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, in 0051, 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. Thus the arbitrator ruled the contract gave the BAT jurisdiction to hear the dispute.
In this same case there was also a discrepancy in the translation of the contract from Russian to English. Even though the parties agreed in the contract that the English version was an “exact copy” of the Russian version and both versions were “considered to be equal,” the discrepancy in the translation was obviously a significant issue. A simple translation of “or” to “and” threw into question whether the BAT could decide the case. The BAT considered the fact that the poorly translated contract had been written by the Club as significant. The arbitrator cited an internationally recognized law of contracts, “contra proferentum,” the Unidroit Principles on International Commercial Contracts of 2004, Article 4.6, the Swiss Federal Tribunal, the Court of Arbitration for Sport, and BAT precedent to decide that the English version of the contract must prevail.
The Coach eventually won, but only after these complex and confusing legal issues were argued by both sides. One can only imagine how this million-dollar case could have turned out if the Coach had not been represented by an attorney capable of recognizing and arguing these issues.
Our research has also uncovered many instances of inexperienced players or agents, litigating without attorneys, who have made critical errors in the arbitration. For example, in 0201, Taggart v. Dnepr BC, Taggart’s agent attempted to arbitrate the dispute without the aid of an attorney and missed out on collecting the $18,000.00 agent fee he was owed by the Club. Taggart, the player, was the only Claimant in the dispute. Although he won his entire salary that the team owed, the arbitrator ruled that the agent was not a proper party to the arbitration and no relief could be given to him. The agent should have declared himself a second Claimant. In doing so, the Arbitrator would have likely awarded the fees owed to the agent and he would today be an extra $18,000.00 richer.
The BAT routinely awards attorneys fees to the winner, meaning the victorious player or agent is fully reimbursed for any legal fees he pays. See BAT Rule 17.3. So why don’t more players and agents seek counsel for their BAT claims when the risk is losing significant amounts of money owed or the entire arbitration? One of our goals here at the IBPA is to educate players and agents on the BAT process. Hopefully, with better representation players will be more successful and the Clubs will think twice before cutting guaranteed contracts.