SECOND SECTION
DECISION
Application no. 2935/07
Önder Deniz KOLGU
against Turkey
The European Court of Human Rights (Second Section), sitting on 27 August 2013 as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 12 January 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Önder Deniz Kolgu, is a Turkish national, who was born in 1974 and lives in Istanbul. He was represented before the Court by Mr O. Uğural, a lawyer practising in Strasbourg.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case:
4. The applicant is a professional football player. On 4 June 2003 the applicant signed a Protocol with Vestel Manisaspor Football Club (“the club”) for two seasons. According to this contract, the club undertook to pay him 650,000,000,000 Turkish liras (TRL) (TRL 300,000,000,000 in cash and the remainder in ten monthly instalments) for the first year and TRL 950,000,000,000 (TRL 600,000,000,000 in cash and the remainder in ten monthly instalments) for the second year. It was also agreed by the Parties that disputes arising out of this protocol would firstly be brought to the attention of the Turkish Football Federation (TFF). However, in case the dispute was not resolved within thirty days, then the Parties were entitled to initiate proceedings before the ordinary civil courts.
5. Subsequently, on 15 June 2003 the applicant and the club further signed a uniform employment contract, which was obligatory according to the domestic legislation. This contract, which contained the same financial obligations as the Protocol (which included certain other provisions regarding the obligations of the parties), was deposited with the registry of the Football Federation on 11 August 2003. According to the domestic legislation, disputes arising out of the terms of such contracts may only be brought before the TFF Arbitration Board.
6. On 13 May 2004 the Executive Board of the club imposed a fine of TRL 75,000,000,000 on the applicant on account of his press statements, undisciplined behaviour and poor performance.
7. On 27 May 2004 the applicant lodged an objection against the fine with the Executive Board of the TFF and requested the setting aside of the fine and payment of the instalments due to him.
8. On 2 June 2004, following the club’s failure to pay the instalments foreseen for April and May, the applicant notified the club that if the due sum was not paid by 7 June 2004, he would unilaterally terminate his contract.
9. On 8 June 2004 the applicant unilaterally terminated the contract as the club had failed to pay him.
2. Proceedings before the Turkish Football Federation
10. The applicant lodged an application with the Executive Board of the TFF and requested the setting aside of the above-mentioned fine, the registration of the lawful termination of his contract, payment of the due amounts arising out of his contract and an award of compensation.
11. On 6 August 2004 the Executive Board of the TFF held that the applicant’s termination of the contract had been unlawful as the amount in question (TRL 60,000,000,000) had been blocked in the bank account of the TFF on 9 June 2004 as a sign of good will. The Board also found that the amount of the fine had been excessive and reduced it to TRL 3,000,000,000. Consequently, after deducting the fine, the TFF ordered the payment of TRL 57,000,000,000 to the applicant.
12. On 27 August 2004 the applicant lodged an objection against the decision of 6 August 2004 with the Arbitration Board of the TFF. He requested the Board to rule that his termination of the contract had been lawful, and requested it to set aside the fine, hear evidence from the team’s coach and order payment of the amounts already due as well as future debts.
13. On 24 September 2004 the Arbitration Board rendered its decision on the dispute. It firstly rejected the applicant’s objection regarding the fine that had been imposed on him by the club. The Board further decided that the termination of the contract had been lawful. It also held that the amount of compensation for lawful termination of the contract should be determined by the Executive Board of the TFF.
3. Proceedings concerning the award of compensation due to the termination of the applicant’s contract
14. Following the decision of the Arbitration Board dated 24 September 2004, the applicant requested the Executive Board to determine the amount of compensation.
15. On 14 December 2004 the Executive Board rejected the applicant’s claim, holding that, even if it could be considered that the applicant had terminated the contract lawfully, the situation did not suffice to justify awarding him compensation, given the amount which had already been paid to him.
16. On 5 January 2005 the applicant objected to the decision of 14 December 2004. On 24 March 2005 the Arbitration Board rejected the applicant’s objection, adopting the reasoning of the Executive Board.
17. On an unspecified date the applicant requested the Arbitration Board to reopen the proceedings in view of the two contradictory decisions delivered on the same issue.
18. On 18 May 2006 the Arbitration Board granted his request and set aside the second decision under the provisions of the Code of Civil Procedure. Subsequently, it referred the case file to the Executive Board for determination of the amount of compensation.
19. On 25 May 2006 the Executive Board awarded the applicant 1,500 new Turkish liras (YTL) by way of compensation.
20. On 8 June 2006 the applicant challenged this decision and requested a public hearing, while submitting other monetary claims.
21. On 17 August 2006 the Arbitration Board held a private hearing and heard the submissions of the parties.
22. On 24 August 2006 the Arbitration Board rendered its final decision and awarded the applicant TRL 175,000 by way of compensation for the termination of his contract.
B. Relevant domestic law and practice
1. Law no. 3813, dated 17 June 1992 on the establishment and duties of the Football Federation
23. Article 13 of Law no. 3813, which is now defunct, stipulated that members of the Arbitration Board were elected amongst lawyers for four years by the General Assembly of the Football Federation. It further stated that the decisions of the Arbitration Board were final.
