Labour Disputes
Texto da decisão
REF FPSD-7892
Decision of the
Dispute Resolution Chamber
passed on 11 January 2023
regarding an employment-related dispute concerning
the player Logon Romaric Alexander
BY:
Gonzalo de Medinilla (Spain), Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Logon Romaric Alexander, United Kingdom
RESPONDENT:
SCM Zalau, Romania
Represented by Gherdan Sergiu Valentin
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I. Facts of the case
1.
On 9 September 2020, the British player Logon Romaric Alexander (hereinafter: the Claimant) and
the Romanian club CSM Zalau (hereinafter: the Respondent) concluded a “sports activity contract”
(hereinafter: the Contract) valid until 10 June 2021.
2.
Art. 5.5. of the Contract states:
“5.5. The club will reimburse the player for expenses incurred in connection with the appropriate
residence / travel visas required of the player and will assist the player in obtaining these visas. To the
extent that there are specific documents that the player needs to sign strictly in order to obtain the visa,
the latter undertakes to sign them accordingly.”
3.
Art. 7.1 of the Contract reads inter alia as follows:
“This sports activity contract terminates in the following cases:
d) by termination for the following cases:
(…)
d.1) by termination by the Club if the Athlete seriously or repeatedly violates the provisions of this
contract, the internal regulation of the Club or the regulations of the Romanian Football Federation”
4.
On 9 June 2021, the parties concluded an extension agreement (hereinafter: the Extension) of the
Contract until 30 June 2023.
5.
The Extension inter alia states that:
“Item (a) – The monthly remuneration shall be changed to 7,150 RON per month (net);
To be paid in accordance with the following payment schedule: 10.08.2021 7,150 RON (net), 10.09.2021
7,150 RON (net), 10.10.2021 7,150 RON (net), 10.11.2021 7,150 RON (net), 10.12.2021 7,150 RON (net),
10.01.2022 7,150 RON (net), ), 10.02.2022 7,150 RON (net), 10.03.2022 7,150 RON (net), 10.04.2022 7,150
RON (net), 10.05.2022 7,150 RON (net), 10.06.2022 7,150 RON (net);”
6.
On 11 July 2022, the Claimant sent a notification to the Respondent stating inter alia that he had
been “unjustifiably removed from the team’s WhatsApp group”, that the Respondent failed to send
the training program and that he was unable to be present at the Club´s activities in Romania due
to the lack of visa. The Claimant requested the Respondent to take “all the necessary steps to obtain
a visa”.
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7.
On 1 August 2022, the Respondent replied to the previous correspondence stating that the visa
process was the responsibility of the Claimant and requested the Claimant to attend the club’s
headquarters on 8 August 2022 to attend a disciplinary hearing.
8.
On the same date, the Claimant replied requesting the Respondent “to arrange the relevant
documentation, in particular my visa, work permit and residence permit” within the next 7 days.
9.
On 3 August 2022, the Respondent replied insisting that the visa application could not be made by
the Club “per the provisions of the Romanian Law and of the applicable EU Regulation in this matter.”
10. On 4 August 2022, the Claimant reiterated that it was the Club’s obligation to provide him with a
visa, work permit and residence permit and requested to attend the disciplinary hearing via
videoconference.
11. On 5 August 2022, the Respondent replied stating that the parties “had concluded a sports activity
contract (…) and not a labor contract” (as such is expressis verbis resulting from your contract, art. 2.2.),
such two contract types are different, as resulting from Romanian Law no. 69/2000.”, that a disciplinary
hearing via videoconference could not take place and “you decided to not respect your obligations
(…) that the negotiations to terminate your contract amicably had failed, instead of reporting to the club
you continued to transgress the conduct of not carrying out your activities to our club, not showing up
in Romania, not purchasing any flight, not making any attempt whatsoever to benefit from a Romanian
visa and instead, you chose to request the club to provide you with aspects that are not in the club’s
responsibility and power. Furthermore, you had not rented any apartment in Zalau city, proving that
your intention was not to report to the club and you had taken all your belongings to the UK”.
12. On 6 August 2022, the Claimant travelled to Romania but was denied access to the country due to
having stayed longer than 90-days in a 180-day period.
13. On 7 August 2022, the Claimant sent notice to the Respondent stating that “I have in the meantime
been informed that due to the fact that I apparently signed a sports activity contract and not a labour
contract, as a non-EU player, I cannot work for the club without a work permit. Therefore, I wish to
propose that we sign a labour contract with the same terms as the sports activity contract so that the
Club can arrange a work permit for me and I can lawfully render my services to the club.
