Bouncing Back – Maternity Policies For Elite Athletes

Lereesa Easterbrook and Victoria Boylett take a look at the evolution of maternity policies in elite sport.

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Once upon a time, the idea of an athlete mother (let alone the concept of a sport-specific maternity policy!) was an alien concept in the world of elite sport. The narrative was that motherhood was somehow fundamentally incompatible with being an elite athlete. Thankfully that narrative is changing, with increasing numbers of athletes becoming mothers and then returning to professional competition, showing that women shouldn’t have to choose between having a family and pursuing their sporting careers. Recent success stories include tennis player, Elina Svitolina, who reached the quarter final of the French Open and the semi-final of Wimbledon this year on her return from maternity leave; track and field athlete, Shaunae Miller-Uibo, who won a gold medal in the 400 metres at the 2023 Zurich Diamond League a matter of months after giving birth; and the half a dozen mothers selected to represent their national teams in this year’s FIFA women’s (football) world cup.

To help sustain this positive trajectory, given that the majority of female athletes are at the peak of their sporting careers during their most fertile years, sports governing bodies and clubs are putting in place sport-specific maternity policies to support and accommodate their athletes, although some would argue that there remains a long way to go.

A review of the different policies in place shows that there is no ‘one size fits all’ approach, with governing bodies and clubs taking different approaches depending on the nature of their sport (e.g. team sports versus individual sports, and contact versus non-contact sports). Athletes participating in team sports will typically be contracted by a club in an employer/employee relationship where they are paid a monthly or annual salary, meaning maternity packages can be structured more similarly to those offered to employees in more orthodox, non-sporting settings. By contrast, athletes participating in individual sports are typically self-employed, with income entirely dependent (directly or indirectly) on performance, meaning that traditional maternity pay packages may not be feasible or appropriate.

Approaches are also likely to differ depending on the available resources and the overall maturity of the sport. Governing bodies and clubs with more resource may be able to offer more comprehensive maternity packages that include both financial and non-financial support, whereas those with fewer resources may not be able to offer financial support at this stage of their journeys. Some of the different approaches are illustrated in the examples set out below.

Tennis

The Women’s Tennis Association (WTA) is one of the organising bodies of tennis and is relatively well-resourced and mature so far as women’s sport is concerned. Section 8C of the WTA Official Rulebook contains the ‘WTA Special Ranking Rule’, which is an example of a maternity provision catering specifically for an individual sport where rankings are central to an individual’s ability to earn prize money and achieve success.

The Special Ranking Rule, which was first implemented in 2019, provides players ranked 1 -750 who have returned from maternity leave (or adoption or surrogacy leave) immediate opportunities to compete for higher prize money and ranking points – rather than having to start again from scratch – by letting them use a ‘special ranking’ for a specified number of tournaments (the number varying depending on the length of time off). The special ranking is the ranking the player had immediately prior to commencing her leave and can be used by the player in the fifty-two weeks from the date of her return to competition (although this period may be extended in certain instances). Its purpose is to ensure, to the extent possible, that players are not disadvantaged by virtue of becoming mothers.

Looking to the future, there have been calls for the WTA to provide players with a guaranteed minimum wage. This is a measure that is being introduced to the men’s ATP tour for the 2024 season as part of a three-year trial, following calls for a solution after many players (particularly lower ranked players) struggled to make ends meet during the Covid-19 pandemic. The ATP says that the financial support ‘will empower players to plan their seasons with greater certainty, focus on their game and invest in their teams. If introduced to the WTA tour, it will be interesting to see whether a maternity pay package of some sort will follow.

Rugby union

In February this year, the Rugby Football Union (RFU) announced a new ‘Maternity, Pregnant Parent and Adoption Leave’ policy for contracted England players, stating its intention to provide a ‘supportive environment for players after having children as well as establishing policies to support players during pregnancy’. Commenting on the process of producing the policy and noting, in particular, the importance of collaboration in that process, Angus Bujalski (RFU Executive Director of Legal & Governance) has said: ‘The aim was to produce a world-leading policy, and the key point was to build it in consultation with the playing group and with clubs. What we felt was important was not just certainty for the players, but also how the player, her club and the RFU would work together to ensure that there would be consistent support during and following pregnancy. This is very much the start of the journey and we expect all of this will develop in the coming years’.

