SECOND SECTION

DECISION

Application no. 63859/12 MEDIATION BERTI SPORTS against Turkey

The European Court of Human Rights (Second Section), sitting on 12 May 2020 as a Chamber composed of:

Robert Spano, President, Marko Bošnjak, Valeriu Griţco, Egidijus Kūris, Arnfinn Bårdsen, Darian Pavli, Saadet Yüksel, judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 31 July 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the wish expressed by the Government of Monaco not to exercise their right under Article 36 § 1 of the Convention to intervene in the proceedings,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant company is a limited liability company established under the laws of Monaco and operating under the name of Mediation Berti Sports (“the applicant company”). It was represented before the Court by Mr M.H. Buzoğlu, a lawyer practising in Ankara.

2 . The Turkish Government (“the Government”) were represented by their Agent.

3 . The facts of the case, as submitted by the parties, and as can be seen from the documents submitted by them, may be summarised as follows.

4 . The applicant company is a company with its headquarters in Monaco, and one of its purposes is the negotiation of the contracts of professional athletes, in particular footballers.

5 . On 8 June 2005 Vestel Manisaspor Kulübü Derneği, a Turkish football club (“the Club”), authorised (by means of a letter) an official of the applicant company, Mr C.C., to represent it in negotiations to sign a footballer who, at the material time, played for a French club. The applicant company submitted to the Court the authorisation letter of 8 June 2005 (signed by an official of the Club) and a declaration dated 5 December 2008 (signed by the president of the French club in question) confirming that Mr C.C., who held a licence from the French Football Federation to act as an agent for football players, had been present during the negotiations for the transfer of one of the French club ’ s footballers to the Club.

6 . The applicant company submitted that the Club had undertaken to pay it 144,000 Euros (EUR) in return for its services.

7 . The parties disagreed as to whether there existed a written contract between the Club and the applicant company. The Government denied the existence of such a contract, whereas the applicant company argued that the Club ’ s representative had made a written promise to pay EUR 144,000 in three instalments, which constituted a valid and binding contract. In support of its position, the applicant company submitted to the Court a handwritten document dated 10 August 2006 that mentioned the years 2006, 2007 and 2008 written in separate rows (with the sum of EUR 48,000 written next to each year), specified the sum of EUR 144,000 and bore the signature of the Club ’ s representative.

8 . On 3 August 2006 the applicant company issued an invoice for the amount of EUR 144,000 to the Club.

9 . On 28 September 2006 the Club paid the applicant company EUR 48,000. The applicant company submitted to the Court a copy of the relevant monthly bank account statement as proof that payment had been made by the Club.

10 . On 4 February 2009 the applicant company lodged a demand that the Club pay the balance of its fee by serving it notice through a notary public.

11 . On 9 February 2009 the Club replied to the applicant company ’ s demand by delivering to it, through a notary public, a statement that FIFA ( Fédération internationale de football association ) had already on 2 September 2008 rejected the applicant company ’ s demand for the unpaid commission fee. The applicant company, in its submissions to the Court, denied lodging such a demand with FIFA.

12 . On 11 March 2009 the applicant company instituted proceedings against the Club in the Fifth Ankara Civil Court of First Instance, alleging that the Club had not paid the balance of the commission fee, which was in the amount of EUR 96,000.

13 . On an unspecified date the first-instance court requested the relevant tax office to examine the Club ’ s books in order to determine whether entries had been made recording the invoice issued by the applicant company and the partial payment made by the Club. The audit report that was prepared by the relevant tax office confirmed that the Club had recorded in its books (without recording any objections) the invoice issued by the applicant company on 3 August 2006. It furthermore noted that the payment of EUR 48,000 dated 28 September 2006 and the unpaid balance of the invoiced amount had been entered in the Club ’ s books.

14 . On 5 November 2009 the first-instance court declined jurisdiction in respect of the dispute. Referring to Article 12/A of Law no. 3813 on the Establishment and Duties of the Turkish Football Federation, as in force at the time when the applicant company had brought the proceedings (“the previous TFF Law”), the first-instance court held that the dispute fell within the authority of the dispute resolution committee (“the DRC”) of the Turkish Football Federation ( Türkiye Futbol Federasyonu Uyuşmazlık Çözüm Kurulu ).

15 . Subsequently, after the completion of the proceedings before the Turkish Football Federation ( Türkiye Futbol Federasyonu – “the TFF”; see below), the applicant company lodged an appeal against the first-instance court ’ s decision of 5 November 2009 with the Court of Cassation.

16 . On 26 January 2011 the Court of Cassation rejected the applicant company ’ s appeal and upheld the first-instance court ’ s judgment, holding that it complied with the law and had been reached in accordance with the required procedure.