For the sake of good order, I travelled to Romania yesterday to join the Club and show that I am
committed to comply with the contract but I was refused entry (see enclosure). I once more reject your
allegations that I am creating a scenario in which I want to ‘trick’ the club and attempt to claim “100%
of my contract with 0% effort”, and kindly ask you to stop communicating in this condescending manner.
I am very committed to play for the Club in the 2022/2023 season, but fact of the matter is that the Club
has not provided me with the relevant conditions to provide my services”.
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14. The Claimant replied to the previous correspondence insisting on the Respondent’s obligation to
arrange his visa and work permit and again requested to be reinstated in the team’s WhatsApp
group.
15. On 18 August 2022, the Claimant sent the Respondent a default notice requesting a reply to the
previous letters and requesting the salary for July 2022.
16. On 22 August 2022, the Respondent insisted that it was the Claimant’s responsibility to arrange the
visa and requested the Claimant to “apply for a Romanian visa immediately”. Moreover, the
Respondent deemed that the July 2022 salary was not due to non-performance of services.
17. On 24 August 2022 the Respondent terminated the Contract in the following terms:
“Specifically, you, LOGON ROMARIC ALEXANDER, did not attend team actions in the 2022/2023 season,
leaving the team after the end of the 2021/2022 season and not returning to team activities afterwards.
Although formally notified on several occasions to present to such actions, you did not comply with such
notifications.
Also, instead of taking active steps to obtain a visa to allow your entry and stay in Romania (obligation
that does not belong to the club according to the sports activity contract and, moreover, only the applier
personally may apply to obtain such a visa according to the applicable legal provisions, respectively art.
29, par. 3 and 5 of O.U.G. 194/2002) you have remained in passivity from this point of view, meaning
that the non-execution of the contract on your part is fully imputable towards yourself.
Under these conditions, taking into account that the main activity of the object of the sports activity
contract between the parties (the provision of sports services by you LOGON ROMARIC ALEXANDER) is
not performed, taking into account that there is no justifying cause to exonerate liability (force majeure,
fortuitous event, etc.) and that the non-execution is occurring due to your fault, pursuant to art. 7.1.d.l.
from the sports activity contract between the parties and according to art. 1552 Civil Code, by this
decision SPORT CLUB MUNICIPAL ZALAU understands to unilaterally terminate the sports activity
contract concluded with LOGON ROMARIC ALEXANDER on 03.08.2021”.
18. On 26 August 2022, the Claimant sent a termination notice to the Respondent adducing just cause.
19. On 28 November 2022, the Claimant informed FIFA that he remained unemployed.
II. Proceedings before FIFA
20. On 18 October 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
21. According to the Claimant, “the Club´s constant refusal to arrange my visa and/or work permit and
their allegations that such process was not their obligation is also a clear violation of article 18 from
FIFA RSTP”.
22. The Claimant states that the Contract establishes in art. 5.5. that the Respondent was to “assist the
player in obtaining these visas”.
23. In the view of the Claimant, “it can be clearly seen by the behaviour of the club that they were simply
not interested in my services anymore, given that:
a. I was removed from the team’s WhatsApp group
b. Even though I requested many times to be reinstated in the WhatsApp group, they never did.
c. I was never told when the training for the next season would start again.
d. They never requested me how my injury was developing
e. The cynical and even rude tone of the letters of the club which at some point even informed me they
would stop replying to me”.
24. The Claimant sustains that “considering the abusive behavior of the Club, their unlawful actions and
the outstanding payment, I clearly had a just cause to terminate the contract on 26 August 2022. In the
alternative, it must be ruled that the Club terminated the contract without just cause on 24 August 2022”.
25. The Claimant requests the amount of RON 14.300 net as outstanding remuneration consisting of
the salaries of July and August 2022.
26. The Claimant further requests compensation for breach of contract. The Claimant states that the
residual value of the Contract corresponds to RON 64,350.
27. The Claimant filed the following requests for relief:
requesting the FIFA DRC to determine that I terminated the employment relationship with the Club with
just cause on 26 August 2022 and to order the Club to pay me the following amounts:
- 14.300 RON NET as outstanding salaries + 5% interest as from the relevant payment dates until the
date of effective payment.
- 64.350 RON NET as the amount due as compensation for breach of contract + 5% interest as from 26
August 2022 until the date of effective payment.
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b. Position of the Respondent
28. On 1 November 2022, the claim was sent to the Respondent’s email address as indicated on TMS,
and it was invited to submit its position on or before 21 November 2022.
