Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 January 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Zola Majavu (South Africa), member
on the matter between the club,
Club A, Country B
as 1st Claimant / 2nd Respondent
and the player,
Player C, Country D
as 2nd Claimant / 1st Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 23 July 2012, the player from country D, Player C (hereinafter: the 2nd
Claimant / 1st Respondent or the player) and the club from country B, Club A
(hereinafter: the 1st Claimant / 2nd Respondent or the club) concluded an
employment contract (hereinafter: the contract) valid as of the date of
signature until 31 May 2014.
2.
According to the contract, the 2nd Claimant / 1st Respondent was entitled to
receive an annual remuneration of EUR 264,930 gross, i.e. EUR 220,000 net,
payable in eleven equal instalments as from 31 July until 31 May of the
following year on the last day of each month.
3.
Moreover, article 8 of the contract stipulates that “the Player undertakes to
devote his time towards fulfilling the obligations arising from this agreement
as well as the obligations that arise from his position as a member of the
football team of the Club”.
4.
Article 10 of the contract further states that “the Club reserves fully its rights
at any time to proceed to unilateral immediate termination of the contract in
case the Player is not having a normal, healthy and athletic life that is
reasonably expected from a professional player […] or in case the Player
consumes alcohol in a way that such consumption may affect the Players
physical or mental condition, skills and abilities as a professional player […]. In
such case, the Player will have no right to claim any compensation or damages
whatsoever”.
5.
In addition, Article 6 of the contract provides that “the player acknowledges
and accepts that he is fully bound by all Internal regulations, directions and
instructions of the Club […]. The Player acknowledges receipt of the Internal
Regulations of the club that are valid throughout the duration of the
agreement and until there are amended or modified”.
6.
In this regard, article 6 of said internal regulations states, inter alia, that “any
injuries or health problems will be reported immediately, firstly to the team
doctor and then to the trainer and to the responsible person for the team. The
team doctor is solely responsible for regulating the player’s medical
appointment. […] In case of the above regulations are breached then the
board of directors reserves the right to impose any financial and/or
administrative penalties according to its discretion”.
7.
Furthermore, article 8 of the aforementioned internal regulations stipulates
that ”Players must take care of their off field lifestyle. For this reason there is a
Club A, Country B / Player C, Country D
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curfew during the night at reasonable hours and time depending on the
Teams’ commitment. The designated timetable is fixed to be curfew after the
24.00 for all players and for ill or injured players maximum until 23.00. […] Any
violation of the above mentioned is punishable with financial and/or
administrative penalties left to that board of directors discretion”.
8.
On 4 August 2013, the 2nd Claimant / 1st Respondent provided the 1st Claimant /
2nd Respondent with a medical certificate delivered by a hospital located in
country B, granting him a sickness leave until 11 August 2013 due to a
psychological disorder.
9.
After several exchanges of correspondence between the 2nd Claimant / 1st
Respondent and the 1st Claimant / 2nd Respondent, a Disciplinary Committee
meeting was scheduled to be held on 12 August 2013. In this respect, the 1st
Claimant / 2nd Respondent reproached the 2nd Claimant / 1st Respondent for
having gone out late on several occasions and, in particular, until 5 a.m. on 27
July 2013, which constitutes, according to the 1st Claimant / 2nd Respondent, a
non-sportsmanlike behaviour violating art. 6 and 10 of the contract as well as
art. 8 of the internal regulations. In support of its assertion, the 1st Claimant /
2nd Respondent attached two statements made by employees of a night club.
The 1st Claimant / 2nd Respondent also put forward that the 2nd Claimant / 1st
Respondent did not attend previous disciplinary meetings, and therefore
prevented them from taking place, in spite of having been duly notified by
hand and e-mail. In this respect, the 1st Claimant / 2nd Respondent specified
that the 2nd Claimant / 1st Respondent refused to receive phone calls as well as
notifications and insulted members of its staff who were in charge of the
notification process. Finally, the 1st Claimant / 2nd Respondent raised the fact
that the 2nd Claimant / 1st Respondent breached art. 6 of the internal
regulations since he did not consult the club’s doctor before going to a
hospital in country B. Moreover, the 1st Claimant / 2nd Respondent produced a
medical report drafted by its doctor questioning the alleged 2nd Claimant / 1st
Respondent’s psychological disorder.
