The following is a guest contribution from Charles Bennett J.D.
This article discusses the Basketball Arbitral Tribunal––its inception, purpose, and procedures.
First, what is the Basketball Arbitral Tribunal (“BAT”) and how did it get its start?
The BAT was established by FIBA in 2006 under the name “FIBA Arbitral Tribunal (FAT)”. In accordance with the 2010 FIBA General Statutes, the tribunal was renamed into “Basketball Arbitral Tribunal (BAT)” and is an organization officially recognized by FIBA. As a side note, it is rumored that the FAT was renamed the BAT in part because the original secretary of the tribunal was often referred to as the “FAT Lady,” which she apparently did not like.
The Basketball Arbitral Tribunal provides services for the resolution of disputes between players, agents, and clubs through arbitration. The main features of the BAT include:
- True Arbitration under Swiss Law (seat of each arbitration is Geneva);
- Single Arbitrator appointed by the BAT President;
- Simple procedure;
- English language only;
- Hearing and hearing of witnesses upon application only;
- Provisional and conservatory measures available;
- Arbitrator decides ex-aequo et bono, i.e., on the basis of general considerations of justice and fairness without reference to any particular national or international law;
- Decision within six weeks of end of proceedings.
Failure to honor a BAT Award may entail sanctions by FIBA such as a monetary fine, the withdrawal of a FIBA Agent’s License, a ban on international transfers of players, or a ban on the registration of new players as provided in the FIBA Internal Regulations. See http://www.fiba.com/pages/eng/fc/expe/fat/p/openNodeIDs/16807/selNodeID/16807/pres.html
I’m sure many questions arise from the above, like first of all what is arbitration?
Arbitration is a form of alternative dispute resolution that parties use in lieu of litigating in courts. Arbitrating parties refer their dispute to one or more arbitrators to render a decision called an award. Arbitration awards are typically binding on the parties and can usually be enforced through the courts of any countries in which the losing party has property––such as bank accounts. Arbitration is uniquely useful to disputes between parties of different countries––like those involved in international basketball––because of the inherent difficulties with conflicting laws, languages, and cultures.
BAT arbitration is called “true” arbitration because the arbitral awards are fully enforceable under Swiss law and the New York Arbitration Convention. The New York Arbitration Convention is a treaty signed by 149 countries that concerns the recognition and enforcement of foreign arbitral awards. Basically, the BAT arbitration awards must be enforced under the New York Arbitration Convention by the courts in 149 countries around the world.
You may be wondering what rule of law the BAT arbitrator uses to decide cases? The Arbitrator gets his power to decide the dispute by the arbitration provision in the contract between the team and the player. So the rule of law could be that which the contract identifies as the rule of law, if any. The rule of law could also logically be the place of the team, the place of the player, the place where the contract was executed, or Switzerland, the place of the arbitration. But the BAT rules create the rule of law for all BAT cases as ex aequo et bono.
Ex aequo et bono means “in equity and good conscience.” Essentially the arbitrator uses his own personal sense of justice and fairness, and not any single jurisdiction’s rule of law, to decide the case. This is obviously a very subjective standard. Ex aequo et bono decisions by arbitrators are actually forbidden in some jurisdictions and only allowed in others if expressly agreed to in the contract the subject of the arbitration.
One of the main advantages of the BAT over the way in which players and agents resolved disputes prior to the BAT is speed and cost. BAT arbitrations typically take between 6 and 9 months to reach an award. Sometimes faster and sometimes slower.
Arbitration costs depend on the amount sought by the Claimant. If the claim is for less than EUR 30,000, the BAT costs are capped at EUR 2,500 per side. The full list of costs can be found in BAT Rule 17.1, but costs typically range between EUR 5,000 and EUR 15,000. By comparison, costs for bringing lawsuits in European countries can exceed EUR 75,000 and can take 2-3 years to reach a judgment.
The BAT has recently amended its rules to make cases between EUR 30,000 and EUR 100,000, in which the Respondent (usually the team) does not respond, faster and easier. BAT Rue 16.2 allows for the arbitrator to issue an award under these circumstances without reasons. That means the Arbitrator simply says which party wins and how much. Awards without reasons usually consist of only 3-4 pages, instead of the 20-30 page awards with reasons. Prior to this rule change, only cases involving less than EUR 30,000 could be issued without reasons.
This obviously makes the process much faster and cheaper. The idea for the rule came from a case the IBPA’s lawyers, BFSN Law, recently litigated against Sutor Montegranaro. BFSN Law brought the case against Sutor on behalf of 4 players and 3 agents. Sutor refused to participate in the arbitration, and the Arbitrator eventually issued 3 awards against Sutor, all with reasons. BFSN Law’s attorneys tried to avoid this by requesting the arbitrator ignore the previous BAT rules and issue the award without reasons, so the players and agents would not have to pay for it. The Arbitrator could have used his ex aequo et bono power to do so but refused. Shortly after the awards were issued, the BAT changed their rules to allow for this procedure. You can see the three awards here:
Charles Bennett is the CEO and Executive Director of the IBPA and currently clerks at BFSN Law while he awaits his results from taking the Texas Bar in July 2014. Mr. Bennett played professional basketball in Europe from 2001–2008.