24. According to Article 14, an objection filed against the decision of the Board of Directors regarding disputes between football clubs and players was to be examined by the Arbitration Board.
2. Law no. 5894, dated 5 May 2009 on the establishment and duties of the Football Federation
25. Article 6 § 4 of Law no. 5894 stipulates that no appeal can be filed against the decisions of the Arbitration Board.
3. Decision of the Constitutional Court, dated 6 January 2011
26. On 6 January 2011 the Constitutional Court annulled Article 6 § 4 of Law no. 5894, which stipulated that no appeal could be filed with the ordinary civil courts against the decisions of the Arbitration Board of the Turkish Football Federation.
4. Constitution:
Article 59, as amended on 17 March 2011 by Law no. 6214:
“The decisions of sports federations relating to administration and discipline of sports activities may be challenged only through compulsory arbitration. The decisions of the Arbitration Board are final and no appeal can be lodged with ordinary judicial courts”.
5. Sample case-law of the Court of Cassation
27. In numerous cases, the 13th Civil Chamber of the Court of Cassation held that in accordance with Law no. 3813, a uniform contract had to be concluded between a professional football player and a football club. The Arbitration Board of the Turkish Football Federation was the sole competent body to examine any dispute arising out of such contracts. However, if the Parties had also concluded a private contract in the form of a Protocol, there existed no provision in domestic law which prevented them from having recourse to the ordinary civil courts (see, for example, the judgments of 27 December 2005, no. E.2005/12776 K.2005/19259; 11 October 2005, no. E.2005/9042 K. 2005/15044; 13 April 2004, no. E.2003/16256 K.2004/5446).
COMPLAINTS
28. The applicant argued that he did not have a fair trial within the meaning of Article 6 of the Convention. In this connection, he maintained that:
- that the Arbitration Board had refused to hear from his witness before rendering its decision;
- that he had been denied a public hearing;
- that the Arbitration Board could not be considered as independent and impartial on account of its composition;
- that he had no right to file an appeal against the decision of the Arbitration Board;
- that the Arbitration Board had failed in the evaluation of the case.
29. Invoking Article 1 of Protocol No. 1 to the Convention, the applicant complained that as a result of the unfair proceedings before the Arbitration Board, his right to the peaceful enjoyment of his possessions had been breached.
THE LAW
30. The Court observes at the outset that the applicant mainly complained about the fairness of the proceedings before the Arbitration Board. In this respect, he relied on Article 6 and Article 1 of Protocol No. 1 to the Convention. Noting that the complaint raised under Article 1 of Protocol No. 1 is closely linked to the complaints raised under Article 6 of the Convention, the Court considers that the application should be examined from the standpoint of Article 6 alone, which in so far as relevant reads as follows:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ...by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
...”
A. Non-attendance of a witness
31. The applicant alleged under Article 6 of the Convention that the Arbitration Board had not heard evidence from his witness, namely the coach of the football team. In his view, the testimony of the coach would be in his favour, and would lead the Arbitration Board to reach a different conclusion regarding the fine that had been imposed on him.
32. The Government contested the allegations.
33. The Court recalls at the outset that the six-month rule is a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion, even if the Government have not raised that objection (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012).
34. In the present case, the Court observes that during the proceedings before the Arbitration Board, the applicant repeatedly requested that his coach be heard as a witness, as he believed that his testimony would change the Arbitration Board’s view regarding the fine that had been imposed on him due to undisciplined behaviour and poor performance. However, his requests were rejected. At this point the Court notes that the final decision regarding the fine that had been imposed on the applicant was delivered by the Arbitration Board on 24 September 2004. It also notes that the decisions of the Arbitration Board are final and no appeal can be lodged against them. The subsequent proceedings therefore solely concerned the dispute about the termination of the applicant’s contract, which is a different matter, not related to the fine imposed on the applicant. Accordingly, the time-limit, laid down by Article 35 § 1 of the Convention, started to run on 24 September 2004 and the application was lodged on 12 January 2007, that is, after the expiry of the six-month time-limit.
35. In the light of the above, the Court concludes that this part of the application should be rejected for being introduced out of time, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Lack of public hearing
36. The applicant complained that he had been denied a public hearing on the merits of his case.
37. The Government argued in the first place that this complaint should be rejected for non-exhaustion of domestic remedies. In this respect, they maintained that the applicant had the right to initiate proceedings before the ordinary civil courts. In this connection, they relied on the established case-law of the Court of Cassation and stated that as the applicant had also concluded a private contract with the football club, he could have initiated proceedings before the Istanbul Civil Court. In the alternative, they argued that this part of the application should be rejected for being introduced out of time.
