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Applicability of human rights standards in Turkish football arbitration: the contribution of the European Court of Human Rights

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Abstract

The sole governing body in the field of football, the Turkish Football Federation (TFF), performs official tasks assigned to it by the legislation and has been furnished with the opportunity to benefit from public privileges. The Arbitration Board of TFF is the compulsory and ultimate legal forum for disciplinary and administrative issues, and no appeal is allowed to court in accordance with Article 59 (3) of the Turkish Constitution and the relevant provisions of the Law No. 5894. However, constitutional law and human rights concerns are almost totally neglected in the field of Turkish football. TFF has rejected to apply human rights standards, and the Turkish Constitutional Court has approved TFF’s approach. That is why victims of alleged human rights violations have applied to the European Court of Human Rights (ECtHR) for the actions and decisions of TFF. ECtHR has very recently started to examine the disputes regarding football matters brought against Turkey and has invited the Turkish Government to provide its responses in eight applications pending before it. Possible outcomes of these pending cases are not yet known. Thus, this article seeks to analyze whether and under which circumstances TFF’s activities and decisions can be attributed to the Turkish State under the ECHR, and the applicability of fair trial standards to compulsory arbitration. The article argues that taking into account of TFF’s legal nature as a quasi-public authority and the existence of the compulsory arbitration as a sole legal remedy in football-related disputes, governmental human rights responsibility, is triggered under European Convention on Human Rights.

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Notes

  1. Law No. 5894; Enacted on 5 May 2009; (Official Gazette, Date 16 May 2009, no. 27230).

  2. According to Article 5 of the Law No. 5894, Club Licencing Committee and Ethics Committee are also among the first instance legal boards of TFF. In terms of the subject and aim of this paper, these committees do not play a crucial role and thus, they have not been cited among the legal boards of TFF.

  3. Decisions of the Dispute Resolution Board are not published in any way; only served to the parties. Summary decisions of Disciplinary Boards and the Arbitration Board, which only include conclusion reached, are published in the official internet site of TFF without any reasoning. The reasoned decisions of the Disciplinary Committees and the Arbitration Board are never published and never made public. In fact, there are serious doubts as to whether Disciplinary Boards and the Arbitration Board even write a reasoned decision and notify such decision to the parties. Thus, no one knows about any standard or implementation of internal regulations by these monopolistic institutions. This situation (lack of publication of reasoned decisions of TFF legal boards) not only prevents scientific review of those decisions, but also leads to arbitrary decisions and creates an obstacle to standardize decisions of those boards in violation of rule of law principle as it impairs the legal certainty (By analogy to court judgments, see Rule of Law Check List of Venice Commission of Council of Europe, CDL-AD(2016)007, Strasbourg, 18 March 2016, p. 15).

    However, two former presidents of the Arbitration Board published some selected decisions of the Arbitration Board randomly, without any table of contents and subject index. These compilations only cover very short period and were/are not available to general public. They even do not include proper publication dates. See, Türkiye Futbol Federasyonu Tahkim Kurulu Örnek Kararları (1998–2003), Ocak 2004 (no editor specifically identified but at the time of publication Att. Türker Arslan was the president); Türker Arslan—Ümit Kocasakal (eds), Türkiye Futbol Federasyonu Tahkim Kurulu Örnek Kararları (19.01.2006–14.02.2008 Dönemi); Adnan Türkkan—Serap Amasya (eds), Tahkim Kurulu Örnek Kararları (14.02.2008–29.06.2011 Dönemi), 2 Cilt (2 Volumes), Türkiye Futbol Federasyonu Yayınları.

    Reasoned decisions of TFF legal boards have not been published since July 2011 by any means. Even the so-called reasoned decisions mostly do not have any real reasoning since the mentioned boards’ reasoning is simply abstract and ill-founded, and is not sufficient and relevant within the meaning of the ECHR. Under these circumstances, it is impossible to properly cite the decisions of the legal boards of TFF.

  4. For this view, see, Yaşar (2018, pp. 31–35). The author cited here is currently serving as a head legal in-house counsel of TFF for years and made the cited speech in her official capacity.

  5. According to Article 4 (5) (d) of the Law No. 5894, all legal boards constitute a part of the “Central Organization” within the structure the TFF. This means that TFF itself considers legal boards as its organs, not as “independent courts” within the meaning of Article 9, 138 and 142 of the Turkish Constitution. For detailed critical analyses and discussion in Turkish see, Ayanoğlu (2008, pp. 43–76); Akil (2013, pp. 388–397).

    Moreover, Civil Division of the Court of Jurisdictional Disputes do not consider the Arbitration Board (and the Dispute Resolution Board) as ‘tribunal’ within the meaning of the Constitution and therefore rejects the applicability of fair trial guarantees enshrined in the Constitution (Uyuşmazlık Mahkemesi Hukuk Bölümü, E. 2012/14, K. 2012/108, 21 May 2012).

