Dispute Resolution Chamber
Texto da decisão
REF 20-01832
Decision of the
DRC Judge
passed on 11 May 2021,
regarding an employment-related dispute concerning the player Franck Junior Mebenga
Owono
COMPOSITION:
Jon Newman (USA)
CLAIMANT:
Franck Junior Mebenga Owono,
Cameroon
Represented by Mr. Thomas Spee
RESPONDENT:
FK Vilniaus Vytis, Lithuania
Represented by Mr. Antanas Paulauskas
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I. FACTS OF THE CASE
1. On 29 July 2020, the club sent a draft “agreement on sports activity” (hereinafter: the draft
contract), valid from 24 July 2020 until 30 November 2023 to the Claimant’s agent Mr Calvin
Eric Ouwe (hereinafter: the agent), to be signed by the Claimant and returned to the Respondent.
2. Article 1.1 of the draft contract states that “the club hereby engages the player as a skilled
football player to perform his playing services for the club during the term of this agreement”.
3. Pursuant to Article 5 of the draft contract, the Claimant was entitled to receive a monthly salary
of EUR 1,500.
4. In addition, in accordance with article 4.2.4 of the draft contract, the Claimant was entitled to
one round trip flight from Cameroon to Lithuania per year.
5. Article 11 (validity of the agreement) of the contract states as follows:
11.1:“this Agreement shall come into effect on 24 July 2020 unless the results the player's health
and physical condition check is not satisfactory to the club”
11.3: “the player shall arrive to Vilnius (Lithuania) not later than until 30 September 2020.
11.4: after the Agreement enters into force it shall be valid until 30 November 2023.
11.5: the Agreement shall expire at the end of its term or upon termination thereof prior to its
term on the grounds established in this Agreement and/or the legal enactments of the Republic
of Lithuania.
6. On 3 November 2020, the Claimant put the Respondent in default, requesting it to immediately
confirm that his visa had been granted as well as to send him the airline ticket to Lithuania and
to pay his wages for August, September and October 2020 within 15 days, however to no avail.
7. On 18 November 2020, the Claimant sent a second letter to the Respondent, giving it another
48 hours to comply with its contractual obligations.
8. On 22 November 2020, the Claimant unilaterally terminated the contract pursuant to Articles 14
and 14bis of the RSTP and demanded payment of his outstanding remuneration and a
termination fee.
9. On 25 November 2020, the club President, Mr Benas Baltusis, sent a letter to the Claimant,
stating that the conclusion and signature of the contract with the Claimant was not completed,
since the Respondent never received the copy of the contract signed by the Claimant.
10. On 15 December 2020, the Claimant filed a claim against the Respondent before FIFA requesting
the following:
-consider the contract as having been terminated with just cause by the Claimant on 22
November 2020;
-order the Respondent to pay the sum of EUR 4,887 as outstanding remuneration, corresponding
to the outstanding salaries in the period between 24 July 2020 and 31 October 2020, plus interest
at 5% p.a. as from the due date;
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-order the Respondent to pay the sum of EUR 55,500 as compensation for breach of contract,
related to the residual value of the contract in the period between 1 November 2020 and 30
November 2023, plus interest at 5% p.a. as from 22 November 2020;
-impose a registration ban on the Respondent.
11. In support of his claim, the Claimant reiterated that in May 2020, the agent approached him to
express an interest from the Respondent.
12. In this context, the agent apparently advised the Claimant that he needed to sign two documents,
issued by the Respondent in order to initiate a transfer to the Respondent:
- application for a player's license for the Respondent;
- a statement regarding illegal influence and the prohibition of match fixing.
13. Subsequently, the Claimant submitted that on 24 July 2020, an employment contract was
concluded between the parties.
14. The Claimant added that following this signature, and due to the COVID-19 pandemic, he was
informed that he had to travel to Tunisia at his own expense, as it was impossible to obtain a
Schengen visa to travel to Lithuania from Cameroon. Therefore, the Claimant submitted that he
travelled to Tunisia, where he resided at his own expense and waited for the Respondent to
confirm that his visa application had been processed and to provide him with a ticket to Lithuania
in accordance with article 4.2.4 of the contract.
15. The Claimant stated that on 29 September 2020, the President of the club, Mr Benas Baltusis
provided him with a print screen from the official platform of the Lithuanian Ministry responsible
for visas confirming that his visa application had been submitted on the same day. During the
month of October 2020, the Claimant stated that he waited for confirmation from the
Respondent that the application had been accepted and to forward the airfare to Lithuania.
