Labour Disputes
Texto da decisão
REF FPSD-5808
Decision of the
Dispute Resolution Chamber
passed on 23 June 2022
regarding an employment-related dispute concerning the player Antonio
Mrsic
COMPOSITION:
HENDEL, Clifford J. (USA & France), Deputy Chairperson
DE MEDINILLA, Gonzalo (Spain), Member
FLORES CHEMOR, Mario (Mexico), Member
CLAIMANT:
Antonio Mrsic, Croatia
Represented by Ercan Sevdimbaş
RESPONDENT:
Balikesirspor Kulübü Dernegi, Turkey
Represented by Turgut Ozgun and Korhan Armagan
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I.
Facts of the case
1.
On 8 August 2019, the Croatian player, Mr Antonio Mrsic (hereinafter: the player or the
Claimant), and the Turkish club, Balikesirspor Kulübü Dernegi (hereinafter: the club or the
Respondent), concluded an employment contract valid as from the date of signature until
31 May 2020 (hereinafter: the employment contract).
2.
In accordance with clause 3 of the employment contract, the club undertook to pay the
player the following amounts:
a. For the 2019/2020 season: guaranteed fee of EUR 100,000, payable as follows:
“On the Date of 30.08.2019 10.000-EURO
On the Date of 31.09.2019 10.000-EURO
On the Date of 30.10.2019 10.000-EURO
On the Date of 31.11.2019 10.000-EURO
On the Date of 31.12.2019 10.000-EURO
On the Date of 28.01.2020 10.000-EURO
On the Date of 31.02.2020 10.000-EURO
On the Date of 30.03.2020 10.000-EURO
On the Date of 31.04.2020 10.000-EURO
On the Date of 30.05.2020 10.000-EURO”
b. For the 2020/2021 season: guaranteed fee of EUR 130,000, payable as follows:
“On the Date of 30.08.2020 13.000-EURO
On the Date of 31.09.2020 13.000-EURO
On the Date of 30.10.2020 13.000-EURO
On the Date of 31.11.2020 13.000-EURO
On the Date of 31.12.2020 13.000-EURO
On the Date of 28.01.2021 13.000-EURO
On the Date of 31.02.2021 13.000-EURO
On the Date of 30.03.2021 13.000-EURO
On the Date of 31.04.2021 13.000-EURO
On the Date of 30.05.2021 13.000-EURO”
3.
Additionally, clause 9 of the employment contract read inter alia as follows: “the exclusive
authority to solve disagreement arising out of the agreement belongs to the Board for Solving
Disagreements. The parties shall only be able to apply to TFF Arbitration Board against the
decisions of Board for Solving Disagreements in the time allotted to them”.
4.
On 11 September 2020, the player and the club signed an amendment to the employment
contract in order inter alia to extend it until 31 May 2022 and to stipulate the
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remuneration due by the club to the player for the relevant period (hereinafter: the
Amendment).
5.
Pursuant to article 2 of the Amendment, the player would be entitled to the following
amounts:
a. For the 2020/2021 season: guaranteed fee of EUR 130,000 net, payable as follows:
•
•
•
•
•
•
•
•
•
•
EUR 13,000 on 30 August 2020;
EUR 13,000 on 30 September 2020;
EUR 13,000 on 30 October 2020;
EUR 13,000 on 30 November 2020;
EUR 13,000 on 30 December 2020;
EUR 13,000 on 30 January 2021;
EUR 13,000 on 30 February 2021;
EUR 13,000 on 30 March 2021;
EUR 13,000 on 30 April 2021; and
EUR 13,000 on 30 May 2021.
b. For the 2021/2022 season: guaranteed fee of EUR 130,000 net, payable as follows:
•
•
•
•
•
•
•
•
•
•
EUR 13,000 on 30 August 2021;
EUR 13,000 on 30 September 2021;
EUR 13,000 on 30 October 2021;
EUR 13,000 on 30 November 2021;
EUR 13,000 on 30 December 2021;
EUR 13,000 on 30 January 2022;
EUR 13,000 on 30 February 2022;
EUR 13,000 on 30 March 2022;
EUR 13,000 on 30 April 2022; and
EUR 13,000 on 30 May 2022.
6.
On 20 July 2021, the player put the club in default and requested payment of EUR 198,000
as outstanding salaries within the following 15 days.
7.
On 28 July 2021, the parties entered into a “cancellation” of the employment contract
(hereinafter: the termination agreement) with, inter alia, the following content (quoted
verbatim):
“CONTRACT DATES ABOUT RECIPROCAL CAMCELLATION BETWEEN 08/08/2019-31/05/2022
AND PROFESSIONAL FOOTBALLER CONTRACT BETRWEEN FOOTBALLER AND OUR CLUB
CANCELATION TOPIC.
