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Yearbook of International Sports Arbitration 2015 pp 111–152Cite as

The Basketball Arbitral Tribunal—An Overview of Its Process and Decisions

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Abstract

In the course of its almost ten years of existence, the Basketball Arbitral Tribunal has grown from an innovative if not experimental mechanism to resolve contractual disputes quickly and cost-effectively into a well-established international sports tribunal. BAT proceedings put the flexibility of international arbitration under the Swiss lex arbitri to the users’ best advantage, while the tribunal’s awards, mostly decided ex aequo et bono, have gradually built a jurisprudence distilling equitable principles in relation to recurrent issues in the context of professional sports contracts.

The author would like to express her gratitude to Mr. Andreas Zagklis and Dr. Heiner Kahlert (then both) of the BAT Secretariat for their very helpful comments on a first draft of this article and for their answers to various queries on the workings of the tribunal. All mistakes or omissions are the author’s alone.

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Notes

  1. 1.

    See Article 3-289, under the heading Basketball Arbitral Tribunal (BAT), in Book 3, Chapter VII of the FIBA Internal Regulations (FIBA IR), further providing that FIBA, its Zones or their respective divisions cannot be directly involved in the disputes brought before the BAT. The name change (from FAT to BAT) was implemented on 1 April 2011, to better reflect the tribunal’s independence from FIBA. Article 3-296 FIBA IR also stipulates that while the BAT’s finances are guaranteed by FIBA, the tribunal is to be self-financing. For a comprehensive study of FIBA’s dispute resolution mechanisms dealing with transfer and nationality disputes, disciplinary disputes, ad hoc (and technical) disputes as well as the BAT, see Zagklis 2013. On the FAT/BAT more specifically, see in particular Martens 2011 and Zagklis 2015b.

  2. 2.

    See Article 3-295 FIBA IR.

  3. 3.

    See Articles 3-297 and 3-298 FIBA IR on the roles of the BAT President and Vice-President, and Article 3-299 on the duties of the BAT President.

  4. 4.

    The full list of BAT members and their profiles can be found at http://www.fiba.com/en/Module/c9dad82f-01af-45e0-bb85-ee4cf50235b4/4b2ba952-fe27-4a63-9f23-bc02e18215d8. Accessed 1 March 2016. The current President of BAT is Prof. Richard McLaren, a Canadian Barrister & Solicitor based in London, Canada, a member of the Faculty of Law, Western University Canada and CAS arbitrator with longstanding experience in sports law and dispute resolution. The six arbitrators currently on the BAT list are: Dr. Quentin Byrne-Sutton (Switzerland) (soon to be replaced by Ms Brianna Quinn, Switzerland & Australia); Prof. Dr. Ulrich Haas (Germany); Dr. Stephan Netzle (Switzerland); Raj Parker (England); Klaus Reichert, SC (Ireland); Annett Rombach (Germany). According to Article 3-299(b), BAT arbitrators are appointed by the BAT President “for a renewable term of two (2) years and shall have legal training and experience with regard to sport”.

  5. 5.

    The BAT Arbitration Rules are available at http://www.fiba.com/en/Module/c9dad82f-01af-45e0-bb85-ee4cf50235b4/3109bb9c-53bc-4cbc-99a8-a67e9f861277. Accessed 1 March 2016. According to Article 18.1 BAT Rules, the current version is applicable “to Requests for Arbitration received by the BAT Secretariat or by FIBA on or after [1 May 2014]”. The previous versions of the FAT/BAT Rules were issued in 2007, 2009, 2010, 2011 and 2012.

  6. 6.

    Article 176(1) PILA.

  7. 7.

    Articles 3-295 FIBA IR and 2.2 BAT Rules. The same wording is included in the BAT model clause as set out in Sect. 6.3 of the Preamble in the BAT Rules. This type of clause should satisfy the requirements of Article 353(2) CCP, which enables the parties to a domestic arbitration into opt out of the CCP regime and into Chap. 12 as the lex arbitri. That said, a BAT arbitration would generally be international within the meaning of Article 176(1) PILA in any event, at least so it would seem based on the actual experience so far, given that apparently there has been no BAT case involving Swiss-domiciled or Swiss-resident parties on either side, let alone on both (this can be verified the BAT website, where awards can be searched by the seat or domicile of the respondent, at http://www.fiba.com/bat/awards).

  8. 8.

    Zagklis 2015b, p. 291. As reported ibid., in footnote 3, the BAT was the brainchild of Dirk-Reiner Martens, longstanding external counsel to FIBA and a well-known sports lawyer and arbitrator.

  9. 9.

    As noted by Zagklis 2015b, p. 297, the BAT is now the second busiest sports tribunal after the CAS.

  10. 10.

    See, e.g., Rosen 2011; Martens 2011, p. 57.

  11. 11.

    Rosen 2011, quoting agent Brad Ames.

  12. 12.

    Statistics available at http://www.fiba.com/en/Module/c9dad82f-01af-45e0-bb85-ee4cf50235b4/984a5df1-a490-49a5-8aa4-86d985e703d9. Accessed 1 March 2016.

  13. 13.

    See http://coia.org/. Accessed 1 March 2016.

  14. 14.

    For a list of the studies known to the author, please see the bibliographical references at the end of this article.

  15. 15.

    The BAT Arbitration Rules currently in force are the 1st May 2014 version. They can be found on the BAT website at https://www.fiba.com/downloads/v3_expe/bat/BATArbitrationRules1May2014.PDF. Accessed 1st March 2016.

  16. 16.

    BAT Rules, Preamble 0.2 and Article 8.1.

  17. 17.

    BAT Rules, Preamble 0.2 and Article 7.

  18. 18.

    BAT Rules, Preamble 0.2, and Article 12.1.

  19. 19.

    BAT Rules, Preamble 0.2 and Article 13.1.

  20. 20.

    Article 4 provides that: “1. The working language of the BAT shall be English. 2. Documents provided to BAT in a language other than English must be accompanied by a certified translation unless the Arbitrator decides otherwise. 3. The Arbitrator may decide, after consultation with the parties, to hold the proceedings in another language.” .

  21. 21.

    Article 6.3 BAT Rules.

  22. 22.

    Preamble 0.2, and Article 15.1 BAT Rules.

  23. 23.

    Article 16.3 BAT Rules.

  24. 24.

    Article 17.4 BAT Rules.

  25. 25.

    Article 16.2.1(a) BAT Rules.

  26. 26.

    Article 16.2.1(b) BAT Rules.

  27. 27.

    For more details on these figures, see Zagklis 2015b, pp. 296–297.

  28. 28.

    For a helpful overview of the main steps in a standard BAT arbitration, see the “Guide to Arbitration Procedures before the Basketball Arbitral Tribunal”, available on the BAT website at http://www.fiba.com/en/Module/c9dad82f-01af-45e0-bb85-ee4cf50235b4/53eab3df-af21-4043-a4a6-5a264334ce65. Accessed 1 March 2016.

  29. 29.

    Counterclaims are also subject to payment of a non-reimbursable handling fee. See footnote 39 below.

