Editor’s note: N. Emre Bilginoglu[1]
is a lawyer based in Istanbul. His book entitled “Arbitration
on Football Contracts” was published in 2015.
Introduction
With a total market value of approximately 911 million
EUR, the Turkish Super League ranks as one of the prominent football leagues in
Europe. Five of the eighteen teams that make up half of the total market value
are based in Istanbul, a busy megalopolis that hosts a population of fifteen
million inhabitants.[2]
As might be expected, the elevated market value brings forth a myriad of
disputes, mainly between the clubs and the players. However, other crucial actors
such as coaches and agents are also involved in some of the disputes. These
actors of the football industry are of all countries, coming from various countries
with different legal systems.
One corollary of rapid globalisation is the
development of transnational law, which is quite visible in the lex sportiva.[3]
Like foreign investors, foreign actors of the sports industry look for some legal
security before signing a contract. FIFA does protect these foreign actors in
some way, providing players and coaches legal remedies for employment-related
disputes of an international dimension. But what if the legal system of the
FIFA member association does not provide a reasonable legal remedy for its
national actors?[4]
That is why lawyers who are involved in sports related
disputes have to guide their law-makers in improving their legal systems after thoroughly
examining the dispute resolution mechanisms of other countries. Arbitration is
indeed growing exponentially as a method of dispute resolution.[5]
The renowned alternative dispute resolution is especially preferred in disputes
arising from sports contracts, where both a rapid and a confidential resolution
is of the essence.[6] However, some legal systems oblige the
parties of a sports related dispute to resolution by arbitration whereas some
legal systems do not. This article gives the reader an insight about resolution
of disputes arising from football contracts in Turkey.
Turkish Method of
Dispute Resolution
In August 2015, the Turkish Football Federation made
certain changes in its Statute and guidelines. Since those changes, disputes
arising from contracts between football clubs, players, coaches and agents are
resolved within the Turkish Football Federation Dispute Resolution Board (“UCK”).[7]
Therefore, applying to State courts for these disputes (the previous way of
resolving disputes) is now impossible, which is a substantial legal issue.
Article 59 of the Turkish Constitution states that
disputes related to sports administration and disciplinary matters should be
resolved by mandatory arbitration.[8]
Decisions of these kinds cannot be appealed to any court of the judiciary. The
scope of this article does not include employment related disputes. Article 9
of the Constitution declares that judicial power shall be exercised by
independent courts. However, courts do not have jurisdiction to hear disputes
arising from football contracts because of the regulations of the Turkish
Football Federation. Kelsen’s hierarchy of laws is indeed upside down, alas,
the current practice without a proper legal basis is the actual practice. It
does not seem like a change is scheduled in the near future, given that many
are grateful for the rapid resolution of disputes.
The UCK consists of a “Board of Presidents” and
arbitrators. It carries out a simple arbitration process and it involves two
arbitrators and a UCK official. The applicant is responsible for the
application fee (3% of the disputed amount) and paying the arbitrators' fees,
which are decided by UCK (between about 450 and 1500 Euros per arbitrator). The
UCK decides within four months (they have the right to extend the time limit
for a month based on justified grounds). The decision of the UCK may be
appealed to the Turkish Football Federation Appeals Board. However, this appeal
does not obstruct the enforcement of the award. Although the statute of the
Turkish Football Federation recognizes the competence of CAS, it also declares
that the decisions rendered by the Appeals Board cannot be reviewed by CAS.[9]
Decisions of the UCK are not published. Decisions of
the Arbitral Tribunal are published without reasoning. Hence, it is impossible
to know both the facts of the case and how the arbitral tribunal reached a
verdict. This negatively impacts the predictability of the UCK and the Arbitral
Tribunal.
The proper composition of the UCK is an important
condition for fair and equitable proceedings.[10]
Arbitrators are nominated by the Foundation of the Clubs, the Association of
Football Players and the Association of Coaches. These three institutions may nominate
up to 25 arbitrators each. However, the Turkish Football Federation board of
directors appoints the arbitrators from the list of nominees, thus casting a
shadow on the independence and the impartiality of the arbitral tribunal, which
are crucially important for the right to a fair trial.[11]
There are numerous links between the UCK, the Arbitral Tribunal and the Turkish
Football Federation. The Federation finances the UCK and the Arbitral Tribunal,
can modify the Statutes of the UCK and the Arbitral Tribunal and it appoints
the arbitrators of the UCK and the members of the Arbitral Tribunal. The
current formation of the UCK resembles CAS before Gundel reforms.
