DRC Overdue Payables
Texto da decisão
REF FPSD-6437
Decision of the
Dispute Resolution Chamber
passed on 15 September 2022
regarding an employment-related dispute concerning the player Leandro Deyrinio
Kappel
BY:
Frans DE WEGER (the Netherlands), Chairperson
Tomislav KASALO (Croatia), member
Jerome PERLEMUTER (France), member
CLAIMANT:
Leandro Deyrinio Kappel, the Netherlands
Represented by Yakub Kizilkaya
RESPONDENT:
Altay SK, Türkiye
Represented by Ali Sami Er
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REF FPSD-6437
I. Facts of the case
1.
On an unspecified date, the Dutch player, Leandro Deyrinio Kappel (hereinafter: the
Claimant or the player) and the Turkish club, Altay SK (hereinafter: the Respondent or the
club) concluded an employment contract (hereinafter: the contract), valid as from 1 June
2020 until 31 May 2022.
2.
Under the contract, the Respondent undertook to pay to the Claimant inter alia the
following amounts:
a. Season 2020/2021: total of EUR 280,000, payable as follows:
i. 10 monthly instalments of EUR 7,000 each, payable by the first week
of every month from August 2020 to May 2021;
ii. EUR 70,000 to be paid in August 2020;
iii. EUR 70,000 to be paid in December 2020;
iv. EUR 70,000 to be paid in February 2021;
b. Season 2021/2022: total of EUR 308,000, payable as follows:
i. 10 monthly instalments of EUR 7,700 each, payable by the first week
of every month from August 2021 to May 2022;
ii. EUR 77,000 to be paid in August 2021;
iii. EUR 77,000 to be paid in December 2021;
iv. EUR 77,000 to be paid in February 2022;
3.
Under the contract, the player was also entitled to the following (quoted verbatim):
“•
In the 2021-2022 football season, if the total of titles and goals in league matches is
10 or more, the player will receive an additional payment of 50.000 € (fifty thousand euros).
•
If the total of assists and goals In league matches in the 2020-2021 football season
is 10 or more, the player will receive an additional payment of 50.000 € (FIFTY THOUSAND
EUROS).
•
If the total of assists and goals in league matches in the 2021-2022 football season
is 10 or more, the player will receive an additional payment of 50.000 € (FIFTY THOUSAND
EUROS).
•
If the Altay Sports Club professional football team is in the 1•1 league in the
2020/2021 season and is qualified to participate in the play-off competitions, a 20,000 €
(TWENTY THOUSAND EURO) success bonus will be paid to the football player.
•
If the Altay Sports Club professional football team is in the 1•• league in the
2021/2022 season and Is qualified to participate in the play-off competitions, a 20,000 €
(Twenty Thousand Euro) success bonus will be paid to the football player.
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REF FPSD-6437
•
A total of 100,000 € (Hundred Thousand Turkish Lira) will be paid to the player's
manager for the 2020-2021 season, as specified below. 50.000TL (Fifty Thousand Turkish
Lira) bank check with a due date of AUGUST 2020, 50,000 (Fifty Thousand Turkish Lira) bank
check with a due date of SEPTEMBER 2020.
•
A total of 100,000 € (Hundred Thousand Turkish Lira) will be paid to the player's
manager for the 2021-2022 season, as specified below. 50.000TL (Fifty Thousand Turkish
Lira) bank check with a due date of AUGUST 2021, 50,000 (Fifty Thousand Turkish Lira) bank
check with a due date of SEPTEMBER 2021.
•
If Altay Sports Club will compete in the super league In the 2020-2021 football
season, the football player's guaranteed wage specified in this contract for the 2020-2021
season will increase by 30% (thirty percent).
•
If Altay Sports Club will compete in the super league in the 2021-2022 football
season, the football player's guaranteed wage specified in this contract for the 2021-2022
season will increase by 30% (thirty percent).
