Dispute Resolution Chamber
Texto da decisão
REF FPSD-321 / 20-01613
Decision of the
DRC Judge
passed on 19 May 2021
regarding an employment-related dispute concerning the player Emeka Friday Eze
BY:
Johan van Gaalen (South Africa), DRC Judge
CLAIMANT:
Emeka Friday Eze, NGA - Nigeria
Represented by Annett Rombach
RESPONDENT:
AdanaSpor, TUR - Turkey
Represented by Ismet Bumin Kapulluoglu
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I.
FACTS OF THE CASE
1.
On 19 August 2019, the Nigerian player, Emeka Friday Eze (hereinafter: Claimant), the
Turkish club, AdanaSpor (hereinafter: Respondent) and the Austrian club SK Sturm Graz
signed a three-party loan agreement (the “Loan Agreement”) pursuant to which the
Claimant was loaned to the Respondent for the entire 2019-20 season.
2.
On 20 August 2019, concurrently with the loan agreement, the Claimant and the
Respondent concluded an employment contract valid as from 21 August 2019 until 31 May
2020
3.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant, inter alia, the following amounts:
EUR 5,000.00 on 31 August 2019
EUR 10,000.00 on 1 October 2019
EUR 10,000.00 on 31 October 2019
EUR 10,000.00 on 30 November 2019
EUR 10,000.00 on 1 January 2020
EUR 10,000.00 on 31 January 2020
EUR 10,000.00 on 28 February 2020
EUR 10,000.00 on 1 April 2020
EUR 10,000.00 on 30 April 2020
EUR 10,000.00 on 31 May 2020.
4.
Furthermore, Clause 3.5 of the employment contract reads:
“The Player hereby agrees and accepts that he is obligated to participate in all official and
friendly matches in every category in accordance with the Club’s decision, including the
play-off, play-out, promotion and relegation matches even if they take place after the
ending of the Contract. The Contract will be automatically extended until the end of such
matches.”
5.
On 19 March 2020, as a result of the Covid-19 pandemic, the 2019-20 season was
temporarily suspended by the Turkish Football Federation (hereinafter: the “TFF”).
6.
On 29 May 2020, the parties signed an extension of the employment contract (hereinafter:
the “Supplementary Agreement”).
7.
The Supplementary Agreement provided that:
“As a result of the Covid-19 pandemic and the associated decisions of the TFF, in particular
the continuation of the championship season 2019/2020 not before 12 June 2020, the
following contractual points of the loan agreement will be amended as follows:
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All Parties agree to an extension of the loan agreement until the end of the day on which
either
a.) the last championship of the 2019/20 TFF season has been played or;
b.) it has been legally established and communicated to the public that the TFF
championship 2019/20 will not be continued and will therefore be cancelled.”
8.
Moreover, Clause 2c of the supplementary contract states that “All other contractual points
of the existing contract remain valid”.
9.
On 19 June 2020 the season was resumed as per instructions of the TFF and the
Respondent’s team played its last season game on 19 July 2020.
10.
As a result of the extension of the 2019-20 season beyond the initial expiration date of 31
May 2020, the Loan Agreement between the Parties was extended as indicated in point 6
above
11.
By correspondence dated 9 September 2020, the Claimant put the Respondent in default
of payment of EUR 45,000 as outstanding salaries and setting a time limit expiring on 16
September 2020 in order to remedy the default.
12.
By e-mail dated 16 September 2020, the Respondent rejected Claimant’s payment request
stating that there were no outstanding amounts and that if anything, the latter would have
owed the Respondent money as outstanding fines previously imposed by the club on the
player.
II.
PROCEEDINGS BEFORE FIFA
13.
On 3 November 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
The claim of the Claimant
14.
According to the Claimant, the Respondent’s payments came on an irregular basis as from
the beginning.
15.
In this context, the Claimant alleged that the salary due for the month of August was
delayed by 13 days, the salary of October by 26 days and the one of November by 41 days.
Moreover, by 1 June 2020, according to the Claimant the Club had only paid EUR
70,000.00 out of EUR 95,000.00.
16.