17 . On 8 July 2011 the Court of Cassation dismissed a request lodged by the applicant company for the rectification of its earlier decision ( karar d üzeltme talebi ).

18 . Following the first-instance court ’ s decision of 5 November 2009, on an unspecified date the applicant company lodged an application with the TFF for the recovery of the unpaid commission fee.

19 . On 26 March 2010 the DRC – acting as the first-instance legal committee of the TFF – decided that it had no authority in respect of the matter. The DRC held that the scope of its authority was limited to settling disputes between clubs and agents who were natural persons (“natural-person agents”) – as opposed to legal persons – under the versions of the Footballers ’ Agents Directive of the TFF ( Türkiye Futbol Federasyonu Futbolcu Temsilcileri Talimatı – “the Agents Directive”) that had been in force, respectively, at the time the dispute had arisen and on the date of the decision. The DRC went on to add that under the relevant FIFA rules, only natural-person agents were entitled to bring proceedings against clubs or footballers that they represented. Accordingly, it concluded that the dispute involving the applicant company – which was a legal person – did not fall within its jurisdiction ratione personae .

20 . On an unspecified date the applicant company lodged an appeal against the DRC ’ s decision with the arbitration committee of the TFF ( Türkiye Futbol Federasyonu Tahkim Kurulu – “the Arbitration Committee”).

21 . In the course of a meeting on 6 May 2010 the Arbitration Committee dismissed the applicant company ’ s objections and decided that the DRC ’ s decision had been in accordance with the law and procedure. Under the applicable laws, the Arbitration Committee ’ s decision was final and not subject to any appeal before any courts or authorities (see paragraph 33 below).

22 . On 12 September 2011 the applicant company lodged an application with the Civil Division of the Jurisdiction Disputes Court ( Uyuşmazlık Mahkemesi Hukuk Bölümü ) for a resolution of the jurisdictional conflict between the Court of Cassation and the Arbitration Committee that had arisen following the Court of Cassation ’ s decision of 26 January 2011.

23 . On 21 May 2012 the Jurisdiction Disputes Court declared inadmissible the applicant company ’ s application. It held that it only had authority to rule on jurisdictional disputes between civil and administrative courts. Referring to Law no. 5894 on the Establishment and Duties of the Turkish Football Federation (“the TFF Law”), which superseded the previous version of the TFF Law, and the statutes of the Turkish Football Federation (“the TFF Statutes”), as in force at the material time, it held that neither the DRC nor the Arbitration Committee could be considered as constituting a “tribunal” within the meaning of the provisions of the Constitution and of Law no. 2247 on the Establishment and Functioning of the Jurisdiction Disputes Court (“Law no. 2247”), which governed that court ’ s mandate. It therefore concluded that the jurisdictional conflict between the civil courts and the legal committees of the TFF did not fall within its authority.

24 . Article 158 of the Constitution gives the Jurisdiction Disputes Court the power to deliver final judgments in jurisdictional conflicts ( görev uyuşmazlığı ) between civil and administrative courts. It also specifies that the organisation and functioning of the Jurisdiction Disputes Court and the qualifications and election of its members must be regulated by law.

25 . Law no. 2247 is the main piece of primary legislation governing proceedings before the Jurisdiction Disputes Court. Article 1 describes the Jurisdiction Disputes Court as an independent high court that is authorised under the Constitution to resolve, in a definitive and final manner, jurisdictional conflicts between civil and administrative courts. Article 27 provides that the Jurisdiction Disputes Court first examines the admissibility of a jurisdictional dispute and rejects the application if it is not lodged within the relevant time-limit or is not in order.

26 . The TFF is a national football federation governed by Turkish law and founded in 1923. It is that sport ’ s highest domestic authority and regulates and oversees all aspects of football in Turkey. It has been a member of FIFA since 1923. By operation of law, the TFF is an autonomous entity that has a separate legal personality and is subject to private law.

27 . At the time of the events that gave rise to the dispute between the applicant company and the Club, the previous TFF Law was in force. On 16 May 2009 the TFF Law took effect, repealing and replacing the previous TFF Law. Unlike its predecessor, the TFF Law only provides a broad legal framework. The detailed provisions governing the functioning of the TFF ’ s bodies are set out in the statutes of the TFF (“the TFF Statutes”) adopted on 3 June 2008, which entered into force simultaneously with the TFF Law and were subsequently amended from time to time.

(a) The legal committees of the Turkish Football Federation

(i) Dispute Resolution Committee

28 . The DRC was established by Law no. 5719 amending the previous TFF Law, which took effect on 4 December 2007. It is one of the first-instance legal committees of the TFF (Article 12/A of the previous TFF Law, Article 5 of the TFF Law and Article 54 of the TFF Statutes).

