Keywords

1 Introduction

In 2016, Colin Kaepernick, an American footballer, took a knee during the singing of the national anthem before the match, as part of a protest against the oppression of African American people and police brutality.Footnote 1 Since then, the gesture has become a statement against racism, and a political symbol in the sports world. In 2017, then President Donald Trump made several speeches accusing American Football players who kneeled during the national anthem of disrespecting the flag, and encouraged NFL team owners to fire those players, and for fans to leave the stadium in counter-protest.Footnote 2 This tension between protesting NFL players and President Trump went beyond the borders of American football and spread to all major sports leagues. For example, one of the most famous NBA players, Lebron James, showed support to another NBA player Stephen Curry who refused the invitation to the White House.Footnote 3 Similarly, baseball player Bruce Maxwell from the Oakland Athletics mirrored the protests by NFL players against racial injustice and kneeled during the national anthem.Footnote 4 Most recently, the world has witnessed several political actions from football players at the FIFA World Cup in Qatar. In a joint statement, the football associations of England, Wales, Belgium, the Netherlands, Switzerland, Germany, and Denmark brought forward that their intent to wear OneLove armbands had to be abandoned because of the risk of sporting sanctions by FIFA.Footnote 5 The OneLove armbands were originally launched in 2020 by the Royal Dutch Football Association (KNVB) as part of a campaign against all forms of discrimination.Footnote 6 In response, FIFA revealed its ‘No Discrimination’ campaign, which allows team captains to wear a No Discrimination armband for the duration of the tournament.Footnote 7

These salient examples of political actions in sports bear on the human rights responsibilities of sports governing bodies (SGBs). While there is an assumption that the field of sports has a specific legal order and dispute resolution mechanisms independent from the state—so-called lex sportiva—this chapter discusses whether one of the specific principles and rules of such an order, namely, the prohibition of political statements, can be considered sustainable vis-a-vis human rights law standards developed by the European Court of Human Rights (ECtHR). The recent judgment of ECtHR (Naki et. Amed Sportif Faaliyetler Kulübü Derneği c. Turquie, Req. 48924/16, 18/05/2021 [henceforth referred to as Naki]) is an opportunity to scrutinize the ban on political statements adopted by almost all SBGs.

The purpose of the chapter is to draw attention to human rights concerns in the discourse and practice of SGBs. Although SGBs are subject to private law—due to their private legal personality, autonomous organizational structure, self-validating power, and contractual obligations—the aforementioned lex sportiva assumption cannot be extended in a fashion that excludes human rights concerns in the field of sports. This is because considerations of traditional International Human Rights Law (IHRL)—that public agents using public power/authority in order for human rights norms to be applied to the dispute—cannot be considered sustainable since the influence of SGBs over other stakeholders of sports (i.e., athletes, trainers, and clubs) has become overwhelming due to their monopolistic status. In fact, sports law has specific principles, rules, and applications that diverge from IHRL.

Unbalanced bargaining and the vulnerable position of other stakeholders against the monopolistic powers of SGBs necessitate states’ positive obligations, which include the duty to prevent and/or redress violations, even in relations between private parties (horizontal application).Footnote 8 Thus the human rights responsibility of states can be triggered by positive obligations doctrine and the horizontal effect doctrine.Footnote 9 This chapter aims to put forward human rights obligations of SGBs via a thorough examination of the Naki ruling so as to highlight the incompatibility of the blanket ban on sportspersons’ political speech with their freedom of expression. It should be noted that the ECtHR’s response to the problem of the blanket ban on political statements has implications for Türkiye as well.

As in many academic studies in the field of law, doctrinal legal research methodology was used in our study. The main argument is built upon the ECtHR’s Naki ruling because it had the potential to lead SGBs to revise their policy concerning the categorical ban, as it cannot be considered sustainable under IHRL in general, and the European Convention on Human Rights (ECHR) in particular. In addition, as a member of the Council of Europe, Türkiye is a part of the ECHR system, and is one of the states with the highest number of applications to the ECtHR.Footnote 10 The Naki ruling was not the only application against Türkiye before the ECtHR regarding sportsFootnote 11, and it has particular importance because the decisions of the Court are indicative for all Turkish courts and the decisions of the Turkish Football Federation.

In this regard, the chapter will start with posing the problem by putting forward the nature and the extent of the blanket ban on political statements in sports. This section will scrutinize the issue in two main categories in the international arena and in Turkish football. This section will assess the categorical political statement ban as a universal standard of sports governance. Next, the ECtHR’s response to the issue will be addressed, with a focus on the judgment of Naki et. Amed Sportif Faaliyetler Kulübü Derneği c. Turquie. The judgment will be analyzed in detail, and subjected to criticism, especially for the insufficiency of the procedural review of the Court. Following that, the chapter will argue that a total ban on political speech not only fails to meet the clarity and certain foreseeability criteria, but also the legitimate aim criteria of the Court. The proportionality of the interference will also be discussed. The final section of the chapter will explore the implications of the Naki ruling both for Türkiye and the international sports world in general.

2 The Nature and Extent of the Blanket Ban on Political Speech in Sports

Political and ideological statements by athletes during sports competitions are explicitly prohibited by almost all institutions and federations that govern sports in the international arena, as well as by national federations. For practical reasons, this section is confined to analysis of football and the Olympic Movement.

2.1 The International Arena

The Olympic Charter, issued by the International Olympic Committee (IOC), prohibits the use of political, religious and racial expressions in Olympic venues; punishment for violation of this rule includes the possibility of disqualification from the Games. Article 50.2 of the recent version of Olympic Charter, in force as from 8 August 2021, states that “No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas”.Footnote 12 Article 50 is based on the mission and role of the IOC in managing world Olympics enshrined in Article 2.11 of the Charter, which states that the role of IOC is “to oppose any political […] abuse of sport and athletes”. The mission and role attributed to the IOC clearly reveals its approach against the concept of politics and explains the rigid political statement ban as regulated in Article 50.2.Footnote 13 The fifth paragraph of Article 2 of the Charter also authorizes the IOC to monitor and enforce this prohibition under the terms of political neutrality.Footnote 14

Bye-law to Rule 50 elaborates the framework of the ban in more concrete terms, by explicitly prohibiting any form of political propaganda that may appear on persons and on any article of clothing or equipment whatsoever worn or used. The bye-law also notes that infringement of the political statement ban may result in sanctions, disqualification of the person or delegation concerned, or withdrawal of the accreditation of the person or delegation concerned. In addition to disqualification and accreditation withdrawal, other sanctions and measures can also be implemented. The IOC Athletes’ Commission has prepared a ‘Guide on Article 50’,Footnote 15 and has applied the Guide to particular occasions (the most recent versions of the Guide: Rule 50.2 Guidelines–Olympic Games Tokyo 2020, and Rule 50.2 Guidelines–Olympic Winter Games Bei**g 2022). The Guide explains in a detailed manner when, where, and how political statement bans are implemented, and how this impacts athletes’ freedom of expression.Footnote 16

FIFA, overseeing the football sport worldwide, also forbids political statements.Footnote 17 The FIFA Disciplinary Code 2019 (FDC) has even more detailed provisions on the matter. Article 11, entitled “Offensive behaviour and violations of the principles of fair play”, expresses that disciplinary measures may apply in cases of non-sportive demonstrations, which includes political expressions.Footnote 18 Article 12 of the FDC explains the sanctions will be applied in cases of a discriminative occurrence. These sanctions may come as match suspensions or other disciplinary measures; they can vary from limiting spectator numbers and imposing fines if there is involvement by the supporters of an association or a club. Article 16.2 of the FDC imposes objective liability on all associations and clubs for cases of political and ideological statements of their supporters. Similar provisions can be found with regard to UEFA. Article 11 of the 2022 version of the UEFA’s Disciplinary Regulations (UEFA DR) states that those who use sporting events for manifestations of a non-sporting nature may face disciplinary sanctions. The concept of manifestations of non-sporting nature includes political expressions.Footnote 19

2.2 Turkish Football

As a member of FIFA and UEFA, the Turkish Football Federation (TFF) has several provisions concerning speech and expressions, including political and ideological propaganda. The ban on unsportsmanlike statements can be considered the first provision that pertains to political speech. Under Article 36 of the current Turkish Football Federation’s Professional Football Disciplinary Directive of 2017 (TFF FDD) amended in 2021,Footnote 20

(1) Acting against sportsmanship or sports ethics, harming the reputation of TFF with one’s attitudes and behaviors, or taking actions that devalue football, or promoting violence or disorder in sports by means of the press and media or social media, or making statements or declarations contrary to sportsmanship, sports ethics or fair-play that may yield in fan activities, (…are sanctioned).

