Labour Disputes
Texto da decisão
REF FPSD-4149
Decision of the
Dispute Resolution Chamber
passed on 21 July 2022
regarding an employment-related dispute concerning the player Haythem
Jouini
COMPOSITION:
Frans de Weger (The Netherlands), Chairperson
Roy Vermeer (The Netherlands), Member
Alejandro Atilio Taraborelli (Argentina & Italy), Member
CLAIMANT:
Haythem Jouini, Tunisia
Represented by Mr Anis Ben Mime
RESPONDENT:
Arab Contractors, Egypt
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I. Facts of the case
1.
On 7 November 2020, the player Haythem Jouini (hereinafter: “the player” or “the
Claimant”) and the club, Arab Contractors (hereinafter: “the club” or “the Respondent”)
concluded an employment contract (hereinafter: “the contract”) valid for two sporting
seasons, i.e. from season 2020/2021 until season 2021/2022.
2.
Article second of the contract states that the player would be entitled to receive the
following remuneration:
Season 2020/2021: USD 17,500 divided as follows:
- USD 2,500 due in December 2020;
- USD 2,500 due on 1 January 2021;
- USD 2,500 due on 1 February 2021;
- USD 2,500 due on 1 March 2021;
- USD 2,500 due on 1 April 2021;
- USD 2,500 due on 1 May 2021;
- USD 2,500 due on 1 June 2021;
Season 2021/2022: USD 30,000 divided as follows:
- USD 3,000 due on 1 September 2021;
- USD 3,000 due on 1 October 2021;
- USD 3,000 due on 1 November 2021;
- USD 3,000 due on 1 December 2021;
- USD 3,000 due on 1 January 2022;
- USD 3,000 due on 1 February 2022;
- USD 3,000 due on 1 March 2022;
- USD 3,000 due on 1 April 2022;
- USD 3,000 due on 1 May 2022;
- USD 3,000 due on 1 June 2022.
3.
Article 3.1 of the contract provides that the club “shall arrange an insurance policy
committed against accidents, illness and death of the player and shall provide the player with
a copy of the relevant policy in a language that player understands”.
4.
Article fifth par. 2 of the contract states as follows (quoted verbatim):
“The Player or the Club cannot unilaterally terminate the contract unless the right to terminate
the contract is stipulated in the FIFA Regulations on the Status and Transfer of Players (‘FIFA
RSTP’). Particular reference is made to art. 13, art. 14 and art. 14bis and 17 of the FIFA RSTP,
which state that a party may terminate the contract where there is just cause If there is just
cause the contract may be terminated at anytime even during the course of a season”.
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5.
Article fifth par. 3 of the contract states, that in case of termination by any of the parties
with or without just cause, the FIFA Regulations on the Status and Transfer of Players
(RSTP) and the FIFA Dispute Resolution Chamber (DRC) jurisprudence will govern the
consequences.
6.
Article sixth of the contract states that the player would be entitled to receive the
following additional payments:
Season 2020/2021:
• USD 40,000 as an advance payment for the 2020/2021 season;
• USD 47,500 as a lump sum including training, transportation and lunch
allowance in monthly instalments;
• USD 35,000 at the end of the season, according to the actual participation in the
matches.
Season 2021/2022:
• USD 82,500 as a lump sum including training, transportation and lunch
allowance in monthly instalments;
• USD 37,500 at the end of the season, according to the actual participation in the
matches.
Other provisions:
• In the event the contract is terminated by the club unilaterally before its end, the
player shall be notified of the termination of the contract within 15 days from the
date of the last official match in the season;
• The player shall bear any fees or subscriptions approved by the federation or the
associations of the various clubs;
• The player has been informed of the list of the first team and agrees with what
it said;
• USD 5,000 as bonus in case the player scores ten goals during the season;
• Two round trip tickets for each season in favour of the player;
• The contract includes housing and car allowance.
7.
