisions of the RSTP are universally implemented and ultimately stronger sanctions for breaching these provisions.

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