FIFA Adoption Policy is Discriminatory Under Certain U.S. Laws
On May 31, 2024, FIFA revised the Regulations on the Status and Transfer of Players to include minimum labor conditions for female players. FIFA instituted standards relating to: (1) adoption, (2) player rights in case of pregnancy, (3) Player support after child birth, (4) breastfeeding, (5) menstrual health, and (6) rights of female coaches. This blog focuses on FIFA’s minimum labor standard for adoption.
American clubs and leagues cannot rely only on FIFA standards when drafting policies as contracts as it could expose the entity to liability under federal, state or local law. Clubs must review applicable laws when it comes to adoption.
LET’S TAKE A LOOK AT THE FIFA ADOPTION POLICY…
FIFA’s adoption policy reads as follows:
A minimum period of 8 weeks paid absence granted to FEMALE PLAYER/COACH in case of adoption of a child who is younger than the age of two.
The period of paid absence is reduced to 4 weeks for a child between 2 and 4 years of age; and
2 weeks for a child who is older than the age of 4.
The adoption leave must be taken within 6 months of the date of formal adoption and cannot be accumulated with family leave for the same child.
It must be noted that FIFA put this policy out as a “minimum standard.” Sole reliance on these standards will result is risk to exposure under U.S. federal and state laws. Let’s dig a little deeper…
#1: FIFA ADOPTION POLICY EXCLUDES MEN AND NON-BINARY INDIVIDUALS
FIFA explains that “[t]he main object of the introduction of [adoption policy] is to reflect the reality of women’s football and to promote inclusivity by providing protection to female players desiring to have a family.” The organization goes further and explains that it recognizes the “different impact on the adoptive mother’s ability to work when compared to cases of biological maternity…” This policy does not mention male footballers or non-binary footballers who adopt a child.
In the U.S., there are various bodies of laws that cover discrimination in the workplace. Title VII is the federal law that prohibits discrimination based on gender identity, sexual orientation and sex. This law applies to employers with 15 or more employees. Clubs and Leagues must also consider state laws that often have lower employee thresholds. For the purposes of this blog, we’ll examine Title VII.
As discussed in a previous blog (found here) employers are exposed to liability when they implement policies that are discriminatory. Now, there are two ways that a policy can be discriminatory.
First, under a disparate treatment theory, a policy is discriminatory on its face. This is intentional discrimination, often evidenced by a policy that excludes members of a protected class.
Second, under a disparate treatment theory, the policy can be facially neutral but have a discriminatory impact.
BOTTOM LINE: Should a club or league simply rely on the FIFA adoption policy, they would be exposed under the disparate treatment. The FIFA adoption policy as written excludes men, rendering it discriminatory against men and non-binary employees.
Clubs must also remember that their off-pitch (back office) employees also are entitled to leave. Should a club only provide adoption leave to their female footballers and coaches, it discriminates against off-pitch employees (regardless of gender).
#2: REMEMBER FAMILY MEDICAL LEAVE ACT (FMLA)
Next, Clubs must remember FMLA. This is a federal law that provides for 12 weeks of unpaid job protected leave for adoption. This law applies to employers with 50 or more employees. For more information on FMLA, check out this blog. Again, clubs must remember that under FMLA, eligible employees (any gender) are entitled to leave for foster and adoption.
#3: CONSIDER STATE AND LOCAL LAWS
Lastly, Clubs and leagues must remember that there are state specific laws that address adoption and some of them include paid leave. A list of states with specific laws on this topic can be found here.
FINAL THOUGHTS…
The FIFA adoption policy is an attempt to support female footballers. American Clubs and Leagues must understand that they must operate in accordance with state and federal laws. As mentioned above, the policy as written is discriminatory on its face as it excludes men and non-binary individuals. Clubs must evaluate which laws apply to them (ie- FMLA, Title VII and state laws), and then draft policies accordingly.