Ercüment Erdem Att. Ece Ozsu

Basketball Arbitral Tribunal

August 2019

Introduction

The Basketball Arbitral Tribunal (“BAT”), formerly known as the FIBA Arbitral Tribunal, was established in 2007 as a result of the Fédération Internationale de Basketball’s (“FIBA”) idea of establishing a board for the resolution of disputes related to basketball, excluding disciplinary matters[1], and named as the BAT, in 2011.

Article 33 of the FIBA General Statutes stipulates that the formation and structure of the BAT shall be governed by the FIBA Internal Regulations (“Internal Regulations”). The FIBA has established the BAT as an independent arbitral tribunal[2]  to resolve disputes that arise in the world of basketball in a simple, timely and cost-effective manner. The financing of the BAT guaranteed by the FIBA and the BAT is designed to be a self-financing organ[3]. The BAT, seated in Geneva, is comprised of a President, a Vice-President, and has a roster of eight arbitrators[4]. The BAT's daily and administrative work is carried out by the BAT Secretariat, based in Munich.

The BAT is recognized as a real arbitration center that settles disputes, which arise from a single sports branch, between clubs, basketball players and agents[5].

Jurisdiction of the BAT

The BAT has been founded to resolve disputes arising between clubs, basketball players and agents in a timely and inexpensive manner in the basketball community. However, the BAT is not competent to decide on any disputes in which the FIBA, its Zones, or respective divisions, are directly involved.[6] The BAT is not mandatory for basketball-related disputes. The application to the BAT is subject to a written arbitration agreement between the parties. Nevertheless, a BAT Arbitrator is entitled to refuse to proceed with the arbitration at any time if he/she considers that the Tribunal, as defined under the BAT Arbitration Rules (“BAT AR”), is not appropriate to resolve the dispute. Moreover, the arbitrator has the power to rule on his/her authority, including any objection as to the existence, scope, or validity of the arbitration agreement.

Accordingly, the following arbitration clause is provided to the parties in order to make the dispute admissible to the BAT, in a contractual agreement between the parties, either before or after the dispute has arisen:

“Any dispute arising from or related to the present contract shall be submitted to the Basketball Arbitral Tribunal (BAT) in Geneva, Switzerland, and shall be resolved in accordance with the BAT Arbitration Rules by a single arbitrator, appointed by the BAT President. The seat of the arbitration shall be Geneva, Switzerland. The arbitration shall be governed by Chapter 12 of the Swiss Act on Private International Law, irrespective of parties’ domiciles. The language of the arbitration shall be English. The arbitrator shall decide the dispute ex aequo et bono.”

Furthermore, in one of its decisions, the BAT ruled that the clause of “arbitration with the FIBA” in the contractual agreement between the parties is sufficient for the BAT to deem itself as the competent authority[7].

Seat of Arbitration, Language of Arbitration, and Representation of the Parties

The seat of the BAT is Switzerland, irrespective of the places where the hearings are held. Arbitration proceedings before the BAT are governed by Chapter 12 of the Swiss Act on Private International Law (“PILA”), irrespective of the parties’ domiciles. Thus, even if the domicile of one of the parties at the time of the signing of the arbitration agreement is in Switzerland, the international arbitration rules under the PILA shall be applied to disputes before the BAT.

The working language of the BAT is English. Nevertheless, the Arbitrator may decide to hold the proceedings in another language after consultation with the parties. In this respect, unless the Arbitrator decides otherwise, documents provided to the BAT in a language other than English must be accompanied by a certified translation.

The parties may be represented by legal counsel, or by any other person of their choice, in arbitration proceedings before the BAT.

Arbitrators

All disputes before the BAT are settled by a single arbitrator. The arbitrator is appointed by the BAT President on a rotational basis from the published list of the BAT arbitrators, applicable at the time when the request for arbitration is received by the BAT Secretariat or the FIBA (whichever comes first). In the event that the arbitrator so appointed is unavailable, resigns, is successfully challenged, or declines the appointment, the BAT President appoints the next available arbitrator.

If there are legitimate doubts regarding the arbitrator’s independence or objectivity, the challenge request concerning the arbitrator must be brought within 7 days after the grounds for the challenge have become known to the party making the challenge. Challenges are exclusively determined by the BAT President.

Procedure

The arbitration proceedings before the BAT are conducted in accordance with the BAT AR[8]. Unless otherwise provided in the BAT AR, the arbitrator determines the procedure in the proceedings before him/her. If a party proceeds with the arbitration without raising its objection to any instruction given by the Arbitrator, the conduct of the proceedings, the procedural rules, or upon the failure to comply with any provision of these rules, this party is deemed to have waived its right to object in that respect.

