On 21 January 2015, the Court of arbitration for sport (CAS) rendered its award in the latest avatar of the Mutu case, aka THE sports law case that keeps on giving (this decision might still be appealed to the Swiss Federal tribunal and a complaint by Mutu is still pending in front of the European Court of Human Right). The decision was finally published on the CAS website on Tuesday. Basically, the core question focuses on the interpretation of Article 14. 3 of the FIFA Regulations on the Status and Transfer of Players in its 2001 version. More precisely, whether, in case of a dismissal of a player (Mutu) due to a breach of the contract without just cause by the player, the new club (Juventus and/or Livorno) bears the duty to pay the compensation due by the player to his former club (Chelsea). Despite winning maybe the most high profile case in the history of the CAS, Chelsea has been desperately hunting for its money since the rendering of the award (as far as the US), but it is a daunting task. Thus, the English football club had the idea to turn against Mutu’s first employers after his dismissal in 2005, Juventus and Livorno, with success in front of the FIFA Dispute Resolution Chamber (DRC), but as we will see the CAS decided otherwise[1].

      I.         Facts and Procedure of the Mutu Case

The Mutu saga is probably one of the most well known sagas in the sports law world (with the unavoidable Bosman case and the up and coming Pechstein one). It cumulates the glamour drama of a star’s downfall due to a positive cocaine test and many important legal developments.

The saga started in July 2004 with a private drug test conducted by Chelsea on Mutu that turned out to be positive to cocaine. The club issued a fine and a warning. But, in October 2004, Mutu was again tested positive to cocaine, this time by the English FA. Upon this finding, and Mutu’s admission of having ingested cocaine, Chelsea decided to terminate his contract on 28 October 2004. On 29 January 2005 the player was registered at Livorno, before being transferred two days later to Juventus. Juventus had reached its quota of non-EU players it could recruit from outside Italy and used this strategy to circumvent the Italian rules applicable at that time.

Meanwhile, Mutu had challenged in front of the FA’s Appeals Committee (FAPLAC) the decision of Chelsea to terminate his employment contract. In April 2005, the FAPLAC decided that Mutu had committed a breach of his employment contract without just cause. Mutu appealed this decision to the CAS without success (CAS 2005/A/876). In May 2006, Chelsea launched a complaint before the DRC to obtain compensation against the player on the basis of the contractual breach without just cause. The DRC in its decision from 26 October 2006 (available here) held that it could not pronounce itself on the matter and that Chelsea had to turn to FAPLAC. Chelsea appealed the decision to the CAS, which enjoined the DRC to decide on the matter (CAS 2006/A/1192). Consequently, the DRC decided on 7 May 2008 to award €17, 173 990 in damages to Chelsea. Unsurprisingly, Mutu decided to appeal the decision to the CAS, he was especially contesting the amount of compensation awarded, which on 31 July 2009 endorsed the decision of the DRC (CAS 2008/A/1644). It even held that the damage claims of Chelsea were higher, but decided it could not go ultra petita and award a higher sum to the club. Mutu, which had unsuccessfully challenged the independence and impartiality of one of the arbitrators due to his previous participation in the first Mutu case (CAS 2005/A/876), went on to contest the validity of the award in front of the Swiss Federal Tribunal (SFT) mainly on this basis. In its decision (4A_458/2009), the SFT rejected Mutu’s claims regarding the lack of independence of the arbitrator, a decision that has attracted widespread criticisms in the literature.[2] Moreover, it also held that the amount of compensation awarded was not a restriction to free movement in the sense of the Bosman ruling and could not amount to an infringement of Mutu’s personality rights. Thereafter, Mutu decided to continue his fight in yet another forum: the European Court of Human Rights (40575/10).

Chelsea had the final award giving it the right to damages, but still needed to get hold on the money. To do so, it even asked (and obtained) for the recognition and the enforcement of the award in the US (see here), where Mutu was expected to have some property. Nevertheless, Mutu went on to play for smaller and smaller teams, thus earning less and less, and Chelsea’s hope of getting paid in full faded away. However, on 15 July 2010, five years after Mutu’s move to Italy’s Serie A in the first place, Chelsea decided to submit a petition to the FIFA DRC against Juventus and Livorno, asking the DRC to find them jointly liable for the awarded compensation. The claim was based on Article 14.3. of the RSTP 2001, stating that: "If a player is registered for a new club and has not paid a sum of compensation within the one month time limit referred to above, the new club shall be deemed jointly responsible for payment of the amount of compensation." The DRC, in an unpublished decision dated 25 April 2013 (see here and here), followed the interpretation of Article 14.3. RSTP suggested by Chelsea and found that “under the clear wording of Article 14.3, the Player's New Club was automatically jointly responsible for the payment of the Awarded Compensation due by the Player, should the latter fail to fulfil his obligations within a month of notification of the relevant decision”.[3] This provision would make “no distinction between the termination of the contract by a player without just cause and the termination of a contract by a club with just cause”.[4] It also held that "the registrations of the player with both [Appellants] were so closely connected that, given the exceptional circumstances of this specific matter, both Juventus and Livorno should be considered the player's new club in the sense of art. 14 of the Application Regulations”.[5]

Both Juventus and Livorno decided to appeal this decision to the CAS, which in its award decided to reject the DRC’s reasoning.