16. Having sent two reminders to the Respondent, the Claimant submitted that he terminated the
contract with just cause pursuant to articles 14 and 14bis of the RSTP on 22 November 2020.
17. On 25 November 2020, the club President, Mr Benas Baltusis, sent a letter to the Claimant stating
as follows:
« In reply to your correspondence the club should note that the conclusion and signature of the
contracts with the players has not been completed since the club has never been returned with
the copies of the contracts signed by the players.
The players were introduced to the club by their representative. The club was not aware of their
abilities as the footballers. Thus, it initially agreed to have the players for trial. However, no
contracts signed by the players have been returned to the club. Consequently, the players transfer
window closed on 14 August 2020 and the club lost interest in the players.
We should underline that the club has never had any direct contact with the players. It has only
communicated with the representative of the players, who apparently had been in contact with
them.
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With reference to the foregoing, it should be concluded that no contracts between the players
and the club have ever been made. Thus, the claims of the player expressed in the
correspondence of 18 November 2020 and 22 November 2020 have no ground at all”
18. The Claimant added that in light of the above and the Respondent’s bad faith, he was compelled
to file a claim against the Respondent.
19. In regards to the validity of the contract, the Claimant argued that in his correspondence dated
25 November 2020, the club President expressly acknowledged that he signed the contract. It is
therefore clear that the Respondent consented to the contract and therefore is bound by its
terms.
20. According to the Claimant, the Respondent alleged that it never received the copy signed by him
prior to the close of the transfer period on 14 August 2020 and therefore lost interest in the
player. Such argument, according to the Claimant is untrue and cannot stand the test of facts,
particularly in light of the request for a visa made on 29 September 2020 by the club President.
21. The Claimant stated that in reality, the copy of the contract signed by him was delivered to the
Respondent through the agent at the end of July 2020.
22. The Claimant further submitted that the President of the club would have been unable to submit
the visa and work permit application had he not been in possession of the copy of the contract
signed by him, as such an application required proof of an employment contract.
23. In addition, the Claimant noted that the fact that a visa application was submitted on 29
September 2020 demonstrates that the Respondent was still interested in him and felt bound by
a valid contract, despite the closing of the transfer period on 14 August 2020 and therefore the
Respondent's argument in this regard shall be rejected.
24. The Claimant further submitted that the documents signed by him in May 2020 confirm that the
Respondent's interest in his services was already very concrete at that time.
25. Furthermore, according to the Claimant, the Respondent cannot reasonably present the agent as
a third party. The Claimant adds that the DRC will not fail to note that the agent represents
several players of the Respondent and that this is not a coincidence and confirms that there is a
close collaboration between the Respondent and the agent.
26. Furthermore, according to the Claimant, it is unthinkable that on the same day the Respondent
would sign six players presented by the same agent without an institutionalized collaboration
between the two parties. It is therefore clear that communication between the Respondent and
the agent regarding the Claimant was ongoing.
27. In view of the foregoing, and taking into account the bad faith of the Respondent, the Claimant
requested that the DRC sets aside the Respondent's arguments and conclude that a valid contract
containing all essentialia negotii was concluded between the parties on 24 July 2020.
28. The Claimant further submitted that the Respondent could not claim that the contract is void,
because he did not arrive in Lithuania before 30 September 2020, since this non-arrival is
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exclusively attributable to the Respondent, as in order to travel to Lithuania, the Claimant needed
two documents: a visa and an airline ticket.
29. Regarding the visa, the Claimant noted that the President of the club submitted the request on
29 September 2020. Therefore, it would have been materially impossible for the Claimant to be
allowed to be in Lithuania on 30 September 2020, since his visa was only requested by the
Respondent the day before.
30. With respect to the airline ticket, the Claimant stated that the Respondent's liability is even more
obvious in that it simply did not provide him with the airline ticket despite repeated requests and
the contractual obligation pursuant to article 4.2.4 of the contract.
31. The Claimant further submitted that the Respondent cannot claim that it was entitled to
terminate the contract during a trial period, as in accordance with the DRC's established
jurisprudence, such trial period clauses are null and void
32. On termination of the contract with just cause, the Claimant submitted that the legality of the
termination on 22 November 2020 must be analysed in accordance with article 14 RSTP and that
in this case, there is no doubt that he had cause to terminate the contract because:
-The Respondent remained in default of payment of 3 months' salary despite having been validly
served with a notice of default;
-The Respondent never provided him with an airline ticket allowing him to travel to Lithuania and
thus begin performance of the contract despite its contractual obligation to do so;
-The Respondent never confirmed to the Claimant that all visa procedures had been completed;
-The Respondent did not register him with the Lithuanian Football Association;
-The Respondent has never responded to his formal notices.
