From the past to the present, the Dispute Resolution Board has been organized as a discretionary authority in fiscal disputes between football players- clubs, sometimes exclusively authorized and sometimes applied voluntarily.
The paragraph 2 of Article 5 of the law on the Establishment and Duties of Turkey Football Federation No. 5894 was canceled by decision of the Constitutional Court, 2017 / 36-2018 / 7 dated 01/18/2018 and as such the exclusive jurisdiction of the Dispute Resolution Board has been abolished.Thereupon Turkey Football Federation changed the Status and Directions and reorganized the powers of the Dispute Resolution Committee in monetary disputes between football players and clubs;
Article 56/1 of Turkey Football Federation Statute, entitled as "Duties and Powers of the Dispute Resolution Committee ";
The Dispute Resolution Board examines and decides any disputes arising from any contract related to football between clubs, footballers, technical staff and football managers, if the parties agree to its jurisdiction. However, disputes regarding sportive fines and upbringing compensation shall be settled exclusively before the Dispute Resolution Board.
Article 2 of the Dispute Resolution Board dated 17.06.2019, which regulates the Jurisdiction of the Board, the Dispute Resolution Board examines and concludes any disputes arising from any contract related to football between clubs, footballers, technical men and football managers if its jurisdiction is accepted by the parties. In this case, for the financial disputes arising from the law and the contract between the footballer and the remedy of judicial proceedings was opened and the discretionary jurisdiction of the Dispute Resolution Board has been clearly expressed.
Thus the Dispute Resolution Committee which hitherto had an exclusive jurisdiction, by the competent authority Instructions dated June 2019 and the change in the status of Turkey Football Federation has become henceforth a discretionary remedy to be preferred by the members of the football family.For this reason, the members of the football family may seek their rights before the Judicial Authorities if they do not prefer the Dispute Resolution Board in disputes.
There are also some differences in terms of the ways to be followed in the judicial process in disputes between, football players and coaches who are the football family members.
In Article 4 / g of the Labor Law No. 4857, entitled as exceptions, it is clearly stipulated that the provisions of the Labor Law cannot be applied to sportsmen. In this case, it is necessary to determine who the sportsmen is, who covers this concept and to establish the legal rules to be applied. In one of the recent decisions of the Court of Cassation, which make reference to the decision of the General Assembly of Case-Law Unification of the Court of Cassation;
Pursuant to decisions (9th Chamber of the Court of Cassation E. 2015/24584, K. 2018/21216, dated. 22.11.2018 issue;) 23.05.1960 numbered 10-11, dated 10. 05. 1974, number 3-44 of the General Assembly of Case-Law Unification of the Court of Cassation,in particular, the exceptional provision in labor law should be interpreted narrowly, not by extension. It is essential to interpret, the provisions enacted for the benefit of the workers, for the benefit of the workers. In the light of the above definitions and decisions to unify case-law, it is clear that the sportsmen directly engaged in sports is not covered by the Labor Law. However, the coach who prepares the sportsman who does not directly engage in active sports and the technical director whose active duty is more to give directives and to lead the team to success should not be considered as a sportsman and should be accepted as a worker under the Labor Law. Therefore, any disputes arising from the employment contract between coach or technical director and employer clubs should be heard before labor courts. Since there is no regulation in the Labor Law for the purpose of arbitration regarding labor debts except for the provisions regarding job security, the provision of a special law or arbitration board in the regulations or circulars of the federation to which these persons are bound does not eliminate the jurisdiction of the labor court for the settlement of disputes between the coach or technical director and the employer.It is not possible to apply the provisions of Law No. 4857 in disputes heard before ad hoc arbitrary or the general courts regarding the debts between the sportsman and the club. However, there is no obstacle for the implementation of the provisions of the Labor Law in addition to special legal provisions in the disputes between the coach, trainer, masseur and similar staff and clubs.In the present dispute, the statue of the plaintiff as sportsman was not the subject of an argument, and since the Labor Court has no jurisdiction in the face of the above-mentioned legal regulations, IN view of the above as the decision of non-jurisdiction was required by the court, the entry into the essence of the case was erroneous required decision to quash.When the relevant decision is examined, it reveals who should be understood from the sportsman considered as an exception in the Labor Law. So, provisions of which law will be applied to players who are excluded from the scope of the Labor Law. Namely;
Football player contracts signed between the parties is a contract that imposes debts on both sides. The player is obliged to go to and race for the club, to pay attention to his/her performance, to do the best on behalf of his club in matches or competitions, while the other party is to pay the player's fee on time, to fulfill the other acts required by the contract (if any), for example to give premiums after a successful performance was shown If it is foreseen in the contract.
In the event that these actions are not or incompletely fulfilled, in terms of the parties do not fulfill their obligations arising from the contracts they have signed and the other party's contractual unilateral termination, the compensations of the damages arising from the termination of the contracts and to receive the debts the filing cases which are subject of this study is in question.
