Labour Disputes
Texto da decisão
REF FPSD-6873
Decision of the
Dispute Resolution Chamber
passed on 24 November 2022
regarding an employment-related dispute concerning the player Godberg
Barry Cooper
COMPOSITION:
DE WEGER, Frans (The Netherlands), Chairperson
LUKASEK, Peter (Slovakia), Member
PERLEMUTER, Jerome (France), Member
CLAIMANT:
Godberg Barry Cooper, Italy
Represented by Mattia Grassani
RESPONDENT:
FK Kukesi, Albania
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I. Facts of the case
1.
On 30 January 2020, the Italian player, Mr Godberg Barry Cooper (hereinafter: the
Claimant or the player), and the Albanian club, FK Kukesi (hereinafter: the club or the
Respondent), entered into an employment relationship valid for “1 and half Football
Season”.
2.
The parties submitted two different versions of the employment contract allegedly signed
on 30 January 2020.
3.
According to the contract provided by the player (hereinafter: the Player’s Contract), the
main terms and conditions of employment were as follows:
• Term: one and half football season, effective from the date of entry into force of this
contract (in the player’s view: from 31 January 2020 until 31 July 2021);
• Remuneration: EUR 2,000 per month, payable every 10th day of each subsequent
month.
4.
The specimen of the Player’s Contract filed by the player does not bear the club’s
signature.
5.
According to with the contract provided by the club (hereinafter: the Club’s Contract), the
main terms and conditions of employment were as follows:
• Term: one and half football season, effective from the date of entry into force of this
contract (in the club’s view: from 31 January 2020 until 31 May 2021);
• Remuneration: ALL 26,000 per month, payable every 10th day of each subsequent
month.
6.
The specimen of the Club’s Contract filed by the club contains the signatures of both
parties.
7.
Furthermore, per the information available in the Transfer Matching System (TMS), the
relevant seasons in Albania were as follows:
• Season 2020/2021: from 1 July 2020 until 30 June 2021;
• Season 2021/2022: from 1 July 2021 until 30 June 2022.
8.
In March and April 2020, the player allegedly exchanged messages with a club
representative via the electronic application WhatsApp regarding outstanding salaries.
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9.
On 7 and 19 August 2020, the player allegedly received a confirmation from the club’s
representative that his salary amounted to EUR 2,000.
10. On 18 May 2021, the player sent the club a letter requesting payment of EUR 18,000 within
10 days, corresponding to his salaries from March to June 2020, plus December 2020 to
April 2021 (i.e. EUR 2,000 each).
11. On 25 May 2021, the player sent the club a new correspondence stating inter alia as
follows: “the player will be come back from ALBANIA as he cannot stay there, because he has
not any possibility to live in a proper way as we wrote in the last letter we sent”.
12. On 28 May 2021, the club replied to the player’s letter via email and informed that the
player was entitled to a monthly remuneration of ALL 26,000 only. Furthermore, the club
provided the player with a certificate stating that the entire remuneration due to the
player during the term of their employment relationship had been paid, and the player
was considered to have terminated their contract without just cause.
13. On 7 April 2022, the player put the club in default and requested payment of EUR 22,000
(i.e. salaries for March, April, May, June, November, and December 2020, plus January,
February, March, April, and May 2021) setting a 10 days’ time limit in order to remedy the
default.
14. On 20 April 2022, the club replied to the player’s letter of 7 April 2022 and insisted that it
had not overdue payables towards the player. Furthermore, club pointed out that the
player left the country in May 2021, hence no salary would be due for said month.
15. On 28 April 2022, the player reverted to the club and provided a copy of the Player’s
Contract. Accordingly, he challenged the club’s position as to the outstanding
remuneration and reiterated his request for EUR 22,000 to be paid within 7 days.
16. On 4 May 2022, the club rejected the player’s claim and recalled its previous letter.
II. Proceedings before FIFA
17. On 28 July 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the player
18. In his claim, the player explained that at the time he arrived at the club, he was forced to
sign to different contracts: the first one to be registered before the Football Association
of Albania (FSHF) referring to a monthly remuneration of ALL 26,000 (i.e., the Club’s
Contract); and the second one setting out the indeed agreed amount of EUR 2,000 (i.e.,
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the Player’s Contract). Furthermore, he argued that the club had never provided him with
a signed copy of the Player’s Contract.