•
If Altay Sports Club competes in the super league in the 2020-2021 season and is
relegated to a lower league at the end of the season, the football player's 2021-2022 season
guaranteed wage, which will be paid as the wage specified in this contract, will not be
applied and the super league increase will not be applied and will be invalid.
After the signing of this contract, the football player has to submit the documents required
for registration with the TFF, within the periods determined by the club, and obliged to be
ready for the health examination at the place and on the specified date determined by the
club.
•
The total minimum wage progress of the player was calculated and the down
payment was paid within the guaranteed money pays. No minimum wage will be paid.
•
If the player plays 20 League matches or more in the first 11 in the 2020-2021
football season, he will receive an additional payment of 50.000 € (FIFTY THOUSAND
EUROS).”
4.
The player explains that the contract was mistranslated from Turkish to English and that
as to his bonuses, the correct is the following:
“Turkish version of the contract, the player should receive 50.000 Euros additional payment
if he plays 20 games or more in the first 11 in the official league games. Therefore, we hereby
present the correct translation of the above-mentioned Turkish Clause:
“Futbolcu 2021/2022 futbol sezonunda 20 Lig maçı ve üzerinde ilk 11 de oynar ise
50.000€(ELLİBİN EURO) ek ödeme alacaktır”(Turkish Version)
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“If the player plays 20 league matches or more in the first 11in the 2021/2022 football
season, he will receive an additional payment of 50.000 €(fifty thousand euros).”(English
Version)
The translation should be the same as the 20 game clause of the 2020/2021 football season
since their Turkish version shave equal content. Please check page 2 and 3 of the English
version of the contract and page 3 of the Turkish version of the contract.
As can be seen from the contract, the 20 games clause 2020/2021 season and 2021/2022
season is the same in the Turkish version, however, it is different in the English version.
Obviously, there is a mistake of the translator, and the 20 games clause has been translated
wrong for 2021/2022footballseason. Therefore, we hereby present the contractual basis as
below:
“Futbolcu 2021/2022 futbol sezonunda 20 Lig maçı ve üzerinde ilk 11 de oynar ise
50.000€(ELLİBİN EURO) ek ödeme alacaktır”(Turkish Version)
“If the player plays 20 league matches or more in the first 11in the 2021/2022 football
season, he will receive an additional payment of 50.000 €(fifty thousand euros).”(English
Version) (Free Translation)”
5.
On 30 December 2020, the parties signed a protocol due to fact that the club had some
amounts outstanding towards the player (hereinafter: protocol). The protocol establishes
the following payment obligations from the Respondent to the Claimant:
a. EUR 20,000 as balance of the unpaid fee of August 2020;
b. EUR 70,000 as fee due on December 2020;
c. EUR 35,000 as unpaid salaries between August and December 2020;
d. TRY 100,000 as agent fee;
e. TRY 110,000 as bonus for playing 11 of 20 matches with regards to a previous
contract between the parties;
f.
6.
TRY 14,000 as unpaid rent allowances;
Under the protocol, said amounts would be paid as follows. The protocol further
establishes different bank accounts to which each payment is to be made.
a. EUR 50,000 on 31 December 2020;
b. TRY 100,000 as “agent fee” on 31 December 2020 to the bank account of the
player’s agent;
c. EUR 75,000 plus TRY 135,000 plus TRY 50,000 on 28 February 2021.
7.
The protocol further established the following clauses:
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“iii. In addition to the above-mentioned payments, the club will be footballer a monthly rent
of 3000 Turkish Lira for the duration of the contract, starting January 2021. Payments will
be made on the last day of each.
iv. The February 2021 guaranteed fee of 70,000 Euro, which is agreed to be paid in the
employment contract starting 01.06.2020 and ending 31.05.2021, will be paid by the club
on 15 February 2021. If this fee is not paid on 15.02.2021, the club will pay the player interest
at the rate of 1.5% per month. The club agrees in advance that the amount of interest in
question is not exorbitant and will not object to this interest rate.
v. if the amounts, agreed to the prepaid on 28th February 2021 in this protocol (…) are not
paid (…) the club will pay interest to the player at the rate of 1.5% per month until the
effective payment date. The club agrees in advance that the amount of interest in question
is not exorbitant and will not object to this interest rate.”
