Labour Disputes
Texto da decisão
REF FPSD-6855
Decision of the
Dispute Resolution Chamber
passed on 14 December 2022
regarding an employment-related dispute concerning the player SENAD
JAROVIC
BY:
Iñigo Riestra, (Mexico)
CLAIMANT:
Senad Jarovic, Bosna and Hercegovina
Represented by Ivan Smokrovic
RESPONDENT:
ACS Petrolul 52, Romania
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I.
Facts of the case
1.
On 25 August 2021, the Bosnian player Senad Jarovic (hereinafter: the Claimant or the
player) and the Romanian club ACS Petrolul 52 (hereinafter: the Respondent or the club)
concluded an employment agreement (hereinafter: the Contract) to be valid as from said
date until 30 June 2023.
2.
In accordance with articles 9.1 and 9.2 of the Contract, the Respondent undertook to
pay to the Claimant the following amounts on the 15th days of each following month:
3.
“monthly salary in net amount 3.000,00 EURO/month for the competitive season
2021/2022,
•
monthly salary in net amount 4.500,00 EURO/month for the competitive season
2022/2023 in accordance with article 9.2 of the Contract - if the Club promotes to the 1ˢᵗ
Football League at the end of the competitive season 2021-2022.”
Furthermore, under articles 9.4 and 9.5 the parties stipulated the following bonuses to
be paid jointly with the player’s monthly salary:
4.
•
“monthly bonus in the net amount of 500 EURO if (the player) plays in at least 50% of
official matches during the competition month (the games in which the Player performs
for at least 45 minutes are considered); or
•
monthly bonus in the net amount of 1000 EURO if (the player) plays in 100% of official
matches during the competition month (the games in which the Player performs for at
least 45 minutes are considered)”.
In addition to the above, article 9.9 of the Contract foresaw a further bonus in favour of
the Claimant, subject to the following conditions:
•
5.
•
“If the Club promotes to the 1st Football League at the end of the competitive season 20212022, the Player will receive a promotion bonus in net amount of 20,000 (twenty thousand)
Euro, provided that the Player performs in minimum of 75% of the official games for the
competition of 2nd Football League 2021-2022: (the official games in which the Player
performs for a least 45 minutes/game are considered). If the condition related to the
minimum number of games is not met, the provisions of the Internal Regulations 20212022 regarding the promotion bonus shall apply. “
In this respect, articles 9.1 and 9.2 of the “Internal Regulations of the Club” for the year
2021-2022 establish the following:
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“9.1. The objective of the Club is the promotion of the senior team in the first football echelon
of the country at the end of the competitive season 2021-2022 2nd Football League.
9.2. By fulfilling the performance objective provided by art. 9.1. of this R.I., the promotion
bonus is up to 15,000 Euro net. The collection of the entire amount of the promotion bonus
is conditional on the player's performance in the first senior team in at least 75% of the
games related to the 2021-2022 League 2 football competition season.
Official games related to the 2021-2022 League 2 football competition season in which the
player plays at least 45 minutes are taken into account. Players who performed below the
threshold of 75% of the games related to the 2021-2022 League 2 football competition
season but not less than 50% of the total number of games (45 minutes per official game)
will receive a promotion bonus in the amount of 10,000 euros net. For the situation of the
players of the senior team who performed below the threshold of 50% of the total number
of official games related to the 2021-2022 competitive season 2nd Football League, the
promotion bonus is to be calculated and awarded in proportion to the number of
games/minutes quantifiable for the 2021-2022 League 2 football”.
6.
On 14 June 2022 the club’s doctor, Mrs. Laura Popa reported to the Respondent’s
management that the Claimant had been diagnosticated with an infectious skin disease
denominated “Chicken Pox”, hence the Respondent was informed that the player would
have been put in quarantine for a period of at least 15 days.
7.
By correspondence dated 15 June 2022, the Claimant put the Respondent in default of
payment of EUR 33,500 setting a time limit expiring on 30 June 2022 in order to remedy
the default.
8.
On 21 June 2022, the Respondent executed a payment in favour of the Claimant for the
amount of EUR 1,000.
9.
On 29 June 2022, the Romanian Football Federation Executive Committee (RFFEC)
approved the standings of all football competitions held during the season 2021/2022,
including the one in which the Claimant participated with the Respondent’s team.
10.
According to the official final rankings, the Respondent was promoted to the “Liga I”, i.e.,
the Romanian 1st division of football.
11.
On 4 July 2022, the Claimant notified the Respondent the unilateral termination of the
Contract with alleged just cause.
12.
