Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 14 October 2021
regarding an employment-related dispute concerning the player A
BY:
Frans de Weger (Netherlands), Chairperson
Jose Luis Andrade (Portugal), member
Roy Vermeer (Netherlands), member
CLAIMANT:
Player A, Country A
Represented by
RESPONDENT:
Club B, Country B
Represented by
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I.
Facts of the case
1.
On 5 January 2020, the Claimant and the Respondent signed an employment contract
(hereinafter: the contract 1), valid between 5 January 2020 and 30 June 2021, which contains
the sentence “Payment of the Player’s income is not public”, but also a line stating the ‘gross
agreed personal income for the player is 3,000 currency Country B (approximately EUR 1,500).
2.
In addition, on 5 January 2020, the Claimant and the Respondent signed an agreement
(hereinafter: the contract 2), valid between 5 January 2020 and 30 June 2021, based on which
he was entitled to receive the following amounts:
Season 2019/2020:
• EUR 25,000 on 5 January 2020;
• EUR 37,500 as salary to be paid in the period between 29 February 2020 and 30
June 2020, payable in 5 monthly instalments of EUR 7,500 each;
Season 2020/2021:
• EUR 25,000 on 15 July 2020;
• EUR 90,000 as salary to be paid in the period between 30 July 2020 and 30 June
2021, payable in 12 monthly instalments of EUR 7,500 each.
3.
According to the information contained in the TMS, the Claimant and the Respondent signed
a contract (hereinafter: the contract 3), valid for the period between 11 February 2020 and 1
June 2021, based on which the Claimant was entitled to receive a monthly salary of
Country B currency 500.
4.
On 1 June 2020, the Claimant put the Respondent in default for the amount of EUR 55,000,
providing it a 15 days’ deadline to remedy its default, however to no avail.
5.
On 18 June 2020, the Claimant unilaterally terminated the contract(s) due to the outstanding
salaries.
6.
Before the player went on loan to the Respondent, he was under contract with the Country
A, Club A (where he had a contract valid until 31 May 2024). On 14 February 2020, based
on a loan contract dated 20 January 2020 and signed by the Claimant and the Respondent,
the player was loaned from the Claimant to the Respondent for the period between 30
January 2020 and 30 June 2021.
7.
After the unilateral termination of the contract on 18 June 2020, the Claimant returned to
his club of origin, Club A, where on 27 August 2020, he signed a new contract with said club,
valid between 1 June 2020 and 31 May 2024, based on which the Claimant was entitled to
a monthly salary of Currency Country A 5,000 net (approximately EUR 483). For the period
between 1 June 2020 and 30 June 2021, this corresponds to EUR 6,279.
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8.
What is more, on 18 January 2021, the Claimant was loaned to the Country A Club C, where he
signed a loan contract valid between 18 January 2021 and 30 June 2021. The Claimant failed
to reply to FIFA’s explicit request to be provided with an update as to the monetary value of said
loan agreement.
II. Proceedings before FIFA
9.
On 22 May 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
10. On 22 May 2021, the Claimant lodged a claim against the Respondent, claiming the following
amounts:
Outstanding remuneration in the amount of EUR 55,000, plus interest of the respective due
dates, specified as follows:
• EUR 25,000 as outstanding advance fee, due on 5 January 2020;
• EUR 30,000 as 4 outstanding salaries for the months of February, March, April and
May 2020 in the amount of EUR 7,500 each.
Compensation for breach of contract in the amount of EUR 122,500, plus interest as of 18
June 2020, specified as follows:
• The residual value of the contract 2 in the period between 18 June 2020 and 30
June 2021.
11. In his claim, the Claimant explains that during the validity of the contract 2, he did not receive
single payment from the Respondent.
b. Position of the Respondent
12. In its reply, the Respondent first of all explained that its Former President, took control of the
club in 2018 and founded a company at the address of the Respondent. However, according
to the Respondent, the company of the former president and the club are different legal
entities. What is more, the Respondent explains that its former president was in a fraud case,
inter alia involving match fixing and eventually resigned on 24 April 2020.