  6. This is the official position of the Turkish Government (and the TFF) as demonstrated in its responses given in pending cases before the ECtHR. Having described lex sportiva extensively in a particular manner, Turkish Government has argued that “the TFF Boards and the TFF Arbitration Board do not have a character of a court exercising judicial function; and that it is widely accepted by international sports community that the field of sports has a specific legal order and dispute resolution mechanism independent from and parallel to the ordinary legal and judicial order. The Government therefore argues that in the context of compulsory arbitration, arbitral tribunals (the TFF Arbitration Board in the present case) cannot be considered as bodies exercising jurisdiction within the meaning of Article 6 of the Convention.” See “Observations of the Government of the Republic of Turkey on the Admissibility and Merits Concerning the Application No. 5506/16 Serkan Akal v. Turkey Before the European Court of Human Rights”, 19 November 2018, para.62 (On file with author); “Observations of the Government of the Republic of Turkey on the Admissibility and Merits Concerning the Application No. 48924/16 Naki and Amed Sportif Faaliyetler Kulübü Derneği v. Turkey Before the European Court of Human Rights”, May 2018, para.136 (On file with author); “Observations of the Government of the Republic of Turkey on the Admissibility and Merits Concerning the Applications No. 2006/13 Ekşioğlu v. Turkey and No. 10857/13 Mosturoğlu v. Turkey Before the European Court of Human Rights”, December 2018, para.118 (On file with author).

  7. Önder Deniz Kolgu v. Turkey, App. No. 2935/07, Admissibility Decision of 27 August 2013, para. 40.

  8. It is worth mentioning that Turkey submitted Court of Cassation judgments which demonstrate that the football players could claim their rights if they had also signed a protocol together with the uniform football contract.

  9. This assessment of ECtHR is quite problematic. Applicant’s choice of legal proceedings before the Arbitration Board would not be considered as an implied waiver of the applicant from fair trial rights guarantees (in this case, right to a public hearing). As a reminder, the ECtHR recently found a violation of the right to a public hearing in arbitral proceedings before Court of Arbitration for Sport (CAS) which was labelled as forced (see, Mutu and Pechstein v. Switzerland, App. Nos. 40575/10-67474/10, Judgment of 2 October 2018).

  10. Önder Deniz Kolgu v. Turkey, App. No. 2935/07, Admissibility Decision of 27 August 2013, paras. 42–47.

  11. Mediation Berti Sports v. Turkey, App. No. 63859/12, Communicated on 29 January 2018.

  12. Ömer Kerim Alı Rıza v. Turkey, App. No. 30226/10, Communicated on 6 February 2018. In this case, the applicant Ömer Kerim Ali Rıza, who holds both citizenships of Turkish and United Kingdom, brought a contractual dispute between Turkish club Trabzonspor before the Dispute Resolution Chamber of FIFA. Dispute Resolution Chamber of FIFA referred the case to the TFF on the grounds that it could not involve in a dispute between two parties of the same nationality as Ömer Kerim Ali Rıza did chose to play in Turkey as a Turkish citizen. Ömer Kerim Ali Rıza had not been satisfied with the results he obtained under the system of TFF and appeal to Court of Arbitration for Sport (CAS). However CAS ruled on its lack of jurisdiction by stating that Ömer Kerim Ali Rıza had been registered in TFF’s system over his Turkish citizenship and therefore played in Trabzonspor as a Turkish citizen According to CAS, a person who would like to benefit from an advantage should also bear its negative consequences; in other words, if he preferred the Turkish citizenship in terms of the registration, he should be treated as a Turkish citizen in terms of the law to be applied to the resolution of the dispute (CAS 2010/A/1996 Omer Riza v Trabzonspor Kulubü Dernegi and Turkish Football Federation, Award of 10 June 2010). Swiss Federal Tribunal approved the approach of CAS (First Civil Law Court, 4A_404/2010).

    After the final and definitive decision of TFF Arbitration Board, the football player applied to the ECtHR against Turkey which is pending (Ömer Kerim Alı Rıza v. Turkey, App. No. 30226/10, Communicated on 6 February 2018). In addition to the application against Turkey, Mr. Ali Rıza also applied to the ECtHR against Switzerland after the final the decision of Swiss Federal Tribunal because of the CAS awards for partially same factual grounds. On 14 March 2019, the ECtHR communicated this application to the Switzerland and invite the Swiss Government to submit its responses on the impartiality and independence of CAS, equality of arms before CAS proceedings, the right to public hearing before the CAS and/or Swiss Federal Tribunal, and on whether the applicant suffered a violation of the right of access to a court as the CAS had denied jurisdiction. In its communication, the ECtHR also refers to the application raised against Turkey for the proceedings before the TFF bodies (Ömer Kerim Alı Rıza v. Switzerland, App. No. 74989/11, Communiquée le 14 Mars 2019).

  13. Serkan Akal v. Turkey, App. No. 5506/16, Communicated on 26 April 2018 (downgrading from top-class assistant referee to national assistant referee class).

  14. Fatih Arslan v. Turkey and 2 Other Applications, App. No. 17880/11, Communicated on 6 February 2018; Ekşioğlu and Mosturoğlu v. Turkey, App. Nos. 2006/13 and 10857/13, Communicated on 4 April 2018.

  15. Sedat Doğan v. Turkey, App. No. 48909/14, Communiquée le 21 Septembre 2017; İbrahim Tokmak v. Turkey, App. No. 54540/16, Communiquée le 7 Novembre 2017.

  16. Deniz Naki ve Amed Sportif Faaliyetler Kulubü Derneği v. Turkey, App. No. 48924/16, Communiquée le 7 Novembre 2017.

  17. Sedat Doğan v. Turkey, App. No. 48909/14, Communiquée le 21 Septembre 2017; İbrahim Tokmak v. Turkey, App. No. 54540/16, Communiquée le 7 Novembre 2017; Deniz Naki ve Amed Sportif Faaliyetler Kulubü Derneği v. Turkey, App. No. 48924/16, Communiquée le 7 Novembre 2017; Fatih Arslan v. Turkey and 2 Other Applications, App. No. 17880/11, Communicated on 6 February 2018; Ekşioğlu and Mosturoğlu v. Turkey, App. Nos. 2006/13 and 10857/13, Communicated on 4 April 2018.