8.
The Respondent played in the Turkish first division during the season 2021/2022.
9.
By correspondence dated 23 May 2022, the Claimant put the Respondent in default of
payment of EUR 296.302,45 plus TRY 300,000 , without a specific breakdown, setting a 10
days’ time limit in order to remedy the default.
II. Proceedings before FIFA
10. On 21 June 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
11. The Claimant asked that the Respondent be ordered to pay to him overdue payables
regarding numerous unpaid amounts, detailed as follows. The Claimant explains that
since the Respondent played in the Turkish first division, his earnings were raised by 30%
in accordance with the contract. The Claimant also requests interests of 5% p.a. on each
amount as detailed below:
a. “50.000 Turkish Lira (agency fee) - 31st August 2021
b. 50.000 Turkish Lira (agency fee) - 30th September 2021
c. 100.100 Euros (guarantee payment) - 31st December 2021
d. 100.100 Euros (guarantee payment) - 28th February 2022
e. 10.010 Euros (guarantee-monthly payment) - 31st December 2021
f.
10.010 Euros (guarantee-monthly payment) - 31st January 2022
g. 10.010 Euros (guarantee-monthly payment) - 28th February 2022
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h. 10.010 Euros (guarantee-monthly payment) - 31st March 2022
i.
10.010 Euros (guarantee-monthly payment) - 30th April 2022
j.
10.010 Euros (guarantee-monthly payment) - 31st May 2022
k. 65.000 Euros (20 games starting eleven bonus) - 31st May 2022
l.
65.000 Euros (10 goal or assist bonus) - 31st May 2022”.
b. Position of the Respondent
12. In reply to the claim, the Respondent held that the agency fee was to be paid to the
player’s manager in accordance with the contract. As said person was not a party to the
proceedings, the Respondent requested that said part of the claim be rejected.
13. In continuation, the Respondent argued that the player wrongly applied the 30% increase
to his salary to conditional payments, something which was not agreed, and rejected the
player’s claim in this respect as lacking legal ground.
14. The Respondent furthermore claimed that it paid a total of TRY 3,800,000 and EUR 30,030
to the player during the season 2021/2022, which is approximately a total of EUR 261,594,
which the player failed to take into account in his claim. These payments have been made
by bank cheques and wire transfers.
15. The Respondent lastly explained that it faced a financial crisis due to the devaluation of
the Turkish Lyra and because of the COVID-19 pandemic.
16. The Respondent asked that the claim be rejected and it be awarded legal costs.
c. Additional comments of the Claimant
17. The FIFA general secretariat requested the Claimant to provide his comments on the
alleged payments made by the Respondent. He replied as follows:
“The respondent indicated that the 100.000 TL agency fee can not be requested by the player
as it must be paid to the agent of the player. However, we would like to underline that the
player may request the club to fulfill its obligation under the contract as the contract was
signed between the parties. Otherwise, the player will have to make a payment to his agent
by himself. As the agency fee is determined under the contract between the parties, the club
must fulfill its obligation against the player.
We have realized that the club has presented 3 proofs of payments related to 3 monthly
salaries. As can we see from the proof of payments, these payments only correspond to the
August, September and October salaries of the player. The player has not requested these
monthly salaries in the present claim.