  30. 30.

    Article 17.1 BAT Rules. As currently set out in the BAT Rules, the non-reimbursable handling fee ranges between a minimum of € 1500 (for cases where the amount in dispute is less than € 30,000) and a maximum of € 7000 (for cases involving an amount in dispute above € 1,000,000).

  31. 31.

    Article 9.2 BAT Rules.

  32. 32.

    Available at http://www.fiba.com/bat/process. Accessed 1 March 2016.

  33. 33.

    For the sake of simplicity, the singular (claimant, respondent, party etc.) will be used throughout this paper, it being understood that BAT proceedings can, and relatively often do, involve multiple parties on one or both sides.

  34. 34.

    Article 11.1 BAT Rules.

  35. 35.

    As provided in Article 8.1 BAT Rules, appointments are made on a rotational basis. See footnote 4 above on the current composition of the (closed) BAT list of arbitrators.

  36. 36.

    Article 8.3 further provides that challenges are decided by the BAT President after having heard all the parties and the arbitrator. For an example where this procedure was followed, see BAT 0464/13, Manakian v. FC Bayern München e.V., Award of 4 August 2014, paras 3–9.

  37. 37.

    Article 9.3.1 BAT Rules, which also provides that the advance on costs, as fixed by the Secretariat taking into account the amount in dispute and the complexity of the case, may be further adjusted in the course of the proceedings (see, e.g., BAT 0468/13, Matic v. Club Sportif Municipal Targoviste, Award of 4 February 2015, para 29).

  38. 38.

    Article 11.2 BAT Rules.

  39. 39.

    Article 11.2 BAT Rules. It should also be noted that if the answer contains a counterclaim, the corresponding handling fee will have to be paid by the respondent (Article 17.1 BAT Rules). Failing that payment, the counterclaim will be deemed withdrawn (see, e.g., BAT 0702/15, Club Sportif Sagesse Beirut v. Kahzzouh, Award of 7 October 2015, paras 26–27).

  40. 40.

    SFT decision of 26 November 1980, Semaine Judiciaire 1982, p. 613, at p. 621. See also Kaufmann-Kohler and Rigozzi 2015, paras 6.18–6.20 with further references.

  41. 41.

    For instance, among the published awards issued in 2015, the author has noted that the following were rendered by default: BAT 0712/15, Hamilton v. Saski Baskonia SAD, Award of 6 October 2015, para 17 and passim; BAT 0651/15, Macvan v. Galatasaray Spor Kulübü Dernegi, Award of 27 May 2015, para 5 and passim; BAT 0566/14, Caracter v. Sichuan Jingqiang Blue Whale Pro Basketball Club, Award of 27 January 2015, para 17 and passim. See also BAT 0664/15, Funiciello v. El Jaish Sports Club and Taggard, Award (previously issued without reasons) of 6 December 2015, paras 8, 9 and 11, 21, 25 and passim, recording that both respondents had failed to participate in the proceedings having led to the award without reasons. In BAT 0539/14, Dragovic v. BC Spartak St. Petersburg, Award of 12 October 2015, para 12 et seq., the respondent ceased to participate after filing its answer to the request for arbitration.

  42. 42.

    SFT 120 II 155, 162, adding (at 165) that subject to good faith principles, the respondent can still intervene and challenge the arbitrator’s jurisdiction at any later stage (until the rendering of the award). See also SFT 4A_682/2012, decision of 20 June 2013, para 4.4.2.1 with references. Ex multis, BAT 0651/15, Macvan v. Galatasaray Spor Kulübü Dernegi, para 15.

  43. 43.

    Ex multis, see BAT 0651/15, Macvan v. Galatasaray, paras 24–25.

  44. 44.

    The same is true if the default occurs not from the outset, but later in the proceedings, e.g. after the answer has been filed (see, e.g., BAT 0539/14, Dragovic v. BC Spartak St Petersburg, para 38 and passim).

  45. 45.

    Article 9.3 BAT Rules.

  46. 46.

    Article 9.3.4 BAT Rules.

  47. 47.

    Article 12.1 BAT Rules (see also Article 3.1, providing in general terms that “the Arbitrator shall determine in his/her sole discretion the procedure in the proceedings before him/her”).

  48. 48.

    Article 12.2 BAT Rules. Note that Article 14.2 BAT Rules, enabling the arbitrator to proceed and deliver the award in proceedings by default, also applies “if any party fails to abide by an order of procedure or by directions given by the [a]rbitrator”.

  49. 49.

    For a few recent examples, see, e.g., BAT 0630/14, Kaukenas v. BC Zalgiris Kaunas, Award of 1 October 2015, paras 27–34; BAT 0468/13, Matic v. Club Sportiv Municipal Targoviste, Award of 4 February 2015, paras 20–25; BAT 0477/13, Denson & Goldansky v. Ramat Hasharon BC, Award of 3 February 2015, para 8.

  50. 50.

    Article 12.1 BAT Rules. See however, for instance, BAT 0468/13, Matic v. Club Sportiv Municipal Targoviste, paras 27–30 and 59, where, given the specific circumstances, the arbitrator allowed the filing of unrequested submissions, noting that both parties had consecutively filed numerous documents, some of which unsolicited, but neither had complained of such submissions, and that “the principle of due process does not allow the arbitrator to disregard the parties’ submissions easily”.

  51. 51.

    On these requirements in Swiss-seated international arbitrations, see, e.g., Kaufmann-Kohler and Rigozzi 2015, paras 6.21–6.38, and Berger and Kellerhals 2015, paras 1115–1131. Note in addition that, as stated in Article 3.2 BAT Rules, the parties’ due process rights must be exercised in good faith: if a party fails to raise “without undue delay [an] objection to a failure to comply with any provision of these Rules, or any other rules applicable to the proceedings, any direction given by the Arbitrator, or the conduct of the proceedings, [it] shall be deemed to have waived its right to object in that respect”.

  52. 52.

    See, e.g., Kaufmann-Kohler and Rigozzi 2015, para 1.28.

  53. 53.

    Ibid., paras 1.29–1.30; Berger and Kellerhals 2015, para 171.

  54. 54.

    See, e.g., FAT 0092/10, Ronci & Coelho v. WBC Mizo Pecs, Award of 15 October 2010, paras 26–27; FAT 0069/09, Ivezic & Draskicevic v. Basketball Club Pecsi Noi Kosariabda Kft, Award of 27 May 2010, para 24.

  55. 55.

    See, e.g., BAT 0468/13, Matic v. Club Sportiv Municipal Targoviste, para 34; BAT 0421/13 Berzins & Bill A. Duffy International Inc, db BDA Sports Management v. BC VEF Riga, Award of 21 February 2014, para 21; BAT 0154/11, Gloger & Bill A. Duffy International, Inc. v. Club C.B. Atapuerca, Award of 17 August 2011, paras 24–27.

  56. 56.

    See Sect. 6.2.3.

  57. 57.