On 23 September 2021, the player sent a default notice to the club requesting the
payment of the total amount of USD 32,787.34 as alleged outstanding remuneration
granting the club 15 days to remedy its default, to no avail. Said amount is composed as
follows:
1) USD 12,381 as salaries for the season 2020/2021;
2) USD 3,000 as salary due on 1 September 2021;
3) EGP 90,000 (=USD 6,000) as bonus for matches against Aswan, Makassah and
Gouna;
4) USD 10,769 as bonus for participation in nine official matches; and
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5) EGP 10,000 (=637.34) as surgery costs.
8.
On 12 October 2021, the player sent a communication to the club terminating the
contract with immediate effect due to the alleged outstanding remuneration and because
the club did not include him in the list of eligible players sent to the Egyptian Football
Association (EFA) for the season 2021/2022 declaring him a free player.
9.
Following the termination of the contract, the player informed FIFA having signed an
employment contract with the Libyan club, Al Ahly Benghazi valid from 13 October 2021
until the end of the season 2021/2022, i.e. 30 June 2022. According to the new
employment contract, the player would be entitled to receive a total amount of USD
110,000 net payable as follows:
• USD 44,000 as signing on fee 48 hours after receiving the ITC; and
• 9 instalments of USD 7,333,33 each.
II. Proceedings before FIFA
10. On 29 October 2021, 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
11. The player lodged a claim before FIFA against the club for unilateral termination of the
contract with just cause. The player requested the following amounts:
Outstanding remuneration: USD 50,017.34 plus an interest of 5% p.a. as from 15 May
2021.
1) USD 12,381 as salaries for the season 2020/2021;
2) USD 3,000 as salary due on 1 September 2021;
3) EGP 90,000 (=USD 6,000) as bonus for matches against Aswan, Makassah and
Gouna;
4) USD 35,000 as bonus for participation in official matches; and
5) EGP 10,000 (=USD 637.34) as surgery costs.
Compensation: USD 180,000 plus an interest of 5% p.a. as from 29 September 2021.
1) USD 150,000 as residual value of the contract; and
2) USD 9,000 as additional compensation for the abusive termination of the
contract equivalent to three monthly salaries.
12. In addition, the player requested the imposition of sporting sanctions to the club.
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13. Regarding the medical costs, the player stated having underwent a back surgery and
based on article 3.1 of the contract the club should cover said costs. In this respect, the
player enclosed an invoice issued by the Tunisian clinic, Ezzahra, dated 24 March 2021 for
a total amount of TND 1,607,303 from which TND 1,000,000 was already paid and a
balance of TND 607,303 was still outstanding.
b. Position of the Respondent
14. The club argued that based on the article sixth (“other provisions”) of the contract, in the
event of termination of the contract by the club before the end of the contract, the player
is declared to terminate his contract within 15 days before of the date of the last official
game of the season. The club further argued, in that case, the player is entitled to the
remuneration of the previous season only.
15. Moreover, the club stated that it terminated the contract in accordance with the cited
provision and the player was notified by registered mail. The club added that the player
was informed of the expiration of his contract and that the date of the last match in
2020/2021 season was 28 August 2021.
16. The club enclosed a copy of an undated letter addressed to the player by means of which
the club informed the player that his contract was terminated at the end of the 2020/2021
season “on the basis of the terms of the contract”. In addition, the club enclosed a letter
addressed to the Egyptian Football Association (EFA) informing the termination of the
contract with several players including the Claimant.
17. The club argued having paid all the remuneration related to the season 2020/2021 to the
player and presented an unclear list of contractual obligations and bonuses sometimes
in unclear currencies. At the end of its position, the club presented the following breakdown:
Season 2020/2021
USD 17,500 as annual salary
USD 40,000 as contract provider
USD 47,500 as training, moving and feeding allowance
USD 35,000 as player´s participation in official matches
Total: USD 140,000
Total opponent: EGP 68,974.65
Receivable: EGP 1,794,000.75
The player was paid: 1,425,699.25
Balance: EGP 368,307.50
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18. The club enclosed copies of untranslated checks allegedly signed by the player related to
remuneration from December 2020 to June 2021.
