Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Sports Politics before the CAS II: Where does the freedom of speech of a Karate Official ends? By Thalia Diathesopoulou

On 6 October 2014, the CAS upheld the appeal filed by the former General Secretary of the World Karate Federation (WKF), George Yerolimpos, against the 6 February 2014 decision of the WKF Appeal Tribunal. With the award, the CAS confirmed a six-months membership suspension imposed upon the Appellant by the WKF Disciplinary Tribunal.[1] At a first glance, the case at issue seems to be an ordinary challenge of a disciplinary sanction imposed by a sports governing body. Nevertheless, this appeal lies at the heart of a highly acrimonious political fight for the leadership of the WKF, featuring two former ‘comrades’:  Mr Yerolimpos and Mr Espinos (current president of WKF). As the CAS puts it very lucidly, "this is a story about a power struggle within an international sporting body"[2], a story reminding the Saturn devouring his son myth.

This case, therefore, brings the dirty laundry of sports politics to the fore. Interestingly enough, this time the CAS does not hesitate to grapple with the political dimension of the case. More...

The new “Arrangement” between the European Commission and UEFA: A political capitulation of the EU

Yesterday, the European Commission stunned the European Sports Law world when it announced unexpectedly that it had signed a “partnership agreement with UEFA named (creatively): ‘The Arrangement for Cooperation between the European Commission and the Union of European Football Associations (UEFA)’. The press release indicates that this agreement is to “commit the two institutions to working together regularly in a tangible and constructive way on matters of shared interest”. The agreement was negotiated (as far as we know) secretly with UEFA. Despite recent meetings between EU Commissioner for sport Vassiliou and UEFA President Platini, the eventuality of such an outcome was never evoked. It is very unlikely that third-interested-parties (FIFPro, ECA, Supporters Direct etc.) were consulted in the process of drafting this Arrangement. This surprising move by an outgoing Commission will be analysed in a three-ponged approach. First, we will discuss the substance of the Arrangement (I). Thereafter, we will consider its potential legal value under EU law (II). Finally, and maybe more importantly, we will confront the political relevance of the agreement (III).  More...

Sports Politics before the CAS: Early signs of a ‘constitutional’ role for CAS? By Thalia Diathesopoulou

It took almost six months, a record of 26 witnesses and a 68 pages final award for the CAS to put an end to a long-delayed, continuously acrimonious and highly controversial presidential election for the Football Association of Thailand (FAT). Worawi Makudi can sit easy and safe on the throne of the FAT for his fourth consecutive term, since the CAS has dismissed the appeal filed by the other contender, Virach Chanpanich.[1]

Interestingly enough, it is one of the rare times that the CAS Appeal Division has been called to adjudicate on the fairness and regularity of the electoral process of a sports governing body. Having been established as the supreme judge of sports disputes, by reviewing the electoral process of international and national sports federations the CAS adds to its functions a role akin to the one played by a constitutional court in national legal systems. It seems that members of international and national federations increasingly see the CAS as an ultimate guardian of fairness and validity of internal electoral proceedings. Are these features - without prejudice to the CAS role as an arbitral body- the early sign of the emergence of a Constitutional Court for Sport? More...

Olympic Agenda 2020: To bid, or not to bid, that is the question!

This post is an extended version of an article published in August on hostcity.net.

The recent debacle among the candidate cities for the 2022 Winter Games has unveiled the depth of the bidding crisis faced by the Olympic Games. The reform process initiated in the guise of the Olympic Agenda 2020 must take this disenchantment seriously. The Olympic Agenda 2020 took off with a wide public consultation ending in April and is now at the end of the working groups phase. One of the working groups was specifically dedicated to the bidding process and was headed by IOC vice-president John Coates.  More...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 2: The procedural aspects. By Thalia Diathesopoulou

With this blog post, we continue the blog series on Turkish match-fixing cases and our attempt to map the still unchartered waters of the CAS’s match-fixing jurisprudence.

The first blog post addressed two issues related to the substance of match-fixing disputes, namely the legal characterization of the match-fixing related measure of ineligibility under Article 2.08 of the UEL Regulations as administrative or disciplinary measure and the scope of application of Article 2.08. In addition, The Turkish cases have raised procedural and evidentiary issues that need to be dealt with in the framework of match-fixing disputes.

