Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 December 2012,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Philippe Diallo (France), member
on the claim presented by the player
Player 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 case
1.
On 16 July 2007, the player from country B, Player A (hereinafter: the Claimant), and
the club from country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract) valid as from 1 July 2007 until 30 June
2009.
2.
Clause 2 of the contract provided for a monthly remuneration of EUR 74,294 net
amounting to a total of EUR 891,528 per season.
3.
On the same day, the parties signed an “amendment to the employment contract”
(hereinafter: the amendment), according to which “the wages salaries established on
the labour contract were calculated taking into account that was agreed the following
net amounts:
Season 2007/2008: EUR 600,000 […], for the whole season;
Season 2008/2009: EUR 600,000 […], for the whole season.
As a consequence of the agreement established in the previous number, [the
Respondent] will pay the necessary taxes in order to guarantee the amounts foreseen,
also in case of changing the taxation system” (cf. clause 2 of the amendment).
4.
On 3 June 2008, the parties agreed to terminate their employment relationship with
immediate effect by signing the “agreement for rescission of contract” (hereinafter:
the termination agreement). Pursuant to clause 2 of said agreement, the Claimant was
entitled to receive a global compensation in the amount of EUR 58,776.90 net to be
paid on 5 July 2008.
5.
Clause 3 of the termination agreement stipulates that “the above mentioned
compensation includes all labour credits and bonuses of the player due and establishes
on the contract that was signed and its now rescinded as well as all the amendments
and agreements related with the mentioned contracts. Therefore, the player herewith
declares that, with the payment of the compensation established on the previous
clause, he does not have any other amount to receive or to claim”.
6.
On 26 June 2012, the Claimant lodged a complaint before FIFA claiming that the
Respondent has not fulfilled its contractual obligations. In particular, the Claimant
requests the amount of EUR 80,906.55 from the Respondent pursuant to the contract
and the amendment, which oblige the Respondent to pay the mandatory taxes in
order to guarantee the net remuneration.
7.
In his arguments, the Claimant stated that his and the Respondent’s representative
had explicitly confirmed in writing that any mandatory taxes regarding the
remuneration of the Claimant have to be paid by the Respondent. Equally, the
Claimant underlined that the parties had agreed in the contract that all tax payments
Player A, country B / Club C, country D
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to the country D tax authorities should be made by the Respondent. According to the
Claimant, the Respondent was not only obliged to pay any and all mandatory taxes in
connection with the employment contract, it even guaranteed the net remuneration
(cf. clause 2 of the amendment).
8.
On 8 February 2012, the Claimant apparently received a “tax assessment notice from
the country B tax authority” requesting him to pay the sum of EUR 83,228.55 until
27 February 2012 to the country D tax authorities in connection with payments
received from the Respondent for his registration period between 1 July 2007 and 30
June 2008. After the country B tax authorities had allegedly announced enforcement
measures regarding the amount of EUR 80,906.55, the Claimant decided to pay said
amount in order to avoid further damage for any party involved.
9.
The Claimant further indicated that since he allegedly became aware of the matter
only on 8 February 2012, the present matter is not be time-barred.
10. The Claimant concluded that the Respondent must pay the taxes even if the contract
has expired in the meantime, since the tax payments clearly refer to the time the
Claimant was registered for the Respondent. In addition, the Claimant highlighted
that he has only partially settled the tax payments and therefore claims the
reimbursement of the amount of EUR 80,906.55 and requests that the Respondent
shall be obliged to indemnify and/or reimburse the Claimant with respect to any and
all legally undisputed tax-related payments or claims for such payments in the future.
11. In its reply, the Respondent rejected the claim and affirmed that it does not have any
debt towards the Claimant. In this regard, it explained that in accordance with the
termination agreement concluded by the parties it had agreed to pay a global
compensation of EUR 58,776.90 to the Claimant and that the latter would not be
entitled to receive or claim any other amount.