    II.         The Meaning of Article 14.3 FIFA RSTP

The whole case focuses on the interpretation of the wording of Article 14.3 of the RSTP 2001. Does it mean that every club, whatever the circumstances, must pay compensation when it hires a player that bears the responsibility of the breach of his contract? Or, does it restrict this duty to the cases where the breach can be reasonably imputed to the will of the player to leave his former club?

A. Contractual or statutory interpretation?

In order to determine the interpretative tools to be used to identify the meaning of article 14.3 RSTP, the Panel must first clarify the nature of Article 14.3 under Swiss law.[6] Basically, is the provision of a contractual or quasi-statutory nature? The Panel “does not consider that there is a contractual relationship between the Appellants and Chelsea”.[7] Indeed, “[i]f there is no contractual relationship between an indirect member (i.e. any of the Parties) and a sport federation (i.e. FIFA), the conclusion should be the same as regards the relationship between two indirect members of the same federation”.[8] Furthermore, the “[a]cceptance of general rules (such as FIFA Regulations) does not necessarily entail subjection to specific obligations when their scope must be determinable on the basis of minimum criteria”.[9] Thus, the question raised implies only the interpretation of the bylaw of a Swiss legal entity, FIFA.

The Panel highlights four methods of interpretation under Swiss law:

-  the literal interpretation ("interprétation littérale");

-  the systematic interpretation ("interprétation systématique");

-  the principle of purposive interpretation ("interprétation téléologique");

-  the principle of so-called "compliant interpretation" ("interprétation conforme").[10]

The “starting point” [11] is always the wording of the text. The Swiss Federal Tribunal recognizes that “[t]here is no reason to depart from the plain text, unless there are objective reasons to think that it does not reflect the core meaning of the provision under review”.[12] Moreover, when asked to interpret a law, the SFT “adopts a pragmatic approach and follows a plurality of methods, without assigning any priority to the various means of interpretation”.[13] However, the question is whether those interpretative methods should also apply to the (private) bylaws of a private association. The Panel notes that “[a]s regards the statutes of larger entities, it may be more appropriate to have recourse to the method of interpretation applicable to the law, whereas in the presence of smaller enterprises, the statutes may more legitimately be interpreted by reference to good faith”.[14] It finds that “FIFA's regulations have effects which are felt worldwide, and should therefore be subject to the more objective interpretation principles” applicable to Swiss laws.[15]

In short, the Panel is of the opinion that FIFA regulations, bylaws of an association under Swiss law, are to be interpreted analogously to national laws.

B. EU law as THE decisive contextual element to interpret the RSTP

The Panel first tries to interpret Article 14.3 on the basis of its wording. However, it is of the opinion that the wording is ambiguous and therefore “it is necessary to look beyond the wording of this provision”[16] and adopts what it calls a “contextual approach”.

In short, “the context surrounding the implementation of the RSTP 2001 is of crucial importance in interpreting Article 14.3”.[17] In the view of the Panel (and the appellants), this context is constituted by the application of EU law to sport and especially the Bosman case of the Court of Justice of the EU. Indeed, it is “[a]s part of the reform of the FIFA and UEFA rules following the Bosman decision, [that] FIFA adopted the RSTP 2001”.[18] Thus, the requirements set by the CJEU’s jurisprudence in sports matters are decisive to define the reach of the provisions included in the RSTP. Moreover, the rejection decision of the Commission regarding the complaint submitted against FIFA’s transfer regulations is also important.[19] Specifically, the Panel deduces from the Commission’s decision that it recognizes the need to sanction unilateral termination of contracts.[20]

In the present case, it is precisely the “contractual stability [that] is at the centre of the debate”.[21] In a nutshell, does the paramount objective of contractual stability justify that Juventus and Livorno be considered jointly liable for the breach of contract of Mutu leading to the termination by Chelsea of his contract?

In this regard, Chelsea considers that Article 14.3 “is designed to protect contractual stability by means of a deterrent, namely by ensuring that the parties who benefit from the player's breach – the player himself and his New Club – are not allowed to enjoy that benefit without paying compensation to the player's former club”.[22] While, Juventus and Livorno consider that “Article 14.3 – and FIFA regulations in general – are not meant to protect a club's bad investment”.[23] Which one of this two interpretations is EU law supporting? That is the question.

