Labour Disputes
Texto da decisão
REF FPSD-3965
Decision of the
Dispute Resolution Chamber
passed on 29 September 2022
regarding an employment-related dispute concerning the player Joris
Gnagnon
COMPOSITION:
Omar ONGARO (Italy), Deputy Chairperson
Khalid AWAD ALTHEBITY (Saudi Arabia), member
Michele COLUCCI (Italy), member
CLAIMANT:
Joris Gnagnon, France
Represented by Alexandre Zen-Ruffinen
RESPONDENT:
Sevilla FC, Spain
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REF FPSD-3965
I. Facts of the case
1.
On 24 July 2018, the French player, Joris Gnagnon (hereinafter: the player or the Claimant)
and the Spanish club, Sevilla FC (hereinafter: the club or the Respondent) concluded an
employment agreement valid for 5 seasons (hereinafter: the contract).
2.
The contract was executed in the standard form of the Real Federación Española de Fútbol
(RFEF) and contained an annexe, thereby detailing a few particularities regarding the
parties’ rights and obligations (hereinafter: the Annexe).
3.
Under the Annexe, the player was entitled to inter alia a total fixed remuneration of EUR
11,000,000, as follows:
Season
2018/2019
2019/2020
2020/2021
2021/2022
2022/2023
4.
Monthly
Instalments
14
14
14
14
14
Monthly
salary (EUR)
71,428.57
75,000
78,571.42
82,142.85
85,714.28
Sign-on fee
(EUR)
1,000,000
1,050,000
1,100,000
1,150,000
1,200,000
Total
(EUR)
2,000,000
2,100,000
2,200,000
2,300,000
2,400,000
Art. 13 of the Annexe reads as follows (freely translated to English):
“This contract shall be interpreted in accordance with the Spanish labour Law and FIFA
Regulations, with any dispute being submitted to the bodies of the national and
international federation (FIFA) without prejudice to the right of the parties to refer to the
labour courts of the city of Seville ".
5.
During the season 2019/2020, the player was loaned to the French club, Rennes.
Deeds during the season 2020/2021
6.
On 7 September 2020, the player availed himself for the club’s pre-season.
7.
On 16 September 2020, the club wrote to the player and explained that he had joined the
pre-season overweight, having been prescribed a fitness plan, to no avail. As such, the
player was informed that the club had started disciplinary proceedings against him,
granting him 10 days to file his position.
8.
On 2 October 2020, the club concluded the disciplinary proceedings in the absence of any
response thereto from the player. Accordingly, he was fined 19% of his wages, i.e. EUR
34,833.33.
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REF FPSD-3965
9.
On 6 October 2020, the player arrived 20 minutes late to a training session.
10. On 13 October 2020, the player underwent medical control at the club and was found to
be overweight.
11. On 16 October 2020, the player arrived 40 minutes late to a training session.
12. On 21 October 2020, the club wrote to the player and complained about the latter being
overweight and having been late to two training sessions respectively on 6 and 16 October
2020. It contextually started a second disciplinary proceeding against the player, granting
him with 10 days to respond.
13. On 2 November 2020, the player responded to the abovementioned letter and denied
both issues. He prompted the club to investigate the matter of his weight and denied that
anyone at the club had informed him about being late.
14. On 5 November 2020, the club concluded the second disciplinary proceeding.
Accordingly, the player was fined EUR 33,333 because of the weight issue and EUR
4,876.67 for the late training sessions.
Deeds during the season 2021/2022
15. On 28 June 2021, the club sent a training plan to the player prior to his arrival for the
corresponding pre-season.
16. On 7 July 2021, the player availed himself for the club’s pre-season and underwent
medical control. He was found to be overweight at “level II (pre-obesity)”.
17. The player underwent other medical controls between 7 and 12 July 2021, which also
resulted in him weighting above 90kg.
18. On 13 July 2021, the club wrote to the player and started a third disciplinary proceeding
against him, granting him with 10 days to respond. The club, while admitting that the
player was able in the past season to reach a goal of 90kg, highlighted his overweight
problems, especially when compared to the rest of the club’s first team. The club equally
highlighted that he could not finish a training session due to his poor fitness level.
19. On 28 July 2021, the club concluded the third disciplinary proceeding and accordingly
fined the player EUR 34,166 because of the weight issue, highlighting his recidivism. The
player was also given in this opportunity a training plan for him to achieve the fitness level
desired by the club by 13 August 2021.