  18. It is worth mentioning that another case was communicated to the Turkish Government on 18 December 2017 concerning disqualification of the applicant by the Bridge Federation Disciplinary Committee from participating to competitions for a year (deprivation of rights penalty) for the reason of defamation of federation administrators in a letter addressed to the Directorate General of Youth and Sports. Department of Sports Services Arbitration Board approved this decision. The applicant alleged that his right to freedom of expression and the right to fair trial had been violated in the proceedings both before the Bridge Federation Disciplinary Committee and Department of Sports Services Arbitration Board (Melih Özdil v. Turkey, App. No. 22341/07, Communiquée le 18 Decembre 2017). However, the ECtHR found the application inadmissible (strike out decision) as being not followed by the applicant/his lawyer (Melih Özdil v. Turkey, App. No. 22341/07, Radiation du role, 13 Décembre 2018).

  19. In Turkey, there are two arbitration boards operable in the field of sports law. The first one is TFF Arbitration Board, which has jurisdiction authority exclusively on football matters, and the second one is Department of Sports Services Arbitration Board (also known as General Directorate of Sports Arbitration Board) which has jurisdiction on all sports activities other than football. Detailed legal analyses of Department of Sports Services Arbitration Board can be found in Kalelioğlu (2017), pp. 45–46.

  20. A. M. v. Turkey, App. No. 67199/17, Communicated on 20 November 2018.

  21. Interestingly, although it was the only decision concerning football arbitration until Mutu and Pechstein judgment was delivered, there are no references to Önder Deniz Kolgu case in Mutu and Pechstein judgment and in the above statement of facts of eight pending cases against Turkey.

  22. In general terms, see, Transado-Transportes Fluviais Do Sado, S.A. v. Portugal, App. No. 35943/02, Admissibility Decision of 16 December 2003, para. 1 (The Law); X. v. The Netherlands, App. No. 9322/81, Admissibility Decision of 3 May 1983.

  23. Casini (2011, pp. 1318–1319).

    For the different definitions of sports law, including lex sportiva, see, Siekmann (2012, pp. 375–378); Nafziger (2012, pp. 53–67); Latty (2012, pp. 279–284); Fax (2012, pp. 288–289); Casini (2011, pp. 1318–1320); Pijetlovic (2015, pp. 7–8).

  24. Of course, there are notable exceptions to that ‘tradition’. For detailed information see Schönwald (2016, pp. 329–332).

  25. In fact, the reality is very different to a certain extent. First of all, national and international sports governing bodies and federations’ role and powers are mostly public or at least quasi-public and therefore may (and should) engage governmental responsibility since these the said bodies are only competent institutions governing relevant sports competitions either in national or international level. Moreover, notwithstanding their private law nature, their exclusive power to regulate the field of sports are undisputedly recognized by States (Governments). Therefore, it is even national and international sports ‘associations’ actions and decisions are attributable to the states, at least horizontally.

  26. For the interventionist model of sport governance, see Siekmann and Soek (2010, pp. 94–98). The authors consider France, Bulgaria, Cyprus, Czech Republic, Italy, Latvia, Portugal, Romania and Spain as interventionist states (all differs with regard to the extent of state control) in sports governance.

    For Bulgaria, see particulary Kanatova-Buchkova (2010, pp. 103–109); for France, see particularly Verheyden (2010, pp. 25–29); for Italy, see particularly, Foppen (2010, pp. 84-92, 84-89).

  27. English translation of Law on the Establishment and Duties of Turkish Football Federation is provided by the TFF in its internet site (http://www.tff.org.tr/Resources/TFF/Documents/02010DK/TFF/ENG/Tal/TFF-LAW-NO-5894.pdf) (accessed 4 December 2018).

  28. In accordance with recent constitutional changes entered into force (Law No. 6771), Turkey has shifted from the parliamentary model of government to a kind of presidential model of government. Thus, all references to the Council of Ministers in the legislation (if still exists like the one in TFF legislation) refers to the President of Turkey from now on, who is the only body in the administration. This change does not affect the legal analyses above.

  29. In using the terms ‘Dispute Resolution Board’, ‘Disciplinary Boards’ and ‘Arbitration Board’ I follow the translations provided or accepted by the European Court of Human Rights (for the term ‘Arbitration Board’ see, Önder Deniz Kolgu v. Turkey, App. No. 2935/07, Admissibility Decision of 27 August 2013; for the term ‘Disciplinary Board’ see, Ekşioğlu and Mosturoğlu v. Turkey, App. Nos. 2006/13 and 10857/13, Communicated on 4 April 2018; for the term ‘Dispute Resolution Board’ see, Mediation Berti Sports v. Turkey, App. No. 63859/12, Communicated on 29 January 2018).

    However, in its original translations, TFF has used the terms ‘Dispute Resolution Committee’, ‘Disciplinary Committees’ and ‘Arbitration Board’ (See, Law on the Establishment and Duties of Turkish Football Federation, http://www.tff.org.tr/Resources/TFF/Documents/02010DK/TFF/ENG/Tal/TFF-LAW-NO-5894.pdf) (accessed 4 December 2018).

  30. In France, it is accepted that sports organisations perform a public service, and therefore the State can intervene to a certain extent in the regulation of sports activities. See, Cornu et al. (2018), pp. 22–24.

  31. See, mutadis mutandis (in locus standi context), Municipal Section of Antilly v. France, App. No. 45129/98, Admissibility Decision of 23 November 1999; National Notary Chamber v. Albania, App. No. 17029/05, Admissibility Decision of 6 May 2008.

