Tag Archives: international law

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”). … Read More

Appealing a BAT Award

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.

 

http://www.fiba.com/downloads/v3_expe/bat/110401_BAT_Standard_Clause.PDF. Also, prior to 2010, the BAT standard arbitration clause contained similar language outlining the appeal process.

 

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

Player-Agent Agreements: Is your Rollover Clause Legal? Part II

lawsuit-settlement-fundingThis is the second part of a two-part series on rollover provisions in player-agent agreements. To see the first part, click here.

 

Remedies

 

The point of all this, of course, is how can an agent enforce his player-agent agreement on a) players who go behind the agent’s back to sign with a new agent, and b) agents who poach players under a binding contract.

 

a) Enforcing against Players who Breach

 

How can an agent enforce his player-agent contract against a player? The agent can always petition FIBA to sanction the player.  The FIBA regulations prohibit certain actions by players. “A player may use the services of only one Agent licensed under the terms and conditions of these Regulations.” FIBA Reg. 163.  FIBA has the authority to sanction Players who violate FIBA Regulations: “In the event that a player uses the services of . . . more than one agent at the same time, FIBA acting through the Secretary General is entitled to:

 

a.… Read More

Player-Agent Agreements: Is your Rollover Clause Legal? Part I

breach of KThe 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.

 

Rollover Clauses

 

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

Meet our Arbitration Lawyers: Richard Faulkner

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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.

 

Mr. Faulkner has a diploma in International Commercial Arbitration from the Chartered Institute of Arbitrators, which is one of, if not the, most respected degree in international arbitration in the world. He has taught Alternative Dispute Resolution at a local Dallas law school and served as a municipal judge. Needless to say, Mr.… Read More

The Rule of Law in BAT Cases: Ex Aequo et Bono

380x285-cz5tOne 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

0001 Ostojic vs Paok

FIBA Arbitral Tribunal (FAT)

ARBITRAL AWARD

(0001/07 FAT)

rendered on 16 August 2007 by the

FIBA ARBITRAL TRIBUNAL (FAT)

Mr. Ulrich Haas

in the arbitration proceedings between

Mr. Djuro Ostojic, Makedonska 17, 85000 Bar, Montenegro represented by Mr. Miodrag Raznatovic, Attorney at Law, (licensed FIBA Agent 2007018138), 18 Strahinjica Bana, Belgrade, Serbia

-Claimant 1

and Mr. Miodrag Raznatovic, 18 Strahinjica Bana, Belgrade, Serbia -Claimant 2or jointly “the Claimants”

vs. Basketball Club PAOK KAE, Antoniou Tristi 12, 55510 Thessaloniki, Greece -Respondent –

Av. Louis Casaï 53 Tel: (+41-22) 545 0000

P.O. Box 110 Fax: (+41-22) 545 0099

1216 Cointrin / Geneva info@fiba.com Switzerland www.fiba.com

1. The Parties

1.1. The Claimants

Djuro Ostojic (hereinafter “Mr. Ostojic” or “Claimant 1”) is a citizen of Montenegro and a professional basketball player. He is domiciled at Makedonska 17, 85000 Bar, Montenegro.

Miodrag Raznatovic (hereinafter “Mr. Raznatovic” or “Claimant 2”) is a citizen of Serbia. He is domiciled at 18 Strahinjica Bana, Belgrade, Serbia.

Read More