Labour Disputes
Texto da decisão
REF. FPSD-14028
Decision of the
Dispute Resolution Chamber
passed on 13 June 2024
regarding an employment-related dispute concerning
the player Helio Junior Rossi Francino
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairperson
Angela Collins ( Australia), member
Laurel Vaurasi (Fiji), member
CLAIMANT:
Helio Junior Rossi Francino, Brazil
Represented by Breno Costa Ramos Tannuri
RESPONDENT:
Club PASA Irodotos FC, Greece
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REF. FPSD-14028
I. Facts of the case
1.
On 29 September 2022, the Greek club Pasa Irodotos FC (hereinafter: the Respondent or the
Club) and the Brazilian player Helio Junior Rossi Francino (hereinafter: the Claimant or the
Player) signed an employment contract valid as from the same date until 30 June 2024.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia the amount of EUR 14,500 net, broken down into 20 instalments as
follows:
3.
-
10 instalments in the amount of EUR 700 for the season 2022/2023, i.e. from 30
September 2022 until 30 June 2023;
-
10 instalments in the amount of EUR 750 for the season 2023/2024, i.e. from 30
September 2023 until 30 June 2024.
Furthermore, under art. 4.2 of the employment contract, the parties agreed on the
following additional remuneration in favour of the Player:
“In addition to the above monthly regular salaries, the Club is obliged to pay the Player a
Christmas gift (equal to the monthly regular salary) and an Easter gift (equal to half of the
monthly regular salary), as well as a holiday allowance (equal to half of the monthly regular
salary)”.
4.
During the season 2022/2023, the Club participated in the South-group of the GreekSuper League 2 (hereinafter: the League).
5.
On 2 February 2023 the League was suspended. Furthermore, on 6 April 2023, the Club
abandoned said competition.
6.
On 14 August 2023, the Club sent the Player a document named “Proof of Contract
Termination”, which reads as follows:
“lrodotos FC hereby certifies that player Rossi Francino Helio Junior with passport number (…) is
a free transfer and allowed to represent another club”.
7.
By correspondence dated 16 February 2024, the Claimant put the Respondent in default of
payment of EUR 17,375 setting a time limit expiring on 26 February 2024 in order to remedy
the default.
8.
On 15 January 2024, the Player and the Brazilian club Associação Atletica Coruripe, entered
into an employment contract valid from 4 January 2024 until 10 April 2024 (hereinafter: the
Coruripe Contract).
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REF. FPSD-14028
II. Proceedings before FIFA
9.
On 13 March 2024, the Player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
10. According to the Player, the Club failed to comply with its financial obligations as from the
very beginning of the employment contract, namely by failing to pay the first 10 monthly
salaries before the premature termination of the labour relationship on 14 August 2023.
11. Furthermore, the Player stated that, prior to the termination, the Club had also failed to
pay the relevant bonuses for Christmas 2022 and Easter 2023, as well as the respective
holiday allowances in relation to the months of July 2023 and August 2023 based on art.
4.2 of the employment contract.
12. In continuation, the Player held that the Club breached the employment contract without
just cause on 14 August 2023, arguing that the mere fact of abandoning a competition
could not justify the Club’s decision to prematurely terminate the labour relationship.
13. The Player therefore claimed a compensation in addition to the relevant outstanding
remuneration.
14. The requests for relief of the Claimant, accordingly, were the following:
-
EUR 7,000 as outstanding salaries from September 2022 until June 2023;
EUR 1,750 as contractual gifts and allowances under art. 4.2 of the employment
contract;
EUR 8,625 as compensation for breach of the employment contract by the Club without
just cause;
5% interest per annum over each amount claimed as from the relevant due date.
15. The Club failed to provide its response to the claim, in spite of having been invited to do
so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
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REF. FPSD-14028
took note that the present matter was presented to FIFA on 13 March 2024 and submitted
for decision on 13 June 2024. Taking into account the wording of art. 34 of the March 2023
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
17. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Brazilian player
and a Greek club.
18. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 13 March 2024, the February 2024 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
19. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
20. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
21. The foregoing having been established, the Chamber moved to the substance of the matter
and took note of the fact that on 29 September 2022 the Claimant and the Respondent
concluded an employment agreement that was valid until 30 June 2024.
