Yabancı Unsurlu Futbol Menajerliği Sözleşmesinden Doğan Uyuşmazlıkların Çözüm Yolları ve Uygulanacak Hukuk
Futbol menajerliği sözleşmesinin amacı, futbol menajerinin bir futbolcu ile kulüp arasında imzalanan profesyonel futbolcu sözleşmesi ya da iki kulüp arasında imzalanan transfer anlaşması yapılması konusunda hizmet vermektir. Bu bağlamda, taraflarca akdedilen yabancı unsurlu futbol menajerliği sözleşmesinden birçok uyuşmazlık gündeme gelebilecektir. Futbol menajerliği sözleşmesinden doğan yabancı unsurlu bir uyuşmazlık için taraflar, devlet mahkemelerinde dava açabilecekleri gibi Spor Tahkim Mahkemesine (CAS) de başvurabilirler. Bununla birlikte, futbol menajerliği sözleşmesinden doğan bir uyuşmazlık yabancı unsurlu ise Türkiye Futbol Federasyonu Uyuşmazlık Çözüm Kuruluna götürülmesi mümkün değildir. Zira Türkiye Futbol Federasyonu Statüsü md 63/3’de uluslararası ihtilaflarda Uluslararası Futbol Federasyonları Birliği’nin (FIFA) yetkili olduğu açıkça hükme bağlanmıştır. Yabancı unsurlu futbol menajerliği sözleşmesinden doğan bir uyuşmazlık Spor Tahkim Mahkemesine götürülürse, hakem heyeti, uyuşmazlığın esasına taraflarca tahkim şartında veya tahkim anlaşmasında seçilen hukuk kurallarını, böyle bir seçimin yapılmaması halinde ise İsviçre hukukunu uygular. Taraflar hakem heyetine hakkaniyete göre karar verme yetkisi de tanıyabilirler. Söz konusu uyuşmazlık Türk mahkemelerinde dava konusu edilirse, uygulanacak hukuk mahkemece yapılacak vasıflandırmaya göre değişebilir. Buna göre, taraflar futbol menajerliği sözleşmesini iş sözleşmesi unsurlarıyla yapmışlarsa uygulanacak hukuk MÖHUK md 27’e göre tayin edilir. Ancak taraflar futbol menajerliği sözleşmesini vekâlet sözleşmesi, simsarlık sözleşmesi, komisyon sözleşmesi veya danışmanlık sözleşmesi unsurlarıyla yapmışlarsa uygulanacak hukuk MÖHUK md 24 uyarınca belirlenir.
The Solutions of Disputes Arising From the Football Manager Contract with Foreign Element and the Applicable Law
The aim of the football manager contract is to provide services for the professional player contract signed between the football player and the club or the transfer agreement signed between two clubs. In this context, many disputes arising from the football manager contract with foreign element made by the parties come up. In the case of a dispute with a foreign element arising from the football manager contract, parties may file a bill in state courts or apply to the Court of Arbitration for Sport (CAS). However, if a dispute arising from the football manager contract has a foreign element, it can’t be taken to the Turkish Football Federation Dispute Resolution Board. Article 63/3 of the Statute of Turkish Football Federation states that International Association Football Federation (FIFA) is clearly authorized in international disputes. If a dispute arising from the football manager contract with foreign element is taken to the Court of Arbitration for Sport, the Panel shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law. The parties may authorize the Panel to decide ex aequo et bono. If the parties file a bill regarding these disputes in the Turkish courts, the applicable law may vary depending on the qualification to be made by the court. Accordingly, if the parties have made the football manager contract with the elements of the employment contract, the court has to determine the applicable law according to article 27 of MOHUK. However, if the parties have made the football manager contract with the elements of the agency contract, the brokerage contract, the commission contract or the consultancy contract, the court has to determine the applicable law according to article 24 of MOHUK.
In professional football, it is seen that football players and clubs mostly work with football managers. Particularly, the foreign players’ inefficiency regarding language, culture and conditions of the country in which they will play football, the clubs’ conditions and lack of time due to match and training encourage them to benefit from the management service. The aim of the football manager contract is to provide services for the professional player contract signed between the football player and the club or the transfer agreement signed between two clubs. In this context, many disputes arising from the football manager contract with foreign element made by the parties come up. Such disputes can be settled under certain conditions by the state courts as well as by the boards of national or international federations and the arbitration courts. In case of a dispute with a foreign element arising from the football manager contract, the parties may file a bill in the state courts or apply to the Court of Arbitration for Sport (CAS). However, if a dispute arising from the football manager contract has a foreign element, it can’t be taken to Turkish Football Federation (TFF) Dispute Resolution Board. In this context, according to article 2 of the Directive of Dispute Resolution Board, except for the exclusive authority of Dispute Resolution Board in disputes concerning sporting penalties and training compensation; clubs, players, technical managers and football managers are free to accept Dispute Resolution Board’s jurisdiction to settle any dispute arising from any contract relating to football between them. Therefore, the Dispute Resolution Board will only be able to settle disputes arising from contracts relating to football, including the football manager contract, upon written application of the parties. However, it is not possible to apply to the Dispute Resolution Board in terms of disputes with foreign elements. In fact, article 63/3 of the Statute of TFF states that International Association Football Federation (FIFA) is clearly authorized in international disputes. This provision reveals that the Dispute Resolution Board does not have jurisdiction in disputes with foreign element. The parties may apply to CAS in case of disputes arising from the football manager contract with foreign element. The procedural rules of Sports Arbitration Code apply whenever the parties have agreed to refer a sports-related dispute to CAS. Such reference may arise out of an arbitration clause contained in a contract or regulations or by reason of a later arbitration agreement or may involve an appeal against a decision rendered by a federation, association or sports-related body where the statutes or regulations of such bodies, or a specific agreement provide for an appeal to CAS. The rules that the CAS Panel will apply to the merits of the dispute are described in article R45 of Sports Arbitration Code. Accordingly, the Panel decides disputes according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law. The parties may authorize the Panel to decide ex aequo et bono. A dispute arising from the football manager contract with foreign element may also be brought to the Turkish courts. There is no a special rule of conflict of laws that defines the law to be applied to the sports disputes and football manager contracts in the Code on Private International and Procedural Law (MOHUK). The football manager contract, as seen in the examples reflected in the practice, is usually made by considering the elements of contract types such as brokerage contract, commission contract, employment contract, consultancy contract and agency contract. For this reason, the determination of the applicable law to the contractual dispute arising from the football manager contract is made according to the relevant contract status. If the parties have made the football manager contract with the elements of the employment contract, the court has to determine the applicable law according to article 27 of MOHUK. Accordingly, the employment contracts are subject to law which is chosen by parties as long as the provisions which foresee the minimal protection due to statutory provisions of employee’s habitual workplace law are reserved. If the parties have not chosen a law, the law of the habitual workplace of the employee governs this contract. However, if the parties have made the football manager contract with the elements of agency contract, brokerage contract, commission contract or consultancy contract, the court has to determine the applicable law according to article 24 of MOHUK. Accordingly, the law explicitly chosen by the parties governs these contracts and, besides this, the implied choosing on law is also valid. In the absence of choice of law, the law of football manager’s work place at the moment of the conclusion of contract governs the contract.
