Labour Disputes
Texto da decisão
REF FPSD-2970
Decision of the
Dispute Resolution Chamber
passed on 2 December 2021
regarding an employment-related dispute concerning the player Kehinde
Mathias Oyewusi
BY:
Frans de Weger, The Netherlands
CLAIMANT / COUNTER-RESPONDENT:
Kehinde Mathias Oyewusi, Nigeria
Represented by Felix Majani
RESPONDENT / COUNTER-CLAIMANT:
FC Postojna, Slovenia
Represented by Kai Ludwig
INTERVENING PARTY:
Futbolo Klubas Žalgiris, Lithuania
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I.
Introduction
1.
The relevant subjects to this dispute are:
a. the Nigerian player, Mr Kehinde Mathias Oyewusi (hereinafter: the player or the
Claimant / Counter-Respondent), a professional footballer born on 2 February 1999;
b. the Slovenian club, FC Postojna (hereinafter: FC Postojna or the Respondent / CounterClaimant), a club affiliated to the Football Association of Slovenia (NZS);
c. the Lithuanian club, Futbolo Klubas Žalgiris (hereinafter: FK Žalgiris or the intervening
party), a club affiliated to the Lithuanian Football Federation (LFF); and
d. the Slovenian club, Nogometno Drustvo Gorica (hereinafter: ND Gorica), also a club
affiliated to the NZS.
2.
The player was initially employed by FC Postojna and was subsequently loaned to ND Gorica.
Following the premature termination of said loan due to sporting reasons, the player
terminated the employment contract previously signed with FC Postojna alleging just cause.
Subsequently, the player concluded a new employment agreement with FK Žalgiris, but his
registration under special exemption (i.e. outside of the transfer window) was rejected by the
Players’ Status Chamber (PSC) of the Football Tribunal due to the absence of prima facie just
cause for the termination.
3.
In parallel, the dispute at stake pertains to a claim and counterclaim for breach of contract.
II. Facts of the case
4.
On 29 May 2020, the player and FC Postojna signed an employment contract valid as from 1
July 2020 until 30 June 2025 (hereinafter: the employment contract).
5.
Pursuant to article 7 of the employment contract, FC Postojna undertook to pay the player a
monthly gross salary of EUR 1,000.
6.
In addition, article 12, par. 7 of the employment contract read as follows: “[t]he contracting
parties agree that in the event of withdrawal from the contract without a valid or sporting
reason damages shall be determined in accordance with the applicable collective agreement,
the NZS regulations governing player registration and status, the FIFA rules and the practice
of the arbitration of FIFA DRC and CAS”.
7.
Finally, article 15 of the employment contract established the following:
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“ARTICLE 15 (Resolution of Disputes)
(1) The contracting parties shall endeavour to resolve all mutual relations amicably.
(2) In the event of a dispute that under the rules of the NZS is subject to the jurisdiction of
football arbitration, the contracting parties undertake to resolve the dispute solely
within the framework of football arbitration and in accordance with the applicable
collective agreement, and not before ordinary courts, except in cases where Slovenian
law stipulates otherwise.
(3) Where football arbitration is not held to have jurisdiction over a dispute, the dispute
shall be resolved by the competent court in Ljubljana.
(4) The contracting parties shall recognise the jurisdiction and decision of the CAS, as
defined in the statutes of FIFA and UEFA”.
8.
In accordance with the information available in the Transfer Matching System (TMS), the
2020/2021 season in Slovenia started on 1 August 2020 and ended on 30 June 2021.
9.
On 1 July 2020, the player personally applied for an extension of his residence permit for the
2020/2021 season as a self-employed person.
10. On 15 August 2020, the player and ND Gorica signed an employment agreement valid as
from 1 August 2020 until 30 June 2022. Accordingly, the player would be entitled to a
monthly remuneration of EUR 1,700.
11. In parallel, the player, FC Postojna and ND Gorica concluded a loan agreement dated 22
August 2020, by means of which player was temporarily transferred from the first club to the
second (hereinafter: the loan agreement).
12. The loan agreement did not include any specific provision regarding the procurement of the
player’s visa.
13. In accordance with clause 2 of the loan agreement, the player’s loan would be valid for the
2020/2021 and 2021/2022 seasons. Nevertheless, paragraph 3 of the same provision also
established that: “the contract is valid/conditioned upon the fact that ND Gorica plays in the
1st Slovenian Football League and/or that it holds a valid license confirmed by the Football
Association of Slovenia to play in the 1st SNL”.
14. Additionally, clause 3 of the loan agreement read as follows:
“The contracting parties expressly agreed that ND Gorica shall bear all the costs related to
the Player for the entire duration of the Contract. FC Postojna does not owe anything to ND
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Gorica and the Player under the Contract and shall no obligations towards ND Gorica and/or
the Player pursuant to this Contract.
The obligations of ND Gorica towards the player are as follows:
-
To pay the monthly salary in the amount of EUR 1.700,00 gross,
To pay all and any team bonuses set out in the ND Gorica’s regulations,
To provide the player with 10 to 12 vouchers for free meal on a monthly basis,
To cover the player’s costs of accommodation,
To provide the player with [one] round-trip economy airplane ticket to Nigeria”.
15. On 24 August 2020, FC Postojna received a correspondence from a representative of a third
Slovenian club, FC Koper, informing, inter alia, that it started negotiations with the player,
who alleged that he was “in distress and that he was not accommodated in a village near
Postojna, without resources, and therefore he was signing a contract in a language he could
understand”. As such, FC Koper requested FC Postojna to clarify its contractual situation with
the player.
16. On 25 August 2020, FC Postojna provided its reply to the abovementioned correspondence
and contested the allegations previously made by the player and FC Koper. In particular, FC
Postojna stressed that it had signed a valid employment contract with the player, duly
registered before the NZS, as well as reserved its rights in case of further developments.