10.
On 11 August 2013, the 2nd Claimant / 1st Respondent’s representative
submitted a new medical certificate delivered by a hospital located in Country
B, granting a sickness leave until 13 August 2013, as well as the 2nd Claimant /
1st Respondent’s written position as to the disciplinary procedure since he was
medically unable to attend the meeting. In this regard, the 2nd Claimant / 1st
Respondent first of all acknowledged having been to the night club but
sustained that he had just a drink and left much earlier than 5 a.m., which did
not constitute a behaviour sanctioned by art. 10 of the contract. In
continuation, the 2nd Claimant / 1st Respondent explained that he had received
no notification before 4 August 2013 and therefore could not have insulted
Club A, Country B / Player C, Country D
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the staff members. Finally, the 2nd Claimant / 1st Respondent stated, as he did in
a previous correspondence, that he went to a hospital in country B because he
was in a city of country B when he felt faint and that tried to contact the 1st
Claimant / 2nd Respondent’s doctor from there, however to no avail.
11.
On 12 August 2013, the Disciplinary Committee decided to terminate the
contract. In support of its decision, the Committee pointed out that the 2nd
Claimant / 1st Respondent “showed a blatant and repeated disrespect to his
contractual obligations namely clauses 6, 8 and 10 of [the contract] and
Articles 4, 6, 8 and 9 of the Club’s internal Regulation as well as his attitude
and behavior towards the club internal regulation and club officers”. The
grounds of the decision were notified to the 2nd Claimant / 1st Respondent on
20 August 2013.
12.
On 9 September 2013 and 18 December 2013, the 2nd Claimant / 1st Respondent
sent correspondence to the 1st Claimant / 2nd Respondent challenging the
decision and requesting compensation for the unilateral termination of the
contract without just cause, which was rejected by the 1st Claimant / 2nd
Respondent.
13.
On 3 February 2014, the 1st Claimant / 2nd Respondent lodged a claim in front
of FIFA against the 2nd Claimant / 1st Respondent, requesting to be awarded
the following amounts:
- EUR 285,155, plus 5% interest as of 12 August 2013, broken down as
follows:
o EUR 264,930 as residual value of the contract;
o EUR 19,225 as non-amortised agent fees;
- EUR 50,000 as moral damages;
- EUR 10,000 as legal costs.
14.
In its claim, the 1st Claimant / 2nd Respondent reiterates the arguments exposed
prior to the Disciplinary Committee meeting. In addition, the 1st Claimant / 2nd
Respondent insists that it has always behaved with good will by accepting on
various occasions to postpone the disciplinary meeting. On the contrary, the 1st
Claimant / 2nd Respondent stresses that the 2nd Claimant / 1st Respondent has
showed bad faith and defiance, in particular when he went to a hospital
located in country B. Finally, the 1st Claimant / 2nd Respondent asserts that the
2nd Claimant / 1st Respondent’s behaviour was aimed at being released from his
contractual obligations.
15.
On 30 April 2014, the 2nd Claimant / 1st Respondent lodged a claim in front of
FIFA against the 1st Claimant / 2nd Respondent for breach of contract,
requesting to be awarded the following amounts:
Club A, Country B / Player C, Country D
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- EUR 200,000 corresponding to the residual value of the contract;
- EUR 18,180 corresponding to ten instalments of EUR 1,818 paid as house
allowances;
- EUR 20,000 corresponding to the bonus granted for the title at the end of
the 2012-2013 season;
- EUR 120,000 as physical, moral and professional damages.
- EUR 10,000 as attorney fees;
- A penalty of EUR 250 per day of delay until the date of effective payment.
16.
In his claim, the 2nd Claimant / 1st Respondent first of all outlines that the 1st
Claimant / 2nd Respondent’s attitude towards him changed after he refused a
reduction of wage in spring 2013.
17.
