Is judicial review of TFF Arbitration Board decisions possible?

ENTRANCE

Arbitration is preferred in sports law as a fast, effective, and expert-based solution; arbitration boards established within federations, in particular, ensure the final and binding resolution of administrative decisions. In Türkiye, the TFF Arbitration Board, operating within the Turkish Football Federation (TFF), is the final decision-making body in many areas, primarily football disciplinary law, including licensing, transfers, penalties, and disqualifications.

However, whether this binding nature allows for exemption from legal review is a matter of serious debate. In light of the precedents set by the Constitutional Court and the Council of State, as well as the decisions of the European Court of Human Rights (ECtHR), the question of whether the decisions of the Turkish Football Federation Arbitration Board are subject to judicial review remains relevant.

1. LEGAL STATUS OF THE TFF ARBITRATION BOARD

a) Basis

The TFF Arbitration Board was established in accordance with Article 6 of Law No. 5894 on the Establishment and Duties of the Turkish Football Federation. Paragraph 6/5 of the same law states the following:

"The decisions of the Arbitration Board are final; no appeal can be made to any judicial authority against these decisions."

This explicit provision forms the basis of the argument that the decisions of the TFF Arbitration Board are outside the scope of judicial review.

b) Characteristics of the Board

The board consists of individuals nominated by the federation president.
Law school graduation and certain seniority requirements are necessary.
He claims to be an expert in the field of sports law.
Board decisions are considered the final authority within the federation.

2. IS CLOSING THE JUDICIAL REMEDY LAWFUL?

a) Freedom to Seek Justice in the Constitution

Article 36 of the Constitution:

"Everyone has the right to a fair trial, including the right to assert claims and defenses before judicial authorities as a plaintiff or defendant, by using legitimate means and methods."

The fact that the decisions of the TFF Arbitration Board are considered "final and beyond judicial review" constitutes a limitation of this right enshrined in the Constitution. Indeed, the Constitutional Court interprets this provision in a balancing manner in individual applications on this matter.

b) Constitutional Court Decisions

Constitutional Court, Case No: 2016/13543, Date: 10.3.2021 (Tolga Zengin Decision):

“The complete closure of judicial avenue against the decisions of the TFF Arbitration Board constitutes a problem within the scope of the right to a fair trial. The actions and decisions of sports federations are, ultimately, administrative actions and procedures that exercise public power and should be subject to judicial review.”

This decision has shown that the TFF Arbitration Board's decisions cannot be legally "final," but it does not mean that an absolute annulment lawsuit can be filed in every case. According to the Constitutional Court, decisions involving "arbitrariness" or "violation of fundamental rights" should be subject to judicial review.

3. FICTIONAL CASE STUDY

SUMMARY OF THE INCIDENT:

Professional football player Barış Gök is entitled to a 15% salary increase at the end of the third year of his contract with a Süper Lig club, signed in 2023. However, the club did not implement this increase, citing financial reasons, and Barış's appeal to the TFF Dispute Resolution Board (UÇK) was rejected. The TFF Arbitration Board subsequently upheld the UÇK's decision.

Barış Gök filed a lawsuit in the Istanbul Administrative Court, seeking the annulment of the TFF Arbitration Board's decision on the grounds that "his right to a fair trial was violated, the decisions were unfounded, and his evidence was not evaluated." The court dismissed the case on procedural grounds, stating that "the decision was final and outside judicial review." Barış Gök then filed an individual application with the Constitutional Court.

4. THE ATTITUDE OF THE JUDICIAL AUTHORITIES

a) Council of State Practice

For a long time, the Council of State did not consider the decisions of the TFF Arbitration Board as administrative acts, viewing them as a "private law relationship" and rejecting the filing of lawsuits. However, in recent years, this approach has been changing under the influence of decisions from the Constitutional Court and the European Court of Human Rights.

b) The Constitutional Court's Approach

Regarding the Barış Gök case specifically, the Constitutional Court could make the following assessment:

If it can be proven that the Arbitration Board has not adhered to the principles of independence and impartiality in certain matters
If the decision can be determined to be unfounded or arbitrary
If the applicant's right to defense has been violated, closing off the avenue of judicial review would violate Article 36 of the Constitution.

c) The European Court of Human Rights Approach

The ECHR’s decision in Ali Rıza and Others/Turkey (2020) clearly demonstrated that the TFF Arbitration Board is not an independent and impartial court. This decision is a significant example of criticism of the Turkish sports judicial system in Europe.

5. LEGAL DEBATE: IS THE “EXCEPTION” ALLOCATED IN SPORTS LEGITIMATE?

The Turkish Football Federation (TFF) is an autonomous public legal entity. However, due to its field of activity, it exercises public authority in matters concerning public order, such as discipline and competition. In this context:

Punitive decisions (for example, a five-match ban) are administrative actions.
Actions such as refusing to grant licenses should be subject to administrative judicial review because they concern public order.

Restricting individuals' right to a fair trial on the grounds that it is an "exception in sports law" is contrary to European legal standards.

6. WHAT SHOULD BE DONE?

a) The TFF Law must be changed

The provision in Law No. 5894 stating that "no appeal can be made to any judicial authority" should be deemed unconstitutional and amended accordingly. The review of arbitration awards should be ensured.

b) The Statute of the Arbitration Board Should Be Reviewed

Board members should be appointed by an independent board, not the federation president. This will increase objectivity and reliability.

c) Courts Must Conduct a Substantive Investigation

Instead of rejecting the case on the grounds of "certainty," courts:

Lack of justification
The problem of neutrality
Violation of fundamental rights

Such claims should be examined concretely.

CONCLUSION

The fact that the decisions of the TFF Arbitration Board are not subject to judicial review is contrary to Article 36 of the Constitution and Article 6 of the European Convention on Human Rights. Indeed, the decisions of the Constitutional Court and the European Court of Human Rights also support this view. In this context:

Board decisions may be challenged in court under exceptional circumstances.
Violations of fundamental rights, lack of justification, and breaches of impartiality necessitate judicial review.
When sports law conflicts with fundamental rights, it must be remembered that human rights take precedence.

Gamze Akbulut, Law Faculty Student

#ECHR, Law No. 5894, Right to a Fair Trial, Constitutional Court, Administrative Law, case study, sports law, sports arbitration, TFF Arbitration Board, Judicial Review

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