Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 February 2018
in the following composition:
Thom as Grim m (Switzerland), Deputy Chairman
Eirik Mons en (Norway), member
S téphane Burchkalter (France), member
Philippe Diallo (France), member
Jos eph-Antoine Bell (Cameroon), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 1 July 2015, the Player of Country B, Player A (hereinafter: the Claimant or the
player) and the Club of Country D, Club C (hereinafter: the Respondent or the
club) (hereinafter jointly referred to as the parties) concluded an employment
contract (hereinafter: the contract), valid as from 1 July 2015 until 30 June 2017.
2.
Pursuant to art. 4 of the contract, the Claimant was entitled to receive a net
monthly salary of EUR 800 (art. 4.1), as well as EUR 407,600 net (art. 4.4).
3.
In addition, art. 4.2 of the contract provides for a bonus of EUR 50,000 net in case
the Respondent wins the Cup of Country D.
4.
Furthermore, art. 4.10 of the contract stipulates that “[p]ayment of taxes is
effected pursuant to the requirements of the Legislation of Country D”.
5.
On 5 July 2016, the parties concluded a termination agreement, which, inter alia,
provides for the following:
“Hereby the Football Player declares that he waives his right definitely to receive
the bonus above of 50.000,00 euros and also declares that he has no any other
financial demand or claim present or future, against [the club] for that amount
or any other amount, salary, bonuses or benefits, according or relevant to his
professional contract with [the club]. After that, [the club] has not any other
kind of contractual obligation to him”.
6.
On 23 August 2016, the Claimant put the Respondent in default of payment of
the amount of EUR 30,566.17 as “tax expenses” granting ten days to remedy the
default.
7.
On 10 October 2016, the Claimant lodged a claim in front of FIFA against the
Respondent requesting EUR 30,566.17 as “unpaid tax expenses (…) more interests
since the contract termination until full payment, as well as all the tax expenses
that can be or will be demanded to the [player] by the Tax Authorities of Country
D, regarding the period in which [the player] was an employee of [the club]”.
8.
In his claim, the Claimant explained that the “Tax Office of Country D blocked”
the amount of EUR 30,566.17 in his bank account due to outstanding tax debts. In
order to support said claim, the Claimant enclosed an email dated 16 August 2016
from his bank (Bank E) which reads, in its relevant part, as follows: “There is a
block in your account for EUR 30,566.17 from the Tax Office of Municipality F (…)
You will have to contact the Tax Office to settle the debt and they will unblock
it”.
Player A, Country B / Club C, Country D
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9.
In this respect, the Claimant insisted that in accordance with art. 4 of the contract,
all payments due to him were net of taxes. The Claimant further underlined that
when he signed the termination agreement, he was not and could not have been
aware about any debts towards the Tax Authorities of Country D, the payment of
which being an obligation of the club. As a consequence, the Claimant concluded
that he could not have waived his right to reimbursement by means of the
termination agreement.
10.
In its reply, the Respondent rejected the Claimant’s claim, asserting having
complied with its contractual and tax obligations.
11.
Furthermore, the Respondent underlined the Claimant’s failure to carry the
burden of proof regarding the origin of the debt and the reason why his account
was blocked. In this regard, the Respondent alleged that the actual reason of said
blockage was due to previous outstanding tax debts in Country G and did not
derive from the employment contract.
12.
In his replica, the Claimant argued that the burden to prove that the tax debts
were paid lies with the club, which the latter failed to do. Consequently, the
Claimant reiterated his claim.
13.
In its final comments, the Respondent submitted a statement issued by the Public
Tax Office of Municipality F which reads, in its relevant part, as follows: “Within
the context of mutual assistance on tax collection payments, it was confirmed in
our Department the total amount of 29,283.55 euros (…) in favour of Public of
Country D and at the expense of [the player] (…) That amount concerns income
taxes debt of player towards Public of Country D for financial periods of years
2012 and 2013. Our department has issued and sent distress warrant documents
to banks in order to collect that debt, so, the amount of seizure of 30,566.17
euros (that’s 29,283.55 euros capital and 1,282.62 euros interests of capital) was
distrained in Bank E from a bank account held there by [the player]”.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also 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 10 October 2016. Consequently, the 2016 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 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
Player A, Country B / Club C, Country D
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combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2018), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a Player of Country B and a Club of Country D.
3.
Furthermore, 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 confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition
2018), and considering that the claim was lodged on 10 October 2016, the 2016
edition of the aforementioned regulations (hereinafter; the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts as well as the documentation
contained in the 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.
