Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 June 2013,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Theodoros Giannikos (Greece), member
Essa M. Saleh Al-Housani (UAE), member
on the claim presented by the player,
Player F, from country I
as Claimant
against the club,
Club C, from country R
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 25 August 2010, the country I player F (hereinafter: the player or the
Claimant), and the country R club, Club C (hereinafter: the club or the
Respondent), concluded an employment contract (hereinafter: the contract),
valid as from 24 August 2010 until 30 June 2011. Said employment contract
was agreed upon following the conclusion of a loan agreement between the
Claimant, the Respondent and the country I club U.
2.
In accordance with the contract, the Claimant was, inter alia, entitled to the
net amount of EUR 250,000, payable in 10 monthly instalments of EUR 25,000,
to be paid until the 25th of next month (…)”.
3.
Art. 12.1 of the contract stipulated that “Any dispute between the parties
arising from or in connection with this agreement, including its validity,
interpretation, execution or termination, shall be settled amiably. Unless the
Parties shall reach an amiable resolution then any such dispute shall be
submitted to the competent bodies of the country R Football Association or
FIFA.”
4.
On 15 February 2011, the Claimant lodged a claim against the Respondent in
front of FIFA indicating that he had not received his salary for the months of
October, November, December 2010 and January 2011. The player stated that,
on 7 January 2011, Club U, the Claimant and the Respondent agreed to
terminate the loan agreement prematurely, but stressed that the Respondent
had not settled its outstanding debts. Therefore, the Claimant requested to be
awarded with the amount of EUR 80,645, in accordance with the following
breakdown:
-
5.
EUR 25,000 plus 5% interest as from 1 November 2010;
EUR 25,000 plus 5% interest as from 1 December 2010;
EUR 25,000 plus 5% interest as from 1 January 2011;
EUR 5,645 plus 5% interest as from 8 January 2011. (corresponding to
the salary for the first 7 days of January 2011)
In reply to the claim, the Respondent first of all rejected the competence of
FIFA to deal with the matter, asserting that the contract is governed by
country R law, the regulations of the country R Football Federation and that
the “Committee for the Resolution of Disputes” of the country R Football
Federation is the only competent body. In this respect, the Respondent
referred to art. 26 of the Regulations concerning the Statute and Transfer of
Players of the country R Football Federation.
Player F, from country I / Club C, from country R
Page 2 of 13
6.
Having been requested by FIFA to provide the documentary evidence that
there exists an independent arbitration tribunal on national level, the
Respondent provided a copy of art. 43, 44, 45 and 59 to 62 of the country R
Football Federation “Articles of Incorporation and Regulations for 2010”, as
well as a copy of art. 25 to 41 of the 2010 edition of the country R Football
Federation. Furthermore, the Respondent provided a letter dated 6 December
2012 signed by the legal advisor of the country R Football Federation who
confirmed that the country R Football Federation NDRC and the country R
Football Federation Appeal Committee have been established in compliance
with FIFA Circular no. 1010 and the FIFA National Dispute Resolution Chamber
(NDRC) Standard Regulations.
7.
Art. 26.5 of the abovementioned regulations establishes the composition of
the country R Football Federation NDRC as follows: (i) a chairman and a deputy
chairman, chosen by the representatives of players and clubs from a list
prepared by the country R Football Federation Executive Committee; (ii) three
player representatives, suggested by the AANFP; and (iii) three club
representatives, suggested by the country R Football Federation Executive
Committee.
8.
Furthermore, art. 26.8 states that the competence for solving disputes and
cases involving only clubs that participate in the First League National
Championship, and their players, shall be determined exclusively by the
jurisdictional bodies of the country R Professional Football League, i.e. the
NDRC of the country R Professional Football League and the country R
Professional Football League Review Commission. The NDRC of the country R
Professional Football League and the country R Professional Football League
Review Commission shall be composed of 5 members, two acting as chairman
and deputy chairman, respectively. The nominal composition of the NDRC of
the country R Professional Football League L and the country R Professional
Football League Review Commission is approved by the country R Professional
Football League Executive Committee, for a one-year mandate. No further
information regarding the composition of the NDRC of the country R
Professional Football League or the country R Professional Football League
Review Commission is provided within the documents.
9.