The Claimant also submitted that as the Club played its last game on 19 July 2020, both
the Supplementary Agreement and the (extended) Player Contract expired on 19 July 2020.
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17.
As a result of the above, the Claimant alleged to be entitled to the following salary for the
extended contractual period between 1 June 2020 and 19 July 2020:
June 2020: EUR 10.000,00
July 2020: EUR 6,129.03 (10,000 *19/31)
18.
In this context, the Claimant alleged that for the time period that the Employment Contract
was amended (i.e. as of 1 June 2020 until 19 July 2020), the Respondent did not make any
payment.
19.
In this respect, according to the Claimant, the fact of concluding a further document “ad
hoc” for the extension of the Employment Contract shall make it clear that the Player would
have to receive a salary corresponding to the same amount agreed for the previous months
in the same season (i.e. EUR 10,000.00 per month).
20.
In view of the above, the Claimant requested FIFA DRC to be awarded the total amount of
EUR 41,129 plus 5% interest per annum as from 17 September 2020.
b.
Position of the Respondent / Counterclaim
21.
In its reply to the claim, the Respondent rejected the Claimant’s allegations in full and
contextually filed a counterclaim against the latter.
22.
With regard to the outstanding amounts claimed by the Player, the Respondent alleged
that, for what concerns the salary due until 31 May 2020, the Claimant was paid a total of
EUR 90.000 and said sum would even exceed the total amount the Player was entitled to
as a consequence of the Player’s infringements resulting in two different sanctions imposed
by the same Club and by the Disciplinary Board of TFF, and which amount shall then be
deducted from the claimed monies.
23.
In this context, the Respondent alleged to have paid, on date 20 August 2019, the sum of
EUR 20,000 to the Player and that during the one season term of his employment, the latter
repeatedly violated his contractual obligations as follows:
First, the Respondent alleged that the Player did not return to the Club premises
upon the expiry of his permission on 15 October 2019, and despite being
requested to do so, he did not submit any defences regarding this conduct. On the
other hand, according to the Respondent, this conduct clearly constituted an
infringement of art. 6/4(a) of the club internal disciplinary regulations, which reads:
“(4) Leaving the City Without Permission - (a)In case the player leaves the city
without the written permission of the Club (other than the rest days) or doesn’t
obey the return date and time”.
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Second, according to the Respondent, the Player abandoned the treatment
programme he was being subjected to and left the country on 17 December 2019,
without the permission of the Club.
In this respect, the latter’s view is that, as also underlined under the Report of
Medical Doctors dated 20 December 2019, the above conduct had a detrimental
effect on the Player’s treatment and violated Art. 6/1(n) and 6/2(a) of the Club
Internal Disciplinary Regulations, as well as Art. 14 of the Special Provision of the
contract, which read as follow: “(n) In case the player receives treatment for
injuries or illnesses from a medical center other than the ones determined by the
club and gets reports without the written permission of the club or doesn’t obey
the training and treatment program given by the club doctor (In such cases, in
addition to the disciplinary sanctions imposable to the Player, medical expenses
shall not be covered by the Club and the home-rest period recommended to the
Player by other doctors would be disregarded).
(a)In case the player does not participate in training sessions, matches, meetings,
travels, camps, treatments, and doesn’t arrive at the meetings and events
scheduled by the club on time and fails to participate or runs late to the trainings
and matches or leaves without permission. (Verbal permission allegations will not
be heard.)”
Third, the Respondent alleged that the Player manifested undisciplined behaviour
and assaulted one of his teammates, Mr. Uğurcan Yazğılı, by hitting him with a
slap in his face during the training session held on 16 February 2020, and that said
conduct has been reported by the Head Coach, Mr. Eyüp Arın, of the team on the
same day
Fourth, the Respondent reported that the Claimant, despite being duly informed
that he was to be fielded in the match to be played on 4 July 2020, did not appear
at the team dinner at 21:00 on 2 July 2020 and the gathering for departure to
İzmir, for the official league game played on 4 July 2020 with Club Menemenspor
and consequently, he did not appear in the game, without reporting a valid
reason. In the Respondent’s view, said conduct would stand “as the supreme
violation of the Player since it violated several articles of the Internal Disciplinary
Regulations and the Contract”.