Like the WTA, the RFU has sought to tailor its policy specifically to the sport. For example, the RFU policy recognises that the physicality of the game poses a risk to pregnant players, meaning that those players who wish to maintain their involvement in the sport whilst pregnant (having performed a full risk assessment) are supported into alternative employment within the rugby network until their leave begins. This accords with the UK Sport Pregnancy Guidance provided to sports governing bodies. The RFU maternity policy also provides for:

  • 26 weeks of fully paid leave, mirroring the financial packages commonly offered to employees outside of the sporting sector.
  • Paid travel and accommodation for children under 12 months, enabling new parents to travel to matches with their infants, together with provision for an allocated support person who will look after the infant during training and matches.
  • If contracts are due to be renegotiated or extended at any point during a player’s pregnancy and maternity leave, that player will have their contract extended for a period of not less than 12 months.

This is obviously a progressive approach by the RFU, although its coverage is necessarily limited to the truly elite international-level English players, and so other women rugby union players (e.g., those playing at club level in England, and those international players at other unions) might not enjoy such benefits (with support being dependent on what the individual club or union is able to offer). That said, it is reported that contracted New Zealand rugby players are also entitled to maternity leave benefits and that Rugby Australia will be paying contracted Wallaroos players in full while on maternity leave as part of a collective bargaining agreement.

Football

FIFA, the world governing body of football, first introduced a maternity policy[1] in January 2021 in the form of its Minimum Labour Conditions for Players. All member associations, including the Football Association (FA) in England, are responsible for the systematic implementation of the rules and regulations handed down by FIFA at national level.

Under FIFA’s policy, all players licensed by a member association are entitled to receive two thirds of their salary for a period of at least 14 weeks while on maternity leave. Players also have the right to return to football activity after the completion of their maternity leave, with the club under an obligation to reintegrate the player into football activity and provide adequate ongoing medical support. The policy further provides that if a club unilaterally terminates a contract on the grounds of a player being or becoming pregnant, being on maternity leave, or utilising rights related to maternity in general, the club will be deemed to have terminated the contract without just cause and will be subject to a variety of sanctions and fines imposed by FIFA. However, FIFA Senior Legal Counsel, Alexandra Bruinewoud, has said that FIFA’s policy is just a start, with further matters to address in the future including contract protection post-birth, regulation for adoption, leave for the non-bearing-child parent, as well as broader regulation post-maternity.

The FA initially followed the minimum standards prescribed by FIFA, but then introduced a new maternity policy for the 2022-23 season which aims to provide greater protection for players. Under the new policy (which forms a part of a club’s licensing agreement and must be offered to players by their club to ensure that the licence criteria are met), a player on maternity leave is paid 100% of her weekly wage by her club (as well as any other renumeration and benefits she would normally receive) for the first 14 weeks before reverting to the applicable statutory rate. While the period of full pay is less than that included in the RFU’s maternity policy, the FA’s policy is wider in scope because it applies to all footballers competing in the FA Women’s Super League (WSL) and FA Women’s Championship (Championship). Another feature of the FA’s 2022-23 maternity policy is that a player is entitled to maternity pay regardless of how long she has been employed by her club, in order to facilitate and account for the frequent movement of players between clubs – something that is not always in the player’s control. Previously, the FA had followed FIFA’s minimum standards where the maternity policy applied only to players who had been employed by their club for a minimum of 26 weeks.

