An innovative system for resolving disputes in sport (only in sport?).

• Author: Martens, Dirk-Reiner
• Position: Basketball Arbitral Tribunal

The Geneva-based International Basketball Federation FIBA (Federation Internationale de Basketball) has set up the Basketball Arbitral Tribunal (BAT) (1), which is a true arbitral tribunal under Swiss law. It provides arbitral proceedings for disputes between (professional) players, player agents and clubs, mostly regarding players' wages or commission claims of agents. The following is a presentation of the BAT Arbitration Rules, which are designed for a quick and inexpensive dispute resolution.

1. Introduction

   When one speaks of sports arbitration, one first and foremost thinks of the Court of Arbitration for Sport in Lausanne, Switzerland (CAS). CAS is in fact by far the largest institution of its kind, which is evidenced by the fact that the Court records approximately 300 new requests per annum.

   Nevertheless there are a number of other bodies for resolving disputes in sport, which - whether rightly or wrongly - designate themselves as arbitration courts. A decisive criterion for answering the question of whether or not it is a genuine arbitration court or just an internal body of the association intended to resolve disputes is whether both parties to the dispute have the same influence on the appointment of the arbitrators. For, quite rightly, it is considered to be a crucial advantage of arbitration that the parties can themselves decide on who their judge(s) are - however, both parties must have this right equally.

   Applying the above criterion as a basis, many of the "arbitration courts" established at sports associations cannot qualify as arbitration courts because it is often only the associations who determine the "arbitrator" or "arbitrators" either directly or indirectly. The athletes, who are usually the "claimants", have no influence on the composition of the ruling body. Many countries take the legal view that tribunals of this kind are not arbitration courts and therefore do not make any final and binding rulings.

   The international basketball federation FIBA (Federation Internationale de Basketball) based in Geneva has taken a different approach as far as disputes between (professional) players, players' agents and clubs are concerned. For these disputes, which are frequent and are usually about players' salaries and claims to commission by their agents, FIBA has established a genuine arbitration court under Swiss law called the Basketball Arbitral Tribunal (BAT), which is introduced and explained below.

2. FIBA's Mission Statement for the BAT

   Under 3 - 289 of the FIBA Internal Regulations FIBA establishes

   "[...] an independent Basketball Arbitral Tribunal (BAT) for the simple, quick and inexpensive resolution of disputes arising within the world of basketball in which FIBA, its Zones, or their respective divisions are not directly involved and with respect to which the parties to the dispute have agreed in writing to submit the same to the BAT." The characteristics of BAT emphasised in bold above are briefly outlined below:

   2.1 "FIBA, its Zones, or their respective divisions are not directly involved"

   This criterion serves first and foremost to distinguish the BAT from a merely internal body for the resolution of disputes. As explained in the Introduction above, according to the legal view of many countries a tribunal cannot qualify as an independent arbitration court if only one party to the dispute has an influence on the appointment of the "judge(s)".

   If, for example, the dispute concerns the transfer of a player from Club A in Austria to Club B in Germany, then according to FIBA's rules and regulations, FIBA's General Secretary (initially) decides whether there is a contract in existence which prevents the transfer, so FIBA is "directly involved". If such a legal dispute were to be finally decided by the BAT, only FIBA would have an influence on the appointment of the BAT arbitrator because, according to the rules and regulations of the BAT, FIBA has control - even if it is only indirect control - over the choice and appointment of the arbitrators. In such a case therefore the BAT could not act as a genuine arbitration court. That is why in international basketball disputes, in which FIBA is "directly involved", particularly disputes about transfers and doping cases, are decided not by the BAT, but in internal appeal proceedings and ultimately by the CAS as the court of last instance.

   The case is different with disputes between clubs, players and agents, for which the BAT was created (cf. 3 - 291 of the FIBA Internal Regulations: "The BAT is primarily designed to resolve disputes between clubs, players and agents."). Here, FIBA is precisely not "directly involved", as it has no jurisdiction whatsoever to decide disputes between third parties about players' salaries or agents' commission.

   FIBA's Internal Regulations therefore rightly describe the BAT as "independent", that is independent from the parties to the arbitration.

   2.2 "the parties to the dispute have agreed in writing"

   Arbitration courts require a unanimous declaration of will by the parties that they want any future disputes, or disputes which have already arisen, decided by an arbitration court. The voluntary nature of this declaration of will is an important criterion of arbitration and, as a matter of principle, this also applies fundamentally in the field of sport, even if, because of its monopolistic structure, the athlete often does not have any other choice but to "voluntarily" agree to an arbitration...