13. Moreover, the Respondent explains that its former General Director, was in charge of the
Respondent between 2017 and October 2019 and that after said date, he could no longer
validly sign on behalf of the Respondent.
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14. As to the substance of the matter, the Respondent explains that in February 2020, the
relevant loan transfer was included in the TMS. The work permit of the Claimant was applied
for by the company of the Former President.
15. Moreover, the Respondent argues that on 7 March 2020, the work permit for the Claimant
was rejected as it was incorrectly requested by the company of the Former President. What is
more, the Respondent explains that the Claimant left Country B on 18 March 2020, as a
result of the outbreak of the COVID-19 pandemic.
16. In addition, the Respondent argues that it paid Currency country B 3,900 to the Claimant as
‘liability’ and also pointed out that ‘some time during April 2020’, the Claimant legal
representative, (which according to the Respondent holds a business relation with the Former
President of the Respondent) entered into the premises of the Respondent, taking ‘around
10 binders from the Respondent’s premises’. Said event was reported to the local police on
17 April 2020. Two of the binders were allegedly returned in May 2020.
17. Moreover, the Respondent explains that between 24 April and 13 July 2020, it was functioning
without officials and that on 14 July 2020, it launched an investigation into the use ‘by
unauthorised persons in Country A outside of the Respondent’s official activities’.
18. The conclusions of said investigation were inter alia the following:
• The contract 1 of the Claimant as well as the contract 2 were forged;
• The only valid and binding employment contract is the one uploaded in TMS;
• The Claimant and his legal representative are aiming at undue monetary
compensation.
19. The Respondent submits that the signatures on the last page of the contract 1 as well as
certain numbers are forged, as confirmed by an independent graphology expert.
20. Also, in relation to the contract 2, the Respondent comes to the conclusion that said
document is forged, inter alia because of the fact that:
• it is not drafted on the Respondent’s letterhead;
• the document is not signed, and only contains a club seal;
• the document is not registered;
• it remains unclear why the document is drafted in English, and that Country B
words in the contract 2, like the Respondent’s name, are not correctly spelled.
21. In conclusion, the Respondent asks for the rejection of the claim of the Claimant and to
forward the case to the Disciplinary Department.
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c. Replica of the Claimant
22. In its replica, the Claimant argued that the Claimant and the Respondent signed a contract
on “05.02.2020” and that such contract was prepared by the Respondent. Furthermore, the
contract 1 was offered by the Respondent “in order to avoid tax”.
23. The Claimant further explains that by the time said document were signed by him, he was
playing for “Club D” and loaned to the Respondent.
24. Further, according to the Claimant, the Respondent cannot deny that he was registered for
its club. Also, the Respondent alleged problems with its former administration cannot be
upheld against the Claimant, ‘the weaker party in the employment relationship’.
25. The Claimant further explains that his monetary claims are solely based on the contract 2,
which was not registered by the Respondent in order to avoid taxation. The contract 1 itself
does not conclude any money payable to the Claimant and ‘was just signed to register the
player to the federation’.
d. Duplica of the Respondent
26. In its duplica, the Respondent stated that – contrary to what the Claimant believes – it did
not start a criminal procedure against its entire former administration, but only reported two
instances of criminal conduct:
•
•
a break-in from the Claimant’s legal representative;
forgery and fraud via data entered in FIFA TMS concerning the transfer of the player
B against Mr X.
27. Moreover, the Respondent explains that due to an investigation of the State Investigation and
Protection Agency of Country B, it is limited in its capacities to provide additional evidence.
28. Also, the Respondent explains that the Claimant’s legal representative was part of the ‘former
administration’ and was directly and personally involved with the club and that ‘she is in a
group of suspects for the theft of official documents’.
29. Additionally, in relation to the alleged forgery of the contract 1, the Respondent argues the
contract 1 dated 5 January 2020 has been forged and that it had provided an independent
expert’s report, as well as several statements.
