Fines Imposed by Clubs on Their Players

September 12, 2019 · Av. M. Şekip Mosturoğlu

I. Rules on Fines Imposed by Football Clubs on Their Professional Players

A penalty clause may arise, as is most commonly the case, from a contract, but it may also arise from the articles of association or statutes of a legal entity.^[1] Accordingly, there are two legal instruments governing fines imposed by football clubs on their professional players:

• The clubs’ internal regulations and/or disciplinary rules (Article 24(c)(d) of the TFF Regulations on the Status and Transfer of Professional Football Players);
• The “Professional Football Player Contracts” signed between clubs and players.

In this article, we set out our views on the principles governing fines imposed by clubs on their players on the basis of their disciplinary regulations, in light of CAS, FIFA and TFF decisions.

II. Fines Imposed by Football Clubs on Their Professional Players under the TFF Regulations on the Status and Transfer of Professional Football Players

A. Registration of Clubs’ Disciplinary Regulations with the TFF and Their Notification to Players under Article 24(c)(d) of the Regulations

Article 24 of the TFF Regulations on the Status and Transfer of Professional Football Players, headed “V. Rights and Obligations of the Parties”, sets out the obligations of clubs. The article begins with the words “in addition to the obligations imposed on them by the professional football player contract”. Further on, additional obligations of clubs are listed in sub-paragraphs. Two of these additional obligations are relevant to our subject. The text of these sub-paragraphs reads:

c) Clubs must send to the TFF, at the latest one week before the start of the season, the internal regulations and/or disciplinary rules they will apply in the following season. Clubs must deliver the internal regulations and/or disciplinary rules they have registered with the TFF and will apply to the player against signature or serve them through a notary;

d) Clubs must notify their decisions on fines imposed on their players, together with the reasons, the amounts and notarised copies of the decisions, to the player and to the TFF through a notary within 15 days at the latest from the date of the decision.

Although the first sentence of Article 24(c) of the Regulations states that clubs must send the disciplinary rules they will apply in the following season to the TFF, it is understood from the second sentence that clubs must also have their disciplinary rules “registered” with the TFF.

Although the second sentence of the provision refers to “registration”, in practice the registration is carried out by recording the disciplinary regulations submitted by the club to the TFF in the incoming correspondence register with a number and date. Upon request, the number and date of the record are also provided to the club in writing. Again in practice, clubs serve and/or deliver their disciplinary regulations to players (other than those who refuse delivery by hand) by having them sign a notification document specific to this matter. Clubs serve and/or deliver to their foreign players, against signature, a copy of the disciplinary regulations translated into one of the FIFA languages.

B. Consequences of Players Objecting to, or Refusing Service of, Disciplinary Regulations for Fines Imposed by Clubs

Although not frequently encountered in practice, it is necessary to consider whether disciplinary regulations can be applied to players who object to the disciplinary regulations served on or delivered to them, who refuse delivery or service because of such an objection, or who accept delivery or service subject to a reservation. In our view, such a situation should be assessed on a case-by-case basis. An objection to the entire disciplinary regulation and an objection to only part of it must be assessed differently. Considering that players’ contracts with clubs generally contain provisions stating that the player will comply with the club’s disciplinary regulations and disciplinary decisions, there is no obstacle to a club imposing a disciplinary penalty on its player. We do not consider it possible to say that a disciplinary penalty based on a disputed disciplinary regulation, or not based on any disciplinary regulation because of such an objection, is entirely invalid. In such a case, although the player has not accepted the disciplinary regime established by the club’s internal disciplinary regulation, the player is nonetheless subject to a specific disciplinary regime as a consequence of their contractual obligations. The club will impose fines on its player on the basis of this specific disciplinary regime. In our view, this specific disciplinary regime will also be reviewed in accordance with the principles established in the case law of FIFA, CAS and TFF judicial bodies and, of course, with statute and court decisions.