17. By decision dated 3 May 2021 and notified on 19 May 2021, the government of Slovenia –
namely the Nova Gorica Administrative Unit – issued its decision in connection with the
player’s application for the extension of his personal visa (hereinafter: the Slovenian
administrative decision).
18. The Slovenian administrative decision established, inter alia, that:
a. on 1 July 2020, the player filed an application for extension of a single permit to work
as a self-employed person;
b. on 31 July 2020, the player’s application was supplemented with “a certificate on
amendment of data on medical insurance, excerpt of compulsory medical insurances,
contract on professional football playing between [the player] and [FC Postojna] […]
entered into on 29 May 2020”;
c. on 15 August and 23 October 2020, the player’s application was supplemented with
further documentation, including information regarding the player’s new employment
agreement with ND Gorica;
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d. the player’s application of a single permit to work as self-employed person was
rejected, because he had “failed to prove sufficient means of subsistence in the
Republic of Slovenia”;
e. the player should leave the country within 15 days of the day in which the decision
became final; and
f. the decision could not be appealed however, if needed to be, the player could initiate
a dispute before the Administrative Court of the Republic of Slovenia within 30 days.
19. On 21 May 2021, the player gave both FC Postojna and ND Gorica notice about the content
of the Slovenian administrative decision. In this opportunity, the player stressed, inter alia,
that the clubs had “failed, neglected and breached [their] duty as his employers to facilitate
and process his visa and residence permit, a vital document required to enable him stay and
live in Slovenia so as to be able to avail his services to both clubs”.
20. The player also held that – due to the clubs’ conducts towards him – he was in the country
as illegal immigrant. Additionally, he wrote, in verbis: “1. The Player’s life, liberty and security
is in grave danger as he risks being arrested and arraigned in court anytime. 2. The Player will
be unable to play competitive football, i.e. to practice the very trade and profession for which
he signed up for when joining both clubs. 3. Any arrest and/or deportation will tarnish the
Player’s name, image and reputation in European football and back home in Nigeria by
portraying him as a criminal and an illegal immigrant. This will amount to defamation and
seriously diminish his chances of securing employment with any other club in Europe. 4. The
above has caused and continues to cause the Player mental pain and anguish”.
21. In light of the above, the player granted FC Postojna and ND Gorica with a 10 days’ deadline
in order to “fully remedy” their breach, under penalty of terminating his employment
contracts with both clubs.
22. On 22 May 2021, the last matches of the 2020/2021 First Slovenian Football League
(hereinafter: the Slovenian PrvaLiga) were played. Accordingly, ND Gorica was relegated to
the lower division of the national league.
23. On 31 May 2021, FC Postojna replied to the player’s correspondence of 21 May 2021. Initially,
it denied having breached any of its contractual duties and pointed out that the player (as a
self-employed person) was the sole responsible for the failure to obtain an extension of his
permit. Subsequently, the club referred to the content of the decision issued by the Nova
Gorica Administrative Unit and clarified that the application had only been rejected because
the player had failed to provide the correct information as to the remuneration earned. In any
event, FC Postojna clarified that the decision was not final “as 30 day deadline for filing a
claim before the Administrative court has not elapsed yet”. Finally, the club expressly
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informed the player that it would “gladly assist [him] in any proceedings should [he] request
so”, as well as that it remained “fully prepared to advise [the player] in case of any need”.
24. During the month of June 2021, no correspondence was exchanged between the parties.
25. On 1 July 2021, the player notified FC Postojna the termination of the employment contract
with immediate effect due to the club’s failure to cure the breach and, specifically, to
“legalise” his stay in Slovenia.
26. On 3 September 2021, the player signed a new employment contract with FK Žalgiris, valid
for the 2021, 2022 and 2023 seasons. Accordingly, the player would be entitled to the
following monthly remuneration:
a.
b.
c.
d.
EUR 2,000 net as from 3 September 2021 until 31 December 2021;
EUR 2,500 net as from 1 January 2022 until 31 December 2022;
EUR 3,000 net as from 1 January 2023 until 31 November 2023;
EUR 500 as housing allowance.
27. On 15 September 2021, FK Žalgiris entered the relevant transfer instruction in the TMS –
“Engage permanently (out of contract)” (TMS 431349) – and confirmed it on the same date
after having uploaded all relevant documents.
28. On 24 September 2021, the LFF requested the player’s International Transfer Certificate (ITC)
from the NZS outside the registration period and under the pertinent “validation exception”.
29. On 7 October 2021, the PSC rejected LFF’s request for special exemption from the validation
exception. In particular, the Chairperson of the PSC stressed that it was not possible to
establish prima facie that the player terminated the employment contract with just cause.
Said decision was without prejudice of an eventual contractual dispute such as the one at
stake.
III. Proceedings before FIFA
30. On 5 July 2021, the player filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
a. Claim of the player
31. In his claim, the player maintained that he terminated the employment contract with just
cause based on the wording of article 14 of the FIFA Regulations on the Status and Transfer
of Players (RSTP) and due to FC Postojna’s failure to facilitate and process his working permit.
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32. In this respect, the player clarified that ND Gorica’s relegation to the lower division of the
national league triggered the content of clause 2, par. 3 of the loan agreement, hence, that
his registration automatically reverted to FC Postojna (i.e. as from 22 May 2021). As such, the
player referred to his default notice dated 21 May 2021 and held that FC Postojna forced him
to leave the country and left no other option rather than to terminate the employment
contract.
33. Based on the foregoing, the player concluded that he should be entitled to compensation for
breach of contract in line with article 17 of the FIFA RSTP amounting to EUR 48,000 (i.e. the
residual value of the employment contract), plus 5% interest per annum as from 2 July 2021.
b. Reply and counterclaim of FC Postojna
34. Preliminarily, FC Postojna challenged FIFA’s competence to hear the dispute at stake based
on the wording of the employment contract. In accordance with the club, the parties expressly
and validly agreed upon the jurisdiction of the NZS Arbitration Tribunal (hereinafter: the
Slovenian NDRC), which accordingly “has sole jurisdiction to decide on the present dispute”.
