Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 September 2012,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Thilina Panditaratne (Sri Lanka), member
on the claim presented by the player,
Player A, from country P
as Claimant
against the club,
Club L, from country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 1 January 2011, Player A, from country P (hereinafter: “Player” or “Claimant”),
and Club L, from country C (hereinafter: “Club” or “Respondent”), signed an
employment contract valid from the date of receipt of the international transfer
certificate for the transfer of the Player until 31 May 2012 (hereinafter:
“Employment Contract”).
2.
According to the Employment Contract, the Respondent agreed to pay to the
Claimant the following amounts:
•
For the 2010/2011 season, a total salary amounting to EUR 30,000, payable in
five instalments of EUR 6,000. The first instalment was to be paid on 31
January 2011 and the last instalment on 31 May 2011;
•
For the 2011/2012 season, a total salary amounting to EUR 60,000, payable in
ten instalments of EUR 6,000 per month. The first instalment was to be paid on
31 August 2011 and the last instalment on 31 May 2012.
3.
According to clause 3. a) of the Employment Contract, an unjustified absence from
work by the Claimant would entitle the Respondent to “[i]mmediately dismiss him
from his work by giving him written notice (…)”.
4.
Moreover, clause 3. b) of the Employment Contract establishes that “if the
Employee at any time disobeys or neglects or refuses to carry out or comply with all
lawful instructions given to him by the Employer or his authorized representative on
the basis of this contract, or if he is found guilty of gambling, or excess consumption
of alcoholic drinks, or unjustified absence from his work, or if he violates the Laws
of Republic of country C, the Employer may immediately dismiss him from his work
by giving him written notice, and he shall be repatriated at his own cost”.
5.
Furthermore, clause 3. c) of the Employment Contract stipulates that “[i]n case of
violation of the terms and conditions of the present contract the innocent party has
the right to terminate the contract and to claim damages”.
6.
Finally, clause 3. d) of the Employment Contract provides that “[a]ny considerations
payable with regards to the Employee’s contract will burden the Employer”.
7.
On 2 January 2011, the parties concluded a private agreement, which provided for
certain payments to be made by the Respondent to the Claimant in addition to
those established in the Employment Contract (hereinafter: “Additional
Agreement” and, together with the Employment Contract, “Contracts”). The
Additional Agreement provided for the following:
Player A, from country P / Club L, from country C
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•
•
•
•
•
•
For the 2010/2011 season, a total salary amounting to EUR 60,000, payable in
five instalments of EUR 12,000 per month. The first instalment was to be paid
on 31 January 2011 and the last instalment on 31 May 2011;
For the 2011/2012 season, a total salary amounting to EUR 120,000, payable in
ten instalments of EUR 12,000 per month. The first instalment was to be paid
on 31 August 2011 and the last instalment on 31 May 2012;
EUR 30,000 as a signing-on fee;
One return family flight ticket country C-country P per year;
Allowance of up to EUR 600 for an apartment/house;
A car.
8.
On 7 July 2011, the Claimant wrote a letter to the Respondent, informing the latter
that two salaries, i.e. April and May 2011, were outstanding and stating that the
Respondent had forbidden him from carrying out his activities, including access to
training. The player requested the Respondent to provide the reasons behind these
actions within 72 hours.
9.
On 15 July 2011, the Claimant unilaterally terminated the Contracts invoking just
cause, on the basis that the Respondent had failed to pay contractually agreed
amounts, including two salaries, and had prevented him from participating in all
sporting activities.
10.
On 12 August 2011, the Claimant filed a claim before FIFA for breach of contract by
the Respondent.
11.
The Claimant claimed for a total amount of EUR 318,460 plus interest at 4% p.a., as
follows:
(a)
(b)
(c)
(d)
(e)
12.
EUR 45,000 referring to outstanding salaries for the months of April, May and
June 2011;
EUR 180,000 referring to total amount of salaries corresponding to the
2011/2012 season, for the remaining value of the Contracts;
EUR 2,400 corresponding to unpaid housing and car allowance (EUR 600 per
month) for March, April, May and June 2011;
EUR 1,060 corresponding to the round-trip flight ticket country P – country C;
and
EUR 90,000 as moral damages.
