Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 June 2007,
in the following composition:
Slim Aloulou (Tunisia), President (did not take part to the deliberations)
Percival Zola Majavu (South Africa), member
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), member
John Didulica (Australia), member
on the claim presented by the player
A, from X,
as “Claimant” / “Counter-Respondent”
against the club,
B, from Y,
as “Respondent” / “Counter-Claimant”
regarding outstanding remuneration
on the basis of an employment contract
concluded between the parties.
I.
Facts of the case
1.
On 20 January 2006, player A, the Claimant, signed a “private” employment
contract with club B, the Respondent, with a term to 31 May 2007.
2.
On 27 January 2006, the aforementioned parties signed also a “standard”
employment contract with a term from 27 January 2006 to 31 May 2007 and which
was registered at the Y Football Federation. Pursuant to this standard contract,
the Claimant was literally entitled to receive:
- USD 480,000 in four instalment of USD 115,000 on 25 February, 31
March, 30 April and 20 May 2006;
- USD 45,000 over 17 matches to be played in the 2006/2007 season;
- USD 230,000 in ten equal instalments as from 15 June 2006, with a
remaining amount of:
- USD 80,000 in the form of match bonuses divided into 34 matches in the
2006/2007 season (depending whether the Claimant is in the start lineup or is substituted).
3.
According to the financial provisions of the “private” employment contract, the
Claimant was entitled to receive:
- USD 265,000 net for the second part of the 2005/2006 season (period
between 20 January 2006 and 31 May 2006) as follows: USD 105,000 no
later than 15 February 2006, USD 115,000 due in four instalments (USD
30,000 on 25 February 2006, USD 30,000 on 31 March 2006, USD 30,000
on 30 April 2006 and USD 25,000 on 20 May 2006). The remaining USD
45,000 as match bonus of USD 2,650 per appearance.
- USD 530,000 net for the 2006/2007 season (1 July 2006 to 31 May 2007 as
follows: USD 210,000 no later than 15 July 2006, USD 230,000 due in ten
instalments of the 15th of each month from August 2006 up to and
including May 2007). The remaining USD 90,000 as match bonus of USD
2,650 per appearance.
4.
Finally, the parties agreed that the Respondent would meet the costs of the
Claimant's accommodation.
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Player A, from X / Club B, from Y
5.
On 19 September 2006, the Claimant filed an action against the Respondent with
FIFA and demanded salary payments as per the relevant due dates,
accommodation costs and bonus as follows:
-
USD 210,000
USD 230,000
USD 22,000
USD 40,000
15 July 2006 (agreed payment)
Salaries due from 15 August 2006 to 15 May 2007
Accommodation for 11 months
Bonus from 1 July 2006 to 31 May 2007
6.
The Claimant stated that he had injured his knee in May 2006 and had
subsequently agreed with the Respondent that he would undergo an examination
in X. After this examination, he had quickly recovered and was even able to play
for the X Association Team at the 2006 FIFA World Cup™.
7.
Furthermore, the Claimant stated that the Respondent had contacted his agent,
Mr. L, by telephone on 6 July 2006 and said that the Respondent was no longer
interested in his services and that he should look for another club. The Claimant
added that his agent had immediately rejected this notice of termination by the
Respondent and subsequently sent the latter a fax dated 10 July 2006, with a copy
to the Y Football Federation, pointing out that the parties still have a binding
employment contract valid until 31 May 2007. The Claimant asserted that he was
explicitly told by the Respondent not to come back but admitted having no
evidence in this respect.
8.
The Claimant also pointed out that he had neither ever received an official notice
of termination from the Respondent nor a notice when he should be back at the
Respondent’s campus. According to the Claimant, the outstanding salary payments
were the only indication that the employment contract had been unilaterally
terminated by the Respondent.
9.
Moreover, according to the Claimant, the Respondent had subsequently failed to
reply to a letter from his legal representative dated 25 August 2006, in which the
Respondent had been requested to comment on the aforementioned
circumstances. In this letter the Claimant stated that he was willing to continue
playing for the Respondent's team. Particular reference is to be made to the fact
that in the said letter the Claimant had requested the Respondent to comment
with regard to:
-
Non-receipt of an official notice of termination
Indication of reasons for the unilateral termination
Confirmation that the Claimant should seek for a new club
Reasons for the failure to pay the Claimant's salary
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Player A, from X / Club B, from Y
10.
In its reply, the Respondent emphasised in particular that the Claimant had not
met his obligations under the contract, i.e. cutting-off all communication and
failing to attend training sessions and matches as from July 2006, despite several
requests to do so.