35. In light of the above, FC Postojna concluded that the player’s claim should be ruled
inadmissible.
36. Notwithstanding the above, FC Postojna also opposed the player’s allegations as to the
substance of the claim and lodged a counterclaim against him.
37. Initially, FC Postojna referred to the decision issued by the Nova Gorica Administrative Unit
and remarked that the application was only denied because the player – as a self-employed
person – had failed to provide the correct information as to the remuneration earned.
Furthermore, FC Postojna highlighted that the player had never been in the country illegally
nor was threatened with punishment. On the contrary, the club outlined that the decision
expressly offered him the possibility of requesting a new extension of his permit by filing a
claim before the pertinent administrative court.
38. Likewise, FC Postojna pointed out that it was not in an employment relationship with the
player during the relevant events involving the issuance of his working permit. In this respect,
FC Postojna remarked that the player was registered exclusively for ND Gorica on 19 May
2021 (i.e. when the decision was issued by the Nova Gorica Administrative Unit) and on 21
May 2021 (i.e. when the player sent it the notice requesting to cure the alleged breach of
contract). Therefore, FC Postojna is of the opinion that “for this reason alone, [FC Postojna]
could not have committed a breach of contract, since at the relevant time there was simply
no contract and thus no mutual obligations between the parties”.
39. On the other hand, FC Postojna also added that, notwithstanding the above and the player’s
responsibility to deal with his permit’s extension, it offered to support him at several times,
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to no avail. Accordingly, FC Postojna informed that it had liaised with the player and clarified
that he could stay in the country by challenging the decision already issued or applying for a
new visa, however he decided to remain silent and notified the termination of the
employment contract more than one month after the last correspondence (i.e. on 1 July
2021).
40. In light of the above, FC Postojna referred to the loan agreement and argued that the player
was under contract with ND Gorica for the entire 2020/2021 season (i.e. valid as from 1 July
2020 until 30 June 2021), so that FC Postojna could not be held responsible for a breach of
an employment contract that was not even into force. Consequently, FC Postojna alleged
that it lacks of standing to be sued in this case.
41. Alternatively, FC Postojna held that it complied (or, at least, tried to comply) with its duty to
assist the player in the proceedings before the Slovenian government, but he refused to
cooperate and made false claims (e.g. that he was illegal in the country or threatened with
punishment). As such, FC Postojna concluded that the player “was simply dissatisfied with his
situation and did not want to play for a third division club in Slovenia […] therefore, the player
sought a way to exit the contract with the club”.
42. What is more, FC Postojna argued that the player forfeited his right to terminate the
employment contract because he waited more than one month after the expiry of the
deadline granted in his notice before declaring the termination for alleged just cause. The
club referred to the jurisprudence of the Court of Arbitration for Sport (CAS) in this respect.
43. Having established all the above, FC Postojna concluded that the player did not have just
cause to terminate the employment contract and, thus, shall be liable to pay compensation.
44. As to the calculation, FC Postojna held that the player violated his duty to mitigate damages.
Thus, FC Postojna deemed that it should be entitled to compensation of at least EUR 48,000
plus interest of 5% per annum as from 2 July 2021.
45. Lastly, FC Postojna requested sporting sanctions to be imposed on the player.
c. Reply of the player to the counterclaim of FC Postojna
46. Initially, the player reiterated his argumentation as to the admissibility of the claim. In
particular, the player stressed that the wording of the employment contract was vague and
ambiguous, hence should be construed against the drafter, FC Postojna.
47. Furthermore, the player defined that the Arbitration Rules of the Slovenian NDRC are not in
compliance with FIFA Circular no. 1010 and with the National Dispute Resolution Chamber
(NDRC) Standard Regulations.
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48. Therefore, the player concluded that FIFA has jurisdiction to hear this case.
49. The player went on analysing the substance of the matter. In doing so, he started by
acknowledging that he had never been granted the option to be registered or not as a selfemployed person. Alike, the player maintained that he should have “the same rights and
equal treatment in the eyes of employees” in line with the directive no. 2017/0355 issued by
the European Union.
50. Subsequently, the player claimed that he filed his permit application on 1 July 2020 i.e. before
the loan agreement had entered into force. In this respect, he stated that “the mere fact that
a club loans a player does not exempt it from following up on its parental duties to ensure
that its player’s welfare is fully and well catered for by the club receiving the Player on loan”.
Additionally, the player pointed out that the new employment contract signed with ND Gorica
did not have any mention whatsoever to its duty to facilitate the player’s work permit on
behalf of the parent club (i.e. FC Postojna).
51. As to the termination of the loan agreement, the player stated that it ended on 22 May 2021,
following the last matches of the Slovenian PrvaLiga. In this context, the player also referred
to his default notice of 21 May 2021 and deemed that “the seriousness and urgency of the
matter required Postojna to take proactive steps contrary to the tone adopted in its email
dated 31st May 2021”.
52. The player claimed that FC Postojna denied its liability and did not adopt any meaningful step
to remedy the situation. In addition, he claimed that even if FC Postojna had made such
efforts, they would already been delayed for more than one year (i.e. since the signature of
the employment contract).
53. In light of the foregoing, the player held that he had just cause to terminate the employment
contract, as well as that he followed the regulatory deadlines to do so.
