Acórdão do FIFA
Processo 102161_2022-01-05

Data
05/01/2022

DRC Overdue Payables


Texto da decisão

Decision of the
Dispute Resolution Chamber
passed on 13 October 2021
regarding an employment-related dispute concerning the player A

BY:
Mario Flores Chemor (Mexico)

CLAIMANT:
Player A, Country A
Represented by XXX

RESPONDENT:
Club B, Country B
Represented by XXX

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I.

Facts of the case

1.

On 12 January 2021, the Country A player, Player A (hereinafter: the player or the Claimant)
received an employment offer from the Country B club, Club B (hereinafter: the club or the
Respondent) providing for, inter alia, the following conditions (hereinafter: the employment
offer):
a.
b.
c.
d.
e.
f.
g.

Duration: from 31 January 2021 until 30 April 2021;
Remuneration: EUR 6,000 net, being EUR 2,000 net per month;
“One ticket for the player”;
Accommodation: three monthly instalments of EUR 100;
Car: three monthly instalments of EUR 200;
Bonus: EUR 2,000 if the club is promoted to the 1st division; and
“If the championship is extended on May 2021 one salary more”.

2.

The abovementioned conditions were discussed by the player and a club’s representative via
WhatsApp. In addition, the document comprising the employment offer was signed by the
club and countersigned by the player.

3.

On 29 January 2021, the player and the club signed an employment contract valid as from
the date of signature until 30 April 2021 (hereinafter: the employment contract).

4.

In accordance with clause 1.3 of the employment contract, the club undertook to pay the
player a monthly remuneration of EUR 200 net.

5.

Clauses 2.1 and 2.2 of the employment contract stipulated the following:
“2.1. The present Contract is regulated by the provisions of the Standard Employment
Contract, as these have been agreed between the Country B Football Association and the
Country B Footballers´ Union and as these provisions have been codified in Annex 1 of the
Country B Football Association Registration and Transfer of Players Regulations.
2.2. The terms of the Standard Employment Contract constitute an integral part of the
present Contract having gull and direct implementation”.

6.

Additionally, clause 14.3 of the Annex 1 to the employment contract (i.e. the Standard
Employment Contract) read as follows: “This Contract and the Player’s Employment
Agreement constitute the entire agreement between the Club and the player and supersede
any and all preceding agreements between the Club and the Player regarding the
employment period mentioned in clause 1 of the Players’ Employment Agreement”.

7.

On the same date, i.e. 29 January 2021, the parties allegedly signed an image rights contract
(hereinafter: the image rights contract), by means of which the club undertook to pay the

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player an additional monthly remuneration of EUR 1,800 net, as well as the following
benefits:
a.
b.
c.
d.
e.

“One ticket for the player”;
Accommodation: three monthly instalments of EUR 100;
Car: three monthly instalments of EUR 200;
Bonus: EUR 2,000 if the club is promoted to the 1st division; and
“If the championship is extended on May 2021 one salary more”.

8.

A copy of the image rights contract was provided by the player without it being countersigned
by the club.

9.

On an unspecified date, the club supposedly requested the player to sign a document dated
30 April 2021, which stipulated that he would continue to train and play by the club during
the extended period of May 2021, “without demanding compensation”. The document was
not signed by the player.

10. On 3 May 2021, the player put the club in default and granted it a 10-day deadline in order
to proceed with the payment of EUR 6,900 net, corresponding to the salaries, car and
accommodation allowances for the months of February, March and April 2021.
11. On 8 and 15 May 2021, the club played two matches in the 2nd division of the national
championship, respectively against Club C and Club D.
12. On 17 June 2021, the player put the club in default and granted it with a further 10 days in
order to proceed with the payment of EUR 9,200 net, corresponding to the salaries, car and
accommodation allowances for the months of February, March, April and May 2021.
13. On 18 June 2021, the club’s representative, Mr XXX (hereinafter: the club’s representative),
replied to the player’s notice informing that he was taking over the administration of the club,
as well as requesting a copy of the relevant agreements concluded to assess the debt towards
the player.
14. On the same date, the player’s representative reiterated his requests and mentioned that if
the club’s representative was indeed taking over the administration of the club, he should
have access to the relevant documentation.
15. On 13 July 2021, the player travelled from City B, Country B to City A, Country A. The flight
ticket costed EUR 137, being EUR 122 as the ticket price and EUR 15 as luggage costs.