According to the Claimant, after the end of the 2010/2011 season in country C, he
requested the Respondent to purchase the flight ticket to country P as provided for
in the Additional Agreement. The Claimant stated that, unlike what had been
Player A, from country P / Club L, from country C
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agreed, the Respondent only provided him with the outbound flight ticket and that
the inbound flight ticket was purchased by the Claimant himself.
13.
The Claimant asserts that, at that time, the Respondent was already late in making
the salary payments which had become due in April and May and the housing
allowance corresponding to March, April and May. According to the Claimant,
before leaving to country P on holiday he had allegedly requested the Respondent
to pay the amounts outstanding and the latter had replied by stating that all
amounts would be paid upon the Claimant’s return.
14.
The Claimant equally states that, the day after returning from country P to country
C, he went to the premises of the Respondent to resume training as he was
supposed to and that the latter immediately forbid him to train and requested his
presence at the Club’s management. According to the Player, at such meeting the
management informed him that he was being fired because he had been absent
without the Club’s authorisation.
15.
The Claimant states that, despite the arguments exchanged with the Respondent,
he was not allowed to resume his activities with the Club. In this regard, the
Claimant alleges having emphasised notably that the season had ended and that it
was the Respondent that bought him his flight ticket.
16.
In its reply, the Respondent alleged that all the obligations towards the Claimant
were fulfilled until the date of the termination of the Contracts.
17.
The Respondent further asserts that, by leaving the Club without permission, the
Claimant “deserted his post as a player” and, thus, breached the Employment
Contract. The Respondent asserts that, under clauses 3. b) and c) of the Employment
Contract, it was entitled to terminate the Contracts. The Respondent claims to have
terminated the Contracts accordingly by means of a letter dated 17 May 2011.
18.
The Respondent further states that “[i]n compliance with article 3 c) and d) of the
contract of employment has penalized the Player with a two months fine, due to his
breach of contract”.
19.
In continuation, the Respondent sustains that, “[b]ecause of the above provisions
and the provisions set out in the Regulations on the Status and Transfer of Players,
art. 14 and 15, and due to the fact that the applicant was found to be in breach of
his duties towards the Club, the contract was terminated lawfully and with sporting
just cause”.
Player A, from country P / Club L, from country C
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20.
Finally, in alternative to its allegation that the Contracts were lawfully terminated,
the Respondent alleges that the Claimant did not suffer any damage and, therefore,
should not be awarded any compensation.
21.
In his reply, the Claimant insists that it was the Respondent that had breached the
Contracts by failing to make payments and preventing him from training.
22.
Regarding the Respondent’s allegation that he had left the Club without
authorisation, the Claimant asserts that the season in country C had ended on 14
May 2011 and that he left on holiday as he was entitled to. The Claimant further
explains that it was the Respondent that had requested the issuance of the
outbound flight ticket and had proceeded to make the respective payment.
23.
In addition, the Claimant states that the Respondent alleged in its response that it
had delivered him the termination notice “in hand” on 17 May 2011 and that this is
not possible given that he had left country C on 15 May 2011, as evidenced by the
copy of the tickets provided.
24.
Furthermore, the Claimant states that the Respondent did not submit any evidence
that he had left the Club without authorisation.
25.
Despite having been invited to do so, the Respondent did not present any further
comment.
26.
Regarding his contractual situation, the Claimant informed FIFA, through a
correspondence dated 7 May 2012, that, after the termination of the Employment
Contract with the Respondent, he had signed an employment contract with the
Club K, from country A. The Claimant further stated that “[D]ue to difficulty in
communications with country A, we do enclose copy of the proposal of contract
received from Club “Club K Football Club”, for our client Player A, which is not far
from the final one”. According to the document provided by the Claimant, the
employment contract with the country A club would be valid from 1 August 2011
until 30 June 2012 and the Claimant would be entitled to, inter alia:
•
A monthly salary of USD 20,000;
•
Accommodation; and
•
Four flight tickets (no indication of itinerary).
27.
On 20 September 2012, the Claimant sent an unsolicited correspondence alleging
that the salary with Club K Football Club was currency of country A 2,000, enclosing
a copy of his contract with the latter club in its original version without providing a
full translation into one of the four official FIFA languages and stating that the
document that had been sent on 7 May 2012 was a mere contractual proposal
Player A, from country P / Club L, from country C
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which had been “[f]ully revoked” by the contract eventually signed between the
parties.