Clubs’ disciplinary regulations are a unilateral legal act of the club’s board of directors (that of the association or joint-stock company, as the case may be). As long as they are not applied, raising a prior objection to the board decisions on the disciplinary regulations or refusing service and/or delivery of the disciplinary regulations is not considered to produce any legal effect. However, where they are applied and legal remedies are sought against their application, the lawfulness of the provisions of the disciplinary regulations will be ruled upon separately. In practice, it can be seen that Professional Football Player Contracts signed between clubs and players also contain specific contractual penalties for certain serious disciplinary breaches, which are applied in the event of a breach. This issue is not examined in this article. We would nevertheless point out that specific contractual penalties provided for in the contract for serious disciplinary breaches have legal characteristics similar to fines imposed under the club’s disciplinary regulations.

III. Assessment of FIFA and CAS Decisions on Fines Imposed by Football Clubs on Their Professional Players under Professional Football Player Contracts

When dealing with financial disputes arising from contracts, i.e. claims for payment brought by players, CAS and FIFA assess the fines imposed by the club on the player by taking various factors into account.

Some of the specific factors taken into account in CAS and FIFA decisions when assessing fines imposed by a club on a player are as follows:

• The player’s annual, monthly, weekly and daily salary;
• The seriousness of the disciplinary breach;
• The relationship between the seriousness of the breach and the ratio of the fine deducted from salary to the total salary;
• Whether the player had the opportunity to defend themselves against the club’s internal disciplinary procedure;
• The specific provisions of the contract;
• Whether the player had the assistance of a lawyer or player representative when signing the contract and accepting the disciplinary regulations.

By assessing these factors individually or together, the panel or judge may decide on the proportionality and enforceability of the fine imposed by the club on the player. In assessments by FIFA or CAS of fines imposed on players (unless otherwise agreed by the parties), Articles 160–163 of the Swiss Code of Obligations (SCO), and in particular Article 163, will form the legal basis. Article 163 SCO reads as follows (unofficial translation):

The parties are free to determine the amount of the contractual penalty.

The penalty may not be claimed where its purpose is to reinforce an unlawful or immoral undertaking or, unless otherwise agreed, where performance has been prevented by circumstances for which the obligor is not responsible.

The court may at its discretion reduce penalties that it considers excessive.

A provision similar to Article 163 SCO, governing the amount, invalidity and reduction of contractual penalties, is found in Article 182 of the Turkish Code of Obligations (TCO), headed “II. Amount, invalidity and reduction of the penalty”. TFF judicial bodies will also rely on Article 182 TCO in their assessments of fines imposed on players. Article 182 TCO reads as follows (unofficial translation):

The parties may freely determine the amount of the penalty.

If the principal obligation is invalid for any reason or, unless otherwise agreed, subsequently becomes impossible for a reason for which the obligor cannot be held responsible, performance of the penalty cannot be claimed. The invalidity of the penalty clause, or its subsequent impossibility for a reason for which the obligor cannot be held responsible, does not affect the validity of the principal obligation.

The judge shall reduce ex officio a penalty clause that he considers excessive.

Under Article 182/I TCO, the parties may also freely agree on the amount of the penalty. The penalty clause must not be contrary to law, morality or personality rights. It will also be void if impossible.^[2] Although the parties are free to determine the amount of the penalty clause, it is possible for the stronger party to crush the economically weaker party by making it accept a heavy penalty clause.^[3] Article 182/II TCO was enacted for this reason: “The judge shall reduce ex officio a penalty clause that he considers excessive.” In this way, the judge intervenes in the penalty arrangement determined mutually by the parties. The judge may decide on a reduction by weighing the interests of both the obligor and the obligee. The reduction depends on the particular features of each case.^[4] Although it is for the judge to decide when a penalty is excessive and to what amount it should be reduced, this should be determined by reference to whether the penalty is exorbitant, the economic situation of the parties, in particular the obligor’s ability to pay, the benefit obtained by the obligor from failing to perform, the degree of fault and the seriousness of the breach, and the amount of the penalty awarded should be fixed in accordance with the rules of right, justice and equity.^[5] The judge is only authorised to reduce the amount of the penalty clause. As Andreas von TUHR also points out, the judge cannot abolish the penalty clause altogether or replace it with a penalty of a different nature. The judge may exercise this power ex officio even without a request from the obligor. If the obligor has already paid the penalty, the judge can no longer reduce it. The judge’s reduction decision has retroactive effect.^[6]

As can be seen, both the Swiss Code of Obligations and the TCO contain similar provisions on the amount, invalidity and reduction of contractual penalties. Nevertheless, neither CAS and FIFA decisions nor decisions of the TFF Dispute Resolution Committee and Arbitration Board yet contain a principled ruling that could be used for, or shed light on practice regarding, the proportionality of fines.