11.
In this context, the Respondent presented a letter addressed to the Claimant dated
20 July 2006 in which it reminded the latter that its team had resumed training on
22 June 2006 and that the Claimant is still refusing to participate despite several
requests to do so by the Respondent. The Respondent also informed the Claimant
in the said communication that he would be fined for his conduct and requested
the Claimant one last time to resume training immediately.
12.
According to the Respondent, the Claimant failed to respond to this request and,
in particular, did not take part in its team's first game in the Y league on 6 August
2006.
13.
The Claimant's failure to attend the training sessions held on 9 and 10 August
2006 was confirmed by a notary public.
14.
In accordance with the Respondent's internal regulations, a club body decided on
7 August 2006 to fine the Claimant with an amount of EUR 100,000. This decision
was sent to the Claimant by a notary letter dated 15 August 2006.
15.
The Respondent terminated the contract with the Claimant by a letter dated 10
August 2006, a copy of which was sent to the Y Football Federation on 23 August
2006.
16.
The Respondent emphasised that it had not terminated the contract with the
Claimant because of his physical impediment, but rather because of his
misconduct, i.e. failure to attend training sessions and suspension of all contact.
The Respondent is of the opinion that it had justified reason for terminating the
contract pursuant to art. 28 and art. 30 of the Professional Football and Transfer
Instructions.
17.
In his second statement, the Claimant pointed out that it had been explained to
him on his arrival that only the employment contract dated 20 January 2006 is
relevant and that the standard employment contract dated 27 January 2006 had
been issued for tax and social reasons only. According to the Claimant, a
temporary address had been stated in the standard contract, which was only a
municipal guest house. This address was, however, of no significance and could
not be deemed as his relevant address, in particular not with regard to
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Player A, from X / Club B, from Y
correspondence of legal nature. Furthermore, no such address had been entered
in the private agreement dated 20 January 2006. Therefore, the Claimant requests
and expects that the Dispute Resolution Chamber will only rely on the terms of the
“private” contract dated 20 January 2006.
18.
Furthermore, the Claimant emphasised that the Respondent had been informed of
his whereabouts. He reiterated that he had been injured and had therefore
travelled to X with the Respondent's permission and that he might take part with
the X Association Team at the 2006 FIFA World Cup™ and afterwards would spend
the summer holidays in X. According to the Claimant, this fact was confirmed by
the contractual offer of three return flight tickets. In addition, the Claimant
asserted that his agent had been in regular telephone contact with the
Respondent. As a result of this contact, his agent had realised that the Respondent
was no longer interested in his services and had suspended him from training
sessions and the training camp. For this reason, his agent wrote to the Respondent
on 10 July 2006 insisting that he would like to continue the contractual
relationship.
19.
According to the Claimant, the Respondent's letter dated 20 July 2006, i.e.
instruction to attend trainings, had therefore been sent only after his agent's
letter to the Respondent and, in addition, it had been sent to an address at which
he could not be reached, even though the Respondent knew he was in X. No
correspondence sent to the player's address as set forth in the official contract
could be considered a notification to the Claimant. Moreover, the Claimant
alleged that all of the Respondent's actions had taken place after his agent had
contacted the Respondent.
20.
The Claimant does not deny that he did not attend the training camp and the
training sessions held by the Respondent's team. The reason lay, however, in the
actions of the Respondent, who had suspended him.
21.
The Claimant also pointed out that the notice of termination had been served by
the Respondent only after his agent's letter to the Respondent. In addition, the
notice of termination certified by the notary public had been sent to him only by
means of receipt of the Respondent’s answer in the proceedings before FIFA. Also,
the Respondent had not sent the notice of termination to his legal representative,
who had already contacted the Respondent by letter dated 25 August 2006.
22.
The Single Judge of the FIFA Players’ Status Committee decided on 26 January
2007 that the X Football Federation is authorized to provisionally register the
player with its affiliated club, C.
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Player A, from X / Club B, from Y
23.
In its second position, the Respondent rejected the arguments put forward by the
Claimant and referred to the standard contract the parties signed, where the
address of the Claimant was clearly indicated and which is to be considered the
one to which correspondence can be addressed.
24.
The Respondent reiterated that the Claimant did not implement his obligations by
failing to attend trainings and matches of the Respondent and for cutting the
communication. Thus, it deems having terminated the employment contract with
the Claimant for just cause. The Respondent added that the notification of the
said termination of contract was delivered to the Claimant by a notary public on
10 August 2006 on the address indicated in the contract, which is to be considered
valid.
