Being left out of the squad, being removed from the training group or never being named in a match squad are among the most common problems professional footballers experience with their clubs. For a player whose career has been interrupted, continuing with the contract loses its meaning beyond a certain point; the only way of playing for another team is to bring the existing relationship to an end. Clubs, for their part, usually put a price on that exit and make signing a mutual termination conditional upon the player waiving the entitlements he has accrued.
The result is a release deed in which the footballer declares that he has no remaining claim against the club. In signing that document the player is most often not making a free choice; little time remains before the transfer window closes and his bargaining power is exhausted. Following the annulment decision given by the Constitutional Court, the Dispute Resolution Committee and the Arbitration Board lost their position as the sole competent forum, and documents of this kind thus became open to argument before the general courts as well. The line laid down by the courts is clear: a release deed that does not satisfy the formal requirements is not sufficient to extinguish a footballer’s claims.
In this briefing note we examine the legal nature of the professional footballer contract, the criteria required for a release agreement to be regarded as valid, the approach of the judicial bodies, and the routes by which claims that appear to have been waived may be pursued.
The Legal Nature of the Professional Footballer Contract
Although different views are advanced in the legal literature as to the nature of the professional footballer contract, the predominant view is that this contract falls within the category of the service contract set out in the Turkish Code of Obligations No. 6098. The Court of Cassation has likewise maintained the same line for years, consistently accepting that the link between the footballer and the club is based on a service contract.
Although Article 4 of the Labour Act No. 4857 has kept sportspersons outside the scope of that Act, this exception does not alter the essence of the relationship; the link between a professional footballer and his club is by its nature an employment relationship. The Court of Cassation reached that conclusion on the following reasoning:
“Since sportspersons carry out training sessions and matches at the places designated by their clubs (their employers), subject to fixed working hours and under the orders and supervision of the employer, and receive in return remuneration agreed in advance, their link with their clubs is based on an employment contract. The fact that the activity is related to sport does not constitute an obstacle to the link between the sportsperson and the club being regarded as an employment relationship”
As can be seen, the fact that the work performed is a sporting activity does not remove the elements of dependence and remuneration, and does not prevent the relationship from being regarded as an employment relationship. That characterisation is the true basis on which the fate of the release deed signed is determined.
Conditions Required for a Release Deed to Be Valid
Termination of the contract by agreement of the parties is regulated in Article 26 of the Regulations on the Status and Transfer of Professional Footballers. In practice that termination is effected by means of a release agreement, known in everyday language as a release deed. Since the regulations lay down no formal or validity requirement in respect of the release deed, no specific scrutiny of the form of the document is carried out before the TFF.
The matter cannot, however, be resolved by the federation’s legislation alone. Because the link between the parties is based on a service contract, the provisions of the Turkish Code of Obligations concerning the service contract apply to disputes arising from the professional footballer contract. Given that mutual termination is mostly effected by a release agreement, the subject must be examined on three levels: the position of the release agreement in general law, the special regime to which it is subject as regards the service contract, and finally the reflection of this on the professional footballer contract.
In that framework, the survival of a release document terminating, by agreement of the parties, a footballer contract regarded as a service contract depends on all of the conditions required by Article 420 of the Turkish Code of Obligations No. 6098 being satisfied. Under that provision:
- Both the type and the amount of the claim covered by the release must be stated in the document with a clarity that leaves no room for doubt.
- Payment must be made in full and through a bank.
- The document must be drawn up in writing.
- There must be an interval of at least one month between the date of the release deed and the date on which the contract came to an end.
The failure to satisfy even one of the criteria listed renders the release deed invalid.
The Practice of the Court of Cassation and the Dispute Resolution Committee
The UÇK is an arbitral forum established by regulations issued by the TFF, operating within the federation and determining disputes arising from football. 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. The federation thereupon revised its regulations; the power conferred on the Dispute Resolution Committee in contractual disputes lost its exclusive character.
That same decision also made it possible to apply to the general courts for the annulment of decisions given by the Arbitration Board on applications made against UÇK decisions. Thus, apart from limited exceptions, the Court of Cassation has become the forum that has the final word in sports law, and it has become unavoidable that the case law of the Court of Cassation be taken into account in any action brought.