30. In relation to the registration of the Claimant, the Respondent argues that the Claimant was
registered nationally on loan basis, on 30 January 2020. Furthermore, the Respondent denies
that it wanted to avoid the payment of taxes by concluding different employment contracts.
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31. Moreover, according to the Respondent, the Claimant had the obligation to proof the
authenticity of the several contracts, which he failed to do.
32. Finally, the Respondent argues that due to linguistic inconsistencies, it is of the opinion that
the field where the Claimant had to sign the contract 1, is also manipulated with. The
Respondent also states that it is not clear how the Claimant managed to sign a forged
employment contract.
33. In conclusion, the Respondent states that the DRC should only upheld the contract 3
uploaded in TMS as valid and binding contract. Also, the Respondent requests that the DRC
considers that the Claimant had no valid work permit and that he left the Respondent in
March 2020, only to return to his club of origin in August 2020.
34.
Alternatively, the Respondent deems that it will be maximally liable to pay the Claimant
Currency country B 3,500 for the period between February and August 2020 on the basis
of the contract 3 uploaded in TMS, but that the Claimant had already received Currency
country B 3,900.
e. Request FIFA for additional information
35. After FIFA’s request to be provided with the originals of the abovementioned contracts, the
Claimant failed to reply to said request and the Respondent explained that it is not in the
possession of any originals. The Claimant also failed to reply to FIFA’s request, to confirm
whether or not he had received the amount of Currency country B 3,900.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
36. 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 presented to FIFA on 22 May 2021 and submitted for decision on
14 October 2021. Taking into account the wording of art. 34 of the October 2021 edition of
the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
37. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Country A player and a Country B
club.
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38. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (August 2021 edition) and
considering that the present claim was lodged on 22 May 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
39. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
40. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
41. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute which contract is at the bases of
their employment relationship, taking into account the various documents submitted by the
parties.
42. What is more, the parties appear to disagree who of the parties is to be held responsible for
the unilateral termination of the contract on 18 June 2020 by the Claimant.
43. In this context, the Chamber acknowledged that it its task was to determine which contract
is to be taken into account for the assessment of the matter at hand, and whether such
contract was terminated with or without just cause by the Claimant on 18 June 2020.
44. Entering into the analysis of which contract is to be upheld, the members of the Chamber
first of all wished to point out that the argumentation submitted on behalf of the Respondent
is based on various allegations, none of which are backed by clear documentary evidence or
clear and unambiguous explanations.
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45. What is more, the members of the Chamber noted that during the submission phase of the
matter at hand, a discussion as to the allegedly forgery of several documents and/or contracts
between the parties arose. In this respect, the members of the Chamber took note that the
Respondent had provided an expert report, stating that the signatures on contract 1 and 2
had been falsified, but also that – despite having been invited to do so - none of the parties
was able to provide originals of said documents or clarify clearly and unambiguously, why in
the matter at hand different contracts were signed. The Respondent confirmed that it never
was in the possession of the originals of the contracts 1 and 2 providing for the salary of EUR
7,500 and Currency country B 3,000, nor of the contract 3 uploaded in TMS.
46. What is more, the members of the Chamber deemed that from the circumstances described
by the parties, it could be established – based on the loan period of the Claimant with the
Respondent between 30 January 2020 and 30 June 2021 and the alleged salary payment of
Currency country B 3,900 – it appears that the parties at hand started the execution of contract
1.
47. Having evaluated the above circumstances, the members of the Chamber further concluded
that the Claimant – given the explicit contestation of the Respondent and the fact that the
document does not hold the Respondent’s signature – was not able to prove that the contract
2 was validly concluded between the parties. On the other hand, the allegations of the
Respondent that the contract 1 is ‘fabricated’ and that the signatures on said contract
were falsified, are also not backed by any form of decisive and satisfactory documentary
evidence.
48. Finally, the members of the Chamber considered that contract 2 is in itself contrary to
contract 3, which is uploaded in TMS, but which is only available in the Country B language
and which therefore can also not be taken into account.