(…)

(d) If the actions mentioned in the first paragraph are conducted through the press organs (especially official websites, club televisions) or social media accounts of the clubs, the clubs shall be sanctioned a penalty from 400,000.-TL to 1,200,000.-TL for the Super League, from 220.000.-TL to 600.000.-TL for the 1st League, from 120.000.-TL to 220.000.-TL for the 2nd League, from 60.000.-TL to 120.000.-TL for the 3rd League. In addition, if the statement is made without citing any name or using the term ‘board of management’, the president of the club which made the statement will also be punished according to subparagraph (b) of this paragraph.

(2) Where the Disciplinary Board deems necessary, merely the fine defined in paragraph 4 of Article 35 for the violations specified in paragraph 1 of this article could be applied. Footnote 21

In practice, as will be demonstrated below, organs of TFF use this provision to apply sanctions against persons who make political statements. Furthermore, Article 38 prohibits that if and when any stakeholder of Turkish football makes statements that exceed the limits of criticism, threatening, insulting, offensive, discriminatory or abusive statements about referees and other competition officials shall be punished. This provision, which was included in 2021, and intents to protect the reputation and independence of referees and other competition officials, may also provide a basis to restrict political statements of sportspersons, despite the fact that there is no known implementation of this provision for political statements yet. Moreover, Article 42 of the TFF FDD, entitled “Discrimination and Ideological Propaganda”, states that “It is forbidden to make any and all kinds of ideological propaganda before, during and after the competition. In case of non-compliance with this prohibition, the penalties specified in this article will be applied”. This provision is the primary clause that is implemented against persons who make political expressions. Finally, the TFF FDD also prohibits “ugly and bad cheering” in its Article 53. According to that provision, “Humiliating, inciting, or harassing cheering with words, actions, or similar means in the stadiums is prohibited without applying the criterion of continuity”. Although there is no clear example of any sanction based on this provision for political statements, it may be used in order to implement sanctions when the spectators’ political expressions are considered to be provocative or abusive.

2.3 Categorical Ban on Political Statements as a Universal Standard of Sports Governance

The aforementioned regulations clearly demonstrate that a ban on political speech in sports has become a universal standard of sports governance. Therefore, it should be addressed accordingly when it comes to human rights analysis, which this chapter argues, the ECtHR failed to do so properly in its Naki judgment. The next section will analyze the scope and ramifications of the political statement ban in sports, so as to discuss its compatibility with the right to freedom of expression under the ECHR.

2.3.1 Personal Scope of Ban

The first component of universality can be seen with regard to persons bound by the prohibition. First and foremost, the personal subject of the prohibitions is obviously the athletes. But it also covers every sportsperson who is involved in a particular sporting event, such as trainers, coaches, and club officials. While Bye-law to Rule 50 explicitly refers to team officials, other team personnel and all other participants regardless of their position, the Guide on Article 50.2 of the IOC explicitly refers to these persons in an exemplary manner, labelling them as participants (accredited persons). Both Bye-law to Rule 50 and the Guide state that they are all bound by the ban.Footnote 22 Moreover, Article 16 of the Olympic Charter has a provision for its members: a member should take the oath before commencement of his or her duty as a member of the IOC, and should swear to act independently of political interests. The ban on political speech also covers the leaders of SGBs, at least with regard to the IOC.

Similarly, FIFA’s ban also covers almost every figure involved in the game of football. In addition to footballers, Article 11 of the FDC includes national associations/federations, clubs, officials, and any other member and/or person carrying out a function on their behalf as responsible persons to obey the legislation of FIFA (Laws of the Game, the FIFA Statutes and FIFA’s regulations, directives, guidelines, circulars and decisions). All of the above persons are bound by FIFA legislation to respect the ban on political speech. Here FIFA takes another step and widens prohibition on political statements to the spectators, under Article 16 of the FDC. In order to implement the prohibition effectively to persons who are not bound by its legislation directly, FIFA creates an objective liability regime for all associations and clubs for the political and ideological acts of their supporters.

UEFA has similar provisions with regard to the personal scope of prohibition. Article 11 of the 2022 version of the UEFA DR mentions national associations/federations, clubs, their players, officials and all persons assigned by UEFA to exercise a function as responsible persons to respect the legislation of UEFA (Laws of the Game, UEFA’s Statutes, regulations, directives and decisions).

It is not surprising that the Turkish Football Federation follows FIFA and UEFA with regard to the personal scope of political statement ban. In Articles 36 and 42 of its TFF FDD, the Federation indicates footballers and club managers in terms of responsibility for ideological propaganda and unsportsmanlike statements, which includes political speech. TFF also covers spectators in this regard (Article 42), and like FIFA, creates an objective liability regime for clubs for the political and ideological acts of their supporters and members.

These provisions indicate that any person involved in sport activity is bound by the political statement ban, irrespective of their position or capacity. With regard to personal scope, one can conclude that a ban on political speech in sports governance possesses universal coverage.

2.3.2 Material Scope of Ban

Secondly, one should pay attention to the material or substantive aspect of prohibition. Prohibition forbids any kind of political or ideological statements, expressions, gestures, demonstrations, which reach the level of propaganda. In fact, almost all expressions and statements that have any political or ideological component fall within the ambit of this prohibition. For example, Bye-law to Rule 50 blatantly forbids any political content by stating “No form of publicity or propaganda, commercial or otherwise”. Similarly, the Guide on Article 50 of IOC explicitly mentions the principle of political neutrality and therefore shows the real purpose of Rule 50.2, namely prohibition of any kind of political expressions. In fact, when giving examples of how the host city’s political officers are excluded from the Games, the Guide treats the concept of political expressions in the pejorative sense of the word and considers them to be an interference with sport at the Olympics.

Here the Guide on Article 50 distinguishes expressing views (acceptable form of speech) from protest and demonstrations (unacceptable form of speech), and leaves out the term ‘propaganda’, which is explicitly used in the Olympic Charter, thus lowering the threshold for applicability of the prohibition. At this point, the Guide prefers to list unacceptable examples of protest, as opposed to expressing views in a non-exhaustive manner, which includes displaying any political message or gestures of a political nature, such as kneeling.Footnote 23 Thus, the concept of politics cannot be considered within the scope of freedom of expression under the Olympic regime, a right acknowledged and recognized in the Athletes’ Rights and Responsibilities Declaration.Footnote 24

Similar terms can be observed in the field of football regulation. FIFA, UEFA, and TFF all forbid the use of gestures, words, objects or any other means to transmit a message that is not appropriate for a sports event, which explicitly covers political and ideological statements (Article 16 of the FDC of 2019; Article 16 of the 2022 version of the UEFA DR; Article 42 of TFF FDD of 2017). Again, using sporting events for manifestations of a non-sporting nature is also prohibited by FIFA (Article 11 of the FDC and Article of 11 the UEFA DR), which is likely to cover political expressions, gestures and demonstrations. Here one can observe that there is no ‘propaganda’ threshold for a political expression or gesture in order to fall within the ambit of prohibition in the FIFA regulations. But the UEFA regulations still maintain a threshold or a quality, namely ‘provocative’, and TFF regulations still maintain a ‘propaganda’ threshold for a political expression or gesture in order to fall within the ambit of prohibition.

With regard to the material scope of a ban on political speech, it can be observed that the terms and concepts used here—such as political, ideological and propaganda—are so wide that they lack clarity and certainty. It is possible to include almost any expression or gesture within the ambit of the ‘political’ or ‘ideological’ from a certain point of view. Therefore, I shall discuss the nature and meaning of these terms vis-a-vis freedom of expression under the ECHR in the following subsections.

2.3.3 Medium and Form-Related Scope of Ban

Closely linked to the material scope of ban, the third aspect of the universality of the prohibition of political statements in sports governance is the form of the expressions themselves. How the ideas, thoughts, or emotions are expressed or disseminated is equally as important as the substance of the expressions themselves.Footnote 25 In this regard, one can fairly say that sports law covers almost all forms of expressions. For example, Bye-law to Rule 50 of the Olympic Charter emphasizes the medium coverage of the ban by explicitly stating “no form of […] propaganda”, and lists different means through which political propaganda can be expressed, such as persons and any article of clothing (sportswear, accessories) or equipment worn or used. The Guide on Article 50 of the IOC also gives examples of what would constitute an unwarranted political expression in a non-exhaustive manner, such as wearing signs or armbands, hand gestures or kneeling, and refusal to attend the ceremonies. Through Bye-law to Rule 50 and the Guide, the IOC categorically excludes political expressions from acceptable and permissible speech. However, the Olympic rules concerning political expressions does permit athletes to express their opinions on digital or traditional media, or on other platforms like social media.Footnote 26

Similar medium and form coverage can be seen with regard to football regulation (including FIFA, UEFA and TFF regulations). Thus, all forms of gestures, words, objects or other means to transmit a political message are prohibited categorically, irrespective of the medium through which they are conveyed.Footnote 27

2.3.4 Spatial Scope of Ban

The fourth indicator that reveals the universal acceptance of the political statement ban by SGBs is the consensus with regard to its spatial dimension. When one looks at the places where the political statement prohibition applies, one observes the very wide coverage of spaces; starting from stadiums and competition sites, and expanding to almost all locations connected to the event (including but not limited to matches or competitions). These are all considered forbidden venues for political expression.Footnote 28

For example, Article 50 of the Olympic Charter reveals that the prohibition on political speech is applicable in any Olympic sites, venues, and other areas. These locations include the field of play, the Olympic Village, and all places in which ceremonies are held (Guide to Rule 50). On the other hand, the IOC permits political manifestations where they are expressed in mixed zones, in the International Broadcasting Centre or the Main Media Centre, and places where team meetings are held (Guide to Rule 50). There are some differences between the Guide and its implementation in particular Olympics. In Rule 50.2 Guidelines–Olympic Games Tokyo 2020, it was permissible to express political manifestations on the field of play prior to the start of the competition, a regulation that was different than its counterpart in the Guide, on the basis of time factor (not during competition).