  32. Similar situation exists in France, where “Sports Code provides for a standard set of disciplinary regulations to be adopted by the executive authority of the state, which must be complied with by all the sports federations to which a public sport service task has been delegated.” In the sphere of disciplinary powers, sports governing bodies considered to act on behalf of French State. See Cornu et al. (2018, p. 26).

  33. See, mutadis mutandis, Ayuntamiento de M. v. Spain, App. No. 15090/89, Admissibility Decision of 7 January 1991, D.R. Vol. 68, pp. 209–215; Ayuntamiento de Mula v. Spain, App. No. 55346/00, Admissibility Decision of 1 February 2001.

  34. See, mutadis mutandis, Assanidze v. Georgia, App. No. 71503/01, GC Judgment of 8 April 2004, para. 149; Rafailovic and Stevanovic v. Serbia, App. Nos. 38629/07 and 23718/08, Judgment of 16 June 2015, paras. 63, 65–67.

  35. Lenzing v. the United Kingdom, App. No. 38817/97, Admissibility Decision of 9 September 1998; Lenzing v. Germany, App. No. 39025/97, Admissibility Decision of 9 September 1998; Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, App. No. 45036/98, GC Judgment of 30 June 2005; cf., Behrami and Behrami v. France, and Saramati v. France, Germany and Norway, App. Nos. 71412/01 and 78166/01, GC Admissibility Decision of 2 May 2007.

  36. Costello-Roberts v. the United Kingdom, App. No. 13134/87, Judgment of 25 March 1993, paras. 27–28.

  37. Van Der Mussele v. Belgium, App. No. 8919/80, Judgment of 23 November 1983, paras. 29–30.

  38. McArdle (2015, pp. 30–32); Antoine Duval (2017).

  39. See, Regent Company v. Ukraine, App. No. 773/03, Judgment of 3 April 2008, para. 54.

  40. Article 59 of the 1982 the Turkish Constitution now reads as follows:

    Article 59 – Development of Sports and Arbitration

    The State shall make 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.

    (17 March 2011 – 6214/1) 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.

    Translations are semi-official and provided by the Turkish Constitutional Court.

    (http://www.constitutionalcourt.gov.tr/inlinepages/legislation/pdf/constitution_en.pdf) (Accessed 13 March 2019).

  41. The reference of the Turkish Constitutional Court decision is as follows: E. 2010/61, K.. 2011/7, Date 6 January 2011, (Official Gazette: dated 26 February 2011, no. 127858).

  42. Semi-official translation is provided at:

    http://www.constitutionalcourt.gov.tr/inlinepages/legislation/LawOnConstitutionalCourt.html (Accessed 13 March 2019).

  43. Turkish Constitutional Court, Application of Abdurrahman Akyüz, App. No. 2012/620, 12 February 2013, paras. 20–22. In fact, since the sanction in question was imposed by the Central Sanction Board of General Directorate of Sports, not a sport federation, the wording of Article 59 (3) of the Constitution suggests that the Turkish Constitutional Court should not have rejected this case on the grounds of jurisdiction ratione materiae.

  44. Turkish Constitutional Court, Application of Naz Aydemir, App. No. 2013/850, 19 December 2013, paras. 25–30.

  45. Turkish Constitutional Court, Application of Ertan Hatipoğlu, App. No. 2015/1993, 18 April 2018; Turkish Constitutional Court, Application of Ziya Özel, App. No. 2015/1996, 10 May 2018.

  46. Turkish Constitutional Court, Application of Recep Şükrü Ergün, App. No. 2013/8256, 7 April 2014, paras. 17–19 (Unpublished Commission Decision- on file with author).

  47. Turkish Constitutional Court, Application of Öztürk Yazıcı, App. No. 2014/4549, 22 February 2007, paras. 15–17.

  48. Grand National Assembly of Turkey, 23rd Session, 5th Legislative Year, Ordinal Number:697.

  49. Before the annulment, Article 5 (2) of the Act No. 5894 read as follows (English translation is provided by TFF in its web site):

    (2) TFF’s legal committees of first instance shall be exclusively authorized to decide on club licensing matters and adjudicate on disputes that may arise from or in connection with the present Law, the TFF Statute, any other regulations and directives of the TFF as well as any decisions taken by the competent TFF committees and bodies.

  50. Detailed critical analyses is provided in Kalelioğlu (2017, pp. 34–35, 42).

  51. See, Turkish Constitutional Court, E. 2017/136, K. 2018/7, Judgment of 18 January 2018, Official Gazette, No. 30348, 2 March 2018.

  52. Adopted by TFF Executive Board on 16 February 2019, Meeting No. 109. This modification was published on the internet site of TFF on 18 February 2019 and entered into force on 2 March 2019 in accordance with the Article 23 of the Regulation of Dispute Resolution Board.

  53. The exclusive jurisdiction of the Dispute Resolution Board on training compensation and sporting sanctions still remains in the new Regulation.

  54. It should be emphasized that, as first instance legal boards, Club Licencing Committee and Ethics Committee and even the disciplinary boards have lost their competence on disciplinary issues since 2 March 2019.

  55. In general terms, see, ILC Articles on Responsibility of States for Internationally Wrongful Acts. (2001) ILC Yearbook 2 (2), http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.

  56. In general terms, see, Cornu et al. (2018), pp. 18–20).

  57. Schabas (2015, p. 105).

  58. For instance, see Haas (2012, pp. 45–47); Faut (2014, pp. 253–263), especially 257–262; cf., Schönwald (2016, pp. 346–347).