19. While considering the above, the player argued that he was employed by the club from
January 2020 until July 2021, period in which the club “was not punctual in the payment of
the salary”. In this respect, he argued that the club used to delay the payment or not
deliver any amount at all, moreover he was also forced to sign “blank papers in order to
prepare exhibits”. The player filed a video recording to support his position.
20. The player argued that the constellation of agreements with different remuneration and
the systematically failure to comply with financial duties were a usual practice of the club.
In support of his allegations, he filed written statements of two other teammates (Mr
Patrick David Eze and Mr Mehdi Hetemaj), both confirming to have also signed two
agreements with different remunerations such as in the case at hand.
21. In light of the above, the player requested to be awarded a total amount of EUR 22,000
net, corresponding to outstanding salaries, plus 5% interest as from each due dates. In
particular, his requests for relief were as follows, quoted verbatim:
“In the light of all the described circumstances, the Player requests FIFA Football Tribunal:
-
to recognize that the FK Kukesi has delayed due payments for more than 30 (thirty) days
without a prima facie contractual basis, applying art. 12 bis FIFA RSTP.
-
to condemn FK Kukesi to pay the Player:
Euro 2.000 (two thousand euro) net plus 5% interests pa from 10th April 2020 until
the effective payment;
Euro 2.000 (two thousand euro) net plus 5% interests pa from 10th May 2020 until
the effective payment;
Euro 2.000 (two thousand euro) net plus 5% interests pa from 10th June 2020until
the effective payment;
Euro 2.000 (two thousand euro) net plus 5% interests pa from 10th July 2020 until the
effective payment;
Euro 2.000 (two thousand euro) net plus 5% interests pa from 10th December 2020
until the effective payment;
Euro 2.000 (two thousand euro) net plus 5% interests pa from 10th January 2021
until the effective payment;
Euro 2.000 (two thousand euro) net plus 5% interests pa from 10th February 2021
until the effective payment;
Euro 2.000(two thousand euro) net plus 5% interests pa from 10th March 2021 until
the effective payment;
Euro 2.000 (two thousand euro) net plus 5% interests pa from 10th April 2021 until
the effective payment;
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Euro 2.000 (two thousand euro) net plus 5% interests pa 10th May 2021until the
effective payment;
Euro 2.000(two thousand euro) net plus 5% interests pa 10th June 2021 until the
effective payment;
-
to impose on FK Kukesi disciplinary sanction applying art. 12bis point 4 FIFA RSTP.
to condemn FK Kukesi to pay all the proceedings costs and legal fees”.
b. Reply of the club
22. On 30 August 2022, the club filed its reply to the player’s claim.
23. The club initially referred to art. 23, par. 3 of the FIFA Regulations on the Status and
Transfer of Players (RSTP) and argued that the player’s claim was partially inadmissible,
insofar as the salaries from March until June 2020 were time-barred.
24. Subsequently, the club entered into the substance of the matter. In this respect, it filed a
copy of the Club’s Contract and argued that this was the only document valid and binding
on the parties.
25. Regarding the Player’s Contract, the club indicated that the player failed to meet his
burden of proof because the document provided was forged and had never been signed
by the club. In this respect, the club challenged the evidence filed by the player together
with his claim as follows:
• WhatsApp messages: the club pointed out that they were exchanged around 6
months after the employment relationship had begun. Furthermore, there was no
proof that the player was indeed part of said conversation;
• Written statements: allegedly produced by the player. The club filed a declaration
signed by both players confirming that they had never signed the documents
submitted with the player’s claim; and
• Video recording: inconclusive and “completely immaterial to the case”.
26. In addition to the above, the club highlighted that the player had not filed any complaint
during the 15 months of their employment relationship. Moreover, it argued that the
Club’s Contract was the one uploaded in the TMS – corroborating its version of the facts.
27. Having established the above, the club explained that it faced financial difficulties as a
result of the COVID-19 pandemic, however claimed having paid the entire outstanding
remuneration towards the player on 19 May 2021. In this respect, the club clarified that
the player’s salaries were delivered as described in the certificate sent to the player on 28
May 2021.
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28. In view of the foregoing, the club’s requests for relief were as follows:
“On account of all the foregoing, FK Kukesi respectfully requests the Dispute Resolution
Chamber of the FIFA Football Tribunal to issue a decision ruling that:
I. The Claim filed by Mr Godberg Barry Cooper against FK Kukesi is rejected, insofar as it is
admissible.
