Is the BAT Fair? The Danger of no Appeals Process and the Arbitrator’s ex aequo et bono Power

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Is the BAT arbitration process unfair?

Is this unfair?

In recent articles we have explored the ex aequo et bono rule of law and lack of a real appeals process in the BAT. In this article I will combine these two concepts together to discuss the potential dangers of a system such as the BAT.

 

The relationship between the BAT and FIBA may call into question the independence of the BAT. In the early days of the BAT, the tribunal was called the FIBA Arbitral Tribunal. The BAT was originally funded by FIBA and is still to this day guaranteed by FIBA. See FIBA Reg 296 (The financing of the BAT is guaranteed by FIBA, it being understood that the BAT is designed to be self-financing). The tribunal’s name was changed in an attempt to make the independence of the BAT more clear (it was also changed so people would stop referring to the female BAT secretariat as the “FAT lady”).

 

This name change may have been partly influenced by a similar relationship between the Court of Arbitration for Sport (“CAS”) and the International Olympic Committee (“IOC”). See http://www.tas-cas.org/en/infogenerales.asp/4-3-236-1011-4-1-1/5-0-1011-3-0-0/According to the CAS website all ties between the CAS and IOC were cut in response to a decision on appeal of a CAS case by the Swiss Federal Tribunal (“SFT”). The SFT called into question the validity of the CAS decisions by pointing out that several links existed between the CAS and IOC: “the fact that the CAS was financed almost exclusively by the IOC; the fact that the IOC was competent to modify the CAS Statute; and the considerable power given to the IOC and its President to appoint the members of the CAS.” Id.

 

Despite the name change and relative financial independence of the BAT, like the prior versions of the CAS and IOC, numerous links between BAT and FIBA remain today. FIBA established the BAT. FIBA Reg. 289. The BAT rules are published by FIBA. FIBA Reg. 293. The only process for changing the BAT rules are that the changes must be “prepared by the FIBA Legal Commission and . . . submitted to the FIBA Central Board for approval.” FIBA Reg. 294. Thus FIBA writes the BAT rules. As stated above, the financing of the BAT is guaranteed by FIBA. FIBA Reg. 296. The main BAT website is hosted by FIBA. http://www.fiba.com/pages/eng/fc/expe/fat/p/openNodeIDs/16807/selNodeID/16807/pres.htmlAll the BAT awards are published by FIBA. http://www.fiba.com/pages/eng/fc/expe/fat/p/openNodeIDs/16810/selNodeID/16810/fat-awards.html.  And FIBA regulates the honoring of BAT awards. FIBA Reg. 300. Arguably, because FIBA guarantees the BAT funding, all three of the links between CAS and IOC exist between BAT and FIBA, along with several others.

 

But why is this important? Because the BAT has much more power in deciding cases than the CAS ever did. First, the BAT decides all case ex aequo et bono, which, as we wrote earlier, means “in equity and good conscience.” This is clearly a very subjective standard, and it is the default standard in BAT cases. See FIBA Reg. 15.1 (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).

 

Most other arbitral tribunals around the world implement rules in which ex aequo et bono is discouraged and only allowable if expressly agreed to by the parties. See International Court of Justice Art. 38(2); ICSID Convention Art. 42(3); UNCITRAL Arb. R. Art. 33(2). Some Tribunals even forbid ex aequo et bono decision making all together. See Greenberg, International Commercial Arbitration (2011) (referring to ex aequo et bono as a decision “without law” and noting that in many domestic arbitration tribunals in the UK as well as those of Malaysia, Bangladesh, and Vietnam it is forbidden).

 

Second, BAT awards may not be appealable, except in narrow circumstances, which does not appear to include bias between the tribunal and governing body. See http://playersassociation.org/appealing-a-bat-award/The SFT case cited above was decided on appeal. Without such an appeal the links between the CAS and IOC may never have been highlighted and the process may never have been reviewed.

 

In sum, it is possible that the enormous power given to the BAT arbitrators and the lack of an appeals process may lead to biased opinions by a FIBA-influenced BAT. And without a proper appeals process that bias may take much longer to overcome for the parties subject to BAT jurisdiction than it did in the CAS. The changing of the name from FAT to BAT is only window dressing for a system with many more links than those called into question between the CAS and IOC and no real process for evaluating what, if any, bias exists.