Whether a disciplinary sanction imposed on a football player will survive scrutiny depends on compliance with the procedural conditions set out in the Regulations on the Status and Transfer of Professional Football Players. For the penalty to be regarded as lawful, the underlying incident must first be established clearly and concretely, and persuasive documents supporting that incident must then be placed on the file. In addition, the penalty imposed must be proportionate to the gravity of the player’s conduct and to the remuneration he receives. Where these criteria are not met, the annulment of financial penalties imposed on players comes into question.
Below we examine, in turn, the legal basis of club financial penalties, the procedure to be followed in giving notice, the criteria applied in reviewing validity, the forum before which a claim for annulment may be raised, and the applicable limitation period.
Legal Basis of the Financial Penalty
Neither the general legislation nor the TFF Regulations contain any direct provision on financial penalties imposed by clubs on their professional players. For this reason, the validity of the penalty imposed depends on its resting on one of two bases:
- The existence of a provision to that effect in the Professional Player Contract signed by the club and the player
- An internal regulation and/or disciplinary directive drawn up by the club pursuant to Art. 24(c) and Art. 24(d) of the Regulations on the Status and Transfer of Professional Football Players
For the internal regulations and disciplinary directives drawn up by a club for application in the following season to take effect, they must be submitted to and registered with the TFF at least one week before the opening of the season. In addition, those texts must be delivered to the player against signature or served on him through a notary. Only where these procedural conditions have been fulfilled may a financial penalty be imposed on a player on the basis of a regulation brought into force in this way; otherwise the penalty imposed has no legal basis to speak of.
In practice the process operates as follows: the disciplinary regulations submitted by the club to the TFF are recorded in the incoming documents register with a date and a number, while service on players is effected by having them sign a document of service specific to the matter, or by delivering the text to them. For foreign players, clubs serve or deliver against signature a copy of the disciplinary regulations translated into one of the FIFA languages.
Procedure for Notifying the Penalty
In addition to the conditions of legal basis set out above, for a financial penalty to be imposed on a player to be procedurally lawful, the provision in paragraph (d) of Article 24 of the Regulations must also be observed.
Under that provision, the club must notify both the player and the TFF, through a notary, of the decision concerning the financial penalty imposed, the grounds for the penalty, its amount, and notarised copies of the decision. That notarial notification must be effected within 15 days at the latest from the date on which the decision imposing the financial penalty was taken. A penalty imposed without compliance with these procedural rules cannot acquire validity, owing to the defect of form.
Criteria Applied in the Validity Review
Under Turkish law, for a financial penalty imposed by a club on a player to survive, the conditions of formal and procedural validity referred to above must be met. Indeed, the Regulations provide that where the club has not submitted to the TFF, by one week before the start of the season, the internal regulation and disciplinary directive to be in force in the following season, the financial penalty is to be regarded as absolutely invalid. That said, the UÇK and the TFF Arbitration Board may also render decisions to the effect that the financial penalty is valid where the internal regulations and/or disciplinary directives have been served on the player.
Formal and procedural review is not sufficient on its own; the penalty is also required to be lawful as to its substance. In the decisions of the CAS and FIFA, when the lawfulness of a financial penalty is assessed, a detailed examination is conducted in which, beyond the formal and procedural provisions, the following matters are also taken into account:
- The degree of gravity of the disciplinary breach
- The remuneration obtained by the player on an annual, monthly, weekly and daily basis
- The balance between the gravity of the breach and the ratio of the deduction from remuneration to total remuneration
- Whether the player was afforded an opportunity to defend himself in the face of the club’s internal disciplinary practice
- Whether the contract contains concrete provisions on the matter
- Whether, at the stage when the contract was signed and the disciplinary regulations were accepted, the player had the support of a lawyer or a players’ agent
In Turkish practice, by contrast, the examination is conducted within a narrower framework. After the conditions of formal and procedural validity of the penalty have been addressed, a conclusion is reached through a more superficial assessment based on such headings as whether an error was made in calculating the financial penalty, whether the relevant provision of the disciplinary regulations is applicable to the concrete case, and whether the player’s conduct forming the subject of the penalty can be regarded as a disciplinary breach.