For example, in its award CAS 2013/A/3426 Zamalek SC v Manuel Agogo^[7], CAS upheld as lawful a substantial fine imposed by the club on the player. In the case at hand, the player’s annual salary was EUR 1,000,000. The club imposed a fine of EUR 52,000 on its player. This fine corresponds to approximately 5% of the player’s annual salary and approximately 62% of his monthly salary. In its award, CAS took into account the seriousness of the player’s disciplinary breach (the lengthy disciplinary sanction imposed on the player by the Federation for the breach) and found the EUR 52,000 fine imposed by the club proportionate and lawful. In fact, in the case at hand the club could have imposed a fine of EUR 72,000 but decided on a fine of EUR 52,000 instead.

In the case giving rise to the Zamalek SC v Manuel Agogo award, the player made an inappropriate gesture towards the opposing team’s supporters during a match and was referred to the Federation’s Disciplinary Committee after the match. The Federation’s Disciplinary Committee imposed a three-match suspension on the player.

The Federation also imposed a fine equivalent to EUR 2,666 on the player, which it collected from the club’s account; the club in turn deducted this amount from the player’s entitlements. The player’s club additionally imposed a fine on the player for the same disciplinary breach on the basis of the contract between them. Under the contract between the player and the club, if the player was referred to the disciplinary committee by the Federation for a disciplinary breach caused by his own fault and received a match suspension as a result of the disciplinary investigation, the club was entitled to make deductions from the player’s entitlements in proportion to the number of matches for which he was suspended. Although the club imposed a fine of 26/31 of his monthly salary for the 26 days corresponding to the player’s suspension, it doubled the fine after the player objected to it.

The player applied to FIFA for the fine to be annulled. FIFA held that the provision in the contract between the player and the club was ambiguous and should be understood as covering the total number of days on which the player could not play matches (i.e. three days). FIFA also held that the fine imposed on the player by his club was disproportionate compared to the fine imposed on him by the Federation for the same act.

CAS, by contrast, found that the provision in the contract between the player and the club was not ambiguous but, on the contrary, clear, and that although the provision was harsh, the player had been represented by his lawyers and had benefited from their advice during the conclusion of the contract containing it. Furthermore, although the player was sanctioned in the disciplinary proceedings to which he was referred by the Federation, the Federation granted him the right to challenge that decision. The player was supported by his club in the disciplinary proceedings conducted against him by the Federation, but ultimately the player’s challenge to the sanction imposed by the Federation was rejected and the sanction thus became final. Although the player attended the club’s training sessions during the 26-day period in which the three matches for which he was suspended were played, and thus performed his obligations towards the club in this way, he was unable to play in three matches during those 26 days.

The contract between the player and the club contained a provision authorising the club in such a case to make deductions from the player’s entitlements for the duration of the suspension. In conclusion, the Panel found the EUR 52,000 fine deducted by the club to be in accordance with the contractual provisions and valid.

In assessments by FIFA or CAS of fines imposed on players (unless otherwise agreed by the parties), Article 323 of the Swiss Code of Obligations constitutes another legal basis. Article 323(a) SCO reads as follows (as rendered by the author):

In accordance with an arrangement made under an individual agreement, a standard employment contract or a collective employment contract, the employer may deduct part of the employee’s salary as a fine.

The amount deducted may not exceed one tenth of the employee’s salary, and the cumulative total deducted by the employer should not exceed one week’s salary of the employee. However, higher rates may be agreed by contract.

Unless otherwise provided by special agreement, the amount deducted serves as security for the employer’s claims and is treated as part of the contractual relationship rather than as a contractual penalty.

However, as can be seen, in the case above the Panel accepted as valid and in accordance with the contractual provisions a fine far above the rate stated in Article 323(a) SCO. To recall once again, in our case the fine imposed by the club on the player corresponded to approximately 5% of the player’s annual salary and approximately 62% of his monthly salary. In reaching this decision, the Panel relied on the specific provision in the contract. It should be noted that the contractual provision was accepted by the panel as valid because the player had participated in the contracting process together with his lawyers and had received legal support and advice from them. Again, the Panel held in this case that the fine determined by calculating the period during which the player could not play due to the disciplinary breach as 26/31 of his monthly salary was proportionate.

