See no evil, hear no evil, speak no evil ... and it will all disappear: the biggest corruption scandal in Turkish football's history.

• Author: Yazicioglu, Alara E.

1. Introduction

   "[Sport] brings out the noblest human qualities (good sportsmanship, the quest for excellence, a sense of community), and the basest (chicanery and mob violence)". (1) Unfortunately, since 2011, Turkish football has been dealing with the basest. Throughout the investigation started by Turkish police in the summer of 2011, over 90 individuals, including football players, trainers, club managers and club presidents, were arrested/interrogated and most of them stood trial. They were suspected of different crimes such as match fixing, bribery, incentive premium, establishing/participating to a criminal organization, extortion and threat.

   The importance of the affair relies mostly within the involvement of the three major sports clubs taking part in the Turkish premier football league namely Trabzonspor SK, Besiktas JK and Fenerbahce SK. As a result of investigations and proceedings before the Criminal Court, which rendered its decision (2) on 2 July 2012 (3), Sadri Sener and Nevzat Sakar (4) have been acquitted, diminishing thereby doubts about Trabzonspor. With regards to Besiktas JK, it was proven that during the finale of the Ziraat Turkish Cup (5), Tayfur Havutcu (6), the manager of the club at date, offered money to two footballers (7) of the rival club (8) and promised to transfer them at the end of the season. All the individuals that took part in the process were found guilty by the Court. (9) It is important to underline that, Besiktas returned the Cup to Turkish Football Federation (TFF) immediately after the arrest of Tayfur Havutcu, without waiting for the decisions of the Criminal Court and TFF. Regarding Fenerbahce, league champion of the 2010-2011 season, the extent of participation in corruption revealed to be significantly important. It has been proven that match-fixing and offers of incentive premiums were made during 13 games of the season. Operations were led by Aziz Yildirim, the president of Fenerbahce, Ilhan Eksioglu and Sekip Mosturoglu, board members of the Club. It is important to note that according to the Criminal Court's decision, a criminal organization has been formed under the leadership of Aziz Yildirim. (10) Given the importance of the Club's involvement, this article mainly focuses on Fenerbahce SK.

   As it can be deducted, the affair has two major legal aspects: criminal law and sports law (disciplinary proceedings). This contribution aims to critically analyze the interesting sports law questions arising from the affair in the light of TFF's, and UEFA's regulations. However, reference will be frequently made to the Criminal Court's decision in order to establish the facts and to demonstrate the gravity of the situation.

2. Facts (11)

   1. Affected games

      2010-2011 season comprised thirty-four weeks. Match-fixing and incentive premium initiatives of the criminal organization led by Aziz Yildirim focused on the second half of the league. (12) Out of seventeen games that took place during the second half, thirteen were proven to be corrupted. (13) Seven of the games played by Fenerbahce were affected, namely Fenerbahce-Kasimpasa (26.02.2011), Genclerbirligi-Fenerbahce (07.03.2011), Eskisehirspor-Fenerbahce (09.04.2011), Fenerbahce-IBB Spor (01.05.2011), Karabukspor-Fenerbahce (08.05.2011), Fenerbahce-Ankaragucu (15.05.2011) and Sivasspor-Fenerbahce (22.05.2011). Incentive premiums were also offered by the criminal organization to the rivals of Trabzonspor and Bursaspor, closest teams to the championship. Six of the games were thereby affected, namely Manisaspor-Trabzonspor (21.02.2011), Bursaspor-IBB Spor (06.03.2011), Genclerbirligi-Trab-zonspor (20.03.2011), Trabzonspor-Bursaspor (17.04.2011), Eskisehirspor-Trabzonspor (22.04.2011) and Trabzonspor-IBB Spor (15.05.2011).

   2. Benefits obtained by corruption

      "Sport is now big business accounting more than 3% of world trade." (14) Sport constitutes an important source of income also in Turkey with a total value of 820 million dollars, which represents approximately 4% of the European Football industry. (15) Fenerbahce, as one of the biggest clubs in Turkey, gets hold of a considerable share of this significant amount. (16) Aziz Yildirim, the president of Fenerbahce since 1998, certainly aimed to keep his position that gave him important privileges. In accordance with that intention, he promised three championships in a row at the beginning of the season 2010-2011. As Fenerbahce obtained its last championship in 2006-2007 season, discontentment within the club and among supporters was growing day by day and threatening thereby the continuity of his presidency. Hence the importance for him to keep the promise he made in the beginning of the 2010-2011 season. (17)

