Nazlı Kaçar

Trainee Attorney

21.02.2022

ALTERNATIVE RESOLUTION METHODS IN SPORTS DISPUTES

Sports law is a discipline that finds solutions compatible with the general principles of law in accordance with the spirit of sports for the problems arising between players and clubs, clubs and clubs, clubs and federations, or other sports subjects.
 
On the other hand, sports disputes may arise from legal relations of a commercial nature (sponsorship relations, etc.), as well as from disciplinary penalties imposed by sports organizations, commercial agreements with clubs, and disputes with employees recruited by organizations. There are arbitration bodies that function to resolve disputes in sports at the national and international levels.
 

1. ARBITRATION IN SPORTS AT THE NATIONAL LEVEL

1.1. The Arbitration Board of General Directorate of Sports
The Arbitration Board of the General Directorate of Sports (SGM) finalizes the decisions to be made by the federations and the resolutions of the penal and disciplinary committees for:
a.      the disputes between the federation and clubs, players, referees, technical directors, and coaches;
b.     the disputes between clubs and technical directors, coaches and players; and
c.      the disputes between clubs and clubs.
 
The Arbitration Board of the General Directorate of Sports is authorized for any dispute not within the Federations’ jurisdiction. SGM Arbitration Board cannot decide on any dispute related to football, which is within the jurisdiction of the Turkish Football Federation (TFF) since its terms of reference are determined as matters related to sports federations other than football. In all sports branches except football, objections against the decisions made by the federations regarding sports management and discipline are finally examined by the SGM Arbitration Board.
 
According to the SGM Arbitration Board Regulation, the board’s decisions are final, and no appeal can be submitted to administrative authorities or for judicial remedy. However, the right to apply to the International Court of Arbitration for Sport (CAS) is reserved. 
 
1.2. Arbitration Board of Turkish Football Federation
The first-degree legal committees of TFF consist of the following:
a.      Dispute Resolution Board
b.     Disciplinary Boards
c.      Club Licensing Committee
d.     Ethics Committee
 
TFF Arbitration Board is an independent and impartial statutory arbitration authority and is the highest legal body of the TFF. The arbitration principle was introduced to resolve disputes arising from any football activities within the body of TFF, and the TFF Arbitration Board was established accordingly. Therefore, the resolution of disputes arising from any football activity within the body of the Turkish Football Federation is left to the autonomous and independent TFF Arbitration Board’s jurisdiction.
 
The TFF Arbitration Board resolves disputes related to football, and its decisions are absolute. 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. The provisions of the Code of Civil Procedure and the Code of Criminal Procedure regarding the announcement of decisions, correction of material errors, and retrial are reserved.
 
The Arbitration Board examines and decides on the following matters upon the request of those concerned:
a)     Applications made against the decisions to be made by the Board of Directors regarding the disputes between the Federation and Clubs, Referees, Football Players, Technical Directors, Coaches, Player Managers, masseurs, and other officials,
b)     Objections made against the decision of the Amateur and Professional Football Disciplinary Boards,
c)     Applications made against the decisions of the Dispute Resolution Board, and
d)     Applications regarding the inconsistency of the Instructions issued by the Football Federation Executive Board with the Law, Main Statute, FIFA, and UEFA Main Statutes.
 
As of 2007, the right to apply to the Court of Arbitration for Sport (CAS) regarding the decisions of the TFF Arbitration Board has been granted.
 
1.3. Dispute Resolution Board
               A Dispute Resolution Board has been established within the body of the Turkish Football Federation. If accepted by the parties, the Dispute Resolution Board examines and decides on the disputes between clubs, football players, coaches, and football managers, arising from any football-related contract.
 
            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 pursuant to 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 if no objection is made to the Arbitration Board or with the decision of the Arbitration Board given upon objection.
 

2. ARBITRATION IN SPORTS AT THE INTERNATIONAL LEVEL

2.1 CAS (COURT OF ARBITRATION FOR SPORT)
An application can be made to the CAS against the decisions made by any sports federation authorized to make disciplinary sanction decisions in sports and all commercial disputes related to the implementation and development of sports. CAS is headquartered in Lausanne, Switzerland, and has branches in New York and Sydney.
 
Commercial disputes are the disputes arising from sponsorship contracts, disputes arising from the sale of television rights, disputes arising from broadcasting contracts, disputes that may arise from the organization of sports events, disputes arising from player transfers, disputes between players, coaches, managers, clubs, disputes arising from legal responsibilities, disputes arising from player contracts, and disputes related to the practice and development of the sport.
 
In the decisions of the sports federation authorized to issue disciplinary penalties, the subjects of disciplinary penalties are doping, banning the players from the competitions, acts of violence inside or outside the arena, violations of rules, insulting or attacking the referees.
 