5.
First, the members of the Chamber acknowledged that the parties entered into an
employment contract valid as of 1 July 2015 until 30 June 2017 according to which
the Claimant was entitled to receive a net monthly salary of EUR 800 as well as
EUR 407,600 net. The members of the Chamber noted that, according to art. 4.10
of the contract, the payment of the taxes was effected pursuant to Country D’s
national legislation.
6.
The Chamber further noted that, by means of a termination agreement dated 5
July 2016, the parties agreed the following: “Hereby the Football Player declares
that he waives his right definitely to receive the bonus above of 50.000,00 euros
and also declares that he has no any other financial demand or claim present or
future, against [the Club of Country D] for that amount or any other amount,
salary, bonuses or benefits, according or relevant to his professional contract with
[the Club of Country D]. After that, [the Club of Country D] has not any other kind
of contractual obligation to him”.
7.
In this context, the Chamber took note of the claim of the Claimant who argues
that the “Tax Office of Country D” blocked the amount EUR 30,566.17 in his bank
account due to outstanding tax debts. The Chamber took note that, in order to
prove his allegations, the Claimant enclosed an email dated 16 August 2016
allegedly from the player’s bank (Bank E) which reads, in its relevant part, as
follows: “There is a block in your account for EUR 30,566.17 from the Tax Office of
Municipality F (…) You will have to contact the Tax Office to settle the debt and
they will unblock it”.
Player A, Country B / Club C, Country D
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8.
On account of the foregoing, the Chamber acknowledged that, according to the
Claimant, the relevant “blockage” of the player’s account was due to tax debts
which arose from the contract and which therefore were the responsibility of the
Respondent to pay. In particular, the DRC took note of the allegations of the
Claimant whereby he insisted that, in accordance with art. 4 of the contract, all
the payments due to him were net of taxes.
9.
Furthermore, the Chamber observed that, conversely, the Respondent rejected the
Claimant’s claim and argued that it had complied with its contractual and tax
obligations. Particularly, the Respondent argued that the tax debt of the Claimant
did not derive from the amounts perceived in accordance with the employment
contract but rather from previous debts that the player had acquired in Country
G.
10.
With the aforementioned considerations in mind, and prior to entering into the
analysis of the arguments presented by the parties, the Chamber recalled the
principle of the burden of proof, as established in art. 12 par. 3 of the Procedural
Rules, according to which any party claiming a right on the basis of an alleged
fact carries the burden of proof.
11.
In this context, the Chamber referred to the statement issued by the “Public Tax
Office” of Municipality F, which reads, in its relevant part, as follows: “Within the
context of mutual assistance on tax collection payments, it was confirmed in our
Department the total amount of 29,283.55 euros (…) in favour of Public of
Country D and at the expense of [the Claimant] (…) That amount concerns income
taxes debt of player towards Public of Country D for financial periods of years
2012 and 2013. Our department has issued and sent distress warrant documents
to banks in order to collect that debt, so, the amount of seizure of 30,566.17
euros (that’s 29,283.55 euros capital and 1,282.62 euros interests of capital) was
distrained in Bank E from a bank account held there by [the Claimant]”.
12.
Along those lines, the Chamber were of the opinion that the aforementioned
document, issued by an official Authority of Country D, is clear and leaves no
room for interpretation. Indeed, such document states that the amount that the
player is claiming from the Respondent does not derive from the employment
contract concluded between the parties but rather from “income taxes debt of
player towards Public of Country D for financial periods of years 2012 and 2013”.
In other words, the Chamber understood that said debts were related to issues
prior to the commencement of the employment relationship of the player with
the Club of Country D. As such, the Chamber was of the opinion that the
Respondent could prove, to its satisfaction, that it is not the party responsible for
the payment of the amount requested by the Claimant.
13.
What is more, in relation to the termination agreement, the Chamber pointed out
that the latter document clearly states that the Claimant declares that he has no
Player A, Country B / Club C, Country D
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any other financial demand or claim present or future, against [the club] for that
amount or any other amount, salary, bonuses or benefits, according or relevant to
his professional contract with [the club]” (emphasis added). Along these lines, the
Chamber was of the opinion that if the Claimant was not or could not have been
certain at that point in time that the club had actually paid the respective taxes,
he should not have waived claims which could potentially arise in the future, as
the relevant termination agreement clearly provides.
14.
Consequently, the DRC came to the unanimous conclusion that the claim of the
Claimant should be rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS Directives
Player A, Country B / Club C, Country D
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