  59. Clapham (1993, pp. 163–206).

  60. Arai-Takahashi (2002, p. 9).

  61. Schabas (2015, p. 81); also see Palomo Sánchez and Others v. Spain, App. No. 28955/06, 28957/06, 28959/06, and 28964/06, GC Judgment of 12 September 2011, para. 54.

  62. Mutu and Pechstein v. Switzerland, App. Nos. 40575/10-67474/10, Judgment of 2 October 2018, paras. 65–67.

  63. Interestingly, the ECtHR did not need to mention its (and the former European Commission of Human Rights’) Spaans line of cases in which it found that the Netherlands cannot be held liable for the actions and decisions of international tribunals such as Iran–United States Claims Tribunal, International Criminal Tribunal for the Former Yugoslavia and International Criminal Court. See, Ary Spaans v. Netherlands, App. No. 12516/86, Admissibility Decision of 12 December 1988, DR Vol. 58, p. 122; Blagojevic v. The Netherlands, App. No. 49032/07, Admissibility Decision of 9 June 2009; Galic v. The Netherlands, App. No. 49032/07, Admissibility Decision of 9 June 2009; Djokaba Lambi Longa v. The Netherlands, App. No. 33917/12, Admissibility Decision of 9 October 2012. In those line of cases, the Strasbourg organs have stressed that the international tribunals are immune from the jurisdiction of the host state under international law, decided that an immunity which limits national sovereignty in order to ensure the functioning of an international body does not pose a problem in terms of the Convention and declared the application inadmissible ratione personae.

    Surprisingly, the Swiss Government did not refer to those lines of cases in its objections related to attribution problem for the awards of CAS. In fact, the ECtHR itself found the Swiss Government’s objections in this regard quite vague (see, Mutu and Pechstein v. Switzerland, App. Nos. 40575/10-67474/10, Judgment of 2 October 2018, paras. 60–64). In any case, this argument (international tribunals are immune from the jurisdiction of the host state under international law) is not applicable with regard to CAS, since CAS awards are subjected to Swiss Federal Tribunal’s review in accordance with PILA.

  64. Here one can also remind two other cases in which the ECtHR has accepted the responsibility of Switzerland for its conducts, which stemmed from United Nations Security Council decisions and European Union law obligations on asset freezing and travel bans (See, Nada v. Switzerland, App. No. 10593/08, GC Judgment of 12 September 2012, paras. 117–123; Al-Dulimi and Montana Management INC. v. Switzerland, App. No. 5809/08, GC Judgment of 21 June 2016, para. 95).

  65. National Federation of Sports Persons’ Associations and Unions (FNASS) and Others v. France, App. Nos. 48151/11 and 77769/13, Judgment of 18 January 2018, paras. 57–58.

  66. Said document of undertaking is taken by TFF as a condition of registration for both footballers and the clubs, and should be signed before the public notary (See, Regulation on the Status and Transfer of Professional Players, August 2016, Additional Articles 2 and 3). TFF also obliges clubs and football players to sign a uniform contract in which it is stated that they will comply with the exclusive jurisdiction of legal boards of TFF by giving reference to legislation of TFF for settlement of disputes arising from football contracts. Furthermore, in accordance with the provisions of Club Licencing Regulation of 2016, which has been enacted by TFF as self-legislative act, clubs are also obliged to state their acknowledgement of the jurisdiction of legal boards of TFF under TFF legislation when they apply for the compulsory licencing.

  67. Deweer v. Belgium, App. No. 6903/75, Judgment of 27 February 1980, para. 49.

  68. Scoppola v. Italy (no. 2), App. No. 10249/03, GC Judgment of 17 September 2009, para. 135; Oberschlick v. Austria, App. No. 11662/85, Judgment of 21 May 1991, para. 51; Pfeifer and Plankl v. Austria, App. No. 10802/84, Judgment of 25 February 1992, paras. 37–39; Poitrimol v. France, App. No. 14032/88, Judgment of 23 November 1993, para. 31.

  69. Scoppola v. Italy (no. 2), App. No. 10249/03, GC Judgment of 17 September 2009, para. 135; Pfeifer and Plankl v. Austria, App. No. 10802/84, Judgment of 25 February 1992, paras. 37; Osmo Suovaniemi and others v. Finland, App. No. 31737/96, Admissibility Decision of 23 February 1999; Tabbane v. Switzerland, App. No. 41069/12, Admissibility Decision of 1 March 2016.

    For example, in the latter case (concerning waiver of access to court in commercial arbitration through contract), the ECtHR found that the waiver had been attended by adequate procedural guarantees as the applicant’s arguments had been heard and relevant factual and legal elements had been duly considered by Federal Court, one arbitrator had been selected by the applicant freely, applicable law was selected freely and applied in due course, Federal Court has given adequate reason for its judgment (Tabbane v. Switzerland, App. No. 41069/12, Admissibility Decision of 1 March 2016).

  70. Mutu and Pechstein v. Switzerland, App. Nos. 40575/10-67474/10, Judgment of 2 October 2018, paras. 160–168. The European Court found no violation by a 5-2 majority.

  71. Suda v. the Czech Republic, App. No. 1643/06, Judgment of 28 October 2010, para. 50.

  72. For this distinction see, Besson (2006), p. 398 and para. 17.

  73. Suda v. the Czech Republic, App. No. 1643/06, Judgment of 28 October 2010.

  74. European Commission, Case AT.40208—International Skating Union's Eligibility rules, Brussels, 8 December 2017 C(2017) 8240 final.

