This is a continuing series documenting cases the IBPA’s lawyers have resolved in favor of their clients without having to resort to BAT Arbitration.
BFSN Law’s attorneys recently settled a case for $25,000 for a client without having to resort to BAT arbitration. An agent (“European Agent”) contacted the IBPA because one of his players (“Player”), with whom he signed a 2-year player-agent agreement, had signed a contract to play for a European Team (“Team”) with another agent (“US Agent”). The Player’s contract with the Team stated the US Agent, and not our client, was to receive the $25,000 agent fee. The European Agent wanted to know what he could do to get the agent fee.
Most agents sign players to 1- or 2-year player-agent agreements with evergreen provisions. Evergreen provisions are more commonly known as rollover provisions because they act to roll the contract over at the end of the primary term for additional 1-year terms unless the player or the agent properly terminates prior to the end of the primary term.… Read More
BFSN Law’s Shelly Skeen argued in front of the Texas Supreme Court on November 7, 2013 in support of the First Amendment right to speak anonymously on the Internet. The case involves a company’s and its CEO’s attempt to discover the identity of an anonymous Internet blogger, “Doe.”
Ms. Skeen is a partner of BFSN Law and one of the co-founders of the IBPA. She is also a member of the Chartered Institute of Arbitrators, London, England, MCIArb and has been a certified mediator for over 10 years.
Besides conducting arbitration for the IBPA before the Basketball Arbitral Tribunal, Ms. Skeen’s practice focuses on areas of complex commercial litigation, representing businesses across the country in disputes in state and federal court and arbitrations; appellate law; professional malpractice and grievance defense; and probate and estate planning.
To read the full article about Ms. Skeen’s Argument before the Texas Supreme Court, visit BFSNLaw.com
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”).
BAT awards may no longer be appealable except in very limited situations. But that wasn’t always the case. From its inception in 2006 until 2010, the BAT included in every award a section titled “Appeal,” under which the following paragraph was included:
Awards of the FAT can only be appealed to the Court of Arbitration for Sport (CAS), Lausanne, Switzerland and any such appeal must be lodged with CAS within 21 days from the communication of the award. The CAS shall decide the appeal ex aequo et bono and in accordance with the Code of Sports-related Arbitration, in particular the Special Provisions Applicable to the Appeal Arbitration Procedure.
However, in 2010 FIBA and the BAT removed the appeal language from the awards and the standard arbitration clause in an effort to maximize leverage against breaching teams. Not unsurprisingly many teams were intentionally breaching contracts, not participating in the arbitration, and appealing the BAT awards to postpone as long as possible payment of the award.… Read More
The past few months we have received several complaints from FIBA agents about players signing contracts behind their backs and other agents poaching players. This two-part article explores the legality under the FIBA regulations of rollover clauses in player-agent agreements and what remedies agents have against their former players and other agents. To view the second part, click here.
A rollover clause is a contractual provision that causes the contract to roll over after each agreed period until cancelled by one party. Many FIBA agents utilize a 1-year rollover provision that requires notice prior to 30 days before the end of the 1-year term. This type of provision eliminates the need to re-sign the player each year and gives both the player and agent confidence for the future. Many player-agent agreements are signed in the summer months, which is the peak scouting and signing season for European teams. If an agent were constantly unsure about a player’s status because the agent had to re-sign the player during the summer each year, that agent would be less likely to focus his energy on getting that player a job.… Read More
Richard D. Faulkner J.D., L.L.M, Dip, Intnl. Comm. Arb.
The IBPA employs the law firm of Blume, Faulkner, Skeen & Northam PLLC in Richardson, Texas (BFSN Law) to arbitrate claims with the BAT. One of the lawyers working on the cases is Richard Faulkner. Mr. Faulkner, besides being a partner at BFSN Law, has over 30 years of experience in international arbitration. He was the lead arbitrator in the famous sports arbitration, Lance Armstrong and Tailwind Sports, Inc. v. SCA Promotions, Inc. et al. He has also served as Arbitration Counsel in multiple insurance arbitrations in U.K. and Bermuda in USD $100,000,000.00 cases.
One of the most common questions we hear about BAT cases is what law does the Tribunal use. The answer: ex aequo et bono, which is a Latin phrase that means “In equity and good conscience” legal-dictionary.com. The BAT rules state ex aequo et bono means the arbitrator applies “general considerations of justice and fairness without reference to any particular national or international law.” BAT Rule 15.1. But what does that mean? Essentially, the BAT decides cases based on fairness and equity for the betterment of the parties.
This can be a confusing concept for many who are used to state and federal statutes being applied in their home courts. Especially individuals who come from civil law jurisdictions based on the Napoleonic Code, which include most of Europe and Latin America. The civil code is a series of very specific statutes that pronounce the law in a particular state. The law is written, stemming from statutes, and is not decided by the particular tribunal hearing the dispute.… Read More
Many players and clubs do not retain counsel for BAT arbitrations, often to their detriment. BAT arbitrations are touted as quick, efficient, and relatively inexpensive. See BAT Rule 0.1, 0.2. But this does not mean the proceedings are uncomplicated. IBPA’s researchers have discovered many cases that hinged on complex legal issues, such as the scope of the arbitration agreement and jurisdiction of the BAT.
For example, in0051, Pesic v. Dynamo, a dispute between a Serbian/German coach (the “Coach”) and Russian Men’s Basketball Club (the “Club”), the contract at issue contained confusing provisions providing for disputes to be litigated in a Russian Arbitral Tribunal and the BAT. The Club argued that the Coach had to litigate in the Russian Arbitral Tribunal first and could only appeal to the BAT afterwards. Citing http://www.supcourt.ru/catalog.php?c1=English, the arbitrator decided that this construction of the contract made no sense because the Russian Arbitral Tribunal was actually a state court with its own complex appeals system.… Read More
1. Mr. Engin Atsur is a professional basketball player from Turkey (hereinafter referred to as “the Player” or “Claimant”).
Fenerbahçe Spor Kulübü (hereinafter also referred to as “the Club” or “the Respondent”) is a professional basketball club in Turkey.
2. The Arbitrator
3. On 21 October 2012, Prof. Richard H. McLaren, the President of the Basketball Arbitral Tribunal (the “BAT”), appointed Mr. Quentin Byrne-Sutton as arbitrator (hereinafter the “Arbitrator”) pursuant to Article 8.1 of the Rules of the Basketball Arbitral Tribunal (hereinafter the “BAT Rules”).
9107 Gaither Road, Suite B, Gaithersburg, Maryland 20877, USA
-Claimant 2 –
ProTalent Sports Management
P.T. House S.r.l., Via Montiano 14, 06073 Castelvieto – Corciano, Italy
represented by Mr Doug Neustadt and Mr Brett Friedman, The Neustadt Group, 9107 Gaither Road, Suite B, Gaithersburg, Maryland 20877, USA
BC Krasnye Krylia Samara
Sovetskoy Armii Str. 253a -340, Samara 443011, Russia
1. The Parties
1.1 The Claimants
1. Claimant 1, Joe Alexander (hereinafter referred to as “Player”) is a professional basketball player who was represented by the other Claimants, The Neustadt Group (Claimant 2, hereinafter referred to as “Neustadt”) and ProTalent Sports Management (Claimant 3, hereinafter referred to as “ProTalent”; and together with Neustadt the “Agents”), in his dealings with Respondent.
BC Krasnye Krylia Samara (hereinafter referred to as “Respondent”) is a professional basketball club in Samara, Russia.