54. Finally, he recalled his requests for relief as to the compensation for breach of contract and
further claimed sporting sanctions to be imposed on FC Postojna.
d. Additional comments of FC Postojna
55. On 25 August 2021, FC Postojna filed additional documentation regarding the decision issued
by the Nova Gorica Administrative Unit. Inter alia, the club provided a clarification from the
authorities stating that said decision could have been challenged and the player could have
filed a new application for a work permit.
e. Additional comments of the player
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56. On 4 September 2021, the player replied to the correspondence previously sent by FC
Postojna. In this opportunity, he reiterated his allegations as to the breach of contract
committed by the club and recalled that he was to leave a country within 15 days.
f. Position of FK Žalgiris
57. In light of the possible consequences arising from the termination of the employment
contract, FK Žalgiris was considered to be a party to the present proceedings and invited to
provide its position as to FC Postojna’s counterclaim.
58. Alike FC Postojna, FK Žalgiris also challenged FIFA’s competence to hear the dispute at stake
based on the wording of the employment contract. In this respect, FK Žalgiris referred to the
jurisprudence of the CAS and the Swiss Federal Tribunal in order to establish that “in the
absence of a clear intention by the parties to exclude [the original jurisdiction of the state
courts] any arbitral tribunal would lack jurisdiction”.
59. Therefore, FK Žalgiris claimed that the jurisdiction clause included in the employment contract
contained a clear reference to the Ljubljana Ordinary Courts, hence that the Dispute
Resolution Chamber (DRC) lacks jurisdiction to adjudicate on the matter.
60. Preliminarily, FK Žalgiris highlighted that neither of the parties filed any type of claim against
it, hence that it should not be considered as a party to these proceedings under penalty of
violating the principle of ne ultra petita. In light of the above, FK Žalgiris requested to be
immediately excluded.
61. Alternatively, FK Žalgiris reiterated the player’s allegations as to the just cause to terminate
the employment contract. In particular, FK Žalgiris claimed that FC Postojna failed to take the
necessary measures to obtain the relevant permit because, inter alia: (i) the player could not
be demanded to recognize the difference between an “employee” and a “self-employment”
permit; (ii) after the notification of the administrative decision, FC Postojna did nothing to
assist the player to remedy the situation; and (iii) FC Postojna acted in bad faith by saying that
it would be up to the player to claim for help.
62. To this extent, FK Žalgiris endorsed the player’s argumentation in the sense that the
employment contract had already been reinstated and FC Postojna lacked interest in the
continuation of their employment relationship. Equally, FK Žalgiris concluded that the player
had just cause to terminate the employment contract, entailing that FC Postojna should be
liable to the consequences that follow.
63. In any event, FK Žalgiris claimed that even if the termination was deemed to be without just
cause, FC Postojna would not be entitled to receive any compensation because it was also in
breach. Furthermore, FK Žalgiris stated that it would be inconsistent for FC Postojna to claim
compensation if the player was employed as an “independent contractor”.
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64. Lastly, FK Žalgiris held that it could not be jointly liable to pay any potential compensation
because the player’s registration was rejected by the PSC. Thus, FK Žalgiris stated that it could
not be considered as the new club of the player.
65. Based on the abovementioned considerations, FK Žalgiris requested the DRC to rule as
follows:
“a. FKZ is not a party to the matter FPSD-2970 due to the lack of a claim/request against it;
b. Subsidiarity, the FIFA DRC lacks jurisdiction to adjudicate on the dispute between the Player
and Postojna;
c. Still more subsidiarity, the claim of the Player against Postojna is accepted, and the
counterclaim of Postojna is rejected”.
g. Information provided by the NZS
66. After being invited to do so, the NZS provided information regarding the issuance of licenses
for the Slovenian PrvaLiga, in verbis:
“A license to compete in the 1st Division League (the Slovenian Prva Liga) is issued prior to
the start of the licensing season. In accordance with the Club Licensing Regulations (Version
6.1, dated 19.12.2019), the licensing season for NZS competitions in the 1st Division League
(here and after: 1.SNL) begins on 1 June and ends on 31 May of the following year. The
applicant for the license for the 1.SNL must submit the license documentation by March 31,
and the decisions on granting (or rejecting) the license must be made by the Commission at
the first instance (First instance body) by April 30. In cases of refusal to issue a license and an
appeal, the Commission at second instance (Appeals body) must receive a decision by 30
May. For a club that has qualified from the Second League, special procedures are used to
grant a license to play in the 1. SNL. The extraordinary licensing process for these clubs begins
on May 15 and must end by December 31 of the current year”.
IV. Considerations of the Dispute Resolution Chamber
a. Competence
67. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 5 July 2021 and
submitted for decision on 2 December 2021. Taking into account the wording of article 34
of the October 2021 edition of the Procedural Rules Governing the Football Tribunal
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(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
68. Subsequently, the Single Judge referred to article 2 par. 1 of the Procedural Rules and
observed that in accordance with article 23 par. 1 in combination with article 22 lit. b) of the
RSTP (August 2021 edition), 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 Nigerian player and a Slovenian club, with the intervention
of a Lithuanian club.
69. At this point, the Single Judge acknowledged that FC Postojna challenged FIFA’s jurisdiction
to hear the dispute based on the wording of the employment contract combined with the
regulations of the NZS, which refer to the jurisdiction of the Slovenian NDRC (cf. article 15.2
of the employment contract).
70. Likewise, the Single Judge was also mindful that FK Žalgiris did also challenge FIFA’s
jurisdiction, but, on its part, alleged that the ordinary courts of Ljubljana had exclusive
jurisdiction to adjudicate on the matter (cf. article 15.3 of the employment contract).
71. To this extent, the Single Judge initially highlighted that FK Žalgiris’ involvement in the dispute
at stake (as the new club) is accessory to any breach of the player of the employment contract
and derives from the regulations (cf. article 17, par. 2 of the FIFA RSTP). Consequently, the
Single Judge considered that only the player and FC Postojna, as parties to the employment
contract, would per se be entitled to advocate on their mutual intention while drafting said
contract and, specifically, the jurisdiction clause (cf. CAS 2020/A/7145).
