Introduction

The dispute resolution system related to the contracts signed between the clubs, football players, coaches, and agents within football activities ("football contracts") is duly regulated in Law on Regarding the Establishment and Duty of Turkish Football Federation numbered 5894 ("Law on TFF"), the TFF Statute, and the Regulations on the Dispute Resolution Committee ("Regulations on DRC"), which have been issued by the TFF.

In this regard, the national sports jurisdiction mechanism established within the TFF for the settlement of disputes arising from football contracts has two-stages: The parties primarily may apply to the Turkish Football Federation Dispute Resolution Committee as the first instance body, and they may apply to the Turkish Football Federation Arbitration Board ("Arbitration Board") in order to appeal the decisions of DRC. Within the scope of this article, the DRC, which is the first instance sporting judicial body, is examined.

Dispute Resolution Committee and Its Organization

The DRC was established within the TFF in 2007[1] for the resolution of sporting financial and administrative disputes[2], and is one of the first instance legal committees[3] of the TFF pursuant to Article 5(1) of the Law on the TFF. The DRC examines and decides all disputes related to football that arise from the contracts signed between clubs, football players, coaches and agents.

The DRC is composed of arbitrators and the Board of Presidents, which is comprised of 5 individuals who are appointed by the TFF's Board of Directors. The arbitrators who are listed on the Arbitrators List are required to be put forth by the Clubs Association, the Professional Footbal Player's Association, and the Turkey Football Coaches Association, and accepted by the TFF's Board of Directors[4].

The disputes are handled by a total of three arbitrators, two of whom are to be chosen from the Arbitrators List by the Parties, and one is be elected as President from the Board of Presidents. For this reason, the judgment proceeding of the DRC is deemed to be an arbitration based on the provided list of arbitrators[5].

According to the Law on TFF, the TFF Statute and Regulations on the DRC, it states that the arbitrators and members of first instance committees are to be impartial and independent during the performance of their duties[6]. However, it is frequently discussed within the concept of impartiality and independency of the arbitrators that the ones provided on the Arbitrators List have been approved by the TFF's Board of Directors, and the members of the Board of Presidents are directly appointed by the TFF's Board of Directors[7].

Finally, the TFF's Board of Directors employs coordinators for administrative work of the DRC, and for the submission of the cases before the DRC to the Board of Presidents and related arbitrators. The coordinators work under, and report to, the Board of Presidents. Upon the suggestion of the Presidency of the DRC, the TFF's Board of Directors designates secretaries for secretarial services[8].

Jurisdiction of DRC

Jurisdiction of the DRC in Accordance with the Regulations of 2011-2019

From its establishment in 2007 until 2009, the DRC had been exclusively responsible for examining all disputes arising from the contracts related to football, and functioned as a mandatory arbitration body in accordance with the former Law numbered 3813[9]. The TFF Law, which entered into force in 2009, did not include any provisions regarding the duties and jurisdiction of the DRC; in other words, the initiative was left to the TFF concerning the jurisdiction of the TFF.

In accordance with the amendment made in Article 59 of the Turkish Constitution in 2011[10], Articles 55 and 56 of the TFF Statute were also amended, and the DRC was regulated as both voluntary and mandatory arbitrations. Pursuant to this amendment, the Parties were free to accept the jurisdiction of the DRC (voluntary arbitration) in disputes arising from football contracts. Meanwhile, they were obliged to choose, exclusively, the DRC as a competent authority for the resolution of the disputes related to sporting penalties and training compensation (mandatory arbitration).

The DRC, which held voluntary arbitration authority functions in the disputes arising from football contracts between 2011 and 2015, was "exclusively" authorized to examine the disputes arising from football contracts as a result of the amendments of Articles 55 and 56 of the TFF Statute with the decision of the General Assembly dated 25.6.2015 of the TFF General Assembly. In this respect, since 2015, the UCK has functioned for mandatory arbitrations, in the pre-2011 period in the disputes arising from the football contracts, until the decision of the Constitutional Court dated 18.01.2018 and numbered 2017/136 E., 2018/7 K ("Decision of CC")[11].

Decision of Constitutional Court

Article 5 of the Law on the TFF, which includes the list of first instance legal committees of the TFF, has the following provision in its subparagraph 2: "The TFF's first instance legal committees 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." This provision is cancelled by the decision of the Constitutional Court dated 18.01.2018 and numbered 2017/136 E. 2018/7 K.[12] The objection to this provision, which is subjected to the Decision of the CC, was raised by the 18th Civil Chamber of Regional Courts of Justice. The application of unconstitutionality is that Article 5(2) of the Law on the TFF is in conflict with Articles 9., 10., 11., 36., 59., and 142. of the Constitution.