CAS is responsible for resolving disputes quickly and impartially with amicable methods, expressing opinions on legal matters related to sports, and resolving disputes that may arise during international sports championships and Olympic Games.
 
In CAS arbitration, there are two basic proceedings, namely the ordinary arbitration proceedings and the appeal proceedings. Apart from these judicial procedures, CAS has the authority to resolve disputes through mediation and ad hoc method and give advisory opinions to international sports organizations upon request.
 
As an independent and impartial arbitration institution, CAS consists of a two-level structure. CAS has two main divisions: Ordinary Arbitration and Appeal Arbitration. 
 
 Ordinary Arbitration Unit: The parties are entitled to assign the arbitrators depending on the amount of the dispute, the importance of the legal problem, and the interests in the dispute. Decisions made by the CAS Ordinary Arbitration Division may also be appealed to the CAS Appeals Division if certain conditions are met. Under CAS Code clause R27, two conditions are required for filing for CAS ordinary arbitration. These conditions are:
●       The dispute should be sports-related;
●       There must be a valid arbitration agreement or arbitration clause stating that the parties recognize the CAS authority.
 
 Appeals Arbitration Unit:    An application to Appeals Arbitration is made for an objection against a decision made by a federation, association, or other sports organization. The decisions that are the subject of the appeal are usually disciplinary decisions. However, exceptionally, an appeal against the decision of a federation, association, or sports-related body may be filed with CAS if the statutes or regulations of the said body so provides or if the parties have concluded a specific arbitration agreement. 
 
The appeal is conducted by three arbitrators, as a rule. However, if the parties have agreed to a Panel composed of a sole arbitrator or the President of the Division decides to submit the appeal to a sole arbitrator due to an emergency, the Panel may consist of a sole arbitrator. In the provisions of CAS Code R47, the conditions for making an appeal to the Court of Arbitration for Sport are regulated. There are three conditions for applying to CAS as the Appeal Arbitration authority. These conditions are:
●       Presence of arbitration clause in the statute, bylaw or instruction of related sportive body,
●       Presence of an appealable decision taken by the related sportive body, and
●       The Claimant has exhausted the legal remedies available to it before the appeal in accordance with the statutes or regulations of the sportive body.
 
However, the following exception should be underlined here: If a sports federation has given the parties the right to choose an application authority in the relevant legislation, CAS does not seek the condition of exhaustion of domestic remedies in practice and resolves the dispute without rejecting the application.
 
In CAS arbitration, there are two basic proceedings, namely the ordinary arbitration proceedings and the appeal proceedings. Apart from these judicial procedures, CAS has the authority to resolve disputes through mediation and ad hoc method and give advisory opinions to international sports organizations upon request.
 
2.1.1. Arbitrability
The presence of an arbitration agreement between the parties is the primary condition for CAS proceedings to take place. If there is no arbitration agreement between the parties and the dispute will be subject to appeal arbitration, the CAS proceedings must be accepted in the statute of the sports organization whose decision is contested.
 
The necessity for the proceedings before the CAS to be based on “any sports-related activity” is beyond dispute. At this point, an arbitrability check must be made according to the characteristics and conditions of the concrete case.
 
Pursuant to article 408 of the CPC No: 6100, arbitration is not convenient for disputes arising from rights in rem over immovable goods or other transactions of which the parties cannot dispose of on their own will. Therefore, it may come to the fore that there may be problems in recognizing and enforcing CAS decisions rendered on a subject that is not suitable for arbitration within the framework of Turkish Law.
 
Although the recognition and enforcement of CAS arbitral awards within the scope of the New York Convention, of which Turkey is also a signatory state, seems possible at first glance, the areas within the scope of recognition and enforcement have been narrowed down with two reservations Turkey has made to the Convention. With these reservations, the recognition and enforcement of the arbitral award are primarily dependent on the conditions that the decision is made in a country party to the New York Convention (reciprocity) and that the decision is related to a commercial dispute according to Turkish law. Therefore, according to the convention, only the recognition and enforcement of CAS arbitrator decisions regarding commercial sports law disputes (sponsorship contracts, broadcasting contracts, etc.) will be possible.
 
In addition, it should be noted that in the event that sports disputes prejudice individual rights and fundamental rights, even if these disputes are sports-related, they will not be suitable for arbitration. In other words, arbitration is not possible in cases where the parties cannot act freely on the subject matter by agreement or amicable manner. For example, an arbitration agreement cannot be concluded for bankruptcy cases and uncontested litigation.
 