33. In view of the above, the Claimant argued that he terminated the contract with just cause on 22
November 2020.
34. As the contract was terminated on 22 November 2020, the Claimant submitted that he is
therefore entitled to receive EUR 55,500, corresponding to the residual value of the contract as
compensation under article 17.1 i RSTP.
35. In regards to the outstanding salaries, the Claimant submitted that as of the date of termination,
the Respondent had not paid his salary for the last 8 days of July 2020, as well as for the months
of August, September and October 2020, amounting to EUR 4,887.
36. In conclusion, the Claimant claimed outstanding remuneration EUR 4,887 for and compensation
in the amount of EUR 55,500.
37. In its response, the Respondent rejected the claim of the Claimant and stated that it is unfounded
in its entirety.
38. According to the Respondent, the Claimant’s claim is based on the draft contract dated 24 July
2020, which, according to the Claimant, was allegedly signed by him and the Respondent.
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39. The Respondent underlined that the contract has never been concluded between the parties and
therefore has never entered into force and become valid.
40. According to the Respondent, it should be noted that as a semi-professional club in Lithuania, it
has been interested in the African players’ market and has had genuine interest in signing African
players. As a result, the Respondent submitted that it has been in a professional relationship with
some agents, who mostly specialise in the African players’ market. One of these agents was Mr
Calvin Eric Ouwe, who manages a company called Calvin Sports Management UK LTD, which
provides intermediary services for a vast number of football players from Africa.
41. The Respondent added that it signed some of the agent’s clients, including Cyrille Tchayi
Tchamba, Ibrahima Sory Soumah or Patrick Williams Ntamack, in the past. Furthermore, the
Respondent submitted that in July 2020 the agent, who introduced 12 of his clients to it,
contacted it. This list included the Claimant and 11 other players (hereinafter all together referred
to as ‘the players’).
42. The Respondent added that it has never had any direct contact with these players including the
Claimant and that the negotiation regarding the terms of the contracts to be signed with the
players and communication regarding their signature was conducted only between the
representatives of the Respondent and the agent.
43. The Respondent submitted that it was not aware of the Claimant’s abilities as a footballer and it
was initially reluctant to sign him unless there was a try-out period and option to terminate the
respective contract in case the Respondent finds his performance not satisfactory. On behalf of
the Claimant, the agent agreed to have the contract signed on these essential terms.
44. Having concluded the negotiations, the Respondent submitted that it decided to sign the
Claimant, on 24 July 2020 and that it prepared the draft contract to be signed by him. This draft
contract, according to the Respondent was sent to the agent on 29 July 2020 for countersignature.
45. The Respondent further stated that the transfer window to sign and register new players was
due to close on 12 August 2020 in Lithuania and that the agent was verbally warned by the
Respondent to return the agreement on sports activities signed by the Claimant not later than
until 10 August 2020.
46. On 5 August 2020, the Respondent submitted that it sent to the agent a letter noting that it had
not received any of the draft contracts signed by any of the players (including the current
claimant). Moreover, the Claimant added that it clearly underlined that in case it does not receive
the signed draft contracts by 10 August 2020, it would lose its interest in signing them and its
acceptance to sign the players (including the Claimant) would no longer be valid.
47. The Respondent added that on 6 August 2020, the agent replied and stated that he had sent the
contracts to the players (including the Claimant) for signing and hoped to manage to return the
signed contracts by 10 August 2020.
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48. In continuation, the Respondent submitted that it did not receive the draft contracts signed by
the Claimant by 9 August 2020 and that as a result, on 10 August 2020, it sent another letter to
the agent repeatedly warning him about the consequences in case it does not receive the contract
signed by the Claimant by 10 August 2020.
49. The Respondent emphasized that none of the draft contracts signed by any of the players
(including the claimant) were returned to it by 10 August 2020 despite multiple requests.
50. As result of that, according to the Respondent, on 11 August 2020, it sent another letter to the
agent informing him that it was no longer interested in signing the players (including the
claimant) and its acceptance to sign them was no longer valid. The Respondent also explicitly
expressed its will to withdraw its signature from all the agreements on sports activity.
