Football, as the natural consequence of being the sport with the widest following worldwide, generates a substantial volume of legal disputes. First among these disputes is the failure of players to collect the sums they have earned from their clubs. Professional footballers, who are given a separate definition in the TFF Regulations on the Status and Transfer of Professional Footballers, are subject to a different regime from other categories of worker by reason of their particular status, and that difference makes itself felt in the recovery of claims as well.
In practice the picture facing the player is generally as follows: the contract is in force, the entitlement has arisen, but payment is deferred for months. At this point the question of which forum to approach, and when, varies according to the nature of the claim and the legal form of the club. Choosing the wrong route may lead not only to a loss of time but also to the disapplication of sanctions that could otherwise be imposed before the federation.
In this briefing note we examine the heads of claim of which a footballer’s entitlements consist, when they become payable, the division of functions between the Dispute Resolution Committee and the general courts, the enforcement and attachment stage, and the transfer ban that may be imposed on the club in the event of non-payment.
The Scope of a Footballer’s Claims
The professional footballer contracts signed between the club and the player, while carrying a number of features of their own, fall essentially within the category of service contracts. Under the contract the footballer undertakes to carry on the activity of playing football within the club on a continuous and dependent basis; the club, in return, assumes the obligation to pay remuneration.
Article 21 of the Regulations provides that the payment to be made to the footballer may not fall below the amount of the monthly minimum wage. That said, the growth of the football economy has broadened the heads to which players are entitled, both in number and in amount. Today footballers may become entitled to payments such as Monthly Salary, Guaranteed Salary and Signing Fee (Advance), entirely independently of performance. Alongside these, heads such as Match Fees and Bonuses, which depend on their own performance or on the results obtained by the team, also arise.
There is a limit here that should not be overlooked: apart from the monthly salary, which is fixed subject to not falling below the minimum wage, the other heads may be claimed only if a provision governing those payments has been written into the text of the contract.
When the Claim Falls Due
Before an entitlement arising from the contract can be demanded, it must first fall due, that is to say the time for payment must have arrived. Under Article 117 of the Turkish Code of Obligations No. 6098, a claim falls due either where a payment date has been agreed in the contract or where the creditor has served notice on the debtor.
Among the heads listed above, the payment date is most often stated in the contract as regards the minimum wage, the guaranteed salary and the advance. By contrast, when match fees and bonuses are to be paid generally remains unsettled. For that reason it is appropriate to serve a formal notice on the debtor club as soon as the due date passes, to give notice requiring payment of the debt that has fallen due, and then to commence the recovery process.
In some files it is also seen that the club has imposed a financial penalty on the footballer and has deducted that penalty from the player’s claim against the club. Where the conditions are met, it may be possible for the footballer to have that financial penalty annulled. The subject is examined in detail in the note entitled “Annulment of a Financial Penalty Imposed on a Footballer by the Club”.
Resolution Before the Dispute Resolution Committee
The second paragraph of Article 5 of Act No. 5894 on the Establishment and Duties of the Turkish Football Federation was annulled by the decision of the Constitutional Court dated 18.01.2018, file no. 2017/136, decision no. 2018/7. Following that decision the federation revised its regulations; the power conferred on the Dispute Resolution Committee in contractual disputes lost its exclusive character.
Today, for the UÇK to be able to examine a contractual dispute, the contract must contain a provision stating that the parties accept the jurisdiction and competence of that committee. A written agreement to that effect outside the contract, or a joint application by the parties in respect of the dispute, produces the same result.
An application to the committee is made by a pleading containing the mandatory elements prescribed in the regulations, together with its annexes. If the pleading contains those elements, it is served on the opposing party through the TFF. If one of the parties requests that the proceedings be conducted with a hearing, a hearing must be held. Proceedings before the UÇK produce a markedly quicker result than the process before the general courts; the committee’s decisions, however, cannot serve as the basis for enforcement proceedings founded on a judgment. On the other hand, an application may be made to the TFF for the decision to be given effect, and the federation may impose an administrative sanction on the party failing to comply with the decision.
Bringing an Action Before the General Courts
Since the exclusive competence of the UÇK was removed by the decision of the Constitutional Court, the committee’s ability to adjudicate now depends on the consent of both parties. In other words, the requirement that disputes arising from footballers’ claims be heard before the UÇK has come to an end. Leaving aside disputes arising from sporting sanctions and training compensation, the way is open to apply to the general courts in respect of other disputes.
Although the link between the player and the club is regarded as a service contract, the Labour Act No. 4857 has kept sportspersons outside its scope. For that reason, in determining the court with subject-matter jurisdiction, regard is had to the legal form of the club: if the club is organised as a company, the Commercial Court of First Instance has jurisdiction, and if it has the status of an association, the Civil Court of First Instance does.
The judgment to be obtained from the court with subject-matter jurisdiction gives rise to two separate possibilities. On the basis of that judgment, enforcement proceedings founded on a judgment may be commenced against the debtor club, and equally the court’s judgment may be submitted to the Turkish Football Federation so that steps may also be taken before the federation.