In football regulations, the national associations and clubs are responsible for order and security both inside and around the stadium before, during, and after matches. When a football-related sporting event takes place, manifestations or messages of a non-sporting nature, including political/ideological gestures, words, or objects are forbidden, regardless of the venue (Articles 11 and 16 of the FDC, Article of 11 and 16 of the UEFA DR and Articles 42 and 53 of TFF FDD of 2017). In Article 12 of the FDC, misconduct of players and officials is included, “in the context of a match (including pre- and post-match)”, where political statements can easily fall within its ambit.

2.3.5 Temporal Scope of Ban

The fifth indicator for the universality of the ban on political speech in sports governance is the temporal dimension of the prohibition, which is closely related to the spatial aspect. In some regulations, regardless of the place, the event that is going on is decisive for the applicability of the prohibition. As a rule, the main event that triggers the applicability of the ban is the competition itself. In football, prohibitions with regard to political statements apply “before, during and after matches” (i.e., Article 42 of TFF FDD), bringing a considerable level of uncertainty as to how much time constitutes ‘before’ and ‘after’ matches. Similar problems arise with regard to players conduct as they are responsible for their behavior pre- and post-match.

At the Olympics, political statements are forbidden, “During Olympic medal ceremonies or During the Opening, Closing and other official Ceremonies” (Guide to Rule 50), and “during competition on the field of play” (Rule 50.2 Guidelines–Olympic Games Tokyo 2020). However, the Olympic regime does in facet permit expressions of a political nature during press conferences at the venue, interviews, or while speaking to the media.

2.3.6 SGBs That Have Adopted a Ban on Political Speech

The final indicator for the universality of a ban on political statements in sports governance is the variety of SGBs who have adopted such a prohibition into their regulations. Unsurprisingly, almost all major international SGBs have adopted similar prohibitions concerning the political speech of stakeholders, including the International Basketball Federation (FIBA) in their Internal Regulations, Book 1, Article 110(b);Footnote 29 the International Gymnastics Federation (FIG), in their Code of Conduct, Section I, Paras. 4,7;Footnote 30 the International Volleyball Federation (FIVB), in their Disciplinary Regulations, Chapter 2, Article 8.3;Footnote 31 World Athletics, in their Integrity Code of Conduct, Rule 3, Para. 3.3.14;Footnote 32 the International Swimming Federation (FINA), in its FINA Constitution, Article C 4;Footnote 33 and the International Tennis Federation (ITF), in its 2022 World Tennis Tour Code of Conduct, Article IV, Para. L, and Article IV, Para. C3d.Footnote 34

These SGBs are not only the leading international bodies in sports governance, but they also control the most important sports in the world in terms of popularity, money, and stakeholder participation. It is safe to assume that, when one takes into account the functioning of transnational sports law or lex sportiva, national member associations/federations and clubs incorporate political statement bans into their national sports law and regulations.

2.3.7 Intermediate Result

As a result, political statements in sports are totally prohibited irrespective of the persons who express them, their content, the medium through which they are conveyed, and the place they are expressed at. SGBs consider political and ideological statements as an enemy of the political neutrality of sport, and prohibit them without any concern for freedom of expression. On the basis of its personal, material, medium and form-related, spatial, temporal scopes, and variety of SGBs that have adopted this ban, it can be concluded that a ban on political speech in sports has a universality in sports governance without any meaningful exception.

It should be emphasized that the political statement ban as a universal standard of sports governance is not considered a limitation to athletes’ freedom of expression within the meaning of human rights law since it constitutes a total, categorical blanket ban for freedom of expression. Here, one should distinguish between limitation/restriction and total prohibition in terms of their consequences with regard to the right they interfere with.

3 Response of ECtHR to the Problem: Naki Case

This section will analyze the issue of the political statement ban from the angle of human rights law, and question its compatibility with the freedom of expression enshrined in various human rights instruments and constitutions, first and foremost the ECHR. After being silent on sports matters for decades, ECHR’s supervisory organ, the ECtHR, has recently delivered several judgments and decisions on the freedom of expression in a sporting context against several state parties to the Convention. Naki is one of the leading cases concerning freedom of expression in sports, which will be discussed in detail below as it is directly related to the ban on political speech in sports governance.

3.1 Freedom of Expression Cases Before ECtHR in the Context of Sport

Before exploring the Naki case, there are other cases that have been adjudicated by the ECtHR related to freedom of expression in sports that are worth mentioning.

3.1.1 Kevin Maguire v. The United Kingdom

This case is relatively unknown to sports and human rights circles and concerns the historically-deep conflict between the Scottish football teams, Rangers and Celtic. The applicant, who is a Celtic fan and attended a football match between the two teams at Ibrox Stadium in Glasgow, home to Rangers, was sentenced to a two-year football banning order by the court, due to a breach of peace under the Police, Public Order and Criminal Justice Act 2006 (Scottish law) for wearing a black shirt during a football match between Rangers and Celtic, which, in bright green letters approximately three to four inches in size, displayed on the front the letters “INLA”, and on the back the slogan, “FUCK YOUR POPPY REMEMBER DERRY”. While initials INLA refer to the ‘Irish National Liberation Army’, which is a proscribed organization in terms of the Terrorism Act 2000, the poppy symbolizes remembrance of the members of the armed forces who died in the line of duty (also known as “Remembrance Day”). The word Derry refers to a town in Northern Ireland where thirteen civil rights protesters and bystanders were killed by soldiers of the British Army during a civil rights march in January 1972 (known as “Bloody Sunday”).Footnote 35

Under these circumstances, the ECtHR found that the sanction (two-year football banning order instead of custodial sentence of up to one year’s imprisonment) was not excessive in terms of proportionality,Footnote 36 given the context of the gesture in question, historical sectarian violence between fans of the two football clubs, which is still ongoing, and the volatile atmosphere surrounding football matches between the two team. These factors called for pressing social need in order for limitation. Although the status of Northern Ireland, the historic role of British soldiers in Northern Ireland, and the events of Bloody Sunday are matters of general public interest, the Court nevertheless reminded that alongside the right to freedom expression comes duties and responsibilities under Paragraph 2 of Article 10 of the Convention; the scope of which depends on the situation of the applicant and the technical means the applicant used with regard to assessing the necessity of the interference. In the case at hand, the Court found that the slogan on the back of the applicant’s top was likely to cause distress or alarm, give rise to a substantial risk of violence and disorder, and would offend and upset members of the public; the public would also be subjected to the risk of violence once the applicant engaged with Rangers supporters (thus sharing the findings of police officers under the margin of appreciation doctrine). The ECtHR mostly deferred to domestic authorities and courts’ reasoning as to whether these reasons were relevant and sufficient in order to justify the interference.Footnote 37

For the reasons discussed in the case above, the Maguire decision of the ECtHR cannot be considered to be a typical example of the universal political statement ban in sports governance. The material scope of the statement/gesture in the Maguire case is closely linked to inciting violence, a type of expression not widely protected and open to wide restrictions under Article 10 of the Convention. Secondly, the sanction imposed for the applicant’s gesture was based on criminal law, even though it was a two-year football banning order, not disciplinary law of the relevant SGBs. The distinctive factor of the political statement ban in sports governance is its universal acceptance by the SGBs as a disciplinary regulation.

