Individual Application

The Facts

The applicant, Fenerbahçe Spor Kulubü Derneği (“Fenerbahçe Sports Club Association”), executed a contract with a company concerning taking advertisement through its uniforms of the Women’s Volleyball League of the 2012-2013 season.

The Department of Sports Services (“the administration”) filed an action before the incumbent civil court (“the court”), maintaining that 5% of the total price of the advertisement contract be paid to it pursuant to the relevant regulation. The regulation on which the administration based its claim was abolished in 2014.   

The court ordered the payment of the relevant portion of the advertisement revenue to the administration. The first-instance decision, appealed by the applicant, was upheld by the Court of Cassation, which also dismissed the applicant’s subsequent request for rectification of the judgment.

The Applicant’s Allegations                                                  

The applicant maintained that its right to property had been violated, stating that the regulation forming a basis for the administration’s action had been already abolished prior to the first instance decision.

The Court’s Assessment

Any interference with the right to property must primarily have a precise, accessible and foreseeable legal basis.

The public authorities may introduce regulatory provisions with a view to covering the expenses of the youth and sports organisations. In this sense, they may impose certain financial obligations on the basis of advertisement revenues earned by the clubs that attend the sports organisations to be held under the supervision and control of the administration. However, any interference with the right to property due to receiving a share out of advertisement revenues must be based on law. In cases where a financial obligation, which is not prescribed in law, is introduced directly through a regulation or any other similar process, it would give rise to a breach of the requirement of being prescribed by law.

As specified in Law no. 3289, the advertisement revenues to be earned through the sports organisations are among the administration’s income. However, there is a lack of legal clarity as to whether these revenues are the ones that would be earned as a result of the contracts to which the administration is a direct party, or those which are determined through advertisement contracts signed between sports clubs along with players and advertisers, as specified in the Regulation issued on the basis of this Law.  

The Law does not embody any provision concerning the ratio of the relevant payment to be made by the applicant club to the administration on the basis of the former’s advertisement revenue. Nor is there any arrangement in the relevant Law to demonstrate the lower and upper limits of the relevant share to be received from the advertisement revenues. In the present case, the impugned share, which is 5%, was prescribed directly through a Regulation. Therefore, imposing a financial obligation directly through the Regulation without a legal basis and thereby interfering with the right to property falls foul of the lawfulness requirement. 

It has been accordingly concluded that the substantial elements of the relevant share of the advertisement revenue taken from the applicant club were not regulated by law in a precise and foreseeable manner; and that the interference with the applicant’s right to property was in breach of the lawfulness requirement enshrined in the Constitution.

Consequently, the Court has found a violation of the right to property safeguarded by Article 35 of the Constitution.