WHAT IS THE STANDARD ARBITRATION CLAUSE?
"Any dispute arising from or related to the present contract shall be submitted to the Basketball Arbitral Tribunal (BAT) in Geneva, Switzerland and shall be resolved in accordance with the BAT Arbitration Rules by a single arbitrator appointed by the BAT President. The seat of the arbitration shall be Geneva, Switzerland. The arbitration shall be governed by Chapter 12 of the Swiss Act on Private International Law, irrespective of the parties' domicile. The language of the arbitration shall be English. The arbitrator shall decide the dispute ex aequo et bono." (Article 0.3 of the BAT Arbitration Rules)
WHAT KIND OF DISPUTES CAN BE BROUGHT BEFORE BAT?
The BAT has jurisdiction whenever the parties to a dispute have agreed in writing to submit the dispute to the BAT, provided that FIBA and its division are not directly involved in the dispute (Article 1.1 of the BAT Arbitration Rules).
WHAT DO I HAVE TO DO TO PUT A BAT ARBITRATION IN MOTION?
File a Request for Arbitration as per Article 9.1 of the BAT Arbitration Rules with the BAT Secretariat (BAT@martens-lawyers.com) and pay the corresponding non-reimbursable handling fee as per the table in Article 17.1 of the BAT Arbitration Rules. You can download a template for the Request for Arbitration here.
The arbitration will not proceed until the non-reimbursable handling fee is received in the BAT bank account (see Article 17.1 of the BAT Arbitration Rules).
WHAT ARE THE COSTS OF A BAT ARBITRATION?
After receipt of the Request for Arbitration and the non-reimbursable handling fee, the BAT Secretariat will fix an advance on costs (and may adjust such advance in the course of the proceedings) in accordance with Article 9.3.1 of the BAT Arbitration Rules. Unless decided otherwise by the Arbitrator, the advance on costs is to be paid in equal shares by both parties. Payment is to be made into the BAT bank account (see Article 17.1 of the BAT Arbitration Rules). In fixing the amount of the advance on costs, the BAT Secretariat will take into account, inter alia, the sum in dispute and the complexity of the case. The initial advance on costs fixed for an award without reasons (see Articles 16.2 and 16.3 of the BAT Arbitration Rules) will not exceed EUR 6,000. Where the sum in dispute does not exceed EUR 100,000, the initial advance on costs fixed for an award with reasons will not exceed EUR 9,000.
While the handling fee is non-reimbursable (see above), the remainder of the advance on costs will be reimbursed by the BAT if the actual arbitration costs are lower than what was paid as advance on costs. The final amount of the arbitration costs is determined at the end of the arbitral proceedings by the BAT President (see Article 17.2 of the BAT Arbitration Rules).
In the arbitral award, the Arbitrator decides which party bears the arbitration costs and in which proportion (see Article 17.3 of the BAT Arbitration Rules). Normally, if a party prevails in the entirety of its claims, the other party will have to reimburse it for any payments made on the advance on costs. Likewise, usually, the Arbitrator will grant the prevailing party a contribution towards its reasonable legal fees (see Article 17.3 of the BAT Arbitration Rules). This contribution shall also take into account the handling fee paid by the prevailing party (see Article 17.1 of the BAT Arbitration Rules). However, these are general rules only and the Arbitrator may take a different decision if he/she deems it appropriate under the particular circumstances of a case, in particular taking into account the conduct and financial resources of the parties.
WHAT IF A PARTY FAILS TO PAY ITS SHARE OF THE COSTS?
If one of the parties fails to pay its share of the advance on costs, the other party may substitute for it so that the arbitration can proceed (see Article 9.3 of the BAT Arbitration Rules).
WHO WILL DECIDE THE DISPUTE?
A single arbitrator appointed by the BAT President (see Article 8.1 of the BAT Arbitration Rules). The profiles of the BAT arbitrators can be found under "Composition of the BAT".
HOW DO THE PARTIES FILE THEIR SUBMISSIONS?
In general, the arbitration procedure will be conducted in writing. The parties shall transmit any submissions and communication by e-mail only; transmission by other means shall be strictly limited to cases in which transmission by email is not technically feasible (Article 6.1 of the BAT Arbitration Rules). Hearings will be held only upon request and if the Arbitrator decides so (see Article 13.1 of the BAT Arbitration Rules).
HOW LONG DOES A BAT ARBITRATION TAKE?
There is no fixed time limit for the duration of BAT proceedings. While Article 16.4 of the BAT Rules provides that the Arbitrator shall endeavor to render the award within 6 weeks of the closure of the proceedings, this is not a strict time limit and in any case the calculation of the 6 weeks depends on when the proceedings are closed.