3.1.2 Simunic v. Croatia

The second case relevant here concerns a footballer who shouted “For Home” to spectators, who in turn replied back “Ready”, four times consecutively, at end of the match (approximately 40 minutes after its conclusion) between Croatia and Iceland; the footballer was on the pitch with a microphone, and the spectators were still in the stands. Domestic judicial authorities considered this chant to be fascist in nature, since it had been used as an official greeting of the Ustaše movement and totalitarian regime of the Independent State of Croatia. According to domestic courts, the Ustaše movement was based on racism and symbolized hatred towards people of different religious or ethnic identities, and a manifestation of racist ideology.Footnote 38

The applicant footballer was fined 25,000 Croatian kunas (about 3300 euros at the time) by domestic courts of instances, and was found guilty of “addressing messages to spectators, the content of which incited to hatred on the basis of race, nationality and faith” under the Act on Prevention of Disorder on Sport Competitions. Although the footballer ultimately argued before the Croatian Constitutional Court in a domestic judicial process that his freedom of expression had been violated, as the lower courts considered any use of the incriminating expression in front of any spectators absolutely unacceptable and left no room for meaningful proportionality assessment, the Constitutional Court rejected this argument since the fine imposed on him had a legitimate aim of punishing behavior that expressed or incited hatred on the basis of racial or other identity at a sports competition; this in turn protects the dignity of others and the basic values of democratic society. The Croatian Constitutional Court stressed that freedom of expression also bears duties and responsibilities, and the fine imposed on the applicant footballer, as a last line of defense of society’s values, was found to be proportional.Footnote 39

When the case was brought before the ECtHR, the Court found that the gesture of the applicant footballer in question (i.e., shouting) falls within the ambit of Article 10, but the interference was legitimate and proportional due to the modest nature of the fine imposed to the applicant and the gesture’s deeply controversial context. Again, the ECtHR deferred to domestic authorities and courts’ reasoning as to whether these reasons were relevant and sufficient in order to justify the interference, and concluded that domestic courts diligently analyzed the words used by the applicant footballer and their contextual background. Underlining that the applicant is a famous footballer and therefore a role model for football fans, the ECtHR imposed the obligation on him to be aware of, and avoid the possible negative effects of, provocative chanting towards spectators. As a result, the ECtHR concluded that domestic authorities acted within their margin of appreciation when assessing whether a pressing social need exists under the necessity test of proportionality review, and thus the interference “[in] question struck a fair balance between the applicant footballer’s interest, on the one hand, and the society’s interests in promoting tolerance and mutual respect at sports events as well as combating discrimination through sport on the other hand”.Footnote 40

Similar considerations may be valid for the Simunic case as to its relevance to the universal prohibition of political statements, since the material scope of the statement in question was clearly an incitement to violence and hatred, a variety of expression not normally considered to fall within the ambit of freedom expression under ECHR. By virtue of Article 17, the ECtHR may exclude expressions that are incompatible with the values proclaimed and guaranteed in the Convention from the very protection of freedom expression under Article 10 of the Convention, particularly when these expressions are directed against Convention values, such as inciting hatred or violence. The footballer in question attempted to rely on freedom of expression in order to engage in an activity aimed at the destruction of the very existence of the Convention rights. In fact, the ECtHR in Simunic discussed the applicability of Article 17 as a last resort, and saw no need to recourse to that Article since the complaint of the footballer was considered inadmissible as the interference in question was found legitimate and proportional in any way.Footnote 41 Discriminatory, hateful speech, words and gestures cannot be equalized to mere political statements. And as a last note on Simunic case, the fine as a sanction imposed for the applicant footballer’s words and gestures was based on criminal law, not the disciplinary law of relevant SGBs.Footnote 42

3.1.3 Sedat Doğan v. Turkey, İbrahim Tokmak v. Turkey, and A.M. v. Turkey

Regarding freedom of expression cases before the ECtHR in the context of sport, there are three judgments related to Türkiye delivered on 18 May 2021: Sedat Doğan v. Turkey; Naki et Amed Sportif Faaliyetler Kulübü v. Turkey; and İbrahim Tokmak v. Turkey.Footnote 43 All three originated from the TFF’s disciplinary sanctions against the applicants for statements made to media or shared on social media. These cases have some importance for the general compatibility of lex sportiva with human rights law, as this was the first time that the ECtHR ruled on disciplinary sanctions of an SGB. While the Sedat Doğan and İbrahim Tokmak cases are related to ordinary statements critical of TFF management or involved insults to the memory of a third person, the Naki case concerns purely political statements.Footnote 44 The next section shall focus solely on the Naki case. Before that, the particulars of the other Turkish cases, and their differences with the Naki case, should be explored.

In the Sedat Doğan case, the applicant, who was a member of the board of directors of Galatasaray S.K. (a football club based in in Istanbul) at the time of event, was sanctioned by TFF because of statements he made on a television program about the referral of two footballers to the Professional Football Disciplinary Committee of the TFF because they wore shirts under their official jersey in which a message was displayed paying tribute to Nelson Mandela (who had died the day before the match). In his televised statement, the applicant emphasized the anti-racist content of the shirts and the importance of Mandela to the struggle against racism, criticizing TFF management in general. The Professional Football Disciplinary Committee held that the statements by the applicant were excessive, disproportionate and not necessarily required to be used. The Professional Football Disciplinary Committee also thought that the applicant’s words devalued the image of football, incited violence and disorder, destroyed the peaceful atmosphere in sports, escalated tension which put spectators at risk of violence and protests.

Accordingly, the Professional Football Disciplinary Committee considered that the applicant’s statements constituted unsportsmanlike remarks enshrined in Article 37 of the Football Disciplinary Directive (FDD), and imposed a disciplinary sanction of removing the rights attached to his duties for sixty days, together with a fine of approximately 15,753 euros at the time. The Arbitration Board approved the decision of the Professional Football Disciplinary Committee since it found the applicant’s assertions went beyond the acceptable limits of criticism, and aimed at harming and demeaning the TFF and its managers, although the Board reduced the sanctions to removal of the rights attached to his duties for thirty days, and a fine of approximately 7876 euros. Meanwhile, the applicant made several Tweets accompanied by the hashtag #GoodbyeTFF after the Professional Disciplinary Committee’s first decision imposing the more severe sanctions on him. Using similar reasons, the Professional Disciplinary Committee once again held that the Tweets of the applicant constituted unsportsmanlike statements within the meaning of Article 37 of the Football Disciplinary Directive, and imposed another sanction on him: removing the rights attached to his duties for forty-five days, and a fine of approximately 11,750 euros. The Arbitration Board approved the sanction, adding that the statements of the applicant in his Tweets could not be regarded as negative value judgments or criticism protected by the right to freedom of expression.Footnote 45

When the case was brought before the ECtHR, the Court held that the reasoning adopted by the Professional Football Disciplinary Committee and the Arbitration Board did not indicate anything that showed that they carried out an adequate balancing—in accordance with the criteria developed by the ECtHR—between the applicant’s right to freedom of expression and the right of TFF leadership to have their private lives respected, as well as other interests at stake, such as maintaining order and peace in the football community. According to the Court, the Professional Football Disciplinary Committee and the Arbitration Board simply cited the relevant provisions of the FDD and the statements in question, and provided no reasoning as to whether the interference with the applicant’s right to freedom of expression was justified; particularly considering the context of the applicant’s comments made during the television program—namely, referring to the disciplinary committee of two players from his club for having paid tribute to Nelson Mandela—and the Tweets that he posted in reaction to the disciplinary sanctions that he had received. It was not shown in the decisions of both the Professional Football Disciplinary Committee and the Arbitration Board that the applicant’s statements—both on television and on Twitter—did appear likely to incite supporters to commit acts of violence. The ECtHR concluded that the sanctions imposed on the applicant by the Professional Football Disciplinary Committee and the Arbitration Board were neither relevant nor sufficient; accordingly, the sanctions were deemed unnecessary in a democratic society.Footnote 46

However, the Sedat Doğan case is in fact not directly related to the political statement ban as a universal standard in sports governance, since the statements of the applicant in question did not involve political expressions, despite the fact that his statement on television program concerned the referral of two footballers to the Professional Football Disciplinary Committee for having paid tribute to Mandela through their t-shirts under their official jersey. Even the applicant himself particularly and plainly insisted that displaying anti-racist messages could not be considered political message and that the two footballers did not mean to be political when they displayed their tribute.Footnote 47 This is why the applicant was sanctioned under the ‘unsportsmanlike behavior’ ban (Article 37 of the FDD at the time) and not under the ‘political statement’ ban (Article 42 of the FDD). In fact, the two footballers who paid tribute to Mandela were not sanctioned at all by the Professional Football Disciplinary Committee since it had decided that there was no reason for sanctioning two footballers for wearing t-shirts with slogans commemorating Nelson Mandela following his death.Footnote 48 It would be an exaggeration to connect the Sedat Doğan case with the universal ban on political speech and its underlying principles in sports governance.