29 . The DRC is tasked with deciding, as a first-instance legal committee, on disputes of a contractual nature between different actors within the area of football (Article 12/A of the previous TFF Law and Article 56 of the TFF Statutes).

30 . At the time of the events that gave rise to the present dispute, the previous TFF Law, as amended by Law no. 5719, provided that the DRC had exclusive jurisdiction in disputes arising in relation to all kinds of contracts or football-related contracts between (i) clubs; (ii) clubs on the one hand and footballers, coaches, trainers, players ’ agents, masseurs and match organisers on the other hand; and (iii) players ’ agents on the one hand and footballers, coaches and trainers on the other hand (Article 12/A of the previous TFF Law).

31 . Article 5 § 2 of the TFF Law, at the material time, also contained a similar provision giving the DRC exclusive jurisdiction to settle contractual disputes in football.

(ii) Arbitration Committee

32 . The Arbitration Committee is the highest legal committee of the TFF. As the appellate body, it hears objections lodged against the decisions of first-instance legal committees and settles any football-related disputes falling within its jurisdiction in accordance with the procedure stipulated by the TFF ’ s rules (Article 6 of the TFF Law and Article 54 of the TFF Statutes),

33 . The TFF Law, as in force at the time of the Arbitration Committee ’ s decision of 6 May 2010, provided that the Arbitration Committee ’ s decisions were final and not open to judicial review by the ordinary courts (Article 6 of the TFF Law).

(b) TFF Rules on footballers ’ agents

34 . The TFF, as a member of FIFA, is required to put in place regulations governing the conduct of and the use of the services provided by footballers ’ agents. Under the TFF Law, one of the TFF ’ s duties is to ensure that the rules of FIFA and UEFA (the Union of European Football Associations) are duly implemented and that footballers ’ agents comply with the statutes, directives and regulations of FIFA and UEFA (Article 3 of the TFF Law).

(i) Rules as in force at the material time

35 . The Agents Directive, which came into force on 19 March 2010, was largely based on the FIFA Players ’ Agents Regulations of 29 October 2007 (“the FIFA Agents Regulation” – see paragraphs 40 to 42 below).

36 . The Agents Directive defined the term “footballers ’ agent” as a natural person who held a licence obtained in accordance with the Agents Directive ’ s terms and the FIFA Agents Regulations and who, for a fee, brought together either (i) a professional footballer and a club in order to negotiate that footballer ’ s contract or (ii) two clubs in order to negotiate a transfer contract (Article 2 of the Agents Directive).

(ii) Subsequent changes to the rules

37 . The Directive on Working with Football Managers ( Türkiye Futbol Federasyonu Futbol Menajerleri ile Çalışma Talimatı – “the Football Managers Directive”) came into force on 9 June 2015 and superseded the Agents Directive. The Football Managers Directive is largely based on the FIFA Regulations on Working with Intermediaries (“the FIFA Intermediaries Regulations” – see paragraphs 43 to 44 below).

38 . The Football Managers Directive replaced the term “footballers ’ agent” with the term “manager” ( menajer ) but maintained, to a great extent, the definition provided in the Agents Directive. Under the Football Managers Directive, while managers must be natural persons, they are allowed to set up their businesses as companies (Article 4 of the Football Managers Directive).

39 . FIFA is an association governed by Swiss law founded in 1904. National associations, which are members of FIFA, are bound by the statutes, regulations and decisions of FIFA. The member associations are required to implement and enforce FIFA regulations and draw up their own regulations.

(a) FIFA rules on players ’ agents, as in force at the material time

40 . At the time that the dispute arose, the FIFA Players ’ Agents Regulations – adopted by the executive committee of FIFA on 10 December 2000 – were in force. They were repealed and replaced by the FIFA Agents Regulations, which were adopted by the executive committee of FIFA on 29 October 2007 and came into force on 1 January 2008.

41 . Both versions of the regulations stipulated that the profession of players ’ agent was the preserve of natural persons (Article 3 § 1 of the FIFA Agents Regulations) and that its exercise was subject to the possession of the relevant licence (save for a limited number of exceptions (Article 4 of the FIFA Agents Regulations).

42 . Agents were, however, only allowed to practise as a business if their employees were restricted to administrative duties connected with the business activities of a players ’ agent; only the agents themselves could represent and promote the interests of their clients (Article 3 § 2 of the FIFA Agents Regulation).

(b) Subsequent changes to FIFA rules

43 . The FIFA Intermediaries Regulations – adopted by the executive committee of FIFA on 21 March 2014 – came into force on 1 April 2015 and superseded the FIFA Agents Regulations.