    Article 10.1 BAT Rules provides that “[u]pon request, the [a]rbitrator may make an order for provisional and conservatory measures. In cases of extreme urgency, such orders can be made ex parte.” Although this point is still debated in comparative law, and in the silence of the PILA, Swiss commentators tend to agree that arbitrators may grant provisional measures ex parte where appropriate (see, e.g., Kaufmann-Kohler and Rigozzi 2015, para 6.124 and the references provided). Article R37 CAS Code also provides for ex parte interim measures “in cases of utmost urgency”, and “provided the opponent is subsequently heard”.

  58. 58.

    Given that interim relief can only be ordered by the arbitrator (Article 10.1 BAT Rules) and after the filing of the request for arbitration (Article 10.3), there is no provision for a so-called “emergency arbitrator” in the BAT Rules (Article R37 CAS Code, for instance, allows parties to file requests for provisional measures prior to the filing of the request for arbitration, provided the latter is filed within 10 days, and orders for provisional measures can be ordered by the President of the relevant Division prior to the appointment of a panel).

  59. 59.

    The author is aware of the following awards mentioning that the parties had lodged requests for provisional measures (which were not granted in view of the requesting party’s failure to establish the existence of a risk of irreparable harm, as one of the customary conditions to be met in order to obtain interim relief): BAT 0439/13, Burns, Hart Sports Management and Players Group v. SS Sutor Srl, Award of 19 March 2014 (paras 41–42 and 80–81); BAT 0449/13, Steele, Greig and Slay v. SS Sutor Srl, Award of 20 March 2014 (paras 57–58, 97–98); BAT 0463/13, Johnson v. SS Sutor Srl, Award of 20 March 2014 (paras 32–33, 71–72). While both the BAT Rules and the PILA are silent on the substantive requirements to be met for the granting of provisional measures by arbitrators, commentators note the emergence of transnational standards in this respect, as reflected for instance in the UNCITRAL Model Law on International Commercial Arbitration of 2006 (Article 17A) and the UNCITRAL Arbitration Rules of 2010 (Article 26(3)). This is also illustrated by the contents of Article R37 CAS Code, which was recently amended to codify the CAS’s consistent practice in point (see in particular Kaufmann-Kohler and Rigozzi 2015, paras 6.119–6.120). All the aforementioned provisions refer to the following (in principle, cumulative) conditions: (i) a risk of serious or irreparable harm, (ii) a likelihood that the applicant will succeed on the merits, and (iii) a balancing of the parties’ respective interests whereby the harm caused to the opponent does not outweigh the harm the applicant seeks to avert by requesting the measure(s).

  60. 60.

    In principle, under the Swiss lex arbitri the courts retain their jurisdiction to order provisional measures, in parallel to that of the arbitrators. However, similar to Article R37 CAS Code, Article 10.4 BAT Rules purports to exclude the courts’ jurisdiction to deal with requests for provisional measures, by stipulating that “[i]n agreeing to submit their dispute to these Rules, the parties expressly waive any right to request provisional or conservatory measures from any state court”. The validity of such a waiver of the parties’ right to access the courts is not undisputed in CAS appeals cases, primarily on the ground that consent to arbitration under the CAS Code is not consensual in those instances (see, e.g., Kaufmann-Kohler and Rigozzi 2015, paras 6.107–6.108). While the author is not aware, as yet, of any decision on the validity of Article 10.4’s very similar waiver, it could be argued that the latter should be upheld in view of the consensual character of BAT arbitration, provided also that the BAT arbitrator is in a position to order the relief sought.

  61. 61.

    According to Zagklis 2015b, p. 294, as of the time of his writing, the BAT had conducted five hearings in total.

  62. 62.

    See, e.g., SFT 117 II 346, 348.

  63. 63.

    See Articles 9.1 and 11.2 BAT Rules.

  64. 64.

    The process whereby the arbitrator reaches this conclusion is often referred to, in the Swiss jurisprudence on arbitration, as an ‘anticipated assessment of the evidence’ (appreciation anticipée des preuves; antizipierte Beweiswürdigung), which arbitrators are entitled to conduct in order to decide whether to admit evidentiary requests (including offers of evidence).

  65. 65.

    See for instance the arbitrator’s reasoning in BAT 0542/14, Pancotto v. SS Felice Scandone Avellino SpA, Award of 24 October 2014, paras 39–41, and BAT 0462/13, Maresca v. Basket Juvecaserta srl, Award of 13 June 2014, paras 37–40.

  66. 66.

    For example, in cases BAT 0230/11, Zouros v. BC Zalgiris Kaunas, Award of 9 July 2012, and 0231/11, Kantzouris v. BC Zalgiris Kaunas, Award of same date, the arbitrator decided to make the respondent’s request for a hearing by video conference conditional upon the payment of an additional advance of € 5000, to be paid by that party alone. The request for a hearing was subsequently withdrawn and the parties were given the opportunity to file additional written submissions instead.

  67. 67.

    For instance, in BAT 0256/12, Mr Coach and Agency v. Club, Award of 13 December 2012, paras 18–22, the arbitrator, having heard both parties on the respondent’s request for a hearing, decided that a hearing in person would be held in Munich.

  68. 68.

    Black’s Law Dictionary (2009), 9th ed.

  69. 69.

    See also the BAT model clause at the beginning of the Rules, Preamble 0.3, providing, in fine, that the “arbitrator shall decide the dispute ex aequo et bono”.

  70. 70.

    Article 187(1) PILA reads as follows: “The arbitral tribunal shall decide the dispute according to the rules of law chosen by the parties or, absent such a choice, according to the rules of law with which the case has the closest connection”.

  71. 71.

    Although the language of Article 187(1) PILA is slightly more restrictive as it postulates that in such cases the arbitrator shall apply the so-called “closest connection” test to determine the applicable rules of law, rather than the ones he or she deems appropriate.

  72. 72.

    As is systematically recalled under the heading “Applicable Law” in BAT awards decided ex aequo et bono (see, ex multis, BAT 0644/15, Vougioukas v. Galatasaray Spor Kulübü Dernegi, Award of 13 July 2015, paras 26–27) “[t]he concept of “équité” (or ex aequo et bono) used in Article 187(2) PILA originates from Article 31(3) of the Concordat intercantonal sur l’arbitrage [the Swiss statute that governed both international and domestic arbitration before the enactment of the PILA], under which Swiss courts have held that arbitration ‘en équité’ is fundamentally different from arbitration “en droit”: “When deciding ex aequo et bono, the Arbitrators pursue a conception of justice which is not inspired by the rules of law which are in force, and which might even be contrary to those rules”. In substance, it is generally considered that the arbitrator deciding ex aequo et bono receives ‘the mandate to give a decision based exclusively on equity, without regard to legal rules. Instead of applying general and abstract rules, he must stick to the circumstances of the case at hand’” [references omitted]. In technical terms, and even though the two expressions are often used interchangeably, the decisional standard of ex aequo et bono should be distinguished from amiable composition (as recognised, e.g., under French law, pursuant to Article 1478 CCP). When acting as amiables compositeurs, arbitrators establish what the solution would be under the applicable (rules of) law and then adjust it if they consider the result to be unfair.

