Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 29 July 2016,
in the following composition:
Geoff Thompson (England), Chairman
Santiago Nebot (Spain), member
John Bramhall (England), member
Guillermo Saltos Guale (Ecuador), member
Wouter Lambrecht (Belgium), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 January 2015, the player from country B, Player A (hereinafter: the
Claimant), and the club from country D, Club C (hereinafter: the Respondent)
signed an employment contract (hereinafter: the contract) valid as from the
date of signature until 31 May 2016.
2.
In accordance with the contract, the Claimant was entitled to the following
remuneration:
3.
4.
EUR 5,375 gross for the 2014-2015 season payable in 5 instalments of
EUR 1,075 with a 90 days grace period. The first instalment was
supposed to be paid on 31 January 2015 and the last one on 31 May
2015;
EUR 14,000 gross for the 2015-2016 season payable in 10 instalments of
EUR 1,400 with a 90 days grace period. The first instalment was
supposed to be paid on 31 August 2015 and the last one on 31 May
2016.
On 2 January 2015, the Claimant and the Respondent signed a document titled
“Agreement” (hereinafter: the agreement) by means of which the Respondent
undertook the obligation to pay the Claimant, inter alia, additional
remuneration, as follows:
EUR 20,000 for the 2014-2015 season payable in 5 instalments of EUR
4,000 with a 90 days grace period. The first instalment was supposed to
be paid on 31 January 2015 and the last one on 31 May 2015;
EUR 37,000 for the 2015-2016 season payable in 10 instalments of EUR
3,700 with a 90 days grace period. The first instalment was supposed to
be paid on 31 August 2015 and the last one on 31 May 2016;
A bonus payment of EUR 5,000, if the Respondent remained in the first
division “in the season 2014/2015”.
On 28 August 2015, the Claimant lodged a claim against the Respondent
before FIFA for outstanding remuneration and breach of contract without just
cause, requesting the amount of USD 72,500, composed as follows:
EUR 17,500 as outstanding remuneration corresponding to alleged
partial outstanding salary for the month of February 2015, in the
amount of EUR 2,500, plus alleged outstanding remuneration for the
Player A, country B / Club C, country D
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months of March, April and May 2015, in the amount of EUR 5,000,
each;
EUR 50,000 as compensation for breach of contract, corresponding to
the remuneration for the 2015-2016 season from August 2015 until May
2016;
Alleged outstanding payment of EUR 5,000, corresponding to the bonus
payment due in case the Respondent remained in the first division, in
accordance with the agreement;
Payment of “Interest rate on the above amounts”;
Unspecified amount for “legal fees of the present claim” and any other
remedy FIFA’s Dispute Resolution Chamber deems appropriate.
5.
The Claimant sustained that, on 3 July 2015, he sent a letter to the Respondent
through his legal representative, requesting the payment of the alleged partial
outstanding remuneration corresponding to the month of February 2015, in
the amount of EUR 2,500, plus the alleged outstanding salary for the month of
March 2015, in the amount of EUR 5,000, since the grace period of 90 days had
already elapsed. The Claimant gave a 3 days deadline to the Respondent to
settle the alleged debt, informing the Respondent that if no payment was
received before the deadline given, he would then terminate the contract
between the parties.
6.
On 7 July 2015, the Claimant terminated the contract in writing, stressing that
the Respondent failed to pay the alleged debt and therefore, he was
terminating the contract with just cause.
7.
In his claim, the Claimant stated that as the Respondent did not react to the
termination notice, it accepted that the Claimant terminated the contract with
just cause. The Claimant further argued that the Respondent failed to
“complete with a major part of its obligation”, since it failed to pay all the
remuneration due until the date in which the claim was lodged, i.e. the
alleged partial payment for February 2015, the months of March, April and
May 2015, plus the bonus payment specified in the agreement.
8.
The Claimant explained that his salary in accordance with both the contract
and the agreement, consisted in EUR 5,000 net per month for the 2014-2015
season, after the deduction of “the Governance’s obligation”, payable in 5
instalments, with the first one due on 31 January 2015 and the last one on 31
May 2015. The Claimant acknowledged that in accordance with the contract
and the agreement, there is a grace period of 90 days for payment.
