Labour Disputes
Texto da decisão
REF. FPSD-8456
Decision of the
Dispute Resolution Chamber
passed on 12 April 2023
regarding an employment-related dispute concerning
the player Illia Markovskyi
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Sihon Gauci (Malta), member
André dos Santos Megale (Brazil), member
CLAIMANT:
Player Illia Markovskyi, Ukraine
Represented by Shkrebets & Partners
RESPONDENT:
Hapoel Haifa, Israel
Represented by Nir Inbar
pg. 2
REF. FPSD-8456
I. Facts of the case
1.
On 31 May 2022, the Ukrainian/Israeli player Illia Markovskyi (hereinafter the Claimant or
the player) was sent a Pre-Contract from the Israeli club Hapoel Haifa (hereinafter the
Respondent or the club) for the season 2022/2023 with an option to extend for one
additional season.
2.
On 28 June 2022, the Claimant and the Respondent (jointly referred to as the parties) signed
a document called “Appendix to the budget control agreement” (hereinafter the Appendix),
establishing the following:
“In addition to all the provisions set in the budget control agreement, the Player Iiliya
Markovsky passport no FB005467- citizen of Ukraine (hereinafter: the Player) and the Club
Hapoel Haifa (hereinafter: the Club) have agreed as follow.
The player will play for the Hapoel Haifa football club in the 2022/23 and The team have
Contract option for one more season (2023124).
For Season 2022/23
Salary and benefits
1) The Club undertakes to pay to the Player 10 monthly salaries from August 2022 until
May 2023, each in the amount of 37,837 NIS gross.
3) The club will provide the Player with accommodation as usual at the club, free of charge.
4) The club will put at the Players disposal a car as usual at the club, free of charge+ 1,000 NIS
for gas.
5) The club will provide the Player with round trip flight ticket.
6) bonus point- Bonus of 1,361 NIS for each point in the league games in which the player will
participate (maximum 50 point).
In case the player was on the team roster and did not participate in the game or the player
was not on the team roster at all - the player will not receive a bonus for the points of that
game.
Bonuses
1) qualifies to the championship playoff: then the Club shall pay to-the Player bonus of 40,835
NIS gross.
The bonus will be paid in installments from the 2023-2024 season budget.” (emphasis added)
3.
On 30 June 2022, the Parties signed a “PLAYER AGREEMENT FORM FOR THE SEASON
OF 2022/23” (hereinafter the Employment Agreement).
4.
The nationality of the player was not mentioned in the said Employment Agreement, yet
the document referred to the following I.D./passport of the player: 345400394. Based on
further evidence on file, this is the player’s Israeli I.D. card.
pg. 3
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5.
In Clauses 5 and 6 of the Employment Agreement concerning the duration of the
agreement as well as the financial stipulations, the Parties remarked “See attached
Appendix”.
6.
In Clause 7 of the Employment Agreement stipulated the following:
“7. Arbitration
a. The parties hereby agree that differences of opinion between the Club and player or
between the Player and the Club, in everything relating to the provisions of this Agreement,
shall be decided by an arbitrator, who will be appointed by virtue of the of the Association's
Arbitration Institute Codex.
b. The arbitration will be held in accordance with the directives of the Association's Arbitration
Institute Codex.”
7.
It shall be noted that there is no corresponding transfer instruction in the Transfer
Matching System (TMS), i.e. it appears that the player was never duly registered with the
club.
8.
It is undisputed that the player got injured during the Summer, around 6 or 7 July 2022.
9.
The Claimant asserted that in August 2022, he continued a recovery process and that since
mid-August 2022 he trained individually with the physiotherapist as well as participated in
a training with the B-team.
10. On 2 September 2022, the Respondent sent the following letter to the Claimant:
“We regret to inform you that we are considering the termination of your employment as a
result of your misleading conduct, and the fact that you did not give us accurate information
about your medical condition including stress fractures wich costs us enormous damage, and
about the fact that you did not play for half a year.
You are invited to a hearing meeting which will take place at:
Bar Kochba 23, Bnei Brak (VTOWER building)
Dated – 6/09/22- 10:00 a.m
And you shall have the opportunity to argue against the termination.