  73. 73.

    Very often, the relevant contracts reproduce the BAT model clause, quoted in footnote 69 above.

  74. 74.

    See, e.g., FAT 0046/09, Mahoric & Jakse v. BC Kyiv, Award of 26 February 2010, paras 40–41 (choice of law clause providing that the contract “shall be governed by the laws of Switzerland”); FAT 0071/09, Papadopoulos v. Fortitudo, Award of 31 August 2010, paras 65–66 (choice of law clause providing that the contract “shall be construed, interpreted and enforced according to the laws of Italy”); FAT 0104/10, Pavetic v. GS Trogylos Basket Priolo, Award of 15 March 2011, paras 6, 53–55 (choice of law clause providing that the contract was to be “regulated by Italian and European Community law”); FAT 0118/10, Bracey v. Achilleas Kaimakliou BC, Award of 23 March 2011, paras 53–56 (choice of law clause providing that “[t]he laws of Cyprus shall govern this Agreement”); BAT 0631/14, Valdeolmillos Moreno v. Comité Olìmpico Mexicano (COM, Asociación Deportiva Mexicana De Baloncesto (ADEMEBA), Liga Nacional de Baloncesto Profesional (LNBP), Instituto Veracruzano Del Deporte (IVD), Award of 30 October 2015, paras 87–89 (choice of law clause providing that the contract “shall be interpreted and enforced in accordance with the laws of Mexico”). For other similar examples, see FAT 0041/09, Panellinios KAE BC v. Kelley, Award of 12 November 2009, paras 55–59; FAT 0062/09, Harper et al. v. Besiktas Jimnastik Kulübü, Award of 26 March 2010, paras 51–54; FAT 0063/09, Fisher & Entersport Management Inc. v. KK Vojvodina Serbijagas, Award of 19 February 2010, paras 43–46; FAT 0082/10, Benson & Paris v. Shanxi Zhongyu, Award of 31 August 2010, paras 53–55; FAT 0083/10, Ilievski v. KK Union Olimpija Ljubljana, Award of 23 July 2010, paras 34–36; BAT 0139/10, Sampson & Octagon v. Samahang Basketbol NG Pilipinas Inc., Award of 31 October 2011, paras 33–35; BAT 0172/11, Jusup & Ivic v. KK Zadar, Award of 6 October 2011, paras 45–47; BAT 0247/11, Ignerski & Stanley v. Besiktas Jimnastik Kulübü, Award of 3 September 2012, paras 53–56; BAT 0544/14, Allred & Greig v. Halcones UV Promotora Deportiva A.C. & Halcones de Xalapa A.C., Award of 11 December 2014, paras 79–80; BAT 0562/14, Zouros v. BC Zalgiris Kaunas, Award of 3 March 2015, paras 48–49; BAT 0563/14, White v. Guaiqueries De Margarita BBC, Award of 30 April 2015, paras 39–40; BAT 0603/14, Sarkis v. Amchit Club, Award of 13 May 2015, paras 30–33; BAT 0702/15, Club Sportif Sagesse de Beirut v. Khazzouh, paras 45–48; BAT 0708/15, Cousin Jr. & Fleisher v. BC Krasny Oktyabr, Award of 5 January 2016, paras 31–33.

  75. 75.

    One such circumstance is the fact that the parties have argued their case before arbitrator in reliance on ex aequo et bono principles rather than by reference to the law designated in the choice of law clause. At any rate, Swiss law admits that a choice of law clause can be concluded (or amended) by conduct (see, e.g., Kaufmann-Kohler and Rigozzi 2015, paras 7.27 and 7.76). See, for example, FAT 0046/09, Mahoric & Jakse v. BC Kyiv, para 41; BAT 0563/14, White v. Guaiqueries De Margarita BBC, paras 39–40; BAT 0702/15, Club Sportif Sagesse de Beirut v. Khazzouh, paras 45–48.

  76. 76.

    FAT 0062/09, Harper et al. v. Besiktas Jimnastik Kulübü, paras 51–54; FAT 0071/09, Papadopoulos v. Fortitudo, paras 65–66; FAT 0082/10, Benson & Paris v. Shanxi Zhongyu, paras 53–55; FAT 118/10, Bracey v. Achilleas Kaimakliou BC, para 55; BAT 0172/11, Jusup & Ivic v. KK Zadar, paras 45–47; BAT 0247/11, Ignerski & Stanley v. Besiktas Jimnastik Kulübü, para 56; BAT 0702/15, Club Sportif Sagesse de Beirut v. Khazzouh, paras 45–48.

  77. 77.

    See, e.g., BAT 0708/15, Cousin Jr. and Fleisher v. BC Krasny Oktyabr, para 33; BAT 0603/14, Sarkis v. Amchit Club, paras 30–33; 0544/14, Allred & Greig v. Halcones UV Promotora Deportiva A.C. & Halcones de Xalapa A.C., para 80.

  78. 78.

    See, e.g., BAT 0631/14, Valdeolmillos Moreno v. Comité Olímpico Mexicano (COM) et al., para 89, referring to BAT 0107/10, Kelati & Maravilla v. Olympiacos Piraeus BC, Award of 13 April 2011, paras 46–47.

  79. 79.

    See, e.g., FAT 0057/09, Podkovyrov v. Slupskie Towarzystwo Koszykowki Sportowa Spolka Akcyjna, Award of 15 March 2010, paras 40 and 46, where the arbitration clause provided that “[a]ll disputes should they arise shall be under Polish law and in the FIBA arbitral tribunal (FAT) courts” with no reference to ex aequo et bono, and the parties confirmed their preference for a decision based on Polish law; FAT 0034/09, Tucker & Pro One Sports Management Inc. v. BC Kyiv, Award of 3 May 2010, paras 58–60, where the parties provided, alongside a FAT arbitration agreement from which the mention of ex aequo et bono had been removed, for their contract to be “interpreted and enforced in accordance with the laws of Switzerland”, or FAT 0095/10, Shabalkin v. “Khimki” Basketball Club, Award of 24 September 2010, paras 29 and 40, where the relevant agreement contained a provision for disputes to be “brought to [sic] Arbitration Court of FIBA”, no mention of ex aequo et bono, and a clause referring to “the acting legislation of the Russian Federation” which was to govern sanctions “in the event of non fulfilment of the commitments envisaged [therein]”. For a more recent example, see, e.g., BAT 0589/14, Dean v. SS Felice Scandone SpA, Award of 7 January 2015, paras 41 and 49, where the underlying contract contained a clause designating Swiss law as the lex causae and expressly excluding the arbitrator’s power to decide ex aequo et bono.

  80. 80.