Player A, country B / Club C, country D
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9.
In this respect, the Claimant sustained that the grace period of 90 days for
payment, is a “one sided clause” which puts him in considerable disadvantage.
Nonetheless, the Claimant held that even if this clause is considered valid, the
the grace period had already elapsed in respect to his salary for February and
March 2015, at the time of termination of the contract.
10.
Finally, the Claimant declared that “by not having paid on time the
outstanding salaries” the Respondent should be found in breach of its
contractual obligations. The Claimant concluded that, in consequence, he was
entitled to terminate the contract with just cause, and the Respondent should
be held liable for the early termination of the contract.
11.
In its reply, the Respondent rejected the Claimant’s claim. First, it argued that
it paid the amount in respect to the alleged outstanding remuneration at the
time of termination, i.e. the partial salary for February 2015 and the monthly
salary for March 2015, in the total amount of EUR 7,500. In this respect, the
Respondent sustained that said amount was deposited at the Football
Association of country D on 2 June 2015, during the grace period of 90 days
and 35 days before the Claimant’s termination of the contract. The
Respondent sustained that the amount was deposited at the Football
Association of country D because the Claimant refused to receive his salaries
despite “numerous calls to do so”.
12.
The Respondent explained that, on 10 August 2015, it sent an email to the
Claimant requesting him to return to the trainings of the team. Furthermore,
the Respondent sustained that the Claimant replied to this email on 19 August
2015, insisting that his termination was lawful.
13.
Moreover, the Respondent sustained that it sent another email to the Claimant
on 25 August 2015, where it explained the Claimant that his salaries were
deposited at the Football Association of country D, while the grace period of
90 days was running, and requesting him to come back to trainings.
14.
The Respondent held that the Claimant “behaved in that way because his wish
was to be transferred to another club in country B”. In this respect, the
Respondent explained that the Football Association of country D received an
International Transfer Certificate (ITC) request from the club from country B,
Club E, where it is stated that the Claimant signed a contract with said club on
11 August 2015.
15.
In this regard, the Respondent explained that, by means of a letter dated 16
September 2015, addressed to the Football Association of country D, it
expressed that it had “no objection for the grant to the requested ITC”, as it
accepted “[the Claimant]’s wishes to be transferred to another club in country
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B”, although the Respondent “expressed its disappointment for [the
Claimant]’s unprofessional behaviour towards [the Respondent]”.
16.
The Respondent held that, during the 90 days grace period, it deposited the
total amount of EUR 10,000 at the Football Association of country D,
corresponding to the months of April and May 2015, in the amount of EUR
5,000 each, on 31 July 2015 and 31 August 2015, respectively.
17.
Subsequently, the Respondent sustained that it sent a letter to the Claimant’s
representative in which it informed him that the Claimant refused to receive
his salaries, which were deposited at the Football Association of country D and
that it was the Respondent’s policy to “not force player to stay in its roster”
and therefore, “it gave its permission to [the Claimant] to be transferred to the
club of his choice in country B”. In this respect, the Respondent held that the
Claimant’s representative replied in writing on 23 September 2015, arguing
that the Claimant was not informed that his salaries were deposited at the
Football Association of country D.
18.
Finally, the Respondent declared that it had deposited the bonus payment of
EUR 5,000 on 24 September 2015 at the Football Association of country D.
19.
The Claimant, on his part, on 8 February 2016, requested an extension of the
deadline to provide his replica. In this respect, on 9 February 2016, the FIFA
administration granted an extension of the deadline until 19 February 2016, as
the request was received before the time limit expired, and reminded the
Claimant that an extension of 10 days may be granted only once, in
accordance with the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber – Edition 2015.
20.
On 19 February 2016, the Claimant requested a second extension of the
deadline to submit his replica. In this regard, the FIFA administration informed
the Claimant that, in accordance with its previous communication, as well as
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber – Edition 2015, an extension of the time limit may
only be granted once, and therefore, another deadline extension could not be
granted. In consequence, the FIFA administration informed the parties that the
investigation-phase of the present matter was now closed.
