Constitutionality Review

Contested Provision

The provision including the disputed phrases stipulates that the members of the Arbitration Committee (“Committee”) shall be appointed by the Board of Executives and that the appointed members shall take their oath and assume office no later than one week following the decision of the Board of Executives on the appointment. The relevant provision is contested in so far as it relates to the phrases “...by the Board of Executives...” and “...the decision of the Board of Executives...”.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional on the grounds that it failed to provide adequate safeguards for the Committee’s independence and impartiality since all of the members of the Committee are appointed by the Board of Executives, and that neither the taking of oath nor the provisions regulating their tenure are sufficient to ensure the impartiality. It was further asserted that the remuneration of the Committee members is determined by the Board of Executives and that there are no clearly established legal provisions governing the procedure to be followed in cases where doubts arise as to the members’ impartiality.

The Court’s Assessment

Pursuant to Article 59 § 3 of the Constitution, mandatory arbitration is established as the exclusive legal remedy against decisions of sports federations concerning the management and discipline of sporting activities. The provision further provides that the decisions of the arbitration committee shall have final effect and shall not subject to any form of judicial review. Furthermore, the Law no. 5894 on the Establishment and Duties of the Turkish Football Federation (“TFF”) designates the Arbitration Committee as the competent review and appeal body regarding the regulatory instructions of the TFF and the decisions rendered by first-instance legal committees pertaining to the management and discipline of football activities.

In the light of the established case-law of the Constitutional Court and the European Court of Human Rights, the Arbitration Committee is regarded as an independent tribunal established by law, exercising a judicial function and empowered to resolve legal disputes. Given that recourse to arbitration is mandatory under the aforementioned constitutional provision, it is evident that the safeguards enshrined in Article 36 of the Constitution and Article 6 § (1) of the European Convention on Human Rights must be ensured.

Law no. 5894 contains no provisions as to the composition or structure of the Board of Executives. It appears that, pursuant to the relevant provisions of the Law, the matters related to the composition, structure and functioning of the Board are provided for in the TFF Statutes, which are adopted by the TFF Congress. Although Article 4 of Law no. 5894 lists the Congress as one of the mandatory organs to be established, the Law in question does not contain any provision regarding its formation and the criteria for appointing its delegates. Consequently, it has been observed that neither Law no. 5894 nor any other statutory provision provides a legal framework regarding the structure and composition of either the Congress or the Board of Executives, or the make-up of their delegates.

In this regard, it is evident that the members of the Arbitration Committee, a mandatory arbitration body, are not chosen by the parties to the dispute, but are appointed unilaterally by the TFF Board of Executives from among individuals who satisfy the qualifications specified by the Law. There is no doubt that the parties to the disputes within the Committee’s jurisdiction include clubs, players, technical directors and referees. Furthermore, the Committee is empowered to adjudicate disputes between the TFF and clubs, players, head coaches or trainers arising from decisions by the Board of Executives. However, parties to such disputes, other than the Board itself, have no influence over the appointment of the Committee's members.

It has been understood that although the members of the Board of Executives are elected by the Congress under the TFF Statutes, the Law provides no safeguards to ensure adequate representation of the parties to the dispute before the Committee. Consequently, the absence, even in principle, of any legal framework regarding the representation of parties in the formation of the Congress and the Board of Executives effectively precludes the fair representation of such parties before the Committee.

In conclusion, in the absence of legal safeguards ensuring a fair balance among all football stakeholders in the formation and composition of the Congress, the appointment of the Committee members by the Board of Executives under the contested provision cannot be deemed compatible with the right to a trial by an independent and impartial tribunal.

Consequently, the contested provision has been found unconstitutional and therefore annulled in so far it concerns the phrases in question.