2.1.2. CAS Arbitration Process and Trial
2.1.2.1. Ordinary Arbitration Procedure
The process begins when the claimant makes a written application to the CAS. The Court Office, which concludes that the application conditions are fully met, sends the petition to the respondent. Afterward, the arbitrator assignment phase commences. The proceedings before the Panel comprise written submissions and, in principle, an oral hearing. Although the procedure applied as a rule is written, the oral method is also applied if the Panel deems it necessary. Upon completion of the correspondence between the parties, the chairman of the arbitral tribunal determines a hearing date. As a general rule, there is one hearing during which the Panel hears the parties, any witnesses, any experts, and the parties’ final oral arguments, for which the Respondent is heard last. The hearing is held as a secret session (closed session) unless the parties agree otherwise. After the oral hearing, the parties are not authorized to produce further written pleadings unless the Panel so orders. (CAS Procedure Instruction)
 
2.1.2.1. Appeal Arbitration Procedure
The appeal arbitration commences with the written application of the claimant to CAS. In the absence of a time limit set in the statutes or regulations of the federation, association, or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be 21 days from the receipt of the decision appealed against. Within twenty days from the receipt of the grounds for the appeal, the respondent shall submit to the CAS Court Office an answer. There is no replication or rejoinder in the appeal arbitration proceedings as in the ordinary arbitration proceedings. Upon completion of the correspondence between the parties, the chairman of the arbitral tribunal determines a hearing date. After the oral hearing, the parties are not authorized to produce further written pleadings unless the Panel so orders.
 
2.1.3. CAS Award
In CAS Ordinary Arbitration proceedings, the parties can determine the law applicable to the dispute between them. The parties can determine this choice in the arbitration agreement between them or in a contract that includes an arbitration clause.
In ordinary arbitration proceedings, if the parties have not determined the law to be applied to the dispute, the dispute will be decided by the arbitral Panel in accordance with Swiss law. The Panel decides the dispute according to the applicable regulations and law of the country in which the federation, association, or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. Unless otherwise agreed by the Parties or the Division, the awards record shall remain confidential.
 
In the following exceptional cases, an appeal against CAS decisions can be made to the Swiss Federal Court within 30 days of notification of these decisions:
●      Irregular composition of the arbitral Panel,
●       The arbitral Panel’s erroneous interpretation of the arbitral power,
●       Making a decision by exceeding the request or not making any decision about one of the requests,
●       Violation of the right to equal treatment and legal hearing in the trial, and
●       The decision is contrary to public order.
 
2.2. ARBITRATION AT FIFA
As a statutory arbitration, there is an appeal board within FIFA that can be referred to against the decisions taken by the FIFA Arbitration Commission. However, CAS is authorized for voluntary arbitration. The proceedings of the FIFA Appeal Committee are made in accordance with the Disciplinary Order issued by FIFA. The committee convenes with a chairman, vice-chairman, and a sufficient number of members. It is possible to appeal to the CAS against decisions of the FIFA Appeal Committee.
 
International disputes between clubs and players regarding the continuity of contracts and disputes between clubs that are members of different federations regarding training compensation and solidarity share fall under the jurisdiction of the committee.
 
The CAS is the sole appeal authority in all legal matters of FIFA. It is authorized against any decision against third parties. Subjects that cannot be submitted to CAS are:
a)     Violation of the rules of the game, 
b)     Suspensions of less than four matches or three months, and 
c)     The decision of an arbitral panel that is independently and orderly constituted by a confederation. 
 
CAS is authorized against disciplinary sanctions and decisions. For an appeal to be referred to the CAS, it must be filed to CAS within 10 days of the decision of the disciplinary sanction.
 
2.3. UEFA ARBITRATION BOARD
The UEFA Arbitration Board is one of three bodies concerned with the law. Control and Disciplinary Board and Disciplinary Inspectors form other boards. The arbitration board has one chairman and 11 members. The UEFA Arbitration Board is the only appeal authority for the decisions of the UEFA Disciplinary Board.
 
CONCLUSION
Arbitration is the most common method in sports law, both nationally and internationally, to settle disputes. The national sports arbitration authorities are the Arbitration Board of the General Directorate of Sports, and the Arbitration Board and the Dispute Resolution Board of the Turkish Football Federation. In international sports arbitration, the primary arbitration authority is CAS. The resolution of the dispute by the CAS will only be possible if the CAS Arbitration has been accepted in the relevant sports legislation to which the parties are bound. Considering the reasons such as the confidentiality of the arbitration process, its voluntary nature, the fact that expenses such as fees are less in the arbitration proceedings despite the high amounts that will form the basis of the case in the said events, and the possibility of preferring the expedited trial procedure, it can be concluded that, especially in disputes on sports, the arbitration process will protect the rights and interests of the parties more.