38. As regards the Government’s objection in respect of non-exhaustion of domestic remedies, the Court recalls that if more than one potentially effective remedy is available, the applicant is only required to have used one of them. When a remedy has been attempted, use of another remedy which has essentially the same objective is not required (see Moreira Barbosa v. Portugal (dec.), no. 65681/01, 29 April 2004). In the present case, the Court notes that, following a dispute regarding the termination of his contract, the applicant initiated proceedings before the Arbitration Board of the Turkish Football Federation. However, as he had also signed a Protocol with the football club, it was open to him to apply to ordinary civil courts, where he would be entitled to have a public hearing. At this point, the Court refers to the sample Court of Cassation decisions, submitted by the Government, which indicated that a football player was entitled to have recourse before ordinary civil courts if he had also signed protocol together with the uniform employment contract (see paragraph 27 above). In the present case, the applicant chose to initiate proceedings before the Football Federation. Accordingly, it would be unreasonable to expect him to apply also to the ordinary civil courts on the same issue. In the particular circumstances of the present case, the Government’s objection should be dismissed.
39. Regarding the objection concerning the six-month time-limit, the Court observes that the final decision on the dispute over the termination of the employment contract was delivered by the Arbitration Board on 24 August 2006 and the application was lodged with the Court on 17 January 2007, within six months after the delivery of the final decision. It therefore rejects this part of the Government’s preliminary objection.
40. As regards the merits, the Court recalls at the outset that Article 6 of the Convention does not preclude the setting up of arbitration tribunals in order to settle disputes between private entities. Indeed, the word “tribunal” in Article 6 is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country; thus, it may comprise a body set up to determine a limited number of specific issues, provided always that it offers the appropriate guarantees (see Lithgow and Others v. the United Kingdom, 8 July 1986, § 201, Series A no. 102). Furthermore, a distinction must be drawn between voluntary arbitration and compulsory arbitration. Normally, Article 6 poses no problem where arbitration is entered into voluntarily. If on the other hand, arbitration is compulsory, in the sense of being required by law, the parties have no option but to refer their dispute to an Arbitration Board, and the Board must offer the guarantees set forth in Article 6 § 1 (see Suda v. the Czech Republic, no. 1643/06, §§ 50, 28 October 2010).
41. The Court further reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6. This requirement protects litigants against the administration of justice in secret, with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, the public nature of a hearing contributes to the achievement of the aim of Article 6 § 1, namely, a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see, for example, Diennet v. France, 26 September 1995, Series A no. 325-A, § 33, and Malhous v. the Czech Republic [GC], no. 33071/96, § 55, 12 July 2001).
42. The right to a public hearing implies a public hearing before the relevant court. Article 6 § 1 does not, however, prohibit courts from deciding, in the light of the special features of the case submitted to them, to derogate from this principle: in accordance with the actual wording of this provision, “... the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”; holding proceedings, whether wholly or partly, in camera must be strictly required by the circumstances of the case (see, Martinie v. France [GC], no. 58675/00, § 40, ECHR 2006‑...).
43. The Court has further considered that in the course of proceedings where exclusively legal or highly technical questions are at stake, the requirements of Article 6 may be fulfilled even in the absence of a hearing (see Osinger v. Austria, no. 54645/00, § 46, 24 March 2005). Moreover, it has held that exceptional circumstances relating to the nature of the issues to be decided by the court in the proceedings concerned (see, mutatis mutandis, Miller v. Sweden, no. 55853/00, § 29, 8 February 2005) may justify dispensing with a public hearing (see, Göç v. Turkey [GC], no. 36590/97, § 47, ECHR 2002 V).
44. In the present case, following a dispute regarding the termination of his contract, the applicant initiated proceedings before the Arbitration Board of the Turkish Football Federation. However, as he had also signed a Protocol with the football club, it was open to the applicant to apply to the ordinary civil courts, where he would be entitled to have a public hearing. At this point, the Court refers to the sample Court of Cassation decisions, submitted by the Government, which indicated that a football player was entitled to have recourse to the ordinary civil courts if he had also signed a Protocol together with the uniform employment contract. In the present case, the applicant chose to initiate proceedings before the Arbitration Board; accordingly, he should be considered as having accepted the system provided by the Football Federation (see, Transado-Transportes Fluviais do Sado v. Portugal (dec.), no. 35943/02, 16 December 2003 and a contrario, Suda, cited above, §§ 51-52).
45. The Court further observes that upon the applicant’s request, the Arbitration Board held a hearing in private on 17 August 2006, and the parties were able to submit their oral submissions. The Court considers that the dispute in question related to highly technical questions and consequently, according to the principles cited above (see paragraphs 41 and 43), the requirements of Article 6 may be fulfilled even in the absence of a public hearing.
46. In the light of the foregoing and bearing in mind the circumstances of the present case, the Court considers that the private nature of the proceedings in issue cannot be considered as infringing the applicant’s rights under Article 6 of the Convention.
47. This part of the application should therefore be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
C. Remaining complaints of the applicant
48. An examination by the Court of the material submitted to it does not disclose any appearance of a violation of the remaining complaints. It follows that this part of the application is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares inadmissible the application.
Stanley NaismithGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy