Labour Disputes
Texto da decisão
REF FPSD-6637
Decision of the
Dispute Resolution Chamber
passed on 13 October 2022
regarding an employment-related dispute concerning the player
Kevin Gnonher Boli
BY:
Frans de Weger (the Netherlands), Chairperson
Laurel Vaurasi (Fiji), member
Stefono Sartori (Italy), member
CLAIMANT:
Kevin Gnonher Boli, France
Represented by Sema Akman
RESPONDENT:
Samsunspor, Türkiye
Represented by Anıl Dinçer
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REF FPSD-6637
I. Facts of the case
1. On 4 September 2020, the French player Kevin Gnonher Boli (hereinafter the Claimant or
the Player) and the Turkish club Samsunspor (hereinafter the Respondent or the Club)
concluded an employment contract, valid from the date of signature until 31 May 2023
(hereinafter the Contract).
2. In accordance with clause 6 of the Contract, the Player was entitled, inter alia, to the
following amounts:
-
2020/2021 season:
•
EUR 70,000 to be paid as signing fee and paid in 2 instalments (EUR 35,000 on or
before 30 September 2020 and EUR 35,000 or on before 1 February 2021);
•
EUR 300,000 to be paid as monthly salary in 9 equal instalments on the following
dates:
22.09.2020
15.10.2020
17.11.2020
15.12.2020
15.01.2021
16.02.2021
16.03.2021
15.04.2021
18.05.2021
TOTAL
•
-
EUR 33,336
EUR 33,333
EUR 33,333
EUR 33,333
EUR 33,333
EUR 33,333
EUR 33,333
EUR 33,333
EUR 33,333
EUR 300,000
A monthly allowance of EUR 1,000 between September and May for the Player's
accommodation and transportation.
2021/2022 season:
•
EUR 400,000 to be paid as monthly salary in 10 equal instalments on the following
dates:
17.08.2021
15.09.2021
15.10.2021
16.11.2021
15.12.2021
18.01.2022
EUR 40,000
EUR 40,000
EUR 40,000
EUR 40,000
EUR 40,000
EUR 40,000
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REF FPSD-6637
15.02.2022
15.03.2022
15.04.2022
17.05.2022
TOTAL
•
-
EUR 40,000
EUR 40,000
EUR 40,000
EUR 40,000
EUR 400,000
A monthly allowance of EUR 1,000 between August and May for the Player's
accommodation and transportation.
2022/2023 season:
•
EUR 400,000 to be paid as monthly salary in 10 equal instalments on the following
dates:
16.08.2022
15.09.2022
18.10.2022
15.11.2022
15.12.2022
17.01.2023
15.02.2023
15.03.2023
18.04.2023
16.05.2023
TOTAL
•
EUR 40,000
EUR 40,000
EUR 40,000
EUR 40,000
EUR 40,000
EUR 40,000
EUR 40,000
EUR 40,000
EUR 40,000
EUR 40,000
EUR 400,000
A monthly allowance of EUR 1,000 between August and May for the Player's
accommodation and transportation.
3. On 28 August 2021, the Claimant and the Respondent signed an amendment agreement
(hereinafter the Addendum).
4. In accordance with clause 6 of the Addendum, the Player was entitled, inter alia, to the
following amounts:
-
2021/2022 season:
•
EUR 300,000 to be paid as monthly salary in 10 equal instalments on the following
dates:
19.08.2021
15.09.2021
15.10.2021
EUR 40,000
EUR 20,000
EUR 30,000
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REF FPSD-6637
16.11.2021
15.12.2021
18.01.2022
15.02.2022
15.03.2022
15.04.2022
17.05.2022
TOTAL
•
-
A monthly allowance of EUR 1,000 between August and May for the Player's
accommodation and transportation.
2022/2023 season: in case the Club played in TFF Super League (i.e., the local first
division):
•
EUR 500,000 to be paid as monthly salary in 10 equal instalments on the following
dates:
16.08.2022
15.09.2022
18.10.2022
15.11.2022
15.12.2022
17.01.2023
15.02.2023
15.03.2023
18.04.2023
16.05.2023
TOTAL
•
-
EUR 30,000
EUR 30,000
EUR 30,000
EUR 30,000
EUR 30,000
EUR 30,000
EUR 30,000
EUR 300,000
EUR 50,000
EUR 50,000
EUR 50,000
EUR 50,000
EUR 50,000
EUR 50,000
EUR 50,000
EUR 50,000
EUR 50,000
EUR 50,000
EUR 500,000
A monthly allowance of EUR 1,000 between August and May for the Player's
accommodation and transportation.