49. Based on all the foregoing circumstances, as well as the overall circumstances in the case file,
the members of the Chamber decided that the only contract that can be taken into account
for the assessment of the matter at hand, is the contract 1, providing for a monthly salary of
Currency country B 3,000.
50. Furthermore, the members of the Chamber analysed the circumstances surrounding the
termination of the contract, and noted that the Claimant explained that during the validity of
the contract, he did not receive any salary payments at all, however, on the other hand, not
denying that at least an amount of Currency country B 3,900 was paid to him by the
Respondent.
51. Following the reasoning that the Claimant, in the period between February and May 2020,
had received an amount of Currency country B 3,900, whereas he was entitled to a total
amount of 4 x 3,000 = Currency country B 12,000, the members of the Chamber concluded
that, at the moment of the termination of the contract, i.e. 18 June 2020, an amount of
Currency country B 8,100, corresponding to more than 2.5 monthly salaries, remained
outstanding. Moreover, the Chamber took into account that on 1 June 2020, the Claimant had
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put the Respondent in default for the amount of a higher amount, i.e. EUR 55,000, providing
it a 15 days’ deadline to remedy its default, however to no avail.
52. Recalling the provisions set out in art. 14bis par. 1 - according to which in the case of a club
unlawfully failing to pay a player at least two monthly salaries on their due dates – the player
will be deemed to have a just cause to terminate his contract, provided that he has put the
debtor club in default in writing and has granted a deadline of at least 15 days for the debtor
club to fully comply with its financial obligation(s).
53. As a result, the Chamber concluded that in the matter at hand, as 2.5 monthly salaries
remained outstanding and the Respondent had therefore seriously neglected its financial
obligations towards the Claimant - the Claimant had just cause to unilaterally terminate the
contract on 18 June 2020.
54. In conclusion, the Respondent is to be held liable for the early termination of the employment
contract and the Claimant is entitled to outstanding remuneration and compensation for
breach of contract.
ii. Consequences
55. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
56. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 3 monthly (partially)
outstanding salaries under the contract, amounting to Currency country B 8,100.
57. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the contract at the moment of the termination, i.e. Currency country B
8,100 (times 2,100 + 2 x 3,000).
58. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of
5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
59. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Chamber
firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the player under the existing contract and/or the new
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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.
60. 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.
61. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
62. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of Currency country B 39,000 (i.e. the residual value of the contract) serves as
the basis for the determination of the amount of compensation for breach of contract.
63. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
64. Indeed, the player found employment with his club of origin, Club A, where he returned
after the termination of his loan with the Respondent, and was alter loaned to another
Country A club, Club C. In accordance with the pertinent employment contract which was
available via the TMS, the player was entitled to approximately EUR 483 (or Currency country
A 5,000) per month. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of EUR 6,279 (or approximately Currency country A 12,280).
65. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber confirmed that the contract termination took
place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation.
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66. In this respect, the DRC decided to award the amount of additional compensation of
Currency country B 9,000, i.e. three times the monthly remuneration of the player.
67. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of Currency
country B 35,720 to the player (i.e. Currency country B 39,000 minus Currency country B
12,280 plus Currency country B 9,000), which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
68. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 22 May 2021 until the date of effective payment.
iii. Compliance with monetary decisions
69. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the concerned
party to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
70. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
71. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of notification
of the decision, failing which, at the request of the Claimant, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become immediately effective on the Respondent in
accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
72. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
73. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8 of
the Regulations.
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d. Costs
74. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures
are free of charge where at least one of the parties is a player, coach, football agent, or match
agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on
the parties.
75. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
76. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant, the following amount:
- Currency country B 8,100 as outstanding remuneration plus 5% interest p.a. until the
date of effective payment as follows:
o on the amount of Currency country B 2,100 as from 1 April 2020.
o on the amount of Currency country B 3,000 as from 1 May 2020.
o on the amount of Currency country B 3,000 as from 1 June 2020.
- Currency country B 35,720 as compensation for breach of contract without just cause plus
5% interest p.a. as from 22 May 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4. Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5. Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
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