The İbrahim Tokmak case is another leading case against Türkiye, concerning the place of freedom of expression in sports governance. The applicant İbrahim Tokmak, a professional football referee, had shared a third-party Facebook post commenting on the death of a columnist in Saudi Arabia, allegedly due to the use of a drug for erectile dysfunction. When sharing the post, he added the text, “He was a real son of a bitch […] Thanks to those who invented Viagra!” which he deleted two hours later. Because of this post, the Professional Football Disciplinary Committee imposed a disciplinary sanction of removing the rights attached to his duties for three months under Article 46 (1) of the FDD and Article 38 (a) of the Central Referee Committee Directive, which was subsequently approved by the Arbitration Board. The TFF Arbitration Board approved the sanction, deeming it relevant and proportionate. The TFF Arbitration Board considered that referees should be careful in their social lives as they represent the TFF on the field, and also because of the public importance of football. The social acts of referees would be attributed to TFF, damaging its reputation, which should be non-political, objective, and impartial. Thus, the referees should act by the fair-play principle, beyond any political concerns. The Arbitration Board considered that there were disrespectful expressions to the deceased columnist’s memory in the applicant’s post, which constituted a disciplinary offense as per Article 38 (a) of the Central Referee Committee Guidelines—against national culture, morals, and sports.Footnote 49 It should be emphasized that the three-month sanction automatically had the effect of the revocation of his license as referee in Turkish football.

The ECtHR first observed that the Professional Disciplinary Committee and the Arbitration Board, by not making any detailed examination apart from mentioning the letter of the applicable internal law, failed to balance the applicant’s freedom of expression and the interests relevant to the TFF. In fact, the Disciplinary Committee and the Arbitration Board did not give detailed reasoning as to the existence of legitimate aims (of prevention of disorder and crime) and the proportionality of the sanction with these legitimate aims, if they existed. The two TFF organs did not note why the appellant’s Facebook post could have impacted the peace in the football arena, especially considering it was removed within two hours; they did not give attention to the nature and severity of the sanction, which revoked the applicant’s referee license and its deterrent effect for the freedom of expression of football professionals. Therefore, the ECtHR concluded that the necessity of the sanction could not be shown by the relevant and sufficient reasons, and the proportionality of the sanction was not justified on the legitimate aims of prevention of disorder and crime by the reasons given by the TFF organs.Footnote 50

As shown from the facts of the case and the judgment of the Court, the İbrahim Tokmak case does not have anything to do with the political speech of sportspersons within the context of the conflict between freedom of expression and the universal ban on political speech in sports governance. The applicant’s post insulted the memory of third parties and had very little political content, despite the fact that deceased third party was known to the public because of his provocative writings. Consequently, the sanction imposed on the applicant was based on a specific directive applicable to referees due to his disrespectful statement that was considered immoral. In fact, the applicant’s statement on social media does not even fall within the ambit of TFF regulations, as it was not posted before, during, or after a match, and was not related to sports activity; the only aspect that might have relevance for the ban on political speech was not been examined by the ECtHR in detail.Footnote 51

The fourth case, A.M. v. Turkey, delivered several months later by the ECtHR, concerns a video recording of the applicant, who is a certified yoga trainer, that was uploaded to YouTube on 6 July 2014. The video recording shows the applicant talking about the number of wives of the Prophet Muhammad and his huge sword, and expressed his surprise as to why people are not surprised by these things. Although YouTube removed the video upon the request of the applicant, the applicant was nevertheless convicted by the Ankara Criminal Court of General Jurisdiction for publicly degrading religious values of a section of the public, and was convicted to one-year’s imprisonment since the video was uploaded several times to YouTube after its removal. Disciplinary proceedings were initiated against the applicant under Articles 16 (breach of national honor) and 17 (discrimination) of the Disciplinary Regulation of the Turkish Federation of Sports for All (THİSF) of 24 January 2017.Footnote 52

The Disciplinary Committee noted that the one-year prescription should begin to run from the date on which the disciplinary body in question became aware of the wrongful act, rather than the date of the commission of the act, and decided to deprive the applicant of his rights for three years, a sanction automatically revoking his license to perform yoga instruction in Turkish sports law. The General Directorate of Sport Arbitration Board upheld the decision of the Disciplinary Committee by making an analogy with the provisions of the Criminal Code in which it is enshrined that no prescription period applies for genocide and crimes against humanity, and consequently jumped to the conclusion that the prescription rule cannot be applied for acts of offending the Prophet Muhammad either. The General Directorate of Sport Arbitration Board thought that offending the Prophet Muhammad should be qualified as an act aimed at humiliating ‘Turkishness’, thus falling within the scope of Articles 16 and 17 of the Disciplinary Regulation of the THİSF (a generic provision that all Turkish sports federations under the auspices of the General Directorate of Sport have in their disciplinary regulations). Ultimately, the General Directorate of Sport Arbitration Board found the disciplinary measures proportionate.Footnote 53

When the case was brought before the ECtHR, the Court focused on the lawfulness of the interference within the terms of the second paragraph of Article 10. In this regard, the ECtHR underlined the fact that the Disciplinary Regulation that constituted the basis for the sanction imposed on the applicant entered into force (5 September 2016) after the applicant’s statements in question were uploaded to YouTube, and the respondent Turkish Government’s failure to submit or show any previous provision capable of sanctioning the same or similar violations in force when the YouTube video was uploaded or any other disciplinary regulation applicable to certified THİSF yoga trainers. Moreover, the Court thought that the prescription analogy of the Arbitration Board was unforeseeable because Article 30 of the Disciplinary Regulation provided no exceptions for the one-year prescription rule, which starts to run from the day of the event. Therefore, the ECtHR found that the interference at issue was not “prescribed by law” within the meaning of Article 10 (2) of the Convention and violated the applicant’s right to freedom of expression.Footnote 54

As seen above, the A.M. v. Turkey case does not relate to political expressions of sportspersons within the normal meaning of the term, since the statements in the uploaded YouTube video have an obvious religious and discriminatory dimension, which could even be considered under the terms of hate speech. Thus, like the Maguire and Simunic cases, the material scope of the statements in question is closer to inciting hatred, a kind of expression not normally considered to fall within the ambit of freedom of expression under ECHR. Discriminatory and hateful words and gestures cannot be equated to mere political statements—even if they may have political context or may be expressed in order to contribute to political debate. While the A.M. case was solved from the angle of lawfulness of the interference with the right to freedom of expression, the ECtHR’s argumentation was strictly limited to the particular implementation of disciplinary laws and principles applied by the Disciplinary Committee of THİSF and General Directorate of Sports Arbitration Board, and did not cover the question of compatibility of the universal ban on political speech with all aspects (lawfulness, legitimate aim and proportionality of the interference, known as the ‘tripartite test’) of freedom of expression under Article 10 of the Convention. Nevertheless, the A.M. case is still important with regard to the concept of lawfulness under sports disciplinary law.

3.2 Naki Case

The Naki case is different from all of the aforementioned cases, as it is the only case in which the sanction imposed on a sportsperson by an SGB under its internal disciplinary regulations directly concerns the universal ban on political speech in sports governance. Hence, it deserves more attention than the others for the purposes of this chapter.

The fourth paragraph of Article 42 of the TFF Professional Football Disciplinary Directive (FDD) dated July 2015 (in force at the time of events) includes a provision under the title “discrimination” that, “It is forbidden to make any and all kinds of ideological propaganda before, during and after the competition. In case of non-compliance with this prohibition, the penalties specified in this article will be applied”.Footnote 55

On 31 January 2016, after his team had won a Ziraat Turkish Cup football match, Mr. Deniz Naki, a football player from Amed Sportif Faaliyetler Kulübü (henceforth referred as to ‘Amedspor’), posted the following message on his personal Facebook account:

Very important victory for us today. Dirty play from the team across the way, but we did [flawlessly]! Happy and proud to be able to be a beacon of hope for our people at this difficult time. [Amed Sportif] has not bowed and never will. We entered the field with our faith in freedom and we won. We have [sowed the seeds] of Freedom and Hope! Thank you to all our politicians, artists, intellectuals, and to our people. They haven't abandoned us. We dedicate and offer this victory to those who have lost their lives or been injured during the persecutions that have [befallen] our land for more than fifty days! Long live freedom.

Since these statements were considered “unsportsmanlike and ideological propaganda” within the meaning of Article 38 and 42 of the Football Disciplinary Directive, Mr. Naki was referred to the TFF Professional Football Disciplinary Committee. On 4 February 2016, The Committee decided that Mr. Naki’s remarks violated the ban on making ideological propaganda and unsportsmanlike statements (i.e., Article 42/4 and Articles 35/4, 38/1(a) and 10/2 of the Football Disciplinary Directive respectively). The Committee believed that sentences and words used by Mr. Naki in his above statement devalued the image of football, incited violence and disorder, destroyed the peaceful atmosphere in sports, escalated tension and threatened spectators with violence and protests. The Committee also held that expressions in this statement were excessive and disproportionate and were not necessarily required to be used; Mr. Naki was sanctioned with a ban for twelve official matches and a fine of 19,500 Turkish liras.