2022/2023 season: in case the Club played in TFF 1st league (i.e., the local second
division):
•
EUR 450,000 to be paid as monthly salary in 10 equal instalments on the following
dates:
16.08.2022
15.09.2022
18.10.2022
15.11.2022
EUR 45,000
EUR 45,000
EUR 45,000
EUR 45,000
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15.12.2022
17.01.2023
15.02.2023
15.03.2023
18.04.2023
16.05.2023
TOTAL
•
EUR 45,000
EUR 45,000
EUR 45,000
EUR 45,000
EUR 45,000
EUR 45,000
EUR 450,000
A monthly allowance of EUR 1,000 between August and May for the Player's
accommodation and transportation (car).
5. In accordance with clause 5 of the Addendum “The Player hereby irrevocably agree and
declare that he has received 40.000- EUR (forty thousand-euros) as his monthly salary decided
for the month of August in 2021/2022 season on 20.08.2021.”
6. In accordance with bank statements provided by the Respondent:
-
On 29 July 2021, the amount of EUR 82,999 was paid to the Player with the
payment details “the salary payment”;
On 29 July 2021, the amount of EUR 17,500 was paid to the Player with the
payment details “the salary payment”;
On 19 August 2021, the amount of EUR 26,000 was paid to the Player with the
payment details “the salary payment”;
On 27 September 2021, the amount of EUR 21,000 was paid to the Player with
the payment details “the salary payment”;
On 27 September 2021, the amount of EUR 15,000 was paid to the Player with
the payment details “the salary payment”;
On 12 November 2021, the amount of EUR 31,000 was paid to the Player with
the payment details “the salary payment”;
On 17 December 2021, the amount of EUR 31,000 was paid to the Player with
the payment details “the salary payment”;
On 7 January 2022, the amount of EUR 31,000 was paid to the Player with the
payment details “the salary payment”.
7. On 8 February 2022, the Turkish Football Federation (TFF) informed the Player that his
Contract was terminated by the Club on the same date. The letter also contained as an
attachment the copy of the notification dated 8 February 2022 from the Club to the TFF.
According to that notification “it is notified to the Player and the TFF for information that
the employment relationship between the Player and the Club is terminated with immediate
effect as of today (08.02.2022) by the Club with just cause according to article 14 (1) of the
FIFA Regulations on the Status and Transfer of Players without prejudice to all claims and
lawsuit rights of the Club within the framework of both FIFA’s regulations and applicable
legal legislation”.
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8. On 21 February 2022, the Claimant put the Respondent in default for the unpaid salaries
between December 2021 and February 2022. The Claimant also requested the Club to
provide further information regarding the de-registration of the Player from the official list
of players registered to play for the Club in the Turkish professional football league. The
Claimant did not provide a specific deadline to the Club to comply with its contractual
obligations.
9. On 1 July 2022, the Claimant and the Romanian club, FC Botosani (hereinafter the New Club)
signed an employment contract valid as from 1 July 2022 until 30 June 2023 (hereinafter:
the New Contract).
10. In accordance with the New Contract, the New Club undertook to pay the Claimant a total
remuneration of EUR 84,000 net (EUR 7,000 per month) for the duration of the New
Contract.
11. In accordance with the New Contact, the New Club also undertook to pay the Claimant the
following amounts a monthly amount of EUR 250 for accommodation and a signature
bonus of EUR 10,000
12. In accordance with clause 5.1.2 of the New Contract “If at the end of the competition season
2022 - 2023 Liga I, AFC Botosani will rank on one of the first 6 places of the national football
championship, the Player will receive a bonus of 22.222 Eur/gross, the amount consisting of
20.000 Eur/net and tax 2.222 Eur”.
II. Proceedings before FIFA
13. On 5 July 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
14. According to the Claimant the club terminated the Contract unilaterally without providing
any reason and thus the Claimant considered that the Club terminated the Contract
without just cause. A copy of the Addendum was not filed by the Claimant, who made no
reference thereto in his statement of claim.
15. The requests for relief of the Claimant were the following:
a. To indicate that the claim is admissible and motivated;
b. To be awarded the amount of EUR 653,000 corresponding to:
• Dec 2021: 40,000 corresponding to salary and accommodation
• Jan 2022: 40,000 corresponding to salary and accommodation
• Feb 2022: 40,000 corresponding to salary and accommodation
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March 2022: 41,000 corresponding to salary and accommodation
April 2022: 41,000 corresponding to salary and accommodation
May 2022: 41,000 corresponding to salary and accommodation
Season 2022-2023: EUR 410,000 corresponding to salary and
accommodation;
c. Damage compensation (dommages-intérêts complémentaires) amounting to EUR
240,000 ;
d. To be awarded interest of 5% p.a. as from 30 days after the decision is passed;
e. To indicate that in the absence of payment within 30 days following the notification of
the decision, the case will be submitted to FIFA Disciplinary Committee in order to allow
the later to impose a sanction against the club;
f. To apply sporting sanctions on the Club.