25.
The Respondent invoked also that the Claimant’s statements are inconsistent with
one another. Once he argues that the reasons for failing to attend trainings and
matches of the Respondent, was due to the fact that he had been dismissed. On
the other hand, he does not accept the termination of the contractual relationship
since it was allegedly not sent to his actual address. Finally, he also mentioned that
he was unable to attend trainings due to his injury.
26.
The Respondent request the Claimant to pay USD 480,000 as well as the fine
imposed on him amounting to EUR 100,000 plus legal interest.
27.
In view of the counter-claim raised by the Respondent, the Claimant was again
invited to provide his position. The Claimant referred in particular to the
statement of the Respondent, according to which the latter allegedly confirmed
that the Claimant’s address is at the Z. With regard to the amount claimed, the
Claimant invokes that the Respondent does not provide any evidence or gives
details for such amount. The Claimant pointed as well out that the Respondent
does not provide evidence for any damage it incurred. Moreover, the Claimant
underlines that the Respondent surprisingly claims nearly the same amount than
he does in order to possibly enable the Dispute Resolution Chamber to set off the
two claim against each other.
28.
With regard to the fine claimed by the Respondent, the Claimant stressed that no
hearing was being held by the relevant deciding body. Moreover, he emphasized
that the reason for such fine, i.e. breach of contract allegedly committed by him, is
being questioned in the present dispute.
29.
In its final statement, the Respondent reiterated that the address contained in the
standard employment contract is valid and is to be considered the official address
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Player A, from X / Club B, from Y
of the Claimant. Furthermore, it maintains that by means of all the documents it
submitted so far in the present procedure, it substantiated its damage caused by
the Claimant. In particular, it explains that the termination of a contract causes
damage to the parties. Moreover, it maintains having had quite some expenses in
order to acquire the Claimant’s services.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 19 September
2006, as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) on matters pending before the decision making bodies
of FIFA are applicable on the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in connection with art. 22 (b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving an X player and a Y club regarding a
claim in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at the
basis of the present dispute was signed in January 2006 and the claim was lodged
at FIFA on 19 September 2006. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
(edition 2005, hereinafter: the Regulations) are applicable to the case at hand as
to the substance.
Entering into the substance of the matter, the Dispute Resolution Chamber
acknowledged the documentation contained in the file and, in view of the
5.
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Player A, from X / Club B, from Y
circumstances of the case at stake, focused its attention on the question whether
an unjustified breach of the relevant employment contract between the Claimant
and the Respondent occurred and which party is responsible for such a possible
breach of contract, and to verify and decide on the possible consequences of such
a breach of contract.
6.
In this respect, the members of the Chamber started by acknowledging that in
January 2006, the Claimant and the Respondent signed a “private” employment
contract and a “standard” employment contract respectively both valid until 31
May 2007.
7.
Moreover, the members of the Chamber took note that by virtue of the “private”
employment contract the Claimant was entitled to receive for the second part of
the 2005/2006 season (period as from 20 January 2006 until 31 May 2006) the total
net amount of USD 265,000 and for the season 2006/2007 (period as from 1 July
2006 until 31 May 2007) the total net amount of USD 530,000 (USD 210,000 by no
later than 15 July 2006, USD 230,000 payable in ten instalments from August 2006
up to and including May 2007 and the remainder of USD 90,000 as match bonus).
On the other hand, the Chamber took also note that under the “standard”
employment contract, the Claimant was, inter alia, entitled to receive the amount
of USD 480,000.
8.
In continuation, the Chamber noted that the employment relationship entered
into by and between the Claimant and the Respondent had been terminated by
the latter unilaterally and with immediate effect by means of its letter dated 10
August 2006, a copy of which was addressed to the Y Football Federation.
9.
In this respect, the members of the Chamber noted that whereas the Claimant
requested allegedly contractually agreed payments, i.e. USD 210,000 which was
due to be paid on 15 July 2006, USD 230,000 as salaries due to be paid as from 15
August 2006 until 15 May 2007 as well as bonus payments and the reimbursement
of costs for accommodation, the Respondent, on the other hand, stated that the
Claimant did not abide to the contractual obligations as provided in the contract,
particularly emphasizing that the Claimant failed to take part in the trainings as
well as in the first match of the club in the Y championship and did not inform it
of his whereabouts. Moreover, the Respondent requests the Claimant to pay USD
480,000 as well as the fine imposed on him amounting to EUR 100,000.