  75. Mutu and Pechstein v. Switzerland, App. Nos. 40575/10-67474/10, Judgment of 2 October 2018, paras. 109–115 (with regard to Pechstein).

    It is interesting to note that here the ECtHR did not discuss one of the old ruling of the former European Commission of Human Rights in X. v. the Netherlands case, in which it was stated that ‘‘in the instant case it is of the opinion that the applicant freely chose to become a professional football player knowing that he would in entering the profession be affected by the rules governing the relationship between his future employers.’’ (X. v. The Netherlands, App. No. 9322/81, Admissibility Decision of 3 May 1983).

  76. On the other hand, with regard to contracts between the player and the club in which parties give consent to arbitrate, the ECtHR considers this consent holds free nature notwithstanding the unbalanced bargaining position of players against financially strong clubs, unless the applicant proves that he/she is forced to accept the arbitration clause as most of the alternative clubs impose similar obligations on all players and otherwise he/she has to give up his/her profession as a player. The ECtHR also takes into account sports governing bodies’ regulations. According to the European Court, arbitration clause in the contract between the player and the club can only be valid if relevant sports governing bodies’ regulations permit parties to freely choose the forum for the resolutions of disputes. (see, Mutu and Pechstein v. Switzerland, App. Nos. 40575/10-67474/10, Judgment of 2 October 2018, paras. 116–120—with regard to Mutu).

  77. With regard to the applicability of the guarantees under Article 6, proceedings regarding the dispute must be brought before a court or tribunal. Consequently, the legal status of the TFF Arbitration Board, whether it falls under the court/tribunal criterion or not is a preliminary question to be resolved. However, the ECtHR already ruled that TFF Arbitration Board qualifies as court/tribunal within the meaning of Article 6 of the Convention (Önder Deniz Kolgu v. Turkey, App. No. 2935/07, Admissibility Decision of 27 August 2013, para. 40).

  78. Thomassen (2015, p. 33).

  79. Schabas (2015, pp. 272–276); Thomassen (2015, p. 33).

  80. See Haas (2012, pp. 47–48); Lukomski (2013, pp. 64–65); Thomassen (2015, p. 33).

  81. Mutadis mutandis, Golder v. UK, App. No. 4451/70, Judgment of 21 February 1975, Series A. No. 18, para. 27; Brudnicka and Others v. Poland, App. No. 54723/00, Judgment of 3 March 2005, paras. 33–34.

  82. Mutu and Pechstein v. Switzerland, App. Nos. 40575/10-67474/10, Judgment of 2 October 2018, para. 57 (Mutu) and para. 58 (Pechstein).

  83. Cañas. v. ATP Tour, SFT 4P.172/2006, Judgment of 22 March 2007; Lazutina & Danilova v. Comité International Olympique (IOC) & Fédération Internationale de Ski (FIS), SFT 4P. 267, 268, 269 & 270/2000, Judgment of 27 May 2003.

    For the analyses of these cases see, Rigozzi and Robert-Tissot (2015, pp. 59–94, 63–73); Duval and van Rompuy (2015, pp. 267–269).

    The present author would like to remind that the case of Lazutina and Danilova also brought before the ECtHR after the final decision of Swiss Federal Tribunal. The ECtHR communicated the application to the Swiss Government and invited the Swiss Government to provide its responses. However, upon the request of the applicants withdraw the application, the ECtHR decided to strike out the application (Lazutina and Danilova v. Switzerland, App. No. 38250/03, Strike Out Decision of 3 July 2008).

  84. A. and B. v. WADA and Flemmish Tennis Federation, SFT 4A_428/2011, Judgment of 13 February 2012 (English translation provided by Swiss International Arbitration Decisions: http://www.swissarbitrationdecisions.com/sites/default/files/13%20fevrier%202012%204A%20428%202011.pdf (accessed 19 March 2019). For the analyses of this case, see, Lukomski (2013, pp. 63–64).

  85. X. v. Z. SA., SFT 4A_238/2011, Judgment of 4 January 2012 (English translation provided by Swiss International Arbitration Decisions: http://www.swissarbitrationdecisions.com/sites/default/files/4%20janvier%202012%204A%20238%202011.pdf (accessed 19 March 2019).

  86. For other and ambiguous awards of CAS pertaining to the applicability of ECHR standards, see, Cornu et al. (2018, pp. 43–44).

  87. At this point, CAS quotes not only the Swiss Federal Court decisions but also various articles, including but not limited to that of Haas’s.

  88. CAS 2013/A/3139, Fenerbahçe SK v. UEFA, Award of December 2013, paras. 83–103, especially paras. 92–95. In this dispute, Fenerbahçe SK claimed that the objective liability of the club for the actions of the fans was in violation of certain aspects of Article 6 of the ECHR. Fenerbahçe SK also asserted that it was impossible to waive fundamental freedoms (para. 27). CAS panel has deemed this an issue among specific considerations to be examined in its decision (para. 37).

  89. Also known as Engel criteria (See, Engel and Others v. the Netherlands, App. Nos. 5100/71, 5101/71, 5102/71, 5354/72, 5370/72, Judgment of 8 June 1976, paras. 82–83).

