Sports activity, by its very nature, is based on competition. Sports clubs are also in competition with each other in terms of raising good athletes, keeping them in their teams and recruiting new athletes. In this competitive environment, a contract is signed between athletes and sports clubs. The subject of these “Athlete Contracts” can consists of these obligations: the athlete’s acceptance to do sports on behalf of her club for a certain fee and to spend her strength and time for this purpose; the club’s acceptance to pay the athlete a fee.
These contracts, which we call as athlete contracts, have certain elements. These elements are; The performance of the job, the personality of the actions, continuity, pay, dependency and the fact that the responsibility of the athlete is not dependent on the result but on the act of performance. Considering these factors, it is possible to say that athlete contracts are fixed-term contracts of service.
The names of these contracts signed between the athlete and sports clubs differ according to the sports branch that is the subject of the contract. For example, since only football is accepted as a professional sport in Turkey, the contracts signed in football are called “Professional Footballer Contracts”. However, the contracts of other sports branches are considered as “Uniform Contracts” and these contracts are standard contracts prepared by the relevant federations.
While defining the player transfer agreement, football step forward based on the fact its is the only field defined as a professional sport in the Turkish legal order. The transfer agreement of professional football players was defined through the Status and Transfer Order of Professional Footballers (“PFSTT”). According to this definition, the transfer contract of a professional football player, whose subject is the transfer of a professional football player from her current club to another club, in order to carry out the transfer, the new club undertakes to provide some benefits to the existing club, in return for these benefits, the current club releases the football player for transfer, that is, it is already continuing. A professional football player contract is a contract that he commits to sign.
According to this definition, it is possible to say that the athlete transfer contract is a 3-sided contract. The parties of the contract are; The athlete, the current club whose athlete is to be transferred, and the club that wants to transfer the athlete.
Athletes are divided into two groups as amateur and professional athletes. Amateurism is performing a job not for the money, but simply for the pleasure of doing it. In Article 3 of the PFSTT, the definition of a professional football player is as follows: “A football player who has made a written contract with a club and is paid more than her expenses within the scope of football activities.” According to Article 4, “All football players who fall outside the definition specified in Article 3 are considered amateur football players. Covering the transportation, accommodation, material, insurance, nutrition and training expenses related to a match does not spoil the amateur status of the football player. Professional teams cannot play amateur football players in official league and cup competitions.
Sports clubs are private law legal entities with the status of associations, established according to the Associations Law. In order for a sports club to compete in the relevant sports branch, the club must be registered by the General Directorate of Sports under the Ministry of Youth and Sports. This registration also enables the sports club to issue licenses to athletes.
The relationship between the current club and the athlete is a service contract. In order for the transfer to take place, the current club and the athlete must demonstrate their will to terminate the contract between them.
The relationship between the athlete and the new club that transferred the athlete is that, upon the expiry of the contract of the athlete with the previous club and her release, they have committed to make an athlete contract with the new club to each other again.
Since the relationship between the clubs has elements of release and providing a certain benefit in return, and these elements are not elements of a contract type regulated by law, it can be said that athlete transfer contracts are contracts with a unique structure (Sui Generis).
In accordance with Article 19/2 of the Status and Transfer Instruction of Professional Footballers, the contract can be concluded for a maximum of 5 years. For those under the age of 18, this period is limited to 3 years. And in any case, the expiry date of the contract must be 31 May. If the official competitions continue despite the end time, the duration of the contract is extended until the end of the official competitions.
Obligations of the Sports Club
There are some obligations that sports clubs are obliged to provide to the athletes.
Namely, the sports clubs are responsible for;
- Paying the contracted athlete’s insurance and premiums in line with this insurance,
- Due to the sports activity of the athlete, illness, disability, examination, etc. by covering the treatments and their costs,
- To take measures regarding matches, training, camps and travels,
- To take measures to keep the athlete at a sufficient level in terms of physique, as required by the game,
- To ensure the development of the athlete in terms of obtaining technical information,
- To implement the decisions of the Ministry, federation, provincial/district directorates,
- To provide coach, masseur, trainer, doctor for the education and health of the athlete,
- To provide relevant materials,
- Allocate a coach and a field to the excluded athlete
The athlete has the right to terminate her contract against the club that does not fulfill these obligations with just cause.
Obligationsa of the Athlete’s
Some obligations are also imposed on the athletes.
Mainly, the athletes are responsible for;
- To comply with the instructions of the Ministry, Federation, provincial/district directorate and the club,
- Avoiding all kinds of statements that will offend the moral personality of the club, administrators, other athletes, ministry, referees and provincial directorates,
- Regular participation in training,
- To participate in all kinds of competitions of the club,
- Not to participate in another sporting activity without the approval of the club,
- Paying attention and care to your private life and health,
- To send the documents requested by the club to participate in the competitions, to complete the transactions,
- To participate in the activities organized by the club and necessary for the development of the athlete,
- To report the reports to be received due to illness and disability to the Federation and the club within 10 days.
Against the athlete who does not fulfill these obligations, the club has the opportunity to terminate the contract with just cause.
Termination of the Contract
- Mutual Termination (Rescission): The contract can be terminated with the mutual termination (remutation) agreement to be made between the athlete and her current club.
- Unilateral Termination: Player contracts which are in a form of a service contract, can be terminated with a termination statement that can be used by one of the parties.
The party (athlete or sports club) wishing to use its right of termination shall issue a warning to the other party through the notary. The Federation, the side that issued the notice and the opposite party each would possess one copy of the notice. If the subject of the warning is not fulfilled within 10 days after the warning is served, or if it is fulfilled incompletely, the athlete will be released.