    FAT 0075/10, Tamir & Krayn v. Seastar Apoel Nicosia Basketball Club, Award of 23 June 2010, para 40 (“any dispute […] shall be submitted to the FIBA Arbitral Tribunal (FAT) in Geneva, Switzerland and shall be resolved in accordance with the FAT Arbitration Rules […]”); FAT 0143/10, Tapoutos v. Basketball Club PAOK KAE, Award of 3 May 2011, para 37 (here, the arbitration clause simply provided for “arbitration by FAT of FIBA”). More recently, see, e.g., BAT 0477/13, Denson & Goldansky v. Ramat Hasharon BC, paras 26 and 32, where the contract provided that it was to be “governed by and interpreted in accordance to the FIBA Regulations, the FIBA Arbitral Tribunal […]”, and BAT 0539/14, Dragovic v. BC Spartak St. Petersburg, paras 42 and 47, where the contract stipulated that any dispute would be submitted to the BAT and “resolved in accordance with the [BAT] Arbitration Rules by a single arbitrator […]”.

  81. 81.

    As noted by Zagklis 2015b, p. 297, “[t]he total costs for these cases have decreased by at least 30 % merely by applying a lower handling fee (€ 1500) together with a cap on the advance on arbitration costs (€ 5000). The arbitrator does not spend the time required to render a reasoned award unless a party requests a reasoned award and pays an additional advance on costs”.

  82. 82.

    Ibid. According to the same author, “this new rule will speed up BAT proceedings even more and further lower costs by requir[ing] fewer reasoned awards in situations in which the claim is uncontested”.

  83. 83.

    Ibid.

  84. 84.

    Where the award is to be rendered without reasons, the arbitrator submits a standard summary form setting out the underlying reasons together with the unreasoned draft for the President’s scrutiny.

  85. 85.

    Similar provisions, calling for the scrutiny of the award by an internal institutional body prior to its issuance, can also be found in the CAS Code (Article R59(2), providing for scrutiny by the CAS Secretary General), and, in commercial arbitration, the ICC Rules of Arbitration (Article 33 entrusting the ICC Court with this task). Article 16.1 in fine also contains a provision allowing the BAT President to “consult with other BAT arbitrators on issues of principle raised in the award”.

  86. 86.

    The costs of the arbitration include “the administrative and other costs of BAT and the fees and costs of the BAT President and the Arbitrator” (Article 17.2 BAT Rules). As stated in the cost section of BAT awards, the BAT President fixes the arbitration costs by “taking into account all the circumstances of the case, including the time spent by the Arbitrator, the complexity of the case and the procedural questions raised”. The decision on costs will be updated in Article 16.2 cases where a party subsequently requests the issuance of a reasoned award (to take into account the additional advance on costs paid for that purpose). Where the advances paid by the parties exceed the costs determined by the BAT President, the BAT will reimburse the excess in accordance with the arbitrator’s decision on the relative allocation of the costs.

  87. 87.

    Article 17.2 BAT Rules provides that “the final account of the arbitration costs may either be included in the award or communicated separately to the parties”, however to the author’s knowledge the latter possibility is rarely used.

  88. 88.

    See Article 17.3 BAT Rules. In setting out the exact amounts to be paid as a result of the determination and allocation of costs, the arbitrator takes into account the advances on costs paid by the parties. The non-reimbursable handling fee paid by the claimant (or counterclaimant), when (partially) successful, is considered as part of its legal fees and other expenses to which the other party shall (as a general rule) contribute in accordance with the allocation decided by the arbitrator. There have also been cases where the arbitrator decided, in view of the specific circumstances, not to apply the general rule, and thus that each party would bear its own costs (see, e.g., BAT 0468/13, Matic v. Club Sportiv Municipal Targoviste, paras 103–104).

  89. 89.

    In Article 16.2.1 cases, where the award is rendered without reasons, the dispositive part is preceded by a paragraph stating that “[u]pon providing both parties with an opportunity to be heard, having ascertained his/her jurisdiction and considered the factual and legal arguments as well as the requests for relief submitted in this case, the Arbitrator decides as follows”, and followed, after the indication of the seat, the date and the arbitrator’s signature, by a “Notice about Request for Reasons” recalling Article 16.2.1’s criteria and Article 16.2.2’s requirements, and setting out the applicable advance on costs in case a party wishes to lodge a request for reasons.

  90. 90.

    See, e.g., Kaufmann-Kohler and Rigozzi 2015, paras 7.105 and 7.109.

  91. 91.

    Ibid., para 7.109, with further references.

  92. 92.

    See, e.g., the awards in cases BAT 0243/11, Court Side v. Kasnye Krylia Samara, Award of 2 February 2012, para 11; BAT 0224/11, Bavcic, MEGA Basketball LLC, BeoBasket Ltd. v. KK Union Olimpija Ljublijana, and 0225/11, Djordjevic, MEGA Basketball LLC, BeoBasket Ltd. v. KK Union Olimpija Ljublijana, both of 9 March 2012, para 7.

  93. 93.

    Zagklis 2015b, p. 294. The awards can be found at http://www.fiba.com/bat/awards. Accessed 1 March 2016.

  94. 94.

    See, e.g., BAT 0213/11, Player v. Club, Award of 30 January 2013.

  95. 95.

    Kaufmann-Kohler and Rigozzi 2015, paras 7.187–7.188; Berger and Kellerhals 2015, paras 1633 and 1637. In Switzerland, arbitral awards are deemed equivalent to a court judgment and immediately enforceable upon their issuance, without further formalities. In other words, there is no requirement to register or have a judgment entered upon the award by the local courts, as may be the case in other countries. Nevertheless, Article 193 PILA provides for the possibility to deposit the award with the Swiss court at the seat (in BAT’s case this would be the Geneva court, namely the Tribunal de première instance) and/or request a(n optional) “certificate of enforceability” from the same court or the arbitral tribunal.

  96. 96.

    Article 192 PILA reads as follows: “If none of them has its domicile, habitual residence, or a business establishment in Switzerland, the parties may, by an express statement in the arbitration agreement or by a subsequent written agreement, exclude any action for annulment in full or limit it to one or the other of the grounds listed in Article 190(2) PILA”. For a detailed study of the waiver under Article 192(1) PILA, see Kaufmann-Kohler and Rigozzi 2015, paras 8.49–8.75. An agreement to waive the right to seek the annulment of the award does not affect a party’s right to resist the enforcement of the award (indeed, if the award is to be enforced in Switzerland, Article 192(2) PILA provides that the NYC applies by analogy).

  97. 97.

    The validity of one such agreement was upheld by the SFT in one of the two challenges against a BAT award that were brought before it: SFT 4A_232/2012, decision of 29 May 2012, para 2.

  98. 98.

    See Preamble 0.3, and Article 18 of the FAT Rules in their versions of 15 March 2007, 9 December 2007, and 30 May 2009.

  99. 99.

    For a recent example where the arbitration clause provided for appeal to the CAS and included a waiver of the action for annulment before the SFT, see BAT 0593/14, Tomas v. Fenerbahce Spor Kulübü, Award of 3 February 2015, para 21. For a case where the parties did not provide for appeal and nonetheless waived the action for annulment, see BAT 0539/14, Dragovic v. BC Spartak St Petersburg, para 42.

  100. 100.

    Article 100(1) SCA. In this regard, it is important to note that under Swiss law, communication to the parties’ counsel of record is considered equivalent to communication to the parties directly (see SFT 4P.273–283/1999, decision of 20 June 2000, para 5b), meaning that the time limit starts running from that moment.