72. Notwithstanding the above and for the sake of completeness, the Single Judge emphasised
that in accordance with art. 22, par. 1 caput of the Regulations, FIFA is competent to hear
employment-related disputes between a player and a club with an international dimension
“without prejudice to the right of any player (…) or club to seek redress before a civil court
for employment related disputes”.
73. The Single Judge wished to emphasize that article 22 of the Regulations provides an
exhaustive enumeration of the types of disputes FIFA is competent to hear. The scope of FIFA
jurisdiction is accordingly not open to the parties’ discretion; it derives from the FIFA Statutes
and the Regulations, and not from private agreements between parties. What follows from
the above is that a jurisdiction clause in an employment contract establishing jurisdiction in
favour of the Football Tribunal (or one of its chambers) is not per se binding on the DRC, for
its competence derives not from the contractual arrangements between any given parties but
in fact from the Regulations.
74. The Single Judge recalled however that parties may freely agree to give jurisdiction to a civil
court, which clearly follows from the introductory part of article 22 of the Regulations,
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meaning that parties are free to contractually withdraw the competence of employmentrelated disputes from FIFA. In fact, the Single Judge, recalling the jurisprudence of both the
Football Tribunal and CAS in this regard, highlighted that even if the agreement does not
specify which courts are competent (e.g. a generic reference is made to a region/city), FIFA is
not competent when the parties have exclusively agreed upon the jurisdiction of a civil court.
75. Taking all the above into consideration, the Single Judge went on analysing whether the
employment contract at the basis of the dispute actually contained a clear and exclusive
jurisdiction clause in favour of the ordinary courts of Ljubljana as alleged by FK Žalgiris. By
doing so, the Single Judge was firm to determine that there is no such clause included in the
aforementioned contract. On the contrary, the Single Judge noted that article 15 of the
employment contract contradicts itself and refers to the jurisdiction of the Slovenian NDRC,
the ordinary courts of Ljubljana, and the CAS. This in his opinion is already enough to set
aside the argumentation brought forward by the intervening party insofar as clause 15 was
found to be a very inconsistent provision, one in particular which did not reflect the parties’
unequivocal intention to go to the civil courts and not to other bodies.
76. In parallel, the Single Judge also recalled that in accordance with art. 22 par. 1 lit. b) of the
RSTP, the parties may explicitly opt in writing for such dispute to be decided by an
independent arbitration tribunal that has been established at national level within the
framework of the association and/or a collective bargaining agreement. Any such jurisdiction
clause must be clear, exclusive and unequivocal. Moreover, it must be included either directly
in the contract or in a collective bargaining agreement applicable on the parties. The
independent national arbitration tribunal must guarantee fair proceedings and respect the
principle of equal representation of players and clubs. Equally, the Single Judge referred to
the principles contained in the FIFA NDRC Standard Regulations, which came into force on 1
January 2008.
77. Here again the Single Judge was of the opinion that it could not be established with sufficient
clarity which of the referred decision-making bodies named in the contract, if any, would be
(exclusively) competent to hear the present dispute. Proof of this inconsistency appears in the
fact that each of the parties to this case considers a different body to have jurisdiction over
the matter (i.e. the player referred the dispute to the Football Tribunal; FC Postojna to the
Slovenian NDRC; and FK Žalgiris to the ordinary courts of Ljubljana).
78. Therefore, considering the absence of a clear, exclusive and unequivocal jurisdiction clause
and in line with the well-established jurisprudence of the DRC, the Single Judge decided to
dismiss the objections raised by FC Postojna and FK Žalgiris in this regard.
79. Consequently, the Single Judge deemed that the Football Tribunal is competent to adjudicate
on this matter under art. 22, lit. b) of the FIFA RSTP. It follows that the player’s claim and FC
Postojna’s counterclaim are both admissible.
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80. Finally, the Single Judge also wished to outline that the arguments raised by FC Postojna and
FK Žalgiris as to their standing in the case at stake were duly noted, however are not
considered to be related to the admissibility of the claim, but rather an issue to the merits of
the present matter.
b. Applicable legal framework
81. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with article 26 par.
1 and 2 of the RSTP (August 2021 edition), and considering that the present claim was lodged
on 5 July 2021, the February 2021 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
c. Burden of proof
82. The Single Judge recalled the basic principle of burden of proof, as stipulated in article 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof. Likewise, the Single Judge stressed the
wording of article 13 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the TMS.
d. Merits of the dispute
83. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
84. Having analysed the parties’ submissions and the documentation on file, the Single Judge
noted that the parties strongly dispute whether they shall be considered as a party to these
proceeding, as well as whether player had just cause to terminate the employment contract
and the consequences that follow.
85. In this context, the Single Judge acknowledged that it was his task to determine the following:
a. Does FC Postojna have standing to be sued in the case at hand?
b. Does FK Žalgiris have standing to be sued in the case at hand?
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c. Did the player have just cause to terminate the employment contract, and what are the
consequences that follow?
86. The Single Judge proceeded then to the analysis of each matter.
i. Does FC Postojna have standing to be sued in the case at hand?
87. Initially, the Single Judge observed that FC Postojna alleged that it does not have standing to
be sued in the case at hand since the employment contract previously signed between the
parties was not in force at the time of the relevant events involving the player’s working
permit. On the other hand, the Single Judge was also mindful of the player’s and FK Žalgiris’
argumentation regarding the relegation of ND Gorica from the Slovenian PrvaLiga and the
premature termination of the loan agreement.
88. In respect of the above, the Single Judge found it worth to preliminarily remark, on general
level, that standing to be sued is attributed to a party in which it can be validly placed the
legal consequences deriving from the rights brought forward with a claim based on a legally
protectable and tangible interest at stake in the matter concerned. According to the CAS’
jurisprudence, the notion “standing to sue” is generally used to designate the holder of the
claim, i.e. the person entitled by an underlying substantive right to challenge a decision.