Costs

The Claimant must pay the fixed and non-reimbursable handling fee that is determined by the BAT according to the case value. The arbitration will not proceed until the non-reimbursable handling fee is paid by the Claimant. The BAT Secretariat may fix a final date for the payment of the non-reimbursable handling fee and, in the case of failure to pay this fee to the BAT bank account, the Request for Arbitration shall be deemed to have been withdrawn[9].

In addition to the fixed handling fee, unless otherwise decided by the arbitrator, the BAT Secretariat shall fix an advance costs amount to be paid in equal shares by both parties, according to the monetary value of the dispute and the complexity of the case[10]. Since the proceedings shall not continue until the advance on costs is paid, if one of the parties fails to pay its share, the other party may pay this fee in its stead. In principle, where the monetary value of the dispute does not exceed EUR 100.000, the advance on costs will not exceed EUR 7,000[11]. In such cases, the arbitrator shall render his/her decision without reasons and, if one of the parties requests a decision to be rendered with grounds, the requesting party must pay the relevant advance costs.

Arbitration Proceedings

The arbitration proceeding is initiated when the Request for Arbitration[12], which includes minimum information, such as the parties' names, facts, legal arguments, and request for assistance, is submitted to the BAT. The Claimant may attach to the Request for Arbitration any relevant document that he/she considers to support or prove his/her claim. The Request for Arbitration shall be forwarded to the BAT Secretariat by e-mail, or directly to the BAT by mail.

The BAT Secretariat shall forward the Request for Arbitration to the BAT President for a prima facie determination as to whether the arbitration may proceed. If the BAT President determines that the arbitration may proceed, he/she appoints an arbitrator to the dispute, the BAT Secretariat informs the parties in this respect, and forwards the Request for Arbitration to the Respondent, with the time limit for Answers to be submitted.

After the submission of both the Request for Arbitration and the Answers, the arbitrator shall determine whether a further exchange of submissions is necessary. The arbitrator may also invite the parties to participate in settlement negotiations.

Unless the arbitrator decides to hold a hearing as a result of consultation with the parties, no hearings are to be held in arbitration proceedings before the BAT. If the arbitrator decides to hold a hearing, it is done so in private. The arbitrator shall determine, at his/her sole discretion, whether a hearing is to be conducted by telephone or video conference. If so allowed by the arbitrator, the parties may attend the hearing by video conference or telephone.

Provisional and Conservatory Measures

In a BAT arbitration, the parties may request that the BAT take provisional and conservatory measures. This request may be filed with the Request for Arbitration, or during the arbitration proceedings. The BAT arbitrator may decide upon this request and, as well, he/she may take provisional and conservatory measures, ex parte, in cases of urgency. If a party requests that the BAT take a certain measure, then the party concerned is deemed to have waived any right to request measures from the national courts.

Applicable Law

Unless the parties have agreed otherwise, the arbitrator shall decide upon the dispute, ex aequo et bono, applying general considerations of justice and fairness, without reference to any particular national or international laws. If the parties agree that the arbitrator is not authorized to decide, ex aequo et bono, and had not previously determined the applicable law, the arbitrator shall decide upon the dispute according to the rules of law that he/she deems appropriate.

In this respect, since the arbitration clause proposed by the BAT stipulates that the arbitrator decide, ex aequo et bono, the parties must clearly state in the arbitration clause if they wish to reference any national law.

Award and its Enforcement

Before signing the written and dated award, the arbitrator shall transmit a draft to the BAT President. The BAT President examines the award in order to make suggestions as to the form of the award and draws the arbitrator’s attention to the matters related to the merits of the case, without affecting the arbitrator's liberty of decision. The BAT President shall also determine the final amount of the costs of the arbitration, including the administrative and other costs of the BAT, and this final amount shall be notified to the parties, together with the decision, or separately.

The arbitrator shall render the final award no later than 6 weeks after completion of the arbitral proceedings, or upon payment of the advance as to costs for writing the justified award, whichever is the latter. The BAT Awards are not confidential, unless otherwise agreed by the arbitrator. The BAT awards shall be deemed to have been made at the seat of the BAT. The awards become final and binding upon notification of the award to the parties.