Mr. Naki and Amedspor appealed this decision to the Arbitration Board, maintaining that Mr. Naki had a peaceful aim and in no way intended to incite violence. His remarks were protected by Articles 9 and 10 of the ECHR, and the decision of the Disciplinary Committee did not contain sufficient and relevant reasons. Moreover, Mr. Naki and Amedspor argued that the decision of the Disciplinary Committee did not precisely indicate specific and concrete acts or events caused by Mr. Naki’s statements. They also alleged that the fact that the Committee punished Mr. Naki for two different offenses for just the one message was contrary to Article 7 of the European Convention. However, the Arbitration Board approved the decision of the Committee, simply stating that the contested decision was in accordance with the procedure, the law and the Directives with regard to both the assessment of facts and evidence and legal nature of the statements. As a cliché, the Arbitration Board stated that Mr. Naki’s statements went beyond admissible criticism, that they had no connection with football, and that they aimed to disseminate ideological propaganda which would destroy the peaceful atmosphere of sports in Türkiye.

The ECtHR confined its review strictly to procedural grounds and found that the impugned interference had legal basis in domestic law and pursued legitimate aims. The ECtHR avoided the applicants’ argument that the legal provisions in force (Disciplinary Directive of TFF) did not meet the quality of law requirement, since it reached that the interference was not necessary in terms of proportionality. Likewise, the ECtHR assumed that the interference in question was aimed at legitimate objects under Article 10/2 of the Convention, namely the prevention of disorder and/or crime in the context of Turkish football, despite the fact that the Court admitted that there may be doubt as to the validity of aims pursued by the sanction imposed on Mr. Naki in terms of legitimacy.

Accordingly, the ECtHR only dealt with the proportionality of the impugned interference on the basis of its necessity. The Court looked at the decisions of the Disciplinary Committee and Arbitration Board as to whether they contained relevant and sufficient reasons. In this regard, the Court came to the conclusion that the reasoning of the TFF bodies did not contain sufficient response to the question whether the interference had been justified. Neither the Disciplinary Committee nor the Arbitration Board had specified which parts of the Facebook message were problematic, and they had not examined the circumstances around the publication, namely the victory by Mr. Naki’s team in a football match following violent incidents in the region over the preceding month. Nor had these decisions made it possible to ascertain the potential harm of Mr. Naki’s statement; they did not show that it had encouraged spectators or would likely encourage them to commit acts of violence in the future.Footnote 56

4 Insufficiency of the ECtHR’s Procedural Review Approach in the Naki Case

4.1 Weakness of the Procedural Review

As in the other cases concerning freedom of speech in sports law analyzed above, in the Naki case, the ECtHR confined its review strictly to procedural grounds, focusing on the reasoning of the TFF bodies (especially the Arbitration Board). This approach prevented the ECtHR to deal with the substance of the issue (i.e., the compatibility of a universal ban on political speech with freedom of expression). Procedural reviewFootnote 57 can be seen mainly in relation to decision-making by national courts. If a case reveals a lack of inadequate proportionality or procedural care by national authorities, the ECtHR may evaluate the overall reasonableness of the interference. Here it can be understood that the Court focuses on the inadequate arguments of national authorities, as opposed to its own judicial review process.Footnote 58

Since tests of necessity and fair balance are related to the substance of the review, the ECtHR’s procedural review method, and its increasing implementation in nearly all its cases, has been heavily contested. It has been argued that by replacing substantive review with procedural review as a supplementary type of review, the ECtHR undermines its own standards and leads to window-dressing on the national level.Footnote 59 Even some of the strongest advocates of “shared responsibility” admit that the judicial techniques used in procedural review methods help the Court avoid substantive and moral choices in delicate cases,Footnote 60 issues normally dealt with under tests of necessity and fair balance.

With that said, instead of dealing with the substance of cases and develo** generic principles in hard cases, the Court’s procedural review does have some merits, as it may encourage national authorities to increase the quality of the national decision-making process. In this regard, the ECtHR tends to give more weight to the quality of the national authorities’ decisions. The ECtHR particularly focuses on the national courts, with a view towards democratic process, in determining whether a violation of the Convention exists. Moreover, the Court expects relevant and competent national authorities to apply its case-law standards developed for a particular human rights issue, as if those national authorities act like its agent at the national level. The Court implements procedural review both as a judicial interpretive technique and as a tool of ‘shared responsibility’, related to the interrelationship between the Court and national authorities.Footnote 61

The procedural review appears to have two different guises: (1) procedural obligations for the member states, a procedural rights approach, and (2) procedural review stricto sensu, increasingly taking account of procedural shortcomings at the domestic level when determining whether a right has been violated.Footnote 62 As an international human rights mechanism, the ECtHR has important functions of standard-setting and maintaining constitutional justice as well as individual justice. The Court has the potential to contribute to the development of a more ‘constitutional’ system for the protection of human rights in Europe, as opposed to being a ‘weak’ body that can be criticized for being too intrusive on the national margin of appreciation and thus not recognized at the national level; and in extreme cases, receive threats from states to leave the Convention altogether.Footnote 63

Nevertheless, when there are major deficiencies of national law in the meaning of lawfulness, legitimate aims, and the necessity test, the ECtHR cannot ignore its own standards. This is especially valid when the issue in question relates to blanket bans, a type of interference that leaves no room for balancing exercise.Footnote 64 Procedural review presupposes a national authority/court to exercise balancing between competing interests of the applicant and public or third parties, while using criteria developed by the ECtHR for that matter. The procedural review thus only becomes effective when the ECtHR has already developed criteria for a particular issue under the Convention, and consequently it can be argued that procedural review is meaningful for repetitive cases. But blanket bans never offer any kind of proportionality analysis by their very nature; that is to say, the current practices of procedural review have uncontrolled contents in sports law, and procedural review ought to be approached cautiously so as not to facilitate judicial restraint.

Here one could argue that the ECtHR should use a ‘mixed-type review’, which includes procedural and substantive review at the same time, to address the compatibility of blanket bans with the freedom of expression. Referred to as ‘substance-flavored’ procedural review, a mixed-type review could have the capacity to examine the quality of the human rights scrutiny performed at the domestic level by taking into account the substance of the issue as well.Footnote 65 In the subsequent subsections, the consequences of the ECtHR’s procedural review in the Naki case (and indirectly in other freedom of expression cases concerning sports law) with regard to the universal ban of political speech in sports governance will be analyzed through the lens of ‘mixed-type’ review, revealing inconsistencies of such a universal ban with the right to freedom of expression under Article 10 of the Convention.

4.2 Total Ban on Political Speech Does Not Meet Clarity, Certainty, and Foreseeability Criteria

The first test that the ECtHR applies in order to determine the compatibility of interference with the right to freedom of expression is lawfulness criteria.Footnote 66 This test requires that the interference in question must have a legal basis in domestic law; mere existence of the provisions cannot automatically satisfy the clarity, certainty, and foreseeability criteria.Footnote 67 The ban on ‘ideological statements’ and ‘political propaganda’ regulated according to the regulations of various SGBs does not provide legal clarity, certainty and foreseeability. The nature, scope and context of such a ban on political speech leads to vagueness, and includes a broad spectrum of actions, behaviors, gestures, clothing, slogan, cheering, and statements. There is not a single element in the regulations of SGBs that explicitly details the kind of actions, behaviors, or clothing to be included in the scope of such a ban. For example, the statements that reach the threshold of ‘propaganda’ and, at the same time, fall within the scope of the concept of ‘ideological’, are completely undeterminable. Should statements made before, during, or after a sports competition that do not reach the limit of ‘propaganda’ but could be described as ‘ideological’ fit within the ban? Should a political statement that is not ideological be deemed legitimate under this regulation?

It is not possible to give satisfactory and consistent answers to these questions; it is evident that the national bodies that conducted legal proceedings, imposed, and upheld particular sanctions possessed absolute and arbitrary power of appreciation. The legal proceedings and investigations conducted by the relevant authorities to determine whether a statement violated the ban on ‘ideological’ or ‘political’ propaganda were based on completely vague criteria. SGBs do not have a standardized background of judicial opinions regarding a ban on ideological or political speech. Even if a statement or gesture is deemed political, it is essential to determine whether such a statement or gesture is an emotional statement or a systematic and complete thought within the meaning of standards required by linguistics for reaching “the threshold of being ideological”. Therefore, regulations that contain a ban on political or ideological propaganda would not be applicable in most cases.