Claim for Annulment of the Financial Penalty
In Turkish practice it is not common for an action for annulment to be brought against financial penalties imposed by clubs on players, or indeed collected by setting them off against the player’s receivables. The principal reason for this is that, even where a penalty is imposed, the contractual relationship between the parties is continuing, and players do not prefer to resort to litigation while their contracts are still running. However, the fact that no action is brought does not mean that players are deprived of the possibility of bringing an action for annulment against a financial penalty.
The route to be followed varies according to the content of the contract between the parties. If the contract accepts the jurisdiction of the UÇK in respect of financial penalties imposed, the player may bring an action before the UÇK seeking annulment of the penalty. Where the jurisdiction of the UÇK has not been adopted by the parties, the unlawfulness of the financial penalty may be established by an action for a declaratory judgment brought before the general courts.
Where the penalty has been collected by being set off against a receivable belonging to the player, that amount may be claimed as an item of debt in an application to the UÇK. In such an application, a ruling may be sought both in respect of the receivable from which the deduction was made and as to the unlawfulness of the financial penalty. The same outcome may also be achieved through an action for payment brought before the general courts; in that action, both a decision on the receivable and a declaration of the unlawfulness of the penalty may be obtained.
Details of the legal avenues available to players holding receivables from a club in order to secure payment are addressed in the note entitled Recovery of Professional Players’ Receivables from Clubs; the methods of recovering receivables that players have been compelled to waive are addressed in the note entitled Recovery of Receivables Players Have Been Compelled to Waive.
Remedies Available to the Player
As noted above, players generally do not object to financial penalties and seek their annulment while their contracts with their clubs are still running. The preferred method is to raise, after the contractual relationship has come to an end, claims in respect of the financial penalties awarded against them and the deductions made from their receivables on the basis of those penalties. There are two different routes for advancing such claims:
- A separate legal process may be commenced for the recovery of that amount.
- The claim in question may also be added to an action brought before the general courts, an application made to the UÇK, or enforcement proceedings commenced, for the recovery of other receivables owed by the club.
In their objections to a claim for payment, or in their reply to the statement of claim, clubs may argue that the amount set off arises from a financial penalty. A process running alongside such a defence turns into proceedings in which the validity of the financial penalty imposed by the club against the player during the contractual period is in issue. At that stage the matter is concluded by examining whether the penalty is lawful both in formal and procedural terms and as to its substance.
Statute of Limitations
Players’ receivables arising from their contracts with their clubs are subject to the general limitation regime:
Turkish Code of Obligations No. 6098, Art. 146
“Unless otherwise provided by law, every claim is subject to a ten-year statute of limitations.”
Under this provision, players may bring an action in respect of receivables arising from the contract within 10 years from the date on which they fall due.
Independent Legal Assessment
In disputes concerning club financial penalties, the outcome is more often than not determined at the stage of formal review, without entering into the merits of the penalty. The failure to register the disciplinary regulations with the TFF one week before the season begins, the failure to deliver them to the player against signature, or the failure to notify the decision imposing the penalty through a notary within the 15-day period, are defects of a nature that render any argument on the merits unnecessary. For this reason, what must be done at the first stage of a file is to reconstruct the chain of documents in full by reference to the dates and records of service.
A second practical issue on the player’s side is the timing of the claim. While refraining from seeking annulment while the contract is running may be a preferable strategy, in proceedings for payment brought after the contract has come to an end the items of deduction must be identified one by one and the ten-year period must be tracked by reference to the dates on which the claims fell due.
In a concrete file, the following headings should be reviewed first:
- Verification of the date of the record showing that the disciplinary regulations were registered with the TFF
- Documentation that the regulations were conveyed to the player by delivery against signature or by notarial service
- A check as to whether the decision imposing the penalty, together with its grounds and amount, was submitted to a notary within 15 days and notified to the player and the TFF
- An assessment of whether the amount imposed is proportionate to the player’s remuneration and to the gravity of the breach
- Establishing from the file whether the player was afforded an opportunity to defend himself
- Determining, according to the provisions of the contract, whether the dispute is to be heard before the UÇK or before the general courts
- Separating out the items of set-off from the payroll and payment records and constructing the limitation timetable
Independent Legal provides advisory services and dispute management in the recovery of players’ receivables and in proceedings to be pursued against club disciplinary penalties.