Finally, the Respondent referred to the decision taken by the DRC on 16 July
2009 between a player and the club, by means of which the DRC recognised
that the NDRC of the country R Football Federation met the minimum
procedural standards between October 2008 and January 2009.
10.
In the alternative, the Respondent requested that country R law and the
regulations of the country R Football Federation are applied, herewith
Player F, from country I / Club C, from country R
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referring to several provisions in the contract that refer to country R law and
the regulations of the country R Football Federation.
11.
Furthermore, the Respondent pointed out that the parties had concluded a
“Termination Agreement” and that the legal effect of said agreement was
that the parties were released from all their financial obligations towards each
other, herewith referring to several articles of the country R Football
Federation Regulations. In this respect, the Respondent also referred to art. 3
of the “Termination Agreement” which stipulates that “this agreement is free
of charge; thus no financial fees whatsoever are implied by the parties”.
12.
Finally, the Respondent stated that the Claimant was sanctioned because he
refused to participate in a game of the UEFA Champions League on 8
December 2010 in country I. Therefore, the Claimant was sanctioned by the
Board of Directors of the club on 24 January 2011 with a penalty in the
amount of EUR 68,750, which, according to the Respondent, was in compliance
with art. 5.3 of the contract. The Respondent explained that such decision was
submitted for ratification to the Commission of Discipline of the country R
Professional Football League, for which the Claimant was summoned to be
heard, however he did not answer to the convocation. On 9 February 2011,
said commission ratified the decision and the decision became final and
binding. The Respondent outlined that since the Claimant had already
returned to country I, it had sent the relevant information and summons to
country I.
13.
Furthermore, the Respondent asserted that in March 2011 it paid the Claimant
the amount of EUR 11,895 and hence the total amount of EUR 80,645, as
requested by the Claimant, is no longer outstanding.
14.
In his replica, the Claimant emphasised that at no time he was informed that
proceedings had been initiated against him before the country R football
authorities. In any case, the Claimant stressed that the DRC is competent since
the contract directly provides for the right of the parties to recourse to FIFA
and the NDRC of the country R Football Federation does not comply with art.
22 lit. b) of the Regulations on the Status and Transfer of Players. In this
respect, the Claimant referred to the decision rendered by the Court of
Arbitration for Sport (CAS) in CAS 2010/A/2289 Club C v/ Player M, which, in
the Claimant’s view, confirmed that the NDRC of the country R Football
Federation does not comply with the required minimum standards to be
recognised.
15.
As to the disciplinary proceedings in country R, the Claimant pointed out that
severe violations of substantial and procedural rights have been committed by
both the Respondent as well as the relevant Disciplinary Committee. The
Player F, from country I / Club C, from country R
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Claimant stressed that the Respondent argued that he allegedly refused to
partake in a match on 8 December 2010 against the country I club, Club A,
however the contractual violations of the Respondent already started in
October 2010. The Claimant stated that during the match in question he was
sent to the stands as a punishment for having requested his overdue salaries.
Furthermore, the Claimant questions the way the proceedings were initiated;
only 1,5 months after the alleged violation, the Respondent started the
disciplinary proceedings and, at that time, the Claimant had already left the
Respondent. The Claimant alleged that he was never informed of any such
proceedings although the Respondent was aware of his contact details.
16.
As to the alleged refusal to partake in the match against Club A, the Claimant
asserted it was evident he wanted to play said game as he, in particular, joined
the Respondent to play in European competitions. Furthermore, he had joined
the Respondent because the trainer at that time was interested in his services,
however, the latter was dismissed on 13 September 2010 and the Claimant was
not considered by the new coach as a member of the team.
17.
In relation to art. 5.3 of the contract, the Claimant deemed that this provision
only covers situations where the Claimant was properly and officially fined by
the competent authorities.
18.
As to the “Termination Agreement”, the Claimant states that he was only a
signatory of the agreement and there is no corroboration that the Claimant
waived its entitlement to the outstanding payments. The Claimant underlined
that if the Respondent considered itself free of any contractual obligations as
from 7 January 2011, there would be no reason to initiate disciplinary
proceedings on 19 January 2011.
19.
In its duplica, the Respondent first argued that its right to be heard would be
violated, since i) FIFA refused to confirm whether a decision of the DRC
published on the website was the same one as referred to by the Claimant in
his replica, and ii) FIFA refused to ask the player and/or CAS to provide a copy
of the CAS decision referred to by the player in his replica.
20.