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20. On 31 July 2021, the player missed mandatory weighting and the team’s breakfast during
their pre-season training camp.
21. Between 3 and 16 August 2022, the player was repeatedly late for training sessions, from
25 to 40 minutes.
22. On 21 August 2021, the club wrote to the player and while referring to his late arrivals
and overweight problem, informed that it had started a fourth disciplinary proceeding
against him, granting him with 15 days to reply, as well as provisionally suspending him
during the course of the proceeding. The player was also given further fitness
instructions.
23. By letter dated 30 August 2021 but remitted on 31 August 2021, the player contested any
negligence regarding his weight. He stated that he had followed the instructions provided
to him, particularly in terms of nutrition. He also asked for additional tests to determine
the cause of the weight gain. Furthermore, he contested having missed any compulsory
weighing. Finally, he admitted that he had been late to the dressing room on one occasion
but stressed that this was the case with many teammates, that he had never received the
slightest remark in this regard, and that he had never been late for training.
24. On 13 September 2021, because of the fourth disciplinary proceedings, the club
dismissed the player thereby terminating their employment relationship.
25. Following the termination of the contract, the player and the French club, AS Saint
Etienne, signed an employment contract with the following conditions:
- Valid between 1 January 2022 and 30 June 2022;
- Basic salary of EUR 28,000;
- Other fixed payments of EUR 168,000 in total.
26. After the natural expiry of his employment contract with AS Saint Etienne, the player
remained unemployed.
II. Proceedings before FIFA & in Spain
27. On 12 October 2021, the Claimant lodged a claim against the club before FIFA
(hereinafter: the FIFA Claim).
28. In such occasion, he referred to clause 13 of the Annexe and informed as follows: “as a
purely precautionary measure and in a very subsidiary alternative, the Claimant informs FIFA
that he will also bring the case before the ordinary court in Seville - after the case has been
brought before FIFA - and will request the suspension of the proceedings in favor of the
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proceedings pending before FIFA’s DRC. Consequently, by virtue of the principle of
litispendence, FIFA – which was the first to be seized - will remain competent to rule on the
case.”
29. On 13 October 2021, the player filed a labour claim against the club in the relevant courts
of Seville, Spain (hereinafter: the Spanish Claim). Contextually, a mandatory conciliation
hearing was scheduled to 10 November 2021, and the club was summoned to those
proceedings.
30. On 19 October 2021, the FIFA general secretariat requested the player to complete his
FIFA Claim, since some mandatory documentation was missing. The player completed it
within the granted deadline.
31. On 10 November 2021, the mandatory conciliation hearing in connection with the Spanish
Claim was adjourned to 30 November 2021.
32. On 26 November 2021, the FIFA general secretariat invited the Respondent to file its
position in respect of the FIFA Claim.
33. On 30 November 2021, the mandatory conciliation hearing in connection with the Spanish
Claim took place in Seville. Both parties attended such hearing, and thereby the club filed
a counterclaim against the player (hereinafter: the Spanish Counterclaim).
34. On 16 December 2021, the club wrote to FIFA and inter alia explained that the player had
filed the Spanish Claim and requested that the proceedings regarding the FIFA Claim be
terminated. Alternatively, it requested a deadline extension to file additional submissions
and evidence.
35. On 3 February 2022, the FIFA general secretariat granted the club a further deadline until
10 February 2022 to file its position.
36. On 9 February 2022, the club filed its position.
37. On 23 March 2022, the FIFA general secretariat inter alia invited the player to file his
position only regarding the matter of competence by 29 March 2022, subsequently
extended at the request of the player to 4 April 2022.
38. On 24 March 2022, the Seville court in connection with the Spanish Claim scheduled a
conciliation/decision hearing to take place on 25 April 2022.
39. On 30 March 2022, the club wrote to FIFA and informed of said hearing in the context of
the Spanish Claim.
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40. On 25 April 2022, the player failed to attend the hearing scheduled in connection with the
Spanish Claim.
41. On 26 April 2022, the relevant court in Seville noted that the player had failed to avail
himself to the relevant mandatory hearing and accordingly issue a decision whereby the
player’s Spanish Claim was deemed withdrawn and the corresponding file closed.
Consequently, the proceedings regarding the Spanish Counterclaim filed by the club were
equally terminated.
42. On 4 April 2022, the player filed his position in the FIFA Claim as to the competence.
43. On 4 May 2022, the player filed an unsolicited submission by means of which he informed
FIFA that he had withdrawn the Spanish Claim, and contextually filed additional
observations as to the admissibility of the claim.