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Moreover, we have realized that the club presented 5 cheques which were given to the
player. We hereby accept that the cheques were given to the player and the cheques have
already been paid. However, we would like to underline that the payment of these cheques
does not affect our claim. As we mentioned in our claim, the player is entitled to request
400.400 Euros guaranteed wage, 130.000 Euros bonus payments, and 100.000 Turkish Lira
agency fee. In other words, the player’s entitlement for 2021/2022 football season is equal
to 530.400 Euros + 100.000 Turkish Lira. However, the club has only paid 3.800.000 Turkish
Lira (Approximately 231.564 Euros considering the currency rates on the payments date as
indicated in the reply letter of the respondent) and 30.030 Euros.
Therefore, we can say that the player has earned 530.400 Euros + 100.000 Turkish Lira,
however, the club has only paid 261.594 Euros. The balance is equal to 268.806 Euros. As a
result, we kindly request the DRC to accept our claim.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. 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 21 June 2022 and submitted
for decision on 15 September 2022. Taking into account the wording of art. 34 of the
October 2021 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.
19. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (edition July 2022), 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
Dutch player and a Turkish club.
20. The Chamber however noted that the Respondent has objected to the admissibility of the
claim regarding the agency fees sought by the Claimant.
21. On this note, the Chamber underlined that in accordance with both the contract and the
protocol, it is clear that the agency fees are not agreed as part of the player’s
remuneration but are in fact due to the player’s manager. It follows therefore in the DRC’s
view that their nature is not employment-related, but commercial-related. The DRC was
moreover comforted in this assessment due to the fact that these agency fees do not
belong to the player as he admits in his statement of claim.
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22. The Chamber recalled that on the basis of art. 22 par. 1 lit. b) of the Regulations, it is only
competent to hear those disputes which are “employment-related”. As such, the DRC
concluded that it has no jurisdiction to make any determination on whether these agency
fees should be paid or not, and confirmed that this part of the claim is inadmissible.
23. 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 edition ), and
considering that the present claim was lodged on 21 June 2022, the June 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
24. 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
25. 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
26. 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 only,
where the club argues that some payments have been made. The question to be
answered is therefore what amounts, if any, are due to the player.
27. Before proceeding with this analysis, the DRC found it noteworthy that the club has not
challenged the concepts sought by the player (save for the agency fee), only their
quantum. The Chamber found this of particular relevance with regard to the bonuses for
goals scored and matches played as claimed by the player, whom in any event has
presented the corresponding evidence in support of the of the conditional payments
requested.
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28. Additionally, the DRC underlined that the financial difficulties invoked by the Respondent
are not valid reasons to justify the lack of payment in line with the well-established
jurisprudence of the DRC.
29. Considering the foregoing, the Chamber then proceeded to examine the core of the
dispute, namely:
a. Is the player entitled to a 30% raised in his conditional payments?
b. What are the amounts owed to the player?
30. With regard to the former, in accordance with the clear wording of the contract, the 30%
raise was only applicable to the guaranteed payments, and not on the conditional
amounts. This arises, in the Chamber’s opinion, particularly from the fact that the
guaranteed payments and the conditional payments are established under two different
sections of the contract.
31. As such, the Chamber concurred with the position of the Respondent and determined
that no raise should be applied on the conditional payments.
32. In continuation, the Chamber turned to the second issue, and upon confirmation of the
matter of the 30%, it determined that the player was entitled to a grant total of EUR
500,400 for the season 2021/2022, being (a) EUR 400,400 as guaranteed payments and
(b) EUR 100,000 as bonuses/conditional payments. The guaranteed payments were
detailed as follows: (a) monthly salaries raised from EUR 7,700 to EUR 10,010 and (b)
“large” payments raised from EUR 77,000 to EUR 100,100.