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II. Proceedings before FIFA
16. On 16 July 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed herein below.
a. Claim of the player
17. According to the player, the club divided his remuneration in two parts i.e. a minor part
included in the employment contract and the remaining included in the image rights contract.
In this regard, the player stated that the club acted in bad faith by not providing him with a
signed copy of the image rights contract, as well as that such document “contains the exact
same benefits in favour of the player as those contained in [the employment offer]”.
Consequently, the player submitted that the image rights contract was a part of the
employment relationship and, thus, should be deemed as binding.
18. Subsequently, the player maintained that the employment relationship with the club was
extended for the month of May 2021 and submitted evidence that the club played two
matches during this period: on 8 and 15 May 2021. As such, the player claimed that he should
also be entitled to an additional monthly salary of EUR 2,000 net, plus car and housing
allowance, as described in the employment offer and in the image rights contract.
19. Finally, the played recalled the content of art. 12bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP) and requested to be awarded the outstanding remuneration
amounting to EUR 9,200 net (i.e. salaries, car and housing allowances from February to May
2021), plus 5% interest as from the due dates. At the end, the player held that sporting
sanctions should be imposed on the club.
b. Reply of the club
20. First and foremost, the club pointed out that “no image rights has ever been agreed and
signed […] because the player did not disclose his previous medical condition and when being
under the relevant medical examinations and checks the club noticed the players previous
medical condition and status had not been disclosed. Instead of revoking the relevant offer
the parties decided and agreed to sign only the contract of employment so as to give the
player the opportunity either to restore and regain his medical status and condition or to be
able to find a new employer and conclude a transfer”.
21. Therefore, the club claimed that the Dispute Resolution Chamber does not have jurisdiction
to adjudicate on the “not signed and enforced” image rights contract – which was allegedly
never concluded between the parties.
22. As to the substance, the club remarked that the image rights contract could not be enforced
in any scenario. In addition, the club stated that there was no employment relationship
between the parties and, hence, that the player’s claim should be rejected

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c. Rejoinder of the player
23. In his rejoinder, the player contested the club’s allegations as to the admissibility of the claim.
In particular, the player pointed out that the club was acting in bad faith by disputing the
signature of the image rights contract.
24. In support of his argumentation, the player remarked that the image rights contract contained
the exact same benefits mentioned in the employment offer, as well as that it had the same
duration of the employment contract. In doing so, the player once again concluded that the
image rights contract was “meant to be an integral part of the actual employment
relationship, in the sense that it was directly linked to the services of the player as an employee
of the club”.
25. Consequently, the player claimed that FIFA was competent to hear the entire dispute.
26. In continuation, the player argued that the club contradicted itself by firstly acknowledging
that the employment contract was concluded between the parties, and then arguing that
there was not an employment relationship between them.
27. In this context, the player recalled the content of the employment offer and maintained that
it would not make sense for him to leave his previous work and initiate an employment
relationship with the club for such an irrelevant amount as the one described in the
employment contract. What is more, the player informed that the remuneration therein
prescribed was even lower the Country B minimum wage, amounting to EUR 870 per month.
28. As to the medical condition invoked by the club in its statement of defence, the player claimed
that if the club had doubts about his health, it would have decided not to sign him at all.
Thus, the player mentioned that not only he performed his services for the duration of the
employment contract, but that said term was dully extended by the parties until the end of
May 2021.
29. Finally, the player explained that he bought his own flight ticket to return to his home country
on 13 June 2021. Such ticket should thus be reimbursed as contractually agreed. Accordingly,
the player recalled his requests for relief as to the outstanding remuneration and amended
his claim in order to request an additional amount of EUR 137, corresponding to the flight
expenses (i.e. EUR 122 as the ticket price and EUR 15 as luggage costs).
d. Final comments of the club
30. In its final comments, the club reiterated its own argumentation as to the admissibility of the
claim and the non-execution of the image rights contract.
31. In particular, the club informed that the player arrived with a “diminished reputation” and
only played 3 games in the national league. Moreover, it underlined that “the DRC does not

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have jurisdiction to adjudicate about the alleged not signed and enforced image agreement
which is not attached by the Claimant”.