24.
The Respondent stated that the Player’s first and second violations were subjected to the
same disciplinary proceedings, which resulted in the imposition of a fine in the amount of
EUR 10.000 at the Club’s discretion even though the actions of the Player would have
necessitated the imposition of a harsher fine.
25.
Furthermore, the Respondent reported that as the Player did not return to the Club premises
after the match played on 12 July 2020, his actions resulted in the sanction of a ban from
five official games and a fine in the amount of 10.800.-TL (Turkish Lira) with decision passed
by the Disciplinary Committee of the TFF.
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26.
In addition to the above, the Respondent declared to be aware of the established DRC
jurisprudence establishing that Clubs shall not impose fines to the players as a set off against
their debts towards them. However, in the Respondent’s view, it shall be noted that the
Club acted in good faith and subjected the Player to reasonable amounts of fines despite
his repetitive and gross violations.
27.
In the Club’s opinion, as the fine amounts were determined with regard to the jurisprudence
of the FIFA DRC and they were kept within reasonable and even amounts, said fines shall
be be admitted and taken into account for the resolution of the present dispute.
28.
In this context, the Respondent argued that the opposite conclusion would result in sending
the erroneous message that players’ violations, regardless of their egregiousness, shall not
have any consequences and that the internal disciplinary proceedings of clubs, regardless
whether they are proportionate or of their equitability, would be void and vain.
29.
Furthermore, the Respondent explained that Art. 11 of the (Club) Internal Disciplinary
Regulations accommodates the method of collection of the fines imposed by the Club.
30.
In this respect, the Respondent stated the Art. 9/5(g) of the Internal Disciplinary Regulations
provides that the Club has the right to deduct from the Player’s receivables the fines
imposed by the Disciplinary Board of TFF.
31.
Consequently, the Respondent demanded that the amounts of both fines imposed by the
Club and by the Disciplinary Board of TFF shall be deducted from the Player’s balance while
calculating his entitlements.
32.
Besides the above, in reference to the further amounts claimed by the Player as result of
the alleged extension of the Employment Contract from 1 June 2020 until 19 July 2020,
the Respondent argued that the copy of the Employment Contract provided as Exhibit-2 of
the Player’s statement of claim does not hold the signature of the Parties, hence it shall not
be considered to be valid.
33.
In this context, the Respondent further alleged that this document was merely the contract
draft that included the amendment requested by the Player provided during the contract
negotiations. However, according to the Respondent, said requests were not accepted and
the Parties eventually signed the contract that is annexed to the Club’s response.
34.
In this respect, the Respondent stated that according to the above mentioned final and valid
version of the contract, the Parties agreed on the conditions of the Player’s potential
employment with the Club in case the latter would have exercised its right for a definitive
transfer for two additional seasons and, conversely, they did not include any provision that
would suggest that the Player would be remunerated on a monthly basis.
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35.
In fact, according to the Respondent, the Parties agreed only on a lump sum of EUR 95,000,
increased by bonus amounts to be paid in case of the realization of the conditions thereof,
which would then be paid for each season.
36.
In light of the above, the Respondent is of the opinion that although the expiry of the
employment relationship between the Parties has been postponed by the following
Supplementary Agreement, none of the stipulated agreements aforementioned would
contain provisions which entitled the Claimant to receive an additional retribution for his
services.
37.
In this context, the Respondent stated that the only scope for signing the Supplementary
Agreement was in fact to apply Clause 3.5 of the Employment Contract, therefore
extending the duration of the Employment Contract until the last match of the season,
without however amending any of the financial conditions previously set by the Parties in
the final version of the Employment Contract.
38.
Moreover, the Respondent alleged that as the Turkish league was suspended, the Claimant
did not render his services to the Club for more than three months, hence in any case the
Player shall not be entitled to receive any remuneration for that period of reference.
39.
In view of the above, the Respondent requested to be reimbursed by the Claimant for a
total amount of EUR 15.000 and TL10.800 plus 5% interest p.a. as from 4 August 2020
until date of effective payment.
c.
