three college students wanted to earn money part-time, and ended up in an arbitration court
2024-09-21
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zhang han, wang xin and li yan, third-year students at a hubei university, never expected that they would end up in an arbitration tribunal just because they wanted to earn money by working part-time.
in april 2023, the three people signed contracts with wuhan qiqi culture media co., ltd. (hereinafter referred to as "qiqi media") and became the anchors of the company. the contract stipulates that if the two parties fail to reach an agreement on a dispute, it will be resolved through arbitration. after more than a month of live broadcast, the three people were turned away when they asked for a guaranteed salary. feeling something was wrong, they asked the company to terminate the contract. the communication between the two parties failed, and qiqi media filed an arbitration with the wuhan arbitration commission, requiring each person to pay a penalty of 70,000 yuan, 5,000 yuan in attorney fees and all arbitration costs. after twists and turns, the two parties reached a settlement in july this year.
the experiences of these college students are not isolated cases. the reporter searched for multiple judgment documents published in 2023 using the keywords "college students" and "anchor" on the china judgment documents network. in 11 of the judgments, the plaintiffs were live broadcast companies and the defendants were college students or recent graduates. ten of the documents showed that the courts ordered the college students to pay liquidated damages ranging from 4,000 yuan to 150,000 yuan.
college students who entered the live broadcast studio to work part-time were asked to pay high liquidated damages due to contract disputes and became defendants in court or parties in arbitration. what secrets are hidden in the guarantee fee and signing fee? china youth daily and china youth network reporters conducted an investigation on this.
5,000 yuan guaranteed fee attracts college students to sign contracts
when talking about the signing of the contract with li, the legal representative of qifei media, the three people still remember the attractive salary offered by li at that time.
"in the first three months, the minimum income is 5,000 yuan per month, and there is also a 5,000 yuan signing fee. in addition to the guaranteed income, there is also a commission from rewards." zhang han remembers that li said at the time, "no matter how you perform, you can get the guaranteed 5,000 yuan."
li disagreed with this statement. he told reporters that he was not responsible for recruiting anchors. according to his understanding, the company and college students are in a cooperative relationship, and the company either provides a signing fee or a guarantee, but not both.
regarding the work content, li yan said that the company staff required them to live broadcast for 5 hours every day and chat with netizens on douyin.
among these three people, only li yan has more than 1,000 fans on douyin and has some understanding of live streaming. she is a little worried about not being able to complete the task, "i have to broadcast every day without interruption. i also have classes during the day and i'm afraid i won't have time."
in response to li yan's concerns, li told her that she could broadcast it in the evening when she had no classes.
"the company has a team to 'package' us." although he has no experience in live streaming, zhang han feels that with the company's training, he will be able to do it.
working part-time during spare time, they could also get a guaranteed salary of 5,000 yuan, so the three decided to sign the contract. the electronic contract they received was 11 pages long, and the last page was the "confirmation of actual investment and expenditure under the cooperation agreement." it showed that the signing fee for each person was 35,000 yuan.
"why did the signing fee become 35,000 yuan?" li yan immediately asked li. "he said at the time that my signing fee was 5,000 yuan, and the remaining 30,000 yuan was for my future training or renting a house for live broadcasting. i thought at the time that i didn't look particularly outstanding and i didn't have any talent, so how could i have such a high signing fee?" li yan recalled, "when i heard him say that it was actually only 5,000 yuan, i felt it was relatively reasonable, so i let down my guard."
after hearing li's explanation, wang xin also felt it was reasonable, "my abilities are there, so they are worth 5,000 yuan."
li told them that after the signing fee was received, they needed to return 30,000 yuan to him in cash. "the company would rent a house, and he paid for it, and it was his personal 'private account'." zhang han said that this was the reason li gave at the time.
li yan didn't think much about it, "he said he wanted cash, and i thought it was to pay less tax."
since he wanted to get back 30,000 yuan, why couldn't he just transfer it in cash? when faced with this question raised by the reporter, li did not give a direct answer.
on the third-party electronic contract platform "fadada", they signed a contract with qifei media. after signing the contract, the three said they received 35,000 yuan from qifei media. according to the transaction screenshots provided by wang xin and li yan, the reporter saw that 35,000 yuan was indeed received. the transaction notes all had the words "contract fee-qifei media-li".
after the money arrived, the three people, in accordance with the previous communication, withdrew the money themselves or entrusted their classmates to give it to li. the transaction screenshots they provided showed that there were records of withdrawing or transferring 30,000 yuan to li.
zhang han, wang xin and li yan signed a cooperation agreement with wuhan qifei culture media co., ltd. (photo by yang lei)
there are so many barriers, it's not easy to get a guaranteed minimum
according to the agreement, li yan and the other two used their personal douyin accounts to join the qifei media "guild" (a "guild" is a management account set up by a live broadcast platform to facilitate agents or companies to manage the income and operations of their anchors - reporter's note). the screenshots of the "guild" cooperation details page provided by several people show that the "guaranteed income is 5,000 yuan/month."
