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What are the relationships and effects of criminal law and criminal procedure law with football disciplinary law and football arbitration law?
Introduction
Sports has a very important place in the modern world and has its own characteristics. Although there are situations where sports are intertwined with social life and have similarities, there are also differences. The concept of sports law emerged because there are disagreements and punishable situations in sports. The main reason for the emergence of the concept of sports law is the unique characteristics of sports. Football is a branch and subtitle of sports, and objectively, it is the type of sport that has the greatest and most important value in terms of its industrial and mass impact, that is, its fan base. Due to this situation, the resolution of disputes in football and the sanctions to be applied are of great importance. When considered together with the concepts of legal stability and consistency, the application of these sanctions should not conflict with other branches of law or cause confusion, it should be in harmony. In this article, the relationship between criminal law, football disciplinary law and football arbitration law, which are branches of criminal law, and their effects on each other will be examined.
I. Football Discipline Law, Football Arbitration Law and Criminal Law Have Differences
Fast processing of sports discipline processes is an important condition due to the unique characteristics of sports. An action may include both a disciplinary violation and a criminal offense, and these differences may naturally cause some deviations.1 To give a clear and understandable example of this situation, while a football player's insulting words against the opposing team in the locker room may result in banning from the match and similar sanctions within the scope of football disciplinary law, the sanction of this action outside the match requires different judicial processes. The principle of proof in criminal law and the principle of proof in football disciplinary law also differ when the importance of the spirit and speed of football is emphasized. As stated in Article 59 of our Turkish Constitution, it is stated that
decisions regarding the management and discipline of sports, that is, football activities, can only be resolved by resorting to compulsory arbitration and that appeal is not possible.2 This situation shows and makes clear that football disciplinary and arbitration law is different from other judicial proceedings. Since it is not possible to fully implement both laws, it is important to create a situation in the most optimal way.
II. The Best Way to Apply and Interactions
A. Is there a hierarchical situation between laws
Definitive and clear judgments about which law will be applied will not be correct because this situation will always differ depending on concrete events. Being of the opinion that this law will always be applied from now on prevents lawyers from analyzing the legal event and carefully examining the characteristics of the concrete case. In other words, in this case, as in every legal review, the best way is to examine the essence of the incident and decide which law will be applied. The critical point here arises in cases that fall within the scope of application of both laws. More accurately, the issues that seem to be within the scope of football disciplinary and arbitration law as well as criminal law are actually subject to which law they are primarily subject to. Before examining the effects of both laws on each other, it is important which law will be applied primarily in which situation and the situations in which they are applied together, that is, interactively with each other, are important. In this case, it would be better to state that it would be more correct to adopt the principle that sports law is a special law and that the special law will be taken into account and to apply the principle of "lex specis derogat legi generali". The reason for applying this principle is that sports have a unique structure for various reasons. This is the most basic form of comparison and is very useful and legislation is regulated accordingly. Sports law legislation3 and therefore football law legislation4 are also regulated in line with this principle. As mentioned before, the most important reason for the priority of private law in football law is the unique spirit and dynamic structure of the sport and football. However, states cannot intervene in UEFA Disciplinary Instructions5 and claim that their own criminal law should be applied. This situation is also guaranteed in our constitution. Although it is not right to mention about a hierarchical
2 Constitution of the Republic of Turkey (1982), No: 2709
3 Sports Disciplinary Regulation (2019), No: 30830
4 Violence and Disorder in Sports Law on Prevention (2011), No:6222
5 UEFA Disciplinary Regulations, (UEFA, 2022)
superiority, it is correct to state that football disciplinary and arbitration law will be applied for an event that falls within the scope of football disciplinary and arbitration law, and it is correct to state that football law has a special and autonomous structure. The unique characteristic structure of football has caused the practice to be this way, and although there are cases where both laws are applied together, football law is primarily applied.