44. On 9 May 2022, the FIFA general secretariat invited the club to provide its comments on
the latest correspondence of the player by 19 May 2022. Such correspondence was
however not properly received by the Respondent.
45. On 19 May 2022, the club filed an additional position referring to its letter or 30 March
2022 and requested that the proceedings regarding the FIFA Claim be terminated.
46. On 9 June 2022, the FIFA general secretariat acknowledged receipt of the club’s letter of
19 May 2022 and closed the submission-phase of these proceedings.
47. On 15 June 2022, the club wrote to the FIFA general secretariat and argued that it had not
received FIFA’s letter of 9 June 2022, requesting the opportunity to file its position.
48. On 17 June 2022, the FIFA general secretariat wrote to the parties and while registering
that it could not confirm that the correspondence dated 9 May 2022 had beenproperly
transmitted to the club, it awarded the latter the possibility to file its position by 2 July
2022, subsequently extended until 8 July 2022.
49. Within the deadline granted, the club filed its position.
50. On 12 July 2022, the FIFA general secretariat closed the submission-phase of the
proceedings, and after requesting the player’s contractual update, subsequently
informed the parties on 2 August 2022 that the case would be submitted for a decision
on 29 September 2022.
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III. Position of the parties
51. Following the multiple submissions of the parties, a summary of their respective positions
is detailed in continuation. While the Dispute Resolution Chamber has considered all the
relevant facts and evidence advanced by the parties, the below contains the relevant facts
and arguments found pertinent for the outcome of the case.
a. Position of the Claimant
Admissibility
52. The player referred to art. 13 of the Annexe and argued that “the parties have therefore
expressly provided for the primary jurisdiction of the associative bodies, including FIFA, while
reserving the right to refer the matter to the state courts of the City of Seville”. In this respect,
the player referred the award of the Court of Arbitration for Sport (CAS) in CAS
2015/A/3896 and submitted that “the fact that the Spanish law prohibits arbitration for the
specific type of dispute at hand, does not result in a violation of a legal principle belonging to
public policy”.
53. The player is of the opinion that there is no forum shopping in the matter at hand, only lis
pendens. The player argues that there is no abuse in the matter at hand and argues that
it is not prohibited to bring different claims in different jurisdictions. He explained that he
filed the Spanish Claim because he “i) feared that the Club would challenge FIFA's jurisdiction
on the basis of the employment contract and Spanish law,(ii) because he could not know in
advance FIFA's position on the matter, and (iii) because Spanish law subjects a civil action to a
very short time limit, the Player had no choice but to bring the case in Spain as well, so as not
to risk losing his rights if FIFA were to declare itself incompetent.”. Additionally, he argues that
he was transparent and announced that he wanted FIFA to retain jurisdiction at all times,
and undertook to communicate it in the Spanish Claim so that said proceedings were
suspended.
54. The player additionally rejects the notion that both claims were filed simultaneously, as
FIFA was seized first, which attracts the principle of lis pendends.
55. The player furthermore argues that both claims do not overlap since he requests in these
proceedings that the club be sanctioned under art. 17 of the Regulations on the Status
and Transfer of Players (RSTP), something he did not request in the Spanish Claim.
56. He concluded as follows:
“i) Contrary to the opinion of FC Sevilla, this is not a case of forum shopping, nor of res judicata,
but of lis pendens.
ii)The Player's application to FIFA was filed before the application to the civil court.
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REF FPSD-3965
iii)Swiss law provides that in such cases the, the court seized first shall conduct the proceedings.
FIFA has the same practice.
iv)In any case, the Spanish civil court would not be competent as regards the disciplinary claim
raised in front of FIFA by the Player. This is anyway enough for FIFA to accept jurisdiction.”
Merits
57. In his claim, the player argued that the club did not have just cause to terminate the
contract. On this note, the player disputed the two grounds raised by the club to justify
the termination: the alleged overweight situation and the multiple delays to training
sessions.
58. With regards to the former, the player argued that the club required him to lose 8kg,
almost 10% of his body weight, in 16 days, in accordance with the club’s letter of 28 July
2021. The player further denies that the overweight situation, if it indeed took place,
happened at his fault and holds that there is no evidence to support the club’s assertion
to the contrary. He asserts that his dismissal is not an ultima ratio measure, especially
because we weighted 92.7 kg by 16 August 2021, which is almost 5kg out of the 8kg
required by the club.
