Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 4 October 2013,
in the following composition:
Geoff Thompson (England), Chairman
Takuya Yamazaki (Japan), member
Theodoros Giannikos (Greece), member
on the matter between the player,
Player V, from country C
as 1st Claimant / 2nd Respondent
and the club,
Club U, from country K
as 2nd Claimant / 1st Respondent
and the club,
Club N, from country A
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 12 January 2010, Player V, from country C (hereinafter: the player), and
Club U, from country K, concluded an employment contract (hereinafter: the
contract) valid from 1 January 2010 until 31 December 2012.
2.
Clause 3 of the contract provided for a monthly remuneration of USD 17,000.
3.
Clause 4.2 of the contract stipulated that “the Club shall immediately provide
an appropriate doctor’s examination and treatment regarding the Player’s
injuries and/or illness rising out of performance of this Contract and shall cover
the expenses incurred from such injuries or illness; provided, however, that if
such injuries and/or illness have arisen as a result of a cause attributable to the
Player, the Player shall undertake all responsibility and expense therefore”.
4.
According to clause 7.2 and 7.3 of the contract, “[2] If the Player’s illness
or/and injury requires treatment while the Player is participating in the Player
Activities or Non-Player Activities, such illness or injury shall be treated at the
hospital specified by the Club. In case there is any difference in the medical
expenses incurred by a hospital other than the hospital specified by the Club,
the Player shall pay the difference. The Club, however, shall not pay medical
expenses arising from any injuries or illness due to reasons attributable to the
Player, or any activities other than the Player Activities and Non-Player
Activities which are stipulated by the Club [3] Upon executing this Contract,
the club shall purchase an insurance policy in order to prepare for a situation
where the Player may suffer injury or death in connection with the
performance of this Contract”.
5.
Clause 11.1 of the contract stated that “the Club and the Player may cancel or
terminate the whole or a part of this Contract by written notice in the event
the other party fails to perform the obligations as prescribed in this Contract”.
Furthermore, according to clause 11.3 of the contract, “in the event this
Contract is terminated due to reasons attributable to the Club, the remainder
of the Basic Annual Compensation prescribed in this Contract shall be paid to
the Player. In the event the Contract is terminated due to the reasons
attributable to the Player, the Club shall pay the Basic Annual Compensation
such that for the month the date of termination (the “Month”) the days the
Month plus the remaining number of days after the Basic Annual
Compensation is paid in the month immediately preceding to the Termination
Month shall be calculated basis”.
Club U, from country K / Player V, from country C / Club N
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6.
On 8 March 2011, the player lodged a complaint before FIFA requesting the
total amount of USD 408,000 plus currency of country P 5,500,000 as set out
below:
USD 17,000 corresponding to the outstanding salary of January 2011;
USD 391,000 corresponding to the residual value of the contract (23 x
USD 17,000) as compensation for breach of contract;
Currency of country C 5,500,000 for the costs of the surgery (based on
clause 4.2 of the contract).
7.
In particular, the player explained that he had suffered a knee injury. In this
respect, the player had, on an unspecified date, allegedly informed Club U by
e-mail that he would not be able to participate in the trainings of the preseason because he had been injured for the last four months. Thereafter, the
player appeared at Club U in order to undergo medical tests. However, Club U
told the player that he did not have any injury, but rather mental problems
and that he should continue with his work and that if he wished further
examinations, he would have to pay for them. The player then contacted his
doctor to have confirmed the results of Club U.
8.
On 22 January 2011, the player contacted Club U via e-mail informing the
latter about the results of further examinations and a MRI, according to which
he had a knee injury, was not able to do any sports and would need surgery.
9.
On 1 February 2011, the player sent a communication to Club U terminating
the contract due to Club U’s non-compliance with the contract and the “rules
of FIFA” to provide him with health insurance. In particular, the player
terminated the contract on the basis of its art. 4 par. 2 and reproached to Club
U its negligence with regard to his injury. Additionally, in the letter of
termination, the player referred to the e-mail, allegedly sent to Club U, in
which he informed the club about his impossibility to attend the pre-season
trainings and indicated that Club U had replied with an e-mail on 29 January
2011 informing him that he had been fined with currency of country K
10,000,000 for “disobedience and bad behaviour”.
