Labour Disputes
Texto da decisão
REF FPSD-6135
Decision of the
Dispute Resolution Chamber
passed on 21 July 2022
regarding an employment-related dispute concerning the player
Marcos Filipe Lopes Paixão
COMPOSITION:
Frans DE WEGER (the Netherlands), Chairperson
Roy VERMEER (the Netherlands), Member
Alejandro ATILIO TARABORELLI (Argentina), Member
CLAIMANT:
Marcos Filipe Lopes Paixão, Portugal
Represented by Sami Dinç
RESPONDENT:
Altay SK, Turkey
Represented by Enes Şimşek and Ercan Sevdimbas
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I. Facts of the case
1.
On 30 April 2020, the Portuguese player Marco Filipe Lopes Paixão (hereinafter: the
player or the Claimant) and the Turkish club Altay SK (hereinafter: the club or the
Respondent) concluded an employment contract valid until 31 May 2022 (hereinafter:
the contract).
2.
Under the contract, the player was entitled to inter alia the following remuneration
(quoted verbatim):
Section “Other Fees undertaken by the Club and Payment Method”
“Guarantee payment for 2020-2021 season
Guarantee payment of 300.000 Euro (…)
50.000- euro will be paid in October 2020
50.000- euro will be paid in December 2020.
50.000- euro will be paid in February 2021.
50.000- euro will be paid in April 2021.
100.000- euro will be paid: starting on 01.08.2020, the player will be paid 10.000-euros
(ten thousand euro) per month, in the first week of every month for a total of 10 months,
including 01.05.2021.
Guarantee payment for 2021-2022 season
Guarantee payment of 300.000 Euro (…)
50.000- euro will be paid in October 2021
50.000- euro will be paid in December 2021.
50.000- euro will be paid in February 2022.
50.000- euro will be paid in April 2022.
100.000- euro will be paid; starting on 01.08.2021, the player will be paid 10.000-euros
(ten thousand euro) per month, in the first week of every month for a total of 10 months,
including 01.05.2022.”
Section “Special Provisions”
1- All amounts in this contract made to the player are net settlement.
2- By reason of this contract hereby signed, [EUR 100,000] will be paid to the football
player as a price for signature on 15 January 2021.
3- For the 2021-2022 season by reason of this contract hereby signed, [EUR 100,000] will
be paid to the football player as a price or signature on 15 January 2022. (this singing fee
bonus Is not valid if Altay Sports Club plays In Super League).
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4- On the condition that [the Respondent] competes in Turkish Super League in the
football season 2020-2021, guarantee payment of the football player covering the season
2020-2021 will be updated as follows:
Guarantee payment for 2020-2021 season
[EUR 500,000] (…) will be paid in the conditions and fixed terms stated below as guarantee
payment.
85.000 € (eighty five thousand Euros) will be paid on October 2020.
85.000 € (eighty five thousand Euros) will be paid on December 2020.
85.000 € (eighty five thousand Euros) will be paid on February 2021.
85.000 € (eighty five thousand Euros) will be paid on April 2021.
160.000 € will be paid: 16.000 € (…) will be paid in total during 10 months in the first week
of each month starting from the date 01.08.2020 until 01.05.2021 (included)
5- On the condition that [the Respondent] competes in Turkish Super League in the
football season 2021-2022, guarantee payment of the football player covering the season
2021-2022 will be updated as follows:
Guarantee payment for 2021-2022 season
[EUR 500,000] (…) will be paid in the conditions and fixed terms stated below as guarantee
payment.
85.000 € (eighty five thousand Euros) will be paid on October 2021.
85.000 € (eighty five thousand Euros) will be paid on December 2021.
85.000 € (eighty five thousand Euros) will be paid on February 2022.
85.000 € (eighty five thousand Euros) will be paid on April 2022.
160.000 € will be paid: 16.000 € (…) will be paid in total during 10 months in the first week
of each month starting from the date 01.08.2021until 01.05.2022 (included)
6- An additional payment of 50.000 € (…) will be made to the football player on the
condition that he scores 20 or more goals in TFF 1st league or Turkish Super League (In
which league [the Respondent] competes) (only league matches) in 2020-2021 season.