II.The costs of the proceedings, if any, shall be entirely born by Mr Godberg Barry Cooper.
III.Mr Godberg Barry Coopershall be ordered to pay to FK Kukesi a total amount of CHF
5,000 as a contribution towards its legal expenses incurred in connection with these
proceedings”.
c. Rejoinder of the player
29. On 12 September 2022, the player submitted his rejoinder on this matter.
30. Despite being effectively remitted on said date, the player’s rejoinder could not be
properly received by FIFA due to an Information Technology (IT) malfunction. As a
consequence, on 20 September 2022, the FIFA general secretariat informed the parties
that no rejoinder had been filed by the player and confirmed that the submission-phase
of these proceedings was closed (cf. art. 23, par. 1 of the Procedural Rules Governing the
Football Tribunal).
31. Notwithstanding the above and also on 20 September 2022, the player reacted to the
abovementioned correspondence of FIFA and provided evidence that his submission had
been delivered within the deadline granted by the FIFA general secretariat.
32. On 21 September 2022, the FIFA general secretariat informed the parties that the player’s
rejoinder had been properly sent on 12 September 2022 but could not be properly
received by FIFA’s internal server. Therefore, the letter of 20 September 2022 was
rectified, the club was provided with a copy of the player’s submission, and invited to file
its final comments on the matter at hand.
33. The player’s rejoinder is summarized as follows.
34. Initially, the player insisted that his claim was fully admissible. In this respect, the player
argued that the date triggering the statute of limitations should be 18 May 2021, when he
initially reached out to the club in connection with his outstanding remuneration.
35. In addition to the above, the player stressed that in May 2022 the Macedonian agent, Mr
Miro Kocevski, contacted him on the club’s behalf and acknowledged the debt. As such,
the two-years period established in the FIFA RSTP was interrupted.
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36. As to the substance, the player filed copies of electronic message conversations between
his agent and an alleged club’s representatives regarding the overdue payables sub judice.
In doing so, the player challenged the club’s position that he had never raised a complaint.
37. Subsequently, he insisted on the validity of the Player’s Contract. In this respect, he
explained that he was firstly employed by a Swiss club, with a salary around EUR 2,000
net, and then playing for the Romanian club AFC Chindia Tagoviste against payment of a
salary of EUR 4,000. Therefore, he pointed out that it was not credible that he would sign
a contract with the Respondent for a salary amounting to approximately EUR 222, as well
as that this amount was not compatible with a club playing UEFA competitions such as
the Respondent.
38. In light of the above, the player referred to the jurisprudence of the FIFA Dispute
Resolution Chamber (DRC) regarding the validity of contracts and stated that there were
enough elements to demonstrate that he was indeed entitled to a salary of EUR 2,000.
Additionally, he filed screenshots of conversations allegedly held with club’s
representatives and audio messages. Such documentation was provided in Italian only,
without translation.
39. Specifically regarding the written statements of his teammates, the player accused the
club of having threatened his colleague, Mr Eze to withdraw his witness statement. The
player filed a copy of his electronic messaging conversation with Mr Eze according to
which the latter informed of the threat and repetitively requested the Claimant to remove
Mr Eze’s witness statement from the file.
40. The player additionally informed that his bank account in Albania was closed on 31 August
2022 without any apparent reason.
41. The player summarized his conclusions as to this matter as follows:
“The above-described circumstances, together with the arguments outlined in the claim,
clearly shows the accuracy of the demand of the Player. In fact, the Respondent offered to
the Player a salary of EUR 2.000 (two thousand) per month in order to secure his
performance and enjoy his sporting activities. However, the Club did not give to the Player
a copy of the contract signed and did not file said document with the Albanian FA, rather
it lodged a version of the contract with a salary ten times lower than the one agreed. As
confirmed by the witness statement of the players Patrick David Eze and Mehdi Hetemaj,
the Respondent used to have such a behaviour towards all the players, may of which had
troubles for their salaries with Kukesi. The most important evidence filed by the Player,
that confirms the mala fide of the Respondent, is the Whatsapp screenshot in which Patrick
Friday Eze [...] communicates Cooper that he was threatened by the Respondent in order
to revoke his declaration. The foregoing, as already explained, shows:
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- the truthfulness of the witness statements of the Players;
- the mala fide of the Club that implicitly ratifies the content of the declarations of the
players”.