10.
On 3 May 2011, Club U, independently of the player’s claim, lodged a claim
against the latter in front of FIFA stating that the player had breached the
contract and requesting disciplinary sanctions as well as the total amount of
USD 1,368,175 plus 5% interest p.a. “as from the original date of payment
established in the contract” as set out below:
USD 391,000 as the value of the player’s services (residual value of the
contract);
USD 479,167 for fees and expenses paid, i.e. the paid amount of transfer
compensation for the transfer of the player from the country C club
Club U, from country K / Player V, from country C / Club N
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Nacional to Club U, this is, USD 750,000 (proportional amount
corresponding to 23 months);
USD 396,008 for extra replacement costs (USD 200,000 sign-on fee plus
USD 400,000 annual salary for a period between 10 March 2011 and 9
March 2012, of which only the difference to the player’s salary was taken
into account, i.e. USD 16,334 per month);
USD 102,000 for the specificity of sport equal to six monthly salaries
(further sporting damages suffered by Club U).
11.
In this respect, Club U explained that on 6 October 2010, the player had
complained about a pain in his knee. Thereafter, the player was submitted to a
physical examination; however, the doctor could not find any problem with his
knee. Nevertheless, on 12 October 2010, a MRI was made, in which was found
“a minor chondral lesion and subchondral cyst on the anterior aspect of the
medial femoral condyle”. After a short period of rehabilitation, the player
returned to his normal activities. At the end of the year and after his return
from vacation, the player allegedly asked Club U to be released, since he was
not satisfied with the salary, he did not have many opportunities to play for
the team and his family could not adapt to the life in country K. During the
training camp, which had started on 3 January 2011, the player complained
again about pain in his right knee. Therefore, a second MRI was made and “a
small osteochondral lesion less than 5mm in diameter on the anterior aspect of
the medial femoral condyle” was found. According to Club U’s doctor, a
conservative treatment with rehabilitation was recommended for the player,
since the injury was small and a surgery may not fully improve his symptoms.
However, the personal doctor of the player, after having analysed the MRI,
came to the conclusion that the player was no longer able to practice football
and that a surgery, including a rehabilitation of about six months, was needed.
At this point, Club U confirmed having received the e-mails dated 22 January
and 1 February 2011 from the player.
12.
On 28 February 2011, Club U requested the player in writing to return to
country K within five days, however, the letter allegedly remained
unanswered. Therefore, on 10 March 2011, Club U sent a letter to the player
terminating the contract due to the breach of the player.
13.
In his response, the player rejected Club U’s claim. Furthermore, the player
stated that Club U’s claim would prove that the latter had failed to pay the
medical costs and that he could not count on future health service, reason why
he terminated the contract.
14.
Club U, in its response, insisted on its claim stating that the player’s claim was
baseless and would not correspond to the real events that occurred. At this
Club U, from country K / Player V, from country C / Club N
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point, referring to its claim, Club U underlined having complied with the
contract and the FIFA Regulations, i.e. it had provided the player with medical
exams and treatment. However, the player went on his own discretion to his
personal doctor; “Yet, the Player preferred to follow his personal doctor’s
instructions and without any legal basis he terminated the employment
contract […]”. In this respect, Club U alleged that the player took advantage of
his injury to create a false scenario, which could enable his departure from
country K.
15.
With regard to his contractual situation after the departure from country K,
the player informed FIFA that he was without contract until 15 July 2011 when
he signed an employment contract with the Club N, form country A, for the
period between 15 July 2011 and 30 June 2012. The player was entitled to
receive a monthly salary of currency of country A 41,990. On the same date,
the parties concluded a contract concerning the “cesión temporal de derechos
federativos con opción de compra”. According to said contract, the player was
entitled to receive the amount of USD 189,000 for his “inscripción federativa”.
In case Club N made use of the “opción de compra”, the player would be
entitled to receive the amount of USD 300,000 for the first year of contract,
USD 350,000 for the second year and USD 400,000 for the third year.
16.
Upon request of FIFA to provide its position as to the present matter, Club N
provided its statement confirming having signed an employment contract and
an agreement with the player on 15 July 2011, however, declaring that it did
not make use of the “opción de compra”. Furthermore, Club N explained
having prematurely terminated the contract with the player by mutual
agreement on 18 January 2012.