In disputes of this kind the Court of Cassation follows a line that maintains a balance between the parties and rests on substantive law and equity. Because it regards the contract as a service contract, it also passes the release agreement terminating it through the filter of Art. 420 of the Turkish Code of Obligations; it treats a document drawn up without complying with the conditions in that article as void and concludes that the footballer may claim the sums he appeared to have waived.
Indeed, in the judgment quashing the local court’s decision dismissing the action, given on appeal on points of law, the following findings were set out:
“In the case forming the subject of the present dispute, it is understood that an employment relationship was established by the Professional footballer contract dated 04.08.2012 concluded between the parties, that during the continuation of that contract the contract was terminated by mutual agreement by means of the termination instrument dated 14.01.2015 and a release deed of the same date was drawn up, and that the dispute is confined to the question whether the release deed dated 14.01.2015 given by the claimant to the respondent is valid. On the assessment carried out under Article 420 of the Turkish Code of Obligations as regards the statutory elements of the release deed forming the subject of the action, it has been established that the date of the release deed and the date of termination of the contract are the same, that the condition requiring a statutory period of one month between the termination agreement and the release agreement has not been fulfilled, that furthermore the amount of the claim covered by the release is not expressly stated in the release deed, and that the statutory conditions concerning payment of the sum covered by the release through a bank are not present. That being so, whereas the court ought to have had regard to the fact that the release deed dated 14.01.2015 relied on in the respondent’s defence is not valid, and ought to have calculated the claimant’s claim within the scope of the contract between the parties and given a decision in accordance with the outcome, the establishment of a judgment on the basis of an incomplete examination and an erroneous assessment is contrary to procedure and to law and constitutes a ground for quashing.”
As is apparent from the judgment, the coincidence of the termination and the release on the same day, the failure to state the amount of the claim and the fact that payment was not made through a bank were sufficient to render the document invalid. In short, a release deed not drawn up in conformity with the criteria listed in Art. 420 of the Turkish Code of Obligations does not extinguish the footballer’s claims against the club.
Routes for Recovering Waived Claims
The picture on the ground shows that almost none of the mutual termination and release documents satisfy the conditions listed above. For that reason a footballer who has had to terminate his contract at the price of waiving his claims may apply to the UÇK or to the general courts and seek recovery of the entitlements he left behind at the club. If the claim has fallen due, it is also possible to commence enforcement proceedings without a judgment directly, without going to court at all.
In addition, clubs from time to time impose financial penalties on their footballers and seek to collect that sum by deducting it from the player’s claim against the club. In such a situation, if the annulment of the penalty can be secured, the recovery of the amount set off also arises. Details concerning this head, which the footballer may claim from the club, are addressed in the note entitled “Annulment of a Financial Penalty Imposed on a Footballer by the Club”.
Independent Legal Assessment
What is decisive in release deed disputes is not the title of the document or the breadth of the waiver wording it contains, but whether the four conditions required by Art. 420 of the Turkish Code of Obligations have actually been fulfilled. In practice, the completion by clubs of the termination and release transactions on the same day breaches the one-month waiting period on its own and renders the document indefensible. For that reason, the fact that the footballer has signed does not mean that the pursuit of his rights is closed off.
Each file must nevertheless be assessed on its own facts. Whether the claim has fallen due, the statute of limitations, the allocation of the dispute between the UÇK and the general courts, and the effect of enforcement proceedings on the transfer ban process directly determine the route to be followed. In building a strategy in a concrete file, the following points in particular should be brought to the fore:
- Comparing the date of termination with the date of the release and documenting whether the one-month period has elapsed
- Scrutinising the way the document identifies the heads of claim as to their type and amount
- Tracing the payment through bank records in order to establish whether it was made in full and in cash
- Examining whether the contract contains a clause concerning the jurisdiction of the Dispute Resolution Committee
- Clarifying whether the club is a company or an association for the purposes of the court with subject-matter jurisdiction
- Assessing whether the financial penalties imposed and the set-offs relating to them should be made the subject of a separate action
Independent Legal provides advisory services and conducts litigation across the whole of the process in disputes arising from professional sportspersons’ contracts, from the scrutiny of the release deed to the recovery of the claim by way of enforcement.