In continuation, the 2nd Claimant / 1st Respondent analyses the reasons put
forward by the 1st Claimant / 2nd Respondent in order to justify the termination
of the contract. In this regard, the 2nd Claimant / 1st Respondent points out that
the decisive reason is actually the violation of art. 10 of the contract and
asserts that he has never fallen under one of the situations referred to in said
article. In particular, the 2nd Claimant / 1st Respondent highlights that it cannot
be deemed that on 27 July 2013, he consumed alcohol “in a way that may
affect his physical or mental condition, skill and abilities” since he just had one
drink in a restaurant/club and behaved correctly. As to this event, the 2nd
Claimant / 1st Respondent also stresses that the 1st Claimant / 2nd Respondent
would not have waited for one week, i.e. until 4 August 2013, before initiating
a disciplinary procedure if it had considered the behaviour sufficiently serious
as to justify a termination of the contract.
18.
The 2nd Claimant / 1st Respondent further acknowledged having refused the
notifications by hand but justified them by his will to safeguard his rights of
defence. However, the 2nd Claimant / 1st Respondent asserts that he requested
the 1st Claimant / 2nd Respondent to send the notifications by means of
registered mail.
19.
Moreover, the 2nd Claimant / 1st Respondent rejected the 1st Claimant / 2nd
Respondent’s assertions that he would have refused to take phone calls and
would have insulted 1st Claimant / 2nd Respondent’s members.
20.
Finally, the 2nd Claimant / 1st Respondent argues that on 2 and 3 August 2014,
the 1st Claimant / 2nd Respondent’s management gave the instruction to refuse
him the access to the medical and training facilities of the club.
21.
In light of the foregoing, the 2nd Claimant / 1st Respondent concludes that the
1st Claimant / 2nd Respondent terminated the contract without just cause.
Club A, Country B / Player C, Country D
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22.
In its comments on the 2nd Claimant / 1st Respondent’s claim, apart from
reiterating its previous argumentation, the 1st Claimant / 2nd Respondent
sustains that the 2nd Claimant / 1st Respondent had undertaken negotiations
with the Club E which is the reason why he was trying to be released from his
contractual obligations towards the 1st Claimant / 2nd Respondent.
23.
In its reply to the 1st Claimant / 2nd Respondent’s claim, the 2nd Claimant / 1st
Respondent first of all questions the legality of imposing a curfew. The 2nd
Claimant / 1st Respondent further stresses on the exemplary nature of his
behaviour all along his career and sustains that the 1st Claimant / 2nd
Respondent did not submit relevant evidence that he breached it on 27 July
2013.
24.
In continuation, the 2nd Claimant / 1st Respondent rejects the assertions of
defiance and explains that when he felt faint he was in the occupied territory,
which is the only reason why he went to a hospital located in this territory.
25.
Finally, the 2nd Claimant / 1st Respondent asserts that should the DRC award
him compensation, it should take into consideration the net residual value of
the contract and not the gross one.
26.
Upon request, the 2nd Claimant / 1st Respondent informed FIFA that he had not
signed any new employment contract after the termination of his contract
with the 1st Claimant / 2nd Respondent.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 3 February 2014. Consequently, the 2012 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) are applicable to the
matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2014), the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute with
Club A, Country B / Player C, Country D
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an international dimension between a player from country D and a club from
country B.
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (edition 2012 and 2014), and considering that the claim of
the 1st Claimant / 2nd Respondent was lodged on 3 February 2014 and the claim
of the 2nd Claimant / 1st Respondent, on 30 April 2014, the 2012 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber
started by acknowledging the above-mentioned facts as well as the
documentation contained in the file. However, the Chamber emphasised that
in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
First of all, the members of the Chamber acknowledged that, on 23 July 2012,
the 1st Claimant / 2nd Respondent and the 2nd Claimant / 1st Respondent had
concluded an employment contract valid until 31 May 2014.
6.