19. Furthermore, the club argued that the player refused to receive checks related to the
following situations, however the documentation provided in this regard was not
translated:
• Bonuses for ties in the matches against Tala´ea El Gaish and El Makasa;
• Bonuses for winning matches against El Makasa, Aswan SC and El Gouna;
• Last instalment training, transfer and nutrition allowance; and
• Participation rate.
20. Lastly, the club enclosed a copy of a one-way electronic ticket booked for the player dated
23 August 2021 from Cairo (Egypt) to Carthage (Tunisia).
c. Additional comments of the Claimant
21. The player was requested to present additional comments regarding the payments
alleged by the club in its reply, however he did not submit any further position.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 29 October 2021 and
submitted for decision on 21 July 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.
23. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par.
1 lit. b) of the Regulations on the Status and Transfer of Players (July 2022), 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 Tunisian player
and an Egyptian club.
24. 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 Players (July 2022), and
considering that the present claim was lodged on 29 October 2021, the August 2021
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edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
25. 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).
c. Merits of the dispute
26. 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
27. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim for outstanding remuneration and
compensation for termination of the contract by the player allegedly with just cause. On
the other hand, the club argued having terminated the contract with the player at the end
of the first season in accordance with article sixth of the contract.
28. In this context, the Chamber acknowledged that its task was to determine when and by
whom the termination of the contract had taken place, and its ensuing consequences.
29. The club, in support of its position, filed two undated letters: one addressed to the player
and another one to the EFA. At the same time, the Chamber noted that on 12 October
2021, the player sent the termination letter to the club. In the cited letter, the player
referred to the letter sent by the club to the EFA excluding him from the squad.
30. In light of the above, and taking into account that based on the evidence at disposal it is
not possible to specify in which date the club informed the EFA of the exclusion of the
player from the squad and the cancellation of his contract, the DRC concluded that on 12
October 2021, the player was the one who terminated the contract.
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31. Subsequently, the DRC proceeded to analyse if the termination by the player was made
with or without just cause. In this scenario, 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.
32. In doing so, the Chamber referred to the letter by the club which was addressed to the
EFA and which clearly states that the player´s contract was cancelled. Moreover, the club
in its position argued having terminated the contract based on its article sixth which
reads: “In the event the contract is terminated by the club unilaterally before its end, the player
shall be notified of the termination of the contract within 15 days from the date of the last
official match in the season”.
33. In this respect, the reasons provided by the club cannot be upheld since a premature
termination of a contract should be based on justified reasons and taking into account
that a termination of an employment relationship should be always an ultima ratio
measure.
34. In parallel, the DRC was mindful that, the player argued having terminated the contract
taking into account that the club cancelled the contract declaring him a free player and
based on the fact that the club owed him the requested remuneration. In this respect,
the DRC confirmed that paying a player’s salaries is one of the main obligations of a club
in respect of their mutual employment relationship.
35. In light of all the above, the DRC considered that on 12 October 2021, the player
terminated the contract with the club with just cause, insofar as the club had clearly lost
interest in retaining the player’s services and the latter could not reasonably expect the
employment relationship to continue.
ii. Consequences
36. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
37. The Chamber observed that the player sought outstanding remuneration at the time of
termination, as follows:
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-
USD 12,381 as salaries for the season 2020/2021;
USD 3,000 as salary due on 1 September 2021;
EGP 90,000 (=USD 6,000) as bonus for matches against Aswan, Makassah and Gouna;
USD 35,000 as bonus for participation in official matches; and
EGP 10,000 (=USD 637.34) as surgery costs.
38. With regard to the salaries, the club argued having paid them but it presented
untranslated evidence in support of its position, i.e. not translated into English, Spanish
or French. Therefore, such evidence was dismissed by the Chamber or the basis of art. 13
par. 1 and 3 of the Procedural Rules. Consequently, the DRC decided to grant the player
the amount of USD 15,381 as unpaid salaries.