Replica of the Claimant to the Counterclaim
40.
In his response to the counterclaim, the Claimant stated that the Respondent’s assertions
are without merit and relying on false facts and fabricated evidence.
41.
In this context, the Claimant argued that the Respondent has never paid to him the alleged
amount of EUR 20,000 on 20 August 2019, and that on the contrary, said amount was
paid to the Player’s agent as commission for the conclusion of the three-party loan
agreement.
42.
In this respect, the Claimant added that pursuant to the payment schedule under the
Employment Contract, the Club would have had no obligation to pay EUR 20,000 to the
Player at the time that the payment was made. On the contrary, according to the Claimant,
since all the other payments were made late, there is no reason to believe that the Club
would have advanced EUR 20,000 to the Player long before the contractual due date.
43.
Accordingly, the Claimant argued that the claimed amount of EUR 25,000 as referred to
the original contractual period remains outstanding.
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44.
In regards to the outstanding salary for the extended contractual period, the Claimant
argued that since Clause 3.5 of the Employment Contract already foresaw that the same
Contract would have been automatically extended until the effective end of the season,
namely even in case of its postponement beyond the original expiry date of the labour
relationship, it shall be then assumed that the scope of the successive Supplementary
Agreement could not be to merely confirm the same provision, otherwise said agreement
would have been totally redundant.
45.
In this perspective, the Claimant disagreed with the Club’s argument that Article 5 of the
Employment Contract would justify any given extension of the contract for any given reason
until any given date and, conversely, he argued that said provision shall not be intended to
cover extraordinary prolongations such as in the current case, where the season was
extended for more than 6 weeks.
46.
Therefore, the Claimant is of the opinion that the only reason for the parties’ Supplementary
Agreement was their acknowledgement of the necessity to extend the existing contractual
relationship under an extraordinary condition and that such as an extension shall be based
upon the contractual terms in force at the time, these namely providing for a monthly salary
of EUR 10,000.
47.
As a result, the Claimant reiterated his request for an additional outstanding remuneration
in the amount of EUR 16,123.03
48.
In conclusion, the Claimant insisted on his demand for overall outstanding remuneration in
the total amount of EUR 41,129 net of local Turkish taxes, together with interest at 5 %
p.a. on this amount as from 17 September 2020 until date of effective payment.
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
49.
First of all, the DRC Judge (hereinafter also referred simply to as the Judge) 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 3 November 2020 and submitted for decision
on 19 May 2021. Taking into account the wording of art. 21 of the January 2021 edition
of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the June 2020 edition of the
Procedural Rules is applicable to the matter at hand.
50.
Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the
Regulations on the Status and Transfer of Players (edition February 2021), the DRC Judge is
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competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between an Nigerian player and a Turkish club.
51.
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 (February 2021), and
considering that the present claim was lodged on 10 November 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
52.
The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
53.
In this respect, the Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of
the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining
to the application of the Regulations, any documentation or evidence generated or
contained in TMS.
c.
54.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established,
the Judge entered into the merits of the dispute. In this respect, the Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC Judge emphasised that in the following
considerations he 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
55.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the quantification of the
outstanding remuneration due to the Player.
56.
In this context, the Judge noted that whereas the Claimant is of the opinion of being
entitled to outstanding receivables in the total amount of EUR 41.129,03, the Respondent,
on the contrary, is confident to hold no outstanding debt towards the Player, and that
conversely the latter is obliged to reimburse the amounts of EUR 15.000 and TL10.800 to
the Club.
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57.
In view of the above, the DRC Judge acknowledged that his task was to assess whether the
Claimant shall be entitled to any overdue payables from the Respondent and, if any, what
would be the correct amount to award in the present dispute.
58.
In this respect, the Judge first observed that it remained undisputed that the total
remuneration due to the Claimant as per the original Employment Contract dated 20
August 2019 was corresponding to EUR 95,000.
59.
