Labour Disputes
Texto da decisão
REF. FPSD-7099
Decision of the
Dispute Resolution Chamber
passed on 15 February 2023
regarding an employment-related dispute concerning
the player Mark Koszta
BY:
Angela Collins, Australia
CLAIMANT:
Mark Koszta, Hungary
Represented by Go 4 Sports AG
RESPONDENT:
Ulsan Hyundai FC, Korea Republic
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REF. FPSD-7099
I. Facts of the case
1.
On 21 March 2022, the Hungarian player Mark Koszta (hereinafter: the Claimant or player)
and the Korean club Ulsan Hyundai FC (hereinafter: the Respondent or club) concluded an
employment contract (hereinafter: the contract) valid as from 22 March 2022 until 31
December 2023.
2.
Pursuant to the contract, the Respondent undertook to pay the Claimant USD 507,534 for
the first season - running from March 2022 to 31 December 2022 - and USD 650,000 for
the second one, i.e., as from 1 January 2023 to 31 December 2023.
3.
On 7 July 2022, the Claimant and the Respondent (collectively referred to as the parties)
agreed on the premature termination of the contract and therefore signed an agreement
to that effect (hereinafter: the termination agreement).
4.
Pursuant to the termination agreement, the Respondent undertook to pay the Claimant’s
salaries in full until June 2022, and equally to pay a termination fee of USD 750,000 broken
down as follows: (a) USD 650,000 by 20 July 2022; (b) USD 100,000 by 20 March 2023.
5.
On 21 July 2022, the player sent a letter to the club as a reminder that the first instalment
of the termination agreement had become due.
6.
On 22 July 2022, the club replied that the payment was not made because of the financial
difficulties related to the disruption of Covid-19 in the Republic of Korea.
7.
On 22 July 2022, the player sent a second reminder to the club, asking once again to execute
the payment of the first instalment.
8.
On 25 July 2022, the player further requested that the club paid the due amount and
contextually the latter in default of USD 650,000, grating a final deadline of 10 days.
9.
On 10 August 2022, the player demanded once again that the club complied with its
financial obligations under the termination agreement and paid the due amount of USD
650,000 plus an interest rate of 5% per annum as from the relevant due date, i.e., 20 July
2022, until the day of effective payment, by no later than 12 August 2022.
II. Proceedings before FIFA
10. On 17 August 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
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REF. FPSD-7099
a. Position of the Claimant
11. According to the Claimant, the Respondent failed to comply with its financial obligations
without any valid reason and in spite of the several notices served between late July and
August 2022 it has ignored the player’s claims.
12. Accordingly, the Claimant requested that the Respondent shall be ordered to pay the
amount of USD 650,000 as outstanding first instalment based on the termination
agreement dated 7 July 2022, plus 5% interest per annum as from the due date, i.e. 20 July
2022.
b. Position of the Respondent
13. In its reply, the Respondent argued that a total of USD 507,000 had been paid to the
Claimant on 24 August 2022, hence the outstanding amount had been reduced
significantly.
14. Furthermore, the Respondent objected to the imposition of interest on the sums claimed
by the player as allegedly without any contractual or legal basis.
c. Additional comments of the Claimant
15. Inquired by the FIFA General Secretariat upon the payment allegedly made by the
Respondent, the Claimant acknowledged having received the amount of USD 507,000 on
24 August 2022 as declared by the club.
16. Accordingly, the Claimant amended his request for relief to the amount of USD 143,000 as
the only outstanding, while he upheld his claim for 5% interest p.a. as from the relevant
due date until date of effective payment.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on 17 August
2022 and submitted for decision on 15 February 2023. Taking into account the wording of
art. 34 of the October 2022 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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REF. FPSD-7099
18. Subsequently, the Single Judge 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 October 2022 edition), the Single Judge
of 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
Hungarian player and a club from the Republic of Korea.
19. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 17 August 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
20. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
22. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties did not dispute the amount claimed by
the player as outstanding but only the application of interest on the relevant sum.
23. In this context, the Single Judge noted that according to the Respondent, the charge of
interest on the monies due under the termination agreement would have no legal or
contractual basis, hence it cannot be claimed by the player.
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REF. FPSD-7099
24. In this respect, the Single Judge was of the opinion that the club’s argument shall not be
welcomed.
25. In particular, the Single Judge emphasized that the imposition of interest on monies
determined to be outstanding is part of the Football Tribunal longstanding practice and it
serves as corollary to the general principle of pacta sunt servanda.
26. Furthermore, the Single Judge wished to remark that, in principle, the scope of application
of interest is to penalize the party in debt when there is a delay in the performance of its
contractual obligations, regardless of whether these were satisfied afterwards.
27. Accordingly, the Single Judge clarified that, although in the case at stake the club partly
complied with its financial obligations pending the relevant proceeding before FIFA, it shall
nonetheless be held responsible for the delay in the payment of the entire amount which
previously resulted to be outstanding as from its due date until the moment in which the
club effectively paid.
28. As a consequence, the Single Judge established that even if the Respondent paid the
amount of USD 507,000 on 24 August 2022 and the Claimant consequently amended his
request for relief to USD 143,000 only, the relevant 5% interest p.a. shall be charged also
on the paid amount of USD 507,000 as from 20 July 2022 until its payment on 24 August
2022.
29. Having stated the above, in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant the
amount which had remained outstanding per the termination agreement, i.e. USD
143,000.
30. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amount as from 20 July 2022 until the date of effective
payment.
ii. Compliance with monetary decisions
31. Finally, taking into account the applicable Regulations, the Single Judge 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.
32. In this regard, the Single Judge 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
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REF. FPSD-7099
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
33. Therefore, bearing in mind the above, the Single Judge 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.
34. 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.
35. The Single Judge 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.
d. Costs
36. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
37. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
38. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-7099
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mark Koszta, is accepted.
2.
The Respondent, Ulsan Hyundai FC, must pay to the Claimant the following amount(s):
USD 143,000 as outstanding amount plus 5% interest p.a. as from 21 July 2022 until
the date of effective payment;
Interest at the rate of 5% p.a. on the amount of USD 507,000 calculated as from
21 July 2022 until 24 August 2022.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-7099
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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