In Article 2 titled Definitions of Regulations on Professional Football Players' Status and Transfers ("RPFPST") issued by the Turkish Football Federation ("TFF"), the transfer of a player is defined as the first time the player signs a professional contract, or signs a contract with a club other than his current club, or temporarily changes his club. Within the scope of this paper, contracts concluded for the temporary transfers of the players, famously known as 'loaned,' by the public, which are a type of players' transfers under the aforementioned provision of the RPFPST, will be examined.
The need of a player to be transferred to another team temporarily may arise in some situations where it is not possible for a professional football player to temporarily play football at the club with which he signed a professional football player contract, for various reasons (except in the case of injury). In such cases, Article 15 of RPFPST titled Temporary Transfer comes into question.
Purpose and Definition of Temporary Transfer
In temporary transfers, the club that has made a professional football player contract with the player, and temporarily gives this player to another club. It may be possible for the player to play in another club, temporarily, for many reasons, such as the permanent transfer of the player by a third club may not be possible due to the economic conditions of this club, failure of the football player to agree with the coaching staff and/or management of the club with which he has signed a contract, or is unable to take part with the current team, or to ensure that young football players gain experience by taking part in different team squads.
A temporary transfer is a time-limited transfer that allows a player, whose contract with his club continue, to be transferred to a club other than his contracted club for a certain period of time and for a certain fee, and allows him to return to his original club at the end of this period without any transfer fee.1
Elements of Temporary Transfer Contract
Article 15 (1) of the RPFPST stipulates that a professional football player may only be transferred temporarily from his original club to another club by a written contract to be concluded between himself and the relevant club. The TFF includes the mandatory elements that must be included in the standard temporary transfer contract that it requires to be signed by the parties and submitted to it.2
According to Article 15 (2) of the RPFPST, the minimum duration of the temporary transfer contract is the time between two transfer and registration periods. According to this provision, a temporary transfer contract can be as short as a "half season" in public terms. Article 15 of the RPFPST does not contain rules on the maximum duration of a temporary transfer contract. However, it is stated that the maximum duration of a temporary transfer contract should be accepted as the remaining period of the professional football player contract between the player and the original club.3
In practice, it is common for the original club that the football player signed a professional football player contract with to receive a fee in return for the temporary transfer of the player. However, the original club is not obliged to receive a fee for a temporary transfer; it can also be made free of charge. As well, at the end of the temporary transfer period, the original club has its player returned without paying any transfer fee.
The compulsory element of fee in the temporary transfer agreement is the fee that the player will receive. Unless otherwise indicated, wage payments to be made to the player during the temporary transfer period are made by the temporary club, and this fee must be at least the amount of minimum wage. In addition to minimum wage, it may be freely decided for fees to be paid to the player, such as attendance fees per match, monthly salary, and bonuses for these fees must also be specified in the contract. During the player's employment in the temporary club, the obligation to pay both social security and private insurance premiums is borne by the temporary club.4
In the Article titled 'Special Provisions of the Standard Temporary Transfer Contract,' prepared by the TFF, a section has been given for the parties to freely regulate the temporary transfer relationship between them. It should be emphasized that pursuant to Article 15(5) of the RPFPST, the parties cannot make any provisions limiting the sportive competition and the competitions in which the player may participate.
Legal Characteristic of Temporary Transfer Contract
With a temporary transfer contract, the player is bound to the management of his temporary club during his time in the temporary club, and receives all rights, such as wages, from the temporary club. In other words, the original club transfers its management rights to the temporary club during the period of the contract. Meanwhile, the temporary club fulfills the contractual obligations to the player from the date of signing the contract of the temporary transfer contract. At the end of the temporary transfer contract, the player returns to his original club. In fact, the professional football player contract between the original club and the player is temporarily frozen whilst a temporary transfer contract is in place, because during this period, the aforementioned contract is not exercised. The player fulfills his obligations to the temporary club, not against the original club. As a matter of fact, the temporary club is the party that owes the debt to the player during this period.
Under these circumstances, temporary transfer contracts are likened to a temporary business relationship as regulated in Article 7 of the Turkish Labor Law. A temporary employment relationship occurs when an employee is temporarily transferred to another employer through a private employment agency, or within the holding or to another employer, on the condition that he is employed in another office affiliated with the same group of companies, or in jobs similar to his current position to fulfill his duty. In the temporary employment relationship, although the primary employment contract continues, the employee is obliged to fulfill the work undertaken according to this contract with the new employer. The employer with whom a temporary business relationship is established has the right to give instructions to the employee. In addition, the duty of paying wages by the primary employer continues in the temporary business relationship.5
In the temporary employment relationship, which is included in Turkish Labor Law, the principal employer only shares the management right with the temporary employer, and the employee is obliged to fulfill his obligation to work for a certain period of time with the temporary employer. The duty to pay wages by the primary employer continues. In temporary transfers, the player is only bound to the management of the temporary club and, during this period, all rights, such as wages and insurance, are obtained from the temporary club. The original club does not have any responsibility to pay wages, and the player is not bound by the management of his original club during his temporary transfer. Therefore, although temporary transfer and temporary employment contracts have similar characteristics due to the temporary change of the employer side of the service contract, they are completely different in terms of their legal characteristics.
The temporary transfer contract is also compared with the assignment of claims regulated in Article 183 and the Turkish Code of Obligations ("TCO"), since the player allocates his activity of playing football to his temporary club for a limited period of time according to the temporary transfer contract. However, as a rule, the consent of the debtor is not required for the assignment of claims; in addition, in the provisions of the assignment of claims in the TCO, the subject of debt is not performing a job. In a temporary transfer, the consent of the player is required for the validity of the transfer relationship between the original club, the temporary club and the player, and there is a continuing service relationship between the player and the temporary club for a certain period of time. Therefore, it is not correct to define the temporary transfer relationship as an assignment of claims.
In the doctrine, it is stated that the temporary transfer contract is a legal relationship that is similar to a loan business relationship, but is separated from the loan business at some points and has a unique structure.6
A temporary transfer is a type of transfer that allows a professional football player who cannot play football for various reasons with his club, with which he has signed a professional football player contract, to continue his football activities through a temporary transfer to another club for a certain period of time. Thanks to the temporary transfer relationship, the player continues his football activity, the original club earns a fee from this transfer, and the temporary club provides sportive benefits for the football team for a certain period of time.
1 Petek, Hasan: Profesyonel Futbolcu Sözlesmesi, 2002, p. 307.
2 TFF Standard Temporary Transfer Agreement: https://www.tff.org/Resources/TFF/Documents/FORMLAR-SOZLESMELER/2018-2019/Gecici-Transfer-Sozlesmesi.doc
3 Cem, Çagri: Profesyonel Futbolcu Transfer Sözlesmesi, 2012, p. 37.
4 Ertas, Seref; Petek, Hasan: Spor Hukuku, p. 488, fn. 669.
5 Article 7 of the Turkish Labor Law.
6 Petek, p. 310.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.