PARTLY CONCURRING PARTLY DISSENTING OPINION OF JUDGE BOÅ NJAK

1 . In the present case I agree with the other members of the Chamber that there has been a violation of Article 6 § 1 of the Convention in respect of the first and the fifth applicants on account of the lack of independence and impartiality of the Arbitration Committee. That said, I disagree with some of the arguments which they advance in favour of this finding. I am therefore submitting a concurring opinion with regard to that part. Furthermore, I disagee with the majority ’ s outright dismissal of the first and the fifth applicants ’ claims for pecuniary damages.

A. Lack of independence and impartiality of the Arbitration Committee

2 . In my opinion, the Arbitration Committee fails to meet the independence and impartiality requirement for two reasons: (i) the lack of immunity from actions brought against the members of the Arbitration Committee in connection with the exercise of their duties and (ii) the lack of rules fixing the term of office of the Arbitration Committee members, which instead is linked to the duration of the mandate of the Board of Directors.

3 . In the absence of any provisions on immunity, a party dissatisfied with a decision given by the Arbitration Committee can start civil or criminal proceedings against a member or members of a particular panel deciding on his or her case. This possibility is all the more preoccupying owing to the fact that apparently no special legal provisions exist limiting liability for damages or engaging the responsibility of the Turkish Football Federation in the Arbitration Committee members ’ stead. The situation is aggravated by the apparent absence of any legal remedies against the Arbitration Committee ’ s decision. Consequently, the only legal avenue available to a disappointed party eager to continue to fight his or her case would be to seek redress against a member or members of the Arbitration Committee ’ s panel, attempting to satisfy his or her interest through an action for damages or a criminal complaint. In turn, such exposure to civil and criminal actions, even though they are fairly unlikely to end up to the party ’ s satisfaction, might affect the independence and impartiality of the Arbitration Committee members.

4 . In its jurisprudence, the Court has emphasised the importance of a sufficiently long term of office for members of judiciary for their independence and impartiality (see, for example, Incal v. Turkey (GC), no . 22678/93, § 68, 9 June 1998). In the present case, the rules of the Turkish Football Federation do not specify the duration of the mandate of the Arbitration Committee members. What is more, their mandate is linked to that of the Board of Directors. Consequently, every composition of the Board of Directors appoints the Arbitration Committee as it wishes. Should a conflict arise between the Board of Directors and the Arbitration Committee, it can easily be resolved to the Board of Directors ’ satisfaction: the Board resigns, seeks reappointment in the same or a similar composition and, subsequently, appoints a new Arbitration Committee in conformity with its expectations. This set-up makes it unlikely for the Arbitration Committee to decide in a given case in sharp contrast with the Board of Directors ’ expectations. In such circumstances, the independence and impartiality requirement simply cannot be met.

5 . It is my belief that these two shortcomings alone suffice to find a violation of Article 6 § 1 of the Convention. They are correctly, albeit rather pithily, highlighted in the judgment. However, the majority goes on to emphasise some other features of the sport ’ s arbitration system within the Turkish Football Federation, which in my view do not in themselves indicate lack of independence or impartiality of the Arbitration Committee and its members.

6 . In my opinion, the judgment unnecessarily contrasts the interests of football clubs with those of the football players. Furthermore, I disagree with the view that an (alleged) “over-representation” of persons from a particular background in a decision-making body affects the validity and/or impartiality of its decisions.

7 . While it is true that football brings together several stakeholders (clubs, their owners, players, coaches, other clubs ’ employees, fans, associations, their employees, referees, and the like), and even though the first applicant ’ s case perfectly shows how their interests can be in sharp contrast in a given situation, I see no systemic separation of interests between them. Equally, interests within a particular group of stakeholders, e.g. clubs, may differ considerably. For example, one club ’ s loss may be another club ’ s gain. Likewise, a club official may be a former player and/or a coach and therefore have a varied background, allowing him or her to change hats easily.

