Ekşioğlu and Mosturoğlu v Turkey or “the Fenerbahçe case”: Presumption of innocence and the disciplinary proceedings of sports governing bodies

Aytekin Kaan Kurtul is a PhD candidate in the field of law at Middlesex University, London. His research interests include freedom of political expression, children’s right to free speech, presumption of innocence, peoples’ right to economic self-determination and unilateral coercive measures.

In the loving memory of my uncle, Orhan Kaçmaz (28. 02. 1957 – 16. 06. 2021), a die-hard Beşiktaş fan.

Background and facts

Football has always been more than just a game. This has never been truer for Turkey where politics and obscure cults have been deeply entrenched in the management of the lucrative football industry since the late 1990s. Hence, when the European Court of Human Rights (hereinafter “ECtHR” and “the Court”) received the applications of two executives of a popular sports club, it had to consider not only the structure of a sports governing body, but also a series of trials held in a volatile political environment. In consequence, in order to understand the significance of the ECtHR’s recent judgment in Ekşioğlu and Mosturoğlu v Turkey, it is important to recall what happened after the police raided the house of a 58-year-old businessman in 2011.

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The Future of the Rule of Law in Sports Law: Ali Riza and Others v. Turkey

This blogpost was written by Jernej Letnar Černič who is Associate Professor of Human Rights and Constitutional Law at the Faculty of Government and European Studies of the New University (Ljubljana/Kranj, Slovenia). He is co-author of the forthcoming book on “The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond” (Oxford, Hart/Bloomsbury, 2020).

Are domestic and international sports arbitration bodies obliged to follow the rule of law and ensure at least basic procedural safeguards? Fair trial guarantees have been, for quite some time, a hot potato in (international) sports arbitration. Athletes have been, in the past, mostly unsuccessful when arguing for a violation of Article 6 (1) of the ECHR before the ECtHR (see for example Bakker v. Switzerland (26 September 2019, admissibility decision); Mutu and Pechstein v. Switzerland, 2 October 2018). Nonetheless, the Court already recognized the right to public hearings before CAS (Mutu and Pechstein v. Switzerland, para. 183). Therefore, it appears that a consensus has been increasing for fair trial guarantees to be introduced and/or strengthened both at the domestic and international levels. The Second Section of the European Court of Human Rights has on 28 January 2020 in its seminal judgement in the case of Ali Riza and Others v. Turkey confirmed the importance that sport arbitration bodies uphold basic fair trial guarantees in compulsory sport arbitration such as the right to an independent and impartial tribunal by introducing strict normative safeguards against conflicts of interests.

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Mutu and Pechstein v. Switzerland: Strasbourg’s Assessment of the Right to a Fair Hearing in Sports Arbitration

This guest post was written by Cathérine Van de Graaf, a PhD student at Ghent University.

In Mutu and Pechstein v. Switzerland, the European Court of Human Rights considered the lawfulness of proceedings at the Court of Arbitration for Sports (CAS) in Lausanne. In its analysis, the Court focussed on three elements: the free acceptance of the arbitration clause by the applicants; the status of the CAS as an independent and impartial tribunal established by law and the absence of a public hearing. Continue reading