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 8 March 2011 and 3 May 2011. Consequently, the previous edition of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) is
applicable to the matter at hand (cf. art. 21 of the 2008 and 2012 edition 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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
Club U, from country K / Player V, from country C / Club N
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of Players (edition 2012), the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
In continuation, 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 referred, on the one hand, to art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (editions 2010 and
2012), and, on the other hand, to the fact that the present claims were lodged
in front of FIFA on 8 March 2011 and 3 May 2011. Therefore, the DRC
concluded that the 2010 edition 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 competence of the Chamber and the applicable regulations having been
established, the members of the Chamber entered into the substance of the
matter. In doing so, it started by acknowledging the facts of the case as well as
the documents contained in the 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.
5.
In this respect, the DRC acknowledged that the player and Club U were bound
by an employment contract, which was signed on 12 January 2010 and was
valid as from 1 January 2010 until 31 December 2012.
6.
Furthermore, the members of the Chamber pointed out that the player and
Club U have antagonistic positions in relation to which party was responsible
for the termination of the contract. In fact, while the player considers that he
had just cause to unilaterally terminate the contract, Club U, on the other
hand, sustains that, the player did not have just cause to terminate the
contract since it had fully complied with its contractual obligations.
7.
At this point, the members of the Chamber highlighted that the underlying
issue in this dispute, considering the conflicting positions of the parties, was to
determine whether the employment contract had been prematurely and
unilaterally terminated with or without just cause by one of the parties. The
DRC also underlined that, subsequently, if it were found that the employment
contract was breached by one of the parties with or without just cause, it
would be necessary to determine the consequences of such breach.
Club U, from country K / Player V, from country C / Club N
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8.
In continuation, the Chamber, first and foremost, acknowledged that it has
remained undisputed that the player was absent from the club as from
February 2011.
9.
Subsequently, the Chamber noted that the player maintains that he did not
receive the suitable medical treatment and that, apparently, his injury was not
seriously considered by the doctors of Club U. Therefore, he decided to leave
the country and terminate the contract due to the breach of Club U of its
contractual obligations, in particular, due to the non-compliance and
negligence of Club U in treating the player’s injury and in providing him with
the adequate health services.
10.
Club U, on the other hand, stated that the player breached the relevant
employment contract by leaving the club and the country without
authorization and by following a different medical treatment from the one
prescribed by the doctors appointed by Club U.
11.
At this stage, the members of the Chamber deemed appropriate to remark the
general principle that the contracts are concluded to be respected, otherwise,
consequences have to be assumed by the relevant party.
12.
Furthermore, the Chamber emphasised 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, and vice versa, 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.
13.
With due consideration to the above, the members of the Chamber
acknowledged that, essentially, the player and the club had divergent position
on how the injury of the player had to be treated. In this context, it was for
the Chamber to examine whether the decision of the player to leave country K
was justified, considering the circumstances of the present matter. More
specifically, the Chamber had to examine whether the club had violated its
contractual obligations, as alleged by the player, and, in the affirmative,
whether the violations of the contract were that severe that the player had a
just cause to terminate the contract.
14.
The Chamber was well aware that, in order to answer the above-mentioned
questions, it had to consider all the relevant circumstances of this specific
Club U, from country K / Player V, from country C / Club N
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matter. In doing so, the Chamber first turned its attention to the drafting of
the employment contract and took note of its clause 7.2, by means of which it
is stipulated that in case the player would need medical treatment due to
injuries or illnesses, he should be treated at the hospital appointed by Club U
and that the extra medical expenses derived from a treatment in a different
hospital than the one appointed by Club U, would be covered by the player.
15.
Furthermore, the Chamber noted that it could be established from the
information and documentation on file that the player had started
complaining about pain in his knee on 6 October 2010. Following said
complaints, the club immediately scheduled a physical examination by the
club’s doctor. Notwithstanding that the club’s doctor did not detect an injury
during such examination, the club scheduled a MRI following which an injury
was found. Thereafter, the player underwent a short period of rehabilitation
and he returned to his normal activities. The Chamber concluded that the
club’s actions in October 2010 were in compliance with the contract, i.e. it had
provided the necessary medical assistance to the player.
