Labour Disputes
Texto da decisão
REF FPSD-2918
Decision of the
Dispute Resolution Chamber
passed on 27 January 2022
regarding an employment-related dispute concerning the player Andris
Vanins
COMPOSITION:
Clifford J. Hendel (USA / France), Chairperson
Andre Megale (Brazil), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Andris Vanins, Latvia
Represented by Mr Hervé Bochud
RESPONDENT:
FC Zurich, Switzerland
Represented by BEE LEGAL
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I.
Facts of the case
1.
On 18 October 2013, the Latvian player, Mr Andris Vanins (hereinafter: the player or the
Claimant) and the Swiss club, FC Zurich (hereinafter: the club or the Respondent) concluded
an employment contract (hereinafter: the first contract), valid as from 1 November 2013 until
30 June 2017.
2.
Clause 40.1 of the first contract provides that, should any dispute arise in connection with
the first contract, the parties shall submit any such dispute to the legal commission
incorporated within the Swiss Football Association, should it comply with the principle of
equal representation of players and clubs and should its presidency be neutral.
3.
On 17 June 2016, the parties concluded a new employment contract (hereinafter: the second
contract), valid for 3 seasons, as from 1 July 2016 until 30 June 2019.
4.
Clause 40.1 of the second contract also provides that, should any dispute arise in connection
with the second contract, the parties shall submit any such dispute to the legal commission
incorporated within the Swiss Football Association, should it comply with the principle of
equal representation of players and clubs and should its presidency be neutral.
5.
Annexe 3 to the second contract provided, inter alia, the following remuneration to which
the player was entitled:
“Basic salary Challenge League
Fixed salary: CHF 186,000 net;
Fixed bonus: CHF 35,000 gross.
Basic salary Super League:
Fixed salary: CHF 232,500 net;
Fixed bonus: CHF 50,000 gross”.
6.
Annexe 3 to the second contract further provided, inter alia, that the player is entitled to a
4.5 room furnished apartment, as well as the following provisions concerning the payment
of taxes: “Remuneration is subject to statutory social security deductions. The player pays the
employee contributions. The remuneration is also subject to income tax (if applicable as
withholding tax), which by law is borne exclusively by the player”.
7.
On 9 January 2019, the parties concluded a third contract (hereinafter: the third contract),
which regulated the contractual relationship between the parties as from 1 July 2019,
whereby the parties extended the duration of the contractual relationship from 30 June 2019
until 30 June 2020.
8.
In accordance with clause 4.1 of the third contract, the player was entitled to a fixed monthly
income of CHF 20,000 gross, should the club play in the Super League during the season
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2019/2020; or of CHF 14,000 gross, should the club not play in the Super League during the
said season.
9.
On 31 May 2020, the parties concluded a fourth contract (hereinafter: the fourth contract)
whereby the parties agreed to extend the duration of the third contract to the actual end
date of the 2019/2020 season, i.e. until the beginning of August 2020.
10. On 26 and 27 May 2021, the Claimant exchanged several emails with the Swiss Tax
Authorities of Thalwil (communal tax authorities – as opposed to the federal tax authorities),
where they stated, inter alia, the following:
- The Claimant: Considering that his former employer, FC Zurich, still owes him his share of
2019 taxes, Mr Vanins needing to bring a legal action against FC Zurich for that purpose, Mr
Vanins would like to pay the taxes of 2019 (cantonal, communal and dir. Federal tax: CHF
76,048.50) in instalments;
- The Swiss Tax Authorities: As discussed on the phone, we can only dived the payment into
6 instalments. Since the money will, hopefully, be paid soon by the employer, we can
exceptionally offer that the first 5 instalments will be smaller. The first instalment would be
due at the end of June and the last at the end of November 2021. Do you have any other
suggestion;
- The Claimant: Would you agree with the following suggestion: 5 instalments of CHF 10,000
each as from June until October 2021 and CHF 26,048.50 at the end of November 2021?;
- The Swiss Tax Authorities: According to the previous telephone call, the amount of CHF
50,737.50 is what is outstanding. We do not have access to the federal taxes. You are
welcome to contact the Cantonal Tax Office. Please also let me know the payment schedule
for us.
- The Claimant: Thank you for your reply. Would you agree with the following suggestion: 5
instalments of CHF 6,500 each as from June until October 2021 and CHF 18,237.50 at the
end of November 2021?;
- The Swiss Tax Authorities: That is ok. Do you need the corresponding payment slips?
- The Claimant: Yes, please, send them.