III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
32. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. Taking
into account the wording of art. 31 par. 1 in combination with 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.
33. Subsequently, the Single Judge 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 edition), he is, in principle, competent to deal
with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Country A player and a Country B club. Likewise, and
while referring to art. 24 par. 1 lit. a) of the Procedural Rules, the Single Judge pointed out
that he is competent to adjudicate on the player’s claim given that the amount in dispute is
lower than USD 200,000.
34. The above notwithstanding, the Single Judge acknowledged that the club challenged FIFA’s
competence to adjudicate on image rights agreements, such as the image rights contract filed
by the player.
35. In this context, the Single Judge firstly wished to recall that, in principle, FIFA is not competent
to decide on agreements which subject-matter is the license of image rights, as those are not
employment-related agreements. However, in line with the DRC’s long-standing
jurisprudence, such conclusion might be different if specific elements of the alleged image
rights agreement suggest that it was in fact meant to be part of the actual employment
relationship.
36. In casu, the Single Judge was of the position that such elements clearly exist. In particular, he
noted that the image rights contract contains, inter alia, stipulations regarding bonuses
related to the performance of the team, accommodation and the use of a car – which are
typically included in employment contracts and not in image rights agreements, since they do
dot pertain to the use of a player’s image, name, likeness, etc. but in fact are related to the
performance of the payer as a footballer. Furthermore, the Single Judge was also cognisant
that the image rights contract was concluded on the same date as the employment contract
and for the exact same duration – even including the possibility of an extension following the
duration of the national championship.

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37. Consequently, in line with the well-established jurisprudence of the Dispute Resolution
Chamber, the Single Judge deemed that the image rights contract should be considered as
an integral part of the employment relationship between the player and the club.
38. For the sake of good order, the Single Judge is aware that the club disputes that the image
rights contract was ever concluded between the parties based, inter alia, on the lack of its
signature and in the player’s medical condition. Nevertheless, the Single Judge considered
that said opposition relates to the substance of the matter and will be thus analysed further
below.
39. Therefore, the Single Judge decided that he is competent to hear the entire dispute at stake.
40. Finally, the Single Judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (August 2021 edition), and considering
that the present claim was lodged on 16 July 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
41. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party that asserts a fact has the burden
of proving it.
c. Merits of the dispute
42. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
43. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this case pertains to a claim for outstanding
remuneration only, lodged by the player against the club in connection with the employment
relationship previously existing between them.
44. In this context, the Single Judge observed that it remained undisputed that the employment
contract was indeed signed by the parties and, thus, that the player rendered his services to
the club as a professional footballer. In this respect, the Single Judge noted that the club