In another case (2016/A/4381)^[8], CAS rendered a new decision by amending in the club’s favour, by way of reduction, the decision of the FIFA Dispute Resolution Chamber (DRC) which had partially upheld the player’s claim following the player’s challenge before FIFA to the fine imposed on him by the club.

In this case, CAS pointed out that, in order to render a final decision, it was necessary to assess and make findings on three issues in turn. These three issues are:

• Is the player subject to the club’s disciplinary regulations (disciplinary regime)?
• If the player is subject to the club’s disciplinary regulations (disciplinary regime), is it possible under those regulations for the club to impose a fine on the player in the case at hand?
• If it is possible under those regulations for the club to impose a fine on the player, is the fine imposed by the club proportionate to the disciplinary offence committed?

In this award, CAS considered that the player’s acceptance of the club’s disciplinary regulations, on which the penalty was based, legitimised the club’s imposition of a fine on the player. This point is extremely important. At the beginning of our article, we stated that we considered it necessary to discuss what effect it would have on the application of the disciplinary rules if the player raised an objection to the club’s disciplinary regulations or refused service and/or delivery of them. Where the disciplinary regulations are applied and legal proceedings are brought against their application, it is beyond dispute that disciplinary regulations objected to and/or whose service and/or delivery was refused cannot be applied to the player concerned.

Indeed, this point was expressly assessed in the CAS award cited above, which held that deducting a fine from the player’s salary would be legitimate only where the player had accepted, with his express consent, to be subject to the disciplinary regime established by the disciplinary regulations.^[9] In practice, attempts are made to overcome this consequence by including provisions in the professional football player contract between the club and the player.

Clubs include provisions in contracts stating that the player accepts the club’s disciplinary regulations, and it is thought that by signing such a contractual provision the consequences of the player subsequently objecting to the disciplinary regulations or refusing their service and delivery are removed. In our view, it is not possible to secure the player’s consent in advance, by way of a contractual provision, to club disciplinary regulations that enter into force after the contract is signed. A contractual provision can only make it possible to establish a specific disciplinary regime between the club and the player concerned. In any event, we are of the opinion that the club has the power to impose fines on its player in accordance with the specific disciplinary regime established between them by contract, consistently with the principles set out by FIFA, CAS, the TFF Dispute Resolution Committee and the TFF Arbitration Board, statute and court decisions.

In order for a club to establish a (general) disciplinary regime based on its internal disciplinary regulations, it is a legal necessity to obtain the player’s express consent to the club’s disciplinary regulations. A (general) disciplinary regime established by disciplinary regulations to which an objection has been raised, or whose service and/or delivery has been refused by the player, will not be binding on the player in any way, and fines based on a disciplinary regime that is not binding on the player will have no legal validity.

In its award 2016/A/4381, after finding that the player had expressly accepted the (general) disciplinary regime established by the club’s internal disciplinary regulations, CAS held that the player had breached the club’s disciplinary regulations and that the club could impose a disciplinary penalty on the player for this breach. Following this assessment, CAS found that the club’s disciplinary regulations set a minimum but no maximum for the fine that could be imposed for the disciplinary breach in question, found this disproportionate, and reduced the fine imposed on the player proportionately.

As can be seen, CAS once again carried out a proportionality assessment of the fine^[10]; however, unlike in its earlier award, in this award it did not examine whether the fine was proportionate to the player’s annual or monthly salary.

Yet in the case giving rise to this file, the fine imposed by the club on the player should have been regarded as proportionate according to the parameters of the CAS award referred to above, whether based on the player’s annual or monthly salary. In this CAS award, the panel, composed of a sole arbitrator, proceeded from a provision agreed by the parties in the contract, determined a calculation parameter itself, and imposed a fine it considered proportionate in accordance with that parameter.

It is therefore possible to say that there is no definitive parameter for the validity and proportionality of a fine imposed by a club on a player, and that decisions may accordingly be made according to the particular features of each case and the view of the panel assessing it.

