18 January 2018 Thursday
(E.2017/136, K.2018/7, 18 January 2018)
Grounds for the Request for Annulment
In the petition, it is maintained in brief; that the contested provision exclusively authorizes the first instance civil boards established within the TFF to resolve the disputes falling into the scope of their duties and authorities; that according to Article 59 of the Constitution, only the decisions of sports federations relating to administration and discipline of sportive activities must be challenged through compulsory arbitration; that the disputes related to the rights arising out of the football contracts do not fall into this scope and according the general provisions, they must be examined by judicial authorities; that this issue is clearly set forth in the reasoning of the amendment made to Article 59 of the Constitution; that however, it is provided in the contested provision as well as in the Dispute Resolution Board Instruction that the disputes related to the rights arising out of the football contracts may only be resolved through arbitration; and that therefore, the disputes in question have been excluded from judicial examination. In this context, it is claimed that the contested provision is in breach of Articles 9, 10, 11, 36, 59 and 142 of the Constitution.
According to the contested provision, the first instance civil boards of the Turkish Football Federation (TFF) are exclusively authorized to make decisions concerning the club licence as well as to resolve the disputes related to the Law, the TFF Statute, instructions and regulations of the TFF and decisions to be taken by the other authorized boards and bodies of the TFF.
The Court’s Assessment
In brief, the Constitutional Court has made the following assessments:
One of the basic principles of a state governed by rule of law that is set forth in Article 2 of the Constitution is “certainty”. According to this principle, legislative regulations must be clear, precise and enforceable, avoiding any hesitation or doubt on the part of both individuals and the administration.
Considering the difficulty of enumerating all types of disputes falling into the scope of a law exclusively and the possibility of missing out certain issues, deferring the details to further specific regulations would not contravene the principle of certainty as long the basic rules are determined by the legislator. In that case, the basic rules set out in the legislation must be as such to provide sufficient guidance for determination of details.
In the contested provision, a reference is made to the TFF Status and the instructions and regulations of the TFF for determination of the disputes falling into the scope of the duties and authorities of the first instance çivil boards, therefore, the determination of the scope of the disputes is left to the will of the TFF. Also, given the fact that the regulations in question may always be amended by the TFF, there might be a change in the scope of the disputes excluded from judicial examination at the will of the TFF. In this respect, the provision is not definite and foreseeable for individuals.
In addition, one of the main elements of the freedom to claim rights is the right of access to a court. This right comprises the right to bring a legal dispute before a court authorized to give a decision on the matter.
However, Article 13 of the Constitution provides that the fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant Articles of the Constitution without infringing upon their essence.
The Constitutional Court reiterated in its judgment dated 6 January 2011 and numbered E.2010/61, K.2011/7 that the legislator may impose an obligation to apply to the Arbitration Board before applying to the competent court in order to resolve the disputes in the field of football, and that, however, after this stage, the judicial remedy must be accessible to the party who were not satisfied with the decision. The Court therefore annulled the relevant part of Article 6 § 4 of Law no. 5894 regulating the duties and authorities of the Arbitration Board, where it was provided that the decisions of the Arbitration Court cannot be challenged through judicial remedies, on the ground that the relevant provision was in breach of Articles 9 and 36 of the Constitution.
Following this judgment of the Constitutional Court, an amendment was made to Article 59 of the Constitution with Law no. 6214 and it has been provided that the decisions of sports federations relating to administration and discipline of sportive activities may be challenged only through compulsory arbitration and that the decisions of the Board of Arbitration are final and shall not be appealed to any judicial authority.
Taking together the contested provision, which stipulates that the first instance civil boards are exclusively authorized, and the second sentence of Article 59 § 3 of the Constitution, which provides that the decisions of these boards shall not be appealed to any judicial authority, it is understood that the first instance civil boards are the only authorities with regard to the relevant disputes and that the issues falling into the scope of the duties and authorities of the first instance civil boards cannot be challenged through any legal remedy other than arbitration.
Although Article 59 of the Constitution stipulates that the decisions of sports federations relating to only administration and discipline of sportive activities may be challenged through compulsory arbitration and that the decisions of the Board of Arbitration shall not be appealed to any judicial authority, the contested provision does not set forth such a distinction. The fact that the first instance civil boards are exclusively authorized to settle all disputes arising out of the decisions of the boards and bodies of the TFF and that the decisions of the first instance civil boards cannot be appealed to any judicial authority, as set forth in the relevant legislation, do not comply with the procedure enshrined in Article 59 of the Constitution. In addition, the right of access to a court on the part of the relevant parties is prevented and the essence of the freedom to claim rights is impaired.
In view of the reasons explained above, the contested provision is in breach of Articles 2, 13, 36 and 59 of the Constitution. Therefore, it is annulled.