  101. 101.

    SFT 4A_198/2012, decision of 14 December 2012, para 2.2, albeit also noting that, realistically, the chances of success of the applicant would be considerably reduced in such a scenario.

  102. 102.

    Article 100(1) SCA states that the time limit to bring an action for annulment runs from the notification of the “complete decision”. That said, the parties can bring an action for annulment upon receipt of the sole operative part of the award, specifying that they will complete their application once the full decision is available. This possibility may be used, for instance, to request an immediate stay of the tribunal’s award, which, as just noted, is binding and enforceable as from its notification, even if limited to the operative part (indeed, the res judicata effect and enforceability only attach to the operative part of the award in any event).

  103. 103.

    For a more detailed discussion of the contents and meaning of these grounds and the conduct of annulment proceedings before the SFT in sports matters, see Hasler and Hafner 2016, Sect. 17.2.2.4. See also Kaufmann-Kohler and Rigozzi 2015, paras 8.03–8.205; Berger and Kellerhals 2015, paras 1672–1880, and Rigozzi 2010.

  104. 104.

    Article 103(1) and (3) SCA.

  105. 105.

    For a discussion of the SFT’s practice in this respect, see in particular Kaufmann-Kohler and Rigozzi 2015, paras 8.92–8.99, with further references.

  106. 106.

    This is reflected by the fact that the provision governing the action for the annulment of awards in the SCA, Article 77, excludes the application of Article 107(2) SCA, which enables the SFT to rule on the merits upon annulment of a lower court’s decision.

  107. 107.

    SFT 136 III 605, 615–616.

  108. 108.

    SFT 4A_54/2012, decision of 27 June 2012, para 2.2.3 and the references.

  109. 109.

    The SFT came to this conclusion in a 1992 decision (SFT 118 II 199). In that same decision, the SFT held that the revision of awards would be subject to the rules governing the revision of the its own decisions and that it would be the court of competent jurisdiction to deal with applications for the revision of awards rendered in Switzerland.

  110. 110.

    Article 123(1) SCA.

  111. 111.

    Article 123(2)(a) SCA.

  112. 112.

    The seat of the BAT also determines the ‘nationality’ of BAT awards for the purposes of the NYC, meaning that they will be recognized and enforced as Swiss awards in other NYC countries.

  113. 113.

    See Article 177(1) PILA, which provides that “any dispute involving a pecuniary [viz. economic] interest may be the subject matter of an arbitration”.

  114. 114.

    On this point, see, e.g., Martens 2011, p. 56, paras 3.2 and 7.

  115. 115.

    Martens 2011, pp. 56–57.

  116. 116.

    Article 3-300 FIBA IR. See also Articles 3-70 and 3-71 FIBA IR with regard to the licence restrictions that apply to sanctioned players and clubs. Article 3-300 in fine adds that the sanctions it provides for “can be extended, in FIBA’s sole discretion, to natural or legal persons which are directly or indirectly linked to the first party, either from a legal or sporting perspective (e.g., different entity under a similar name, etc.)”.

  117. 117.

    Article 3-301 FIBA IR, adding that “upon request by FIBA, the national member federation to which [the award debtor] is affiliated shall actively and promptly take all necessary measures to ensure that [the award debtor] fully honours the BAT award within a time-limit fixed by FIBA. If a national federation fails to comply with the present Article, FIBA may impose disciplinary sanctions on [it] […]”.

  118. 118.

    Article 3-302 FIBA IR.

  119. 119.

    http://www.fiba.com/bat/sanctions. Accessed 1 March 2016.

  120. 120.

    Martens 2011, p. 55.

  121. 121.

    Note that, as illustrated by the excerpts reproduced below, the relevant circumstances may also include general legal principles that are well established in the relevant context. In other words, a mandate to decide ex aequo et bono does not necessarily exclude that the arbitrator may consider the relevant or otherwise applicable legal rules (including, as the case may, general principles of law or trade usages); it only entails that the arbitrator is not bound to apply the law (as in arbitration ‘ex lege’). For a study of the history, understanding and practice of ex aequo et bono in international commercial and investment arbitration, see Trakman 2012. On ex aequo et bono arbitration in Switzerland, see in particular Sykora (2011).

  122. 122.

    Martens 2011, p. 55.

  123. 123.

    As noted by Zagklis 2015b, p. 294 (footnote 19): “decisions rendered under ex aequo et bono principles have become so popular that parties only insisted on national law in about 3 % of the cases to date”.

  124. 124.

    Martens 2011, p. 55. It is also worth noting, as Martens does (ibid.), that the decisions rendered in many of the cases decided ex aequo et bono correspond by and large to the solution that would have obtained under the otherwise applicable national laws (were it not for the BAT clause). For a review of the outcome of some BAT awards rendered ex aequo et bono see, in addition to the discussion in the following section, Anthony 2013.

  125. 125.

    For a perceptive study of the role of BAT jurisprudence in creating principles governing basketball contracts, see Zagklis 2015b, pp. 184-188.

  126. 126.

    BAT 0284/12, Appel & Wasserman Media Group v. Samsun Basketball Kulübü, Award of 15 October 2012, para 7.

  127. 127.

    BAT 0668/15, Familia Basket Schio slr SSD v. Ogwumike, Award of 26 August 2015, para 7.

  128. 128.

    BAT 0644/15, Vougioukas v. Galatasaray Spor Kulübü Dernegi, para 31.

  129. 129.

    BAT 0429/13, Coppa v. Basketball Sport Association of Thailand, Award of 23 December 2013, para 56.

  130. 130.

    FAT 0046/09, Mahoric & Jakse v. Kyiv., para 5. See also FAT 0057/09, Podkovyrov v. STKSSA, para 5, where the contract expressly provided that all amounts were guaranteed (Article 3) but that the Club would have a right of termination “in case of 7 defeats on the way”.

  131. 131.

    BAT 0631/14, Valdeolmillos Moreno v. Comité Olímpico Mexicano (COM) et al., para 10.

  132. 132.

    BAT 0644/15, Vougioukas v. Galatasaray Spor Kulübü Dernegi, para 31.

  133. 133.

    BAT 0487/13, KC Callero & Andrews v. SS Sutor Srl, Award of 3 September 2014, para 66.

  134. 134.

    BAT 0644/15, Vougioukas v. Galatasaray Spor Kulübü Dernegi, paras 32–33.

  135. 135.

    Referring to BAT cases 0014/08, 0162/11, 0190/11, 0213/11 and 0318/12.

  136. 136.

    Referring to BAT 0154/11, para 77.

  137. 137.

    Referring to BAT cases 0213/11, 0263/12 and 0318/12.

  138. 138.

    Referring to BAT cases 0190/11 and 0213/11.

  139. 139.

    Referring to BAT cases 0014/08, 0039/09, 0066/09, 0162/11 and 0213/11.

  140. 140.

