ARBITRAL AWARD BASKETBALL ARBITRAL TRIBUNAL (BAT)

Transcription

1 ARBITRAL AWARD () by the BASKETBALL ARBITRAL TRIBUNAL (BAT) Mr. Raj Parker in the arbitration proceedings between Mr. Georgios Dimitropoulos - Claimant - represented by Mr. Sofoklis P. Pilavios, attorney at law, 29 Irodotou Street, , Athens, Greece vs. Mr. Richard Elmer Dorsey Jr. - Respondent - represented by Mr. Lance Young, Excel Sports Management, 1700 Broadway 29 th Floor, New York, NY 10019, USA

2 1. The Parties 1.1 The Claimant 1. The Claimant is a professional FIBA-licensed basketball agent from Greece. 1.2 The Respondent 2. The Respondent is a professional basketball player from the USA. 2. The Arbitrator 3. On 10 December 2015, Prof. Richard H. McLaren, the President of the Basketball Arbitral Tribunal (the BAT ) appointed Mr. Raj Parker as arbitrator (the Arbitrator ) pursuant to Article 8.1 of the Rules of the Basketball Arbitral Tribunal (the BAT Rules ). None of the Parties has raised objections to the Arbitrator s appointment or to his declaration of independence. 3. Facts and Proceedings 3.1 Background Facts 4. On 29 July 2013, the Claimant (acting for himself and for his company G. DIMITROPOULOS & SIA EE ) and the Respondent entered into a Player s Agent Player Standard Representation Contract under which the Claimant was to act as the Respondent s agent for an initial period of two years (the Contract ). The Contract Arbitral Award 2/29

3 contains, among others, the following provisions: 2. Duration This agreement shall be valid from the day of its signature by the parties hereto and ending on 29/07/2015. Each party has the right to terminate this agreement by informing the other party in written [sic] (by registered letter or ) only during the last 15 (fifteen) days of the duration of the present agreement. In the event that this Agreement is not terminated by one of the parties hereto within the period mentioned above, it shall be construed as automatically renewed, for additional 1 (one) year, under the exact same terms and conditions. 3. Fee In consideration to the Agent s services, the Player shall be paying to the Agent a 10% of his gross annual salary, payable in cash and in one instalment, no later than 1 (one) month after the first official match of the competition that he will participate. Moreover, in addition to the above mentioned fee, the Player acknowledges that in order for his contract with FC Barcelona to be signed, the Agency accepted that it would be paid with 7% agent fee (instead of 10% as described herein) and Player recognizes that he owes the remaining (Euro eighteen thousand) to the Agency. With the present the Player authorizes the Agency to collect the aforementioned amount from the Player s next club, as downpayment for signing the Player. 4. Exclusivity This Agreement constitutes an exclusive collaboration between the parties hereto, prohibiting the Player during the term of this Agreement from collaborating with another agent/representative or proceeding on his own or any other third party to the negotiation and conclusion of any contract/convention/agreement, hereby acknowledging him as his sole and exclusive Agent. If Player is contacted by clubs or other representatives throughout the duration of this agreement, he must request them to discuss directly with the agent and should the player wishes to accept such offer, then the Agent is allowed to include any other agent/representative in the conclusion of the contract. [...] 8. Judicial Competence Arbitration Any dispute arising from or related to the present Contract shall be submitted to the FIBA 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 (PIL), irrespective of the parties domicile. The language of the arbitration of FIBA shall be English. The arbitrator shall decide the dispute ex aequo et bono. Arbitral Award 3/29

4 5. These proceedings relate to two contracts that the Respondent entered into with clubs after he and the Claimant entered into the Contract. The first, a contract with FC Barcelona for the , was negotiated by the Claimant for the Respondent (the FCB Contract ). The second, with Galatasaray for the season, was negotiated, or at least negotiations were completed, by another agent (the Galatasaray Contract ). 6. With regard to the FCB contract, the club only paid the Claimant an amount equal to 7% of the Respondent s salary, and the Claimant was to receive the remaining part of his 10% entitlement under the Contract from the Respondent directly. The Claimant claims that he agreed to accept that payment (EUR 18,000.00) later than required under the contract and that he has not been paid it. 7. After the Respondent s season with FC Barcelona, the Claimant (acting with a US agent, Alex Saratsis (the US Agent )) arranged for the Respondent to play in the NBA for the Houston Rockets during the season. The Respondent signed a contract to do so on 19 June On 24 February 2015 the Respondent sent the Claimant a text message indicating that he had terminated his contract with the US Agent. 9. Also on 24 February 2015, the Respondent s mother sent an to the US Agent (but not the Claimant) which had attached to it a letter. The letter, dated 23 February 2015 (the 23 February Letter ), was not signed but it appeared to be addressed to the Claimant and the US Agent. The substance of the letter was that the Respondent was firing the recipient or recipients as agent, and the exact words were: This letter shall serve as official notice that as of today, February 23, 2015, I am terminating our player-agent contract and any and all other representation agreements. I appreciate all you have done, but I feel that I need to move in a different direction moving forward. I ask that you please waive any waiting period in order for this termination to become effective immediately. Arbitral Award 4/29