  90. Here is the final and non-reasoned decision of the Arbitration Board, delivered on 1 February 2018:

    ‘Futbol Disiplin Talimatı'nın 88/3. maddesi uyarınca, PFDK'nın 30.01.2018 tarih ve E.2017-2018/546 - K.2017-2018/648 sayılı kararı incelendi. Yapılan müzakere neticesinde;

    - AMED Sportif Faaliyetler Kulübü futbolcusu Deniz Naki'nin ayrımcılık ve ideolojik propaganda nedeniyle FDT'nin 42/1-a 35/4 ve 4/2 maddeleri uyarınca 3 yıl 6 ay müsabakalardan men cezası ve 273.000,00 TL para cezası ile cezalandırılmasına 3 yılı aşan ceza bakımından FDT'nin 95/1 maddesi uyarınca sürekli hak mahrumiyeti cezası ile cezalandırılmasında sübut, hukuki niteleme ve cezanın tayini bakımından bir isabetsizlik bulunmadığı anlaşıldığından cezanın onanmasına, oybirliği ile’ (E.2018/36 - K.2018/33) (http://www.tff.org/default.aspx?pageID=247&ftxtID=28677) (emphasis original- accessed 4 December 2018).

    In this second and ultimate sanction, the Disciplinary Board and the Arbitration Board took into account his first sanction for breaching ideological/political propaganda ban in expelling him playing football in Turkey.

  91. Scarth v. The United Kingdom, App. No. 33745/96, Final Report of the Commission of 21 October 1998; Judgment of 22 July 1999.

  92. See, Bramelid ve Malmström v. Sweden, App. No. 8588/79-8589/79, Final Report of the Commission of 12 December 1983, paras. 30–32; Suda v. the Czech Republic, App. No. 1643/06, Judgment of 28 October 2010.

  93. Also see the explanation provided above 2.2. of this article.

  94. Önder Deniz Kolgu v. Turkey, App. No. 2935/07, Admissibility Decision of 27 August 2013.

  95. See, Önder Deniz Kolgu v. Turkey, App. No. 2935/07, Admissibility Decision of 27 August 2013, para. 40; Mutu and Pechstein v. Switzerland, App. Nos. 40575/10-67474/10, Judgment of 2 October 2018, para. 149.

  96. Albert and Le Compte v. Belgium, App. No. 7299/75, Judgment of 10 February 1983, para. 29; Bryan v the United Kingdom, App. No. 19178/91, 22 November 1995, para. 40; Saghatelyan v. Armenia, App. No. 7984/06, Judgment of 20 October 2015, para. 39.

  97. In this particular context, one should take the recent cooperation between the Council of Europe and UEFA into consideration. On 30 May 2018, the Council of Europe and UEFA agreed on a memorandum in which it is held that football arbitration in resolving sports disputes should be compatible with fair trial standards enshrined in Article 6 of the Convention. Although these provisions of the memorandum cannot be interpreted or accepted as creating rights or obligations under international law (Article 6 of the Memorandum), it nevertheless means that even UEFA has accepted the importance of fair trial standards and human rights concerns in football arbitration.

    UEFA’s embracement of the applicability of fair trial standards in football arbitration is significant in the sense that it prevents any attempt to use UEFA regulations pertaining to arbitration to justify the ignorance of human rights in football arbitration (the argument of the Turkish Government in pending cases before the ECtHR—see fn. 6 above). The Memorandum of Understanding between the Council of Europe and UEFA suggests that any possible arguments on the inapplicability of human rights concerns in football arbitration based on UEFA’s regulations and approach are null and void. (Memorandum of Understanding Between the Council of Europe and the Union of European Football Associations (UEFA), Articles 1 (6) and 6.).

  98. See, mutadis mutandis, Brudnicka and Others v. Poland, App. No. 54723/00, Judgment of 3 March 2005, para. 38.

  99. Accordingly, the ruling of ECtHR in the Mutu & Pechstein case that the closed list arbitrator system does not impair independence and impartiality of CAS does not have the value of precedent for TFF system of arbitration (Mutu and Pechstein v. Switzerland, App. Nos. 40575/10-67474/10, Judgment of 2 October 2018, paras. 150–159).

  100. See, Vesiyoğlu v. Turkey, App. No. 27341/02/02, Judgment of 26 June 2007, paras. 27–28 with further references.

  101. Agrokompleks v. Ukraine, App. No. 23465/03, Judgment of 6 October 2011, para. 126.

  102. See, mutadis mutandis, Vesiyoğlu v. Turkey, para. 30.

  103. Here one should take into consideration the legal effect of Article 70 of the TFF Football Disciplinary Regulations (entered into force in August 2017). Article 70 of the TFF Football Disciplinary Regulations provides that any member of the Disciplinary Board shall be obliged to withdraw from the Board with regard to issue at hand if the case may cast serious doubt as to the impartiality of that member. In accordance with the said article, it is also possible for the parties to the disciplinary dispute to object a member when they have serious doubt with regard to the impartiality of that member.

    Present author believes that these safeguards are not enough to make Disciplinary Boards independent and fully impartial. First of all, these safeguards are only related to impartiality, not independence, which is the real problem in the proceedings before Disciplinary Boards. The safeguards are seeming to be introduced with a view to render the sanctioning procedure more efficient, not to safeguard the rights of accused. Secondly, there is nothing in these provisions (Article 70 of the TFF Football Disciplinary Regulations) suggest the impartiality of the members against the influence of TFF and its competent boards.

  104. Accordingly, the Sramek standard of the ECtHR (Sramek v. Austria, App. No. 8790/79, Judgment of 22 October 1984, paras. 37–38) does not have the value of precedent in the particular context of TFF dispute resolution system.

  105. Ibid, para. 42.

  106. For example, Regulation of the Arbitration Board of 11 August 2017.

    What is also ironical is the fact that the Arbitration Board has also jurisdiction to review the regulations and decisions issued by the TFF Executive Board.