Since the BAT awards are true arbitral awards, they may be recognized and enforced in accordance with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, dated 1958 (“NYC”). However, the BAT clearly states that it does not provide any assistance in respect to the enforcement of its awards through the NYC.[13] As a matter of fact, considering the reservations made by countries to the NYC, and taking into account their national laws, this method is not preferred, as many problems have been encountered in the enforcement of awards through the NYC[14].

The BAT Awards are almost always implemented through the mechanism provided by the FIBA. According to the mechanism provided in the FIBA Internal Regulation, Article 335, it ensures that the creditor receives credit as a result of the dispute with its own disciplinary system. The party requesting execution of the final decision by the BAT or the Court of Sport Arbitration (“CAS”) in Lausanne, Switzerland may request that the FIBA apply the following sanctions to the party that fails to honor the BAT award, by submitting its request to the FIBA:

  • A Monetary fine up to 150.000 CHF (this penalty may be applied more than one time).
  • Withdrawal of FIBA-license (if the party who fails to honor the award is an agent) or WABC membership (if the party who fails to honor the award is a coach).
  • A ban of international transfer (if the party who fails to honor the award is a player).
  • A ban on participation in international competitions with his/her national team and/or club competitions (if the party who fails to honor the award is a player).
  • A ban on participation in international club competitions, and a ban on registration of new basketball players (if the party who fails to honor the award is a club).

These sanctions may be applied cumulatively and more than one time.

Remedies against the BAT Awards

When the BAT AR was first drafted, it was provided that the BAT awards could be appealed to the CAS. However, in 2010, the right to apply to the CAS appealing the BAT awards was abolished, since it became clear that the purpose of these appeals was only to postpone the execution of the BAT decisions[15].

According to Article 16.5 of the BAT Rules, the BAT awards are rendered at the seat of the BAT, Geneva. For Swiss-seated tribunals, such as the BAT, the annulment authority is the Swiss Federal Tribunal, and it is possible to apply for annulment of the BAT awards to the Swiss Federal Tribunal under limited grounds, as stipulated in Chapter 12 of the PILA (wrongful appointment of a sole arbitrator or the constitution of the panel, incorrect decision of the arbitral tribunal on the jurisdiction, decision of the arbitrator on exceeding the requests submitted, failure to render a decision on the requested matters, or violation of basic procedural rules or Swiss public order).

Conclusion

The BAT arbitration, which provides a simple, quick and inexpensive solution to basketball disputes, takes places in the sports community as an effective dispute resolution method that achieves its founding purpose, using a single-arbitrator operating system, short periods foreseen by the arbitrator, quick settlement of disputes, and reasonable costs.

[1] Ian S. Blackshaw: “FIBA Arbitral Trıbunal”, ISLJ 2009/1-2, p. 65.

[2] Regarding the BAT being a true arbitration, see Faruk Baştürk: Uluslararası Spor Federasyonlarında İş Sözleşmesinden Doğan Uyuşmazlıkların Çözümü: FIFA ve FIBA Örneği, p. 81; Dirk-Reiner Martens: Basketball Arbitral Tribunal, An Innovative System for Resolving Disputes in         Sports (only in Sports?), ISLJ, 2011/1-2, p. 54.

[3] The FIBA Internal Regulation, Chapter 8, para. 327.

[4] For the BAT Arbitrators, see: http://www.fiba.basketball/bat/composition.pdf.

[5] Faruk Baştürk: FIFA ve FIBA Örneği p. 78-81.

[6] The FIBA General Statute, Art.33/1, The FIBA Internal Regulation, Chapter 8, para. 320, the BAT AR, Art.1.1.

[7] Faruk Baştürk: FIFA ve FIBA Örneği p. 81-82.

[8] The BAT AR is accessible through the web-site of the FIBA.

[9] The BAT Arbitration Rules, Art.9.2.

[10] For the amount of fixed handling fees and advances pursuant to the monetary value of disputes, see. The BAT Arbitration Rules, Art. 17.

[11] For the BAT application fee and justified decision fee, see. http://www.fiba.basketball/bat/circular-on-new-bat-arbitration-rules.pdf.

[12] For fixed Arbitration Request, see. http://www.fiba.basketball/bat/request-for-arbitration-2018.doc

[13] http://www.fiba.basketball/bat/faq.

[14] Yearbook of International Sports Arbitration, 2015, Chapter 6: Erika Hasler, The Basketball Arbitral Tribunal—An Overview of its Process and Decisions, p. 131-132.

[15] Martens, agm, ISLJ, 2011/1-2, p.56; Faruk Baştürk, FIFA ve FIBA Örneği p. 108.