Sporting sanctions and training compensations are also
within the scope of the UCK.[12]
Decisions of the UCK may only be appealed to Arbitral Tribunal of the Turkish
Football Federation. The lack of a judicial review for these decisions is
disconcerting. I believe the involvement of the Swiss Federal Tribunal in the
CAS process could serve as a good model. CAS decisions may
be appealed to the Swiss Federal Tribunal but there is no court in Turkey to
appeal to once the Arbitral Tribunal decides on the matter. A general court or
the Turkish Court of Cassation must review the decisions of the Arbitral
Tribunal regarding disputes on football contracts. Decisions of the Arbitral Tribunal related to sports
administration and disciplinary matters are accurately not appealable, as
stated by Article 59 of the Constitution. However, Article 59 of the
Constitution does not include personal actions. Article 9 of the constitution
declares that the judicial power shall be exercised by
independent courts. The right to access to courts that is granted by the
Constitution cannot be breached by an amendment of the Turkish Football
Federation. Therefore, courts are wrong for
denying jurisdiction for disputes arising from football contracts.
Players
The rights and obligations between clubs and players
are determined by an employment agreement.[13]
In Turkey, labour courts have jurisdiction on disputes arising from employment
agreements. However, the Turkish Labour Code does not apply to players, thus surprisingly
excluding the jurisdiction of labour courts for disputes regarding them.
Article 4 of the Labour Code states that the Code does not apply to athletes. The
reason behind this exclusion is not to grant certain rights and benefits to
athletes, such as severance payments. Before the amendments of August 2015 came
into force, disputes regarding players were resolved in general courts, not
labour courts. The debate whether general courts or labour courts have
jurisdiction is now obsolete, as the players have to apply to the UCK for the
disputes arising from football contracts.
The FIFA DRC adjudicates on cases regarding employment
related disputes between a club and a player of an international dimension,
therefore foreign players do not have to apply to the UCK. In a case of dual
citizenship (the player was British/ Turkish), CAS awarded that someone who
benefits from Turkish citizenship should also accept its possible burdens, thus
refusing jurisdiction.[14]
Arbitration is indubitably more preferable compared to
courts for players. The UCK decides within four months and the decision is
enforced by the Turkish Football Federation right away. This promptitude surely
provides an advantage for players. Nevertheless, arbitrators’ fees are a hefty
burden for destitute amateur players or pro players of the third league. On the
contrary, application fees that are three percent of the disputed amount is a
supernumerary amount for high earning players. High arbitration cost is a
concern, as it is strictly related to right of access to courts. Costs should
not victimize the plaintiff.
Coaches
The FIFA PSC adjudicates on disputes between a club
and a coach of an international dimension. Turkish coaches working in Turkey do
not have that option. Before the implementation of the mandatory arbitration,
labour courts had jurisdiction over the disputes arising from employment
agreements of coaches. As of August 2015, coaches may only apply to the UCK for
disputes arising from their contracts.
The Turkish Super League clubs do not prefer stability
with regard to their coaches, as only one team in the league started the
2016-2017 season with the same coach for the third consecutive year. Coaches
seem content with the rapid resolution of their contractual disputes and the
confidentiality provided by arbitration, however, arbitrators within UCK are
seldom appointed by them.
Agents
The FIFA Regulations on the Status and Transfer of
Players state that the PSC has no jurisdiction to hear any contractual dispute
involving intermediaries. Agents, foreign or not, have to apply to the UCK for
disputes arising from their contracts. This is overall problematic for agents,
because they do not have any say on the appointment of arbitrators. Therefore,
the independence and the impartiality of the UCK is suspicious, especially for
agents. It is highly recommended for foreign agents to work with Turkish
lawyers doing business in Turkey. If not, they will have to hire one at some
point.
Conclusion
Arbitration does truly offer a structure that is football-oriented and more aware of the realities
of modern football, as stated in the preamble of FIFA NDRC Standard
Regulations. “National” arbitration of football related disputes is evolving.