33. From this amount, the DRC highlighted that the club claims to have paid, and the player
accepts to have received, EUR 261,594. Therefore, the unpaid balance of these amounts
is EUR 238,806, which the DRC could allocate as follows:
Concept per
Claimant’s request
Guaranteed payment
Guaranteed payment
Salary
Salary
Salary
Salary
Salary
Salary
Bonus
Bonus
Due date
Owed
Paid
Balance
Dec-21
Feb-22
Dec-21
Jan-22
Feb-22
Mar-22
Apr-22
May-22
May-22
May-22
Total
€ 100,100.00
€ 100,100.00
€ 10,010.00
€ 10,010.00
€ 10,010.00
€ 10,010.00
€ 10,010.00
€ 10,010.00
€ 50,000.00
€ 50,000.00
€ 360,260.00
€ 100,100.00
€ 21,354.00
€
€
€
€
€
€
€
€
Total
€
€ 78,746.00
€ 10,010.00
€ 10,010.00
€ 10,010.00
€ 10,010.00
€ 10,010.00
€ 10,010.00
€ 50,000.00
€ 50,000.00
€ 238,806.00
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34. On the basis of the foregoing, the Chamber decided that the aforementioned figure was
to be paid by the Respondent to the Claimant on the basis of the general legal principle
pacta sund servanda.
35. 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 the player interest on said
compensation at the rate of 5% p.a. as of their respective due dates until the date of
effective payment.
ii. Art. 12bis of the Regulations
36. In continuation, the Chamber referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
37. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due more than 30 days before, and granted the
club a 10-day deadline to cure such breach of contract.
38. Accordingly, the Chamber confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand. In particular, the Chamber noted that the
outstanding amount of EUR 128,796 meets the said criteria.
39. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it
has competence to impose sanctions on the club. On account of the above and bearing
in mind that this is the 5th offense by the club within the last two years, the Chamber
decided to impose a fine on the club in accordance with art. 12bis par. 4 lit. c) of the
Regulations amounting to USD 30,000.
40. In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
41. 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.
42. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist, in principle, of a ban from registering
any new players, either nationally or internationally, up until the due amounts are paid.
43. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24 par.
3 of the Regulations, the aforementioned consequences may be excluded where the
pertinent FIFA deciding body has already imposed on the same party a sporting sanction
on the basis of article 12bis, 17 or 18quater of the Regulations.
44. In this respect, the Chamber recalled that by means of a decision passed on date 6
September 2022 and notified on 9 September 2022, a transfer ban has been imposed on
the Respondent pursuant to art. 17 par. 4 of the Regulations (i.e., namely in the case FPSD6082).
45. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall
not apply, insofar as in case the Respondent fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Respondent would be moot and against the spirit of the Regulations,
in particularly the enforcement mechanism established under art. 24 of the Regulations.
46. In view of the above, the DRC decided that if the aforementioned sum plus interest is not
paid within 30 days of notification of this decision, the present matter shall be submitted,
upon request of the Claimant, to the FIFA Disciplinary Committee for its consideration
and formal decision.
47. 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.
d. Costs
48. 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.
49. 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.
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50. 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, Leandro Deyrinio Kappel, is partially accepted insofar as it is
admissible.
2.
The Respondent, Altay SK, has to pay to the Claimant, the following amount(s):
a. EUR 10,010 as outstanding remuneration plus 5% interest p.a. as from 1 January 2022
until the date of effective payment;
b. EUR 10,010 as outstanding remuneration plus 5% interest p.a. as from 1 February
2022 until the date of effective payment;
c. EUR 88,756 as outstanding remuneration plus 5% interest p.a. as from 1 March 2022
until the date of effective payment;
d. EUR 10,010 as outstanding remuneration plus 5% interest p.a. as from 1 April 2022
until the date of effective payment;
e. EUR 10,010 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
f.
EUR 110,010 as outstanding remuneration plus 5% interest p.a. as from 1 1 June 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.
If full payment (including all applicable interest) is not made within 30 days of notification
of this decision, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee.
6.
This decision is rendered without costs.
7.
A fine of USD 30,000 is imposed on the Respondent. Such fine is to be paid by the
Respondent to FIFA within 30 days as from the notification of this decision to the
following bank account with a clear reference to FPSD-6437:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
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IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
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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