16.
As to the events occurring in January 2011, the Chamber recalled that the
player complained again about pain in his knee in the beginning of January
following which another MRI was performed. The Chamber duly
acknowledged that whereas Club U’s doctor believed that the injury was small
and that no surgery was necessary, the personal doctor of the player held that
the player needed a surgery and could not play for 6 months. As a result, the
player held that the doctor of Club U did not seriously consider the injury and
that the club had not provided suitable medical treatment and therefore
terminated the contract invoking just cause.
17.
After a thorough examination of all the given circumstances, the Chamber did
not concur with the conclusion of the player. In particular, the Chamber
deemed that the sole fact that the doctor of the club and the doctor of the
player had a different medical opinion does not lead to the conclusion that the
club’s doctor had not taken the injury serious; the club’s doctor simply had a
different opinion on how to treat the player’s injury. As a result, the player’s
decision to leave the club and terminate the contract was considered by the
Chamber as a disproportionate measure in light of the circumstances.
18.
Hence, the Chamber deemed that, based on the documentation contained in
the file, it could not be established that Club U neglected its contractual
obligations with regard to the medical treatment of the player. In fact, Club U
offered the player a medical treatment following the recommendations of the
doctor appointed by it and, by supporting the position that the player’s injury
did not need surgery, Club U only put forward a different point of view on
how to deal with the injury.
Club U, from country K / Player V, from country C / Club N
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19.
On account of the above and, in particular, considering that Club U complied
with its contractual obligations with regard to its financial duties as well as
regarding the medical assistance, and taking into consideration that the player
left Club U and the country without authorisation, the Chamber decided that
terminating the contract was a disproportional reaction of the player. The
Chamber finds that Club U was not in breach of the terms of the employment
contract and determined that the player had no valid reason not to appear at
the work place. Therefore, the Chamber concluded that the player had
terminated the employment contract without just cause on 1 February 2011
and that, consequently, the player is to be held liable for the early termination
of the employment contact without just cause.
20.
Having established that the player is to be held liable for the early termination
of the employment contract without just cause, 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 Club U is entitled
to receive from the player an amount of money as compensation for breach of
contract. Furthermore, in accordance with the unambiguous contents of article
17 par. 2 of the Regulations, the Chamber established that the new club of the
player, Club N, shall be jointly and severally liable for the payment of
compensation.
21.
Having said that, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract payable by the player and
Club N to Club U in the case at stake. In this respect, 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 player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five
years, the fees and expenses paid or incurred by the club (amortised over the
term of the contract), and depending on whether the contractual breach falls
within the protected period. The DRC recalled that the list of objective criteria
is not exhaustive and that the broad scope of criteria indicated tends to ensure
that a just and fair amount of compensation is awarded to the prejudiced
party.
22.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contains a
provision by means of which the parties had beforehand agreed upon an
Club U, from country K / Player V, from country C / Club N
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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 in relation to
the situation in which the player was found to have terminated the contract
without just cause.
23.
Bearing in mind the foregoing, in order to calculate the amount of
compensation due to Club U in the present case, the Chamber firstly turned its
attention to the remuneration and other benefits due to the player under the
existing contract and the new contract(s), which criterion was considered by
the Chamber to be essential. In this context, the members of the Chamber
deemed it important to emphasize that the wording of art. 17 par. 1 of the
Regulations allows the DRC to take into consideration both the existing
contract and the new contract(s) in the calculation of the amount of
compensation, thus enabling the Chamber to gather indications as to the
economic value attributed to a player by both his former and his new club(s).
24.
In this regard, the DRC established, on the one hand, that the employment
contract between the player and Club U, signed on 12 January 2010, provided
for the player a monthly remuneration of USD 17,000 payable until 31
December 2012. Therefore, and considering that the contract was terminated
as of 1 February 2011, the members of the Chamber deemed that the total
value of the player’s employment agreement with Club U for the remaining
contractual period of twenty-three months resulted in the amount of USD
391,000.
25.