59. As to the supposed late arrivals, the player disputes that these have been properly
recorded, if at all. He added that it is customary for the team players to arrive late to the
dressing room and denies that he was ever late for work on the field. He also submitted
that no warning was ever given to him in any of these instances.
60. The player further asserts that the club took too long to terminate the contract should
these breaches be confirmed. In this respect, he submitted the following:
“If we take the alleged overweight, the deadline given by the Club was 13 August 2021,
according to the Club's own writings. As for the allegedly missed weigh-ins, they were on 31
July and 11 and 13 August 2021. Again according to the Club's own documents, the delays
occurred 14between 3 and 16 August. However, it was only on 21 August 2021, that is (i) 8 days
after the deadline for reaching 90 kilos, (ii) 21, 10 and 8 days after the allegedly missed weighins and (iii) 18 to 5 days after the delays invoked by the Club, that the latter (not terminated
the contract but only) initiated disciplinary proceedings. By the time the Respondent Club
initiated the proceedings, it was already too late to terminate the Player's contract! The Player
responded on 31 August. It was then only on 13 September 2021, 13 days later, that the Club
terminated the Player's contract. This waiting period demonstrated that the continuation of
the employment relationship was not unbearable for the Respondent. It should also be
remembered that the burden of proof that the termination was in time lies with the Club”.
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61. On the basis of the foregoing the player argued that the club did not have just cause to
terminate the contract and thus seeks compensation equivalent to the residual value of
his contract in the amount of EUR 4,634,131.26. He also seeks interest of 5% p.a. as from
14 September 2021.
b. Position of the Respondent
Admissibility
62. The club argues that the player is forum shopping since he filed two claims in parallel, i.e.
the FIFA Claim and the Spanish Claim, and as a result the Courts in Seville shall be
competent.
63. In this respect, the club argued that the player, by waiving his Spanish Claim without the
consent of the counterparty, is equivalent to waiving his rights in line with art. 65 of the
Swiss Civil Procedure Code (SCPC). The club referred to two decisions of the DRC and CAS
2010/A/2112 & CAS 2020/A/7252 in support of its position. On that note, the club
submitted that said waiver of the Spanihs Claim amounts to res judicata.
64. The club requests that the claim at hand be deemed inadmissible.
Merits
65. The club argues that this case is essentially about a disciplinary dismissal made on the
basis of Spanish Law and the Collective Bargaining Agreement (CBA) concluded at the
local level, also in light of the disciplinary regulations collectively bargained between the
social partners in Spain.
66. As such, the club argued that the player has committed a serious breach under these
regulations and that under art. 7.1 and 15 of the Spanish Royal Decree n. 1006/1985 it is
entitled to dismiss the player on disciplinary grounds, moreover since the player had been
recidivist in 3 other occasions. The club highlights that the player lacked a significant
degree of commitment to his duties as an athlete and failed to abide by the club’s medical
and fitness instructions.
67. Additionally, the club contends that the medical evidence on file, showing the difference
between the player’s weight and measurements data, when compared to those of other
players demonstrates the player’s breach of his obligations nettling the club to terminate
the contract.
68. On the basis of the foregoing, the club deems it had just cause to terminate the contract
and that the claim should be rejected.
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IV. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
69. 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 12 October 2021 and
submitted for decision on 29 September 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.
70. Having so determined, 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).
71. Subsequently, 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
Regulations on the Status and Transfer of Players (July 2022 edition), the Dispute
Resolution Chamber is, in principle, competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
French player and a Spanish club.
72. The Chamber noted however that the competence of FIFA is disputed in the matter at
hand, since the club argues that the claim is inadmissible on the grounds of forum
shopping.
73. In this respect, the Chamber referred to the Commentary on the Regulations on the
Status and Transfer of Players (p. 372), which sheds the following light on the concept of
forum shopping:
“The final considerations concern the practice known as “forum shopping” – a party taking the
same matter to multiple fora in the hope of obtaining the result that suits its purposes. The
relevant jurisprudence is designed to prevent such behaviour, which is viewed as illegitimate.
A party should not be able to game the system by having multiple fora hear the same argument
in the hope one of them will hand down the judgment it wants. For example, a party should
not be allowed to ask a national body to confirm that a contract has been breached without
just cause, and then, having obtained a favourable decision at national level, ask the DRC to
set the compensation payable in the case. The principle that a party that has chosen to have a
case heard under one competent jurisdiction cannot then have recourse to another (known
colloquially as “forum shopping”) is consistently applied.”