•
•
•
•
b. Position of the Respondent
16. The Respondent contested the claim arguing that “the Claimant has always sportingly and
financially damaged the Respondent with his undisciplinary actions and behaviours and the
Respondent has suffered so much due to the unfair and undsiciplinary actions of the Claimant.
As a result of these unfair actions and behaviours, the Respondent had to unilaterally terminate
the Claimant’s Employment Agreement with just cause”.
17. The Respondent indicated that the Claimant did not submit the Addendum dated 26
August 2021, where the Claimant agreed to amend and reduce his remuneration. The
Respondent considered that the “non-submission of this document shows that the Claimant
unfairly made an excessive claim and request”.
18. The Respondent stated that until the termination of the Contract it fulfilled its financial
obligations towards the Claimant and performed the following payments (the Respondent
provided bank receipts in Turkish language):
a.
b.
c.
d.
e.
f.
g.
h.
EUR 82,999 on 29 July 2021;
EUR 17,500 on 29 July 2021;
EUR 26,000 on 19 August 2021;
EUR 21,000 on 27 September 2021;
EUR 15,000 on 27 September 2021;
EUR 31,000 on 12 November2021;
EUR 31.000 on 17 December 2021;
EUR 31.000 on 7 January 2022.
19. The Respondent requested to reject all claims of the Claimant and to that the procedural
and legal fees arising from the proceedings at hand shall be paid by the Claimant.
c. Rejoinder of the Claimant
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20. The Claimant amended the amounts requested based on the Addendum.
21. With regards to the outstanding remuneration from December 2021 to February 2022, the
Claimant indicated that the documents provided by the Respondent are in Turkish
language and not in a FIFA official language, therefore, said documents should be rejected.
22. The requests for relief of the Claimant were the following:
a. To indicate that the Claim is admissible and motivated;
b. To be awarded the amount of EUR 633,000 corresponding to:
• Dec 2021: 30,000 corresponding to salary and accommodation.
• Jan 2022: 30,000 corresponding to salary and accommodation.
• Feb 2022: 30,000 corresponding to salary and accommodation.
• March 2022: 31,000 corresponding to salary and accommodation.
• April 2022: 31,000 corresponding to salary and accommodation.
• May 2022: 31,000 corresponding to salary and accommodation.
• Season 2022-2023: EUR 450,000 corresponding to salary and
accommodation;
c. Damage compensation (dommages-intérêts complémentaires) amounting to EUR
240,000;
d. To be awarded interest of 5% p.a. as from 30 days after the decision is passed;
e. To indicate that in the absence of payment within 30 days following the notification of
the decision, the case will be submitted to FIFA Disciplinary Committee in order to allow
the later to impose a sanction against the club;
f. To apply sporting sanctions on the Club.
d. Final comments of the Respondent
23. The Respondent indicated that the salary payments and the accommodation and
transportation between December 2021 and January 2022 were paid. The respondent
provided the documentation translated in English.
24. The Respondent also indicated that the Claimant has violated his duty to mitigate his
damages due to the Player’s behaviour. The Player, according to the Respondent,
preferred not to sign a contract with higher amounts. To support this assertion, the
Respondent provided information that another club offered the Player a higher salary (EUR
25,000 per month).
25. The Respondent also argued the following:
“total compensation amount should be calculated in accordance with the 2021/22 football
season guarantee payments which is 30.000.- EUR monthly, not 2022/23 football season
guarantee payments as requested by the Claimant.
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Lastly, the Claimant’s all remunerations from Club Botosani (including but not limited to
total guarantee payment of 95.738.-EUR, 250.-EUR monthly accommodation – total amount
of 3.000.-EUR annually, signing fee of 10.000.-EUR, bonus amount of 22.222.-EUR, social
security contributions and all other remunerations if there is should be deducted from the
Claimant’s requested amounts”.
26. The Respondent requested to reject all claims of the Claimant and to that the procedural
and legal fees arising from the proceedings at hand shall be paid by the Claimant.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Dispute Resolution Chamber (hereinafter also referred as the Chamber)
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 5 July 2022 and submitted for
decision on 13 October 2022. Taking into account the wording of art. 34 of the June 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.
28. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (July 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a French player and
a Turkish club.
29. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Player (July 2022 edition), and
considering that the present claim was lodged on 5 July 2022, the July 2022 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
30. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by
or within the Transfer Matching System (TMS).
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c. Merits of the dispute
31. 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
32. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that the case at hand pertains to a claim for outstanding
remuneration and compensation for breach of contract lodged by the player against the
club.