In continuation, the Chamber noted that in accordance with the pertinent
employment contract signed between the player and Club N, valid as of 15 July
2011 until 30 June 2012, the player was entitled to receive a monthly salary of
currency of country A 41,990, corresponding to approximately USD 10,000 as
well as a signing fee in the amount of USD 189,000. Consequently, the
Chamber established that the value of the new employment contract
concluded between the player and Club N for the corresponding period as
from July 2011 until and including December 2012 amounted to USD 419,000.
26.
Taking into account the preceding paragraphs, the Chamber concluded that
the average total salary for the remaining period of time of the two
employments contract corresponded to an amount of approximately USD
405,000.
27.
Having stated the above, the DRC recalled that the player was unemployed for
the period of six months, as of 1 February 2011 until 15 July 2011. In this
regard the Chamber was of the opinion that it should take into consideration
Club U, from country K / Player V, from country C / Club N
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the loss of salary during this period of time and decided to deduct the amount
of USD 60,000, resulting in an aggregate amount of USD 345,000.
28.
In continuation, and referring to art. 12 par. 3 of the Procedural Rules, bearing
in mind that Club U had specifically included these costs in its claim, the
Chamber established that Club U had provided enough evidence of the fees
and expenses paid or incurred by Club U for the acquisition of the player and
that, therefore and, whereas according to article 17 par. 1 of the Regulations
such fees and expenses may be included as one of the criteria to be taken into
account in the calculation of compensation, the Chamber should take into
account the non-amortised amount of the transfer fee paid by Club U to the
player’s former club for his acquisition. In this respect, the Chamber
determined that these expenses, after amortization, corresponded to USD
479,167 as rightly claimed by Club U.
29.
The Chamber further noted that in its calculation of the amount of
compensation, Club U had included costs relating to the acquisition of a new
substitute player that allegedly replaced the player. In this regard, the
Chamber concluded that it had not been proven to its satisfaction that these
expenses should be included in the calculation of the amount of compensation
for breach of contract.
30.
Finally, the Chamber established that it was undisputed that the player’s salary
for January 2011 in the amount of USD 17,000 had not yet been paid by Club
U, another element that should be taken into consideration.
31.
At this point, the members of the Chamber agreed that, given the very specific
particularities of the matter at hand, attenuating circumstances are applicable
taking into consideration the health situation of the player and the opinion of
the player’s doctor that he indeed needed surgery. For these reasons, the
Chamber decided to set the compensation for breach of contract at the total
amount of USD 400,000, which is considered by the Chamber to be a fair and
justified amount of compensation for breach of contract in the present matter.
32.
All in all, on account of the aforementioned considerations, the Chamber
decided that the player is liable to pay compensation for breach of contract to
Club U in the amount of USD 400,000. Furthermore, in accordance with art. 17
par. 2 of the Regulations, Club N is jointly and severally liable for the payment
of the relevant compensation.
33.
In addition, taking into account Club U’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that Club U
is entitled to interest of 5% p.a. on the amount of compensation as of 4
October 2013.
Club U, from country K / Player V, from country C / Club N
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34.
Furthermore, the members of the Chamber decided to reject any further claim
lodged by Club U.
35.
The Chamber concluded its deliberations in the present matter by rejecting the
claim lodged by the player.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the 1st Claimant / 2nd Respondent, Player V, is rejected.
2.
The claim of the 2nd Claimant / 1st Respondent, Club U Football Club, is partially
accepted.
3.
The 1st Claimant / 2nd Respondent, Player V, has to pay to the 2nd Claimant / 1st
Respondent, Club U Football Club, within 30 days as from the date of
notification of the present decision, compensation for breach of contract in
the amount of USD 400,000 plus 5% interest p.a. on said amount as from 4
October 2013 until the date of effective payment.
4.
The Intervening Party, Club N, is jointly and severally liable for the payment of
the aforementioned amount.
5.
In the event that the amount due to the 2nd Claimant / 1st Respondent, Club U,
is not paid within the stated time limit, the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee for consideration and a
formal decision.
6.
Any further claim lodged by the 2nd Claimant / 1st Respondent, Club U, is
rejected.
7.
The 2nd Claimant / 1st Respondent, Club U, is directed to inform the 1st Claimant
/ 2nd Respondent, Player V and the Intervening Party, 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.
*****
Club U, from country K / Player V, from country C / Club N
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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
Club U, from country K / Player V, from country C / Club N
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