42. Given the foregoing, the player reiterated his requests for relief.
d. Final comments of the club
43. As per the letter from the FIFA general secretariat of 21 September 2022, on 3 October
2022 the club filed its final comments on this matter.
44. Firstly, the club challenged the part of the documentation filed by the player with his
rejoinder alleging that it was not translated to one of the FIFA procedural languages as
said documentation was either in German or Italian). Therefore, it claimed that these
pieces of evidence should be disregarded. Additionally, the club argued that the player
did not submit any convincing evidence capable of supporting the validity of the Player’s
Contract.
45. In continuation, the club echoed its position as to the partial inadmissibly of the claim. It
explained that there had never been a valid acknowledgment of debt from the club, hence
the due dates of each salary were the correspondent event giving rise to the dispute.
46. As to the substance, the club once again opposed the player argumentation and pointed
out that it was only based on an “improbability” that his salary amounted to ALL 26,000.
Contextually, it also highlighted that the salaries paid in Switzerland and Romania are
notably higher than the ones paid in Albania.
47. Specifically regarding the situation involving Mr Patrick David Eze, the club stated inter alia
as follows: “from the WhatsApp conversations between the Claimant and Mr Eze, it clearly
transpires that the latter confirms that the Respondent has no outstanding monies towards
him and that he ‘never took Kukesi to FIFA’ as there was an agreement which was duly fulfilled.
Besides, Mr Eze confirms that he does not want to be involved at all in this matter. Thus, Mr
Eze’s statement presented by the Claimant lacks any probatory value”.
48. Finally, the club acknowledged that the player had never denied having received the
payments mentioned by the club and “remained completely silent in this respect”.
Thereafter, it concluded that there was no financial obligation pending.
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III. Considerations of the Dispute Resolution Chamber
a. Admissibility and competence
49. 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 28 July 2022 and submitted
for decision on 24 November 2022. Taking into account the wording of art. 34 of the
October 2022 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.
50. 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, par.
1 lit. b) of the FIFA RSTP (July 2022 edition), the DRC is – in principle – competent to deal
with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Italian player and an Albanian club.
51. At this point, the DRC observed that the club disputed the admissibility of the rejoinder
of the player. Nevertheless, the Chamber confirmed the approach of the FIFA general
secretariat and acknowledged that the submission of the player was remitted within the
deadline granted but could not be received due to an IT malfunction. Therefore, the
Chamber determined that the player’s rejoinder and its annexes are admissible and shall
be taken into consideration for the analysis of this case. The DRC equally pointed out that
the club was provided with an opportunity to comment on this submission, hence
preserving the good procedural order and the club’s right to be heard.
52. In continuation, the DRC recalled the content of art. 23 par 3 of the FIFA RSTP (October
2022 edition), which stipulates that the Football Tribunal shall not hear any case if more
than two years have elapsed since the facts leading to the dispute arose and that the
application of said time limit shall be examined ex officio in each individual case.
53. On this note, the Chamber was mindful that the claim at hand was lodged in front of the
DRC on 28 July 2022. Thus, in line with the abovementioned art. 23, par. 3 of the FIFA RSTP,
any amounts fallen due before 28 July 2020 are affected by the statute of limitations.
54. On this note, the DRC was observant that the player requested inter alia payment of the
balance of his salaries from April until July 2020. As opposed to his position, the Chamber
considered that the date triggering the statute of limitations in the case at hand is the
date when each of the instalments fell due.
55. With the above in mind, the DRC decided that the player’s claim is partially barred by the
statute of limitations, insofar as it refers to the cited salaries from April until July 2020.
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Furthermore, the Chamber established that the player’s allegations regarding the
interruption of the prescription by putting the club in default lacked regulatory and legal
basis, hence should be set aside.
56. In light of the foregoing, the claim of the player was deemed partially inadmissible.
b. Applicable legal framework
57. In continuation, 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 FIFA RSTP (July 2022 edition), and considering that the present claim was
lodged on 28 July 2022, the cited edition of said regulations (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
c. Burden of proof
58. 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 TMS.
d. Merits of the dispute
59. 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
60. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it consists of a claim of a player against a club for
outstanding salaries.