10.
In view of the above, the Dispute Resolution Chamber had, in a first step, to
analyse if the Respondent had just cause to terminate the contract it signed with
the Claimant.
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Player A, from X / Club B, from Y
11.
In this respect, at first, the members present at the meeting considered the
Respondent’s argument for having terminated the employment contract with the
Claimant. The Chamber took note that the Respondent mainly maintains that the
Claimant, despite notification dated 20 July 2006, by means of which it drew the
Claimant’s attention to his contractual obligations, failed to take part in the
trainings as from July 2006 and failed as well as in the first match of the club in
the Y championship. In order to corroborate its allegations, the Respondent
submitted several copies of notary certificates which record the absenteeism of the
Claimant at the trainings of the Respondent’s team on 9 and 10 August 2006.
Equally, the Respondent submitted a copy of its club bodies’ decision dated 7
August 2006 in which the Claimant was fined with an amount of EUR 100,000 for
breach of his contractual obligations.
12.
As a consequence, the members of the Chamber had to deliberate if the Claimant
was authorised or had any other reasons for not being at the disposal of the
Respondent as from July 2006.
13.
In this regard, the Chamber took note that the Claimant stressed having received
an injury in May 2006 and therefore went, with the authorisation of the
Respondent, to X for treatment and subsequently played with the X Association
Team during the 2006 FIFA World Cup Germany™. Moreover, the Claimant
particularly maintained that the coach of the Respondent’s team called his agent
by phone on 6 July 2006, informing that the Respondent is no longer interested in
his services, that he should not appear to trainings and that he should start
looking for new employment with another club. Furthermore, the Claimant stated
that, thereupon, his agent contacted the Respondent by means of his
correspondence dated 10 July 2006 and reminded the Respondent of the ongoing
contractual relationship between the two parties until 31 May 2007.
14.
Equally, while carefully reading the contents of the Respondent’s petition dated
20 October 2006 and submitted via the Y Football Federation, the latter confirmed
that it did not terminate the contract with the Claimant due to the latter’s
“disability to work” but rather for his alleged behaviour in contravention to the
terms of the contract. In the Chamber’s view, such statement show that the
Respondent was apparently aware of the player’s “disability to work” and that it
thus follows that the Respondent appears to have been aware of the player’s stay
in X.
15.
Moreover, the members of the Chamber deemed it important to underscore that
in accordance with the provisions contained in Annex 1 of the Regulations, clubs
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Player A, from X / Club B, from Y
are, as a general rule, obliged to release the players registered with them if these
players are called up by the association of the country of which they are nationals
in order to play for its national team. Thus, the Chamber pointed out that, based
on official sources known to the Chamber, the Claimant had been in Germany for
the 2006 FIFA World Cup Germany™, while representing his national team. For the
sake of good order, the Chamber clarified that, again in accordance with the
provisions contained in the Regulations, clubs must release their players also for
the period of preparation before the match, which is, for the final tournament of
an international tournament, such as the 2006 FIFA World Cup Germany™, 14 days
before the first match in the competition.
16.
Subsequently, the Chamber duly noted the Claimant’s explanations according to
which his agent was orally informed by the coach of the Respondent’s team on 6
July 2006 that his services were no longer needed and that he should look for a
new employment with another club. Moreover, the deciding body noted that the
Claimant’s agent addressed a letter dated 10 July 2006 to the Respondent pointing
to the valid employment relationship between him and the Respondent to be
valid until 31 May 2007.
17.
In view of the above, taking into account the aforementioned latter dated 10 July
2006 from the Claimant’s agent to the Respondent, and the corresponding
positive fax transmission report remitted to the deciding body, the Claimant
appears to have offered his services to the Respondent and, most notably, the
Respondent was informed of the player’s whereabouts, thus contrary to the
Respondent allegations. The Claimant showed through his action his willingness to
honour his part of the contract.
18.
In this connection, the members of the Chamber could not grasp why the
Respondent did not communicate directly with the Claimant via the latter’s agent,
but instead referred to the address indicated in the “standard” employment
contract signed between the two parties, to which it sent the relevant
correspondence to the Claimant.
19.