7- An additional payment of 50.000 € (…) will be made to the football player on the
condition that he becomes top goal scorer of the league at the end of the season in TFF 1st
league or Turkish Super League. This amount will be paid 60 days the league is finished.
8- An additional payment of 100.000 € (…) As a bonus for promoting to upper league will
be made to the football player on the condition that the football player plays in the starting
eleven a minimum of 20 matches and [the Respondent] promotes to Super League in
2020-2021 Season. (This article hereby will be invalid on the condition that [the
Respondent] already competes in Turkish Super League in the related season).
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9- An additional payment of 3.000 € (…) as a bonus will be made to the football player for
each goal he scores in playoff matches on the condition that [the Respondent]
professional team competes in TFF 1st league and takes part in the playoff matches in
order to promote upper league at the end of the season 2020-2021.
(…)
12- An additional payment of €50,000 will be made to the football player on the condition
that he scores 20 or more goals in TFF1st League or Turkish Super League (In which league
[the Respondent] competes) (only league matches) in 2021-2022 season.
13- An additional payment of 100.000 € (…) will be made to the football player on the
condition that he becomes top goal scorer of the league at the end of the season in TFF 1st
league or Turkish Super League. This amount will be paid 60 days the league is finished.
14- An additional payment of 100.000 € (…) as a bonus for promoting to upper league will
be made to the football player on the condition that the football player plays in the starting
eleven a minimum of 20 matches and [the Respondent] promotes to Super League in
2021-2022 Season. (This article hereby will be invalid on the condition that [the
Respondent] already competes in Turkish Super League in the related season).
15- An additional payment of 3.000 € (…) as a bonus will be made to the football player
for each goal he scores in playoff matches on the condition that [the Respondent]
professional team competes in TFF 1st league and takes part in the playoff matches in
order to promote upper league at the end of the season 2021-2022.
(…)
20- the club will assign a house with a rent up to [TRY 3,000] and a personal car for the
football player.”
3.
In accordance with the information available in the Transfer Matching System (TMS),
the season in Turkey starts in August of one year, finishing in the month of May of the
following year.
4.
When the contract was signed (i.e. in the end of season 2019/2020), the club was
playing the Turkish 1st League, which is equivalent to a second division. The local first
division is the Turkish Super League.
5.
In the season 2020/2021, the club played in the Turkish 1st League. The club won the
said league in that season, and thus was promoted to the Turkish Super League, in
which it competed in the season 2021/2022.
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6.
On 27 December 2021, the player put the club in default of payment of a total of EUR
406,500 plus TYL 51,000, granting it 15 days to remedy the situation (hereinafter: the
First Notice):
Amount
Concept
EUR 50,000 net
EUR 50,000 net
EUR 50,000 net
EUR 50,000 net
EUR 80,500 net
Part of the sign-on fee
Fixed payment
Bonus for 20 goals scored
Bonus for top goal scorer
Part of bonus relating to the club’s
promotion
Bonus for 3 goals scored in playoff
matches
Fixed payment
Monthly salary
Monthly salary
House rent
EUR 9,000 net
EUR 85,000 net
EUR 16,000 net
EUR 16,000 net
TYL 51,000 net
7.
Reference/due
date
Due on 15.01.2021
April 2021
No due date
No due date
No due date
No due date
October 2021
November 2021
December 2021
Unspecified
On 14 January 2022, the club made a payment to the player of EUR 160,000, which is
acknowledged by the latter. Such payment was allocated as follows:
a. EUR 78,540 “for playing 20 matches and winning the championship”;
b. EUR 10,000 as “payment of warranty fees”;
c. EUR 50,000 as “signature fee”;
d. EUR 21,460 as “top goal scorer payment”.
8.
On 20 January 2022, the club made a payment to the player of TRY 51,000, which is
acknowledged by the latter, regarding the housing allowances.
9.
On 6 April 2022, the player lodged a claim before FIFA for outstanding payments
(FPSD-5700). The player sought a total of EUR 246,500, as detailed below, together
with interest of 5% p.a. as from the due dates until the date of effective payment:
Amount
EUR 40,000 net
EUR 50,000 net
EUR 28,580 net
EUR 1,960 net
Concept
Unpaid portion of the fixed payment
Bonus for 20 goals scored
Unpaid portion of the bonus for top
goal scorer
Unpaid portion of the bonus re. the
club’s promotion
Reference/due date
April 2021
n/a
n/a
n/a
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EUR 9,000 net
EUR 85,000 net
EUR 16,000 net
EUR 16,000 net
Bonus for 3 goals scored in playoff
matches
Fixed payment
Monthly salary
Monthly salary
n/a
October 2021
November 2021
December 2021
10. On 6 April 2022, the player also put the Respondent in default of certain financial
obligations (hereinafter: the Second Notice). The player referred to the First Notice and
claimed a total of EUR 480,500: EUR 246,500 as per the First Notice and additional
EUR 234,000, broken down as follows:
Amount
EUR 85,000 net
EUR 16,000 net
EUR 85,000 net
EUR 16,000 net
EUR 16,000 net
EUR 16,000 net
Concept
Fixed payment
Monthly salary
Fixed payment
Monthly salary
Monthly salary
Monthly salary
Reference/due date
December 2021
January 2022
January 2022
February 2022
March 2022
April 2022
11. In the Second Notice, the player granted the club 15 days to cure its breach.
12. On 14 April 2022, the club sent a letter to the player stating that per a decision of the
club’s board, the player was “permitted to not participate on the training and matches of
the club until further notice”.
13. On 16 April 2022, the player sent another notice, claiming that per the club’s previous
letter his personality rights had been violated and thus requesting the club to remedy
its breach, as the player could not train and access the club.
14. On 22 April 2022, the player terminated the contract, and remained unemployed
thereafter.
II. Proceedings before FIFA
15. On 19 May 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
16. According to the Claimant, he had just cause to terminate the contract on the grounds
of art. 14bis of the Regulations on the Status and Transfer of Players (RSTP).
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17. The player seeks a total of EUR 234,000 plus TRY 12,000, as detailed below, as
outstanding remuneration together with interest of 5% p.a. as from the due dates
until the date of effective payment:
Amount
EUR 85,000 net
EUR 16,000 net
EUR 85,000 net
EUR 16,000 net
EUR 16,000 net
EUR 16,000 net
TRY 3,000
TRY 3,000
TRY 3,000
TRY 3,000
Concept
Fixed payment
Monthly salary
Fixed payment
Monthly salary
Monthly salary
Monthly salary
Rent fee
Rent fee
Rent fee
Rent fee
Reference/due date
December 2021
January 2022
January 2022
February 2022
March 2022
April 2022
January 2022
February 2022
March 2022
April 2022
18. As to the compensation, the player seeks EUR 101,000 net plus TRY 3,000 as the
residual value of the contract, together with interest of 5% p.a. as from the date of
termination, as well as additional compensation of EUR 300,000.
19. The player also requested that sanctions be imposed on the club per art. 12bis of the
RSTP.
b. Position of the Respondent
20. The club replied and argued that due to a political and economic crisis in Turkey, it
was facing a difficult economic situation, especially because of the devaluation of the
Turkish Lira and the consequences from the COVID-19 pandemic.
21. The club also objected to the calculation filed by the claimant, and argued that under
art. 17 of the RSTP, the overall compensation cannot exceed the residual value of the
contract.
22. The club requested that the claim be dismissed.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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
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respect, it took note that the present matter was presented to FIFA on 19 May 2022
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.
24. 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 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
Portuguese player and a Turkish club.
25. 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 6 April 2022, the March
2022 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
26. 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 TMS.
c. Merits of the dispute
27. 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
28. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the justice of the
early termination of the contract by the Claimant, based on the alleged non-payment
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of certain financial obligations by the Respondent as per the contract, in accordance
with art. 14bis of the Regulations.