II.
Considerations of the Dispute Resolution Chamber
1.
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 took note that the present matter was submitted to FIFA on 12 August
2011, thus after 1 July 2008. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21
par. 2 and 3 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 2010) 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 country P player and a country C club.
3.
Furthermore, the DRC 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 (edition 2010) and also
considering that the present claim was lodged in front of FIFA on 12 August 2011, the
edition 2010 of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The Chamber then turned to the substance of the matter. In doing so, the Chamber
acknowledged the facts of the case as well as the documentation in the file. In this
regard, the Chamber started by acknowledging that it remained undisputed that
the parties concluded an Employment Contract on 1 January 2011 valid until 31 May
2012 and an Additional Agreement, on 2 January 2011.
5.
In continuation, the DRC acknowledged that the Claimant filed a claim for breach of
contract and requested the aggregate amount of EUR 318,460 plus interest and that
the Respondent rejected the claim.
6.
In this respect, the Chamber wished to highlight that the parties presented
completely antagonistic positions as to the dispute at stake. In fact, whereas the
Respondent claims to have terminated the Contracts by letter dated 17 May 2011,
due to an unauthorized absence of the Claimant, the latter claims that it was him
who terminated the Contracts by letter dated 15 July 2011, on the basis that the
Player A, from country P / Club L, from country C
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Respondent had failed to make contractually agreed payments and had prevented
him from training with the team.
7.
In this context, the Chamber, first and foremost, focused its attention on the
question as to when the termination of the Contracts had taken place and who had
promoted such termination.
8.
The Chamber acknowledged the Respondent’s statement that it had allegedly
terminated the Contracts on 17 May 2011, by means of a written notice sent to the
Claimant. In this respect, the Chamber specifically analysed the document provided
as evidence of termination by the Respondent and noted that such document
contains the following handwritten remark “[D]elivered in hand to his apartment
[incomprehensible] 17.05.2011”.
9.
In this respect, the Chamber wished to highlight, first of all, that, according to
general principles of labour law, the unilateral termination of an employment
contract can only become effective when it is notified to the recipient or when the
latter becomes aware (or had the possibility of becoming aware) of such an action.
Subsequently, the members of the Chamber also considered important at this stage
to remind that, according to art. 12 par. 3 of the Procedural Rules, any party
claiming a right on the basis of an alleged fact shall carry the burden of proof.
10.
In this respect, the Chamber emphasized that the Claimant denies ever having
received the termination letter sent by the Respondent. It would be, thus, up to the
Respondent to prove that the Claimant had, in fact, received such letter or, at least,
had become aware of its content.
11.
In light of the evidence adduced by the parties to the present dispute, the Chamber
is of the opinion that the Respondent was not able to discharge its burden of proof
in this respect.
12.
In fact, first of all, the Chamber notes that the Respondent did not provide any
evidence that the termination letter had, in fact, been delivered to the Claimant’s
apartment.
13.
In addition to the abovementioned, the members of the Chamber considered as
further evidence that the player did not receive any termination letter the
allegation put forward by the Claimant, and which remained uncontested by the
Respondent, that the latter not only was aware that the Claimant had already left
the country on that date, but inclusively, had bought him the respective flight
ticket.
Player A, from country P / Club L, from country C
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14.
In light of the above, and considering all the elements on file the Chamber
concluded that the termination of the Contracts had taken place with the
termination letter sent by the Claimant on 15 July 2011, the reception of which was
never contested by the Respondent.
15.
On account of the above, the members of the Chamber proceeded to analyze
whether the Claimant had had just cause to unilaterally terminate the Contracts.
16.
The Chamber acknowledged the Claimant’s allegation that, upon termination, the
salaries for April and May 2011 and the housing allowance for March, April, May
and June were outstanding (cf. point I. 2 and 7 above). In this respect, the Chamber
was eager to emphasize that the Respondent not only had not present any evidence
of payment of those amounts, but had not even disputed the Claimant’s allegation
that they were outstanding. As such and, once more, in accordance with the burden
of proof principle, the Chamber had no other option than to accept the facts as
brought forward by the Claimant and consider that it had been established that the
amounts claimed were, effectively, outstanding at the time of termination of the
Contracts.
17.