Similarly, an individual or entity has “standing to be sued” if it is personally obliged by the
“disputed rights” at stake, i.e. the party against whom the claimant must direct its claim in
order to be successful (cf. CAS 2013/A/3140, para. 8.12 and CAS 2015/A/3999 & 4000, para.
73). Cases CAS 2006/A/1189; CAS 2006/A/1192, CAS 2013/A/3301, CAS 2008/A/1518,
2007/A/1329-1330, CAS 2007/A/1206, all confirmed that “(…) the defending party has
standing to be sued (legitimation passive) only if it is personally obliged by the ‘disputed right’
at stake”).
89. In this respect, the Single Judge went on analysing the content of the loan agreement,
specifically the wording of article 2 of the document, which establishes that “the contract is
valid/conditioned upon the fact that ND Gorica plays in the 1st Slovenian Football League
and/or that it holds a valid license confirmed by the Football Association of Slovenia to play
in the 1st SNL”.
90. It follows from the above that at least one of the following conditions should be met for the
loan agreement to remain valid and, consequently, the original employment contract remain
suspended: (i) ND Gorica playing the Slovenian PrvaLiga; or (ii) ND Gorica holding a valid
license for the Slovenian PrvaLiga confirmed by NZS.
91. To this end, the Single Judge acknowledged that it remained undisputed between the parties
that ND Gorica was relegated from the Slovenian PrvaLiga, as well as that the last official
match of said championship was disputed on 22 May 2021. Secondly, the Single Judge
observed that in accordance with the information provided by the NZS on the issuance of the
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licenses for the national competitions, “the licensing season for NZS competitions in the 1st
Division League […] begins on 1 June and ends on 31 May of the following year”.
92. Taking into consideration the wording of the loan agreement combined with the factual
framework of the case, the Single Judge considered that as from the 31 May 2021, neither
of the conditions established by the parties for the continuity of the loan was met. Therefore,
the Single Judge was of the opinion that as from said date the loan agreement was
terminated automatically and the player’s duty reverted again to FC Postojna, as the player’s
“parent club”. Consequently, at the time of the termination of the employment contract by
the player (i.e. by 1 July 2021), his contractual relationship with FC Postojna had already
resumed. It follows that the disputed right at stake concerning the responsibility of the
issuance of the visa falls upon FC Postojna, because the employment contract binding it to
the player was active again following the expiry of the loan with ND Gorica. Whether this
assumption of responsibility is accurate or not is the core issue of the substance of the matter.
93. In light of the foregoing, the Single Judge decided that FC Postojna has standing to be sued
in the case at hand. Therefore, the club’s allegations in this regard shall be dismissed.
ii. Does FK Žalgiris have standing to be sued in the case at hand?
94. Subsequently, the Single Judge turned his attention to FK Žalgiris’ standing to be sued in the
case at stake.
95. At this point, the Single Judge noted that FK Žalgiris claimed that it should not be included
as a party to this case because: (i) neither of the counterparties lodged any claim against it,
so that any potential conviction would be ultra petita; and (ii) the PSC rejected its request for
the player’s ITC, hence it could not be considered as the player’s new club.
96. In this regard, we firstly wished to recall the well-established jurisprudence of the DRC
according to which the joint and several liability of the professional player and their new club
is automatic as it derives from article 17, par. 2 of the Regulations. Likewise, the Single Judge
wishes to note that in accordance with article 9, par. 4 of the Procedural Rules, “the FIFA
general secretariat may, at any stage of a procedure, request the intervention of any natural
or legal person as a party in a procedure”.
97. Based on the above, whenever the player signs a new employment contract, a presumption
is created that the new club must be involved in a matter (whether ex officio or upon request).
In other words, the Single Judge wished to emphasize that the involvement of the player’s
new club in a matter does not need to be explicitly requested by the counterparties insofar
as the FIFA general secretariat is legally empowered to do so ex officio (cf. article 9, par. 4 of
the Procedural Rules). As such, the fact that FC Postojna did not specifically address any claim
against FK Žalgiris does not object its standing to be sued in this case nor turns a potential
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conviction in a violation of the legal principle of ne ultra petita. Therefore, the FK Žalgiris’
argumentation in this respect cannot be upheld.
98. Subsequently, the Single Judge went on analysing FK Žalgiris’ allegations in connection to its
designation as the new club of the player. In doing so, we started by recalling the wording of
art. 17, par. 4 of the Regulations, in particular that: “It shall be presumed, unless established
to the contrary, that any club signing a professional who has terminated his contract without
just cause has induced that professional to commit a breach” (emphasis added).
99. Accordingly, the Single Judge noted that: (i) on 3 September 2021, FK Žalgiris and the player
signed an employment agreement valid for the 2021, 2022 and 2023 seasons; (ii) neither of
the parties disputed the signature of said contract; and (iii) FK Žalgiris uploaded the contract
in TMS, a copy of which is also on file.
100.Therefore, the Single Judge was satisfied with the conclusion that FK Žalgiris’ argumentation
as to the rejection of the players’ ITC shall also be dismissed. This conclusion is in line with
the long-standing jurisprudence of the DRC in accordance with which the validity of an
employment contract cannot be made conditional upon the execution of (administrative)
formalities, such as, but not limited to, the registration procedure in connection with the
international transfer of a player.
101.As a consequence, the Single Judge decided that FK Žalgiris shall also be considered as a party
to the case at stake and its allegations on the contract could not be upheld.
iii. Did the player have just cause to terminate the employment
contract, and what are the consequences that follow?
102.In continuation, the Single Judge moved to the analysis of the termination. In doing so, he
recalled the well-establish jurisprudence of the DRC according to which only a breach or
misconduct that is of a certain severity justifies the termination of a contract. In other words,
only when there are objective criteria that do not reasonably permit the expectation that the
employment relationship between the parties can continue, a contract may be terminated
prematurely (ultima ratio measure).