21.
According to the information contained in the Transfer Matching System
(TMS), the Claimant signed a contract with the club from country B, Club E,
valid as from 11 August 2015 until 30 June 2016, according to which he is
entitled to receive 12 monthly instalments of EUR 973 each.
II.
Considerations of the Dispute Resolution Chamber
Player A, country B / Club C, country D
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1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, the DRC took note that the present matter was
submitted to FIFA on 28 August 2015. Consequently, the Chamber concluded
that the 2015 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2015
editions of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 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 2016) the DRC would
be competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a
player from country B and a club from country D.
3.
The competence of the Chamber having been established, the Chamber
analysed which edition of the Regulations on the Status and Transfer of
Players 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 (editions 2015 and 2016), and considering
that the present matter was submitted to FIFA on 28 August 2015, the 2015
edition of the aforementioned regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
Having established the foregoing, and entering into the substance of the
matter, the Chamber continued by acknowledging the above-mentioned facts
as well as the documentation contained in the file in relation to the substance
of the matter. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary
evidence which it considered for the assessment of the matter at hand. In
particular, the Chamber recalled that in accordance with art. 6 par. 3 of
Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or
evidence generated or contained in the Transfer Matching System (TMS).
5.
In this respect, the DRC acknowledged that the parties signed an employment
contract valid as from 1 January 2015 until 31 May 2016. The DRC noted that
according to the contract, the Claimant was entitled to receive, inter alia,
remuneration in the amount of EUR 5,375 for the 2014-2015 season, payable in
5 instalments of EUR 1,075 each, with a grace period of 90 days, the first of
which was due on 31 January 2015 and the last one was due on 31 May 2015.
Furthermore, for the 2015-2016 season, EUR 14,000, to be paid in ten
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instalments of EUR 1,400 each, with a grace period of 90 days, the first of
which was due on 31 August 2015 and the last was one due on 31 May 2016.
6.
Moreover, the Chamber took note that the parties signed the agreement on 2
January 2015, according to which the Respondent undertook to pay to the
Claimant, inter alia, EUR 20,000 for the 2014-2015 season, payable in 5
instalments of EUR 4,000 each, with grace period of 90 days, the first of which
was due on 31 January 2015 and the last one was due on 31 May 2015.
Furthermore, for the 2015-2016 season, the amount of EUR 37,000 as
remuneration to be paid in ten instalments of EUR 3,700 each, with grace
period of 90 days, the first of which was due on 31 August 2015 and the last
one was due on 31 May 2016. Moreover, the amount of EUR 5,000 for bonus
payment if the Respondent remained in the first division “in the season
2014/2015”.
7.
The Chamber further observed that the Claimant had lodged a claim before
FIFA against the Respondent seeking payment in the total amount of EUR
72,500, corresponding to outstanding remuneration for the months of
February 2015 until May 2015, outstanding bonus payment in the amount of
EUR 5,000, as well as compensation for breach of contract and an unspecified
amount for legal fees.
8.
In this respect, the Chamber paid due consideration to the fact that on 3 July
2015, the Claimant put the Respondent in default, requesting the payment of
alleged outstanding remuneration corresponding to the partial unpaid salary
for the month of February 2015, in the amount of EUR 2,500, and the salary
for the month of March 2015, in the amount of EUR 5,000, since according to
the Claimant, the grace period of 90 days had already elapsed. In this respect,
the DRC observed that the Claimant gave the Respondent a 3 days deadline to
settle the alleged debt, informing it that otherwise he would terminate the
contract.
9.
The members of the Chamber took note that the Claimant held that his
monthly salary for the 2014-2015 season, in accordance with both the contract
and the agreement, consisted in EUR 5,000, payable in 5 instalments with a
grace period of 90 days, the first one due on 31 January 2015 and the last one
was due on 31 May 2015, assertion that was not disputed or contested by the
Respondent.
10.