In continuation and bearing in mind that the Respondent had also attempted to
cause the unilateral termination of the Contracts with just cause, the members of
the Chamber considered important to analyze whether the Respondent had had any
right or reason not to make the payment of the amounts outstanding under the
Contracts. In this respect, the Chamber acknowledged the Respondent’s allegation
that the Claimant had left country C on 17 May 2011 without any authorization and
was, thus, from that moment on, in breach of contract.
18.
The Chamber then turned to the Claimant’s response to the aforementioned
assertion and acknowledged his allegation that he had only left the country after
the end of the season as he was entitled to and that, had the Respondent opposed
to his absence, it would have not purchased his outbound flight ticket as it did.
19.
The Chamber stressed, once more, that it was up to the Respondent to provide
evidence to substantiate its allegation that the Claimant had left the Club without
any authorization. The members of the Chamber were eager to emphasize that,
once again, the Respondent had not presented any evidence to support its position.
In addition, the Chamber pointed out that the Respondent had not contested the
Claimant’s allegation that the season had already ended by the time of the
termination of the Contracts and that it was the Club who had purchased his
outbound flight ticket. The Chamber considered, therefore, that the Respondent
had not been able to prove that the Claimant’s absence had not been authorized.
Player A, from country P / Club L, from country C
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20.
In this respect, the Chamber also considered relevant to highlight that, given its
previously mentioned conclusions, in any event, at the time the Claimant left
country C on 17 May 2011, at least one salary and housing allowance for two
months were already outstanding and had not been paid by the Respondent and
that, therefore, the latter was already in breach of contract at that time.
21.
The members of the Chamber acknowledged the Respondent’s argument that the
alleged breach of contract committed by the Claimant entitled it to impose a “[t]wo
months’ fine” under the Employment Contract. To this end, the Chamber noted that
the Respondent had only based its assertion on the supposedly unauthorized
absence from the Club of the Claimant. Given that the Chamber had already
concluded that the Respondent had not been able to prove such unauthorized
absence of the Claimant and, taking into consideration that no other assertions
were made by the Respondent in this respect, the Chamber decided to fully reject
the Respondent’s allegation in connection thereto.
22.
The Chamber concluded, therefore, that there were no reasons that could justify the
Respondent’s failure to comply with its contractual obligations.
23.
At this juncture, the members of the Chamber wished to emphasize that, according
to its long stand jurisprudence, the non-payment or late payment of remuneration
by an employer does in principle – and particularly if repeated as in the present case
– constitute “just cause” for termination of the contract, for the employer’s
payment obligation is his main obligation towards the employee. The Chamber
wished to underline in this respect that, once the employer repeatedly fails with this
obligation, the employee can no longer be expected to continue in the employment
relationship.
24.
The Chamber also considered important to note that, in addition to the claims that
the Respondent had failed to make contractually agreed payments, the Claimant
had also accused the former of having prevented him from training with the team
upon his return from holidays in July 2011. The Chamber also acknowledged that
the Claimant specifically mentioned this fact to the Respondent in his letter dated 7
July 2011 and requested the latter to comply with its contractual obligations. The
members of the Chamber wished to emphasize that, in relation to this allegation of
breach of contract, the Respondent did not present any response either. In this
regard, the Chamber considered that providing access to proper training for the
player constitutes an essential component of a club’s obligations under an
employment contract and that failure to comply with such duty must be regarded as
a fundamental breach of contract.
Player A, from country P / Club L, from country C
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25.
Considering all of the above, the Chamber considered that, in the present case, it is
established that the Respondent seriously violated the terms of the Contracts by
disrespecting its contractual obligations.
26.
In this regard, the DRC decided that the Respondent was found to be in breach of
contract and, in particular, that this breach had reached a level that entitled the
Claimant to terminate the Employment Contract unilaterally. Therefore, the
Chamber reached the conclusion that the Claimant terminated the Contracts with
just cause.
27.
As a consequence, the Chamber decided that the Respondent is liable to cancel all
outstanding amounts under the Contracts until the date on which the employment
relationship was terminated, i.e. until 15 July 2011.
28.
In this respect, the Chamber pointed out that the Claimant would be entitled, therefore,
to receive the outstanding salaries for April and May 2011 in the amount of EUR 36,000,
plus the outstanding amounts for housing allowance for March, April, May and June in
the aggregate amount of EUR 2,400 (cf. point I. 2 and 7 above).