103.In this respect, the Single Judge also found it noteworthy that the jurisprudence of the DRC,
as detailed by the Commentary on the Regulations on the Status and Transfer of Players –
Edition 2021, pp. 107-8, establishes the following:
“When required to assess whether a valid reason existed for an unilateral contract
termination, the following principles should be applied, while considering the specific
circumstances each individual matter:
-
Only a sufficiently serious breach of contractual obligations by one party to the contract
qualifies as just cause for the other party to terminate the contract;
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REF FPSD-2970
-
In principle, the breach is considered sufficiently serious when there are objective
circumstances that would render it unreasonable to expect the employment
relationship between the parties to continue, such as a serious breach of trust;
The termination of a contract should always be an action of last resort (an ‘ultima ratio’
action)”.
104.With due consideration of above, the Single Judge turned to the evidence on file and deemed
crucial to outline that the player based the termination of the employment contract exclusively
on FC Postojna’s failure to provide guidance and/or facilitate the issuance of his working
permit. At this point, the Single Judge highlighted that: (i) there was not any outstanding
remuneration due by FC Postojna to the player at the time of the termination; and (ii) the
player did not include ND Gorica as a respondent to his claim, entailing that the analysis of
any potential behaviour attributable to the former club falls outside the scope of this dispute.
As such, the Single Judge acknowledged that it was his task to entertain the overall
developments of the case under such restrictive circumstances.
105.To this end, the Single Judge once again reverted to the longstanding jurisprudence of the
DRC and noted that it establishes, as a general rule, that clubs shall be liable to take all
necessary administrative action to ensure that that a player’s permit is granted (or renewed),
allowing him to render the services under the employment contract. Nevertheless, the Single
Judge also took into consideration that the jurisprudence is also solid to recognize that player
shall provide assistance as can be reasonably expected in order to facilitate the administrative
procedure.
106.Put differently, “as per the established jurisprudence, it is the club’s responsibility to obtain
these documents (on time). As a result, a player will be considered to have a just cause to
terminate their contract if the required permits are not available in good time. However, a
player is expected to cooperate in completing the processes associated with obtaining these
documents. Moreover, considering the principle that terminating a contract should be a last
resort, a warning should be sent to the club ahead of any move to put an end to the
contractual relationship” (cf. Commentary on the Regulations on the Status and Transfer of
Players – Edition 2021, p. 115).
107.Aside from case law of the DRC, the aforementioned conclusion is also in line with CAS’
jurisprudence, which confirms that the player must cooperate with the efforts to obtain a visa
or work permit, as well as show sufficient degree of diligence to comply with the
administrative formalities (see, for example, CAS 2017/A/5092).
108.Taking the above into consideration, the Single Judge went on analysing the documentation
submitted the parties. In this respect, the Single Judge observed that the player, FC Postojna
and FK Žalgiris brought forward extensive argumentation in connection with the content of
the Slovenian administrative decision dated on 3 July 2021 and notified to the player on 19
July 2021.
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REF FPSD-2970
109.Accordingly, after carefully analysing the wording of the decision sub judice combined with
the myriad of evidence provided by FC Postojna in this connection, the Single Judge found it
essential to remark that it:
a. described that the player was already in possession of a residence permit and requested
an extension of his visa by himself, as a self-employment person;
b. reported that during the course of the administrative proceedings, the player was
proactive to supplement the documentation and information as requested by the
competent authorities, including by providing financial statements and copies of the
employment contracts signed with FC Postojna and ND Gorica;
c. determined that the rejection of the player’s application was only based on his failure
to provide the relevant information in connection with the remuneration earned in
Slovenia i.e. to demonstrate that he earned an amount higher than the threshold set
out by the national law for a self-employed person;
d. was not final and binding on the player, since it expressly pointed out that it could have
been challenged before the relevant administrative court within 30 days; and
e. was without prejudice of the player (or his employers) filing a new application for an
extension of his working permit.
110.In parallel, taking into consideration the complexity (and relevance) of the factual framework
of the case at hand, the Single Judge also found it pertinent to consider following timeline
containing the most relevant events to the assessment of this dispute:
Date
29 May 2020
1 July 2020
15 August 2020
22 August 2020
3 May 2021
19 May 2021
Event
Signature of the employment contract between the player and FC Postojna,
valid as from 1 July 2020 until 30 June 2025.
Application by the player for an extension of his work permit for the 2020/21
season.
Signature of the employment agreement between the player and ND Gorica,
valid as from 1 August 2020 until 30 June 2022 (linked to the loan
agreement).
Signature of the loan agreement between the player, ND Gorica and FC
Postojna, valid until the end of the 2022 season, subject to the permanence
of ND Gorica in the Slovenian PrvaLiga.
Decision of the Nova Gorica Administrative Unit rejecting the player’s
application for extension of his working permit.
Notification of the decision of the Nova Gorica Administrative Unit to the
player. Start of the countdown of 30 days in order for the player to file a claim
before the relevant administrative court (i.e. until 18 June 2021).
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21 May 2021
22 May 2021
31 May 2021
31 May 2021
30 June 2021
1 July 2021
Notice from the player to ND Gorica and FC Postojna granting them with a
10 days’ deadline in order to cure the breach regarding his working permit.
Last matches of the Slovenian PrvaLiga disputed and consequent relegation
of ND Gorica for the lower national division.
Response by FC Postojna to the player’s default notice, providing guidance as
to the decision and offering the player any support needed.
End of the licensing season in accordance with the NZS.
Official end of the Slovenian 2020/2021 season in accordance with the TMS.
Termination notice sent by the player to FC Postojna.
111.With the above in mind, the Single Judge observed that the content of the Slovenian
administrative decision was notified by the player to FC Postojna and ND Gorica on 19 May
2021 – when the loan agreement was still valid and the employment contract was suspended.
Likewise, we noted that, on 31 May 2021 (namely the same date of the official end of the
licensing football season in accordance with the NZS), FC Postojna provided its reply to the
notification and offered guidance to the player.