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WE WHO CANCEL, APPROVED BY THE TURKISH FOOTBALL FEDERATION ABOVE CONTRACT
SIGNATURE DATE, TFF APPROVAL DATE CONTRACT DATES WRITTEN TFF PROFESSIONEL
FOOTBALLER CONTRACT AND MODIFICATION CONTRACT TO CANCEL, BETWEEN CLUB AND
FOOTBALLER BEFORE CANCELLATION DATE ABOUT 2019-2020 AND 2020-2021 THAT THE
FOOTBALLER HAS A SALARY OF 2.000.000 TO RECEIVE FROM CLUB AS OF CONTRACT 1.200.000
TL HAS BEEN PAID AND WAIVED FROM REMAINING 800.000 TL BECAUSE OIF THIS REASON
BETWEEN BALIKESIRSPOR AND ANTONIO MRSIC PROFESSIONEL BFOOTBALLAR CONTRACT AS
OF DATE AND RECEIPT OF MODIFICATION CONTRACTS OVER 1.200.000 TL BOTH SIDES ACCEPT
TO AGREE AS DEBT/RECEIPT. WITHIN THIS CANCELLATION 1.200.000 TL TO MAKE AS RECEIPT
ABOVE EXCEPT THIS AMOUNT CONTRACT TO TALK ABOUT, BECAUSE OF THAT ANOTHER MONEY
EXCEPT FOR AMOUNT TALKED ABOUT BY TFF, FIFA, EUFA, CAS WILL NOT BE OBJECTED, WE WILL
NOT DEMAND ANYTHING EXCEPT FOR AMOUNT TALKED ABOUT ABOVE, IRREVOCABLE BY
DECLARING AND BECAUSE OF OUR IRGHTS AND RECEIPTS STEMMING FROM CONTRACT ABOVE
WE FULLY ACQUIT.
NOTE: TALKED ABOUT 1.200.000 TL WILL VE DELIVERED TO FOOTBALLER IN 3 PIECIES OF
CHEQUES ON THE DAY OF CANCELLATION”.
8.
On 4 August 2021, the player sent the club a termination notice, in quoted verbatim:
“On 28 July 2021, the parties become together and signed a mutual termination agreement.
Until today notified party couldn’t prepared the signature verification paper from notary and
this mutual termination agreement couldn’t be send to Turkish Football Federation. This
situation is blocking our clients football career and unacceptable.
We would respectfully talked on the phone to solve this problem but your club cannot give a
spesific time to prepare signature verification, because of this reason we terminate the
Professional Football Player Agreements dated 28 August 2019 between 31 May 2020 and 01
June 2020 between 31 May 2022 signed by the client football player with just cause”.
9.
On 9 August 2021, the player entered into a new employment agreement with the Turkish
club, Ümraniyespor Kulübü Dernegi valid as from the date of signature until 31 May 2022.
Accordingly, the player would be entitled to a fixed remuneration of EUR 90,000.
10. In accordance with the information provided by the Turkish Football Federation (TFF), the
player remained registered with the club from 28 August 2019 until 5 August 2021.
II. Proceedings before FIFA
11. On 20 April 2022, the player 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. Claim of the player
12. In accordance with the player, the club failed to pay part of his remuneration as per the
employment contract and the Amendment.
13. As a consequence, the player claimed to be entitled to EUR 198,000 net, broken down as
follows:
a. EUR 8,000 plus 5% interest p.a. as from 31 November 2019;
b. EUR 10,000 plus 5% interest p.a. as from 31 December 2019;
c. EUR 10,000 plus 5% interest p.a. as from 30 January 2020;
d. EUR 10,000 plus 5% interest p.a. as from 28 February 2020;
e. EUR 10,000 plus 5% interest p.a. as from 31 March 2020;
f. EUR 10,000 plus 5% interest p.a. as from 30 April 2020;
g. EUR 10,000 plus 5% interest p.a. as from 31 May 2020;
h. EUR 13,000 plus 5% interest p.a. as from 31 August 2020;
i. EUR 13,000 plus 5% interest p.a. as from 30 September 2020;
j. EUR 13,000 plus 5% interest p.a. as from 31 October 2020;
k. EUR 13,000 plus 5% interest p.a. as from 30 November 2020;
l. EUR 13,000 plus 5% interest p.a. as from 31 December 2020;
m. EUR 13,000 plus 5% interest p.a. as from 31 January 2021;
n. EUR 13,000 plus 5% interest p.a. as from 28 February 2021;
o. EUR 13,000 plus 5% interest p.a. as from 31 March 2021;
p. EUR 13,000 plus 5% interest p.a. as from 30 April 2021; and
q. EUR 13,000 plus 5% interest p.a. as from 31 May 2021.
b. Reply of the club
14. The club challenged FIFA’s jurisdiction to adjudicate on this dispute based on the wording
of clause 9 of the employment contract. According, it claimed that the Turkish National
Dispute Resolution Chamber (hereinafter: the Turkish NDRC) should be the one competent
to entertain the substance of the matter.