The fact that this is genuinely a developing method of dispute resolution
should encourage practitioners to improve their national legal systems. Practitioners
and those who are in the football business may quite easily benefit from such
improvement because it would only influence the business positively. In the
Turkish context I would advise the following:
First, decisions not regarding disputes related to
sports administration and disciplinary matters of the Arbitral Tribunal should
be appealable. This would provide the right to access to courts, as granted by
the Constitution.
Second, the independence and the impartiality of the
UCK is still a problematic issue that needs to be tackled. The UCK should not
be within the structure of the Turkish Football Federation. The process of the
appointment of arbitrators should be revised. Clubs, players, coaches and
agents must have an equal say on the matter.
The current Turkish system is preferable compared to everlasting
court process. Four months to receive an award and the assurance of the
enforcement of the award by the Turkish Football Federation is quite
encouraging. Mandatory arbitration of UCK is very recent and hopefully the
novel system will evolve to fulfil the criteria of FIFA.
[1] Nurettin Emre Bilginoglu, LLM, Attorney-at-law
Istanbul, Turkey
e-mail: emre@caglayanyalcin.com
[2] http://www.transfermarkt.com/super-lig/startseite/wettbewerb/TR1
[3] Duval (2013) Lex Sportiva: a playground for transnational law. Eur Law J 19:822-842.
[4] Preamble of the FIFA National Dispute Resolution Chamber Standard
Regulations points at this issue:
“Currently, only a limited number of member
associations have a national dispute resolution chamber or a body structured
along similar lines that fulfils the criteria of article 22 paragraph b) of the
Regulations on the Status and Transfer of Players. This means that the vast
majority of international employment-related disputes fall within the
jurisdiction of the FIFA Dispute Resolution Chamber and that the majority of
“national” cases may not find appropriate solutions.”
[5] See Ashford (2014) Handbook on International Commercial Arbitration. JurisNet LLC, New York and Karton (2013)
The Culture of International Arbitration and the Evolution of Contract Law. Oxford University Press, Oxford.
[6] See Rigozzi (2005) L’arbitrage international en matière de sport. Helbing & Lichtenhahn, Basel.
[7] See Eksi N (2015) Spor Tahkim Hukuku. Beta, Istanbul and Bilginoglu N
(2015) Resolution of Disputes Arising From Football Contracts. Beta, Istanbul.
[8] Artıcle 59- The State shall take measures to develop the physical and
mental health of Turkish citizens of all ages, and encourage the spread of
sports among the masses. The State shall protect successful athletes.
(Paragraph added on March 17, 2011; Act No. 6214) The decisions of sport
federations relating to administration and discipline of sportive activities
may be challenged only through compulsory arbitration. The decisions of Board
of Arbitration are final and shall not be appealed to any judicial authority.
[9] “…the TFF Statutes and the Turkish Football
Law expressly exclude any appeal against national arbitral tribunals’
decisions, i.e. against such a decision like the Appealed Decision which is the
object of the present case. The particular trumps the general. Therefore the
argument of the Player that he has an express right of appeal to the CAS under
the TFF Statutes must be rejected.” See CAS 2010/A/1996 Omer Riza v.
Trabzonspor Kulübü Dernegi & Turkish Football Federation (TFF).
[10] CAS 2015/A/4172 Association of Unions of Football Players and Coaches
v. Football Union of Russia.
[11] Although the formation of the arbitral tribunal was different, see CAS
2006/O/1055 Del Bosque, Grande, Miñano Espín & Jiménez v/ Besiktas. For
European Court of Human Rights decisions, see Terra Woningen B.V. v. Netherlands, Application N: 20641/92, Date: 17/12/1996; Tsfayo v. UK, Application N: 60860/00,
Date: 14/11/2006.
[12] See de Weger (2016) The Jurisprudence of the FIFA Dispute Resolution
Chamber, T.M.C. Asser Press for
extensive information on sporting sanctions and training compensations.
[13] De Weger (2016) p. 132; For the German practise, see Frodl C (2016) Neuer, Hummels, Muller,
Gotze & Co: the legal framework governing industrial relations in German
professional football, Int Sports Law J
(2016) 16:3–21.
[14] CAS
2010/A/1996 Omer Riza v. Trabzonspor Kulübü Dernegi & Turkish Football
Federation (TFF).