It is also worth mentioning that the foreseeability criterion is assessed depending on the status of the persons to whom the text in dispute is addressed. In this context, the need for legal assistance/consultation in order to understand the legislation that forms the basis for the interference does not contravene the legality requirement if it is considered reasonable under the circumstances. This is especially the case in the case of persons whose profession requires them to be very attentive. Such persons may be expected to exercise special care in assessing the risks involved in their professional activities.Footnote 68 Against this background, specific diligence cannot be expected from sportspersons, who generally come from uneducated and poor segments of the societyFootnote 69, in assessing the legal and technical risks which his/her profession includes. Similarly, since hiring a legal counsel for assessing the consequences of their statements and gestures posts cannot be expected from sportspersons, such excessive sanctions enshrined in accordance with disciplinary regulations of SGBs interpreted arbitrarily by internal institutions of SGBs and even by CAS are not foreseeable.

4.3 Interference (Total Ban) Does Not Pursue Legitimate Aims

In order to justify the existence and application of categorical bans on ideological/political speech, SGBs generally offer three aims: (1) protecting the political neutrality of sport (general legitimate aim),Footnote 70 (2) preventing disorder and crime (general legitimate aim), and (3) protecting the relevant sports communities (special legitimate aim).Footnote 71 The validity of these abstract justifications is doubtful since the matter at hand pertains to a total and categorical ban of political speech, not simply a limitation of it. Provisions that contain clauses such as, “making any kind of ideological propaganda before, during or after a competition” (i.e., Article 42 of the TFF FDD), do not pursue a legitimate purpose as the clause suggests an absolute and categorical ban on political speech. The reason for prescribing such provisions in disciplinary regulations is isolating football from politics and propaganda. However, abolishing the freedom of expression of sportspersons or stakeholders in political matters on such grounds cannot be deemed valid. It should be emphasized that this ban is categorical, and the statement or gesture itself is punished without connecting the behavior to any other factor such as damage (or similar elements like violence), regardless of the medium it is expressed through. As there are no restrictions, the right itself is abolished and the essence of the right is infringed, it will not be possible to speak about any legitimate ground for restriction.

Sportspersons, like any other human being, have freedom of speech in political matters, and this right cannot simply be suspended categorically due to the fact that they belong to the sports community.Footnote 72 Falling under the category of ‘being a sportsperson’ is not a valid reason for abolishing their freedom of speech. Sportspersons may have opinions on political matters and seek to express those opinions in a way that they deem appropriate. Here it is essential to distinguish between a categorical ban and merely a limitation of speech. With that said, the followers or fans of successful sportspersons may indeed wonder about their role model’s political opinions; a categorical ban on political speech not only violates the rights of the sportsperson, but also those of their followers. Moreover, statements made via social media should belong completely to the sportsperson, and not to the relevant SGBs. After all, a system respecting human rights cannot exclude freedom of speech for certain categories of people or certain categories of statements/gestures; indeed, all statements (except hate speech variations,Footnote 73 and expressions that incite violence)Footnote 74 are protected under Article 10 ECHR.

As role models, sportspersons should use their right to freedom of political speech in a manner consistent with human rights standards, including responsibilities within the meaning of Article 10 ECHR. Their right may be limited if and when there are valid reasons to do so in accordance with Paragraph 2 of Article 10 ECHR. However, a total and categorical ban does not pursue any legitimate aim. One should note that sportspersons have to accept all rules and procedures imposed upon them by national or international SGBs in order to participate in the relevant sport. This kind of imposition increases the severity of the categorical ban in question.

4.4 Proportionality of Total Ban on Political Speech

The final test that the ECtHR applies as to whether an interference with the right to freedom of expression violates Article 10 ECHR is the proportionality test. If and when the Court finds that the impugned measure has legal basis and pursues legitimate aim, it also examines its proportionality to the aim pursued.Footnote 75 States have positive obligations to prevent violations as well as negative obligations not to violate them. Factors such as the nature of the expression in dispute, its contribution to a public debate, the scope and nature of the limitation, and whether the same legitimate aim can be achieved with less restrictive measures are taken into account. Preventing threats to freedom of expression from individuals is a positive obligation of the state.Footnote 76 Thus, the categorical ban on political/ideological speech in sports is disproportionate as such, and infringes Article 10 ECHR regardless of the nature of the sanction applied, since it can lead to sportspersons refraining from expressing political/ideological opinions, which are protected under Article 10 in the broadest sense.Footnote 77 The only legitimate restriction of political speech is that which incites hatred or violence.Footnote 78

In addition, it is vital for the competent authorities (in this case SGBs) to analyze whether the statement or gesture in question is just a declaration or has a performative aspect. The ECtHR does not consider sanctions proportional when the competent authorities of SGBs have construed a mere declaration/statement as an action. Further, the very assumptions lie within the heart of the political/ideological speech ban, namely “decreasing the value of sport, breaking neutrality of SGBs, promoting violence and disorder in sports and leading to supporters’ movements”,Footnote 79 cannot be considered proportional since they constitute ‘irrebuttable’ presumptions as such. These ‘irrebuttable’ presumptions make the search for a pressing social need requiring a sanction to be imposed on sportspersons when they declare their political and ideological views meaningless, which is a vital criterion for the ECtHR to determine whether the interference in question is proportional in a democratic society.

In order for the sanction to be considered proportional, the relevant SGBs have to give concrete examples of how the statements/gestures in question decrease the value of the sport, break neutrality, promote violence and disorder, and/or lead to unrest among supporters. Imposing automatic or semi-automatic sanctions when the statement/gesture in question is found to be political and/or ideological constitutes “disproportionate and excessive” interference with the right to freedom of expression under the ECHR.Footnote 80 Since the ban is blanket and categorical, there is no context analysis concerning the violated interests legitimizing the restriction (i.e., public order, public security, rights and freedoms of others, national security), and the balance provided between such violated interests and freedom of speech.

5 Implications of ECtHR’s Rulings Concerning Freedom of Expression in Sports

Despite the failure of the ECtHR in its approach and method concerning freedom of expression cases in sports, the Naki ruling may still have important implications for all SGBs regarding the sustainability of a categorical political speech ban. The ECtHR implicitly indicates that sportspersons have freedom of speech in political matters, and that such a right cannot be suspended categorically due to the sole fact that they belong to sports community, or expressed their political views in or around the pitches.

5.1 Rulings Involving Türkiye

An infringement ruling of the ECtHR has two effects: one is subjective and provides redress to the victim of an already detected violation; the other is objective and prevents subsequent violations. In human rights law in general, and particularly European human rights law, it is expected that a judgment or decision in which a violation is detected has an objective impact on all segments of national authorities responsible, with a view to prevent subsequent violations for the same reason. These national authorities include all governmental branches (i.e., legislature, administrative, judiciary) and quasi-governmental agencies (i.e., TFF). In order to reveal the effects of the Court’s rulings on freedom of expression cases against Türkiye in a sports law context, including the Naki case, one should take into account both the subjective and objective components together.

5.1.1 Subjective Effects: Rulings of ECtHR as a Retrial Reason in Turkish Sports Law

The main tool to give effect to the judgments of the ECtHR is the retrial mechanism enshrined in the code of procedures for main fields of law, such as Turkish Procedural Law, Turkish Administrative Law, and Turkish Criminal Procedure Law. Turkish Procedural Law is particularly important for sports law in Türkiye since it is applicable when there is no special provision in the legislation of internal sport regulations proclaimed by the relevant federations. According to Turkish Procedural Law, retrial may be requested against judgments which has the effect of res judicata if and when certain developments happened and certain conditions have been met.Footnote 81 One of the reasons for retrial is the final judgment or decisions of the ECtHR, including amicable settlements and unilateral declarations in which it has been determined that the domestic decision in question was made in violation of the ECHR.Footnote 82 This provision of Turkish Code of Civil Procedure is applicable to the Turkish sports law context in which retrial is also regulated, both for disciplinary proceedings under the heading of “retrial of disciplinary proceedings”,Footnote 83 and final decisions of the Arbitration Board in which it is stated that, “The provisions of the Code of Civil Procedure and the Code of Criminal Procedure regarding the announcement of decisions, correction of factual errors, and retrial are reserved” when it comes to final decisions of the Arbitration Board.Footnote 84

Against this legal background, on 27 May 2021, the TFF Arbitration Board accepted for the first time that the ECtHR’s violation judgments concerning the final decisions of the Arbitration Board had provided a basis for retrialFootnote 85 upon the application of Serkan Akal, who was an applicant before the ECtHR where it was found that the Arbitration Board of TFF was neither independent nor impartial within the meaning of Article 6 ECHR.Footnote 86 This led to a series of retrial claims directed either to the Professional Disciplinary Committee or the Arbitration Board. For example, İbrahim Tokmak, the applicant in the Tokmak case whose right of freedom of expression was violated because of his statements posted on his Facebook account concerning a deceased columnist, also applied for retrial and his claim was granted by the Professional Football Disciplinary Board by a majority of votes on 4 November 2021. The Committee also accepted the ECtHR’s authority over the dispute resolution processes (both procedural and substantive) within the TFF and abolished the previous sanctions by referring to a fundamental right (freedom of expression in the present cases) with these decisions.Footnote 87