44 . The FIFA Intermediaries Regulations define the term “intermediary” as a natural or legal person that, either for a fee or free of charge, represents players or clubs in negotiations in order to conclude an employment contract or represents clubs in negotiations to conclude a transfer contract.

COMPLAINT

45 . The applicant company complained under Article 6 § 1 of the Convention that there had been a violation of its right of access to a court on account of the lack of any judicial authority competent to decide on its contractual claim against the Club.

THE LAW

46 . Relying on Article 6 § 1 of the Convention, the applicant company complained of the domestic authorities ’ refusal to examine the merits of its claim against the Club.

47 . Article 6 of the Convention, in so far as relevant, provides as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

48 . The Government argued that the dispute between the applicant company and the Club had exclusively concerned the administration and discipline of football and had therefore not involved the determination of the applicant company ’ s civil rights and obligations or any criminal charge against it. They furthermore argued that the applicant company had failed to exhaust the available domestic remedies by not requesting the reopening of the proceedings before the legal committees of the TFF or before the ordinary courts, in spite of the fact that the conditions for requesting such a reopening under the rules of civil procedural law had been fully met. In any event, in their view, the application was manifestly ill-founded.

49 . The applicant company did not reply to the Government ’ s objection on the non-applicability of Article 6 of the Convention. It objected to the Government ’ s plea of non-exhaustion, arguing that it had availed itself of all available possibilities for collecting the unpaid balance of the commission fee, which the Club had refused to pay. It furthermore asserted that even though there was ample written evidence indicating that the Club had been under an obligation to pay the balance of the commission fee, none of the judicial authorities to which it had referred the dispute had decided on the merits of its claim.

50 . The Court will first examine whether the present application brings into play Article 6 of the Convention.

51 . The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute over a “right” that can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious and the result of the proceedings must be directly decisive for the right in question (see Denisov v. Ukraine [GC], no. 76639/11, § 44, 25 September 2018, with further references therein).

52 . The Court furthermore affirms that in order to decide whether the “right” in question really has a basis in domestic law, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see Regner v. the Czech Republic [GC], no. 35289/11, § 100, 19 September 2017, with further references therein). Article 6 § 1 does not guarantee any particular content for civil “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right that has no legal basis in the State concerned (ibid., with further references).

Lastly, it is the right as asserted by the claimant in the domestic proceedings that must be taken into account in order to assess whether Article 6 § 1 is applicable (see, mutatis mutandis , Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, § 120, ECHR 2013 (extracts)).

53 . Turning to the present case, the Court notes that the TFF, as an independent legal entity and a national association governing domestic football, has put in place rules regulating the activities of footballers ’ agents. Under the Agents Directive, only natural persons were allowed to act as an agent in the transfer of footballers, provided that they fulfilled the conditions for the exercise of the profession (see paragraph 36 above). Those rules were based on the FIFA Agents Regulation, which provided a similar requirement while also allowing agents to organise their occupation as a business (see paragraph 41 above). The Court furthermore notes that only after the present application was lodged were the rules of FIFA amended so as to expressly permit legal persons to negotiate footballers ’ transfer contracts (see paragraph 44 above).

54 . The Court observes that – referring to the domestic regulations and international rules, as in force at the material time – the TFF at two instances dismissed the applicant company ’ s application as inadmissible, holding that it had jurisdiction only in respect of disputes involving natural person agents and that it had authority to adjudicate claims lodged only by such agents (see paragraphs 19 and 21 above).

55 . In its submissions to the domestic authorities and the Court, the applicant company exclusively relied on the document signed by the Club ’ s official (see paragraph 7 above) and the record in the Club ’ s books of the invoice sent by it (see paragraph 13 above). It did not point to any other provision of domestic law that could have constituted (at least arguable) legal grounds to bring proceedings against the Club. It can therefore be inferred from the decisions delivered by the legal committees of the TFF that neither domestic law nor international rules governing football (i) recognised claims lodged by a legal person arising out of a football representation contract or (ii) granted standing to legal persons in proceedings before them.

56 . In view of the foregoing, the Court concludes that the proceedings brought by the applicant company cannot be said to have concerned a civil right that could be said, at least on arguable grounds, to have been recognised under domestic law. The application is therefore incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a), and should be rejected, in accordance with Article 35 § 4 of the Convention.

57 . This conclusion allows the Court to dispense with examining the Government ’ s remaining arguments of inadmissibility (see paragraph 48 above).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in Eng lish and notified in writing on 11 June 20 20 .

Stanley Naismith Robert Spano Registrar President