11. By means of his letter dated 27 May 2021, the player explained that after having checked the
employment contract, the salary slips, salary certificates, calculations and distribution of taxes
for the years 2016, 2017, 2018 and 2019 based on the final tax assessments, payments
already made to the tax authorities, the remuneration received from the Respondent and the
deductions made from them for the period as from 2016 until2020, the amount of CHF
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85.980.85 shall be paid by the Respondent to the Claimant. In this respect, the Claimant
granted the club a 10 days´ deadline to pay the said amount.
12. Thereto, the club replied on 4 June 2021, only acknowledging being in default of payment
of an amount of CHF 5,500 and stating that it would pay it by 15 July 2021.
13. In this context, on 8 June 2021, the player put the club in default of payment –again– in the
amount of CHF 85,980.85, not accepting the statement of the club that it only owed the
player the amount of CHF 5,500, and granting the club a new deadline until 18 June 2021
to comply with its contractual obligations.
14. On 25 June 2021, the club replied to the said default notice, arguing, inter alia, the following:
• That it examined the documents sent by the player along with its default notice of 27 May
2021 and that it needs to state, once again, that it disputes the player’s allegations in full,
with the exception of the outstanding payment of CHF 5,500.
• In this context, the Respondent referred to Annexe 3 to the second contract and held that,
what is stated in the said Annexe is that the player is responsible for the payment of income
taxes on all salary components.
• Furthermore, the club emphasized that the second contract does not state that the club is
responsible for paying the employee's income taxes. In this respect, the club argued that the
fixed salary to which the player was entitled was "net", which only means that the player “is
paid this amount without insurance deductions, and the employer has to offset this amount
against the gross amount in the monthly pay slips” (free translation from the original text in
German).
• In this respect, the club acknowledged having orally agreed that it would pay the income
taxes for fixed salary of the player, but for no other remuneration, “neither for bonuses, child
allowances or any other salary components” (free translation from the original text in
German).
• Furthermore, held the Respondent, it was stipulated in the second contract that the player
would move into a flat in the canton of Schwyz, which taxes are lower than the ones in the
canton of Zurich. However, argued the club, it complied with the player´s wish to move into
a considerably more expensive flat in the canton of Zurich, without financial consequences or
losses on the part of the employee.
• Regarding the financial calculations made by the player in the default notices dated 27 May
2021 and 8 June 2021, the club argued that the statement "Déductions salaire 2016-2020
CHF 101,073.60" includes various items that have nothing to do with taxes, but which are
“offsets of third-party costs,
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offsets of cost prices or completed deductions in connection with the short-time work
prescribed and agreed to in writing by the employee” (free translation from the original text
in German).
• In this context, the club requested the player to agree with the abovementioned
considerations and stated that “as soon as we receive this confirmation, we will transfer the
outstanding amount of CHF 5,500 to the bank account of the employee known to us and
consider the case closed for the balance of all claims” (free translation from the original text
in German).
II. Proceedings before FIFA
a. Position of the Claimant
15. On 28 June 2021, the player lodged a claim against the club before FIFA, requesting to be
awarded the total amount of CHF 85,980.85, plus 5% interest p.a. as from 31 December
2020, broken down by the player as follows:
CHF 9,932.35 corresponding to the remaining amount due as taxes as from 2016,
2017, 2018 after deduction of the amounts duly paid by the club for the said period;
CHF 76,048.50 corresponding to the taxes that the club should have paid for the fiscal
year 2019, as from 1 January 2019 until 30 June 2019 (concerning the remuneration
received by the player as salaries and accommodation).
16. In his claim, the Claimant wished to explain that, prior to being registered with the
Respondent, when he was registered with his former club, the Swiss club, FC Sion, the player
always received his remuneration net and that the payment of taxes was always assumed by
the said club during the period of validity of the relevant contract.
17. Moreover, the player argued that, for the fiscal years 2016, 2017 and 2018, the club duly
and directly paid his personal income tax to the Swiss Administration, but, for the fiscal year
2019, the club “no longer wanted to assume the payment of the amounts due to the Tax
Administration, simply pretending not having to do so” (free translation from the original text
in French)
18. The player underscored that, between the years 2016 and 2020, the club applied unjustified
deductions amounting to CHF 101.074 on his salaries.
19. The player further explained that, although the third contract, which defined the
remuneration due to the player as from 1 July 2019 until 30 June 2020, indicated that the
amounts due to the player were to be paid gross, the second contract indicated the contrary,
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i.e. that the salary payable to the player was to be paid net, meaning that the club undertook
to deduct and directly pay to the Tax authorities the relevant taxes.
20. Moreover, the player explained that, since the year 2020, he has approached the club on
several occasions, trying to discuss about the aforementioned taxing issue; however, to no
avail.