5 10. The US Agent replied immediately and disputed the validity of the termination. 11. The Respondent continued to be in contact with the Claimant after 24 February 2015, including through several text messages exchanged between them. 12. In July 2015, the Claimant started contacting European clubs about the Respondent. Among them was Galatasaray, and on 23 July the Claimant obtained an offer from Galatasaray, along with a draft contract, for a player contract with a USD 500,000 salary, and the Claimant forwarded this to the Respondent. 13. On 11 August 2015, the Claimant heard a rumour that Respondent was about to sign for Galatasaray. The Claimant contacted the Respondent by text message and the Respondent stated that another agent, Lance Young, had been negotiating for him. The Claimant protested and demanded that Mr. Young stop negotiating for the Respondent because the Claimant was the Respondent s exclusive agent. During that exchange of messages, Respondent said, among other things, I didn t think I fired you I thought just [the US Agent]. 14. On 13 August 2015, Lance Young sent the US Agent an attaching the 23 February Letter, but this time with a signature on it, and this time copied to an address which had at least at some point in time been used by the Claimant. The Claimant asserts that the signature was markedly different from that on the Contract. 15. On 14 August 2015, the Claimant received an from the Respondent requesting that the Claimant stop communicating with international teams on the Respondent s behalf and asserting that the Respondent had sent a termination letter to the Claimant and the US Agent on 23 February The Claimant notes that this was sent to his old account, even though he had been exchanging s with the Respondent from a different account. Arbitral Award 5/29

6 16. In a further exchange of text messages on 17 August 2015, the Respondent again indicated that he did not know that sacking the US Agent and hiring Mr. Young would cut the Claimant out too. 17. On 18 August 2015 it was reported that Respondent had signed for Galatasaray for a salary of USD 650, The Claimant exchanged text messages with the Respondent about this and Respondent confirmed he had signed for Galatasaray and that they were paying more than USD 650, The Proceedings before the BAT 18. The Claimant filed the Request for Arbitration on 13 November 2015, having paid the non-reimbursable handling fee of EUR 2, on the same date. The Arbitrator was appointed on 10 December On 10 December 2015 the Advance on Costs was fixed at EUR 12, payable by the Claimant (EUR 6,000.00) and the Respondent (EUR 6,000.00), to be paid by 21 December There was some delay in BAT s receipt of the Claimant s share, which appears to have been because of an error or misunderstanding relating to the transmission of funds, but the Claimant paid his share of the Advance on Costs on 13 January The Respondent did not reply at all to the BAT s communications for some time, and did not pay its share of the Advance on Costs. The Respondent did not submit an Answer in time for the first deadline (7 January 2016). The BAT sent the papers confirming receipt of the Request for Arbitration a second time on 3 February, this time sent to addresses not only for the Respondent but for two of his representatives, one of whom was Mr. Young. This time BAT called for an Answer to be submitted by 24 February On 9 February the BAT wrote to the parties, again including Arbitral Award 6/29

7 Mr. Young, giving the Respondent a further extension of time to file an Answer, this time until 7 March On 8 March 2016, Mr. Young contacted BAT and requested until 21 March to file the Respondent s Answer. Mr. Young stated that he had only just received BAT s communications because they had gone to his junk folder. Mr. Young did not state whether the Respondent himself had received previous communications or explain why the Respondent had not engaged in these proceedings at all before 8 March On 11 March 2016 the BAT gave the Respondent another, final opportunity to file his Answer by 18 March 2016, which he did. 21. The Claimant initially opted to pay an additional EUR 1, in respect of an adjusted Advance on Costs and opt for an award without reasons in accordance with rule (a) of the BAT Rules. However, the Claimant subsequently requested, and the Arbitrator agreed to provide, an award with reasons for which the Claimant paid an additional EUR 5, The Claimant therefore ultimately paid a total amount in respect of the Advance on Costs of EUR 12, On 19 April 2016, the BAT wrote to the Parties with questions from the Arbitrator (the First Procedural Order ). The Claimant replied to the First Procedural Order on 27 April 2016 and the Respondent replied on 5 May On 14 July 2016, the Arbitrator asked further questions of the Respondent (the Second Procedural Order ). The Respondent replied on 20 July 2016, in compliance with the set deadline. 24. On 25 July 2016, the Arbitrator asked a further question of the Respondent (the Third Procedural Order ). The Respondent replied on 2 August 2016, in compliance with the set deadline. 25. On 5 August 2016, the Claimant made an unsolicited submission, by sent to the BAT Secretariat. Arbitral Award 7/29

