FIFA - Decisión disputa Dal Toe Busanello 22112023

REF. FPSD-11970

Decision of the Dispute Resolution Chamber passed on 22 November 2023 regarding an employment-related dispute concerning the player Gabriel Dal Toe Busanello BY: Frans DE WEGER (The Netherlands) , Chairperson Calum BEATTIE (Scotland), member Johan VAN GAALEN (South Africa), member

CLAIMANT:

Gabriel Dal Toe Busanello, Brazil Represented by Breno Costa Ramos Tannuri

RESPONDENT:

SC Dnipro, Ukraine pg. 2

REF. FPSD-11970

I. Facts of the case

1. On 14 February 2022, the Brazilian player, Gabriel Dal Toe Busanello (hereinafter: Claimant or player) and the Ukrainian club, SC Dnipro (hereinafter: club or Respondent) concluded a first employment contract (hereinafter: first contract) valid as from 14 February 2022 until 31 December 2022. The player was on loan from the Brazilian club, Chapecoense.

2. According to the first contract, the Respondent undertook to pay the Claimant a monthly salary of Ukrainian Hryvnia (UAH) 120,000 (approx. USD 4,000).

3. The additional agreement to the first contract establishes:

4. On 24 March 2022, the player, the club and Chapecoense agreed to terminate said loan in light of the Russian invasion in Ukraine.

5. According to the player, on 28 June 2022, the player and the club concluded an “additional agreement”, according to which the first employment contract would be “resumed”.

6. On 6 July 2022, Chapecoense, the player and the club agreed upon a new loan deal as of 6

July 2022 until 31 December 2022.

7. On 6 July 2022, the club concluded a new employment contract (hereinafter: second

contract) valid as from 6 July 2022 until 31 December 2022.

8. According to the second contract, the Respondent undertook to pay the Claimant a monthly salary of Ukrainian Hryvnia (UAH) 120,000 (approx. USD 4,000). pg. 3

REF. FPSD-11970

9. On an unknown date, the alleged “General Manager”, Mr Andrey Rusol, confirmed to the

player in a WhatsApp conversation:

II. Proceedings before FIFA

10. On 28 September 2023, 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

11. In his claim, the Claimant requested payment of the following monies: - USD 12,000 as outstanding salary of November 2022, plus 5% interest p.a. as of 1

December 2022; - USD 12,000 as outstanding salary of December 2022, plus 5% interest p.a. as of 1 January 2023; - USD 21,500 as outstanding bonuses, plus 5% interest p.a. as of 1 February 2023.

12. In this context, the player argued that the club did not provide the player with the signed version of the additional agreement concluded on 28 June 2022. pg. 4

REF. FPSD-11970

13. Moreover, the player held that the statistics confirm that the player was contractually bound to the club during the claimed period and that the General Manager of the club acknowledged the debt in a WhatsApp conversation.

14. The player held that the club only remitted USD 6,000 for his salaries in November and December 2022, and that therefore USD 24,000 remained outstanding.

15. Further, he argued that he is entitled to bonuses for 5 assists (5x USD 1,000), 7 victories in the starting eleven (7x USD 1,500) and 12 matches in the starting eleven (12x USD 500).

b. Position of the Respondent

16. The Respondent failed to reply to the claim. pg. 5

REF. FPSD-11970

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

17. 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 28 September 2023 and submitted for decision on 22 November 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.

18. 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 May 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player and a club.

19. 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 (May 2023 edition), and considering that the present claim was lodged on 28 September 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

20. 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

21. 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. pg. 6

REF. FPSD-11970

1. Main legal discussion and considerations

22. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the matter at hand concerns a claim of a player for outstanding remuneration.

23. In this context, the Chamber acknowledged that its task was to decide if the player is entitled to the claimed amounts.

24. The Chamber took note that according to the player, the club failed to remit the partial salaries for November and December 2022 as well as bonuses agreed upon.

25. The Respondent, for its part, failed to present its response to the claim of the player, in spite of having been invited to do so. In this way, the Chamber considered that the Respondent renounced its right of defence.

26. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

27. However, the DRC established that it first of all, ex officio, has to analyse the contractual basis of the claim as the player bases his claim on the initial contract which allegedly was “resumed” by an additional agreement dated 28 June 2022. However, such document is not signed. On the other hand, the documentation uploaded in the Transfer Matching System

(TMS) indicates a different contract with a lower salary without any defined bonuses.

28. What is more, the Chamber duly noted that the second contract was concluded on 6 July 2023, i.e. after the alleged additional agreement dated 28 June 2023.

29. On account of the above, the DRC concluded that the second contract superseded any previous agreement, if and is therefore the contractual basis for the contractual relationship between the player and the club between 6 July 2023 and 31 December 2022.

30. The Chamber also wished to emphasize that the alleged acknowledgement of the CEO in the submitted WhatsApp conversation is not substantiated enough.

31. On account of the above, the DRC concluded that the claim is based on the contract uploaded in TMS with a monthly salary of UAF 120,000 (approx. USD 4,000). pg. 7

REF. FPSD-11970 ii. Consequences

32. As a consequence, taking into account that the player acknowledged receipt of of USD 6,000 for his salaries in November 2022 and December 2022, and in accordance with the general legal principle of pacta sunt servanda, the DRC decided that the Respondent is liable to pay to the Claimant the amount of UAH 36,500 (approx. USD 1000) each for November 2023 and December 2023.

33. In addition, taking into consideration the Claimant’s request as well as the constant practice of the DRC in this regard, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates until the date of

effective payment. iii. Compliance with monetary decisions

34. 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.

35. 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.

36. 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.

37. 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.

38. 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. pg. 8

REF. FPSD-11970

d. Costs

39. 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.

40. 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.

41. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-11970

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Gabriel Dal Toe Busanello, is partially accepted.

2. The Respondent, SC Dnipro, must pay to the Claimant the following amount(s): - Ukraine Hryvnia (UAH) 36,500 as outstanding remuneration plus 5% interest p.a. as from 1 December 2022 until the date of effective payment; - UAH 36,500 as outstanding remuneration plus 5% interest p.a. as from 1 January 2023 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

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 10

REF. FPSD-11970

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

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 11