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74. While in the case at hand FIFA was seized first, the Chamber found it clear that the player
– for reasons specified only to a limited extent but in any event not proven (since no
corresponding evidence to justify the reasons why the Spanish Claim was desired or
justifiable) – decided to later file the Spanish Claim, prompting the club to file a
counterclaim, to later withdrawn his petition in the proceedings in Spain hoping that FIFA
would retain its jurisdiction regarding the FIFA Claim.
75. The player grounds his position on admissibility on the matter of lis pendens, which is
however different from forum shopping. In the Chamber’s view, albeit both principles aim
at avoiding two (possibly contradictory) decisions, forum shopping protects procedural
stability and the abuse of right of a party to file claims.
76. On this note and as opposed to the player’s argumentation, the Chamber was firmly of
the opinion that he indeed engaged in a sophisticated form of forum shopping: he filed
the FIFA Claim first, admittedly hoping that this would create lis pendens vis-à-vis the
Spanish Claim and its particularities. The Spanish Claim however followed its course, and
the club filed its defense and the Spanish Counterclaim there. Subsequently, and likely
because of the effect that the withdrawal of the Spanish Claim would have on the Spanish
Counterclaim, the player failed to attend the mandatory hearing, and his case was closed
together with the club’s counterclaim.
77. Given the foregoing, the Chamber could not help to observe that the player did not follow
the steps he argued he would take in his statement of claim filed before FIFA: he claimed
he would ask for the suspension of the Spanish Claim, but never did so, neither in his
statement of claim in the Spanish Claim nor at any other moment throughout those
proceedings. The Chamber finds this behaviour pivotal in the matter at hand, given that
the player deliberately acted in a manner to conduct two identical proceedings only to
determine, later and at his convenience, which proceedings he preferred to carry on with.
78. For the sake of completeness, the DRC also highlighted that the player does not have
standing to request the imposition of disciplinary sanctions on the club for this is of a
vertical nature and not horizontal, as confirmed by CAS jurisprudence. Therefore, it
pointed out that it befalls on FIFA alone to determine any consequences for breach of
contract, if any. As such, it was clear to the Chamber, contrarily to the position of the
player, that both claims (the Spanish Claim and the FIFA Claim) have the same content.
79. In the Chamber’s opinion, it is not hard to see why the player proceeded as described:
since the club has not filed a counterclaim before FIFA, it was easier for him to drop his
Spanish Claim and force the club to re-engage the proceedings in Spain to advance with
its position (i.e. the Spanish Counterclaim). The Chamber was comforted to rule that this
attempt to manipulate the system at the player’s will cannot subsist for the player’s
position is contradictory. Had he wanted FIFA to adjudicate on the FIFA Claim (and he was
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certain of FIFA’s jurisdiction per his statement of claim), he should have abstained from
filing the Spanish Claim.
80. Moreover, the DRC highlighted that allowing the player’s claim to be entertained would
be in sharp opposition with the jurisprudence of FIFA and CAS in the matter of forum
shopping (for reference, the cases Stancu, Simkovic and 0181141-FR ruled upon by the DRC,
as well as the matter CAS 2007/A/1301 Ituano Sociedade de Futebol Ltda v. Silvino João de
Carvalho, Buyuksehir Belediyesi Ankaraspor & Fédération Internationale de Football
Association (FIFA), award of 10 March 2008, for instance). The Chamber particularly
underlined the wording under Simkovic:
“The DRC observed that it therefore cannot condone the conduct of a player or a club who has
specifically chosen to submit a labour dispute to the aforementioned national body/court, and
then subsequently submits the identical or essentially identical dispute between the same
parties, based on the same legal framework i.e. the employment contract, to the FIFA Dispute
Resolution Chamber; the same is to be noted if the party submits a claim first before the
FIFA DRC and thereafter lodges the same claim in front of the national body.” (emphasis
added).
81. The Chamber therefore concluded that once the player lodged the Spanish Claim, he de
facto renounced to have his FIFA Claim heard by the Football Tribunal. The consequences
deriving from the fact that he later chose to withdraw his Spanish Claim is a different
aspect which does not affect the DRC’s ability to decline jurisdiction to entertain the
dispute for the player engaged in forum shopping.
82. Based on the foregoing, the DRC confirmed that the player’s claim is inadmissible.
b. Costs
83. 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.
84. 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.
85. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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V. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Joris Gnagnon, is inadmissible.
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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