39. In continuation, with regard to the bonus for matches against Aswan, Makassah and
Gouna, the DRC was mindful of the fact that even if the contract does not specify any
bonus for winning matches, the club recognized its willingness to pay – and only raised
the fact that the player refused it to receive the amount. On account of this confession of
the club, the DRC was comfortable to confirm that USD 6,000 should be paid to the player
as bonuses.
40. In continuation, about the bonus for participation in official matches, the DRC took note
that the player in his claim did not specify the matches in which he participated. However,
the DRC did not fail to notice that in his default notice dated 23 September 2021, the
player mentioned having participated in nine official matches and being entitled to
receive USD 10,769. Moreover, the DRC observed that in the club´s position in these
proceedings it confirmed that the player participated in 30.7% of the matches, thus being
entitled to USD 10,745.30.
41. The DRC confirmed therefore that in light of the above, and particularly the player’s
admission of his entitlement of USD 10,769 per his default notice (instead of the USD
35,000 sought), the DRC was comfortable to grant the player the amount of USD 10,769
as bonus.
42. Finally, the DRC addressed the player request for payment of EGP 10,000 (USD 637.34) as
surgery costs. In this respect, the player enclosed evidence of having paid TND 1,000,000
and argued that a balance of TND 607,303 was still outstanding. Taking into account that
this request remained uncontested by the club, the Chamber decided to grant the
amount of USD 637.34 to the player.
43. As a result, the player is entitled to receive the total amount of USD 32,787.34 as
outstanding remuneration in accordance with the general legal principle of pacta sunt
servanda. In addition, taking into consideration the Claimant’s request as well as the
constant practice of the Chamber in this regard, the latter decided to award the Claimant
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interest at the rate of 5% p.a. on the outstanding amounts as from the date of termination
of the contract until the date of effective payment.
44. Having stated the above, the Chamber 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
Chamber 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.
45. In application of the relevant provision, the Chamber held that it 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 Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
46. As a consequence, the members of the Chamber 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 Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
47. 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
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 147,000 (i.e. the residual value of the contract
comprising of all fixed payments agreed therein – USD 27,000 as salaries from October
2021 to June 2022, plus USD 87,500 as lump sum payment, and USD 37,500 as end of
season payment) serves as the basis for the determination of the amount of
compensation for breach of contract.
48. In continuation, the Chamber 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 DRC 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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49. Indeed, the player found new employment. In accordance with the pertinent employment
contract, the Chamber concluded that the player mitigated his damages in the total
amount of USD 110,000.
50. Subsequently, the Chamber 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 Chamber 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.
51. In this respect, the DRC decided to award the additional compensation to the player. In
order to do so, the DRC proceeded to examine the player’s average salary for the season
2021/2022 due to the fact that he was entitled to multiple fixed remunerations during the
contract’s term. According to TMS, the season 2021/2022 in Egypt runs from 25
September 2021 until 30 August 2022, i.e. 11 months. Therefore, the DRC confirmed that
the average salary for the season 2021/2022 amounts to a total monthly amount of USD
13,636 which is composed as follows:
•
•
•
USD 2,727 (USD 30,000/11) according to article second of the contract;
USD 7,500 (USD 82,500/11) according to article sixth of the contract; and
USD 3,409 (USD 37,500/11) according to article sixth of the contract.
52. As a result, the Chamber decided that the player is entitled to the amount of USD 40,908
(USD 13,636 x 3) as additional compensation.
53. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 77,908 to the player (i.e. USD 147,000 minus USD 110,000 plus USD 40,908), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
54. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award him interest on said
compensation at the rate of 5% p.a. as of the date of claim until the date of effective
payment.
iii. Compliance with monetary decisions
55. 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
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concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
56. In this regard, the DRC 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.
57. Therefore, bearing in mind the above, the DRC 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.
58. 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.
59. The DRC 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
60. 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.
61. 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.
62. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Haythem Jouini, is partially accepted.
2.
The Respondent, Arab Contractors, has to pay to the Claimant the following amounts:
- USD 32,787.34 as outstanding remuneration plus 5% interest p.a. as from 12 October
2021 until the date of effective payment;
- USD 77,908 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 29 October 2021 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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