      Given the high number of affected games, it is beyond doubt that the criminal organization's operations helped Fenerbahce become the 2010-2011 champion to a great extent. As a result of its championship, Fenerbahce obtained, in addition to the prize money allocated by TFF, 18 million Turkish Liras (TL) (18) as champion's share, 21 million TL (19) in accordance with the results obtained within the season (26 victories, 4 draws), 15 million TL (20) as championship prize and 16 million TL (21) for its entitlement to participate directly in the Champions League. Moreover, the club was also entitled to the biggest share of the broad-casting income. In Turkey, the income deriving from broadcasting rights is distributed according to league position. The top three clubs are entitled to 40% of the income while the other clubs share the remaining 60%. (22) Consequently, the sum accorded to Fenerbahce, precisely 64.1 (23) million TL, was considerably superior to amounts obtained by other clubs. For example, Trabzonspor, which completed the league in second position, was granted 49.875 million TL (24). (25)

   3. Amendments made to the applicable law

      Another important, and highly controversial, facet of the facts is certainly the amendment made to the applicable criminal law during the procedures. (26) A new Act on the Prevention of Violence and Disorder in Sport had entered into force on 14 April 2011. (27) It had replaced the Act no 5149, entered into force in 2004, with the purpose of regulating better and penalizing more severely the offences taking place before, during and after a sports competition. (28) Most importantly, the new act penalizes chicanery and incentive premiums, which was not the case for the Act no 5149. (29) However, after the arrests related to sports corruption and before the establishment of the bill of indictment, the relevant article (30) of the new Act was modified. (31) As per the modification, the initial imprisonment penalty from five to twelve years was diminished to one to three years. (32) At the same time, the scope of aggravating circumstances was extended. Before the amendment, the sentence was to be increased by one-half, if the offence had been committed by "the president of the sports club or by members of the board of directors". (33) After the modification, the circle of concerned persons was enlarged to "the chairman or members of board of directors and technical or administrative managers of federations, sports clubs and legal persons operating in the sports field, as well as managers or representatives of clubs and players". (34)

      The amendments were not to the advantage of all of the defendants. However, this does not have a significant importance as according to Article 7 (2) of the Turkish Criminal Code (35), if the provisions of the law in force when the crime was committed are different than the provisions subsequently entered into force, the provisions that are in favour of the defendant apply. Thus, the modification was mostly beneficial to the defendants, in some cases to a great extent. (36)

3. Analysis of the Disciplinary Proceedings

   1. Proceedings before TFF

      i. Close relationship between Aziz Yildirim and TFF

      The Criminal Court's decision also demonstrates the significant influence of Aziz Yildirim over the TFF at the time of the events. Conforming to the facts stated in the decision, administrators of the TFF were intimidated by the president of Fenerbahce. (37) More importantly, as per the report established by the Department of Associations of the Ministry of the Interior (38), Mahmut Ozgener, the president of TFF at date, had provided Aziz Yildirim with support "in all matters". (39) According to the report, illegal payments -which were later used in corruption operations- were made to Fenerbahce, decisions of Professional Football Disciplinary Board (PFDB) (40) and TFF Board of Arbitration (41) were manipulated in the criminal organization's favor and some referees were intimidated during half-times. (42)

      On 14 June 2011, Mahmut Ozgener declared that he would not become a candidate for presidency during the following election, which took place on 29 June 2011. Therefore, his presidency ended before the beginning of the corruption scandal, 3 July 2011. He was replaced by Mehmet Ali Aydinlar, an ex-Fenerbahce vice-president and the main sponsor of Fenerbahce's volleyball team.

      ii. Steps taken during the presidency of Mehmet Ali Aydinlar

      On 11 July 2011, Mehmet Ali Aydinlar stated that TFF did not have any concrete evidence on corruption and therefore they would wait until the indictment is drawn up in order to take action. (43) Accordingly, the 2010-2011 league result was approved and communicated to the UEFA.

      However, the football federation's investigation began earlier than planned as the Prosecutor's Office in charge of the corruption case communicated the relevant documents and information to TFF. (44) Respectively, the case was remitted to TFF's Ethics Committee (45). On 26 July 2011, Mehmet Ali Aydinlar declared that due to the corruption suspicions and the ongoing investigation the league would be delayed a month. (46) On 15 August 2011, after the completion of the Ethics Committee's report (47), TFF's...