The CAS panels have drawn a clear line between substantial and procedural matters. In this light, the Eskişehirspor panel declared the nature of Article 2.08 UEL Regulations to be administrative and rejected the application of UEFA Disciplinary Regulations to the substance. Nonetheless, it upheld that disciplinary rules and standards still apply to the procedure. This conclusion, however, can be considered puzzling in that disciplinary rules apply to the procedural matters arising by a pure administrative measure. To this extent, and despite the bifurcation of different applicable rules into substantial and procedural matters, the credibility of the qualification of Article 2.08 as administrative seems to be undermined. And here a question arises: How can the application of rules of different nature to substantial and procedural matters in an identical match-fixing dispute be explained?More...

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 2)

This is the second part of a blog series on the Real Madrid State aid case. In the previous blog on this case, an outline of all the relevant facts was provided and I analysed the first criterion of Article 107(1) TFEU, namely the criterion that an advantage must be conferred upon the recipient for the measure to be considered State aid. Having determined that Real Madrid has indeed benefited from the land transactions, the alleged aid measure has to be scrutinized under the other criteria of Article 107(1): the measure must be granted by a Member State or through State resources; the aid granted must be selective; and it must distorts or threatens to distort competition. In continuation, this blog will also analyze whether the alleged aid measure could be justified and declared compatible with EU law under Article 107(3) TFEU.More...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 1 - By Thalia Diathesopoulou

The editor’s note:

Two weeks ago we received the unpublished CAS award rendered in the Eskişehirspor case and decided to comment on it. In this post Thalia Diathesopoulou (Intern at the ASSER International Sports Law Centre) analyses the legal steps followed and interpretations adopted by CAS panels in this case and in a series of other Turkish match-fixing cases. The first part of the post will deal with the question of the legal nature of the ineligibility decision opposed by UEFA to clubs involved in one way or another into match-fixing and with the personal and material scope of UEFA’s rule on which this ineligibility is based. The second part is dedicated to the procedural rules applied in match-fixing cases.


Introduction

The unpredictability of the outcome is a sine qua non feature of sports. It is this inherent uncertainty that draws the line between sports and entertainment and triggers the interest of spectators, broadcasters and sponsors. Thus, match-fixing by jeopardising the integrity and unpredictability of sporting outcomes has been described, along with doping, as one of the major threats to modern sport.[1] More...


Sport and EU Competition Law: uncharted territories - (I) The Swedish Bodybuilding case. By Ben Van Rompuy

The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.More...

The Legia Warszawa case: The ‘Draconian’ effect of the forfeiture sanction in the light of the proportionality principle. By Thalia Diathesopoulou

The CAS denial of the urgent request for provisional measures filed by the Legia Warszawa SA in the course of its appeal against the UEFA Appeals Body Decision of 13 August 2014 put a premature end to Legia’s participation in the play-offs of the UEFA Champion’s League (CL) 2014/2015. Legia’s fans- and fans of Polish football - will now have to wait at least one more year to watch a Polish team playing in the CL group stage for the first time since 1996. More...

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 1)

This is the first part of a blog series involving the Real Madrid State aid case.

Apart from being favoured by many of Spain’s most important politicians, there have always been suspicions surrounding the world’s richest football club regarding possible financial aid by the Madrid City Council. Indeed, in the late 90’s a terrain qualification change by the Madrid City Council proved to be tremendously favourable to the king’s club. The change allowed Real Madrid to sell its old training grounds for a huge sum. Though the exact price for the grounds remains unknown, Real Madrid was suddenly capable of buying players like Figo and Zidane for record fees. However, the European Commission, even though agreeing that an advantage was conferred to the club, simply stated that the new qualification of the terrain in question does not appear to involve any transfer of resources by the State and could therefore not be regarded as State aid within the meaning of article 107 TFEU.

Agreements between the club and the Council have been a regularity for the last 25 years.  A more recent example concerns an agreement signed on 29 July 2011 (Convenio29-07-2011.pdf (8MB). More...

Asser International Sports Law Blog | Resolution of Disputes Arising From Football Contracts in Turkey. By N. Emre Bilginoglu

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Resolution of Disputes Arising From Football Contracts in Turkey. By N. Emre Bilginoglu

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). 

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