The relationship between the player and the club is a service relationship in the sense of Articles 393 and the following articles of the Code of Obligations No. 6098. Service contract is a contract in which the worker undertakes to work for a fixed or non-fixed period depending on the employer and the employer undertakes to pay him wages according to the time or work done.If a person sees a job which can only be done for money in a certain time according to the requirements of the situation and the job is accepted by the employer, a service contract is considered to be established between them. Unless otherwise agreed from the contract or the situation, the worker is obliged to do the work he / she has undertaken himself. The employer is obliged to pay the peer wage not less than the minimum wage in cases where there is no provision in the contract or collective labor agreement. It is also important in which court the legal disputes that may arise due to this legal relationship will be heard.
Article 5 (1) of the Labor Courts Law no. 7036 of 25.10.2017 reads that; Labor Courts have jurisdiction on every kind of disputes arising from the business relationship or the contracts betweena) Journalists subject to Law No. 5953, Seafarers subject to Law No. 854, 22/5/2003 and workers subject to Law No. 4857, or to workers subjectto thesecond part of the sixthsection of the Turkish Code of Obligations 6098 11/1/2011, andthe employer or employers' representatives. Therefore, although the Labor Courts have jurisdiction on the financial disputes arising from the contract and the law between the Player and the Club, the Law to be applied to litigation is the provisions of the Law of Obligations numbered 6098 regarding Service Contracts. Whether the player is a native or a foreign player is a reason for different legal practices. This difference will also take place in our future studies. This study is only about the disputes between the native players and the club.
As it might be applied to mediation before bringing these cases before the judicial authorities voluntarily there are disputes for which compulsory application to mediation is provided. Law on Labor Courts No. 7036 ARTICLE 3- (1) provides that: in the lawsuits filed for employer or employee debts and compensation and reinstatement to work based on the individual or collective labor agreement, application to mediator is a pre-condition of litigation. In case you bring a case before the court without applying to the mediator, if you do not complete this deficiency within the given time, your case may be dismissed on procedural grounds. In this respect, to put it bluntly with theenacted regulations, the lawsuits arising from the law and the service contract between the club and the footballer will be heard in the Labor Court henceforth, the provisions of the Code of Obligations no. 6098 shall apply to these disputes. In cases stipulated in Article 3 of Labor Courts Law No. 7036 application to mediator shall be sought as a pre-condition of litigation. In line with the amending legislation and regulations, this is the latest version of the application today. Currently, football players are bringing their cases before the Labor Courts for their monetary disputes with the clubs, and therefore, it has begun to be sent mandatory mediation invitation documents to the Football Clubs.
In accordance with Article 2 of Law No. 6325 on Mediation in Civil Disputes: Mediation; is a discretionary method of dispute resolution carried out as a public service which aims to bring together the parties in order to negotiate by applying systematic techniques and to establish a communication process between them in order to ensure that the parties understand each other and thus produce their own solutions, to bring forward a solution if it appears that the parties failed to produce one. Mediation activity; is carried out with the participation of an impartial and independent third party. With the entry into force of Law No. 6325 on Mediation in Civil Disputes, adopted on 07.06.2012, mediation activities in our country have gained a legal basis.
In this respect, in the field of Sports Law, both voluntary and compulsory applications to mediation are accepted according to the attributions of the parties in the financial disputes that may arise between the football player and the club. Sports law has an identity that brings together different subjects.The mediation process can be operated differently according to each subject. So stakeholders can easily obtain their rights.For example; If it is evaluated the possibility of a player not receiving his payment by making a comparison between the remedies of the Mediation and Dispute Resolution Board. The mediation process is a remedy that attaches importance to the concept of time and foresees the maximum time for completion of the process in the legislation, which serves the right holders to reach their rights as soon as possible and attaches the confidentiality of the process to legal guarantees. The mediation in the disputes arising in the field of Sports Law, which includes comprehensive regulations, is the facilitation of the relations between the parties with the help of an impartial mediator and it differs from litigation and arbitration in terms of mediator’s function.
In addition, it provides a very different alternative to judicial ways due to the fact that it enables lower costs, faster results, focuses on the present and future rather than the past, presents a wide range of decisions to the parties, sincere approach and added privacy and party control.
The disputes that the mediation will come to stage are the civil disputes. The mediation will find application only in the context of legal disputes on which the parties can freely dispose by agreement, i.e. disputes that can be terminated by settlement. In the face of this situation, it will not be possible to recourse to mediation in the settlement of disputes arising from legal relations concerning public order and thus which do not allow the parties to dispose freely through mutual agreement.
In order to fully understandthe mediation process, the relevant provisions of the Law on Mediation in Civil Disputes, the Labor Courts Law and the Sports Law Legislation should be examined, critical issues such as whether the process is compulsory or the court having jurisdiction and the law to be applied should be determined correctly by the help of a mediator who is expert in the regulations of Sports Law on Football.