The hearing will be held in the English language and will be recorded.
You can be accompanied by a lawyer and if you choose to do so, please let us know in
advance.”
11. On 5 September 2022, the Claimant replied that he duly fulfilled his treatment since his
injury and that any termination of the contract would be in violations of the FIFA
Regulations. Finally, the player added the following allegations:
“(…) Unfortunately, on 1 August 2022, the Club's coach has informed the Player that he does
not need him due to his medical conditions and asked to find a solution with the Club in terms
of termination of the Contract. Since that time, the Player have been informed that the Club
engaged in an intimidating campaign and induced the Player to terminate the Contract.
pg. 4
REF. FPSD-8456
Namely, the Club refused to register the Player with the Israel Football Association for the
Season 2022/2023, which effectively prevents the Player from performance from September
to December 2022 inclusively, at minimum. Further, the Club refused to include the Player
into the joint photo session as well as treated unequally to other players. Notably, the Player
has not been paid his salary for one month, which is a separate serious breach of the
Contract. This culminated on 2 September 2022, when the Club notified the Player about an
intention to unilaterally terminate the Contract and invited to the hearing scheduled for
6 September 2022 under a pretense that the Player allegedly concealed information about
his medical condition. 2 This is a. nonsensical and apparently is an attempt to avoid
fulfillment of the obligations under the Contract. (…)”
12. On 6 September 2022, the Respondent terminated the Employment Agreement as the
player “did not show up” in the respective meeting, provided “no explanation” regarding
his medical condition nor to the alleged “misleading conduct” of the club.
13. On 27 December 2022, the Claimant signed a new employment agreement (hereinafter the
New Employment Agreement) with the Estonian club, FC Levadia, valid as from
15 December 2022 until 15 December 2023.
14. In accordance with Clause 5 of the New Employment Agreement, the player is entitled to a
monthly remuneration of EUR 3,000.
II. Proceedings before FIFA
15. On 1 December 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
16. The requests for relief of the Claimant were the following:
“(1). Adjudge and declare that the Respondent has seriously breached the Contract during
the Protected period;
(2). Adjudge and declare that the Respondent has unilaterally terminated the Contract
without just cause;
(3). Oblige the Respondent to pay compensation of NIS 380,370 (three hundred eighty
thousand three hundred seventy NIS);
(4). Oblige the Respondent to pay the default interest at the rate of 5% p.a. over the
amount of awarded compensation starting from 06 September 2022 as of the time of
actual payment;
(5). Impose a sporting sanction on the Respondent of a ban from registering any new
players, either nationally or internationally, for two entire and consecutive registration
periods;
(6). To order the Respondent jointly and severally to pay the full costs of the Claimant.
pg. 5
REF. FPSD-8456
17. The Claimant argued that following his injury, he duly followed the instructions of the club.
Nonetheless, that as of 1 August 2023, the approach of the club has changed and that it
wished to terminate the contract as “it appears that the Club’s actions [were] an attempt to
get rid of the roster of a foreign player, which did not have an opportunity to undergo midseason preparation.”
18. The Claimant asserted that the termination on 6 September 2022 was without just cause
as “the injury and illness of the Player sustained by the Player after signing the Contract cannot
per se serve as a ground for termination” and shall bear the financial consequences thereof.
19. The player provided for the following calculation of the compensation: “In light of para. 1 of
the Annex to the Contract, the Player would have earned 8 monthly salaries, totalling to
NIS 302,696 (three hundred two thousand six hundred ninety-six NIS), as well as outstanding
payment for two months, August and September 2022, owned by the Club, in the amount
NIS 75,674 (seventy-five thousand six hundred seventy four NIS), as well as NIS 2,000 (two
thousand NIS) as payment for gas, which comprises the amount of fair compensation.”
b. Position of the Respondent
20. The Respondent argued that “FIFA does not have jurisdiction to hear this case due to the lack
of international dimension in the dispute but a national dimension dispute and the fact the
parties agreed that all disputes in relation with the Agreement will be decided by the IFACA. This
claim must therefore be declared inadmissible.