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suggested, in its statement of defence, that it did not have an employment relationship with
the player, however he considered that this allegation was inconsistent by the fact that the
club expressly confirmed that the employment contract was signed “so as to give the player
the opportunity either to restore and regain his medical status and condition or to be able to
find a new employer and conclude a transfer”.
45. In addition, the Single Judge was also mindful that the club did not contest its failure to
comply with the financial obligations established in said contract. What is more, the Single
Judge took due consideration of the fact that the club did not dispute either that its
relationship with the player was extended until the end of May 2020 (and even provided a
waiver supposedly delivered by the player but lacking his consent). Along these lines, the
Single Judge considered that the player was able to prove that he continued rendering his
services to the club during such month.
46. In view of the foregoing, the Single Judge held that the player was entitled to (at least) EUR
200 net per month – as stipulated in the employment contract – and that such remuneration
was outstanding for the months of February, March, April and May 2021. Consequently, the
Single Judge was firm to determine that the club should be liable to pay the player the total
amount of EUR 800 net in accordance with the principle pacta sunt servanda.
47. Moreover, taking into consideration the player’s requests for relief as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Single Judge decided to award
the player interest at the rate of 5% p.a. on the outstanding amounts as from the date in
which each instalment fell due until the date of effective payment
48. Having established the above, the Single Judge went on analysing the parties’ submissions as
to the image rights contract and observed that, as anticipated above, they strongly dispute
whether the document was indeed concluded and the consequences that follow.
49. In this respect, the Single Judge firstly noted that the player, on his part, referred to the
content of the employment offer previously received from the club and claimed that the exact
benefits were provided for in the image rights contract. Additionally, the player held that the
club unilaterally decided to divide his remuneration under two different agreements, as well
that it refused to provide him a signed copy of the image rights contract. Finally, the player
pointed out the insignificancy of the remuneration established in the employment contract
vis-à-vis the Country B minimum wage, as well as it made reference to the waiver that the
club allegedly sent him in relation to the extended month of May 2020, in order to
demonstrate its bad faith.
50. On the other hand, the Single Judge was also mindful that the club strongly disputed the
signature of the image rights contract. In this respect, the club mentioned that, at the time
of his arrival at the club, the player was facing medical difficulties, so that they mutually
decided to depart from the execution of the image rights contract and instead only conclude
the employment contract.

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51. In view of this dissent between the parties, the Single Judge recalled the content of art. 13,
par. 5 of the Procedural Rules and started his considerations by highlighting that the copy of
the image rights contract filed by the player was not signed by the club. As such, in principle,
it would seem that the player failed to prove that the parties entered into such contract.
52. Likewise, the Single Judge referred to clause 14.3 of the Annex 1 to the employment contract
and pointed out that the employment contract would, prima facie, constitute the entire
agreement between the parties – which would then supersede any agreement concluded by
the parties by means of the employment offer.
53. The above notwithstanding, the Single Judge took due consideration of the club’s position
explaining why the parties allegedly only concluded the employment contract substantially
departing from the amounts due to the player initially agreed in the employment offer. In
particular, the Single Judge noted that the club maintained that such reduction was because
of the alleged “medical status” of the player.
54. The Single Judge was not persuaded by the club’s allegation. Indeed, not only the club did
not present a single piece of evidence as regards the player’s “medical status”, but for the
Single Judge it defies any logic that the player would have agreed to a EUR 2,000 monthly
salary just to consent to a massive 90% reduction a few days later.
55. The Single Judge also found quite telling that if one takes the amounts established in the
employment contract and those provided in the image rights contract, the added amount is
exactly the same as the one initially agreed by the parties in the employment offer.
56. With all the above in mind, the Single Judge wished to refer to the principle of the primacy
of reality, applicable in the majority, if not in all labour law systems, which dictates that facts
must be given preference over what parties state in legal texts, documents, and agreements.
Put differently, whenever the facts clearly contradict the parties’ statements in the documents
at the basis of their relationship, the former shall prevail.
57. Along those lines, the Single Judge deemed that it was his task to analyse whether the factual
framework of the case at stake, together with the evidence on file, could sufficiently justify
the player’s claims as to the conclusion of the image rights contract – and consequently hold
the club liable for the amounts requested by the player.
58. With all the above in mind, the Single Judge was comfortably satisfied that the player was
able to demonstrate that the conditions established in the employment offer were, as a
matter of fact, those finally agreed by the parties, irrespective of which amounts were actually
inserted in the employment contract or the image rights contract.
59. Again, as mentioned before, the Single Judge considered unpersuasive the club’s
argumentation for the massive discrepancy between the player’s salary provided in the