One of the most notable points in CAS and FIFA decisions is undoubtedly whether the player was given an adequate right of defence in the disciplinary proceedings leading to the fine imposed on him. In practice in our country, in most disciplinary proceedings concerning fines imposed by clubs on players, the club does not even give the player a right of defence. Following a disciplinary breach, clubs unilaterally impose a fine on the player and set it off against the player’s first entitlement falling due with the club. The failure to give the player an effective right of defence in the disciplinary proceedings brought against him will remove the legal validity of the fine imposed on him. Likewise, fines cannot be regarded as valid where the team’s players are penalised at the same time and on the same grounds, where players are penalised because of match results, or where a player is fined because of his sporting performance in a match.^[11] Furthermore, fines clearly aimed at allowing clubs to avoid paying the player’s entitlements that have fallen due, and at removing the player’s right to claim the legal consequences attached to non-payment, will have no validity. Similarly, fines imposed by the club on the player after the player’s relationship with the team has ended, in particular after the player has unilaterally terminated the contract for just cause, will have no legal validity.

Under Article 24(d) of the TFF Regulations on the Status and Transfer of Professional Football Players, clubs must also notify their decisions on fines imposed on their players, together with the reasons, the amounts and notarised copies of the decisions, to the player and to the TFF through a notary within 15 days at the latest from the date of the decision. Whether the club has complied with the requirements set out in this provision is also important for the validity of the penalty. In its decision E.2006/64, K.2006/106 dated 04.05.2006^[12], the TFF Arbitration Board held that penalty decisions not complying with the formal requirements set out in the relevant article of the Regulations have no legal effect, and concluded that penalty decisions not rendered in compliance with these formal requirements were invalid. In its decision E.2006/267, K.2006/306 dated 09.11.2006^[13], the TFF Arbitration Board also stated that “a penalty decision notarised and sent 20 days after the date of the decision was not taken into account because it was not drawn up in accordance with the required form.”

In its decision dated 09.11.2017^[14] (in a dispute concerning the period before the amendment made by the TFF Board of Directors to Article 24(d) of the Regulations), the 13th Civil Chamber of the Court of Cassation made the validity of a fine imposed by the club on the player conditional on the club having complied with the requirements set out in Article 24(d) of the Regulations.

For this reason, the conditions set out in Article 24(d) of the Regulations on the notification of the penalty, which the club is obliged to fulfil, should be accepted as conditions of validity.^[15]

The TFF Arbitration Board, for its part, revisited in one decision the assessment of the Dispute Resolution Committee (DRC) regarding the time limit set out in Article 24(c) of the Regulations.^[16]

The DRC held that, since the club’s disciplinary regulations had been submitted to the Federation on 20 August instead of one week before the start of the football season on 22 August in the 1st League in which the club competed, as required under Article 24(c) of the Regulations, the club could not impose a fine on the player, and accordingly found the penalty invalid.^[17] The TFF Arbitration Board, however, did not agree with the DRC’s finding, on the grounds that regarding the submission of the club’s disciplinary regulations to the Federation a few days after the time limit set in the Regulations as a defect rendering the penalty decision invalid would be contrary to the principle of purposive interpretation. We fail to understand why the TFF Arbitration Board felt compelled to “interpret” this provision of Article 24(c) of the Regulations, which leaves no room for debate. Nor do we agree with the Board’s decision, based on such an interpretation of the clear provision of the Regulations, extending the definitive time limit set by the Regulations. In our view, the TFF Arbitration Board, just like the 13th Civil Chamber of the Court of Cassation in its decision, should make the validity of a fine imposed by the club on the player conditional on the club’s compliance with the requirements set out in Article 24(c) of the Regulations, and should accept the submission and registration of the club’s disciplinary regulations with the Federation within the time limit set in the Regulations as a condition of validity.

Continuing its assessment, the TFF Arbitration Board did not find credible or sincere the player’s failure to attend club training on the basis of reports obtained from health institutions (six in total), having regard to the places where the reports were issued (in Istanbul, Çeşme, Urla, Çeşme and Muğla, during which period he had in fact cut off his relationship with the club). In line with this assessment, the Board held the fine imposed by the club on the player valid and ruled that it be set off against the player’s receivables.