Subsequently, it was duly noted by the DRC that on 7 July 2015, the Claimant
had terminated the contractual relationship, based on the Respondent’s
alleged failure to settle the debt. In addition, the DRC noted that the Claimant
was of the opinion that the grace period of 90 days which is stipulated in both
the contract and the agreement, is a one-sided clause which puts him in
considerable disadvantage with the Respondent. Moreover, the DRC took note
Player A, country B / Club C, country D
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of the Claimant’s allegation to have had just cause to terminate the contract,
due to the Respondent’s lack of payment of the outstanding salaries and that
thus, the latter is to be held liable for the payment of compensation for breach
of contract.
11.
Subsequently, the Chamber noted that, on the other hand, the Respondent
argued that the Claimant did not have just cause to terminate the contract, as
according to it, the outstanding remuneration was paid to the Claimant before
the termination of the contract on 7 July 2015. In this respect, it was duly
observed by the DRC that the Respondent held that since the Claimant refused
to receive his salaries, it deposited the outstanding remuneration due to the
Claimant, corresponding to the partial salary for February 2015 and March
2015 in the amount of EUR 7,500, at the Football Association of country D on 2
June 2015.
12.
Having established the aforementioned, the Chamber concluded that the
underlying issue in this dispute, was to determine whether the employment
contract had been unilaterally terminated with or without just cause by the
Claimant and which party was responsible for the early termination of the
contractual relationship in question.
13.
In view of the above, the members of the DRC turned their attention to the
assertion of the Respondent that the reason that it deposited the outstanding
remuneration at the Football Association of country D, instead of paying the
Claimant directly, was due to the Claimant refusing to receive his salaries. In
this respect, the DRC recalled the contents of 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 took note that the
Respondent did not submit any evidence supporting its allegation, and
therefore, concluded that such reasoning could not be followed.
14.
In continuation, the Chamber observed that the Respondent held that the
outstanding remuneration was deposited within the grace period of 90 days
and 35 days before the termination of the contract, on 2 June 2015. In this
regard, the Chamber was eager to emphasize that there is no evidence on file
that the Respondent informed the Claimant that his salaries had been
deposited at the Football Association of country D before the date of
termination, i.e. 7 July 2015, as the Respondent only submitted evidence that it
first contacted the Claimant on 10 August 2015. Therefore, the Respondent’s
argument that the player refused to receive his salaries cannot be upheld.
15.
At this stage, the DRC recalled that according to the contract and the
agreement, the monthly instalments are due on the “last day” of each month
“with a grace period of 90 days”.
Player A, country B / Club C, country D
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16.
Subsequently, the Chamber observed that said wording was included in the
contract and the agreement as a result of mutual consent of the parties and,
therefore, its legal consequences were accepted by the Claimant. In addition,
the Chamber recalled that the inclusion of such stipulations in a contract,
regarding the payment date of remuneration, is not prohibited by the FIFA
Regulations.
17.
Consequently, the DRC determined that the grace period for the payment of
salaries validly established by the free will of the parties in the contract and
the agreement, is applicable to the matter at hand.
18.
In this respect, the DRC recalled, as has been confirmed by the Court of
Arbitration for Sport (CAS), that although a grace period is generally not
contrary to the Regulations, the commencement date for determining how
long a club has been in breach of contract will still be the original due date for
salary, i.e. the end of each month in the matter at hand.
19.
On account of the above-mentioned considerations, the Chamber concluded
that, at the time the contract was terminated by the Claimant, i.e. on 7 July
2015, the last salary received by the Claimant was the partial remuneration for
the month of February 2015, and therefore, half of the salary for February
2015, and the salaries for the months of March, April and May 2015, remained
outstanding. In other words, the Claimant had effectively not received any
salary for three and a half months.
20.
On account of the aforementioned, considering that the Respondent had
repeatedly and for a significant period of time been in breach of its
contractual obligations towards the Claimant, the Chamber decided that the
Claimant had just cause to unilaterally terminate the employment contract on
7 July 2015 and that, as a result, the Respondent is to be held liable for the
early termination of the employment contact with just cause by the Claimant.
21.