    BAT 0502/14, Banic v. Unics Kazan Basketball Club, Award of 30 April 2015, paras 80–83. See also BAT 0213/11, Player v. Club, para 97 et seq. (where a parallel was made with “warranty issues that arise when goods are sold insofar as the respective duties and rights of the seller and the buyer. For example, what does it mean/contractually imply if a product is sold in the condition “as is”, what is the responsibility of the seller for so-called “hidden defects”, is the degree of responsibility different if the defect was known to the seller, what are the duties of the seller to inspect the goods upon delivery and what are the consequences if no inspection is made or if detected defects are not immediately invoked”).

  141. 141.

    BAT 0263/12, Jujka and TP Sports Ltd v. Miejski Miedzyszkolny Klub Sportowy Katarzynki Torun “Energa”, Award of 11 October 2011, paras 38–39.

  142. 142.

    BAT 0213/11, Player v. Club, paras 109–110.

  143. 143.

    BAT 0668/15 and 0693/15 (consolidated), Familia Basket Schio srl SSA v. Ogwumike & Sports International Group Inc. v. Familia Basket Schio, para 82. See also BAT 0213/11, Player v. Club, para 111: “Finally, it goes without saying that if a club discovers during the entry medical examination what it deems to be a problematic pre-existing medical condition, or at a later stage, i.e. after that examination, what it deems to be an unfairly undisclosed pre-existing medical condition of the player, the club must invoke this without delay to prevent being estopped from doing so; since it would be unfair to rely, on the one hand, on the possibility that the player may nevertheless be able to perform or become apt to play, and, on the other hand, reserve the possibility of invoking at a later stage the known medical problem”.

  144. 144.

    BAT 0130/10, Thomas et al. v. Baloncesto Fuenlabrada, Award of 8 June 2011, para 145.

  145. 145.

    BAT 0640/14, Smith & Wasserman Media Group v. Galatasaray Spor Külübü Dernegi, Award of 27 July 2015, para 48.

  146. 146.

    See, for example BAT 0535/14, Daniels v. Liaoning Hengye Basketball Club, Award of 7 August 2014, para 33, where the Agreement in question stipulated that “Club has the unilateral right to terminate the contract with the player if the player still violates any reasonable rules of Club and any rules of CBA League set by Chinese Basketball Association after Player and his Agent have previously been warned by Club two times in writing of same violation and given a chance to cure”.

  147. 147.

    Ibid., para 34.

  148. 148.

    BAT 0631/14, Valdeolmillos Moreno v. Comité Olímpico Mexicano (COM) et al., para 111.

  149. 149.

    BAT 0584/14, Trinchieri v. Hellenic Basketball Federation, Award 21 November 2014, para 73.

  150. 150.

    BAT 0535/14, Daniels v. Liaoning Hengye Basketball Club, para 40. It has also been suggested that clubs ought to have players countersign written notices in order to prove that they have in fact been received (see BAT 0568/14, Johnson v. Zhejiang Chouzhou Professional Basketball Club Company Ltd, Award of 18 December 2014, para 89).

  151. 151.

    BAT 0278/12, Korstin v. Besiktas Jimnastik Kulübü Dernegi, Award of 31 August 2012, para 47.

  152. 152.

    BAT 0396/13, Gaffney & Ayesa v. Club Joventut Badalona SAD, Award of 16 October 2013, paras 74–75.

  153. 153.

    See BAT 0278/12, Korstin v. Besiktas Jimnastik Kulübü Dernegi, para 49. To the contrary, see BAT 0720/15, Millage v. Torku Konyaspor Basketbol Kulübü, Award of 4 December 2015, paras 48–49.

  154. 154.

    See, for example, BAT 0291/12, Drucker & Beobasket Ltd v. Sutor Basket Montegranaro srl, Award of 20 November 2012, paras 67–68: “Article 7 of the Coaching Agreement entitles the Coach to terminate the Coaching Agreement with immediate effect after the Club’s contractual payments were not received by the Coach within 30 days from the due date. […] Then, the Coach must notify the Club that the Coaching Agreement would be deemed terminated if no payment was received within another 5 days. […] The Arbitrator accepts that the Coach was not prohibited from sending his termination notice before the expiration of the 30-day time limit of Article 8 of the Coaching Agreement. However, also in that case, the termination notice could only lead to the termination of the Coaching Agreement if the due payments had not arrived at the Coach’s bank account on or before 35 days upon the due date, i.e. on or before 14 January 2012. […] The Agent’s email of 3 January 2012 may have brought the Club to pay the due December 2011-salary. However, it did not terminate the Coaching Agreement”.

  155. 155.

    BAT 0383/13, Dikeoulakos et al. v. CSM Targoviste, Award of 22 January 2014, para 78.

  156. 156.

    Ibid., para 79.

  157. 157.

    BAT 0318/12, Hunter & Priority Sports and Entertainment v. Polisportiva Dinamo SRL, Award of 15 October 2013, para 80.

  158. 158.

    FAT 0065/09, Mikhalevskiy v. Bikov, Award of 12 April 2010, para 43.

  159. 159.

    BAT 0650/15, Jawai & Wasserman Media Group v. Galatasaray Spor Kulübü Dernegi, Award of 30 July 2015, para 33.

  160. 160.

    BAT 0631/14, Valdeolmillos Moreno v. Comité Olímpico Mexicano (COM) et al., para 107 (referring to BAT 0383/13).

  161. 161.

    Ibid., paras 106–107.

  162. 162.

    BAT 0471/13, Filipovski v. KK Union Olimpija Ljubljana, Award of 28 April 2014, para 61.

  163. 163.

    Ibid., paras 55 and 62–64.

  164. 164.

    BAT 0345/12, FC Bayern München e.V. v. Foster, Award of 20 March 2013, para 83.

  165. 165.

    BAT 0631/14, Valdeolmillos Moreno v. Comité Olímpico Mexicano (COM) et al.

  166. 166.

    Ibid., paras 118–122.

  167. 167.

    See BAT 0502/14, Banic v. Unics Kazan Basketball Club, where the five invoices produced did not correspond to the timing of the player’s medical treatment, nor to the amounts charged for it. The arbitrator held that he was “not able to determine how the Player arrived at the amount claimed and whether he is entitled to any reimbursement. The Arbitrator finds that the claim for reimbursement of medical expenses is unsubstantiated and rejects the Player’s request” (paras 107–109).

  168. 168.

    BAT 0334/12, Scafati Basket v. Marigney, Award of 27 March 2013, paras 78–79.

  169. 169.

    Ibid., para 86.

  170. 170.

    BAT 0631/14, Valdeolmillos Moreno v. Comité Olímpico Mexicano (COM) et al., paras 123–125.

  171. 171.

    The club suggested that it suffered negative effects with respect to its “image with the supporters, the media and the world of basketball” (see BAT 0093/10, ASD Pallacanestro Femminile Schio v. Braxton, Award of 11 October 2010, paras 79–82).

  172. 172.

    Ibid.

  173. 173.

    Where it was held at para 120 that: “the Arbitrator finds that there is insufficient evidence of her image and reputation having suffered in a durable manner for any amount of compensation to be awarded in that connection”.