We cannot agree either with the Board’s strained interpretation explained above, which altered the definitive time limit set by the Regulations in the club’s favour, or with its finding that reports issued by official health institutions were not credible or sincere solely by reference to the places where they were issued.

Likewise, given that the player’s annual salary was TRY 280,000, we are of the opinion that the TRY 27,000 fine the club decided to impose on the player was not proportionate to the player’s salary.^[18]

IV. Players’ Remedies against Fines Imposed by Clubs

We have not identified any action brought for the annulment of fines imposed by clubs on players, even where such fines have been collected by deduction from the player’s entitlements.

Players do not challenge fines or bring actions while their contract with the club is ongoing. Instead, when players initiate legal proceedings to collect their receivables from their clubs, usually after their contracts have ended, they also claim, as part of the same receivable, the amounts deducted by their clubs from their entitlements on the basis of the penalty decision; when the clubs argue in their response that the fine should be set off against the player’s overall receivable, the legal validity of the fine imposed by the club on the player during the term of the contract becomes a matter of dispute.

Under Article 146 TCO, “unless otherwise provided by law, every receivable is subject to a ten-year limitation period”. Under this provision, players may bring actions for receivables arising from their contracts with their clubs within ten years from the date on which they fall due. In practice, players do not bring actions against fines imposed by the clubs to which they are contractually bound during the term of their contracts. Instead, they wait for their contracts to end and then bring an action for the amount of the fine. In the actions brought against them, the defendant clubs request in their defence that the fine imposed on the player during the contract period be set off against the receivable claimed. At this stage, however, the validity of the penalty imposed during the contract period is debated, as the case may be, before FIFA, CAS, the TFF DRC or the TFF Arbitration Board, and a decision may be rendered depending on the case.

In an action for receivables brought by player X before the TFF DRC^[19], the claimant player requested that the total of his receivables of TRY 1,000,000 arising from the Professional Football Player Contract with a start date of 18.08.2014 and an end date of 31.05.2017 be collected from the defendant club together with the highest interest to be applied separately for each instalment from the due dates specified in the contract, and that all litigation costs, expenses and attorney’s fees be borne by the defendant club.

In its response, the defendant club W accepted that it owed TRY 1,000,000 but stated that fines of TRY 250,000 on 19.01.2017 and TRY 50,000 on 22.05.2017 had been imposed on the player and notified to him, that it had exercised its right of set-off to the extent of these fines, that it therefore did not owe the amount claimed by the claimant in the statement of claim, and requested the rejection of the claimant player’s unjustified claim and interest claim and that attorney’s fees and litigation costs be borne by the claimant.

As can be seen, the case before the TFF DRC is an action for receivables brought by the player. The action was brought by claimant player X upon the termination of the contract between him and defendant club W. In response to the club’s defence, the claimant player argued that the penalties imposed by the defendant club were unjust and in bad faith, were aimed at eliminating the claimant player’s receivables, and were also contrary to the disciplinary rules.

The DRC assessed the facts in dispute and held that there was no dispute as to the player’s receivable of TRY 1,000,000 arising from the contract. The DRC further held that the dispute concerned whether the fines imposed by the defendant club on the claimant player could be considered within the scope of set-off, whether the penalties imposed on the claimant player were in accordance with the relevant regulations, legislation, case law and football-specific practice in terms of procedure and substance, and whether there was any error in determining the amount of the penalty.

In its procedural assessment, the DRC found that, in accordance with Article 24 of the Regulations on the Status and Transfer of Professional Football Players:

• The club’s disciplinary regulations had been served on the claimant player;
• The board decision on the penalty imposed on the claimant player had been served on the player;

and held that there was no procedural irregularity in imposing the penalty. Following this decision, the DRC assessed whether the club could impose a fine on the player under the club’s disciplinary regulations and, if so, whether the fine imposed was proportionate.