33. With regards to the outstanding remuneration the Chamber acknowledged that its task
was to determine, based on the evidence presented by the parties, whether the claimed
amounts as outstanding remuneration had in fact remained unpaid by the Respondent.
34. Subsequently, the Chamber recalled the content of article 13, par. 5 of the Procedural
Rules and turned their attention to the documentation on file.
35. The Chamber identified that, as per the bank statements dated and in favour of the Player,
the following amounts were respectively paid on 19 August 2021 (EUR 26,000); on 27
September 2021 (EUR 21,000); on 27 September 2021 (EUR 15,000); on 12 November 2021
(EUR 31,000); on 17 December 2021 (EUR 31.000) and on 7 January 2022 EUR 31.000.
Additionally, the Chamber took note of the wording of clause 5 of the Addendum:
“The Player hereby irrevocably agree and declare that he has received 40.000- EUR
(fortythousand-euros) as his monthly salary decided for the month of August in 2021/2022
season on 20.08.2021.”
36. In view of the foregoing, the Chamber concluded that the amount paid by the Club
between August 2021 and January 2022 amounted to EUR 195,000 and that said amount
covered the payments due by the Club to the Player until the termination of the Contract
(from August 2021 to January 2022 the Player was entitled to EUR 186,000). Consequently,
in accordance with the evidence at hand, the Chamber concluded that the Club proved
that it complied with its financial terms for December and January salaries and no
outstanding remuneration is due to the Player.
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37. With regards to the breach of contract the Chamber acknowledged that its task was to
determine whether the contract was terminated with or without just cause.
38. The Chamber took note of the club’s argument – disputed by the player –, according to
which it was allowed to unilaterally terminate the contract due to the player’s undisciplined
actions and behaviours. The Chamber also took note that the letter of termination
provided to the Player only indicated that the Contract was terminated with just cause.
39. In this respect, the Chamber wished to point out that the Respondent failed to submit any
evidence corroborating the assertion of the player’s undisciplined actions and
behaviours, thereby failing to meet the burden.
40. Moreover, the Chamber recalled its long-standing jurisprudence, according to which only
a breach or misconduct which is of a certain severity justifies the termination of a contract
without prior warning. In other words, only when there are objective criteria which do not
reasonably permit to expect the continuation of the employment relationship between
the parties, a contract may be terminated prematurely. Hence, if there are more lenient
measures which can be taken in order for an employer to assure the employee’s
fulfilment of his contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only be
an ultima ratio.
41. Consequently, the Chamber concluded that, as no situation of undisciplined actions and
behaviours of the Player as ultima ratio could be established in the present matter, the
Respondent has terminated the Contract without just cause.
42. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
until its term. Consequently, the Chamber concluded that the amount of EUR 573,000, i.e.,
EUR 30,000 times 4 from February 2022 to May 2022, plus EUR 450,000 for the 2022-2023
season, plus EUR 3,000 as accommodation - the latter amount was calculated based on
the Contract and coupled with the specific requests for relief of the Claimant - serves as
the basis for the determination of the amount of compensation for breach of contract.
43. In continuation, the Chamber verified whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
Chamber as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
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44. Indeed, the player found new employment with FC Botosani. In accordance with the
pertinent employment contract, the Player was entitled to EUR 7,000 net per month as
salary, EUR 10,000 as signature bonus and EUR 250 per month as accommodation.
Therefore, the Chamber concluded that the Player mitigated his damages in the total
amount of EUR 89,750, that is, EUR 7,250 times 11 plus EUR 10,000.
45. The Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of
the Regulations, the overall compensation may never exceed the rest value of the
prematurely terminated contract, and additional compensation can only be granted if the
termination of the contract takes place due to overdue payables - which was not the case
at hand as the termination was made by the Club.
46. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Club must pay the amount of EUR
483,250 to the Player (i.e., 573,000 minus 89,750), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter.
47. Lastly, taking into account the Claimant’s specific request as well as the constant practice
of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to
the Claimant interest of 5% p.a. on said compensation as from 16 November 2022 until
the date of effective payment, i.e. 30 days after the decision was passed.
ii. Compliance with monetary decisions
48. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 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.
49. In this regard, the Chamber 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.
50. Therefore, bearing in mind the above, the Chamber decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
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51. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is
attached to the present decision.
52. The chamber 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. 24 par.
8 of the Regulations.
d. Costs
53. 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.
54. 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.
55. Lastly, the Chamber 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, Kevin Gnonher Boli, is partially accepted.
2.
The Respondent, Samsunspor, has to pay to the Claimant the following amounts:
-
EUR 483,250 as compensation for breach of contract plus 5% interest p.a. on said
amount as from 16 November 2022 until the date of effective payment;
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 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 of the ban
shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules).
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