In this context, the Judge took note that the Respondent has allegedly realized to the
Claimant a payment of EUR 20,000 on date 20 August 2019. However, in the Judge’s view,
it appears evident that the Respondent paid only the amount of EUR 70,000 to the
Claimant, while the alleged payment of further EUR 20,000 shall be referred to the Player’s
Agent.
60.
Therefore, the Judge concluded that until 1 June 2020, the Respondent carried overdue
payables toward the Claimant for EUR 25,000.
61.
Subsequently, the DRC Judge recalled that both the Parties acknowledged to have
concluded a further contract on date 29 May 2020, named the Supplementary Agreement
and that said contract expressly provided for an extension of the Employment Contract until
the last match of the season, which was held on 19 July 2020.
62.
Accordingly, the Judge acknowledged that the Claimant has effectively rendered his
services to the Respondent until 19 July 2020.
63.
With regard to the monies claimed by the Player in relation to said extended period, the
DRC Judge agreed with the thesis presented by the Claimant.
64.
In particular, the DRC Judge is of the opinion that once acknowledged the validity of the
Supplementary Agreement by both Parties as signed on 29 May 2020, it would then result
intrinsic the need for the Respondent to maintain the financial commitment toward the
Player in the same way in which the latter would be called to keep rendering his services to
the team.
65.
Coherently, in the Judge’s opinion, the thesis sustained by the Respondent according to
which the remuneration of EUR 95,000 due to the Player under the terms of the
Employment Contract shall be assimilated to a mere lump sum and not to a monthly salary
scheme cannot be upheld.
66.
In fact, according to the DRC Judge, it rather appears clear that, under the abovementioned
Employment Contract, the Parties had indeed agreed on a wage’s payment plan composed
of ten (10) deadlines which in no manner would differ from the standard model of payment
applied to the multitude of standard labour agreements around the world of professional
football.
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67.
Moreover, the Judge observed that the abovementioned schedule of payments referred to
same exact amount for each of the ten instalments, namely EUR 10,000.
68.
In light of the above, the DRC Judge concluded that by mean of contract dated 20 August
2020, the Respondent undertook to pay the Claimant a monthly salary of EUR 10,000.
69.
Consistently with the above, the Judge established that as the Claimant has effectively
rendered his services to the Respondent until 19 July 2020, the latter should have paid also
the salaries for the month of June 2020 and July 2020 (pro-rata).
70.
For this reason, assumed that the Player’s monthly salary would correspond to EUR 10,000,
the DRC Judge remarked that for the extended period between 1 June 2020 and 19 July
2020, the Claimant shall be entitled to the total amount of EUR 16,129.
71.
Finally, the DRC Judge turned his attention to the Respondent’s request for taking into
account the fines imposed by the Club and by the TFF when computing the overall of the
Player’s financial entitlements.
72.
In this respect, the DRC pointed out that in accordance with the longstanding jurisprudence
of the DRC, clubs are not allowed to offset fines against the remuneration of the player and
therefore, in casu as well, the Player was still entitled to the timely payment of his full salary.
73.
With all the above considerations in mind, the DRC Judge decided that the Claimant shall
be awarded the amount of EUR 41,129, plus – as per Claimant’s request – 5% interest per
annum starting as of 17 September 2020 until date of effective payment.
ii. Compliance with monetary decisions
74.
Finally, the DRC Judge referred to par. 1 and 2 of art. 24bis 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.
75.
In this regard, the DRC 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 and for the
maximum duration of three entire and consecutive registration periods.
76.
Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and
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consecutive registration periods shall become effective on the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
77.
The Judge recalled that the above-mentioned bans will be lifted immediately and prior to
its complete serving upon payment of the due amounts, in accordance with art. 24bis par.
3 of the Regulations.
78.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
d.
Costs
79.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
80.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. Decision of the DRC Judge
1.
The claim of the Claimant, Emeka Friday Eze, is accepted.
2.
The Respondent, AdanaSpor, has to pay to the Claimant, the following amount:
EUR 41,129 as outstanding remuneration plus 5% interest p.a. as from 17 September 2020
until the date of effective payment.
3.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
4.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
5.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
6. This decision is rendered without costs.
For the DRC Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 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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