8 26. On 1 September 2016, BAT wrote to the Parties informing them that the exchange of documents was complete and requesting detailed accounts of costs by 8 September Both Parties submitted accounts of their costs by 8 September 2016, but neither account was detailed. 27. On 8 September 2016, the BAT Secretariat gave the Parties each an opportunity to comment on the other s account of costs by 14 September 2016, but neither did so. 28. Since none of the Parties filed an application for a hearing, the Arbitrator decided, in accordance with Article 13.1 of the BAT Rules, not to hold a hearing and to deliver the award on the basis of the written submissions of the Parties. 4. The Positions of the Parties 4.1 The Claimant s Position 29. The Claimant submitted in essence that: (i) the 23 February Letter was not a valid termination of the Contract; (ii) from 20 July 2015, the Respondent sought and used the Claimant s services, and he only admitted Mr. Young s involvement after the rumours of a contract with Galatasaray; (iii) in addition to the EUR 18,000 owed in connection with the FCB Contract, the Claimant is owed 10% of Respondent s gross salary from Galatasaray. In order to calculate that, it is necessary to gross up the USD 650,000 to USD 764,000 (based on a 15% Turkish tax rate), and so the amount owed is Arbitral Award 8/29

9 USD 76, The Respondent's Position 30. The Respondent submitted in essence that: (i) the 23 February Letter was a valid termination of the Contract, and there is precedent to show that these agreements are revocable, at will, by either party, at anytime during the term ; (ii) the Claimant acted in a way that accepted the validity of the termination, by reacting angrily to the Respondent s decision to terminate the representation; (iii) the Respondent did not ask the Claimant to negotiate on his behalf during the summer of 2015, and all comments made by [the Claimant] were related to his new representation with Excel & BeoBasket ; and (iv) the Respondent s new agents had been negotiating with Galatasaray from March 2015, and it would be wholly unjust if the Claimant were to receive compensation for work he was not authorised to perform. 4.3 The Parties Further Submissions The First Procedural Order 31. In the First Procedural Order, the Arbitrator asked the Claimant: (i) when and in what circumstances he first received a copy of the 23 February Arbitral Award 9/29

10 Letter; and (ii) whether the Respondent replied to an that the Claimant sent on 22 July 2015, which made clear that the Claimant was working on options for Claimant for the season and would continue to do so. 32. In reply, the Claimant: (i) submitted that the first time he received the 23 February Letter was on 19 August 2015 when, at the Claimant s request, the US Agent forwarded it to him. The Claimant notes for completeness that he received the later version of the letter, i.e. the one with a signature, on 13 August 2015; (ii) the Respondent replied to the referred to at paragraph 31(ii) above with the words sounds good man (the Claimant pointed out that this communication had been among the exhibits to the Request for Arbitration); and (iii) supplied some additional, unsolicited remarks on two subjects: (A) first, he submitted that under FIBA regulations at the time the player signed the Galatasaray Contract he was not validly represented by his new agent; and (B) second, he submitted that if the Player received a lower amount under the Galatasaray Contract than that contract suggests, then this is irrelevant to the present dispute because it is irrelevant if the Respondent chose to move to another club and accept a lower income. Arbitral Award 10/29

11 33. In the First Procedural Order, the Arbitrator asked the Respondent: (i) whether he personally authorised the 23 February Letter being sent before it was sent and, if so, to describe the circumstances in which that authorisation was given; (ii) why that letter did not have his signature, whether electronic or otherwise; (iii) whether he understood, on 23 February 2015, that the letter s effect was to terminate the Contract; (iv) to provide a copy of the Galatasaray Contract; (v) to provide any comments he wished to make on the manner in which the Claimant in the Request for Arbitration has suggested any liability to the Claimant in respect of the Galatasaray Contract should be calculated; and (vi) to provide any comments he wished to make on submissions the Claimant had made regarding extensions to agency agreements which are not done in writing. 34. In reply, the Respondent: (i) said he asked his mother to send the 23 February Letter because he did not have access to a computer at that time; (ii) said the 23 February Letter did not have his signature because he was on the road and did not have access to a computer, and he is not well versed in electronic signatures. Only the Respondent and his mother have the password to the computer account, so he felt that it would act as a proper Arbitral Award 11/29

