The transfer of sports club receivables is inherently a transaction of disposal, and the sports club that has the authority to transfer this receivable and the right of disposal over the receivable has the authority to do so. In other words, the sports club is the one who will perform the transfer as the transferor of the receivable. In terms of those who will transfer the receivable, a limitation has been introduced by the Law on Sports Clubs and Sports Federations No. 7405. According to Article 20/8 of the Law; Sports clubs and sports joint stock companies cannot transfer their rights and receivables to their board members, their spouses and relatives up to the third degree, their employees, shareholders with five percent or more shares, and companies in which the members of the board of directors have five percent or more shares. Since this provision is imperative, it is not legally possible for sports clubs to transfer their receivables to the persons listed in the provision.
In addition to regulating the persons to whom sports clubs cannot transfer their receivables, Law No. 7405 has stipulated a number of special conditions regarding the transfer. According to Article 20/4 of the Law;
Sports clubs and sports joint stock companies;
a) Exceeding twenty-five percent of the gross income realized in the previous accounting period,
b) Income and receivables that will arise or become due after the end of the ordinary term of office of the current board of directors,
can be transferred with the affirmative vote of at least the absolute majority of the total number of members in sports clubs with fewer than ten thousand members, members in sports clubs with more than ten thousand members, and the owners or representatives of shares constituting at least one-third of the capital in sports joint-stock companies, in sports clubs with at least three-fourths of the participants in the meeting, and the owners or representatives of shares constituting at least three-fourths of the capital owned by the shareholders or representatives attending the meeting in sports joint-stock companies. The said transfer rate cannot exceed fifty percent of the gross income realized in the previous accounting period in terms of income and receivables that will arise or become due in the ordinary period after the end of the ordinary term of office of the current board of directors.
As is clearly understood from the provision, a transfer made without meeting the rates and other special conditions set forth by the provision will not be legally valid. In addition, according to the view of dependence on reason and abstractness in the transfer of receivables, if the reason that forms the basis for the transfer of receivables is invalid, whether the transfer of receivables is legally valid or not will vary.[1] If the view of dependence on reason is adopted, if the legal reason that forms the basis for the transfer of receivables is invalid, the transfer of receivables will also be invalid. If the view of abstractness is accepted, even if the legal reason that forms the basis for the transfer of receivables is invalid, the transfer of receivables will continue to exist as a legally valid transaction.
Another important issue in terms of the transfer of receivables by sports clubs is whether the transfer of receivables in question is subject to any form. It should be noted that there is no special regulation foreseen in Law No. 7405 regarding the transfer of receivables of sports clubs. Therefore, the provisions of the Turkish Code of Obligations will apply to the form of the transfer of receivables in question. In this context, the written form requirement stipulated in Article 184 of the Turkish Code of Obligations for the transfer of receivables will also find application in terms of the transfer of receivables of sports clubs.
The form requirement is a validity condition for receivables transfer agreements, and agreements established without this condition will be invalid and will not have any provisions or consequences. The Court of Cassation is of the opinion that agreements contrary to the form are absolutely void.[2] According to the Court of Cassation, agreements that do not have the form of validity are absolutely void, and their invalidity should be taken into consideration ex officio by the judge.
In addition, international regulations that sports clubs are members of may also foresee transfer prohibitions. In this case, transfers made despite the transfer prohibition are null and void. For example; ‘‘According to Article 60 of the financial provisions in each of the regulations named “Regulations of the UEFA Champions League”, “Regulations of the UEFA Europa League” and “Regulations of the UEFA Europa Conference League” of UEFA, a club shall not benefit from its participation in a tournament to any third party unless authorized in writing by UEFA.’’[3] According to Article 13 of the Statute of the Turkish Football Federation; Football clubs that are members of the Turkish Football Federation are obliged to comply with this rule. Therefore, football clubs cannot transfer UEFA tournament revenues to third parties without the written approval of UEFA.
It should be noted that; Law No. 7405 entered into force on 26.04.2022 and will be implemented as of the date of entry into force in accordance with Article 59 of the Law. More clearly, Law No. 7405 will not be applicable to the receivables transferred by sports clubs before 26.04.2022.
If it is necessary to mention the sanction to be applied to the receivables transfer agreements concluded in violation of the mandatory provisions of the Law (transfer of receivables to persons exceeding the limits specified in the Law or who are prohibited from transfer by the Law), there is no regulation in Law No. 7405 on this issue. Therefore, Article 27 of the Turkish Code of Obligations, which is a general provision, will be applicable. As stated above, the contracts in question are subject to the sanction of absolute invalidity and the judge will take this situation into consideration ex officio. However, there is also a view in the doctrine that claims that the obligations exceeding the limits stipulated in the law will be valid for the part up to the maximum limit stipulated in the law. According to this view, the contract will be kept in force by applying the maximum limit stipulated in the law. The parts exceeding the maximum limit will be deemed void.
If the transfer of the receivables is void, different situations may arise in terms of the debtor’s fulfillment of his/her debt. In the event that a new creditor requests the debtor to perform the debt based on an invalid receivable assignment, the issue of to whom the debtor will perform the debt and be relieved of his/her debt is one of these situations. It should be stated that if the debtor does not know that the assignment of the receivable is invalid, it is certain that he/she will be relieved of his/her debt by performing his/her debt to the new creditor. Another situation is whether the debtor can be relieved of his/her debt by performing his/her debt to the previous creditor if the debtor is not informed of the assignment of the receivable. In this case, the debtor who is not notified of the assignment of the receivable is relieved of his/her debt by performing the debt to the previous creditor. In addition, in the event of a dispute regarding the creditor of the debt, the debtor may terminate the debt by avoiding performance and depositing the debt in a place determined by the court.
REFERENCE
Doğan, B. F., & Topcuoğlu, S. (2023). SPOR KULÜBÜ ALACAKLARININ DEVRİ. Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi, 27(3), 33-60.
Law No. 7405 on Sports Clubs and Sports Federations and other related legislation
[1] Doğan, B. F., & Topcuoğlu, S. (2023). SPOR KULÜBÜ ALACAKLARININ DEVRİ. Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi, 27(3), 33-60.
[2] Doğan, B. F., & Topcuoğlu, S. (2023). SPOR KULÜBÜ ALACAKLARININ DEVRİ. Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi, 27(3), 33-60.
[3] Doğan, B. F., & Topcuoğlu, S. (2023). SPOR KULÜBÜ ALACAKLARININ DEVRİ. Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi, 27(3), 33-60.