It is important to note, however, that it is the individual football clubs that are ultimately responsible for implementing the FA’s maternity policy and accommodating their players’ needs. This means that there will be inevitable differences in the quality of the maternity packages and support provided to players, as resources can vary significantly between clubs (e.g. between those clubs in the WSL and those in the Championship). While it may be a real struggle for clubs with less resource to comply with the FA’s maternity policy and to provide suitable facilities (e.g. for breastfeeding, etc.), more affluent clubs may be able to offer comprehensive maternity packages and facilities that go well beyond the prescribed minimum standards. That said, following the decision involving Lyon and Sara Björk Gunnarsdóttir[2], whereby Gunnarsdóttir succeeded in a legal case against her former club Lyon, after it failed to pay her full salary to her during pregnancy until the start of her maternity leave, it should now be clear to all clubs that they must at the very least comply with the prescribed minimum standards applicable to players during pregnancy and maternity leave (whether that be those set by FIFA or higher standards prescribed by the national federation, such as the FA for clubs in England), otherwise there are likely to be consequences in the form of sporting sanctions. For example, any club found to have unilaterally terminated a contract on the grounds of a player becoming pregnant, being on maternity leave, or utilising rights related to maternity in general shall be banned from registering new female players, either nationally or internationally for two entire and consecutive registration periods – and in some instances they may also receive a fine.[3]

Tips for sports governing bodies and clubs on drafting maternity policies

As explained above, there is no ‘one size fits all’ approach to drafting a maternity policy. Nevertheless, it may be helpful for sports governing bodies and clubs to keep the following in mind when drafting or reviewing their maternity policies and support packages:

  • Consult and collaborate with your athletes to understand their wants and needs, for instance conducting surveys, running focus groups and obtaining feedback from athlete mothers on their experiences. Consider consulting with subject-matter experts and other sports governing bodies to learn from them and help shape policy and guidance.
  • Take a holistic approach, which has more than just money in mind (e.g. physical, emotional and practical support) and takes into account what the athletes need and want from the outset of their pregnancy right through to their first return to training, competition (domestic and international) and beyond.
  • Make the policy sport-specific and athlete-centric. Examples of sport-specific provisions include finding alternative roles for pregnant athletes participating in contact sports and making sure that those participating in individual sports do not have to work their way back from the bottom of the rankings simply because they have become a parent. An example of an athlete-centric policy is one that recognises that no athlete will have the same pregnancy or birth experience and that their return to the sport may therefore have a different timeline. Any post-natal goals should be specific to the athlete.
  • Draft policies sensitively and inclusively so that they apply to all types of parenthood (e.g. giving birth, surrogacy, adoption, etc.) and can cater for different types of pregnancy experiences and outcomes (e.g. miscarriages, still births). Also consider what support and provision can be made for the ‘other mother’ in cases where a player is the non-birthing parent.
  • Consider prescribing minimum standards for facilities to help create an environment that is inclusive for athlete mothers, e.g. a specified number of designated breastfeeding areas and baby-changing facilities at training grounds and competitions. Consider whether there is enough resource to provide childcare support at training and/or competitions.

[1]  Andrew Visnovsky, Manali Kulkarni, ‘How Will FIFA’s New Maternity Benefits Rules Impact U.S. Women’s Soccer?’, lawinsport.com, 24 Nov 2021, last accessed 23 Nov 2023, https://www.lawinsport.com/topics/item/how-will-fifa-s-new-maternity-benefits-rules-impact-u-s-women-s-soccer

[2] David Winnie, Manan Agrawal, Sean Cottrell, ‘FIFA’s Maternity Benefits For Female Players Enforced By Football Tribunal (Sara Björk Gunnarsdóttir v Lyon)’, lawinsport.com, 3 Feb 2023, last accessed 24 Nov 2023, https://www.lawinsport.com/topics/item/fifa-s-maternity-benefits-for-female-players-enforced-by-football-tribunal-sara-bjoerk-gunnarsdottir-v-lyon  Decision available here: https://digitalhub.fifa.com/m/7fa81ae621a4ebd0/original/Gunnarsdottir_19052022.pdf

[3] In accordance with FIFA’s Regulations on the Status and Transfer of Players (Section 6 – Special Provisions Relating to Female Players: Clause 3b, pg 36)

https://digitalhub.fifa.com/m/153157b40ca1dfd/original/Regulations-on-the-Status-and-Transfer-of-Players-March-2023-edition.pdf

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