As to the competence, the Respondent outlined again in detail why FIFA is not
competent to hear the present matter arguing that the NDRC of the country R
Football Federation is competent and not the NDRC of the country R
Professional Football League. In particular, the Respondent states that:
i)
The NDRC of the country R Professional Football League is only
competent for “disputes among clubs participating in the country R
First Divisions as well as their player, i.e. players in an employment
relationship with such club as long as they still provide services, are still
Player F, from country I / Club C, from country R
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registered with such clubs and may participate for them. (…)
However, pursuant to art. 25 par. 5 all other disputes pursuant to art.
26. par. 2 shall be dealt with by the NDRC of the country R Football
Federation “bearing in mind that there is general competence for the
country R Football Federation Judicial Bodies as long as there is no
specific allocation of such competence”. The club argues that since, at
the time the dispute arose, the player was no longer playing for the
club, the competence of the NDRC of the country R Professional
Football League as per art. 26 par. 8 no longer existed and
consequently, the NDRC of the country R Football Federation is
competent;
21.
ii)
The NDRC of the country R Football Federation is duly constituted with
a four year renewable term;
iii)
The reference to FIFA in the arbitration clause is only made for the
sake of completeness and subordinate to the Judicial Bodies of the
country R Football Federation;
iv)
Highly in the alternative, the Club argues that also the NDRC of the
country R Professional Football League fully complies with the
principles of art. 22 lit. b) of the Regulations.
As to the substance, the Respondent reiterated its previous statements and
added the following:
i)
ii)
iii)
iv)
v)
vi)
Contrary to the allegations of the player, the player was considered
part of the team;
The club took all reasonable efforts to notify the player of the
opening of the disciplinary proceedings;
FIFA is not competent to review the proceedings leading to the
sanction of the player since the relevant decision became final and
binding;
The club had paid the further amount of EUR 11,895 to the player;
The player was sanctioned with 25% of the value of his contract in
accordance with art. 42 par. 6 lit. c) of the Disciplinary Regulations of
the country R Football Federation;
The player’s calculation for interest is incorrect; under the terms of the
contract the salary was only to be paid until the 25th of the next
month.
Player F, from country I / Club C, from country R
Page 6 of 13
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 15 February 2011. Consequently, the 2008 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the
matter at hand (cf. art. 21 of the 2008 and 2012 edition of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2012) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation which involves an country I
player and a country R club regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies alleging that the country R Football
Federation NDRC is the competent body to adjudicate on the present matter
or, alternatively, the country R Professional Football League NDRC.
5.
In particular, the Chamber duly noted that the Respondent deemed that the
country R Football Federation NDRC is the competent body asserting that, at
the time the dispute arose, the player was no longer playing for the
Respondent and, therefore, art. 26 par. 8 of the country R Football Federation
RSTP was no longer applicable. In this context, the Respondent asserted that
the country R Football Federation NDRC is duly constituted and complies with
the principles contained in art. 22 lit. b) of the Regulations on the Status and
Transfer of Players Equally, the Respondent argued that the competence of
FIFA was subordinate to the competence of the judicial bodies of the country R
Football Federation.
6.
In turn, the Chamber observed that the Claimant contested the competence of
the country R Football Federation NDRC and insisted that FIFA has jurisdiction
to deal with the present matter.
7.
Taking into account all the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and
Player F, from country I / Club C, from country R
Page 7 of 13
Transfer of Players it is competent to deal with a matter such as the one at
hand, unless an independent arbitration tribunal, guaranteeing fair
proceedings and respecting the principle of equal representation of players
and clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement. With regard to the
standards to be imposed on an independent arbitration tribunal guaranteeing
fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20
December 2005. Equally, the members of the Chamber referred to the
principles contained in the FIFA NDRC Standard Regulations, which came into
force on 1 January 2008.
8.
While analysing whether it was competent to decide on the matter, the
Chamber first referred to art. 12 par. 1 of the employment contract. Said
article stipulates that any dispute shall be submitted to either “the competent
bodies of the country R Football Federation” or to FIFA. Hence, the Chamber
observed that the arbitration clause in the contract in fact clearly referred to
the competence of FIFA to deal with any potential dispute between the
Claimant and the Respondent. In this respect, the Chamber could not follow
the Respondent’s interpretation that the competence of FIFA was merely
“subordinate” to the competence of the relevant country R arbitration bodies,
since art. 12 par. 1 does not specify any particular order or hierarchy. In view of
the foregoing, in particular considering that the parties had explicitly agreed
upon the possibility to submit potential disputes to FIFA, the Chamber decided
that it was competent to adjudicate on the present matter.