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REF. FPSD-14028
22. Subsequently, the Chamber observed that the Claimant lodged a claim before FIFA for
overdue payables and breach of contract without just cause by the Respondent, arguing
that the latter unilaterally terminated the Contract on 14 August 2023.
23. In this context, the Chamber noted that the Respondent failed to present its response to
the claim of the Claimant, in spite of having been invited to do so. By not presenting its
position to the claim, the Chamber was of the opinion that the Respondent renounced its
right of defence and, thus, accepted the allegations of the Claimant. As such, the Chamber
confirmed that it shall make a decision on the basis of the documentation on file, that is,
the allegations and evidence put forward by the Claimant.
24. Consequently, after having thoroughly analysed the submission of the Claimant as well as
the documentation at his disposal, the Chamber deemed that the underlying question in
the present matter was whether the Respondent had terminated the contract with or
without just cause on 14 August 2023.
25. In this respect, the Chamber referred to the Football Tribunal’s well-established
jurisprudence and emphasised that, as a general rule, only a breach or misconduct which
is of a certain severity justifies the termination of a contract without notice. In other words,
only when there are objective criteria which do not reasonably permit to expect a
continuation of the employment relationship between the parties, a contract may be
terminated prematurely. Hence, if there are more lenient measures which can be taken in
order for an employer to ensure the employee’s fulfilment of his contractual duties, such
measures must be taken before terminating an employment contract. A premature
termination of an employment contract can only ever be an ultima ratio measure.
26. In this context, the Chamber acknowledged that, since the Respondent failed to provide
any grounds to justify the termination, this shall be deemed as having occurred without
just cause. As a consequence, the Chamber concluded that the Respondent shall be liable
to pay compensation to the Claimant for breach of contract.
ii. Consequences
27. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
28. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 10 salaries
under the contract, amounting to EUR 7,000.
29. Equally, the Chamber assessed that the Club also failed to pay the relevant bonuses and
allowances stipulated under art. 4.2 of the employment contract, for a total of EUR 1,750.
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REF. FPSD-14028
30. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e., EUR
8,750.
31. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from their respective due date until the date of
effective payment.
32. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Player by the Club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
33. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
34. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
35. Bearing in mind the foregoing as well as the claim of the Player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 8,625 (i.e., the residual value) serves as the basis for the
determination of the amount of compensation for breach of contract.
36. In continuation, the Chamber verified as to whether the Player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
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REF. FPSD-14028
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
37. Indeed, the player found employment with the Brazilian club Coruripe. In accordance with
the pertinent employment contract, the Player was entitled to approximately EUR 382 per
month. Therefore, the Chamber concluded that the player mitigated his damages in the
total amount of EUR 1,223, that is, 382 x 3,2.
38. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. However, in the case at hand, the Chamber ascertained that the
unilateral termination of the contract occurred by hand of the club, and therefore
confirmed that the player shall not be entitled to additional compensation.
39. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Club must pay the amount
of EUR 7,402 to the Player (i.e. EUR 8,625 minus EUR 1,223), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter.
40. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 15 August 2023 until the date of effective
payment.
iii. Sporting sanctions
41. Finally, the Chamber noted that on several occasions during the recent past the
Respondent had been held liable by the Football Tribunal for the early termination of the
employment contracts without just cause, namely in the following cases:
-
FPSD-11961 / Single Judge DRC decision of 13 December 2023
FPSD-10835 / Single Judge DRC decision of 4 August 2023
FPSD-6612 / Single Judge DRC decision of 17 August 2022
FPSD-6252 / Single Judge DRC decision of 3 August 2022
42. In this context, the Chamber wished to remark that the above cases constitute clear
evidence of how such misbehaviour by the Club appears to be a recurring issue.
43. In this context, the DRC referred to article 17 par. 4 of the Regulations, which establishes
that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed
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REF. FPSD-14028
on any club found to be in breach of contract or found to be inducing a breach of contract
during the protected period.
44. As to the protected period, this is defined in the Regulations as “a period of three entire
seasons or three years, whichever comes first, following the entry into force of a contract, where
such contract is concluded prior to the 28th birthday of the professional, or two entire seasons
or two years, whichever comes first, following the entry into force of a contract, where such
contract is concluded after the 28th birthday of the professional”.