112.Subsequently, the Single Judge noted that the player did not provide any response nor
adopted any measure towards the national authorities – although there were still remedies
available as the decision itself noted. In addition, the Single Judge was also observant that
during the month of June 2021, the parties ceased to exchange correspondences. What is
more, neither the player nor FC Postojna filed any allegation and/or documentation regarding
an eventual conversation held by the parties during this interim as regards to their contractual
situation or the consequences of the Slovenian administrative decision – let alone a potential
breach of contract.
113.In this regard, the Single Judge was eager to recognize that after exactly one month counted
as from FC Postojna’s last correspondence, the player notified the termination of the
employment contract alleging just cause. In this regard, the Single Judge thoroughly
examined the parties’ submissions and acknowledged that both the player and FK Žalgiris
maintained that FC Postojna lacked proactivity to solve the player’s administrative issue. The
Single Judge did not fail to notice either that said parties referred to standard practice of the
DRC as regards the club’s responsibility to comply with the necessary administrative
formalities for obtaining a visa before the relevant authorities.
114.Nevertheless, against the background of this specific case, the Single Judge deemed that the
abovementioned argumentation per se is not sufficient to justify an abrupt termination of the
employment contract on the player’s initiative. In particular, the Single Judge considered
pivotal to his conclusion:
a. the timeline of the case shows that the employment contract between the parties had
just been reinstated and the relevant events occurred while the player was still bounded
to ND Gorica. Moreover, the events occurred during the interval between two football
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REF FPSD-2970
seasons, entailing that the player has never been deprived from performing his
professional role;
b. FC Postojna filed enough evidence to demonstrate that the player was aware of his
visa status before the national authorities, as well as of the possible legal remedies to
solve it. Moreover, the content of the Slovenian administrative decision supported this
position, since it showed that the player was active during the course of the
proceedings and “on top” of the administrative process to renew the visa, without
ever having requested any assistance from his employers to this end before his formal
notice of 21 May 2021;
c. the player did not answer FC Postojna’s correspondence of 31 May 2021 nor requested
any assistance whatsoever. Likewise, the player did not mention at any point that he
at least tried to contact the club in this interim in order to remedy the situation and/or
to provide FC Postojna with the means of doing it; and
d. contrarily to what was alleged by FK Žalgiris, there is not any evidence on file capable
of suggesting that FC Postojna acted in bad faith towards the player. Quite the
contrary, since the documentation submitted by the parties showed that they both
failed to engage in any negotiation during the whole month of June 2020.
115.Therefore, in light of the foregoing and bearing in mind the jurisprudence of the DRC coupled
with the wording of article 13, par. 5 of the Procedural Rules, the Single Judge was satisfied
with the conclusion that the player could not establish to a comfortable satisfaction degree
that FC Postojna incurred in a substantial breach of the employment contract capable of
giving cause to the termination. What is more, while analysing the documentation on file,
the Single Judge was convinced that the player could have taken more lenient measures
before terminating the employment contract, especially when considered that he terminated
the employment contract after FC Postojna’s clear position that it was willing to help him
secure his visa.
116.In contrario sensu, by failing to provide FC Postojna with a response, notice or specific request
for further action, the Single Judge considered that the player was not capable of
demonstrating that he showed a sufficient degree of diligence regarding his working permit
insofar as he referred to FC Postojna after the decision by the Slovenian authorities, and
refrained from adopting any other measures after the club’s letter on 31 May 2021.
117.Thus, the Single Judge concluded that the player could not establish that he adopted the
reasonable precautions mentioned in the jurisprudence of the Football Tribunal in order to
pursue the continuity of the employment relationship previously initiated between the parties.
To the contrary, his lack of action or response denotes that he did not seem genuinely
interested in the continuation of the employment relationship.
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REF FPSD-2970
118.It follows that the termination of the employment contract by the player was premature,
hence not an ultima ratio measure in line with the consistent jurisprudence of the DRC.
119.Notwithstanding the above, the Single Judge also outlined that FC Postojna’s behaviour
cannot be ignored insofar as it could also have been more proactive in order to remedy the
administrative issues faced by the player. The Single Judge was not persuaded that FC
Postojna genuinely undertook its best abilities and dedication to facilitate the administrative
proceedings involving the player’s visa. This is moreover underlined considering that FC
Postojna could have anticipated ND Gorica’s relegation (and the consequent termination of
the loan agreement) before the official end of the pertinent football season.
120.Therefore, the Single Judge stressed that it could not be overlooked that the circumstances
attributable to FC Postojna helped to give rise to the termination by the player. In fact, the
Single Judge considered that FC Postojna contributed heavily to the (however premature)
termination of the employment contract. The club’s lack of substantive action also denotes
that it was not genuinely interested in the player’s services.
121.Based on the aforementioned considerations, the Single Judge decided that there was no just
cause and that in fact the parties mutually departed from the contract. Consequently, the
Single Judge determined that no compensation for breach of contract shall be awarded to
any of the parties. Alike, taking into consideration the factual and contractual situation of the
case, as well as the specific wording of article 17, par. 4 of the Regulations, the Single Judge
decided that no sporting sanctions are suitable in the case at stake.
122.For the sake of completeness, the Single Judge pointed out that such reasoning is in line with
CAS’ jurisprudence, as well as of the Football Tribunal (see, for instance, FPSD-131, CAS
2014/A/3647 & 3648; and CAS 2019/A/6444 & 6445).
123.Consequently, the Single Judge concluded the both the player’s claim and FC Postojna’s
should be rejected.
e. Costs
124.The Single Judge referred to article 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were
to be imposed on the parties.
125.Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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REF FPSD-2970
V. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Kehinde Mathias Oyewusi, is admissible.
2.
The claim of the Claimant / Counter-Respondent is rejected.
3.
The counterclaim of the Respondent / Counter-Claimant, FC Postojna, is rejected.
4.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-2970
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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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