9. Nevertheless, for the sake of completeness, the DRC referred to the line of
argumentation of the Respondent which primarily indicated that the country R
Football Federation NDRC was the competent body to deal with the matter or,
alternatively, the country R Professional Football League NDRC.
10.
In this context, the Chamber went on to examine the documentation
presented by the Respondent and noted that the Respondent had provided a
copy of art. 43, 44, 45 and 59 to 62 of the country R Football Federation
“Articles of Incorporation and Regulations for 2010”, as well as a copy of art.
26 to 41 of the 2010 edition of the country R Football Federation RSTP.
11.
From the incomplete documentation provided by the Respondent, the
Chamber acknowledged that in accordance with art. 26 par. 8 of the country R
Football Federation RSTP the jurisdictional bodies of the country R Professional
Football League, i.e. the NDRC of the country R Professional Football League L
and the country R Professional Football League Review Commission, are the
competent bodies to adjudicate on disputes and cases involving only clubs that
participate in the First League National Championship, and their players. In this
framework, the Chamber acknowledged that the Respondent was, and is,
Player F, from country I / Club C, from country R
Page 8 of 13
playing in the First League National Championship. The allegations of the
Respondent that the country R Football Federation NDRC would be competent
instead of the country R Professional Football League NDRC since, at the time
the dispute arose, the player was no longer at the Respondent is, in the
Chamber’s view and after a careful examination of the relevant articles, not
supported by the wording of those articles. In this context, the Chamber feels
comforted in its conclusion by referring to the decision rendered on 9 February
2011 which was i) taken at the time the player was no longer at the club and,
ii) was taken by a body of the country R Professional Football League.
12.
As to the alternative petition of the Respondent that the country R
Professional Football League NDRC was competent, the DRC turned its
attention to the principle of equal representation of players and clubs and
underlined that this principle is one of the very fundamental elements to be
fulfilled, in order for a national dispute resolution chamber to be recognised as
such. Indeed, this prerequisite is mentioned in the Regulations on the Status
and Transfer of Players, in the FIFA Circular no. 1010 as well as in art. 3 par. 1
of the NDRC Regulations, which illustrates the aforementioned principle as
follows: “The NDRC shall be composed of the following members, who shall
serve a four-year renewable mandate: a) a chairman and a deputy chairman
chosen by consensus by the player and club representatives (…); b) between
three and ten player representatives who are elected or appointed either on
proposal of the players’ associations affiliated to FIFPro, or, where no such
associations exist, on the basis of a selection process agreed by FIFA and FIFPro;
c) between three and ten club representatives (…).” In this respect, the FIFA
Circular no. 1010 states the following: “The parties must have equal influence
over the appointment of arbitrators. This means for example that every party
shall have the right to appoint an arbitrator and the two appointed arbitrators
appoint the chairman of the arbitration tribunal (…). Where arbitrators are to
be selected from a predetermined list, every interest group that is represented
must be able to exercise equal influence over the compilation of the arbitrator
list”.
13.
In this context, the Chamber observed that as to the composition of the
country R Professional Football League NDRC, art. 26 par. 8 of merely indicates
that it is formed of five members, two of them acting as chairman and deputy
chairman, respectively. However, no further details are provided as to the
composition of the country R Professional Football League NDRC and therefore
the Chamber was unable to determine whether the country R Professional
Football League NDRC complies with the principle of equal representation
between players and clubs.
14.
In view of the above, the Chamber deemed that the Respondent had failed to
prove that the country R Professional Football League NDRC is indeed an
Player F, from country I / Club C, from country R
Page 9 of 13
independent arbitration tribunal guaranteeing fair proceedings and respecting
the principle of equal representation of players and clubs.
15.
On account of all the above, the Chamber established that the Respondent’s
objection towards the competence of FIFA to deal with the present matter has
to be rejected, and that the Dispute Resolution Chamber is competent, on the
basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players,
to consider the present matter as to the substance.
16.