15. As to the substance, the club pointed out that the parties signed a termination agreement
on 28 July 2021. In this respect, the club argued that the player would only entitled to TRY
2,000,000 (approx. EUR 126,000), but agreed to waive part of the remuneration and
receive the final sum of TRY 1,200,000 (approx. EUR 75,800). Moreover, the club
maintained that said amounts had already been delivered to the player via cheques –
some of them with the due dates after the claim was lodged.
16. In light of the above, the club concluded that it “does not have any debt to the claimant”.
Therefore, it claimed that the claim should be entirely rejected.
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c. Rejoinder of the player
17. In his rejoinder, the player opposed the club’s allegations as to the inadmissibility of the
claim. He referred to the internal regulations of the TFF and concluded that FIFA DRC is
indeed competent to enter into the substance of the dispute at stake.
18. As to the substance, the player confirmed the signature of the termination agreement,
however argued that the club has never registered said termination before the TFF,
forcing him to unilaterally terminate the employment contract on 4 August 2021. In
particular, the player wrote as follows: “[the club] acted maliciously with [the termination
agreement] that it has never been presented on time to the Turkish Football Federation. This
incorrect and unfaithful act of [the club] has left [the player] in a difficult situation that he is
forced to terminate unilaterally with just cause the Contract undersigned between the Parties
with a Termination Notice dated 04 August 2021 […]”.
19. Based on the above, the player held that the termination agreement “has no legal
admissibility and applicability”. Furthermore, “two of the three cheques that [the club] has
presented are unrequited and unpaid” (i.e. total amount of TRY 800,000).
20. Therefore, the player reiterated his requests for relief.
d. Final comments of the club
21. In its final comments, the club insisted of the jurisdiction of the Turkish NDRC to hear the
case at stake.
22. As to the substance, the club argued that the registration of the termination agreement
before the TFF “would not affect the validity of the contract according to the Turkish and Swiss
Law”. Likewise, the club highlighted that the player accepted the cheques and “if the
cheques are unrequited or unpaid [the player] had the right to follow debt collection
procedures even criminal proceedings against the cheque owner under Turkish Law”.
23. In conclusion, the club pointed out that the player was acting in bad faith and requested
the claim to be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. 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 20 April 2022 and submitted
for decision on 23 June 2022. Taking into account the wording of art. 34 of the June 2022
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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.
25. 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, par.
1 lit. b) of the Regulations on the Status and Transfer of Players (RSTP) (June 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 Croatian player and a Turkish club.
26. At this point, the Chamber acknowledged that the club contested the competence of
FIFA’s deciding bodies in favour of the Turkish NDRC alleging that the latter is competent
to deal with any disputes deriving from the employment contract and the Amendment, in
accordance with its clause 9.
27. In this respect, the DRC recalled that in accordance with the abovementioned art. 22 par.
1, lit. b) of the RSTP, FIFA is, in principle, competent to hear an employment-related
dispute between a club and a player of an international dimension. Nevertheless, 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.
28. In addition to the above, the Chamber recalled that any such arbitration clause 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 DRC referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January
2008.
29. As a consequence, the Chamber considered that the club failed to provide any
documentary evidence which could prove that the national arbitration bodies of the TFF
meet the requirements established in art. 22 par. 1 lit. b) of the RSTP, detailed in the FIFA
Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations. On account of the
above, and referring to the principle of burden of proof contained in art. 13 par. 5 of the
Procedural Rules, the Chamber decided that the club’s objection towards its competence
to deal with the present matter should be rejected.
30. Notwithstanding the above, the members of the DRC furthermore deemed essential to
refer to art. 23 par. 3 of the RSTP, which stipulates that the decision-making bodies of FIFA
shall not hear any dispute if more than two years have elapsed since the facts leading to
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the dispute arose. The application of this time limit shall be examined ex officio in each
individual case.
31. In this context, the Chamber recalled that the present claim was lodged in front of FIFA
on 20 April 2022. Therefore, in line with art. 23 par. 3 of the RSTP, any amounts fallen due
before 20 April 2020 are affected by the statute of limitations.
32. Consequently, the DRC concluded that the player’s request is partially time-barred,
insofar as it refers to his remuneration due until 31 March 2020. The Chamber then
decided that this specific part of the player’s claim should be considered inadmissible.