12 termination. The Respondent said his mother is authorised as a power of attorney and has acted on his behalf in other matters, signing approximately documents over the past 5 years, including buy-out documents with the Denver Nuggets and other important documents; (iii) answered in the affirmative that he fully understood that he was firing Octagon. He referred to a text from the US Agent to Lance Young effectively acknowledging that a number of players including the Respondent belonged to Mr. Young. He said he was with Lance Young from the start of his career in 2008, and only remained with Octagon in 2012/13 because Mr. Young had a 2 year non-compete arrangement with Octagon beginning in 2012 when Mr. Young took a new job at Excel Sports Management. After the non-compete period was over, Respondent wanted to go back to Mr. Young. While he remained friends with and still communicated with the Claimant, the Claimant knew Respondent was represented by Excel in the NBA and in Europe; (iv) provided a copy of the Galatasaray Contract, which provides for a USD 650, net salary for him. He also provided a note on Galatasaray letterhead which indicates that the Respondent ultimately received only USD 260, after taxes; (v) with regard to the manner in which any liability relating to the Galatasaray Contract should be calculated, the Respondent s reply included the following submission: Agents always receive 10 percent of the player s net salary. If a player is paid a gross salary (Real, Barcelona), the agents receive 7 percent of the player s gross salary, which is equal to approximately 10 percent of the net salary. It went on to argue that the Respondent only received USD 260, from Galatasaray and the Claimant should not be able to receive more than 10% of that. 10% of the entire (terminated) contract plus 10% of the gross salary would be much more then he would be entitled to if he Arbitral Award 12/29

13 were the authorised agent, and it would not be consistent with an ex aequo et bono approach if an agent who has been fired received a larger agent fee than what he would have received if he had not been fired. This would motivate agents not to do anything on behalf of their clients, wait to be fired and then collect a bigger agent fee through BAT; and (vi) after FIBA regulations prohibited automatic extensions, all extensions not in writing were invalid. The purpose of this rule was to equalise relationships between players and agents. Players often don t remember when the contract expires and in the majority of the cases do not send the notice to the agent. Agents should have to remind players and give them the option to decide whether to extend or not. The Arbitrator should determine that any non-written extension is invalid, especially one where the extension leads to the agent receiving an excessive and unwarranted agents fee The Second Procedural Order 35. In the Second Procedural Order, the Arbitrator asked the Respondent precisely how much he had received for his engagement with Galatasaray in the season, and any amount which he expected to receive for his engagement with Galatasaray in that season but had not yet received. If the total amount that the Respondent expected to receive for his engagement with Galatasaray in the season was less than USD 650,000.00, the Arbitrator asked the Respondent to explain why. 36. In reply, in a letter signed by him personally, the Respondent submitted that he only received USD 260, because the Galatasaray Contract ended early in February 2016 by mutual agreement, and he submitted a termination protocol (i.e. settlement agreement) to that effect. He also indicated that he signed for another club The Third Procedural Order Arbitral Award 13/29

14 37. In the Third Procedural Order, the Arbitrator asked the Respondent to state the total amount of his earnings as a professional basketball player in the season after the end of his contract with Galatasaray, and to provide documentary evidence of the amount of any such earnings. 38. In reply, the Respondent provided a letter signed by an FC Barcelona HR manager which expressed Respondent s earnings with that club in 2016 as follows: Concept Amount Amount agreed in the contract ,84 Salary 7.212,16 Gross amount ,00 Donation 2.350,00 Additional deductions ,00 Salary advance ,00 Taxes ,51 Social Security 950,35 Total deductions ,86 Net amount ,14 5. Jurisdiction 39. Pursuant to Article 2.1 of the BAT Rules, [t]he seat of the BAT and of each arbitral proceeding before the Arbitrator shall be Geneva, Switzerland. Hence, this BAT arbitration is governed by Chapter 12 of PILA. 40. The jurisdiction of the BAT presupposes the arbitrability of the dispute and the Arbitral Award 14/29

15 existence of a valid arbitration agreement between the Parties. 5.1 Arbitrability 41. The Arbitrator notes that the dispute referred to him is clearly of a financial nature and is thus arbitrable within the meaning of Article 177(1) PILA Formal and substantive validity of the arbitration agreement 42. Art. 8 of the Contract is an arbitration clause in favour of the BAT which is set out at paragraph 4 above. 43. The Contract is in written form and thus the arbitration clause fulfils the formal requirements of Article 178(1) PILA. With respect to substantive validity, the Arbitrator considers that there is no indication in the file that could cast doubt on the validity of the arbitration agreement under Swiss law (referred to by Article 178(2) of the PILA). In particular, the wording [a]ny dispute arising from or related to the present contract in Art. 8 clearly covers the present dispute. In addition, the Respondent did not object to the jurisdiction of BAT. 44. For the above reasons, the Arbitrator has jurisdiction to adjudicate the Claimant s claim. 1 Decision of the Federal Tribunal 4P.230/2000 of 7 February 2001 reported in ASA Bulletin 2001, p Arbitral Award 15/29