The athlete whose contract with her club has expired is released without being under any financial burden and without paying any price to her old club and can make a new contract with the new club under the conditions she wishes.
Liabilities of the Club Transferring the Athlete
- Transfer Fee: The transfer fee can be briefly defined as the fee paid to both the player and the former club in case the player transfers to another club.
- Other Benefits: Economically weak clubs can determine another benefit instead of the transfer fee or reduce the transfer fee by including the benefit. The most common example in practice is the transfer of one player versus the transfer of another or more players.
Liabilities of the Athlete
As per the TFF instructions, “The transferred football player is obliged to submit a notarized statement of signature, which is prepared at the latest 10 days before the date of signing and signing the professional football player contract, and containing a statement that he will use it in the contract he will make with the relevant club, in order for the professional football player contract to be registered and valid by the TFF”. If the athlete acts contrary to his contractual debt, he will be liable to compensate the losses incurred by the club that wants to transfer him, and he can fulfill this obligation by paying the transfer fee paid to his former club or by compensating for other benefits provided.
SOLUTIONS ON THE SPORTS DISPUTES
A. NATIONAL ARBITRATION
In the event of a dispute on sports law it is possible for appeal to arbitration since it takes time to file a lawsuit by going to the general courts for is resolved by resorting to arbitration. As we mentioned before, in football, which is the only professional sport in Turkey, there is a separate arbitration board called the Turkish Football Federation Arbitration Board. Before going to this arbitration, it is essential to have applied to the Dispute Resolution Board established within the Federation.
In Turkey, the Arbitration Board of the General Directorate of Sports is authorized in disputes related to sports branches other than football and related to these sports branches. This board consists of seven principal and seven substitute members. It is obligatory that five of the members are lawyers and two of them have careers who have done scientific studies in the field of sports or who have held managerial, technical and similar positions in sports. Members are appointed for four years upon the proposal of the General Manager and the approval of the Minister.
The Arbitration Board of the Turkish Football Federation consists of a President, six regular and six substitute members, who will be selected from among lawyers with at least five years of professional experience, upon the proposal of the Federation President and the decision of the Board of Directors.
1. Arbitration Board of the General Directorate of Sports
Arbitration Board of the General Dictorate of Sports is authorized for;
- Conflicts between the federation and clubs, athletes, referees, coaches and coaches,
- Disputes between clubs and coaches, coaches and athletes,
- Disputes between clubs and clubs,
- It finalizes the decisions to be made by the federations and the decisions of the penal and disciplinary committees.
- Also, The Arbitration Board of the General Directorate of Sports is authorized for any dispute that does not fall within the field of activity of the Federations.
- According to the SGM Arbitration Board Regulation, the board’s decisions are final and no appeal can be made to administrative authorities or to the judiciary. However, the right to apply to the International Court of Arbitration (CAS) is reserved.
2. Turkish Football Federation Arbitration Board
The TFF Arbitration Board resolves disputes whose subject is football, and its decisions are absolutely final. Decisions are not subject to the approval of administrative or judicial authorities, and it is not possible to appeal to administrative or judicial authorities within the country against the decisions. As of 2007, the way to apply to the Court of Arbitration for Sports (CAS) has been opened for the decisions of the TFF Arbitration Board. Before proceeding to the TFF Arbitration Board, it is necessary to have applied to the Dispute Resolution Board established within the Federation.
Dispute Resolution Board
Dispute Resolution Board was established within the body of the Turkish Football Federation. If the Dispute Resolution Board is accepted by the parties; It examines and decides the disputes arising from all kinds of football-related contracts between clubs, football players, coaches and football managers.
The Dispute Resolution Board has exclusive jurisdiction in disputes regarding sports penalties and training compensation. The resolution period for disputes, on the other hand, does not exceed four months as per the Dispute Resolution Board Instruction.
The objection period to the TFF Arbitration Board against the decisions of the Dispute Resolution Board is 7 days from the notification of the decision to the parties. Decisions made by the Dispute Resolution Board become final by not appealing to the Arbitration Board or by the decision of the Arbitration Board given upon objection.
Turkish Football Federation Arbitration Board
Turkish Football Federation Arbitration Board is authorized for;
- Applications made against the decisions to be made by the Board of Directors regarding the disputes between the Federation and Clubs, Referees, Football Players, Coaches, Coaches, Player Representatives, masseurs and other officials.
- Appeals against the decision of the Amateur and Professional Football Disciplinary Boards,
- Applications made against the decisions of the Dispute Resolution Board,
Also this arbitration examines and decides on the applications regarding the violation of the Law, the Main Statute, FIFA and UEFA Main Statutes, upon the request of the relevant parties.
B. INTERNATIONAL ARBITRATION
Court of Arbitration for Sport (“CAS”)
CAS is a sports court established at the international level and tasked with resolving disputes arising in sports. Its headquarters is located in Lausanne, Switzerland, and it has courts in New York, Sydney and Lausanne. In places where the Olympics are held, temporary courts are established. The arbitral tribunal consists of one or three arbitrators.
If the parties have made an arbitration agreement that CAS will be used in disputes that arise, CAS can be applied.
Sports Federations and organizations are prevented from applying to the Sports Arbitration Court without exhausting their own domestic remedies.
Decisions of the Court of Arbitration for Sport can be appealed to the Swiss Federal Court.
Author: Elif Naz İBİŞ (Student Intern)
Translator: Selinsu KÜLÜK (Apprentice Attorney)
Uçar Law & Consultancy Office