33. Finally, 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 (June 2022 edition), and considering
that the present claim was lodged on 20 April 2022, the March 2022 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
34. 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 Transfer Matching System (TMS).
c. Merits of the dispute
35. 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
36. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that this the case at hand pertains to a claim for outstanding
remuneration in connection with the employment contract and its Amendment signed
between the player and club.
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37. In particular, the player claims to be entitled to EUR 198,000 net, corresponding to his
outstanding salaries from November 2019 until May 2021 (part of which was already
considered time-barred by the Chamber). In this respect, the player challenged the
validity of the termination agreement concluded on 28 July 2021. The club, on the other
hand, pointed out to the same termination agreement, and argued that the entire debt
was properly fulfilled.
38. In this context, the DRC deemed that it was its task to establish the following:
a. Was the termination agreement validly executed between the parties?
b. What are the consequences that follow?
39. The Chamber moved then to the analysis of each matter.
a. Was the termination agreement validly executed between the parties?
40. First and foremost, the DRC observed that both the club and the player confirmed having
signed the termination agreement dated 28 July 2021. In particular, the DRC underlined
that the player did not specifically dispute the signature of such document, however
challenged its validity based on the fact that the termination was not properly
communicated to the TFF.
41. Against this background, the members of the DRC found it essential that, in accordance
with the long-standing jurisprudence of the DRC, the validity of a contract cannot be made
conditional upon the execution of administrative formalities, such as, but not limited to,
the registration (or deregistration) procedure in connection with the international
transfer of a player, which are of the sole responsibility of a club, and upon which a player
has no influence.
42. With the above in mind, the DRC was comforted with the conclusion that the termination
agreement was properly executed between the parties, hence that their employment
relationship was in fact terminated on 28 July 2021. As a consequence, the Chamber
decided that the termination notice sent by the player was moot because the
employment contract had already been already terminated by mutual consent.
b. What are the consequences that follow?
43. Notwithstanding the above, the DRC observed that by signing the termination agreement:
(i) the club owed the player the total amount of TRY 2,000,000; and (ii) the player expressly
waived a significant part of his outstanding remuneration (i.e. TRY 800,000).
44. In that regard, the majority of the DRC recalled that the first conclusion that follows from
the jurisprudence of the Court of Arbitration for Sport (CAS) is that waiving of salary for
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work already performed cannot be validly made (cf. CAS 2020/A/6727 and 2016/A/4582),
to which the majority of the Chamber adheres.
45. In casu, the majority of the Chamber considered that the player could not have validly
waived his outstanding remuneration particularly, given that the termination agreement
provides no reason for which such waiver was made. Indeed, the Chamber was of the
opinion that there may be cases in which a waiver of remuneration could be considered,
subject to the Player being granted an equivalent consideration in exchange of such
waiver, which in casu cannot be established. As such, the majority of the DRC determined
that – even with the signature of the termination agreement – the club should still be
liable to pay the player his remuneration for the work already performed amounting to
TRY 2,000,000.
46. At this point, the majority of the Chamber was observant that the player acknowledged
receipt of TRY 400,000, and mentioned that the two other cheques issued by the club
could not be cashed. Moreover, the majority of the DRC was also mindful that the player
submitted banking documentation in support of his argumentation, whereas the club did
not advance any further evidence to demonstrate that the payments were indeed
performed.
47. Therefore, the majority of the Chamber decided that the club’s position on this matter
should be set aside.
48. It follows from the above that – in line with the general legal principle of pacta sunt
servanda – the player should be entitled to receive the total of TRY 1,600,000 as
outstanding remuneration (i.e. TRY 2,000,000 minus TRY 400,000).
49. Furthermore, taking into consideration the player’s requests for relief and the wellestablished jurisprudence of the DRC on the matter, the latter decided to award him 5%
interest p.a. as from the date of the termination agreement (i.e. 28 July 2021) until the
date of the effective payment.
50. For the sake of completeness, the Chamber found it noteworthy that the parties did not
advance a breakdown of the debt set out in the termination agreement, rather stipulated
the full debt. Consequently, the DRC established that the financial duties therein
established are not time-barred.
ii. Compliance with monetary decisions
51. 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.
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52. 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.
53. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the player, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
54. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
55. 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
56. 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.
57. 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.
58. Lastly, the DRC 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, Antonio Mrsic, is partially accepted insofar it is admissible.
2.
The Respondent, Balikesirspor Kulübü Dernegi, has to pay to the Claimant, the following
amount:
- TRY 1,600,000 as outstanding remuneration plus 5% interest p.a. as from 28 July 2021
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 the ban
shall be of 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 article 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).
CONTACT INFORMATION
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