21. In the alternative, the claim must be dismissed in full because the Respondent acted in good
faith and terminated the agreement with just cause and according to RSTP.”
22. The Respondent argued that this is a national dispute since it involves a “an Israeli football
club and a professional football player who signed an employment contract as an Israeli citizen,
using an Israeli ID.
23. Furthermore, the Respondent asserted that, “the parties agreed to bring any legal dispute
related to their employment relationship to the Israeli Football Association's court of
arbitration.”
24. In case the DRC would enter into the merits of the dispute, the Respondent argued that
based on the medical evidence on file, the Claimant “suffered from and was aware of a
chronic injury and incapability to perform sporting services”, which “stood in the core and
fundamental basics of the Agreement – Under such circumstances were a player is aware of his
incapability to provide football services upon signing a contract and hides such fact , clearly
justifies the termination of a contract by the injured club.”
25. Finally, the Respondent requested “the honorable DRC must deduct a sum of 3,000 NIS, due
to the speeding ticket the respondent had to pay on behalf of the claimant.”
pg. 6
REF. FPSD-8456
c. Comments of the Claimant
26. The Claimant did not dispute his double-nationality, i.e. Ukrainian and Israeli, nonetheless,
he argued that his “sportive nationality” should be relevant in the matter at hand, i.e. his
registration in the national association.
27. In this respect, he pointed out that he “has always been registered as a Ukrainian football
Player. He played in various national associations, where the latest before the transfer to the
Respondent, was the Greece association as a Ukrainian player.”
28. What is more, the Claimant argued that the Appendix explicitly mentions his Ukrainian
passport and that the relevant transfer instruction in TMS confirms it.
29. In view of the above, the Claimant argued that the Claim is “admissible”.
30. Concerning the Respondent’s arguments concerning the jurisdiction clause, the Claimant
argued that (i) Clause 7 is not exclusive; (ii) what is more, that “the Respondent did not provide
evidence that IF ACA arbitration comprises an independent arbitration tribunal that guarantees
fair proceedings and respect the principle of equal representation of players and clubs as
required by Article 22 of the FIFA RSTP.”
31. The Claimant consequently reiterated his initial request for relief.
d. Comments of the Israel Football Federation
32. The Israel Football Federation was requested to inform the FIFA general secretariat under
which nationality was the Claimant registered with the Respondent.
33. In this respect, the Israel Football Federation provided with the following information:
“According to our registration records, our affiliated club, Hapoel Haifa FC (the "Club"),
contacted the IFA to receive information regarding the registration of the Player. However, the
Player did not register in the Club.”
e. Information in the Transfer Matching System
34. It shall be recalled that based on the information in the TMS, the player was never duly
registered with the Respondent.
35. What is more, based on the player’s ID in the TMS, the latter has a Ukrainian nationality.
pg. 7
REF. FPSD-8456
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
36. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 1 December 2022 and
submitted for decision on 12 April 2023. Taking into account the wording of art. 34 of the
March 2023 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.
37. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022 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
player from Ukraine and a club from Israel.
38. Nonetheless, the Chamber recalled that the Respondent argued that the FIFA does not
have competence due to the lack of international dimension, i.e. the player being from
Israel, as well as due to a jurisdiction clause in the Employment Agreement.
39. Concerning the nationality of the player, the members of the DRC pointed out to the FIFA
Commentary, which reads as follows: “If the player holds dual nationality, and if one of their
nationalities is that of the country in which the club is based, then the dispute will only be
deemed to have an international dimension (and, by extension be within FIFA competence) if the
player is registered by their club to participate in the relevant championship under their other
nationality (i.e a Brazilian/Italian player participating for a Brazilian club is registered to
participate as an Italian).”
40. In this respect, the Chamber than recalled that the Claimant was never properly registered
with the Respondent, which was confirmed by the Israel Football Federation as well as in
the instructions in TMS. Furthermore, the DRC highlighted that the Employment Agreement
and the Appendix are not unified as to the nationality of the player. Finally, the Chamber
added that the TMS I.D. of the player also never mentions player’s Israeli nationality.