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employment offer and that foreseen in the employment contract. In addition, the Single
Judge emphasised that the conditions established in the employment offer were identical to
the ones provided for in the employment contract and the image rights contract and,
moreover, that said conditions were also discussed via WhatsApp between the player and a
club’s representative. In particular, the Single Judge highlighted that that those conversations
clearly established that the player would be entitled to a monthly remuneration of EUR 2,000
(i.e. the remuneration mentioned in the employment contract plus the remuneration
mentioned in the image rights contract).
60. Although satisfied with the above line of reasoning, the Single Judge wished to also outline
that in order for a contract to be considered as valid and binding, the signature of the parties
is not the sole element to determine their consent. Instead, the validity and the enforcement
of the contract should be established on the basis of a comprehensive understanding of all
the facts and actions taken by the parties within the context of their relationship. Whatever
the case may be, and for the reasons exhaustively set out above, the Single Judge considered
as proven that the club effectively agree to pay to the player the remuneration provided in
the employment offer.
61. Taking into account the abovementioned considerations, the Single Judge decided that the
club should be liable to pay to the player the following amounts:
a.

EUR 2,300 as the player’s remuneration from February 2021;

b.

EUR 2,300 as the player’s remuneration from March 2021;

c.

EUR 2,300 as the player’s remuneration from April 2021; and

d.

EUR 2,000 as the player’s remuneration from May 2021, bearing in mind that according
to the employment offer and the image rights contract, the player is only entitled to one
extra “salary” for the extended month i.e. without the side benefits of accommodation
and car.

62. At this point, the Single Judge once again referred to the constant practice of the Dispute
Resolution Chamber and decided to award the player interest at the rate of 5% p.a. on the
outstanding amounts as from the date in which each instalment fell due until the date of
effective payment.
63. For the sake of completeness, the Single Judge highlighted that the player had also requested
the reimbursement of a flight ticket to his home country under the wording of the image
right contract and the employment offer. The Single Judge also noted that the player
presented evidence of having purchased such flight ticket. In spite of not having further
specifications in this regard, the Single Judge was of the opinion that the player’s request was
contractually based and was not disputed by the club. Thus, he decided that the

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reimbursement should also be granted as claimed, accrued with 5% interest p.a. as from the
date of the claim.
ii. Art. 12bis of the Regulations
64. In continuation, taking into account the applicable Regulations, the Single Judge referred to
art.12bis par. 2 of the Regulations, which stipulates that any club found to have delayed a
due payment for more than 30 days without a prima facie contractual basis may be
sanctioned in accordance with art. 12bis par. 4 of the Regulations.
65. To this end, the Single Judge confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due for more than 30 days, and granted the club with
10 days to cure such breach of contract.
66. Accordingly, the Single Judge confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
67. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the second offense by the club within the last two years, the Single Judge
decided to impose a reprimand on the club in accordance with art. 12bis par. 4 lit. b) of the
Regulations.
68. In this connection, the Single Judge highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
iii. Compliance with monetary decisions
69. Finally, taking into account the applicable Regulations, the Single Judge 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 Single Judge 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 Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of notification

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of the decision, failing which, at the request of the player, 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 club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
73. The Single Judge 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.
d. Costs
74. The Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
75. Likewise and for the sake of completeness, the Single Judge 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 Single Judge concluded the 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 admissible.

2.

The claim of the Claimant is partially accepted.

3.

The Respondent, Club B, has to pay to the Claimant, the following amounts:
-

EUR 2,300 as outstanding remuneration plus 5% interest p.a. as from 1 March 2021 until
the date of effective payment;

-

EUR 2,300 as outstanding remuneration plus 5% interest p.a. as from 1 April 2021 until
the date of effective payment;

-

EUR 2,300 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021 until
the date of effective payment;

-

EUR 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021 until
the date of effective payment; and

-

EUR 137 as outstanding amount plus 5% interest p.a. as from 16 July 2021 until the date
of effective payment.

4.

Any further claims of the Claimant are rejected.

5.

A reprimand is imposed on the Respondent.

6.

Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.

7.

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.

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8. 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.
9. 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).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777

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