51. The Respondent further submitted that on 13 August 2020, it received a letter from the agent
acknowledging his understanding and respect towards its position. Moreover, the agent noted
that he had suspended further process of having the contracts concluded due to his suspicions
that the players (including the Claimant) could try to jeopardize the Respondent and his agency.
52. As a result of the above, the Respondent submitted that the Claimant’s letters dated respectively
3 November 2020, 18 November 2020 and 22 November 2020 came as a total surprise and that
on 25 November 2020, it sent a letter to the Claimant explaining that the conclusion and
signature of the contract was not completed.
53. The Respondent added that in order for the contract to be considered valid and binding, it has
to be signed by both the employer and the employee. If one of the parties does not sign the
employment contract, the contract is invalid.
54. In view of the above, the Respondent added that although the Claimant submitted the contract,
which bears signatures of both the representative of the parties, it must underline that it received
the contract signed by the Claimant for the first time only with the correspondence of 6 January
2021 sent to it by FIFA .Thus, the contract could be signed by the Claimant anytime.
55. The Respondent reiterated that it on numerous occasions requested for the signed contract to
be returned to it by 10 August 2020, noting that failure to do so would lead to its withdrawal of
the offer. Therefore, according to the Respondent, failure to sign and return the contract by 10
August 2020 means that its’ offer to sign the contract was not accepted by the Claimant and
therefore, the contract did not come into effect.
56. According to the Respondent, any party claiming a right on the basis of an alleged fact shall carry
the burden of proof in accordance with Article 12(3) of FIFA Procedural Rules. Accordingly, the
Claimant carries the burden of proof to provide evidence that the contract signed by him was
returned to it on a timely manner and thus could be deemed valid and enforceable.
57. In continuation, the Respondent noted that the Claimant had not submitted to the FIFA DRC any
evidence to prove the contract to be valid.
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58. Furthermore, the Respondent denied the Claimant’s allegations that its President Mr Benas
Baltusis had allegedly communicated to him a print screen from the official platform of the
competent authorities and it is not aware of the nature and source of such a print screen.
59. The Respondent additionally reiterated that it had never had any direct contact with the Claimant.
Moreover, the Respondent underlined that it had never requested any competitive authority to
issue a visa for the Claimant on basis of the contract and that it could not even have done it,
since, as it was noted above, it was never in possession of the contract signed by the Claimant.
60. According to the Respondent, the Claimant submitted his claim to the FIFA DRC following
misleading advice of his legal representative to opportunistically attempt to get enriched at its
expense and that this is evident from the agent’s letter of 22 January 2021 where he apologized
for the behaviour of the Claimant and expressed his shame for the Claimant’s greedy attempt to
earn money by making unfair claims based on false allegations.
61. The Respondent submitted that it hoped that the FIFA DRC would discern unfair intentions of
the Claimant and that these unfounded claims if granted would be unbearable to it and would
lead it to the bankruptcy.
62. In conclusion, the Respondent requested the FIFA DRC to dismiss the Claimant’s claim in its
entirety.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as `the DRC Judge`) analysed
whether he was competent to deal with the case at hand. In this respect, he took note that the
Claimant’s claim was lodged on 15 December 2020 and was decided on 11 May 2021. Taking
into account the wording of art. 21 of the 2021 edition of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter
at hand.
2. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that
in accordance with art. 24 par. 1 and par. 2 in conjunction with art.22 lit. b of the Regulations
on the Status and Transfer of Players (edition October 2020), he is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international dimension
between a Cameroonian player and a Lithuanian club.
3. Furthermore, the DRC Judge analyzed which regulations should be applicable as to the substance
of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of
the Regulations on the Status and Transfer of Players (edition February 2021), and considering
that the present claim was lodged on 15 December 2020, the October 2020 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
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4. The competence of the DRC Judge and the applicable regulations having been established, the
DRC Judge entered into the substance of the matter. Subsequently, the DRC Judge continued by
acknowledging the above-mentioned facts as well as the documentation contained in the file in
relation to the substance of the matter. However, the DRC Judge emphasized that in the
following considerations he will refer only to the facts, arguments and documentary evidence,
which it considered pertinent for the assessment of the matter at hand.
5. Entering into the substance of the matter at hand, the DRC Judge first of all acknowledged that
on 29 July 2020, the Respondent sent a draft contract valid from 24 July 2020 until 30 November
2023 to the Claimant’s agent to be signed by the Claimant and returned to the Respondent.
6. Furthermore, the DRC Judge noted that in accordance with the draft contract, the Claimant was
entitled to a monthly salary of EUR 1,500.