after live streaming for a while, qifei media management interviewed them.
zhang han felt that the management was "finding faults": "i broadcasted for a sufficient amount of time that day, and (they) said that the content i broadcast was not good enough. after i broadcasted the content well, they said that i did not ask the 'big brother' for tips. when i wanted to give tips, they said that the content was not up to standard."
li yan said that the operations team often compared her with mature anchors, for example, "look at how others make thousands or tens of thousands a night from live streaming, and why is your daily turnover so little?"
li did not think this was "nitpicking", but rather the company's help to the anchor. he said that the company's operations would review the live broadcast with the anchor and give suggestions for problems that occurred during the live broadcast. however, zhang han believed that some suggestions were difficult to implement, "he asked me to 'skirt the edge', but i refused." li yan also believed that the company did not provide any practical suggestions.
their live broadcast room has only a dozen viewers each time, including classmates and friends who were pulled into the room as an "atmosphere group". the income from tips is even pitiful. the reporter saw from the screenshot of the income bill provided by li yan that she could earn 100 yuan for a single live broadcast when she made more, and only 0.3 cents when she made less. since signing the contract for more than a month, her total income from tips has reached 515.26 yuan.
after more than a month of live streaming, when several people asked for a guaranteed salary of 5,000 yuan, they were turned away.
"zhang han and i did not complete the 5-hour daily live broadcast task, but wang xin did finish it, but we still couldn't get the guaranteed reward," said li yan.
wang xin remembers that the reason given by li at the time was "not enough live broadcast time." she said that she completed the task of 5 hours a day, but according to li, broadcasting from 10 pm to 3 am the next day does not count as 5 hours of broadcasting, and it must be broadcasted for 5 hours continuously in one day. "but he didn't tell us clearly when we signed the contract. he told us this when we were about to finish the broadcast in the first month."
li told reporters that this algorithm is the rule given by the douyin platform. "we calculate the daily and monthly duration according to the official background (rules) of douyin. we can't calculate it however we want."
the reporter called douyin customer service, who said that the platform had not set any time limits, and that it depended on the "guild" requirements. looking through the contracts of several people, under "live broadcast and short video task requirements", it was mentioned that "the number of live broadcast days per month must be greater than 26 days, and no less than 130 hours per month", but there was no requirement for "a 5-hour live broadcast task per day" or "5 hours of continuous broadcasting in one day".
negotiating a termination of the contract and encountering high claims
since they did not get the guaranteed salary and the school counselor advised them to terminate the contract as soon as possible, li yan and others found li and asked to terminate the contract.
li agreed to terminate the contract, but each person had to pay a penalty of 35,000 yuan, including a 5,000 yuan signing fee, rental costs, and company losses.
"we have already given you 30,000 yuan in cash, why do you want us to return so much?" li yan asked li on the spot. li told them that according to the breach of contract clause, each person would have to pay at least 10 times the signing fee, which is 350,000 yuan. since they are students, they only need to return the 35,000 yuan paid by the company when signing the contract, and other losses will not be considered.
li rented a three-bedroom apartment for them, with a monthly rent of about 4,500 yuan. when they asked to terminate the contract, they had just moved in for more than a month. "if it was a one-month deposit and three-month payment, the landlord would ask the company to pay more than two months' rent at most, which is more than 3,000 yuan per person. plus the 5,000 yuan signing fee, each of us spent more than 8,000 yuan on the company, and asking us for 35,000 yuan is too much," said li yan.
seeing the breach of contract clause in the contract, li yan and the other two compromised. they signed a settlement agreement with qifei media and paid li 35,000 yuan in liquidated damages in three installments.
the "settlement agreement" signed between the students and the company. photo provided by the interviewee
in order to raise money, li yan and wang xin did not go home last summer vacation and "earned 9,000 yuan by serving dishes" in a restaurant near the school.
however, the three people felt more and more aggrieved and did not pay the penalty on the repayment date agreed upon in the settlement agreement.
li, who had not received the liquidated damages, sent messages from time to time to urge them. "today i asked you for your id card address, sent a lawyer's letter first, and then arranged for the legal department to sue directly." "if you don't want mediation, then i'll take some trouble, and i can sue at worst." in the screenshots of the wechat chats between li yan and li, the reporter saw multiple messages urging them to pay the liquidated damages.
in march and april this year, li yan and the other two received copies of the arbitration application submitted by li from the wuhan arbitration commission. qifei media claimed that each of them must pay 70,000 yuan in liquidated damages, plus 5,000 yuan in lawyer fees and all arbitration fees.
on july 17, with the mediation of the arbitrator of the wuhan arbitration commission, the three people reached a settlement with qifei media.