16 6. Discussion 6.1 Applicable Law ex aequo et bono 45. With respect to the law governing the merits of the dispute, Article 187(1) PILA provides that the arbitral tribunal must decide the case according to the rules of law chosen by the Parties or, in the absence of a choice, according to the rules of law with which the case has the closest connection. Article 187(2) PILA adds that the Parties may authorize the arbitrators to decide en équité, as opposed to a decision according to the rule of law referred to in Article 187(1). Article 187(2) PILA is generally translated into English as follows: the parties may authorise the arbitral tribunal to decide ex aequo et bono. 46. Under the heading Applicable Law, Article 15.1 of the BAT Rules reads as follows: Unless the parties have agreed otherwise the Arbitrator shall decide the dispute ex aequo et bono, applying general considerations of justice and fairness without reference to any particular national or international law. 47. Article 8 of the Contract states [t]he arbitrator shall decide the dispute ex aequo et bono. 48. In light of the above, the Arbitrator will decide the issues submitted to him in this proceeding ex aequo et bono. 49. The concept of équité (or ex aequo et bono) used in Article 187(2) PILA originates from Arbitral Award 16/29

17 Article 31(3) of the Concordat intercantonal sur l arbitrage 2 (Concordat), 3 under which Swiss courts have held that arbitration en équité is fundamentally different from arbitration en droit : When deciding ex aequo et bono, the arbitrators pursue a conception of justice which is not inspired by the rules of law which are in force and which might even be contrary to those rules In substance, it is generally considered that the arbitrator deciding ex aequo et bono receives a mandate to give a decision based exclusively on equity, without regard to legal rules. Instead of applying general and abstract rules, he/she must stick to the circumstances of the case This is confirmed by Article 15.1 of the BAT Rules in fine according to which the arbitrator applies general considerations of justice and fairness without reference to any particular national or international law. 52. In light of the foregoing matters, the Arbitrator makes the following findings. 6.2 Findings 53. The key issues are: (i) whether the Respondent owes the Claimant EUR 18, in connection with That is the Swiss statute that governed international and domestic arbitration before the enactment of the PILA (governing international arbitration) and, most recently, the Swiss Code of Civil Procedure (governing domestic arbitration). P.A. KARRER, Basler Kommentar, No. 289 ad Art. 187 PILA. JdT 1981 III, p. 93 (free translation). POUDRET/BESSON, Comparative Law of International Arbitration, London 2007, No. 717, pp Arbitral Award 17/29

18 the FCB Contract; (ii) whether the Contract had been terminated on or before 29 July 2015 by the Respondent s choice, either as a result of the 23 February Letter or otherwise; (iii) whether the Respondent breached the Contract in relation to his negotiation and signing of the Galatasaray Contract; and (iv) whether the Contract extended for one year after 29 July 2015 in accordance with its terms Does the Respondent owe the Claimant EUR 18, in connection with the FCB Contract? 54. The Respondent has not denied the allegation that he owes and has not paid the Claimant EUR 18, under the Contract, which is expressly provided for in Art. 3 of the Contract and arises from FC Barcelona paying the Claimant an amount equal to only 7% of the Respondent s salary under the FCB Contract. The Arbitrator finds that the amount is owed and has not been paid. 55. Art. 3 of the Contract does not specify a date on which the Respondent must pay the Claimant the EUR 18,000.00, but it does authorise (not require) the Claimant to collect payment from the Respondent s next club as downpayment for signing the [Respondent]. The Arbitrator finds that this provision means that the Claimant agreed to accept payment at an unspecified future date of which the Claimant could give notice in due course, which might be as late as or later than the start of the season. 56. The Claimant has submitted, and the Arbitrator accepts, that the Claimant did not in fact demand payment of the EUR 18, when the Respondent started playing for Arbitral Award 18/29

19 the Houston Rockets in In the circumstances, the Arbitrator finds that the Claimant did not demand payment of the EUR 18, until he started these proceedings by filing the Request for Arbitration on 13 November The EUR 18, became due for payment on that date Was the Contract terminated on or before 29 July 2015 by the Respondent s choice, either as a result of the 23 February Letter or otherwise? 57. As a preliminary observation, the Arbitrator notes that the Respondent has referred to firing Octagon. The Contract is an agreement between (on one hand) the Respondent and (on the other hand) the Claimant on behalf of himself and G. DIMITROPOULOS & SIA EE. Whatever the Respondent meant by referring to Octagon, terminating the Contract could only affect the Respondent s contractual relations with the Claimant and G. DIMITROPOULOS & SIA EE. 58. The Contract s provisions as to its term and the circumstances in which it may be terminated are set out in Art. 2 (see paragraph 4 above). They mean that: (i) the Contract came into effect on 29 July 2013 and it would remain in effect, in the first instance, until 29 July 2015; (ii) if either party gave notice in writing by registered letter or to the other party between 15 July 2015 and 29 July 2015 inclusive of an intention to terminate the Contract, then the Contract would end on 29 July 2015; and (iii) otherwise, the Contract would continue in effect, on the same terms, until (and including) 29 July 2016, at which point it would end. 59. The termination provisions in the Contract provide for unilateral termination at will; that is, they prescribe the circumstances in which either party can terminate the Contract Arbitral Award 19/29

