Turkey: Same But Different: Should The Match Fixing Agreements Be Regarded As Anti-Competitive Conducts?

Last Updated: 27 July 2015
Article by Şahin Ardiyok and Belit Polat

Turkish football was shaken on 2011 by the match-fixing allegations against nearly 100 football club officials. The police investigation turned into a scandal on game fixing behaviors of many high-profile officials and players. Multiple offenders were jailed - which included players and coaches as well as presidents of the leading football clubs.

On October 2011, upon a complaint to the Turkish Competition Authority (the TCA), a ruling was given on whether the match-fixing activities which allegedly occurred during the Turkish Football Federation's (TFF) 2010-2011 super league season constituted an anti-competitive agreement within the scope of the Article 4 of the Competition Act.

The main discussion during the pre-investigation process, focused on whether the Football Clubs were regarded to be undertakings.

Similar to the relevant legislation in the EU, Turkish competition rules define an "undertaking" as entities which can decide independently and constitute an economic activity. The potential undertaking status of the football clubs as "independent units"  lead to a discussion on the "economic nature of football games". Here is a hint of the complex reasoning used by the TCA in order to justify its ruling.

Are football clubs independent units?

As far as sport clubs are concerned, the case-law is full of examples defining such institutions as independent undertakings. Therefore, this was not considered to be a point of refusal.  The heated debate revolved around the analysis of economic nature of football clubs.

Do football games have an economic nature?

Interestingly, the Board reminded that conducting economic activities is not enough in itself for an independent unit to be considered to be an undertaking.  According to the law, the  anti-competitive act of the questioned unit must have an economic nature. That is why, it was reasoned that economic actions carried out by the football clubs through managing club-stores, earning revenue from broadcast rights etc. did not necessarily correlate to the specific issue of match fixing. Thus, football clubs were not considered to be undertakings as the football matches in question did not have an economic character.

The TCA marked that the football matches brought some economic gains (such as bonuses, broadcast rights etc.) on the alongside; however these economic gains did not necessarily attach to the definition of an undertaking. In this sense despite the contribution of the sportive success to economic performance, the relationship between the economic gains achieved from the matches was regarded to have an indirect nature.

As a result, the Board did not conceive football matches as economic activities and refused to apply the status of "undertaking" to football clubs. Consequently, the match fixing acts were concluded to be out of the scope of the Competition Act, and thus, the Board rejected the complaint.

Ongoing debates

A fascinating dissenting vote was written by two members of the Board which challenged conclusions reached by the ruling. There was a hot debate on the economic characteristic of football games. The dissenting votes pointed out the industrial nature of modern sports and the importance of matches in this industry, stressing that football games had an economic dimension. The industrialization process of modern sports has been emphasized and it was claimed that nowadays sports has become a marketable service of money, business and pleasure.

Here's a summary of some crucial points raised by the dissenting Board members:

  • In the football industry, clubs are rested with the role to offer the "football supply" to the market. Accordingly, an organization, in this case -a football team- which forms the production unit of the industry, must be established. Due the nature of this industry, teams are required to interact via professional games, leagues or tournaments in order to provide an appropriate product for the watcher/supporter/client. Thus, competition appears to be the raw material of financial gains since it is the essential element that stimulates ratings in this industrial system.
  • A "Cycle of Success for Football" which established the reciprocity between sportive and financial success was drawn by the dissenting members. In this cycle, the games - which are seen as the products of the football industry- are regarded to be in an indispensable position.
  • The explicit relation between sportive and financial success is considered to be direct. In fact, the idea was backed by a recent decision (Christelle Deliege Case) of the European Court of Justice, stating that even the amateur and local athletes earning any kind of financial income for their sportive performances shall be considered as conducting an economic activity.

All these arguments support the impressively well-justified dissenting vote of the two board members to the ruling. For this reason, the debate on the scope of the Competition Act as regard to its application to match-fixing behaviors does not seem to be over since it is sparks interrogations on the definition of an "undertaking" and the appreciation of the economic nature of football games. However, the current situation shows that the football clubs are too big to fall.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Şahin Ardiyok
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