Making the Claim the Subject of Direct Enforcement Proceedings
The Enforcement and Bankruptcy Act No. 2004 allows a creditor, even where he holds no document, to commence proceedings without a judgment against the debtor and to recover his claim through the enforcement offices. That said, where an objection is raised to proceedings commenced without a document, it is important to be able to produce a supporting document in the action for annulment of the objection that will follow. The precondition for proceedings without a judgment is that the claim has fallen due. Accordingly, while the footballer may take this route directly in respect of a claim whose due date has passed, in respect of heads for which no due date has been agreed he must first serve notice on the club and wait for that notice to go unanswered.
In proceedings without a judgment, a payment order is served on the debtor club; if the club does not object, the proceedings become final. In practice the great majority of clubs object to the proceedings and thereby halt the process. In that event, in order to continue the proceedings, the creditor must, depending on the nature of the document he holds, bring an action for annulment of the objection or seek the removal of the objection. An action for annulment of the objection is heard before the general courts, and the observations made above in relation to the general courts apply equally to that action. If the court finds the club’s objection to be unjustified and made in bad faith, it may award compensation for denial of the debt in enforcement proceedings; that compensation may not be less than 20% of the claim. Where no objection at all is raised to the proceedings, or where the objection is removed or annulled by the court, the proceedings become final and attachment measures follow from that stage onwards.
The Attachment Stage Once Proceedings Become Final
Whether the proceedings are founded on a judgment or not makes no difference to the enforcement and attachment measures to be carried out once they have become final. Measures resorted to in other debt recovery proceedings, such as the attachment of immovable property and vehicles, the freezing of bank accounts and the sale of attached assets, may also be applied to footballers’ claims. Beyond this, the distinctive economic structure of football brings into play certain unusual channels of attachment:
- The club’s intellectual and industrial property rights held before the Turkish Patent and Trademark Office may be attached by writing to that office.
- A writ of attachment may be sent to companies providing sponsorship support to the club.
- The rights and claims accrued to the club before the Spor Toto Directorate General and the Turkish Football Federation may be attached by serving an attachment notice on those institutions.
- For the attachment of revenues, a writ may be addressed to Passolig or to companies in which the club holds a participation.
- A writ may be sent to tenants occupying immovable property owned by the club.
- If the club has transferred one of its footballers in return for a transfer fee, a writ of attachment may be directed to the club acquiring the registration.
Transfer Ban on the Club for Non-Payment
A footballer who is a creditor of the club may also, by making a written application to the TFF, secure the imposition of a sanction on the debtor club through the federation. The most effective administrative sanction available to the federation is the measure publicly known as the transfer ban; by that sanction, the registration of the contracts the club signs with the players it transfers is blocked.
However, for that sanction to be brought into operation, it is required that the creditor footballer has not commenced enforcement proceedings. If enforcement proceedings have been commenced and the debtor club is able to prove this before the TFF, no transfer ban may be imposed on the club. If, on the other hand, the club has not notified the federation of the existence of the proceedings, the TFF does not investigate the matter of its own motion.
The duration of the ban varies according to the particular features of the case and the number of repetitions. The federation also has at its disposal other administrative sanctions such as a warning, a reprimand and a financial penalty. On the other hand, footballers may from time to time be pressed into waiving certain of their claims in order to be able to sign a mutual termination document with the club. The recovery of heads waived in this way is addressed in the note entitled “Recovery of Claims Footballers Have Been Forced to Waive”.
Independent Legal Assessment
In footballers’ claims, the factor that determines the outcome is most often not the existence of the claim but which route is pursued and in what order. In particular, where the relationship between enforcement proceedings and the transfer ban is overlooked, proceedings commenced with a view to obtaining a swift result may disable the strongest instrument of pressure available before the federation. In the same way, where the notice stage is skipped in respect of bonuses and match fees for which no due date is stated in the contract, it is common to be met with the defence that the claim has not fallen due.
The legal form of the club, the arbitration clause in the contract and the nature of the documents held also directly affect the route to be followed. In a concrete file we recommend that the following points be settled at the outset:
- Checking whether each head claimed has a written basis in the contract
- Serving a formal notice for claims with no fixed due date, so that the fact that they have fallen due is documented
- Examining the UÇK jurisdiction clause in the contract so that a deliberate choice is made between the committee and the general courts
- Determining whether the Commercial Court of First Instance or the Civil Court of First Instance has jurisdiction according to whether the club is a company or an association
- Structuring the order of the request for a transfer ban and the enforcement proceedings with strategy in mind
- Identifying in advance those channels of attachment with a high prospect of recovery, such as the federation, Spor Toto, sponsors and revenue sources
Independent Legal provides advisory services and conducts litigation across the whole of the process in disputes involving sportspersons and clubs, from the establishment of the claim to its recovery by way of enforcement and applications before the federation.