29. On 22 November 2022, the Respondent filed a submission stating that the claim had been wrongly
notified and requested an additional deadline to reply.
30. On 24 November 2022, FIFA general secretariat acknowledged receipt of the aforementioned
correspondence and closed the investigation-phase of the proceeding.
31. On 5 December 2022, the Respondent filed an unsolicited submission in which it requested a
hearing to take place, to reject the claim based on lack of jurisdiction, to reject the claim due to
lack of merit and to be allowed to present its case based on the article 6 of the European
Convention of Human Rights (“ECHR”).
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
32. First of all, the Single Judge (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 18 October 2022 and submitted for decision on 11 January 2023. Taking into
account the wording of art. 34 of the October 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.
33. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (October 2022), he is competent to deal
with the matter at stake, which concerns an employment-related dispute with an international
dimension between a British player and a Romanian club.
34. 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 art. 26 par. 1 and 2 of the Regulations
on the Status and Transfer of Players (October 2022 edition) and considering that the present claim
was lodged on 18 October 2022, the October 2022 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
35. On a preliminary note, the Single Judge referred to the Respondent’s submissions of 22 November
2022 and 5 December 2022.
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36. Regarding the contents of the submission dated 22 November 2022, the Single Judge observed
that the claim was sent by FIFA general secretariat to the address of the Respondent as available
in TMS. In this respect, the Single Judge referred to art. 10 par. 4 of the Procedural Rules, according
to which “Communications from FIFA via email shall be sent to a party by using the email address
provided by the party, or that in TMS. An email address provided in TMS is binding on the party that has
inserted it. Parties with a TMS account must ensure that their contact details are always up to date”.
Hence, the Single Judge deemed that on the basis of the aforementioned provision, the
Respondent had been properly notified of the claim.
37. Having stated the above, the Single Judge turned to the contents of the submission filed by the
Respondent on 5 December 2022 and underlined that this submission cannot be taken into
consideration in the present dispute. In support of this view, the Single Judge relied on the clear
wording of art. 23 par. 1 of the Procedural Rules, according to which parties may not supplement
or amend their submissions or request for relief after the closure of the investigation by FIFA
general secretariat. The Single Judge recalled to this end that on 24 November 2022, FIFA general
secretariat had closed the investigation-phase of the matter in accordance with art. 23 of the
Procedural Rules.
b. Burden of proof
38. The Single Judge 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 Single Judge stressed the wording of art.
13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the
parties, including without limitation the evidence generated by or within the Transfer Matching
System (TMS).
c. Merits of the dispute
39. 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 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
40. The foregoing having been established, the Single Judge moved to the substance of the matter and
took note of the fact that based on the aforementioned considerations, the claim remain
undisputed by the Respondent.
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41. Notwithstanding the above, from the evidence on file the Single Judge was in a position to observe
that the Respondent terminated the Contract on 24 August 2022. Hence, the Single Judge shall
assess if such termination was with or without just cause considering the diverting position of the
parties.
42. Based on the evidence on file, the Single Judge noted that in the notice of the termination, the
Respondent bases the unilateral termination of the Contract on the lack of visa of the Claimant. In
particular, the Respondent in the notice of termination states the following: “instead of taking active
steps to obtain a visa to allow your entry and stay in Romania (obligation that does not belong to the
club according to the sports activity contract and, moreover, only the applier personally may apply to
obtain such a visa according to the applicable legal provisions, respectively art. 29, par. 3 and 5 of O.U.G.
194/2002) you have remained in passivity from this point of view, meaning that the non-execution of
the contract on your part is fully imputable towards yourself”.
43. In this context, the Single Judge first reminded the parties of the clear and explicit wording of art.
18 par. 4 of the Regulations, according to which the validity of an employment contract cannot be
made subject to a successful medical examination and/or the grant of a work permit. Referring
also to the obligation of the parties to maintain contractual stability, the Single Judge underlined
that a club willing to engage a specific player should perform any administrative tasks prior to
concluding any employment contract with the player if required and that any contractual provision
contrary to art. 18 par. 4 of the Regulations shall be considered as invalid.
44. Based on the foregoing, the Single Judge underlined that the same applies for the justification of a
contractual termination and rejected the Respondent’s justification as expressed in the notice of
termination and determined that the Contract and the Extension were valid and biding for the
parties.