On 5 July 2022, the Claimant concluded a new employment contract with the Bosnian
club FK Sloboda Tuzla to be valid from 6 July 2022 until 31 May 2023, for a total
remuneration of EUR 3,146 net.
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II.
Proceedings before FIFA
13.
On 25 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 Respondent failed to comply with its financial obligations
to the extent that it irremediably prejudicated the stability and continuance of their
employment relationship.
15.
In particular, the Claimant argued that, in spite of the relevant default notice dated 15
June 2022, the Respondent only paid the sum of EUR 1,000 on 21 June 2022, namely as
monthly bonuses for March and April 2022, while it failed to pay the entire salaries due
between the period March-June 2022.
16.
Furthermore, the Claimant sustained that the bonus due to the club’s promotion to the
Liga I remained outstanding and shall be paid by the Respondent in accordance with
the Contract.
17.
Finally, the Claimant held that due to the significant quantum of the outstanding sums
at the time of the termination, he had just cause and shall be entitled to a compensation
corresponding to the residual value of the employment agreement.
18.
Accordingly, the requests for relief of the Claimant, were the following:
•
•
•
•
EUR 32,000 as outstanding remuneration;
EUR 54,000 as compensation for the breach of contract;
EUR 13,500 as additional compensation;
Statutory default interest.
b. Position of the Respondent
19.
In its reply, the Respondent firstly objected to the quantum of the sums claimed as
outstanding by the player at the moment of the termination.
20.
In particular, the Respondent held that the default notice first and, subsequently, the
termination notice, were vitiated by an incorrect calculation of the overdue salaries and
bonuses by the Claimant.
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21.
In this respect, the Respondent argued that until the end of the year 2021/2022, the
player’ salary corresponded to EUR 3,000 per month, whereas in the default notice
dated 15 June 2022 the Claimant erroneously referred to an outstanding remuneration
of EUR 4,500 also with regards to the salaries of March, April, and May 2022.
22.
Secondly, in the Respondent’s view, the bonus due to the club’s promotion to the Liga I
was not amounting to EUR 20,000 as claimed by the player.
23.
In this regard, the Respondent argued that, pursuant to the Contract, the said amount
could have been payable to the Claimant only if he had participated in at least 75% of
2nd division’s official games, but this did not occur.
24.
Conversely, the Respondent sustained that, having the Claimant participated in less
than 50% of the games, namely 31,03%, the payment of the bonus for the promotion
should be realized based on the criteria set under articles 9.1 and 9.2 of the “Internal
Regulations of the Club” and as recalled by the same Contract.
25.
In this respect, according to the Respondent, the Claimant should be entitled to EUR
3,103 only.
26.
Furthermore, the Respondent stated that, in any case, the abovementioned bonus was
not due until 15 July 2022, namely as the formalization of the 2nd division final rankings
by the RFFEC occurred only on 29 June 2022.
27.
In this regard, the Respondent remarked that pursuant to the Contract, all payments
should be realized on the 15th day of each relevant month.
28.
In continuation, the Respondent accused the Claimant of not respecting the quarantine
period prescribed by the club’s doctor on 15 June 2022 and sustained that the same
player had already moved away from Romania and established another employment
relationship even before terminating the Contract with the Respondent.
29.
In this context, the Respondent alleged that the payment of EUR 1,000 realized on 21
June 2022 had been made by the club as proof of good faith and willing to remedy to
the overdue payables while the Claimant was supposed to be still under quarantine.
30.
In this respect, the Respondent alleged that, conversely, the Claimant acted in bad faith
and tried to deceive the club by taking advantage of the Respondent’s financial
difficulties, while he had already signed a new employment agreement with the Bosnian
club FK Sloboda Tuzla on 1 July 2022, hence he had not just cause to terminate the
Contract on 4 July 2022.
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31.
In conclusion, the Respondent requested to reject the claim for compensation because
the Claimant had no just cause to terminate the Contract, whereas the outstanding
remuneration to be awarded shall be limited to the sum of EUR 14,103 only.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
32.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also
referred to as the Single Judge) analysed whether he was competent to deal with the
case at hand. In this respect, he took note that the present matter was presented to
FIFA on 27 July 2022 and submitted for decision on 14 December 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.
33.
Subsequently, the Single Judge 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 October 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 Bosnian player
and a Romanian club.
34.
Subsequently, the Single Judge 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 Players (October 2022
edition), and considering that the present claim was lodged on 27 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
35.
The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
c. Merits of the dispute
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36.
The competence and the applicable regulations having been established, the Single
Judge entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments, and documentary evidence,
which he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
37.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the quantum of the
outstanding remuneration in favour of the Claimant and, consequently, whether the
latter had just cause to terminate the Contract on 4 July 2022.