  174. 174.

    Where it was held at para 49 that: “The Claimant seeks image damages. The Arbitrator finds that this claim is not well founded. Apart from the fact that no proof has been adduced to support this claim, it is clear from the fact that the Claimant’s reputation and skill have been recognised by Spartak Moscow for the 2011-2012 season that her reputation and image have not been adversely affected by the Respondent’s actions”.

  175. 175.

    Where it was held at para 83 that: “With respect to the Coach claim for moral damages, the Arbitrator finds that the Coach has not established that his image or reputation suffered in any manner from his replacement by another coach, among others because it is frequent in team sports for a coach to be replaced for the sake of seeking new synergies, or proven the existence of any causality between the termination and any form of lost profit or other financial damage. Consequently, the claim for moral damages will be rejected”.

  176. 176.

    Where it was held at para 52 that: “With regard to the damages claimed by the Player for moral prejudice, the Arbitrator finds that no moral prejudice or corresponding financial damage have been established by the Player, and that the circumstances do not indicate any prejudice to her career or reputation was caused by the Club, bearing in mind also, once again, that the Player herself chose not to even try and find a new contract abroad”.

  177. 177.

    Where it was held at para 87 that: “The Club requests that the Player must pay a penalty at the discretion of the Arbitrator because he damaged the reputation of the Club when he constantly disregarded the Coach’s instructions. However, the Club does not specify, let alone prove, the asserted reputational damage any further. The Arbitrator finds that this counterclaim is unsubstantiated and must be dismissed”.

  178. 178.

    Hornbuckle et al. v. Besiktas Jimnastik Kulübü, Award of 29 October 2009, para 73.

  179. 179.

    Referring to BAT 0129/10; FAT 0043/09.

  180. 180.

    BAT 0155/11, Kikowski v. KK Union Olimpija Ljubljana, Award of 8 August 2011, para 8.

  181. 181.

    See BAT 0257/12, Orlando & DoubleB Management sas v. Besiktas Jimnastik Kulubu Dernegi, Award of 3 August 2012, para 71.

  182. 182.

    Referring to FAT 0005/08 p. 19; FAT 0014/08, para 68; FAT 0024/08, para 48–50; BAT 0237/11, para 56–59; BAT 0289/12, para 44; BAT 0535/14, para 53.

  183. 183.

    Referring to FAT 0014/08, para 68.

  184. 184.

    See BAT 0644/15, Vougioukas v. Galatasaray Spor Kulübü Dernegi, paras 33–34.

  185. 185.

    See, for example, BAT 0501/14, De Mondt & Stainier v. Kayseri Kaski Spor Kulübü, Award of 14 August 2014; BAT 0497/13, Jonusas & UAB East Players v. Basket Juvecaserta s.r.l., Award of 1 July 2014, para 65.

  186. 186.

    See, for example, BAT 0501/14, De Mondt & Stainier v. Kayseri Kaski Spor Kulübü. See also BAT 0303/12, Markota & Xl Agency v. Union Olimpija Ljubljana, Award of 8 May 2013, para 79: “It is simply not sufficient for a player to spend well over half a professional season playing for the sake of playing, yet take no steps to mitigate his financial position”. See also BAT 0385/13, Liatsos & Antoniou v. BC AEL Limassol, Award of 22 January 2014, para 59.

  187. 187.

    See, for example, BAT 0501/14, De Mondt & Stainier v. Kayseri Kaski Spor Kulübü; FAT 0024/08, Sakellariou & Dimitropoulos v. Avellino, Award of 11 May 2009, paras 48–49: “In view of Claimant 1’s admitted skills and potential, the Arbitrator holds that Claimant 1 should have made further efforts to find a new employment, even with terms substantially lower than in the Contract, instead of returning to an amateur level within less than one month after his release from the Contract. Indeed, Claimant 1 did not present any explanation why a promising young player receiving a monthly salary of EUR 4000 at the beginning of the season accepts shortly thereafter to join an amateur club and to render his services for more than six months in return of no salary at all”.

  188. 188.

    BAT 0542/14, Pancotto v. Felice Scandone SpA, para 59. See also BAT 0631/14, Valdeolmillos Moreno v. Comité Olímpico Mexicano (COM) et al., para 115, referring to BAT 0256/12, para 170; BAT 0231/11, para 67: “it is notoriously difficult for a (assistant) coach to find a coaching position during an ongoing basketball season”; and BAT 0256/12, paras 169–170: “mitigation is much more difficult for a coach than a player. A team needs many players, but only one head coach. Thus, Claimant 1 would certainly not find it easy to readily secure alternative employment”.

  189. 189.

    BAT 0631/14, Valdeolmillos Moreno v. Comité Olímpico Mexicano (COM) et al., para 115.

  190. 190.

    BAT 0542/14, Pancotto v. SS Felice Scandone SpA, para 58.

  191. 191.

    Ibid., paras 58–59.

  192. 192.

    BAT 0535/14, Daniels v. Liaoning Hengye Basketball Club, paras 48–54.

  193. 193.

    See, for example, BAT 0258/12, Entersport v. Men’s Basketball Club Dynamo Moscow, Award of 25 June 2012, para 43: “The alleged economic difficulties are certainly regrettable but they do not release the Club from its contractual obligations”, and BAT 0242/11, Vrbanc v. KK Cibona Zagreb, Award of 31 August 2012, para 48: “financial difficulties faced by a club is no defence to a claim by a player for unpaid and overdue salary payments”.

  194. 194.

    See BAT 0314/12, Papaloukas v. Olympiakos, Award of 15 July 2013, para 76.

  195. 195.

    UNIDROIT Principles of International Commercial Contracts 2010 (http://www.unidroit.org/english/principles/contracts/principles2010/integralversionprinciples2010-e.pdf .).

  196. 196.

    BAT 0314/12, Papaloukas v. Olympiakos, paras 76–78.

  197. 197.

    See BAT 0350/12, Labovic v. BC Krasnye Krylia Samara, Award of 10 June 2013, para 44. See also BAT 0166/11, Fox v. BC Kalev Cramo, Award of 17 August 2011, para 46.

  198. 198.

    For example see BAT 0383/13, Dikeoulakos et al. v. CSM Targoviste, para 79 (as discussed above).

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Authors and Affiliations

  1. Lévy Kaufmann-Kohler, Geneva, Switzerland

    Erika Hasler

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  1. Erika Hasler
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Correspondence to Erika Hasler .

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  1. ASSER International Sports Law Centre, T.M.C. Asser Instituut, The Hague, The Netherlands

    Antoine Duval

  2. Faculté de droit, Université de Neuchâtel, Neuchâtel, Switzerland

    Antonio Rigozzi

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© 2016 T.M.C. Asser Press and the authors

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Hasler, E. (2016). The Basketball Arbitral Tribunal—An Overview of Its Process and Decisions. In: Duval, A., Rigozzi, A. (eds) Yearbook of International Sports Arbitration 2015. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-129-6_6

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  • DOI: https://doi.org/10.1007/978-94-6265-129-6_6

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