29.
In addition, taking into consideration the Player’s claim, the Chamber decided to
award him interest at the rate of 4% p.a. over each of the aforementioned amounts
as from their respective due date.
30.
In continuation, the Chamber established that, in accordance with art. 17 par. 1 of the
Regulations, the Respondent is also liable to pay compensation for damages suffered by
the Claimant as a consequence of the early termination of the Contracts due to the
breach of contract committed by Respondent (cf. point II. 25 above).
31.
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 so, the
members of the Chamber firstly reminded 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.
32.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the Employment Contract contains a provision by means of
which the parties had beforehand agreed upon an amount of compensation
Player A, from country P / Club L, from country C
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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. The Chamber also noted
that the Claimant had requested the payment of compensation for breach of
contract in the amount of EUR 180,000, corresponding to the aggregate amount of
salaries to which he would be entitled under the Contracts during his second season
with the Respondent (cf. points I. 2 and 7 above)
33.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the Contracts until 31 May 2012
and concluded that the Claimant would, in fact, have received EUR 180,000 as
salaries had the Contracts been executed until its expiry date.
34.
Moreover, the Chamber acknowledged that the Claimant also requested the
payment of an amount for flight tickets to which he would be entitled under the
Additional Agreement. In accordance with its constant jurisprudence and due to the
fact that the Additional Agreement did provide for the Claimant to receive certain
flight tickets, the Chamber decided that such amounts should also be taken into
consideration for purposes of the calculation of compensation due to the Claimant.
35.
In continuation, the Chamber assessed 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 enabled 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.
36.
At this point the DRC noted that, after the termination of the Employment
Contract, the Claimant had apparently signed an employment contract with Club K
and provided a proposal of contract between the parties, according to which the
Claimant was to receive a monthly salary of USD 20,000, which the Claimant alleged
being “not far from the final” contract. The DRC also noted that one day before the
submission of the present matter and more than one year after the signature of the
new employment contract, the Claimant alleged that the financial terms of the new
employment contract were different and that the monthly salary was of actually
currency of country A 2,000. In this regard, the Chamber pointed out that the
Claimant had submitted only the original version of the relevant contract, without a
full translation of the contract into one of the four official FIFA languages this long
after the closure of investigation of the present matter.
Player A, from country P / Club L, from country C
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37.
Considering the contradictory information and the documents provided, the DRC
decided that it could not take into account the correspondence and document
provided by the Claimant on 20 September 2012, since it was provided only one day
before the submission of the case to the deciding body and after the established
deadline and also since the document provided as evidence did not comply with art.
9, par. 1, e) of the Procedural Rules. Therefore, the DRC decided to take into
account the documentary evidence provided by the Claimant in April 2012, which
was duly translated into one of the official FIFA languages and contained the
relevant contractual information.
38.
According to such document, the members of the Chamber noted that the Claimant
was offered an employment contract with the country A club, Club K Football Club,
under which he would be entitled, inter alia, to a monthly salary of USD 20,000 (cf.
point I. 26 above).
39.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 30,618 to the Claimant as compensation for breach of
contract.
40.
The Chamber also decided to award the Claimant interest at the rate of 4% p.a.
over the amount of compensation, as of the date of this decision.
41.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club L, has to pay to the Claimant, Player A, within 30 days as
from the date of notification of this decision, outstanding remuneration in the
amount of EUR 38,400 plus 4% interest p.a. over the amount of EUR 600 as of 1
April 2011 until the date of effective payment; 4% interest p.a. over the amount of
EUR 18,600 as of 1 May 2011 until the date of effective payment; 4% interest p.a.
over the amount of EUR 18,600 as of 1 June 2011 until the date of effective
payment; and 4% interest p.a. over the amount of EUR 600 as of 1 July 2011 until
the date of effective payment.
3.
The Respondent, Club L, 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
Player A, from country P / Club L, from country C
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amount of EUR 30,618 as well as 4% interest p.a. over said amount as from the date
of the decision until the date of effective payment.
4.
In the event that the aforementioned amounts are not paid within the stated time
limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and a formal decision.
5.
Any further request filed by the Claimant is rejected.
6.
The Claimant is directed to inform the 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.
*****
Player A, from country P / Club L, from country C
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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
Player A, from country P / Club L, from country C
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