As a result of this assessment, the DRC concluded that, as regards the facts giving rise to the fine of TRY 250,000 dated 19.01.2017 imposed by the club on the player, the club could not impose a fine on the player. According to the DRC’s assessment, contrary to the defendant club’s view, in the facts giving rise to the fine there was not more than one act breaching the club’s disciplinary regulations but a single act. The DRC therefore did not consider it possible to apply the relevant provision of the disciplinary regulations to the player’s detriment, as the club had done on the assumption of repetition for this single act. Moreover, the DRC considered that in the case at hand the player had not breached the club’s disciplinary regulations at all. As can be seen, with regard to this penalty the DRC assessed separately both the applicability of the relevant provision of the club’s disciplinary regulations to the case at hand and whether the player’s act giving rise to the penalty could be regarded as a disciplinary breach.

As regards the facts giving rise to the fine of TRY 50,000 dated 22.05.2017 imposed by the club on the player, the Committee concluded that the club could impose a penalty on the player. Following this assessment, the DRC recalculated the amount of the penalty imposed by the club on the player under the disciplinary regulations and the contract between the parties, and concluded that the club had made an error in its calculation. According to the Committee’s calculation, the penalty the club could impose on the player for the disciplinary breach in question was TRY 45,000.

With regard to this penalty, as with the other, the DRC assessed separately both the applicability of the relevant provision of the club’s disciplinary regulations to the case at hand and whether the player’s act giving rise to the penalty could be regarded as a disciplinary breach. In addition, the committee also reviewed the calculation of the fine imposed by the club on the player and held that the calculation had been made incorrectly.

Although the committee carried out a very comprehensive assessment of the fine imposed by the club on the player in the decision examined, the absence of any assessment of the proportionality of the penalty is, in our view, a significant shortcoming.

V. Conclusion

We can say that there is no principled decision on the applicability and proportionality of fines imposed on the basis of clubs’ internal disciplinary regulations, which we frequently encounter in actions for receivables brought by players against their clubs, and that decisions are specific to each case. However, we believe that the principles of the general internal disciplinary regime established by clubs on the basis of their internal disciplinary regulations can be readily understood by considering the decisions discussed above together. In Turkish practice in particular, the TFF Arbitration Board and Dispute Resolution Committee treat the formal requirements set out in sub-paragraphs (c) and (d) of Article 24 of the Regulations on the Status and Transfer of Professional Football Players differently in disputes before them: while they accept the formal requirement in sub-paragraph (d) as an absolute obligation for clubs and a condition of validity for the penalty, they render more flexible decisions as regards the formal requirement in sub-paragraph (c), approaching the matter through an interpretation called “purposive interpretation” that is not tied to any objective criterion. In our view, the formal requirements in sub-paragraphs (c) and (d) of the Regulations should both be accepted as absolute obligations for clubs and as conditions of validity for the penalty.

In our practice, it can be seen that the reductions made by the boards in respect of fines are not based on any criterion, and that the principle of proportionality is not taken into account at all in the decisions. We are of the opinion that, similar to FIFA and CAS practice, the TFF Arbitration Board and/or Dispute Resolution Committee should adopt a principled decision establishing that no fine may be imposed above a rate to be determined as a matter of principle by reference to the player’s annual, monthly and daily entitlements.

Finally, we are of the opinion that whether the player is subject to the club disciplinary system established by the club’s internal disciplinary rules should also be assessed comprehensively in decisions on fines, and indeed that this assessment should, as a matter of principle, be made at the very outset in decisions on fines.

Bibliography

• Andreas von Tuhr, Borçlar Hukukunun Umumi Kısmı Vol. 1-2, Ankara, 1983
• Kemal Oğuzman/Turgut Öz, Borçlar Hukuku Genel Hükümler Vol. 2, Istanbul 2012
• Kenan Tunçomağ, Istanbul 1963
• Çağlar Özel/Erol Cansel, Istanbul, 2015
• TFF Regulations on the Status and Transfer of Professional Football Players (www.tff.org)
• TFF Arbitration Board Selected Decisions (19.01.2006 – 14.02.2008), eds. Av. Türker Arslan – Assoc. Prof. Dr. Ümit Kocasakal
• Court of Cassation 13th Civil Chamber, E.2015/504, K.2016/5643, T.23.02.2016 (www.kazanci.com.tr)
• Court of Cassation 13th Civil Chamber, E.2017/6580, K.2017/10732, T.09.11.2017 (www.kazanci.com.tr)