B. To what extent do football and criminal law affect each other
1. Criminal law and football disciplinary law do not affect each other in some cases
In football disciplinary law and criminal law, parallel trials occur in certain cases depending on the action taken, and it is normal for the two trials to affect each other in some cases and not in others. As mentioned many times in this article, it is not possible to make criminal investigation a pending issue in football disciplinary law, as a rule, due to the dynamism and spirit of football arising from its internal structure.6 In this case, waiting for the criminal investigation to be concluded means disrupting the internal functioning of football and causing chaos. Since football has its own autonomous structure, football disciplinary law instructions should be implemented urgently, with some exceptions, as it is more appropriate. In addition to this situation, it should also be noted that decisions not to prosecute will not have any effect on the final disciplinary proceedings. This decision made by the prosecutor's office does not have the power to cancel the football disciplinary penalty because football disciplinary law is a special law and otherwise this law will lose its meaning and importance. It is also guaranteed by the constitution that no appeal can be made to the judicial authority against decisions regarding the discipline of sports activities. This assurance given by the Constitution shows that such a negative judicial intervention in the football law legislation is not correct. Finally, the most obvious and controversial issue is that the responsibilities of football players and football figures for possible injuries that may occur in football matches are less than for the same actions outside football. Considering the characteristics of football, that is, the sport, criminal law cannot be expected to intervene in football disciplinary law in this regard. In this context, there are two important reasons why criminal law cannot affect football disciplinary
law, or more accurately, the actions that occur within the framework of football competitions. These are the view of consent as a reason for compliance with the law and the view of exercising the right as a reason for compliance with the law. Criminal law cannot affect injuries and actions that occur within the framework of football.7
2. Football disciplinary law and criminal law interact with each other in some cases
There are also legal situations where football disciplinary law interacts with criminal law and affects each other. While football disciplinary law affects criminal justice in certain cases, criminal law affects football disciplinary law in some cases. First of all, conviction decisions made in criminal courts are naturally binding on football disciplinary bodies. For example, someone who commits a crime against the functioning of the constitutional order is punished with deprivation of rights according to the football disciplinary instructions. This case shows that decisions made in criminal law can also have consequences and parallel effects in sports law.8 In this case, the critical point is that there is no intervention in the spirit of the sport. Crimes committed outside the scope of football and competition must naturally be sanctioned in accordance with football disciplinary instructions. In this case, it is not an interference with the spirit of football, but rather a situation where it is undesirable to continue football activities. Considering all this, the critical distinction is whether the spirit of football is intervened or not. The general law should not ignore the autonomous structure and specially created legal structure of football. When there is a crime that does not originate from football, the spirit of football is not affected. Another important issue is the impact of the European Court of Human Rights decisions9 on football disciplinary decisions. The European Court of Human Rights has decisive influence on disciplinary punishments in football in some cases. Penalties of deprivation of rights imposed as football disciplinary punishment can be considered as restriction of freedom of expression in certain cases and sanctions are applied in this way. This
7 Muhammed Demirel, “Spor Müsabakalarında Yaralanmalardan Doğan Ceza Sorumluluğu” in Murat Balcı (ed),
Futbol ve Ceza Hukuku, (Adalet Yayınevi 2023)
8 Murat Balcı, "Ceza Soruşturma ve Kovuşturmaları ile Kesinleşen Mahkumiyet Kararlarının Futbol Disiplin Hukukuna Etkileri" in Murat Balcı (ed), Futbol ve Ceza Hukuku, (Adalet Yayınevi 2023)
9 European Court of Human Rights <https://www.echr.coe.int> accessed 28 May 2024
interaction shows the relationship between the concept of human rights and sports disciplinary law.10
Conclusion
To conclude, football disciplinary law and criminal law are intertwined with each other, but in some cases they should be evaluated separately and both laws should be prevented from interfering with each other, taking into account the unique structure of football. These own rules of football must be effective. Situations where criminal law interacts with football disciplinary law are crimes and situations that do not originate from football.
10 Hüseyin Aydın, “AİHM Kararlarının Futbol Disiplin Yargılamasına Etkileri”in Murat Balcı (ed), Futbol ve Ceza Hukuku, (Adalet Yayınevi 2023)
Bibliography
Constitution of the Republic of Turkey (1982), No: 2709
European Court of Human Rights <https://www.echr.coe.int>accessed 28 May 2024.
Hasan Gerçeker, “The Relationship Between Criminal Law and Sports Law Violation of Rights in Sports and Its Review” (2019) 11(111) Fasikül Hukuk Dergisi https://www.jurix.com.tr/article/18431?u=0&c=0> accessed 29 May 2024.
Hüseyin Aydın, “AİHM Kararlarının Futbol Disiplin Yargılamasına Etkileri”in Murat Balcı (ed), Futbol ve Ceza Hukuku, (Adalet Yayınevi 2023)
Muhammed Demirel, “Spor Müsabakalarında Yaralanmalardan Doğan Ceza Sorumluluğu” in Murat Balcı (ed), Futbol ve Ceza Hukuku, (Adalet Yayınevi 2023)
Murat Balcı, "Ceza Soruşturma ve Kovuşturmaları ile Kesinleşen Mahkumiyet Kararlarının Futbol Disiplin Hukukuna Etkileri" in Murat Balcı (ed), Futbol ve Ceza Hukuku, (Adalet Yayınevi 2023)
Sports Disciplinary Regulation (2019), No: 30830
Turkish Criminal Code (2004), No: 5237 UEFA Disciplinary Regulations, (UEFA, 2022)
Violence and Disorder in Sports Law on Prevention (2011), No: 6222
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What Are The Relationships And Effects Of Criminal Law And Criminal Procedure Law With Football Disciplinary Law And Football Arbitration Law?