7. Having recalled the above, the DRC Judge observed that, the Claimant, in his claim lodged on 15
December 2020, stated that a valid contract was signed between the parties and claimed
outstanding remuneration in the amount of EUR 4,887 plus 5% interest p.a. as from the due
date and compensation for breach of contract in the amount of EUR 55,000 plus 5% interest
p.a. as of 22 November 2020 (date of the unilateral contract termination).
8. In continuation, the DRC Judge took note of the Respondent’s submission that the process of
contract signing was never completed, as the Claimant’s signed copy was never returned to it
despite several reminders to the Claimant’s agent.
9. In this regard, the DRC Judge noted that the main question in the current dispute is whether
based on the facts and the behaviour of the parties, a valid contract was entered into.
10. With the above in mind, the DRC Judge noted that form the information on file, it appeared that
the Respondent had on 29 July 2020, sent a draft contract to the Claimant’s agent, with the
request to the agent to make the Claimant sign said document. The DRC Judge noted that said
draft contract contains all essentialia negotii and already held the signature of the Respondent.
11. Furthermore, the DRC Judge noted that at a later point the Respondent reached out to the agent
several times to inquire about the signature of the Claimant, even informing him that it would
no longer be interested in the Claimant’s services if the duly signed contract was not sent back
by a specific date.
12. With the above in mind, the DRC Judge recalled a CAS award (Ref. 2020/A/7735) in which the
Sole Arbitrator confirmed FIFA’s jurisprudence and view that “not only the signature of the
contract shall be taken as sole element to determine whether there was an existing contractual
relationship”, but more on a comprehensive understanding of all the facts and actions taken by
the parties, as well as the form and wording of the employment contract.
13. Taking into account the fact that the contract itself contains all essential negotii, and does not
hold valid conditions for the contract no longer being valid in case of the non-signature of the
contract by the Claimant, as well as the fact that the Respondent sent a completely signed
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contract to the Claimant’s agent, the DRC Judge concluded that the parties entered into a valid
and binding employment agreement in July 2020 and that as a result, the question of how, when
and if the Claimant signed the contract appear to no longer be valid.
14. With the above in mind, the DRC Judge was of the opinion that by the Respondent not paying
any salaries or making any concrete attempts to bring the Claimant to Lithuania in order to fulfil
his contract, the Claimant’s unilateral termination of the contract was with just cause and as a
result he is entitled to outstanding remuneration and compensation for breach of contract.
15. As a result, the DRC Judge decided to award the Claimant outstanding remuneration in the
amount of EUR 4,887 corresponding to the outstanding salaries for the period between 24 July
2020 and 31 October 2020 plus 5% interest p.a. as from the due dates (cf. point III.2 below).
16. In regards to compensation, the DRC Judge took note of the fact that the Claimant unilaterally
terminated his contract on 22 November 2020 and was not able to mitigate his damages, as he
had not signed any new contracts since the unilateral termination. As a result, the DRC Judge
awarded the residual value of the contract in the amount of EUR 55,000 as compensation for
breach of contract plus 5% interest p.a. as of the date of the claim, i.e. 15 December 2020.
17. Furthermore, taking into account the consideration under number II./3. above, the DRC Judge
referred to par.1 and 2 of art. 24bis of the Regulations, which stipulate that, with his 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.
18. In this regard, the DRC Judge pointed out 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 and for the maximum
duration of three entire and consecutive registration periods.
19. Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the
Respondent does not pay the amount due to the Claimant within 45 days as from the moment
in which the Claimant, following the notification of the present decision, communicates the
relevant bank details to the club, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the club in accordance with art. 24bis par. 2 and 4 of the Regulations.
20. Finally, the DRC 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. 24bis par. 3
of the Regulations.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER (DRC) JUDGE
1. The claim of the Claimant, Franck Junior Mebenga Owono, is accepted.
2. The Respondent, FK Vilniaus Vytis, has to pay the Claimant EUR 4,887 as outstanding
remuneration, plus 5% interest p.a. until the effective date of payment as follows;
- on the amount of EUR 387 as of 1 August 2020;
- on the amount of EUR 1,500 as of 1 September 2020;
- on the amount of EUR 1,500 as of 1 October 2020;
- on the amount of EUR 1,500 as of 1 November 2020.
3. The Respondent has to pay the Claimant EUR 55,500 as compensation for breach of contract
plus 5% interest p.a. as of 15 December 2020.
4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amounts as per points 2. and 3. above.
5. The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6. In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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