The Basketball Arbitral Tribunal (BAT)Nilo Effori
Whilst basketball is not financially attractive as football (outside the NBA) its organization internationally has greatly improved, especially in Fédération Internationale de Basketball (FIBA), the world governing body for basketball1 and its approach to resolution of conflicts between players, coaches, agents and clubs.
FIBA established the Basketball Arbitral Tribunal ("BAT") in 2006. The BAT provides services for the resolution of disputes between players, agents and clubs through arbitration.2
Much like other sports arbitral bodies, BAT is an arbitral tribunal that provides its sport with a arbitration process where basketball related entities enjoy many advantages over a traditional litigation/court based approach to resolve their conflicts; for example, renowned arbitrators and experts are familiar with the sport who are able to apply their best judgment and expertise on the most appropriate way to resolve basketball related conflicts. Additionally, the award may be enforceable according to the New York Convention, i.e., the decision is self enforceable in the signatories countries.
The BAT's jurisdiction is set out on Article 32.1 of the FIBA Statutes:
The Basketball Arbitral Tribunal (BAT) has been established for the resolution of disputes within the world of basketball provided that FIBA, its respective divisions or disciplinary bodies are not directly involved in such a dispute.
Nevertheless, the jurisdiction of BAT is not automatically bidding on the parties to a dispute. The BAT Arbitration Rules 1.1 states:
These BAT Arbitration Rules shall apply whenever the parties to a dispute have agreed in writing to submit the same to the BAT – including by reference to its former name “FIBA Arbitral Tribunal (FAT)” –, provided that FIBA, its Zones or their respective divisions are not directly involved in the dispute.3
Therefore the parties must, at the time of the signature of the employment contract, insert an arbitration clause appointing the BAT as responsible for settling any conflict arising. The parties have the choice to refer their disputes for arbitration by BAT.
Seat and language
The seat of BAT is in Genève, Switzerland and the working language is English.
Located in Switzerland, BAT follows its local laws regarding arbitration proceedings. Hence, the BAT arbitration is governed by local Swiss laws as well as its own arbitration rules according to Chapter 12 of the Swiss Act on Private International Law (PILA).
Although most of the rules of arbitral tribunals give the possibility for one or three arbitrators to work on the case in dispute, BAT rules provide that only one arbitrator, chosen by BAT will arbitrate on the matter.
The arbitrator must sign a declaration of independence but this is subject to challenge if the circumstances give rise to legitimate doubts regarding his/her independence.
These rules also guarantee that, except in cases of gross negligence, willful acts or omissions, the arbitrator is not held liable for any act or omission in connection with BAT proceedings.
The BAT arbitration proceedings, like any other, commence with the request of arbitration and certain minimum information requirements such as name of the parties, established facts and legal arguments, the request for relief and any relevant document that the party feels supports or evidences its claim.
A non-refundable handling fee must be paid by both parties to submit the claim. The amount varies from € 1,500 to € 7,0004, depending on the quantum of the claim. If one party does not pay this fee, the other must pay on its behalf to carry on with the proceedings. Any payment by one party on behalf of another in relation to the handling fee will be deductible from any costs award.
In addition to the initial handling fee, the BAT Secretariat will fix an advance costs award to be paid in equal shares by both parties (unless decided otherwise by the Arbitrator). It based on the monetary value of the dispute and the complexity of the case. If one party fails to pay its share, the other party may pay on its behalf, otherwise the proceeding will not continue.
The process for interim applications/injunctions are set out in Article 10 of the rules5. The Model Law6 also establishes the possibility for interim measures but its efficiency depends on ordinary courts actuation. Once parties have submitted to BAT's jurisdiction and commenced the arbitration proceedings, they are expressly forbidden to seek any interim or injunctive measures from ordinary courts. Nevertheless, there is nothing to prevent a party seeking remedies from the ordinary courts if the other party does not comply with an interim award given by BAT.
After the arbitrator checks if the request for arbitration complies with the requests of article 9.17 of the BAT rules, the opportunity for the other party to present its statement of defence is given.
No hearing is held before BAT proceedings unless requested by the party or when decided upon by the arbitrator.
The time limits for the filing of written submissions or other procedural acts will be determined by the Arbitrator by reference to a specific date.
The law applicable to the merits shall be decided by the parties. Article 15.1 establishes that "unless the parties have agreed otherwise the arbitrator shall decide the dispute ex aequo et bono, applying general considerations of justice and fairness without reference to any particular national or international law. "
Also, Article 187 (1) PILA8 provides the arbitral tribunal must decide the case according to the rules of law chosen by the parties or, in the absence of a choice, according to the rules of law with which the case has the closest connection. Article 187 (2) PILA provides that Swiss parties may authorise the Arbitrators to decide instead of choosing the application of rules of law.
Therefore, in most cases, except in situations where the parties choose the law applicable to the case, it will be decided by the arbitrator based on a test of fairness.
The Arbitrator shall give a written, dated and signed award with summary reasons, which are not confidential unless ordered otherwise by the arbitrator or the BAT President.
To receive an award with detailed reasons, either party may make a request within 10 days of the notification of the award and pay extras costs. This only applies to cases with an award up to the value of € 30,000. For higher amounts it is not necessary to pay any other costs for the grounds of the award.
Another advantageous feature of BAT is the possibility of determining the award of legal costs by the victorious party. It means that parties can use specialised law firms that best meet their demand, since the expenses incurred with lawyers will be set out in the arbitration award.
When a party does not comply with the BAT award, Article 300 ‘Book 3 of the Rules of FIBA’9 establish certain sanctions including:
- A monetary fine of up to CHF 150,000 (see article 3-303) - this fine can be applied more than once, and / or
- Withdrawal of FIBA-license if the first party is the player's agent or the FIBA-approved coach, and / or
- A ban on international transfers if the first party is a player, and / or
- A ban on registration of new players and / or a ban on participation in international club competitions if the first party is a club.
Finally, as the vast majority of cases are subject to decisions by arbitration, we note that the great advantage of the BAT is the absence of solemn forms; the opportunity to decide by the principles of equity, ex aequo et bono (the power of the arbitrator to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand) or chosen by the parties and guarantee the neutrality of the arbitrators in resolving disputes involving parties of different nationalities as well as the expertise and experience of such arbitrators.
The BAT principles highlighted above could be adopted by other international federations to provide a better service for parties outside of the world of basketball.
2 https://www.fiba.com/pages/eng/fc/expe/fat/p/openNodeIDs/16807/selNodeID/16807/pres.html3 https://www.fiba.com/downloads/v3_expe/bat/110401_BAT_Standard_Clause.PDF
4 Article 17.1 of the Bat rules
5 https://www.fiba.com/downloads/v3_expe/bat/BATArbitrationRules1May2012.PDF6 1985 - UNCITRAL Model Law on International Commercial Arbitration, with amendments as adopted in 2006.
7 A BAT arbitration shall commence on the date of receipt by FIBA of a Request for Arbitration, which shall contain the following:
- The names, postal addresses, telephone, facsimile numbers and e-mail addresses of the Claimant and the Respondent and their respective counsel.
- A statement of all the facts and the legal arguments.
- The Claimant's request for relief.
- A copy of the contract containing the agreement to have the dispute resolved by arbitration before BAT (see also Article 1.1).
- All written evidence on which the Claimant intends to rely.
- Any request for a hearing and for the examination of (a) witness(es).
8 Switzerland's Federal Code on Private International Law
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- Tags: Alternative Dispute Resolution | Arbitration | Basketball | Fédération Internationale de Basketball (FIBA)
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