20 without a reason. The termination provisions in the contract do not provide for unilateral termination for cause; that is, they do not prescribe the circumstances in which either party could terminate the Contract as a result of a breach of the Contract by the other party, or for some other particular reason. 60. The Respondent has not submitted that he terminated the Contract for cause. No reason was given in the 23 February Letter or in the Respondent s submissions. Simply wanting to go back to a person who had previously been the Respondent s agent does not give rise to cause for these purposes, and the Arbitrator does not believe that the Respondent has contended otherwise. Accordingly, if the Respondent terminated the Contract then it must have been a termination at will. 61. The Contract s provisions for termination at will (i.e. the requirement to give notice in writing by registered letter or to the other party during the last 15 days of the Contract s term) are reasonable. This is not a case where the relevant provisions are one-sided, or are difficult or impossible to comply with because, e.g., they are connected to a moving date such as the last official game of the season. It is consistent with an ex aequo et bono jurisdiction to uphold a contract which remains binding on a player for a defined period of time and which specifies the days on which the parties can terminate that contract at will. Therefore, the Contract could only have been terminated at will by the Respondent if he did so by registered letter or to the Claimant between 15 July 2015 and 29 July 2015 inclusive. 62. The 23 February Letter was not sent to the Claimant by registered letter or between 15 July 2015 and 29 July 2015 inclusive. Neither was any other notice of termination. Accordingly, the Contract was not terminated on or before 29 July 2015, either as a result of the 23 February Letter or otherwise. 63. Additionally, and separate from the question of when and whether effective notice was given for the purposes of the Contract (e.g. even if the Respondent had argued that a Arbitral Award 20/29

21 termination before the 15-day window should in good faith have terminated the Contract), the Arbitrator finds that the Claimant did not in fact know that the Respondent had even purported to terminate the Contract until 11 August This was in large part because the Respondent continued to communicate with the Claimant after terminating his agreement with the US Agent, and to do so in a manner which was inconsistent with him also having terminated the Contract. In this regard the Arbitrator notes in particular: (i) the exchange of s on 22 July 2015 in which the Claimant made clear that he was contacting European clubs on the Claimant s behalf and he intended to continue to, and the Claimant replied [s]ounds good, man ; and (ii) the exchanges of text messages in August 2015, in which the Claimant objected in strong and clear terms to the Respondent s use of another agent. In these exchanges the Respondent did not suggest that he thought the Claimant already knew he had been fired rather, he said he did not understand that he had fired the Claimant at the same time as he terminated his contract with the US Agent Did the Respondent breach the Contract in relation to his negotiation and signing of the Galatasaray Contract? 64. As found above, the Contract was not terminated on or before 29 July It was therefore in effect until at least that date. The Respondent has submitted in the Answer that Excel Sports Management and BeoBasket had begun these negotiations on behalf of Dorsey starting in March It would be unjust and wholly inequitable for Claimant to receive compensation for work that Claimant was not authorized to perform. 65. Therefore, it is the Respondent s own case that agents other than the Claimant were Arbitral Award 21/29

22 negotiating on his behalf before 29 July 2015, and the Arbitrator accepts that that is true. Also, the Respondent has expressly stated that the Galatasaray Contract, which was signed after 29 July 2015, arose from the negotiations which started in March 2015; the Arbitrator accepts that that is true too. These negotiations were a breach of the exclusivity provision (Art. 4) in the Contract, and the Claimant is entitled to compensation for that breach. 66. The compensation to which the Claimant is entitled is the fee to which he would have been entitled under the Contract. That fee, under Art. 3 of the Contract, is 10% of the Respondent s gross annual salary. 67. The Galatasaray Contract provided for salary for the Respondent of USD 650, In fact the Galatasaray Contract was terminated early and the Respondent claims to have received (and to have agreed to receive) a reduced amount (USD 260,000.00) from Galatasaray. The Respondent subsequently started to play for FC Barcelona in the same season, and the Arbitrator accepts, and finds, that the Respondent received USD 260, under the Galatasaray Contract. The Arbitrator notes that the Respondent s new agent may have received USD 65, under the Galatasaray Contract. However, the Claimant s entitlement under the Contract is calculated by reference to the Respondent s salary and not any other figure. 68. With regard to the gross aspect of the Claimant s entitlement: (i) the financial arrangement between players and agents is typically that an agent is entitled to be paid an amount which is derived from the amount which the player is paid; (ii) the Contract reflects just such an arrangement; (iii) the Arbitrator notes and broadly accepts the Respondent s submissions about Arbitral Award 22/29