For the Panel “the Player was the author of his misfortune, but the Club was not required to terminate his employment if they still valued his services and preferred to hold him to his contract”. Indeed, “[t]he Club was entitled, not obliged, to dismiss him” and it “makes all the difference in terms of assessing the position of his subsequent employer(s) under the FIFA regulations, read in light of their object and purpose”.[24] As “Chelsea put an end to the Player's Employment Contract, no issue of contract stability, whose purpose was to safeguard the functioning and regularity of sporting competition, was at stake”.[25] Thus, “it strains logic for the club now to contend that the Appellants somehow enriched themselves by acquiring an asset (the player) which it chose to discard”.[26] Moreover, “the Panel finds it hard to understand how, in the name of contract stability, Chelsea's claim of € 17,173,990 against the Player is to be borne jointly and severally by the New Club, which has never expressed a specific agreement in this regard, had nothing to do with the Player's contractual breach, and was not even called to participate in the proceedings, which established the Awarded Compensation”.[27] Additionally, it seems “incongruous for Chelsea to try to seek an advantage from the fact that the New Club benefits from the Player’s services, whereas Chelsea was no longer interested in his service”.[28] Hence, “Chelsea's conduct appears to have had no other purpose than to increase its chances for greater financial compensation” and the Panel “does not see the connection between the damage being claimed and the interest of protecting legitimate contractual expectations”.[29] In other words, the interpretation of Article 14.3 RSTP supported by Chelsea does not fit the fundamental objective of this provision, as highlighted by its legislative context (mainly the Lethonen case of the CJEU and the Commission’s rejection decision in the competition law complaint against the FIFA transfer system) and cannot be followed.

Interestingly, the Panel also recognized that “[t]here must be a balance between the players’ fundamental right to free movement and the principle of stability of contracts, as supported by the legitimate objective of safeguarding the integrity of the sport and the stability of championships”.[30] In the present case, “[i]f the New Club had to pay compensation even if it is established that it bears no responsibility whatsoever in the breach of the Employment Contract, the player would be hindered from finding a new employer”.[31] Indeed, “it is not difficult to perceive that no New Club would be prepared to pay a multi-million compensation (or transfer fee), in particular for a player who was fired for gross misconduct, was banned for several months, and suffered drug problems”.[32] In short, “Chelsea's interpretation of Article 14.3 would bring the matter back into pre-Bosman times, when transfer fees obstructed the players' freedom of movement”.[33] This is unacceptable for the Panel. Had Chelsea’s interpretation been tolerated “the balance sought by the 2001 RSTP between the players' rights and an efficient transfer system, which responds to the specific needs of football and preserves the regularity and proper functioning of sporting competition would be upset”.[34] Consequently, this interpretation is deemed “incompatible with the fundamental principle of freedom to exercise a professional activity and is disproportionate to the protection of the old club's legitimate interests”.[35] Thus, the Panel concludes “that Article 14.3 does not apply in cases where it was the employer's decision to dismiss with immediate effect a player who, in turn, had no intention to leave the club in order to sign with another club and where the New Club has not committed any fault and/or was not involved in the termination of the employment relationship between the old club and the Player”.[36]

Conclusion

This award is of great interest, not so much for its solution - it is difficult to understand how the FIFA DRC could construct Article 14.3 RSTP as imposing a joint liability on Juventus and Livorno - as for the method used to reach it. The CAS had already in the past based its interpretation of the RSTP on its legislative history and especially on it being the result of a negotiation with the EU Commission in the aftermath of the Bosman ruling.[37] It is the first time, however, that it does so in such length and depth. This contextual reading of Article 14.3 tipped decisively the balance in favor of the appellants. Furthermore, it is a timely reminder for other CAS Panels that FIFA’s RSTP must be interpreted in conformity with EU law and especially the case law of the CJEU on the free movement of workers. If not, CAS awards will face problems at the enforcement stage, as highlighted by the recent SV Wilhelmshaven ruling of the OLG Bremen (see our comment here on the EU law dimension)[38]. This implies that the restrictions it imposes on the free movement of players must be justified by a legitimate objective recognized by the CJEU and be proportionate to attain this objective. In the present case, the interpretation of 14.3 promoted by the DRC runs counter to this requirement as it is not truly aimed at an acceptable legitimate objective and certainly not a proportionate mean to attain contractual stability. Nonetheless, this reasoning could also put into question previous interpretations of the FIFA RSTP. This is especially true for the case-law on the implementation of Article 17 RSTP. The Panel, conscious of the potential implication of the analysis used, is adamant that this case-law is compatible with an EU law conform interpretation. Yet, EU law scholars strongly oppose this view and it can be reasonably argued that the way damages are calculated in case of a breach of a contract under Article 17 is not compatible with the letter and spirit of EU law as applied to the transfer system in Bosman and after[39].