The Chamber further observed that the 2nd Claimant / 1st Respondent lodged a
claim in front of FIFA against the 1st Claimant / 2nd Respondent, asserting that
the club had not fulfilled its contractual obligations towards him. More
specifically, the 2nd Claimant / 1st Respondent indicates that on 12 August 2013,
the 1st Claimant / 2nd Respondent terminated the contractual relationship on
the basis of his alleged misbehaviour by means of a disciplinary decision taken
by its Disciplinary Committee.
7.
In continuation, the Chamber took note that the 1st Claimant / 2nd Respondent
insists that it terminated the contract on the basis of valid reasons, since the
2nd Claimant / 1st Respondent “showed a blatant and repeated disrespect to his
contractual obligations” and that it should therefore be entitled to receive
compensation. In particular, the 1st Claimant / 2nd Respondent explains that on
27 July 2013, the 2nd Claimant / 1st Respondent went out and had drinks till 5
a.m. in spite of his obligations imposed as per the contract and the internal
regulations. In addition, the 1st Claimant / 2nd Respondent holds that the 2nd
Respondent / 1st Claimant disrespected several members of its staff and did not
resort to its medical staff in violation of his contractual obligations.
Club A, Country B / Player C, Country D
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8.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the respective claims of both
parties, was to determine whether the employment contract had been
unilaterally terminated with or without just cause by the 1st Claimant / 2nd
Respondent, and which party was responsible for the early termination of the
contractual relationship in question. The DRC also underlined that,
subsequently, if it were found that the employment contract was breached by
one of the parties without just cause, it would be necessary to determine the
consequences for the party that caused the unjust breach of the relevant
employment contract.
9.
In view of the above, the Chamber subsequently went on to deliberate as to
whether the 2nd Claimant / 1st Respondent’s alleged serious misconduct, which
is invoked by the 1st Claimant / 2nd Respondent, can be considered as a just
cause for the 1st Claimant/ 2nd Respondent to prematurely terminate the
employment relationship.
10.
In this context, the Chamber was eager to recall that only a breach or
misconduct which is of a certain severity justifies the termination of a contract.
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 fulfillment 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.
11.
In continuation, the members of the DRC turned their attention to the reasons
put forward by the 1st Claimant / 2nd Respondent in order to justify the
termination, i.e. the alleged 2nd Claimant / 1st Respondent’s misconduct. In
doing so, the DRC observed that the 1st Claimant / 2nd Respondent submitted,
in support of its assertions, various witness statements made by officials of its
own organisation as well as by alleged bouncers of a night club. In this regard,
the Chamber deemed it fit to outline that the positions occupied by the
witnesses put in doubt the impartiality of their statements and therefore, after
making reference to art. 12 par. 3 and par. 6 of the Procedural rules, according
to which any party claiming a right on the basis of an alleged fact shall carry
the burden of proof and the evidence shall be considered with free discretion
respectively, concluded that the 1st Claimant / 2nd Respondent did not
satisfactorily carry the burden of proof regarding the player’s misconduct.
12.
In addition, and should these facts be satisfactorily evidenced, quod non, the
Chamber wished to underline that the 1st Claimant / 2nd Respondent neither
Club A, Country B / Player C, Country D
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asserts that the 2nd Claimant / 1st Respondent has already been sanctioned in
the past for such a behaviour nor submits evidence in this regard.
Consequently, the Chamber was of the firm opinion that the Respondent did,
in any case, not have just cause to prematurely terminate the employment
contract with the Claimant, since such alleged breach could not have been
legitimately considered as being severe enough to justify the termination of
the contract, and that there would have been more lenient measures to be
taken (e.g., among others, a suspension or a fine) in order to sanction the 2nd
Claimant / 1st Respondent if he had actually misbehaved.
13.
On account of the above, the Chamber decided that the 1st Claimant / 2nd
Respondent had no just cause to unilaterally terminate the employment
relationship between the 2nd Claimant / 1st Respondent and the 1st Claimant /
2nd Respondent and, therefore, concluded that the 1st Claimant / 2nd
Respondent had terminated the employment contract without just cause on 12
August 2013 and that, consequently, the 1st Claimant / 2nd Respondent is to be
held liable for the early termination of the employment contact without just
cause.
14.