23 this provision in his reply to the First Procedural Order (see paragraph 33(v) and 34(v) above). That is, in contracts of this type agents are generally entitled to 10% of players net salary, but where players are paid a gross salary, the agents receive 7 percent of the player s gross salary, which is equal to approximately 10 percent of the net salary; (iv) therefore, considering the matter ex aequo et bono, the Arbitrator finds that Art. 3 means that the Claimant is entitled to receive an amount equal to 10% of the amount that the Respondent actually receives as salary in a particular season. 69. Therefore, the Claimant is entitled to receive, and the Respondent must pay him, USD 26, in relation to the Galatasaray Contract. That amount became due for payment one month after the first official match of the competition in which the Respondent participated with Galatasaray. The Claimant has submitted, and the Respondent has not disputed, that the relevant first official match was on 10 October 2015, and the Arbitrator so finds. Accordingly, and as the Claimant has submitted, the payment to the Claimant in respect of the Galatasaray Contract became due on 10 November The Respondent has submitted evidence that he subsequently played for FC Barcelona, and that he received a salary of 235, for doing so. The Arbitrator understands this to be a EUR amount, given that the amounts deducted for taxes and social security (and therefore all other amounts stated in the table at paragraph 38 above) are presumably in Spain s currency, but this is not clear from the evidence submitted. The Claimant has not claimed any amount in respect of this engagement with FC Barcelona. The Claimant did make an unsolicited submission on 5 August 2016, after the Respondent had submitted that he had played for another club after Galatasaray in the season. Rather than asserting any claim to payment in respect of a subsequent contract, the Claimant requested that the Arbitrator take Arbitral Award 23/29

24 account of the fact that under the termination protocol with Galatasaray the Respondent s new agent would receive USD 65, from Galatasaray. As explained at paragraph 67 above, the Arbitrator does not consider that he should do so. 71. In any event, by the time that the subsequent contract with FC Barcelona was entered into, these proceedings had started and it had been obvious for some time that the relationship governed by the Contract had broken down and ended. Accordingly, acting ex aequo et bono, the Arbitrator finds no liability to the Claimant under the Contract in relation to the subsequent (2016) FC Barcelona contract Was the Contract extended for one year after 29 July 2015 in accordance with its terms? 72. In his reply to the First Procedural Order, the Respondent submitted that: beginning when FIBA first prohibited automatic extensions, all extensions not in writing are invalid. The purpose of FIBA creating this rule was to equalize the relationships between players and agents. The players are athletes, focused on practices and games, and they are not necessarily familiar with contracts and contract terms. The players often don t remember when the contract expires and in the majority of the cases do not send the notice to the agent. Agents, as the professionals, should have to remind players and give them the option to decide whether to do the extension or not. Agents, almost never do this, and the contract is extended without the knowledge or permission of the players. FIBA considered this system unfair and created the new rule. In light of the reasons for creating the new rule, BAT should determine that any non-written extension is invalid. Following the principle of ex aequo et bono, any non-written extension that did not seek the players permission and especially one where the extension leads to the agent receiving an excessive and unwarranted agents fee. 73. The Arbitrator understands this submission, and the Claimant s related submission in paragraph 50 of the Request for Arbitration, to refer to Art of the FIBA regulations: [t]he duration of a contract shall not exceed a period of two (2) years but may be renewed through a new written contract of the parties. Arbitral Award 24/29

25 74. The Respondent is liable for a breach of contract which occurred before the end of the Contract s initial term. It is therefore unnecessary for the Arbitrator to decide whether the Contract s provision that it will extend for a further year if not terminated is in breach of Art of the FIBA regulations or whether, if it were so in breach, the Arbitrator acting ex aequo et bono would recognise and enforce it Interest 75. The Claimant has requested interest on amounts awarded at 5% per annum. Although the Contract does not provide for the payment of default interest, this is a generally accepted principle which is embodied in most legal systems. Indeed, payment of interest is a customary and necessary compensation for late payment, and the Arbitrator considers that there is no reason why the Claimant should not be awarded interest in this case. Also, according to BAT jurisprudence, default interest can be awarded even if the underlying agreement does not explicitly provide for an obligation to pay interest. The Arbitrator further considers, in line with the jurisprudence of the BAT, that 5% per annum is a reasonable rate of interest and that such rate should be applied in this case. 76. Accordingly, the Arbitrator finds that the Respondent must pay the Claimant interest of 5% per annum: (i) on EUR 18,000.00, with interest to run from 14 November 2015, i.e. the day after the payment in respect of the FCB Contract became due; and (ii) on USD 26,000.00, with interest to run from 11 November 2015, i.e. the day after the payment in respect of the Galatasaray Contract became due. Arbitral Award 25/29