This case will set a resounding precedent for future CAS awards. Lawyers dealing with disputes involving the FIFA RSTP in front of the FIFA DRC and the CAS should take note of this development and introduce wider references to EU law in their briefs.

[1] For this article I have much profited from the outstanding research assistance of Thalia Diathesopoulou.

[2]G. Von Segesser, ‘Equality of Information and Impartiality of Arbitrators’, in P. Wautelet, T. Kruger, G. Coppens (eds), The Practice of Arbitration: Essays in Honour of Hans van Houtte

Hart, 2012, pp.45-51 and L. Beffa, ‘Challenge of International Arbitration Awards in Switzerland for Lack of Independence and/or Impartiality of an Arbitrator – Is it Time to Change the Approach?’ (2011) ASA Bulletin 598 et seq.

[3] CAS 2013/A/3365 & 3366, para 39.

[4] Ibid.

[5] Ibid

[6]Ibid, para. 121-136

[7] Ibid, para. 131

[8] Ibid, para. 131

[9] Ibid, para. 131

[10] Ibid, para.137

[11] Ibid, para.138

[12] Ibid, para.139

[13]Ibid,  para.139

[14]Ibid, para.139

[15]Ibid, para.140

[16]Ibid, para.148

[17]Ibid, para.149

[18]Ibid, para.151

[19]Ibid, para.156

[20]Ibid, para.157

[21]Ibid, para.158

[22]Ibid, para.159

[23]Ibid, para.160

[24]Ibid, para. 161

[25]Ibid, para. 163

[26]Ibid, para. 163

[27]Ibid, para. 165

[28]Ibid, para. 166

[29]Ibid, para. 168

[30]Ibid, para. 169

[31]Ibid, para. 172

[32] Ibid

[33] Ibid, para.174

[34]Ibid, para.174

[35]Ibid, para.174

[36]Ibid,  para.177

[37] ‘It must be remembered that the FIFA Regulations have been issued to regulate the legal and economic aspects of the transfer of players in accordance with the principle of free movement of workers as established by the EC treaty and substantiated by the European Court of Justice in its ruling of 15 December 1995 (case C-415/93), thereby taking the specific needs of professional football into account. In this context, any provisions in the FIFA regulations affecting the player’s freedom of movement should be interpreted narrowly.’ CAS 2004/A/691 FC Barcelona SAD v. Manchester United FC, para. 38; ‘However, the principle behind Art. 5 para. 5 of the Application Regulations is clear: the free movement of workers within the EU/EEA must not be restricted by the imposition of a requirement for the payment of sums by way of compensation for training and education in respect of a player to whom the training club does not offer a contract. In such a case, the failure to offer a contract is an important factor in the assessment of compensation. The compensation payable should not be of such an amount as would impede the player’s ability to move to a new club.’ CAS 2006/A/1125 Hertha BSC Berlin v. Stade Lavallois Mayenne FC, award of 1 December 2006, para. 25; ‘Finally, because of the potentially high amounts of compensation involved, giving clubs a regulatory right to the market value of players and allowing lost profits to be claimed in such manner would in effect bring the system partially back to the pre-Bosman days when players’ freedom of movement was unduly hindered by transfer fees and their careers and well-being could be seriously affected by them becoming pawns in the hands of their clubs and a vector through which clubs could reap considerable benefits without sharing the profit or taking corresponding risks. In view of the text and the history of article 17 par. 1 of the FIFA Status Regulations, allowing any form of compensation that could have such an effect would clearly be anachronistic and legally unsound.’ CAS 2007/A/1298 Wigan Athletic FC v/ Heart of Midlothian & CAS 2007/A/1299 Heart of Midlothian v/ Webster & Wigan Athletic FC & CAS 2007/A/1300 Webster v/ Heart of Midlothian, para. 81.

[38] A. Duval, ‘The Court of Arbitration for Sport  and EU law: Chronicle of an Encounter’, Maastricht Journal of European and Comparative Law, forthcoming.

[39] See, R. Parrish, ‘Article 17 of the FIFA Regulations on the Status and Transfer of Players: Compatibility with EU Law ‘Maastricht Journal of European and Comparative Law, forthcoming. See also, Pearson, G. (2015), Sporting Justifications under EU Free Movement and Competition Law: The Case of the Football ‘Transfer System’. European Law Journal, 21: 220–238.

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).