61. On one hand, the DRC acknowledged that according to the player, despite his “official”
contract providing for a remuneration of ALL 26,000 (around EUR 200), he was indeed
entitled to a monthly remuneration of EUR 2,000 cf. a private agreement concluded
between the parties in parallel. As a consequence, he stressed that the club acted in bad
faith by making him sign two different documents, as well as by failing to pay the
remuneration in fact agreed. The Chamber took due note that the club, on the other hand,
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strongly opposed the player’s argumentation as to the signature of the Player’s Contract
and argued that it had fully complied with its financial duties per the Club’s Contract.
62. In view of this dissent between the parties, the DRC initially confirmed that the Player’s
Contract is not signed by the club. Likewise, the Chamber was also observant that there
is no evidence on file of any other written agreement or acknowledgement by the club of
the rights and obligations therein stipulated. In other words, the player did not advance
any other documentation to demonstrate the club’s consent to an agreement different to
the Club’s Contract.
63. As a consequence, the Chamber determined that the player bore the burden of proving
that said document was indeed concluded and/or that he was in fact entitled to a monthly
salary of EUR 2,000 instead of the ALL 26,000 undisputedly paid by the club during their
employment relationship (cf. art. 13, par. 5 of the Procedural Rules).
64. Against this background, the DRC turned its attention to the documentation on file and
noted that the player based his allegations inter alia on the written statements of his
teammates and on the insignificancy of the remuneration mentioned in the Club’s
Contract vis-à-vis his previous employments.
65. Regarding the written statements, the Chamber highlighted that FIFA has a zero-tolerance
against any type of abusive behaviour such as the one suggested by the player in his
rejoinder. Nevertheless, the DRC considered that the content of such statements was not
conclusive by itself to tilt the scale in favour of the player as to the outcome of the case at
hand. This is because said documentation does not alone demonstrate the validity of the
Player’s Contract and/or the player’s entitlement to a salary of EUR 2,000. At best, it could
demonstrate that the club would have made different contractual arrangements with
different players, but this does not mean that this was the Claimant’s case nor that he is
entitled to the remuneration sought.
66. Along the same lines, the DRC was of the opinion that the player’s allegations as to the
quantum effectively paid by the club in comparison to his previous contracts were of
speculative nature only, insofar as there are many different aspects that could possibly
be taken into consideration for establishing one’s remuneration.
67. In contrast, the DRC found it decisive that: (i) the player did not advance any explanation
nor supporting documentation of how the Player’s Contract was received from the club
(e.g. email exchange, electronic messaging, etc.); and (ii) the player was employed with the
club for more than a year and he could not demonstrate that he had ever received the
allegedly “correct” remuneration, nor that he sought clarification from the club in this
regard. On the contrary, the player limited himself to submit extracts of WhatsApp
conversations that were either untranslated or unconclusive as to the content and the
identity of the parties involved.
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68. Likewise, the Chamber considered especially noteworthy that on 28 May 2021 the club
forwarded to the player a copy of its financial statements, allegedly demonstrating that
the financial duties were fully complied with, and the player did not raise any objection
against it. In fact, it was quite the opposite: the player ceased contacting the club and did
only challenge the club’s narrative on 7 April 2022, almost a year after the employment
contract expired and the parties last exchanged correspondences.
69. On this note, the Chamber concurred with the club’s position according to which the
player’s inertia could reasonably generate the legitimate expectative that the agreement
had been properly fulfilled (venire contra factum proprium). In addition, the DRC deemed
that in case the player wanted to pursue a controverted credit such as the one sub judice,
he should have been proactive and reacted immediately.
70. Based on the foregoing, the DRC decided that the evidence provided by the player (when
analysed together with all the other elements of this case) could not establish to a
comfortable satisfaction degree that his version of the contract (i.e.. the Player’s Contract)
was indeed valid and binding to the parties. Contrario sensu, the Chamber concluded that
the behaviour of the parties (and especially of the Claimant) played a fundamental role
against his own argumentation.
71. Consequently, the only contract that governed the parties’ relationship was the Club’s
Contract. The corresponding remuneration paid to the player under said contract not
being in dispute in these proceedings leads to the conclusion that no other amounts are
due to the player.
72. Consequently, the DRC ruled that the claim of the player should be rejected insofar as it
is admissible.
e. Costs
73. 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.
74. 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.
75. 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, Godberg Barry Cooper, is rejected insofar it is admissible.
2. 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
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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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