With the decision that abolished the exclusive jurisdiction of the DRC, Article 5(2) of the Law on the TFF is abolished with the following reasons:

"Although Article 59 of the Constitution provides that the decisions of sport federations relating to administration and discipline of sporting activities may be challenged only through compulsory arbitration, without making such distinction, the provision subjected to the application exclusively authorizes the first instance legal committees of the TFF concerning all of the disputes related to the decisions of the TFF committees and bodies. This exclusive authority, and the obstacle of appeal against the decisions of the first instance legal committees, are incompatible with Article 59 of the Constitution and, as well, they touch on the essence of freedom to claim rights and abolish the right to legal remedies."[13]

Furthermore, it is deemed appropriate that the cancellation shall be effective one year after the publication of the decision in the Official Gazette.

Jurisdiction of the DRC in Accordance with the Regulations made in 2019 in light of the Decision of the Constitutional Court

The jurisdiction of the DRC is regulated under Article 56 of the TFF Statute amended by the decision of the TFF General Assembly dated 25.06.2015 and Article 2 of the Regulations on the DRC. After the publication of the abovementioned Decision of the CC on 02.03.2018 in the Official Gazette, all of the regulations and directives that were issued by the TFF, and which regulate the jurisdiction of the DRC, needed to be amended. In this regard, the amendments are made to the Regulations on the DRC. Meanwhile, no amendments have been made to the TFF Statute, which also has provisions regarding the jurisdiction of the DRC[14].

The Regulations on the DRC were amended, to be effective on 02.03.2019, with the decision of the TFF's Board of Directors, dated 16.02.2019 and numbered 109, approximately 11 months after the publication of the Decision of the CC in the Official Gazette. Within this context, a double distinction is made in the jurisdiction of the DRC with respect to the subject: Clubs, football players, coaches and agents are free to accept the jurisdiction of the DRC for the settlement of disputes arising from any kind of football agreement between them. Nevertheless, it is provided that disputes related to sporting penalties and training compensation shall exclusively be settled before the DRC in accordance with Article 2(2) of the Regulations on the DRC, which entered into force on 02.03.2019[15].

In addition, two temporary Articles were added to the Regulations on the DRC in relation to the jurisdiction. It is regulated that the DRC is still exclusively authorized to handle the files opened before it before 02.03.2019, which is the date the new Regulation entered into force[16]. In this manner, any discussion of jurisdiction is already prevented from becoming controversial in terms of the files that are already pending before the DRC.

In Temporary Article 2 of the Regulations on the DRC, it provides the following: In cases of disputes concerning the contracts signed before 02.03.2019, the Respondent has the right to raise objection to the jurisdiction of the DRC within seven (7) days from the date of notification of the statement of claim, if the dispute is brought before the DRC after 02.03.2019. In such case, the application fee and arbitrator fee deposited by the Claimant shall be refunded to the related party after the deduction of fixed fees. If the Respondent does not challenge the jurisdiction of the DRC, the voluntary jurisdiction of the DRC is deemed to be accepted[17].

Application, Procedure and the Decision

Applications to the DRC are made in writing. The Claimant is obliged to add the payment receipt to his Statement of Claim that shows he has deposited the application fee, since applications submitted without the fee are not considered by the DRC[18].

After receiving an application, the Coordination Office makes a preliminary examination as to whether the mandatory elements stated in Article 6 of the Regulation on the DRC are met in the Statement of Claim, and if all the elements are met, the file is submitted to the Board of Presidents. After the arbitrator's fees are paid by the Claimant, the petition and its annexes are served upon the Respondent. In order to submit his answers in response to the Statement of Claim and to choose his arbitrator, the Respondent has seven (7) days from the date of notification of the Statement of Claim.

Disputes before the DRC shall be examined and decided by a panel of three arbitrators that is composed of two arbitrators to be elected, or deemed to be elected, by the parties, and a president from the Board of Presidents. Decisions are made in accordance with Turkish substantive law based on the Law on the TFF, the TFF Statute, the TFF Regulations, and the rules of the FIFA and the UEFA[19].

The Panel decides upon an attorney-fee in accordance with the official tariff of a minimum attorneyship fee for the attorney of the rightful party.