26 7. Costs 77. Article 17.2 of the BAT Rules provides that the final amount of the costs of the arbitration (which include the administrative and other costs of BAT and the fees and costs of the BAT President and the Arbitrator) shall be determined by the BAT President and may either be included in the award or communicated to the Parties separately. It also provides that the fees of the Arbitrator shall be calculated on the basis of time spent at a rate to be determined by the BAT President from time to time. 78. On 11 January 2017 pursuant to Article 17.2, and taking into account all the circumstances of the case, including the time spent by the Arbitrator, the complexity of the case and the procedural questions raised, the BAT President determined the arbitration costs in the present matter at EUR 12, Article 17.3 of the BAT Rules provides that, as a general rule, the award shall grant the prevailing party a contribution towards its reasonable legal fees and expenses incurred in connection with the proceedings. In doing so, the Arbitrator shall primarily take into account the relief(s) granted compared with the relief(s) sought and, secondarily, the conduct and financial resources of the parties. 80. The Claimant was awarded less than the amount he claimed. However, the Arbitrator notes that the Claimant has been awarded 100% of the amount he claimed in respect of the FCB Contract and approximately 34% of the amount he claimed in respect of the Galatasaray Contract. With regard to the Galatasaray Contract, there are two reasons why the Claimant has been awarded less than he claimed: (i) the Claimant based his claim on an argument that the Respondent s salary should be grossed up for the purposes of calculating the amount owed to him under the Contract, and the Arbitrator has found that to be incorrect. This factor on its own caused the amount that the Claimant was awarded in respect Arbitral Award 26/29

27 of the Galatasaray Contract to be reduced by approximately 17%; and (ii) the Respondent in fact earned substantially less under the Galatasaray Contract than that contract provided for, and that fact was not known when the Claimant started these proceedings. 81. The Arbitrator considers that only the first of the two reasons mentioned at paragraph 80 above should affect the Claimant s entitlement to recover costs in these proceedings. That reason made the difference between the Claimant being awarded approximately USD 30, (based on the Claimant s method of calculation) and USD 26, (the amount actually awarded). Taking into account both amounts awarded, and based on current exchange rates, this made the difference between the Claimant being awarded a total of approximately EUR 46, (based on the Claimant s method of calculation) and approximately EUR 41, (based on the amounts actually awarded). That is, ignoring matters which the Arbitrator considers should not affect the Claimant s entitlement to recover costs in these proceedings, the Claimant recovered approximately 90% of the amount he claimed. Accordingly, the Arbitrator finds that the Claimant is entitled to recover 90% of the costs of the arbitration, as determined by the BAT President. 82. The Claimant has claimed a total amount for legal fees and expenses including the non-reimbursable fee of EUR 7, The Arbitrator notes in this regard that under rule 17.4 of the BAT Rules this is the highest amount that can be claimed in a case such as this where the sum in dispute is between EUR 30, and EUR 100, The Claimant failed, as required, to provide a detailed account of his costs. These proceedings have been reasonably complicated and a significant matter (i.e. the value of the Galatasaray Contract) changed after they were started. In light of the complexity of the matter, the Claimant s failure with regard to his account of costs, and the matters stated at paragraphs 80 and 81 above, it is fair that 80% of the Claimant s legal fees and expenses be borne by the Respondent. Arbitral Award 27/29

28 83. Therefore, the Arbitrator decides: (i) the Respondent shall pay to the Claimant EUR 10, as reimbursement of arbitration costs advanced by the Claimant; and (ii) the Respondent shall pay to the Claimant EUR 6,000.00, as a contribution towards the Claimant s legal fees and expenses. Arbitral Award 28/29

29 8. AWARD For the reasons set forth above, the Arbitrator decides as follows: 1. Mr. Richard Elmer Dorsey Jr. is ordered to pay to Mr. Georgios Dimitropoulos EUR 18, net as compensation for unpaid fees plus interest at 5% per annum from 14 November Mr. Richard Elmer Dorsey Jr. is ordered to pay to Mr. Georgios Dimitropoulos USD 26, net as compensation for breach of contract plus interest at 5% per annum from 11 November Mr. Richard Elmer Dorsey Jr. is ordered to pay to Mr. Georgios Dimitropoulos EUR 10, as reimbursement of the advance on BAT costs. 5. Mr. Richard Elmer Dorsey Jr. is ordered to pay to Mr. Georgios Dimitropoulos EUR 6, as a contribution towards his legal fees and expenses. 6. Any other or further-reaching requests for relief are dismissed. Geneva, seat of the arbitration, 23 January 2017 Raj Parker (Arbitrator) Arbitral Award 29/29