When we think of sports arbitration, our mind automatically turns to the CAS, the biggest body to settle disputes related to sport through arbitration. In this article we examine the role of the Basketball Arbitral Tribunal (BAT), which emerged as an arbitration court in response to the needs that prevailed in the world of basketball.
Since its creation, the BAT, with its innovative mechanism to resolve contractual disputes quickly and cost-effectively, has developed into a well-established international court of arbitration that has become the second-biggest sports arbitral tribunal in the world, based on case numbers. The arbitrators decide ex aequo et bono and their awards have gradually built a jurisprudence creating equitable principles in relation to recurrent issues in basketball contracts.
On 29th May 2007 the BAT received the first case; in that year the Panel received just two cases. Since then, the number of requests for arbitration submitted to the BAT has increased almost every year, in 2016 the BAT received 158 cases. After a little more than 13 years, the BAT has now received its 1500th case.
THE BAT AND ITS ORIGIN
The Basketball Arbitral Tribunal, is an independent body which provides services for the resolution through arbitration of disputes that may arise among the stakeholders in the sport of basketball, including players, agents, coaches and clubs.
It is officially recognized by the FIBA and follows the FIBA General Statutes, and it was created for the fast and simple resolution of disputes between parties through arbitration.
The Basketball Arbitral Tribunal was created by Dr. Dirk-Reiner Martens, who sadly passed away last year; a central figure in the creation of this Tribunal and legal advisor to FIBA since the 1980s, I was lucky enough to attend one of his classes at ISDE in March of that year, which was a great experience and also an inspiration to me, may he rest in peace.
The creation of the BAT Arbitration Court arose through the claims of the players’ agents, who were looking for a dispute resolution mechanism that would oblige the parties to the players’ contracts to adhere to and respect the provisions of those contracts. Recourse to national courts meant a very long and costly procedure for the parties, which meant that breaches of contract in international basketball were frequently not sanctioned and the injured party had to spend years fighting for their interests at considerable financial cost in an unfamiliar legal system.
To overcome this problem, the Basketball Arbitration Court emerged, which is largely computer-based, works with a single arbitrator and does not decide on the basis of a national legal system, but on an ex aequo et bono basis, i.e. on the basis of equity and justice, thus creating a genuine lex sportiva.
HOW DOES THE BASKETBALL ARBITRAL TRIBUNAL WORK?
Unlike other sports organisations that create internal tribunals, in order to make dispute resolution more effective, BAT is independent. The main characteristics are:
- True Arbitration under Swiss Law.
The seat of all arbitrations is in Geneva, Switzerland. Arbitration is always governed by Chapter 12 of the Swiss Private International Law Act (PILA), regardless of the domicile of the parties, the language of the arbitration is English.
- Sole Arbitrator:
All disputes before the BAT are decided by a Single Arbitrator appointed by the BAT President (Prof. Dr. Ulrich Haas), from a closed list of seven arbitrators.
The arbitrator and the BAT President are remunerated on the basis of (moderate) hourly rates; thus, their fees vary according to the complexity of the case at hand, normally between 4,000 and 12,000 euros, and less than 8,000 euros on average.
- Arbitrator decides ex aequo et bono:
The arbitrator decides on the basis of general considerations of justice and fairness without reference to any particular national or international law, the arbitrator applies the contractual provisions unless this is clearly unfair, in which case such contractual provisions would not withstand scrutiny under most national laws. Instead of applying general and abstract rules, it must stick to the circumstances of the case, while enjoying a “global discretion” as compared to limited discretion if the dispute is decided according to the law.
Hearing and hearing of witnesses only held exceptionally and there are provisional and conservatory measures available.
- Efficient proceedings with short deadlines.
Highly efficient proceedings with short deadlines for submitting briefs and with paperless arbitration to the extent possible, the proceedings are limited to a single exchange of written submissions. The decisions are taken within six weeks of end of proceedings in order to facilitate a straightforward, swift and cost-effective decision.
- Enforcement in accordance with the New York Convention and/or in accordance with FIBA’s regulations.
Failure to honour a BAT Award may entail sanctions by FIBA such as, a monetary fine, the withdrawal of a FIBA Agent’s License, a ban on international transfers for a player or a ban on registration of new players for a club.
The day-to-day work of the court and the administrative aspects of all the proceedings arriving at the BAT are handled by the BAT Secretariat, based in Munich.
THE BASKETBALL ARBITRAL TRIBUNAL IMPACT
The relevance of BAT has been increasing over the years until it has become a reference court at international level, having great success in the purposes established in its foundation back in 2007: quick and affordable resolution of disputes, in parallel to granting legal stability to the world of basketball.
Proceedings are brought before the Tribunal not only for several million euros, but also for smaller economic impact, and the number of cases each year continues to increase steadily; something that is very positive.
The publication of the awards has contributed to the development of a consistent case law that contributes to the effectiveness of contracts and the legal security of professional basketball.
We should take into account that, in basketball unlike other sports, contracts are usually for a shorter term, usually about two years, and there is a great number of players moving between the different leagues and teams, therefore, BAT’s work contributes to a fluent transfer market which is positive for players and teams and also agents.
In addition, a wider jurisprudential base has been created and increased enforcement of contracts has been achieved, as well as greater security for players, agents and coaches when they decide to move abroad to seek employment opportunities in a world as international and fast moving as basketball.
If BAT could make one improvement it would be to include an improvement in the search facility for awards, considering that currently you can only filter the search by a single word, to include more key words or to search by date, arbitrator, matter, outcome would make it easier to find jurisprudence and would be easier at the time of making new claims.
Alvaro Casares is a Law graduate from the University of Valladolid, he combined his two passions, law and sport, through the LLM for International Sports Law at ISDE in Madrid. He believes that it is crucial that sport as a global social phenomenon is regulated through the sports law, sports connect different cultures and its organization in a fair and equitable way is essential. He is passionate about all sports but especially basketball, he is also interested in the area of employment law and doping related disputes. Currently working at RBH Global in the Employment Law department after completing a legal internship at Laffer Abogados in Madrid.
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-  https://www.linkedin.com/posts/martens-rechtsanwaltsgesellschaft-mbh_basketball-arbitral-tribunal-activity-6638476979760844800-9aFW
-  https://www.fiba.basketball/en/bat
-  http://martens-lawyers.com/en/interview-en/
-  Hasler, E. (2016). Chapter 6: The Basketball Arbitral Tribunal—An Overview of Its Process and Decisions. In Duval and A. Rigozzi, A, Yearbook of International Sports Arbitration 2015 (pp.111-152): Asser Press.