45. In the present case, the player was born on 25 January 2000 and signed the employment
contract with the Respondent club on 29 September 2022, the protected period would last
3 entire seasons or 3 years (whichever came first), considering that the contract was signed
prior to the 28th birthday of the player.
46. Accordingly, considering that the breach in the case at hand occurred on 14 August 2023
and that - at that moment in time - neither 2 entire seasons nor 1 year had elapsed since
the date in which the contractual relationship started, by virtue of art. 17 par. 4 of the
Regulations, the Chamber decided that the Respondent shall be banned from registering
any new players, either nationally or internationally, for the next two entire and
consecutive registration periods following the notification of the present decision.
47. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
48. The Chamber further wished to remark that, aside from the aforementioned repeated
offences, such a sanction was equally merited in the present matter due to the Club’s
blatant breach of the employment contract, since the latter failed to comply with its
financial obligations to the Player from the very beginning of their employment
relationship. The DRC was of the unanimous opinion that such disregard and neglect from
a club towards its players has no place in professional football and shall be penalised
accordingly. On this note, the DRC remarked that the wording of the Regulations allows it
a significant degree of discretion in the application of sporting sanctions in every case
where the conditions of art. 17 par. 4 of the Regulations are met; that is, even if the
Respondent is not deemed a repeated offender, which is only one of multiple factors taken
into account by the DRC when deciding whether to impose sporting sanctions on a club. In
this instance, the Chamber is prepared to use this discretionary power given the serious
circumstances of the matter at hand.
49. Indeed, the DRC wished to underline that, as confirmed by the CAS on various occasions
(e.g. CAS 2014/A/3754 and CAS 2017/A/5056, 5069), the DRC’s policy to not impose sporting
sanctions in every single case where it has the power to do so, does not mean that it cannot
impose them in other situations where the prerequisites of art. 17 par. 4 are fulfilled and
the circumstances so warrant, such as in casu. Art. 17 par. 4 is sufficiently clear to fully
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REF. FPSD-14028
respect the principles of legality and predictability, which require that the connection
between the incriminating behaviour and the sanction must be clearly and previously
defined by law. Put differently, players and clubs must be aware – and are indeed put in a
position to be aware –that to breach a contract within the protected period may lead to
sporting sanctions being imposed by the DRC, especially when the relevant breach is so
blatant and unjustified as in the matter at hand.
50. For the sake of completeness, the Chamber recalled that in accordance with article 24 par.
3 lit. a) of the Regulations, the consequences for failure to pay relevant amounts in due
time may be excluded where the Football Tribunal has imposed a sporting sanction on the
basis of article 17 in the same case. Consequently, the Chamber confirmed that the
consequences for failure to pay relevant amounts in due time envisaged by art. 24 of the
Regulations were excluded in the present matter, and that should the Respondent fail to
timely comply with this decision, it would be for the FIFA Disciplinary Committee to adopt
the necessary measures in accordance with the FIFA Disciplinary Code.
d. Costs
51. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
52. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
53. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-14028
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Helio Junior Rossi Francino, is partially accepted.
2.
The Respondent, Club PASA Irodotos FC, must pay to the Claimant the following amount(s):
EUR 8,750 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 700 as from 1 October 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 700 as from 1 November 2022 until the
date of effective payment;
- 5% interest p.a. over the amount of EUR 700 as from 1 December 2022 until the
date of effective payment;
- 5% interest p.a. over the amount of EUR 700 as from 26 December 2022 until the
date of effective payment;
- 5% interest p.a. over the amount of EUR 700 as from 1 January 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 700 as from 1 February 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 700 as from 1 March 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 700 as from 1 April 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 350 as from 10 April 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 700 as from 1 May 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 700 as from 1 June 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 700 as from 1 July 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 350 as from 1 August 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 350 as from 1 September 2023 until the
date of effective payment;
EUR 7,402 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 15 August 2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
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REF. FPSD-14028
5.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
6.
If full payment (including all applicable interest) is not made within 30 days of notification
of this decision, the present matter shall be submitted, upon request of the Claimant, to
the FIFA Disciplinary Committee.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14028
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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