8 . The fact that not only the Congress of the Turkish Football Federation but also its Board of Directors largely consists of former (!) members of football clubs does not in itself mean that those two bodies are examples of a type of representative democracy where a particular member of the body represents his or her electors. It rather seems that the Congress and the Board of Directors are not bound by directives from those who have elected them. It may equally be that members of those bodies have been engaged throughout their career in different football-related roles.

9 . Be that as it may, the fact that the Congress and the Board of Directors are composed of more people with backgrounds in the administration of clubs than persons who have previously been players, coaches or referees does not make the Arbitration Committee, appointed by the Board of Directors, biased in cases opposing players to their (former) clubs. For instance, in several High Contracting Parties to the Convention, judges are appointed by the Parliament, which in turn comprises very few members from the lowest social strata. If, in a given court case, an unemployed and uneducated defendant with ethnic, racial or religious minority roots is facing a victim from the middle or upper social class, would that mean that the judge in his or her case is neither independent nor impartial simply because the composition of Parliament is much closer to the victim ’ s background? The majority ’ s logic, as I read it, would suggest that that could be the case. I would find it hard to share that view.

10 . In sum, I do not subscribe to the argument that the members of the Arbitration Committee have an implicit bias in favour of football clubs because of the alleged structural inequality between clubs and players in the composition of both the Congress and the Board of Directors. Still, I join the majority in their finding of a violation due to the lack of protection for members of the Arbitration Committee against civil and criminal actions in connection with the exercise of their duties, and with the fact that their term of office coincided with that of the Board of Directors.

B. The claim for pecuniary damages

11 . The first applicant claimed a total of 3,962,500 euros in respect of pecuniary damage. He argued that the club owed him 212,500 euros and that he would have additionally earned 3,750,000 euros had he continued to play for five more years.

12 . I consider it clear that the first applicant ’ s claim for the alleged future earnings in the amount of 3,750,000 euros is manifestly ill-founded. Regardless of the effects that the lack of independence and impartiality of the Arbitration Committee could have had upon the outcome of the proceedings, they could never have led to the first applicant continuing to play for the club for five more seasons and earning the amount claimed. His contract was effective only until 30 June 2008, i.e. for less than six months more after he left the club. He could have continued to play and earn money elsewhere. The majority are therefore correct in dismissing this part of the first applicant ’ s claim for pecuniary damages.

13 . The claim for 212,500 euros that the club allegedly owed the first applicant breaks down as follows: (i) 82,500 euros, being the total amount of his salaries for January, February, March, April and May 2008, as per the terms of contract; (ii) 20,000 euros, being the total amount of match appearance fees due to the first applicant for the first half of the 2007/08 season; and (iii) 110,000 (22 x 5,000) euros for the match appearance fees that would have been payable to him had he continued to play for the club until the expiry of the contract.

14 . It appears from the Arbitration Committee ’ s award that it granted the first applicant ’ s claim for appearance fees for the first half of the 2007/08 season to a total of 20,000 euros, as well as his claim for monthly wages for the period between 1 January 2008 and 8 April 2008 to a total of 53,860 euros. However, as it on the other hand granted, inter alia , the pecuniary fine imposed on the first applicant by the club, and as that amount exceeded the amount due to the first applicant by the club, the first applicant received nothing and was instead required to pay the club the amount of 129,353,38 Turkish liras.

15 . The majority reject the first applicant ’ s claim for pecuniary damages, emphasising that they cannot speculate as to what the outcome of the proceedings complained of would have been had the violation of Article 6 § 1 of the Convention not occurred. I argue that such a position is contrary to a number of judgments of this Court, notably with those in Produkcija Plus storitveno podjetje d.o.o. v. Slovenia ( no. 47072/15, §§ 66 and 67, 23 October 2018 ), P é lissier and Sassi v. France 5 5 (GC) , no. 25444/94, § 80, ECHR 1999-II), Destrehem v. France ( no. 56651/00, § 52, 18 May 2004 ) , and Miessen v. Belgium ( no. 31517/12, § 78, 18 October 2016 ) . In all those cases the Court equally held that it could not speculate on the outcome of the proceedings, yet did not find it unreasonable to regard the applicants as having suffered a loss of real opportunities ( perte des chances r ée lles ) and awarded them a sum in respect of pecuniary damage.