Subsequently, and entering into the substance, the Chamber analysed which
edition of the Regulations on the Status and Transfer of Players should be
applicable as to the substance of the matter. In this respect, the Chamber
referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the
Status and Transfer of Players (editions 2010 and 2012) and, on the other hand,
to the fact that the present claim was lodged on 15 February 2011. The Dispute
Resolution Chamber concluded that, therefore, the 2010 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
17.
The competence of the Chamber and the applicable regulations having been
established, the Chamber acknowledged that, on 25 August 2010 and
following the conclusion of a loan agreement between the Respondent and
Club U, the Claimant and the Respondent had concluded an employment
contract valid as from 24 August 2010 until 30 June 2011, which was
prematurely terminated with the consent of all parties on 7 January 2011.
18.
The Chamber further observed that the Claimant lodged a claim in front of
FIFA against the Respondent seeking payment of the total amount of EUR
80,645, asserting that the Respondent had failed to pay him his salaries for the
months of October, November, December 2010 and part of January 2011.
19.
In continuation, the Chamber observed that the Respondent deemed that with
the conclusion of the “Termination Agreement”, the Claimant had waived his
financial entitlements towards the Respondent. After having thoroughly
analysed the “Termination Agreement”, the Chamber did not come to the
conclusion that by signing the relevant document, the Claimant had confirmed
that no further payments were due to him. The Chamber considered that the
“Termination Agreement” had primarily been concluded between the
Respondent and Club U to agree upon the premature termination of the loan
period and that the phrase “no financial fees whatsoever are implied by the
parties” could not be interpreted as if the Claimant had waived its entitlement
to his outstanding salaries. In fact, considering the content of the other articles
of the relevant agreement, in particular the preamble of the agreement which
only specified the Respondent and Club U as the parties to the agreement, the
Player F, from country I / Club C, from country R
Page 10 of 13
Chamber concluded that the specific phrase mentioned above solely applied to
any financial obligations due by the Respondent to Club U or vice versa.
20.
The Chamber then turned to the sanction imposed on the Claimant in the
amount of EUR 68,750. The Chamber decided to disregard said fine in the light
of its disproportionality and the sequence of events that had occurred. In this
regard, the Chamber outlined that it was troubled by the manner in which the
fine had been imposed on the Claimant. Allegedly, the Claimant had refused
to partake in a match against Club A on 8 December 2010, however, the
Respondent only sanctioned such behaviour approximately 1,5 months after
the alleged misbehaviour, at the time that the Claimant had already left the
club. Therefore, the Chamber deemed that a fine corresponding to almost
three monthly salaries is, taking into account all the circumstances of the
present matter, to be considered disproportional and excessive.
21.
On account of all the above, the members of the Chamber concurred that the
Respondent must fulfill its obligations as per employment contract up until the
date of termination of the contract in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the Chamber decided that
the Respondent is liable to pay to the Claimant the remuneration that was
outstanding at the time of the termination of the contract i.e. the amount of
EUR 80,645, corresponding to the salaries of October, November, December
2010 and part of January 2011. In this respect, the Chamber held that the
Respondent alleged that the amount of EUR 11,895 had been paid to the
Claimant in March 2011, an allegation that had not been contested by the
Claimant. In view of the foregoing, the Chamber decided that the amount of
EUR 11,895 should be deducted from the amount claimed by the Claimant.
22.
Consequently, the Chamber determined that the Respondent is liable to pay to
the Claimant the amount of EUR 68,750.
23.
As to the interest requested by the Claimant, the Chamber decided that the
Respondent has to pay 5% interest as from the 26th day of the next month
regarding the months of October and November and, regarding the remaining
amounts, as of the date the contractual relationship was terminated.
24.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player F, is admissible.
Player F, from country I / Club C, from country R
Page 11 of 13
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 68,750 plus 5%
interest as follows:
a. 5% p.a. on the amount of EUR 25,000 as of 26 November 2010 until the
date of effective payment;
b. 5% p.a. on the amount of EUR 25,000 as of 26 December 2010 until the
date of effective payment;
c. 5% p.a. on the amount of EUR 30,645 as of 8 January 2011 until 11 March
2011;
d. 5% p.a. on the amount of EUR 18,750 as of 12 March 2011 until the date
of effective payment.
4.
In the event that the above-mentioned amount plus interest is not paid within
the stated time limit, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
Player F, from country I / Club C, from country R
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e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player F, from country I / Club C, from country R
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