In this respect, the Chamber wished to recall that, in line with CAS
jurisprudence, in case of continued non-payment after the expiry of a similar
grace period, a player would not have to wait another three months before
the contractual relationship could be terminated with just cause.
22.
Bearing in mind the previous considerations, the Chamber went on to deal
with the consequences of the early termination of the employment contract
with just cause by the Claimant.
23.
First, the members of the Chamber recalled that the Respondent sustained that
there is no outstanding remuneration at the moment, as the corresponding
amounts were deposited at the Football Association of country D. In this
regard, the DRC highlighted that there is no documentation or evidence on
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file that would indicate that the Claimant gave his consent to the Respondent
in order for it to deposit his remuneration at the Football Association of
country D. Furthermore, and for the sake of completeness, the Chamber
remarked that in any case, such deposit does not constitute in itself a proof of
effective payment to the Claimant, and therefore, the Chamber concurred that
the Respondent must fulfill its obligations as per the contract and the
agreement, in accordance with the general legal principle of pacta sunt
servanda. Consequently, the Chamber decided that the Respondent is liable to
pay to the Claimant the remuneration that was outstanding at the time of the
termination i.e. EUR 22,500 pertaining to his partial salary of February 2015,
the salaries of March, April and May, all 2015 and the bonus payment of EUR
5,000, which was acknowleged by the Respondent in its reply to the claim.
24.
In addition, taking into account the Claimant’s request, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the
amount of outstanding remuneration, i.e. EUR 22,500, as of the date on which
the claim was lodged, i.e. 28 August 2015, until the date of effective payment.
25.
In continuation, the Chamber decided that, taking into consideration art. 17
par. 1 of the Regulations, the Claimant is entitled to receive from the
Respondent compensation for breach of contract in addition to any
outstanding salaries on the basis of the relevant employment contract.
26.
In this context, the Chamber outlined that, in accordance with said provision,
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.
27.
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.
28.
As a 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 non-
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exhaustive remuneration of criteria to be taken into consideration when
calculating the amount of compensation payable.
29.
Having recalled the aforementioned, and in order to evaluate the
compensation to be paid by the Respondent, the members of the Chamber
took into account the remuneration due to the Claimant in accordance with
the employment contract and the agreement, along with his professional
situation after the early termination occurred. Bearing in mind the foregoing
as well as the claim of the Claimant, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the
contract and the agreement until 31 May 2016. Consequently the Chamber
concluded that the amount of EUR 51,000 (i.e. salary as from August 2015 until
May 2016 under the contract and the agreement) serves as the basis for the
determination of the amount of compensation for breach of contract.
30.
In continuation, the Chamber remarked that, according to the information in
the Transfer Matching System (TMS), following the early termination of the
employment contract at the basis of the present dispute, the Claimant had
found new employment with the club from country B, Club E, with a contract
valid as from 11 August 2015 until 30 June 2016, in accordance with which he
would be remunerated with a monthly salary of EUR 973. Consequently, in
accordance with the constant practice of the Dispute Resolution Chamber and
the general obligation of the Claimant to mitigate his damages, such
remuneration under the new employment contract shall be taken into account
in the calculation of the amount of compensation for breach of contract.
31.
In view of all of the above, the Chamber decided that the Respondent must
pay the amount of EUR 41,270 to the Claimant as compensation for breach of
contract without just case, which is considered by the Chamber to be a
reasonable and justified amount as compensation.
32.
In addition, taking into account the Claimant’s request, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the
amounts of compensation i.e. EUR 41,270 as of the date on which the claim
was lodged, i.e. 28 August 2015, until the date of effective payment.
33.
In addition, as regards the claimed legal fees, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Consequently, the Chamber decided to reject the
Claimant’s request relating to legal fees.
Player A, country B / Club C, country D
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34.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of EUR 22,500 plus 5% interest p.a. on said amount as from 28 August
2015 until the date of effective payment.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date
of notification of this decision, compensation for breach of contract in the
amount of EUR 41,270 plus 5% interest p.a. on said amount as from 28 August
2015 until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2. and 3. are not paid by the Respondent within
the stated time limit, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
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6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 58 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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
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