16 . According to Article 41 of the Convention, “the Court shall, if necessary, afford just satisfaction to the injured party” when, inter alia , “the internal law of the High Contracting Party concerned allows only partial reparation to be made.” The Court has held on numerous occasions that the reopening of proceedings should be considered as the most appropriate form of redress (see, among many other authorities, Navalnyy and Ofitserov v. Russia , nos. 46632/13 and 28671/14, 23 February 2016). Had there been, in the present case, a possibility for the first applicant to request and obtain the reopening of his case before a body meeting the standards of an independent and impartial tribunal, this would dispense this Court from any further consideration regarding his pecuniary damages claim. However, it is undisputed that the first applicant is not in a position to effectively seek any reparation before the domestic authorities. Therefore, in the absence of any award by the Court, the pecuniary damage he allegedly suffered remains unaddressed.

17 . When faced with a case of violation of fair trial requirements at the domestic level where a dispute of pecuniary nature was at stake, the Court ’ s position in decision-making regarding just satisfaction is similar to that of the national courts when called upon to decide cases where it is uncertain whether the claimant would earn or otherwise benefit from a certain amount, prize or profit without an illegal act or omission being committed by the defendant. In such situations, many legal systems have developed the “loss of real opportunities” ( perte des chances r ée lles ) doctrine to the effect that the amount of damages to be awarded corresponds to the likely amount of the claimant ’ s gain had there been no violation. Should that amount prove to be impossible to assess, the competent body decides on an equitable basis.

18 . In the above-mentioned case of Produkcija Plus storitveno podjetje d.o.o. (cited above), the violation of Article 6 § 1 of the Convention prevented the applicant company from effectively contesting before the Supreme Court the fine that had been imposed on it. The Court was not in a position to speculate on the likelihood of success in that contestation had the violation not occurred. Consequently, it decided to award the applicant company, on equitable basis, a sum corresponding to half the amount of the fine which the applicant company had not been in a position to contest owing to the violation.

19 . In my opinion, the first applicant in this case is in a similar situation. While the Arbitration Committee actually awarded him part of his claim (see § 14 above), he could not collect any part of this award because the Arbitration Committee dismissed his challenge of the fine imposed upon him by the club, as well as his challenge of the club ’ s other claims against him. Had he been successful in this challenge, he would have received a total of 73,860 euros. If the logic underpinning the judgment in Produkcija Plus storitveno podjetje d.o.o. (cited above) had been followed in the present case, the first applicant would have been awarded half of that sum, that is to say 36,930 euros. Furthermore, it cannot be ruled out that an unbiased body would have awarded him an additional part of his claim against the club. By making no award at all in respect of pecuniary damages, the majority departed from well-established doctrine that is increasingly reflected in the Court ’ s case-law, without providing reasons.

20 . I refrain from conducting a similar analysis in respect of the claim for pecuniary damages of 123,692 euros submitted by the fifth applicant. This corresponds to losses he had allegedly incurred on account of his downgrading to provincial referee. It is not unlikely that for reasons similar to those pertaining to the first applicant ’ s case, the fifth applicant should also have been awarded, on an equitable basis, an amount in just satisfaction in respect of pecuniary damage.

21 . For these reasons, I voted against the outright dismissal of the first and fifth applicants ’ claims for pecuniary damages.

Appendix

List of cases

No.

Application no.

Lodged on

Applicant

Date of Birth

Place of Residence

Nationality

1

30226/10

20/04/2010

Ö mer Kerim Ali R I ZA

08/11/1979

Broxbourne

British and Turkish

2

17880/11

29/12/2010

Fatih ARSLAN

04/04/1974

MuÄŸla

Turkish

3

17887/11

29/12/2010

Åžaban SERÄ°N

26/05/1980

Kocaeli

Turkish

4

17891/11

29/12/2010

Mehmet Erhan BERBER

22/10/1981

MuÄŸla

Turkish

5

5506/16

11/01/2016

Serkan AKAL

27/01/1977

Zonguldak

Turkish