The Respondent’s unexpected reference to the “standard” employment contract
with the alleged address of the Claimant indicated therein to which it addressed
correspondence to the Claimant does not find the Chamber’s goodwill. The
Chamber’s appreciation was strengthened by the fact that all of the Respondent’s
actions towards the Claimant, i.e. its notification dated 20 July 2006, the notary
public reports dated 9 and 10 August 2006 as well as the notice of termination
dated 10 August 2006 took place after the Claimant’s agent had addressed a letter
to the Respondent pointing to the valid employment contract, i.e. on 10 July 2006.
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Player A, from X / Club B, from Y
20.
In view of all of the above, the Chamber unanimously reached the conclusion that
the reasons raised by the Respondent for having just cause to terminate the
employment contract with the Claimant have to be considered as unjustified.
Therefore, the Dispute Resolution Chamber concluded that the Respondent, by
means of its correspondence dated 10 August 2006, terminated the employment
contract it entered into with the Claimant without just cause.
21.
Before entering into the question of possible consequences for the Respondent for
having terminated the contract with the Claimant without just cause, for the sake
of completeness, the members referred to the fine one of the Respondent’s body
imposed on the Claimant in the amount of EUR 100,000 on 7 August 2006.
22.
In this context, having established that the Claimant did not breach the contract
with the Respondent but rather was able to demonstrate having offered his
services to the Respondent, the members of the Chamber came to the conclusion
that the fine imposed on the Claimant by the Respondent’s body amounting to
EUR 100,000 cannot be accepted. Moreover, the Chamber stressed that with
regard to the maximum possible monthly income of the Claimant for the season
2006/2007, the fine imposed on him is completely disproportionate and thus
cannot be accepted. Moreover and subsidiary, the deciding body pointed to the
fact that the Respondent failed to provide documentary evidence that the
Claimant’s right to participate in the relevant procedure and thus his right to be
heard in the said procedure which led to the imposition of the fine was granted.
23.
In continuation, and in application of art. 17 of the Regulations, the members had
to deliberate whether the Respondent is accountable for outstanding payments
and compensation towards the Claimant.
24.
In this respect, as far as the responsibility of the Respondent for outstanding
payments is concerned, the Dispute Resolution Chamber stated that the latter has
to pay to the Claimant the remaining value of the employment contract until the
effective date of termination of the contract.
25.
Considering that the contract was terminated by the Respondent on 10 August
2006, the Chamber concluded that the Respondent must pay the Claimant the
payments due until the effective end of the employment contract on a pro-rata
basis. As a consequence and in view of the above, the Respondent must pay to the
Claimant the amount of USD 64,242 considering the payments due for the season
2006/2007 under the private agreement.
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Player A, from X / Club B, from Y
26.
In continuation, the Chamber turned its attention to the consequences in
connection with the breach of the employment contract and concluded that in
accordance with art. 17 par. 1 of the Regulations the Respondent is liable to pay
compensation to the Claimant for the breach of contract.
27.
To this end, the Chamber referred to art. 17 par. 1 of the Regulations, in particular
to the non-exhaustive enumeration of objective criteria, and took into account the
remuneration due to the Claimant under the employment contract signed
between the parties to the present dispute for the season 2006/2007 as well as the
time remaining on the said employment contract as from the date the contract
was terminated by the Respondent. Equally, the Chamber considered that the
Claimant has been able to find a new club.
28.
In view of all of the above, the Dispute Resolution Chamber decided that an
amount of USD 330,000 appears to be reasonable and justified, considering in
particular the stance of the Respondent in the present procedure. Therefore, the
Respondent is liable to pay to the Claimant the compensation in the amount of
USD 330,000. Equally, the Respondent shall pay the Claimant USD 64,242 as
remuneration which was due to him under the validity of the employment
contract.
29.
As a result, the Chamber unanimously decided that the Respondent must pay to
the Claimant the total amount of USD 394,242.
30.
To conclude with, and taking into account the above considerations, the Chamber
decided that the counter-claim of the Respondent against the Claimant for having
breached the contract is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant/Counter-Respondent, player A, is partially
accepted.
2.
The Respondent/Counter-Claimant, club B, must pay to the Claimant/CounterRespondent, player A, the total amount of EUR 394,242 within 30 days as from
the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
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Player A, from X / Club B, from Y
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
4.
The Claimant/Counter-Respondent, player A, is directed to inform the
Respondent/Counter-Claimant, club B, directly and immediately of the account
number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
5.
Any further claim lodged by the Claimant/Counter-Respondent, player A, is
rejected.
6.
The counter-claim of the Respondent/Counter-Claimant, club B, is fully rejected.
7.
According to art. 61 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
General Secretary
Encl.
CAS directives
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Player A, from X / Club B, from Y