41. In view of the above and based on the evidence on file, the DRC concluded that this is a
matter of international dimension.
42. Furthermore, the Chamber turned its attention to the jurisdiction clause provided in
Clause 7 of the Employment Agreement and the alleged to the competence of a different
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deciding body. In this respect, the Chamber highlighted the Respondent failed to provide
the Regulatory framework to establish the compliance of the said body with Circular 1010.
43. In view of the above, the DRC concluded that FIFA has jurisdiction to decide on the matter
(art. 22 par. 1 lit. b) of the Regulations).
44. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (March 2023 edition), and
considering that the present claim was lodged on 1 December 2022, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
45. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the TMS.
c. Merits of the dispute
46. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
47. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that this is a claim of a player against a club concerning a termination
of a contract.
48. The DRC took note of the arguments of the parties, in particular that the player asserted
that the club terminated the contract without just cause on 6 September 2022 due to the
medical condition of the player. On the other hand, the club argued that it was misled by
the player about his medical condition from the beginning and that this justified the
termination by the club.
pg. 9
REF. FPSD-8456
49. As to any alleged error in the Employment Agreement as asserted by the Respondent, the
Chamber was of the opinion that by invoking a contractual right to terminate the said
Agreement on 6 September 2022, based on the alleged breaches, the Respondent actually
ratified the Agreement and is therefore precluded from avoiding the Agreement based on
fundamental error and/or fraudulent misrepresentation.
50. On the basis of the evidence before it, it is also clear that the medical reports were available
to the Respondent already on 10 July 2022, i.e. the Respondent was aware of the relevant
facts based on which it alleges the purported error and deceit at the time it terminated the
contract.
51. In this context, the Chamber recalled its long-standing jurisprudence, according to which
only a breach or misconduct which is of a certain severity justifies the termination of a
contract without prior warning. In other words, only when there are objective criteria which
do not reasonably permit to expect the continuation of the employment relationship
between the parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken in order for an employer to assure the employee’s
fulfilment of his contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only be an
ultima ratio.
52. In view of the above, the DRC concluded that the Respondent terminated the Employment
Agreement without just cause as the medical condition of the player does not give the
Respondent just cause to terminate the contract, which goes in hand with art. 18 par. 4 of
the Regulations.
ii. Consequences
53. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
54. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to the salary of
August 2022 under the contract, amounting to NIS 38,837.
55. In this respect, and for completion only, the Chamber wished to clarify that as the
Respondent failed to provide any evidence that it made the payment of NIS 3,000 for the
speeding ticket on behalf of the player, no reduction shall apply on the awarded amounts.
56. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination,
i.e. NIS 38,837 (i.e. NIS 37,837 and NIS 1,000 for the “gas expenses”).
pg. 10
REF. FPSD-8456
57. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from 6 December 2022 until the date of effective
payment.
58. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
59. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
60. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
61. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of NIS 341,533 (i.e. NIS 37,837 (NIS 37,837 x 9) plus NIS 1,000,
corresponding to the rest of the gas expenses that were requested) serves as the basis for
the determination of the amount of compensation for breach of contract.
62. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
pg. 11
REF. FPSD-8456
63. Indeed, the player found employment with FC Levadia. In accordance with the pertinent
employment contract, the player was entitled to approximately EUR 3,000 per month.
Therefore, the Chamber concluded that – during the overlapping period, the player
mitigated his damages in the total amount of EUR 16,500, that is, 5.5 times EUR 3,000). This
corresponds to NIS 55,590.8.
64. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of NIS 285,942.2 to the player (i.e. NIS 341,533 MINUS NIS 55,590.8), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
65. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 6 September 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
66. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
67. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
68. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
69. 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.
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REF. FPSD-8456
70. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
71. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
72. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
73. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 13
REF. FPSD-8456
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Illia Markovskyi.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Hapoel Haifa, must pay to the Claimant the following amount(s):
- NIS 38,837 as outstanding remuneration plus 5% interest p.a. as from
6 September 2022 until the date of effective payment;
- NIS 285,942.2 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 6 September 2022 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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