12. Finally, the Respondent added that the only reason why it had agreed to terminate
the contract “was the fact that the Player would not claim any other amounts from
Club C, beyond the established in the termination agreement”.
13. In his replica, the Claimant underlined that the compensation agreed in the
termination agreement was not to cover the tax debts, since he had not been and
could not be aware of any tax debts when the termination agreement had been
signed, since it was common procedure between the parties that any tax payments in
relation to the Claimant had to be made directly by the Respondent, and, secondly,
clause 3 of the termination agreement only includes debts between the Respondent
and the Claimant, but not between the Respondent and the country D tax authorities.
Player A, country B / Club C, country D
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14. In its final position, the Respondent maintained its previous position stating that the
Claimant at least should have been aware that a tax related issue for the years 2007
and 2008 would be opened as it is common in all EU countries that the taxes are
calculated at the end of the fiscal year. Finally, according to the Respondent, the
Claimant’s claim is time-barred as the termination agreement was signed on 3 June
2008 and the taxes “were charged to the player […] on 2008 and 2009”.
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 26 June
2012. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Procedural Rules) are applicable to the matter in 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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012; hereinafter: the Regulations), the Dispute Resolution Chamber
shall adjudicate on employment-related disputes between a club and a player that
have an international dimension.
3.
In this context, however, the Chamber was eager to point out that the Claimant is
requesting the reimbursement of the amount of EUR 80,906.55 in front of FIFA based
on a “tax assessment notice from the country B tax authority” he received on 8
February 2012 requesting him to pay the amount of EUR 83,228.55 to the country D
tax authorities in connection with payments received from the Respondent between
July 2007 and June 2008.
4.
In view of the above, the Chamber started their analysis of the present matter by
closely examining the Claimant’s request in front of FIFA in order to determine
whether the present matter was to be considered as an employment-related dispute
in light of art. 22 lit. b) of the Regulations.
5.
In this regard, the DRC first of all recalled that the parties had concluded an
employment contract on 16 July 2007 valid as from 1 July 2007 until 30 June 2009 as
well as an amendment, according to which “(…) As a consequence of the agreement
established in the previous number, [the Respondent] will pay the necessary taxes in
order to guarantee the amounts foreseen, also in case of changing the taxation
system”.
Player A, country B / Club C, country D
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6.
In continuation, the Chamber acknowledged that the parties terminated their
employment relationship on 3 June 2008 with the conclusion of a termination
agreement, according to which “(…) the player herewith declares that, with the
payment of the compensation established on the previous clause, he does not have
any other amount to receive or to claim”.
7.
Furthermore, the members of the Chamber took into account that the Claimant
received the “tax assessment notice” from the country B tax authority on 8 February
2012, i.e. long after the employment relationship was terminated by and between
the parties on 3 June 2008.
8.
In view of the above, the DRC established that the issue at stake in the present
matter is the impact of the termination agreement signed by and between the
parties towards the national tax authorities, and that, as such, the dispute cannot be
considered as an employment-related dispute between a player and a club in the
sense of art. 22 lit. b) of the Regulations. In other words, the present dispute did not
concern the relation between the two parties, i.e. between the Claimant and
Respondent, but more the relation between the parties and the national tax
authorities.
9.
In this context, the Chamber wished to emphasise that any objections with respect to
the payment of the relevant amounts to the tax authorities should have been raised
with said tax authorities. Indeed, the DRC established that, as a general rule, FIFA is
not competent to decide upon matters of tax law, but that such affairs fall into the
jurisdiction of the competent national tax authority.
10.
In view of all of the above, the Chamber concluded that the competence of FIFA has
to be rejected and that the Dispute Resolution Chamber is not competent to hear the
present matter as to its substance.
11.
The DRC concluded its deliberations by establishing that the claim of the Claimant is
not admissible.
*****
Player A, country B / Club C, country D
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is not admissible.
*****
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
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
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