45. Furthermore, the Single Judge referred to the FIFA Commentary on the Regulations on the Status
and Transfer of Players (edition 2021) which states the following (page: 200):
“a visa – is considered an administrative formality that a club is required to complete prior to signing a
contract with a player. The signing club is obliged to take all necessary administrative action to ensure
a work permit and/or visa is granted to the player, thus allowing them to render their services to the
club. This action must be taken before the contract is signed. This principle is consistent with Swiss law,
according to which it is the employer’s responsibility to apply for a work permit for a potential employee
and/or to liaise with the competent authority to obtain or renew a work permit for any employee whose
activity must be authorised.
If the parties sign the contract without having confirmed that any work permit or visa will be granted,
and if the competent authorities then refuse to grant the necessary authorisations, the contract will be
considered valid and binding, and if it is terminated by the club because of the state authorities refusal,
the termination will be deemed to have been without just cause. Any provision to the contrary included
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in the contract (e.g. a clause making the issue of a work permit or visa a condition precedent) will be
deemed invalid; the contract as a whole will remain valid.
If they do not have a valid work permit or visa, the player will not be able to render their services as a
professional footballer in accordance with their contract without breaking national law. It is therefore
appropriate and justified to require clubs, in their capacities as employers, to ensure this does not
happen. A club must procure the work permit and any other required authorisations in a timely manner.
If it does not comply with this duty, it should not be able to benefit from the situation to the detriment
of the player. If an employer (club) does not take the necessary action to provide its employee (player)
with a work permit or visa, and if this prevents the employee from entering the country in which they
are employed and/or prevents them from starting work, this could be seen as an unjustified breach of
contract by the employer.
It is understood that the player, for their part, must provide such assistance as can reasonably be
expected from them to facilitate the relevant administrative processes.”
46. Based on the foregoing, the Single Judge underscored that the arguments raised by the
Respondent in the correspondence exchanged between the parties before the claim, summarised
in the argument that the Claimant was the sole responsible for the obtention of the visa, may not
be endorsed.
47. For the above, the Single Judge determined that the Contract was terminated without just cause
by the Respondent on 24 August 2022.
ii. Consequences
48. Having stated the above, the Single Judge turned his attention to the consequences of such
unjustified breach of contract committed by the Respondent.
49. The Single Judge observed that the outstanding remuneration at the time of termination are
equivalent to two salaries (July and August 2022) under the contract, amounting to RON 14,300
net.
50. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge 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, i.e. RON 14,300 net (i.e. RON
7,150 times 2).
51. In addition, taking into consideration the Claimant’s request as well as the constant practice of the
Football Tribunal in this regard, the Single Judge decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from 11 August 2022 and 24 August 2022 respectively
until the date of effective payment.
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52. Having stated the above, the Single Judge 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 Single Judge 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.
53. In application of the relevant provision, the Single Judge 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 Single Judge established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
54. As a consequence, the members of the Single Judge determined that the amount of compensation
payable by the club to the player had to be assessed in application of the other parameters set out
in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
55. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge concluded that the
amount of RON 64,350 net (7,150* 9 Months from September 2022 until May 2023) serves as the
basis for the determination of the amount of compensation for breach of contract.
56. In continuation, the Single Judge 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.
57. According to the information provided, the Claimant remained unemployed, and he was therefore
not able to mitigate his damages.
58. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Single Judge decided that the club must pay the amount of RON 64,350 net to
the player (i.e. the residual value), which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
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59. Lastly, taking into consideration the player’s request as well as the constant practice of the Football
Tribunal in this regard, the Single Judge decided to award the player interest on said compensation
at the rate of 5% p.a. as of 18 October 2022 until the date of effective payment.
iii. Compliance with monetary decisions
60. Finally, taking into account the applicable Regulations, the Single Judge 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.
61. In this regard, the Single Judge 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.
62. Therefore, bearing in mind the above, the Single Judge 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.
63. 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.
64. The Single 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. 24 par. 8 of the
Regulations.
d. Costs
65. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.
66. 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.
67. Lastly, the Single Judge 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, Logon Romaric Alexander, is accepted.
2.
The Respondent, SCM Zalau, has to pay to the Claimant, the following amount(s):
- RON 14,300 net as outstanding remuneration plus 5% interest p.a. as follows:
On RON 7,150 from 11 August 2022 until the date of effective payment;
On RON 7,150 from 24 August 2022 until the date of effective payment;
- RON 64,350 net as compensation for breach of contract without just cause plus 5% interest
p.a. as from 18 October 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision, the
following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall be of
up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the
event that full payment (including all applicable interest) is still not made by the end of the three
entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with
art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 17 of the Procedural Rules).
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