21. In this context, the Claimant held that –due to the lack of payment from the club regarding
the taxes due to the Swiss Administration for the personal income obtained by the player
during the fiscal year 2019–, he has had to conclude an agreement with the Swiss
Administration in order to pay the amount due for the said fiscal year, i.e. CHF 76,048.50, in
6 instalments.
22. The player referred to the letter dated 25 June 2021, sent by the Respondent, and argued
that the fact that the club preferred the player to live in the Canton of Thalwil, instead of in
the Canton of Zurich, on the grounds that the taxes in the latter are higher than in the former,
only proves that the club did have to pay for the taxes of the player, which it failed to do. In
this respect, the player argued that the contract does not specify the Canton where the player
should live and that it was at his own discretion to decide so.
23. As conclusion, the player stressed that: “In view of the deductions made by the club every
year (attached: employment contracts, salary slips, salary certificates, calculations and
distribution of taxes for the years 2016, 2017, 2018 and 2019) and based on the final tax
assessments, payments already made to the taxes, remuneration received by the Claimant
from the Respondent and the excessive deductions made by the Respondent between 2016
to 2020, the final figures show that the Respondent owes the Petitioner a debt in the amount
of CHF 85,980.85” (free translation from the original text in French).
b. Position of the Respondent
24. In its reply to the claim, the Respondent firstly challenged the competence of FIFA, arguing
that, ex. clause 40 of the first and second contracts, any contractual dispute arisen between
the parties shall be heard by the NDRC of the Swiss Football Association, as first instance, and
by the Court of Arbitration for Sport (CAS), as instance of appeal (no supporting document
on file concerning the composition of the Swiss NDRC). Furthermore, the Respondent argued
that the present matter lacks an international dimension, since both parties have their
domiciles in Switzerland, reason why -as per the Respondent- the requirement concerning
the international dimension, as set in art. 22 of the Regulations, is not met.
25. As to the substance, the club firstly challenged all the argumentation brought forward by the
player and held that it was not substantiated.
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26. The club argued that the present could only concern the payment of the rental allowances
paid by the club to the player, which -as per the club- are subject of taxation, which shall be
borne by the player. In this context, the club argues that the rental allowances constitute
payment in kind and, as such, social security benefits are to be deducted therefrom.
27. According to the club, the misjudgement of player may be related to the fact that the latter
did not submit the final version of Annexe 3 of the second contract, but rather a draft that
referred to net amounts. The relevant contract, including Annexe 3, stipulates the term
"amounts", not "net amounts" and states, for the specific considerations, whether payments
are "net" or "gross". In this respect, the club held that, with the exception of the fixed salary,
all amounts are to be understood as "gross amounts”. In this regard, the club argued that
the version of the second contract provided by the club is the one that is registered within
the Swiss FA, which shall be considered as authoritative.
28. In this context, the club explained that, for the period from 01.07.2016 to 30.06.2019, the
club voluntarily and without acknowledging any legal obligation, paid the taxes in respect of
the fixed salary, but not the taxes derived from the rent of the flat, since the club did not have
to pay any taxes in that regard.
29. Furthermore, the club highlighted that the player is requesting payments in connection with
wage reductions as a result of the Covid-19 short-time work, to which he expressly agreed
by means of the document dated 6 May 2020.
30. The club further argued that the player also demands the reimbursement of the deposit,
which had already been transferred to him on 24 September 2020.
31. In its conclusion, the club stressed that the player never objected to any tax deductions applied
by the club throughout the period of validity of the contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
32. 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 June 2021 and submitted for decision
on 27 January 2022.
33. Taking into account the wording of art. 34 of the October 2021 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.
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34. 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 (August 2021 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 Latvian
player and a Swiss club.
35. However, the DRC noted that the Respondent challenged the competence of FIFA on the
grounds that the Swiss National Dispute Resolution Chamber (hereinafter: the NDRC) is the
competent body to hear about the present dispute, insofar as clause 40.1 of the second
contract, which would be the legal basis of the dispute at stake, provides that any dispute
arisen between the parties shall be submitted to the Swiss NDRC.
36. In this respect, the Chamber -after analysing the argument brought forward by the
Respondent- observed that the Respondent failed to provide any documentation concerning
the compliance of the said NDRC with the minimum requirements established by FIFA, as set
by FIFA circular no. 1010, which must be met in order for the DRC to determine that a NDRC
is competent to adjudicate on a dispute.
37. Thus, considering that the Respondent carried the burden of the proof to demonstrate so cf. art. 13.5 of the Procedural Rules- and failed to do so, the Chamber determined that it
cannot be established that the Swiss NDRC is competent to adjudicate on the present matter
and, consequently, FIFA is competent to hear about the present dispute in accordance with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (August 2021).