38.
With the above in mind, and as a premise to his considerations on the matter, the Single
Judge acknowledged that on 25 August 2021 the parties concluded an employment
agreement to be valid until 30 June 2023.
39.
In this context, the Single Judge recalled that pursuant to the Contract, during the
season 2021/2022 the Claimant would be entitled to a monthly salary of EUR 3,000, plus
a variable bonus depending on the player’s participation to the official games disputed
by the club in the Romanian 2nd division.
40.
In this respect, the Single Judge observed that it remained uncontested that during the
season 2021/2022 the Respondent failed to pay the Claimant’s monthly remuneration
related to the period between March 2022 and June 2022, i.e., 4 salaries, corresponding
to EUR 12,000.
41.
In this context, the Single Judge wished to remark that the Respondent failed to prove
that the club’s payment of EUR 1,000 realized in favour of the Claimant on 21 June 2022
corresponded to part of the outstanding salaries abovementioned, whereas in the
Single Judge’s view it appears more plausible that, as per what declared by the player,
such amount would correspond to the monthly bonuses based on articles 9.4 of the
Contract and due on March and April 2022.
42.
Consequently, the Single Judge determined that the player’s full salary between March
and May 2022 resulted outstanding at the time of the termination by hand of the
Claimant.
43.
In continuation, the Single Judge took note of the Respondent’s objection concerning
the bonus of EUR 20,000 claimed by the player on the basis of art. 9.9 of the Contract.
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44.
In this respect, the Single Judge observed that the Claimant based his request on the
mere premise of the club’s promotion to the Romanian 1st division (Liga I), whereas the
Respondent argued that pursuant to the same art. 9.9 of the Contract when read in
conjunction with the relevant “Internal Regulations of the Club for the season
2021/2022”, the aforementioned bonus, although effectively stipulated for the
promotion of the club to the Liga I, had to be paid to the Claimant in a proportional
manner to the percentage of games effectively played by the latter during the relevant
season.
45.
In particular, the Single Judge noted that according to the Respondent’s read of the
relevant provisions, the Claimant shall be entitled to the amount of EUR 3,103, namely
as the player participated in only 31,03% of the official games disputed by the club
during the relevant season and competition.
46.
In this context, the Single Judge was of the opinion that the interpretation of the
Respondent is to be preferred insofar the wording of the Contract appears clear and
unequivocal.
47.
In particular, the Single Judge recalled article 9 of the employment agreement, pursuant
to which “If the Club promotes to the 1st Football League at the end of the competitive
season 2021-2022, the Player will receive a promotion bonus in net amount of 20,000 (twenty
thousand) Euro, provided that the Player performs in minimum 75% of the official game: for
the competition of 2nd Football League 2021-202: (the official games in which the Player
performs for a least 45 minutes/game are considered). If the condition related to the
minimum number of games is not met, the provisions of the Internal Regulations 2021202: regarding the promotion bonus shall apply”.
48.
Accordingly, the Single Judge took note of the content of art. 9.1 and 9.2 of the relevant
Internal Regulations, which clearly establish that “(…) Official games related to the 20212022 League 2 football competition season in which the player plays at least 45 minutes are
taken into account. Players who performed below the threshold of 75% of the games related
to the 2021-2022 League 2 football competition season but not less than 50% of the total
number of games (45 minutes per official game) will receive a promotion bonus in the
amount of 10,000 euros net. For the situation of the players of the senior team who
performed below the threshold of 50% of the total number of official games related
to the 2021-2022 competitive season 2nd Football League, the promotion bonus is to be
calculated and awarded in proportion to the number of games/minutes quantifiable
for the 2021-2022 League 2 football”
49.
As a consequence, the Single Judge determined that the bonus payable to the Claimant
upon the Respondent’s promotion to Liga I amounts to EUR 3,103 and it results
outstanding.
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50.
Additionally, and based on the evidence submitted by the parties, the Single Judge
agreed with the Respondent that the above-mentioned bonus has become due only as
from 15 July 2022, hence the Single Judge decided not to compute it for the purposes of
determining whether the Claimant had just cause to terminate the Contract on 4 July
2022.
51.
Nevertheless, the Single Judge assessed that at the time of the termination, the effective
value of outstanding remuneration in favour of the Claimant amounted to EUR 9,000,
which correspond to three monthly salaries.
52.
With the above in mind, and in particular having ascertained the existence of significant
overdue payables in favour of the Claimant at the time of the termination, the Single Judge
concluded that the player had just cause to terminate the contract on 4 July 2022, hence he
shall be entitled to a compensation.
ii. Consequences
53.
Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
54.
The Single Judge observed that the outstanding remuneration at the time of
termination, coupled with the specific requests for relief of the player, are equivalent to
3 salaries under the contract, amounting to EUR 9,000.
55.
Nevertheless, for reasons of procedural economy, the Single Judge established that also
the salary of June 2022 shall be included among the outstanding sums, namely as it fully
accrued in relation to the month before the termination of the Contract.
56.
Furthermore, and for the same reason, the Single Judge established that the player shall
be entitled to EUR 3,103 as outstanding bonus for the club’s promotion to the Romanian
1st division (Liga I).
57.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant
the total amount of EUR 15,103 as outstanding remuneration.
58.
In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the latter decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as from the respective due
dates until the date of effective payment.
59.
Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
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Single Judge firstly recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and unless
otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and further
objective criteria, including in particular, the remuneration and other benefits due to
the player under the existing contract and/or the new contract, the time remaining on
the existing contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
60.
In application of the relevant provision, the Single Judge held that she first of all had to
clarify as to whether the pertinent employment contract contained a provision by
means of which the parties had beforehand agreed upon an amount of compensation
payable by the contractual parties in the event of breach of contract. In this regard, the
Single Judge established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
61.
As a consequence, the Single Judge determined that the amount of compensation
payable by the club to the player had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Single Judge recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
62.
Bearing in mind the foregoing as well as the claim of the player, the Single Judge
proceeded with the calculation of the monies payable to the player under the terms of
the contract from the date of its unilateral termination until its end date. Consequently,
the Single Judge concluded that the amount of EUR 54,000 (i.e. the residual value) serves
as the basis for the determination of the amount of compensation for breach of
contract.
63.
In continuation, the Single Judge verified as to 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 Single Judge 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.
64.
Indeed, the player found employment with the Bosnian club FK Sloboda Tuzla. In
accordance with the pertinent employment contract, the player was entitled to 550 BAM
(Bosnia and Herzegovina Convertible Marks) per month, which correspond
approximately to EUR 291. Therefore, the Single Judge concluded that the player
mitigated his damages in the total amount of EUR 3,492, that is, 12 times EUR 291.
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65.
Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player is entitled to an amount corresponding to three monthly
salaries as additional compensation should the termination of the employment
contract at stake be due to overdue payables. In the case at hand, the Single Judge
confirmed that the contract termination took place due to said reason i.e. overdue
payables by the club, and therefore decided that the player shall receive additional
compensation.
66.
In this respect, the Single Judge decided that the Claimant is in principle to be awarded
the amount of additional compensation of EUR 9,000, i.e. three times the monthly
remuneration of the Claimant. However, the Single Judge highlighted that art. 17 of the
Regulations is clear to establish that the maximum compensation that can be awarded
(including any potential additional compensation) is capped at the residual value of the
(terminated) contract. As such, the Single Judge decided that the maximum amount of
compensation that could be awarded was EUR 54,000 and that therefore the additional
compensation of the player had to be capped at EUR 3,492.
67.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the
amount of EUR 54,000 to the player (i.e. 54,000 minus 3,492 plus 3,492), which was to
be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
68.
Lastly, taking into consideration the player’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 27 July 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
69.
Finally, taking into account the applicable Regulations, the Single Judge 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.
70.
In this regard, the Single 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.
The overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
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71.
Therefore, bearing in mind the above, the Single Judge 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.
72.
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.
73.
The Single Judge 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
74.
The Single Judge 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 Single Judge decided that no procedural costs
were to be imposed on the parties.
75.
Likewise and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall
be awarded in these proceedings.
76.
Lastly, the Single Judge 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, Senad Jarovic, is partially accepted.
2.
The Respondent, ACS Petrolul 52, has to pay to the Claimant, the following amount:
EUR 3,000 as outstanding remuneration plus 5% interest p.a. as from 16 April 2022
until the date of effective payment;
EUR 3,000 as outstanding remuneration plus 5% interest p.a. as from 16 May 2022
until the date of effective payment;
EUR 3,000 as outstanding remuneration plus 5% interest p.a. as from 16 June 2022
until the date of effective payment;
EUR 3,000 as outstanding remuneration plus 5% interest p.a. as from 16 July 2022 until
the date of effective payment;
EUR 3,103 as outstanding bonus plus 5% interest p.a. as from 16 July 2022 until the
date of effective payment;
EUR 54,000 as compensation for breach of contract without just cause plus 5%interest
p.a. as from 27 July 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 article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
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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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