The Panel gives its reasoned decisions within four months, at the latest, after the date of formation of the Panel. If there are just reasons, the Panel may decide to extend this duration in monthly periods[20].

Decisions made by the Panel of the DRC become final and binding within 7 days following the notification of the Decision if there is no appeal against the Decision, or by the Decision of the TFF Arbitration Board in the event of an appeal[21].

Conclusion

The reasons that parties prefer to apply to sporting jurisdiction and arbitration for the settlement of disputes concerning football contracts instead of civil jurisdiction are that there is a uniform system in place, and the disputes are handled by expert individuals in the football arena and in football law, within a short period of time, and the decisions are final, expeditious and executory.

Within this regard, as it is stated in the reasons of the Decision of the CC that when arbitration is considered as an alternative dispute resolution system, the regulation making the DRC a voluntary arbitration, based on the will of the Parties in the settlement of the disputes arising from football contracts, is suitable.

Concerning the disputes of sporting penalties and training compensation, the DRC acts as mandatory arbitration as it had in the previous period between 2011 and 2015. With this provision, the uniformed system has been retained regarding the before-mentioned matters that are exclusive to sports law.

[1] The DRC was established for the first time in 2007, with Law numbered 5719 that amends the former Law on Regarding Establishment and Duty of Turkish Football Federation numbered 3813 (Nuray Ekşi, Spor Tahkim Hukuku, Beta Yayınları, İstanbul, 2015, p.246).

[2] Before the establishment of the DRC in 2007, the disputes arising from football contracts were settled by the TFF's Board of Directors.

[3] According to Article 5 of the Law on the TFF, the first instance legal committees of the TFF are as follows: Disciplinary committees (Provincial disciplinary committees, Professional Football Disciplinary Committee, Amateur Football Disciplinary Committee, Club Licensing Committee, and Ethics Committee.

[4] TFF Status Article 55 and Regulations on the DRC Article 3.

[5] Ümit Orhan, Av. Kısmet Erkiner Armağanı Spor Hukuku Yazıları, İstanbul Barosu Yayınları, 2014, s. 230.

[6] The Law on TFF Article 5(6), TFF Status Article 54(4), Regulations on DRC Article 3/6.

[7] Hatice Kocasakal, Sportif Uyuşmazlıkların Tahkim Yoluyla Çözümü ve CAS, Vedat Kitapçılık, İstanbul, 2013, s.106-108.

[8] UÇK Talimatı m.5.

[9] Law on Regarding Establishment and Duty of Turkish Football Federation numbered 3813 was abolished by Law on Regarding Establishment and Duty of Turkish Football Federation numbered 5894.

[10] With the amendment made in 2011, the second paragraph of the following was added to Article 59 of the Constitution: "The decisions of sporting federations relating to the administration and discipline of sporting activities may be challenged only through compulsory arbitration. The decisions of the Board of Arbitration are final, and shall not be appealed to any judicial authority.

[11] For detailed information about the Formation of the DRC, the requirements to be in the Arbitrators List, the duties of the DRC, and the voluntary and mandatory arbitration function of the DRC for the period beginning from 2007, in which the DRC was established, please see: Nuray Ekşi, Spor Tahkim Hukuku p.246 ff.; for criticism of the Regulations between 2015 and 2019 concerning the jurisdiction of the DRC, please see. Şeref Ertaş – Hasan Petek, Spor Hukuku, Yetkin Yayınları, 2017, p.516.

[12] OG, No. 30348, 2 March 2018.

[13] Decision of the Constitutional Court dated 18.01.2018 and numbered 2017/136 E. 2018/7 K., para. 23.

[14] TFF Statute Article 56 (with the amendments made on the General Assembly dated 25.06.2015):

"1)The Dispute Resolution Committee shall have exclusive jurisdiction to consider and decide disputes that arise between:
a) Clubs;
 b) A club and its players, coaches, trainers, agents, football agents and football players, coaches and trainers with respect to or in connection with any contract and any football-related matter referred to the DRC by any and related party. Decisions of the Dispute Resolution Committee which are not appealed before Arbitration Board shall be final and binding".

[15] Regulations on DRC Article 2.

[16] Regulations on DRC Temporary Article 1.

[17] Regulations on DRC Temporary Article 2.

[18] Regulations on DRC Article 6.

[19] Regulations on DRC Article 17.

[20] Regulations on DRC Article 12.

[21] Regulations on DRC Article 13.

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