As a matter of course, the actual duration of BAT proceedings depends very much on the complexity of the case, the scope of submissions, the conduct of the parties and whether the Respondent participates in the arbitration or remains silent. Experience shows that most BAT cases are resolved within a period from four to eight months.
HOW ARE BAT AWARDS ENFORCED?
BAT awards are enforceable like any other arbitral award; in most countries the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards will apply.
The BAT is not involved and unable to assist in the enforcement.
Parties failing to honor a final BAT award may be sanctioned by FIBA upon request of the other party (cf. Book 3, Chapter 10 of the FIBA Internal Regulations). Parties seeking FIBA's action in this regard must file a respective request f with FIBA. The BAT is not involved in this procedure.
WHAT DO I HAVE TO PROVIDE UNDER "REQUEST FOR RELIEF"?
The request for relief shall contain a detailed analysis of all the amounts claimed (salaries, bonuses, compensation, interest, reimbursement of legal and other costs etc) and/or any other relief the claimant requests from the BAT.
If the request for relief includes a request of interest or late payment penalties, the Request for Arbitration must set out (not necessarily in the request for relief) the total amount of interest or late payment penalties sought in relation to any period prior to the date of filing of the Request for Arbitration (Article 9.1 of the BAT Arbitration Rules). The reason behind this requirement is that the sum in dispute includes any such interest or late payment penalties (Article 17.5 of the BAT Arbitration Rules).
IS IT POSSIBLE TO FILE A JOINT REQUEST FOR ARBITRATION FOR TWO OR MORE CLAIMANTS?
In general, it is possible for two or more claimants to file a joint Request for Arbitration. However, whether or not the case proceeds as one arbitration or is deconsolidated into two or more proceedings is a matter to be decided by the BAT President or, once appointed, by the Arbitrator.
When taking this decision, the BAT President (or the Arbitrator, as the case may be) will take into account whether there is a sufficiently close connection between the claims and whether they are subject to arbitration clauses that are identical in substance. Generally, claims that are neither based on the same contract nor on contracts that directly relate to each other shall not be deemed to have a sufficiently close connection (see Article 11.3 of the BAT Arbitration Rules).
IS THERE A TIME LIMIT FOR FILING A REQUEST FOR ARBITRATION?
The BAT Arbitration Rules do not provide for a time limit for filing a Request for Arbitration. However, BAT arbitrators have dismissed claims on the basis of fairness and equity because those claims were filed too late (so-called principle of “Verwirkung”). However, as a matter of course, this is very fact-specific and depends on the circumstances of each case.
If you would like to research previous awards on the issue of “Verwirkung”, please note that all BAT awards are published on the BAT’s website and are available here.
CAN A PARTY REQUEST LEGAL AID FOR BAT PROCEEDINGS?
The BAT Arbitration Rules do not contain any provisions for legal aid. Proceedings before the BAT are financed entirely by the parties to the respective dispute. Therefore, there is no fund from which legal aid could be paid.
CAN THE PARTIES ENTER INTO AN AMICABLE SETTLEMENT DURING THE BAT PROCEEDINGS?
The parties may settle their dispute during the BAT proceedings. If a settlement is reached, the parties have two options:
First, the claimant(s) may withdraw their Request for Arbitration. In this case, the BAT will reimburse any remainder of the advance on costs after deduction of the arbitration costs that have already been incurred until the withdrawal of the Request for Arbitration.
Secondly, the parties may request the Arbitrator to record their settlement in the form of a Consent Award (see Article 16.7 of the BAT Arbitration Rules). In this case, the advance on costs is generally – subject to the specific circumstances of the case – adjusted to the total amount of EUR 2,500. Any overpayment of the advance on costs will be reimbursed by the BAT to the parties after the Consent Awards has been issued.
Based on previous experience, the parties are advised to include in their settlement agreement a clause determining which party shall bear the arbitration costs. Also, the parties should include a clause regarding the payment of the respective legal fees and expenses (including the non-reimbursable handling fee).
Guidelines compiling a non-exhaustive list of the elements that should be included in a settlement agreement when requesting the issuance of a Consent Award are available here.
The parties may also file a request to suspend the proceedings in order to discuss a possible settlement of the dispute. However, please note that if a requested suspension exceeds two months (by itself or in combination with earlier suspension), an abeyance fee of EUR 500 shall apply thereafter for each period of suspension of up to six months (see Article 12.4 of the BAT Arbitration Rules).