With regard to the Naki case, however, no change can be observed in terms of subjective effects of the ECtHR ruling in favour of the applicant footballer, Mr. Naki since he did not apply for retrial.Footnote 88 In fact, Mr. Naki faced considerable difficulties with regard to his professional football life. When his application for infringement of the political statement ban was pending before the ECtHR, TFF imposed another three-and-a-half year ban and a fine of 273,000 Turkish liras on Mr. Naki for a different political statement made which ultimately prevented him to ever play football for any club in Türkiye.Footnote 89 In this second sanction, the Disciplinary Board and the Arbitration Board took into account his first sanction for breaching the ban on political speech (which was the subject matter of the ECtHR ruling in the Naki case discussed in this chapter) as an aggravating factor in expelling him from playing professional football in Türkiye. The applicant was also tried by the criminal court and was found guilty of making propaganda for a terrorist organization, and was sentenced to 18 months and 22 days of imprisonment, which was subsequently adjourned for five years.Footnote 90 Consequently, Mr. Naki was excluded from pursuing professional football and left Türkiye.Footnote 91

One could consider compensation schemes included in the judgment or decisions of the ECtHR as another tool for the subjective effect of ECtHR rulings. In all cases in which a violation of freedom of expression has been found, the ECtHR has also ruled for pecuniary and non-pecuniary compensation and expenses incurred at least before it.Footnote 92 According to the present author’s knowledge, Türkiye has paid those amounts in due time.Footnote 93

Similarly, one can observe that the road opened by the judgments of ECtHR concerning freedom of expression cases against Türkiye in the context of sports disciplinary, is now used by clubs. Fenerbahçe, its president and its managers, and Galatasaray have applied to the ECtHR for the sanctions imposed by the Professional Football Disciplinary Board and approved by the Arbitration Board due to their statements criticizing the TFF and its managers both on television and on social media. Recently, the applications resulted in an amicable settlement with an agreement reached between the applicants and Türkiye by the ECtHR. In the amicable settlement text, Türkiye undertakes to pay compensation (approximately 78,000 euros in total for pecuniary damages, non-pecuniary damages, and expenses).Footnote 94 The compensation and expenses undertaken by the respondent state can therefore be considered another means for the subjective effect of the ECtHR rulings.

5.1.2 Objective Effects of ECtHR Rulings

After the Court’s rulings on the three freedom of expression cases against Türkiye in a sports law context, little change can be observed in terms of objective effects of ECtHR judgments. Following judgments of the ECtHR on 18 May 2021, the Arbitration Board unanimously, having explicitly taken into account the aforementioned judgments, and the concept of freedom of expression, lifted the sanctions imposed on the President of Samsunspor, the managers of Beşiktaş, and the Fenerbahçe Sports Club and its managers for their statements that were considered ‘unsportsmanlike’ under Article 38 of the FDD of 2017 (in force at the material time) by the Professional Disciplinary Committee.Footnote 95 But there is no other example publicly available that displays objective effect of ECtHR rulings in a similar context.

Further, the TFF Executive Board, other responsible national authority in providing objective effect to ECtHR judgments, has not made the necessary changes in the relevant statutes, codes, and instructions with a view to incorporate freedom of expression (and other human rights) concerns into the TFF acquis. On the contrary, the TFF Executive Board, on 10/08/2021 at its 95th meeting, first abolished Article 38 of the FDD (unsportsmanlike statements) and envisaged much more detailed provisions in Article 36 of FDD. Moreover, new Article 38 contains additional limitations on free speech that punish certain statements of sportspersons against referees and other officials.Footnote 96 Although these changes occurred after the ECtHR gave its rulings on Doğan, Naki and Tokmak cases in 18 May 2021, the TFF Executive Board did not take into account human rights concerns when making these changes.

In fact, the Government of Türkiye believes that changes made after Ali Rıza judgment with regard to impartiality and independence of the Arbitration Board also provides enough protection concerning freedom of expression in terms of equality of arms etc.Footnote 97 But in reality, the TFF and the State of Türkiye have not made the necessary structural changes sought by the ECtHR itself in its judgment pertaining to the impartiality and independence of the Arbitration Board. One should remember that the ECtHR, with its semi-pilot decision, decided that the TFF Arbitration Board was not independent and impartial, and invited Türkiye to take the necessary measures since the problem was of a structural/systemic nature.Footnote 98 The Act on TFF numbered 5894, promulgated by the Turkish Grand National Assembly (the legislative organ of Türkiye, GNAT), and the TFF Statute had to change after this semi-pilot judgment, but so far TFF and the State of Türkiye have only made window-dressing reforms, such as making an oath obligatory for the members of the Professional Disciplinary Committee and the Arbitration Board. Even the GNAT recently promulgated a new Act on sports clubs and federations, which also has problematic clauses as to the independence and impartiality of the Arbitration Board from the Executive Board and President of TFF.Footnote 99 However, Committee of Minister of CoE, political organ of CoE in charge with supervising the implementation of the judgments of the ECtHR said nothing about these shortcomings while processing the execution of Doğan, Naki and Tokmak cases, and closed the case accordingly.Footnote 100

Elsewhere, I have suggested that the TFF and its legal boards should internalize, by immediately adding specific clauses into relevant internal regulations, the standards enshrined under the relevant and applicable provisions of the ECHR and ECtHR judgments. In these modified regulations it should be stated that human rights principles, rules, and standards derived from the Turkish Constitution of 1982 and international conventions are part of Turkish substantive law to be applicable to the disputes. I also claimed that the reasoned decisions, which should include sufficient and relevant reasoning and concretization, should be published regularly and made accessible to public.Footnote 101 Unfortunately, despite my prediction about forthcoming ECtHR judgments concerning freedom expression, none of these suggestions have been taken into account, even after ECtHR rulings.

5.2 Effects on General Sports Law and Governance

Objective effects of the ECtHR judgments against Türkiye should also be expanded beyond the territory of Türkiye and reach Europe, since almost all major SGBs are established and operate within European states, and thus fall under the ambit of material, personal and territorial jurisdiction of ECtHR after the Mutu & PechsteinFootnote 102 and SemanyaFootnote 103 judgments, and Platini decision.Footnote 104

But by confining its review strictly to procedural grounds, the ECtHR missed the opportunity to rule the incompatibility of a blanket and categorical ban on political speech in sports with freedom of expression at an abstract level. Unfortunately, the ECtHR did not deal with the issue within its real context and made no remarks, despite the fact that the applicants explicitly raised their objections to the illegality and illegitimacy of blanket and categorical bans within the meaning of Article 10 ECHR. Had the ECtHR explicitly found that a blanket ban on political speech in sports violates freedom of expression, SGBs would have had to revise their policy concerning this categorical ban, as it cannot be considered sustainable under IHRL in general and the ECHR in particular.

However, this chapter argues that the ECtHR’s Naki ruling may still have important implications for all SGBs regarding the sustainability of this categorical political speech ban, since the ECtHR implicitly indicates that sportspersons have the freedom of speech in political matters and that such a right cannot be suspended categorically due to the sole fact that they belong to sports community or expressed their views in or around sports venues. As the above analyses suggests, categorical universal ban on political speech in sports is not in conformity with the right to freedom of expression. In any case, this judgment will provide important support for already pending campaigns and efforts against this categorical ban.

6 Conclusion: Opening Pandora’s Box for Sports Law

The SGBs and the Court of Arbitration for Sport (CAS) are hesitant to apply human rights norms derived from international treaties and constitutions, emphasizing the difference between direct human rights and indirect ones. The CAS has also created principles specific to the realm of sports that may have divergent aspects with human rights law based on the assumption that the realm sports has a specific legal order and dispute resolution mechanisms independent from the state, namely, lex sportiva. But the aforementioned lex sportiva assumption cannot be extended to totally exclude human rights concerns in the field of sports, especially after the recent ECtHR rulings.

Through those rulings, human rights standards infiltrate into sports law thus opening Pandora’s Box for lex sportiva. From the sports law point of view (i.e., the perspective of SGBs), it can be said that by opening Pandora’s Box, human rights standards are unleashed as an evil thing that diminish the specificity of sport governance, the autonomy of SGBs, and their self-validating powers. However, one may interpret the story differently and see that opening the box also unleashes human rights as a positive power, since rights of other stakeholders are systematically ignored in global and domestic sports organization. Therefore, it may be considered that the ethical, normative and structural aspects of human rights provide “hope” for respect for human rights in sports law; and this hope, the infiltration of human rights standards into sports law through ECtHR rulings, may shed light on whether specific sports law principles and rules, such as the strict liability principle and the validity of illegally obtained evidence in disciplinary match fixing proceedings, can be considered sustainable. There is also the hope that human rights standards could provide guidelines to enable the wider compliance of SGBs and the CAS with international human rights law.Footnote 105