29. In this context, the Chamber acknowledged that its task was to determine, based on
the evidence presented by the parties, whether the claimed amounts had in fact
remained unpaid by the Respondent and, if so, whether the formal pre-requisites of
art. 14bis of the Regulations had in fact been fulfilled.
30. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has
granted a deadline of at least 15 days for the debtor club to fully comply with its
financial obligation(s).
31. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to numerous concepts due between December 2021 and April 2022,
and arises to (significantly) more than 2 monthly salaries. Furthermore, the Chamber
noted that the Claimant has provided written evidence of having put the Respondent
in default on 6 April 2022, i.e. at least 15 days before unilaterally terminating the
contract on 22 April 2022.
32. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties. Nonetheless, the Respondent did not deny having missed the
payments due to the Claimant, but argued that it was facing financial difficulties. Per
the longstanding jurisprudence of the DRC, however, financial difficulties are not a
reason to justify missing payments, and therefore the Chamber confirmed that the
club could not validly justify its lack of payment of the player’s remuneration
33. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally
terminate the contract, based on art. 14bis of the Regulations.
ii. Consequences
34. 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.
35. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to the
following:
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Amount
EUR 85,000 net
EUR 16,000 net
EUR 85,000 net
EUR 16,000 net
EUR 16,000 net
EUR 16,000 net
TRY 3,000
TRY 3,000
TRY 3,000
TRY 3,000
Concept
Fixed payment
Monthly salary
Fixed payment
Monthly salary
Monthly salary
Monthly salary
Rent fee
Rent fee
Rent fee
Rent fee
Reference/due date
December 2021
January 2022
January 2022
February 2022
March 2022
April 2022
January 2022
February 2022
March 2022
April 2022
36. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant
the amounts which were outstanding under the contract at the moment of the
termination, as described above.
37. 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
interest at the rate of 5% p.a. on the outstanding amounts as from their due dates
until the date of effective payment.
38. 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.
39. 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.
40. 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
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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.
41. 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 EUR 101,000 plus TRY
3,000 serves as the basis for the determination of the amount of compensation for
breach of contract.
42. 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.
43. The player however has not found any new employment and, as such, 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, and provided the player has been able to mitigate his damages. 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, but since there was no
mitigation, the player shall receive no additional compensation – as in any event said
compensation cannot exceed the residual value of the contract.
44. 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 EUR 101,000 plus TRY 12,000, which was to be considered a reasonable
and justified amount of compensation for breach of contract in the present matter.
45. 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 the date of claim until the date of effective
payment.
46. Lastly, the Chamber confirmed that payments are to be made net to the player in
accordance with the clear contractual provision established under the contract.
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iii. Compliance with monetary decisions
47. 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 concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
48. 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.
49. 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.
50. 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.
51. 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
52. 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.
53. 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.
54. 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, Marcos Filipe Lopes Paixão, is partially accepted.
2.
The Respondent, Altay SK, has to pay to the Claimant the following amount(s):
a. EUR 85,000 net as outstanding remuneration plus 5% interest p.a. as from 1
January 2022 until the date of effective payment;
b. EUR 101,000 net as outstanding remuneration plus 5% interest p.a. as from 1
February 2022 until the date of effective payment;
c. EUR 16,000 net as outstanding remuneration plus 5% interest p.a. as from 1
March 2022 until the date of effective payment;
d. EUR 16,000 net as outstanding remuneration plus 5% interest p.a. as from 1 April
2022 until the date of effective payment;
e. EUR 16,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May
2022 until the date of effective payment;
f. TRY 3,000 net as outstanding remuneration plus 5% interest p.a. as from 1
February 2022 until the date of effective payment;
g. TRY 3,000 net as outstanding remuneration plus 5% interest p.a. as from 1 March
2022 until the date of effective payment;
h. TRY 3,000 net as outstanding remuneration plus 5% interest p.a. as from 1 April
2022 until the date of effective payment
i.
TRY 3,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May
2022 until the date of effective payment;
j.
EUR 101,000 net plus TRY 3,000 as compensation for breach of contract without
just cause plus 5% interest p.a. as from 19 May 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.
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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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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