"it is a fact that we breached the contract. the arbitrator said that if the trial goes to court, we will most likely have to pay compensation, and maybe even more." li yan said that the condition for the settlement was that each person would pay li 14,000 yuan in liquidated damages in 14 installments.
image courtesy of visual china
does the anchor need to pay a high penalty for canceling the contract? expert interpretationfaced with high liquidated damages, some college student anchors who are deeply involved in contract disputes are at a loss and even consider themselves unlucky.
ban xiaohui, associate professor at the school of law of wuhan university, suggested that when faced with unreasonable or even sky-high liquidated damages claims from companies, college students should safeguard their legitimate rights and interests through legal channels. "liquidated damages are not what the company wants," and courts and arbitration tribunals will make a comprehensive assessment based on the principles of fairness and good faith, combined with the breach of contract faults and consequences of both parties. many court cases show that the liquidated damages that the anchors finally paid were far lower than the amount claimed by the company.
the reporter found that many anchors confirmed their labor relations through legal channels and safeguarded their legitimate rights and interests. "if a labor relationship is confirmed, whether the termination of the contract requires payment of liquidated damages should be determined in accordance with the relevant provisions of the labor contract law," said ban xiaohui.
in february 2022, anchor qiu signed a cooperation agreement with a cultural communication company in puning, guangdong. after the two parties failed to reach an agreement on the issue of leave, the company kicked qiu out of the company group chat and demanded compensation for breach of contract. qiu chose arbitration to confirm the labor relationship. in may 2023, the labor and personnel dispute arbitration committee rejected qiu's request. qiu was dissatisfied and sued the puning municipal people's court.
the puning municipal people's court held that, judging from the cooperation agreement signed between qiu and the company, the company had stipulated qiu's live broadcast platform, duration, profit distribution, attendance management system, etc., which was in line with the legal characteristics of a labor relationship and supported qiu's lawsuit.
however, there are also cases where the labor relationship is not confirmed. in march 2017, hu, wang, and li went to the labor and personnel dispute arbitration committee of lizhou district, guangyuan city, sichuan province to apply for confirmation of the labor relationship. the arbitration committee believes that from the content of the agreement, the two parties have agreed on the rights and obligations of conducting online live broadcast activities, and there is no intention to enter into a labor contract. the income from the offline activities of both parties is divided in a 20:80 ratio. the three applicants mainly complete their work at home and do not need to go to the company's office to work, nor do they need to abide by the company's rules and regulations. therefore, the relationship between the two parties does not meet the characteristics of a labor relationship.
does the identity of a college student affect the formation of a labor relationship between him and the employer? the reporter sorted out relevant information and found that the law does not prohibit college students from entering the labor market as workers. college students with full civil capacity have the qualifications to be the subject of a labor contract. if a college student establishes a long-term and stable labor relationship with an employer, abides by the employer's rules and regulations, accepts the employer's management, engages in work arranged by the employer, has a clear position and accepts the economic remuneration paid by the employer, then a labor relationship is actually established between the two parties.
ban xiaohui believes that due to the diversity of employment models in the live broadcast industry, the nature of its legal relationship needs to be determined on a case-by-case basis. some college students use their spare time to work and study, which is not considered employment, and it is difficult to claim a labor relationship. however, if college students have completed their academic courses and sign a cooperation agreement with a live broadcast company for the purpose of finding a job when they are about to graduate, whether there is a labor relationship needs to be judged based on the specific employment situation of both parties.
ban xiaohui said that if the anchor claims a labor relationship, he can first file an arbitration with the labor and personnel dispute arbitration committee in accordance with the law. the anchor needs to collect evidence that can prove the existence of a labor relationship, including wage payment records, such as bank transfer records, wage slips, etc.; relevant evidence of work arrangements, such as work task notices and shift schedules issued by the company; and evidence of work supervision and management, such as the company's review opinions on the anchor's live broadcast content and performance evaluations.
"if the signed contract contains some content that reflects the characteristics of a labor relationship, such as the anchor must abide by the company's rules and regulations, accept the company's work arrangements and instructions, etc., this will be helpful in confirming the labor relationship," said ban xiaohui.
zhao yaqin, a lawyer at hubei zun erguang (hongshan) law firm, observed that some anchors signed contracts with companies stating that the company would package the anchors and provide them with various resources. but the reality is that the company will not fully fulfill its promise. "it is recommended that anchors collect evidence that the company did not provide resource support in order to protect their own rights and interests."
a civil judgment from the people's court of furong district, changsha city, hunan province, provided to reporters by zhao yaqin, shows that in november 2020, lou signed a contract with a hunan media company and became an anchor of the company. later, the two parties had a dispute, and the company sued lou in court on the grounds that the anchor refused to fulfill his live broadcast obligations and demanded a penalty of 100,000 yuan. the court held that the plaintiff breached the contract first and did not evaluate and train lou's image, quality, and skills in accordance with the agreement, which constituted a fundamental breach of contract, and rejected all the company's claims.
(at the request of the interviewees, zhang han, wang xin, li yan, wang jia, and cao yang are pseudonyms)
comprehensive from china youth daily, september 20, 2024, page 03 (china youth daily, china youth network intern reporter yang lei, reporter lei yu)
(source: china youth daily wechat official account)