  107. Uyuşmazlık Mahkemesi Hukuk Bölümü (Civil Division of the Court of Jurisdictional Disputes), E. 2012/14, K. 2012/108, 21 May 2012.

    This is the subject of one pending case before the ECtHR (see, Mediation Berti Sports v. Turkey, App. No. 63859/12, Communicated on 29 January 2018).

  108. See, mutadis mutandis, Bramelid and Malmström v. Sweden, App. No. 8588/79-8589/79, Final Report of the Commission of 12 December 1983, para. 35; Oleksandr Volkov v. Ukraine, App. No. 21722/11, Judgment of 9 January 2013, para. 106; Morice v. France, App. No. 29369/10, GC Judgment of 23 April 2015, para. 78; Mutu and Pechstein v. Switzerland, App. Nos. 40575/10-67474/10, Judgment of 2 October 2018, para. 143.

  109. Mutadis mutandis, Brudnicka and Others v. Poland, App. No. 54723/00, Judgment of 3 March 2005, para. 41.

  110. For example, Article 21 of Regulation of Dispute Resolution Board of 2019 (for supreme committee members); Article 22 of the Regulation of the Arbitration Board of 11 August 2017. This is an issue that the ECtHR may pursue in pending Tokmak case (see, İbrahim Tokmak v. Turkey, App. No. 54540/16, Communiquée le 7 Novembre 2017).

  111. One can see Dispute Resolution Board as a partial exception. Among others, arbitrators for Dispute Resolution Board are nominated not only by clubs’ association but also by the players’ associations. But in the final analyses, all arbitrators are appointed by the TFF Executive Board and the President as in the case of Disciplinary Boards and the Arbitration Board (See, Article 3 of the Regulation of Dispute Resolution Board of 2019). Furthermore, the composition of the Dispute Resolution Board reveals specific fair trial problems as Dispute Resolution Board consists of fixed supreme committee, one of whom always involved in every case, and the arbitrator chosen by the parties of the dispute from the pool of arbitrators [for detailed analyses, see Kalelioğlu (2017, pp. 41–43)].

  112. Mehmet Aurelio v. Fenerbahçe SK, Decision of the Arbitration Board, E. 2009/307, K.2009/469, T.20/08/2009 (in Adnan Türkkan—Serap Amasya, Tahkim Kurulu Örnek Kararları (14.02.2008–29.06.2011 Dönemi), 2 Cilt, Türkiye Futbol Federasyonu Yayınları, p.451). What is also very striking that the arbitrator in question voted in favour of the respondent club of which he was a member while the majority of the Arbitration Board ruled against the respondent club.

  113. İbrahim Tokmak v. Turkey, App. No. 54540/16, Communiquée le 7 Novembre 2017; Mediation Berti Sports v. Turkey, App. No. 63859/12, Communicated on 29 January 2018; İlhan Yüksel Ekşioğlu and Mehmet Şekip Mosturoğlu v. Turkey, App. Nos. 2006/13 and 10857/13, Communicated on 4 April 2018; Serkan Akal v. Turkey, App. No. 5506/16, Communicated on 26 April 2018; A. M. v. Turkey, App. No. 67199/17, Communicated on 29 November 2018.

  114. Turkish Constitutional Court, E. 2010/61, K. 2011/7, 6 January 2011, (Official Gazette: dated 26 February 2011, no. 127858).

  115. For this allegations, see pending Sedat Doğan v. Turkey, App. No. 48909/14, Communiquée le 21 Septembre 2017; İbrahim Tokmak v. Turkey, App. No. 54540/16, Communiquée le 7 Novembre 2017; Deniz Naki ve Amed Sportif Faaliyetler Kulubü Derneği v. Turkey, App. No. 48924/16, Communiquée le 7 Novembre 2017.

  116. For example, see, Öner Yıldız v. Turkey, App. No. 48939/99, Grand Chamber Judgment of 30 November 2004, para. 145.

  117. Iovchev v. Bulgaria, App. No. 41211/98, Judgment of 2 February 2006, para. 142.

  118. This is the expectation of ECtHR. See Kalelioğlu (2017, p. 37).

  119. Kalelioğlu (2017, p. 37); Cornu et al. (2018, pp. 36, 37–38, 40–41).

  120. Cornu et al. (2018, p. 38).

  121. Mutu and Pechstein v. Switzerland, App. Nos. 40575/10-67474/10, Judgment of 2 October 2018, paras. 150–159.

  122. See, Fact Sheet on Sport and the European Convention on Human Rights, March 2019, Press Unit of ECtHR.

  123. For example, if the ECtHR finds a violation of right to freedom of expression in pending Naki and Others case (Deniz Naki ve Amed Sportif Faaliyetler Kulubü Derneği v. Turkey, App. No. 48924/16, Communiquée le 7 Novembre 2017), the judgment will have important implications for all SGBs since the subject matter of the application is related to prohibition of political/ideological speech of athletes which is almost universally accepted ban by the SGBs.

    Similarly, if the ECtHR finds a violation of the right to respect for privacy in pending Ekşioğlu and Mosturoğlu case (Ekşioğlu and Mosturoğlu v. Turkey, App. Nos. 2006/13 and 10857/13, Communicated on 4 April 2018), the judgment will affect the general standard of sports law accepted by CAS on the use and validity of illegally obtained evidence in disciplinary proceedings.

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    H. Burak Gemalmaz

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Gemalmaz, H.B. Applicability of human rights standards in Turkish football arbitration: the contribution of the European Court of Human Rights. Int Sports Law J 19, 38–58 (2019). https://doi.org/10.1007/s40318-019-00151-w

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