Consequently, the Chamber decided to accept the 2nd Claimant / 1st
Respondent’s claim with regards to the 1st Claimant / 2nd Respondent’s breach
of contract without just cause and, thus, rejected the 1st Claimant / 2nd
Respondent’s claim.
15.
Having established that the 1st Claimant / 2nd Respondent is to be held liable
for the early termination of the employment contract, the Chamber focused its
attention on the consequences of such termination. Taking into consideration
art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is
entitled to receive from the Respondent an amount of money as compensation
for breach of contract in addition to any outstanding payments on the basis of
the relevant employment contract.
16.
At this stage, the DRC reverted to the 2nd Claimant / 1st Respondent claim,
which includes EUR 20,000 as outstanding bonus granted for the title at the
end of the 2012-2013 season and pointed out that the latter failed to provide
any documentary evidence that he was actually entitled to this bonus. As a
result, and after making reference one more time to the content of art. 12 par.
3 of the Procedural Rules, the members of Chamber decided to reject the 2nd
Claimant / 1st Respondent’s claim in this regard. Accordingly, the Chamber held
that no outstanding amount was due to the 2nd Claimant / 1st Respondent.
17.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing
Club A, Country B / Player C, Country D
Page 9 of 12
so, the members of 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 Claimant 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.
18.
In application of the relevant provision, the Chamber held that it first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
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.
19.
As consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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 nonexhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
20.
Bearing in mind the foregoing as well as the claim of the 2nd Claimant / 1st
Respondent, the Chamber proceeded with the calculation of the monies
payable to the Claimant under the terms of the employment contract until 31
May 2014. In this respect, the members of the Chamber stressed that the 2 nd
Claimant / 1st Respondent’s claim for housing allowances did not rest upon any
contractual basis and thus concluded that the amount of EUR 200,000 shall
serve as the basis for the final determination of the amount of compensation
for breach of contract
21.
In continuation, the Chamber verified as to whether the Claimant had signed
an employment contract with another club during the relevant period of time,
by means of which he would have been able to reduce his loss of income.
According to the constant practice of the DRC, 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. In this regard, the Chamber noted
that the 2nd Claimant / 1st Respondent did not sign an employment contract
with another club during the relevant period of time
Club A, Country B / Player C, Country D
Page 10 of 12
22.
In view of all of the above, the Chamber decided that the 1st Claimant / 2nd
Respondent must pay the amount of EUR 200,000 to the 2nd Claimant / 1st
Respondent as compensation for breach of contract without just case, which is
considered by the Chamber to be a reasonable and justified amount as
compensation.
23.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for moral damages in the amount of EUR 50,000. In this regard,
the Chamber deemed it appropriate to point out that the request for said
compensation presented by the Claimant had no legal or regulatory basis and
pointed out that no corroborating evidence had been submitted that
demonstrated the damage suffered or its quantity.
24.
Furthermore, the Chamber held that the 2nd Claimant / 1st Respondent’s claim
pertaining to legal expenses is rejected in accordance with art. 18 par. 4 of the
Procedural Rules and the Chamber’s respective longstanding jurisprudence.
25.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the 2nd Claimant / 1st
Respondent is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the 1st Claimant / 2nd Respondent, Club A, is rejected.
2.
The claim of the 2nd Claimant / 1st Respondent, Player C, is partially accepted.
3.
The 1st Claimant / 2nd Respondent has to pay to the 2nd Claimant / 1st
Respondent, within 30 days as from the date of notification of this decision
the amount of EUR 200,000.
4.
In the event that the aforementioned amount is not paid within the stated
time limit, interest at the rate of 5% p.a. will apply as of the expiry of the
stipulated time limit and the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for its consideration and a formal decision.
5.
Any further claim lodged by the 2nd Claimant / 1st Respondent is rejected
Club A, Country B / Player C, Country D
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6.
The 2nd Claimant / 1st Respondent is directed to inform the 1st Claimant / 2nd
Respondent immediately and directly of the account number to which the
remittance is to be made and to notify the Dispute Resolution Chamber of
every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS directives
Club A, Country B / Player C, Country D
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