38. 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 Player (August 2021 edition) and
considering that the present claim was lodged on 28 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
39. 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.
40. 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).
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c. Merits of the dispute
41. 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
42. The foregoing having been established, the Chamber moved to the substance of the matter,
and wished to recall that the Claimant does not dispute having received his remuneration as
per the contract(s), while the main point of the dispute lies on whether the amounts allegedly
deducted by the club during the fiscal years 2016-2018 were rightfully retained or excessive
and whether the obligation to pay taxes concerning the player’s remuneration for the year
2019 corresponded to the player or to the club.
43. In this context, the DRC wished to first of all point out that the wording of the second contract
(which is the one that serves a legal basis of the present dispute, considering the relevant
time-frame) is rather ambiguous -to say the least- when stating that the player’s salary was
to be paid net and when also stating that the player shall pay his “employee contributions”
and that his remuneration is subject to income tax (or withholding tax), which is to be paid
by the player.
44. After having carefully analysed the positions of both parties, the DRC stressed that 2 questions
needed to be primarily addressed:
Did the parties decide, in the second contract, to shift the Claimant’s tax obligations from the
latter to the Respondent concerning his salary when stating that the player’s salaries were to
be paid net?
45. In this regard, the Chamber observed that, whereas the Claimant affirms so, the Respondent
held that the wording of Annexe 3 is clear when stating that the player shall pay his
“employee contributions” and that his remuneration is subject to income tax (or withholding
tax. Albeit ambiguous, the DRC concluded that the wording of the said Annexe rather
indicated what the Respondent states, since the addition of the word net to the amount
payable to the player as salary could very well only mean that no deduction thereof would be
made by the club before paying it to the player.
46. However, the DRC considered that the above-mentioned discussion would become pointless,
considering that the Respondent acknowledged having proceeded with the payments of the
player’s taxes concerning his salaries as from 1 July 2016 until 30 June 2019, despite the
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wording of Annexe 3 to the second contract, the Respondent having provided documentary
evidence in that regard.
What is the basis of the dispute at hand?
47. The Claimant argues being entitled to the amounts unlawfully retained by the Respondent
during the fiscal years 2016 - 2018 and to the amount that the Swiss Authorities is claiming
from the player concerning the taxes that the Respondent allegedly was obliged to pay during
the fiscal year 2019. However, the Chamber observed that no payment order / request from
the Swiss Tax Authorities urging the Claimant to pay the amounts requested by the Claimant
through the present proceedings was on file. In this respect, the DRC wished to highlight that
the only evidence provided by the Claimant as “title” that would support its potential
entitlement to a reimbursement in connection with taxes, which payment obligation would
correspond to the Respondent, was some emails apparently exchanged between the
Claimant ant the Tax Authorities of the Commune of Thalwil at the end of May 2021.
48. On its part, the DRC observed that the Respondent argues that the claim of the Claimant is
only based on the tax obligations deriving from the payment of the housing allowances (in
accordance with the payrolls provided by the Claimant, the club paid him monthly housing
allowances of CHF 3,850 gross – cf. documentation attached to the statement of claim).
49. However, the Chamber observed that the entitlement of the player to receive the said
allowance is only stated in Annexe 3 to the second contract, which only states that the club
shall provide the player a 4.5 rooms apartment. The DRC corroborated that nothing is said
therein concerning the monetary conversion of such an entitlement, which in principle holds
the nature of a payment in kind, to the actual payment of a certain amount as housing
allowance (CHF 3,850); to say the least about who the taxpayer of that payment is.
50. Considering all the arguments of the parties and the documentary evidence on file, the DRC
pointed out that, in view of: 1.) the lack of documentary evidence that shows with sufficient
clarity the specific breakdowns of the amounts claimed by the Claimant, 2.) the applicable
tax law that would apply to the case at hand, 3.) and the specific entitlement of the Claimant
to any of the amounts claimed, the DRC determined that the Claimant did not meet his
burden of the proof (cf. art. 13.5 of the Procedural Rules), also considering with special
attention that 4.) the Claimant failed to provide any payment order / request from the Swiss
Tax Authorities indicating the amount of taxes he had to pay during the relevant timeframe
as a consequence of the Respondent’s contractual breach and to which he would be
potentially entitled as reimbursement as a consequence of a contractually agreed shift of tax
payment obligations.
51. In view of all of the above and on the basis of art. 13.5 of the Procedural Rules, the DRC
concluded that the claim of the Claimant needs to be rejected.
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ii. Consequences
52. The claim of the Claimant is rejected.
d. Costs
53. 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.
54. 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.
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Andris Vanins, is inadmissible.
2.
The claim of the Claimant, Andris Vanins, is rejected.
3.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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