Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The European Commission’s ISU antitrust investigation explained. By Ben Van Rompuy

In June 2014, two prominent Dutch speed skaters, Mark Tuitert (Olympic Champion 1500m) and Niels Kerstholt (World Champion short track), filed a competition law complaint against the International Skating Union (ISU) with the European Commission.


ChanceToCompeteTwitter.png (50.4KB)


Today, the European Commission announced that it has opened a formal antitrust investigation into International Skating Union (ISU) rules that permanently ban skaters from competitions such as the Winter Olympics and the ISU World and European Championships if they take part in events not organised or promoted by the ISU. The Commissioner for Competition, Margrethe Vestager, stated that the Commission "will investigate if such rules are being abused to enforce a monopoly over the organisation of sporting events or otherwise restrict competition. Athletes can only compete at the highest level for a limited number of years, so there must be good reasons for preventing them to take part in events."

Since the case originates from legal advice provided by the ASSER International Sports Law Centre, we thought it would be helpful to provide some clarifications on the background of the case and the main legal issues at stake. More...





Interview with Wil van Megen (Legal Director of FIFPro) on FIFPro’s EU Competition Law complaint against the FIFA Transfer System

Editor’s note
Wil is working as a lawyer since 1980. He started his legal career at Rechtshulp Rotterdam. Later on he worked for the Dutch national trade union FNV and law firm Varrolaan Advocaten. Currently he is participating in the Labour Law Section of lawfirm MHZ-advocaten in Schiedam in the Netherlands. He is also a member of a joint committee advising the government in labour issues.

Since 1991 he is dealing with the labour issues of the trade union for professional football players VVCS and cyclists’ union VVBW. Since 2002, he works for FIFPro, the worldwide union for professional football players based in Hoofddorp in the Netherlands. He is involved in many international football cases and provides legal support for FIFPro members all over the world. Wil was also involved in the FIFPro Black Book campaign on match fixing and corruption in Eastern Europe. More...


The Scala reform proposals for FIFA: Old wine in new bottles?

Rien ne va plus at FIFA. The news that FIFA’s Secretary General Jérôme Valcke was put on leave and released from his duties has been quickly overtaken by the opening of a criminal investigation targeting both Blatter and Platini.

With FIFA hopping from one scandal to the next, one tends to disregard the fact that it has been attempting (or rather pretending) to improve the governance of the organisation for some years now. In previous blogs (here and here), we discussed the so-called ‘FIFA Governance Reform Project’, a project carried out by the Independent Governance Committee (IGC) under the leadership of Prof. Dr. Mark Pieth of the Basel Institute on Governance. Their third and final report, published on 22 April 2014, listed a set of achievements made by FIFA in the area of good governance since 2011, such as establishing an Audit and Compliance Committee (A&C). However, the report also indicated the reform proposals that FIFA had not met. These proposals included the introduction of term limits for specific FIFA officials (e.g. the President) as well as introducing an integrity review procedure for all the members of the Executive Committee (ExCo) and the Standing Committees. More...

Why the CAS #LetDuteeRun: the Proportionality of the Regulation of Hyperandrogenism in Athletics by Piotr Drabik

Editor's note
Piotr is an intern at the ASSER International Sports Law Centre.

Introduction

On 24 July the Court of Arbitration for Sport (CAS) issued its decision in the proceedings brought by the Indian athlete Ms. Dutee Chand against the Athletics Federation of India (AFI) and the International Association of Athletics Federations (IAAF) in which she challenged the validity of the IAAF Regulations Governing Eligibility of Female with Hyperandrogenism to Compete in Women’s Competition (Regulations). The Regulations were established in 2011 as a response to the controversies surrounding South African athlete Caster Semenya (see e.g. here, here, and here), and for the purpose of safeguarding fairness in sport by prohibiting women with hyperandrogenism, i.e. those with excessive levels of endogenous (naturally occurring) testosterone, from competing in women athletics competitions. Owing to the subject-matter that the Regulations cover, the case before the CAS generated complex legal, scientific and ethical questions. The following case note thus aims at explaining how the Panel addressed the issues raised by the Indian athlete. It follows a previous blog we published in December 2014 that analysed the arguments raised in favour of Ms. Chand. More...




Not comfortably satisfied? The upcoming Court of Arbitration for Sport case of the thirty-four current and former players of the Essendon football club. By James Kitching

Editor's note: James Kitching is Legal Counsel and Secretary to the AFC judicial bodies at the Asian Football Confederation. James is an Australian and Italian citizen and one of the few Australians working in international sports law. He is admitted as barrister and solicitor in the Supreme Court of South Australia. James graduated from the International Master in the Management, Law, and Humanities of Sport offered by the Centre International d'Etude du Sport in July 2012.


Introduction

On 12 May 2015, the Court of Arbitration for Sport (CAS) announced that the World Anti-Doping Agency (WADA) had filed an appeal against the decision issued by the Australian Football League (AFL) Anti-Doping Tribunal (AADT) that thirty-four current and former players of Essendon Football Club (Essendon) had not committed any anti-doping rule violation (ADRV) identified within the AFL Anti-Doping Code (AADC). The players had each been charged with using Thymosin-Beta 4 (TB4) during the 2012 AFL season.

On 1 June 2015, WADA announced that it had filed an appeal against the decision by the AADT to clear Mr. Stephen Dank (Dank), a sports scientist employed at Essendon during the relevant period, of twenty-one charges of violating the AADC. Dank was, however, found guilty of ten charges and banned for life.

This blog will solely discuss the likelihood of the first AADT decision (the Decision) being overturned by the CAS. It will briefly summarise the facts, discuss the applicable rules and decision of the AADT, review similar cases involving ‘non-analytical positive’ ADRVs relating to the use of a prohibited substance or a prohibited method, and examine whether the Code of Sports-related Arbitration (CAS Code) is able to assist WADA in its appeal.

This blog will not examine the soap opera that was the two years leading-up to the Decision. Readers seeking a comprehensive factual background should view the excellent up-to-date timeline published by the Australian Broadcasting Corporation. More...


EU Law is not enough: Why FIFA's TPO ban survived its first challenge before the Brussels Court


Star Lawyer Jean-Louis Dupont is almost a monopolist as far as high profile EU law and football cases are concerned. This year, besides a mediatised challenge against UEFA’s FFP regulations, he is going after FIFA’s TPO ban on behalf of the Spanish and Portuguese leagues in front of the EU Commission, but also before the Brussels First Instance Court defending the infamous Malta-based football investment firm Doyen Sport. FIFA and UEFA’s archenemy, probably electrified by the 20 years of the Bosman ruling, is emphatically trying to reproduce his world-famous legal prowess. Despite a first spark at a success in the FFP case against UEFA with the Court of first instance of Brussels sending a preliminary reference to the Court of Justice of the EU (CJEU), this has proven to be a mirage as the CJEU refused, as foretold, to answer the questions of the Brussels Court, while the provisory measures ordered by the judge have been suspended due to UEFA’s appeal. But, there was still hope, the case against FIFA’s TPO ban, also involving UEFA and the Belgium federation, was pending in front of the same Brussels Court of First Instance, which had proven to be very willing to block UEFA’s FFP regulations. Yet, the final ruling is another disappointment for Dupont (and good news for FIFA). The Court refused to give way to Doyen’s demands for provisional measures and a preliminary reference. The likelihood of a timely Bosman bis repetita is fading away. Fortunately, we got hold of the judgment of the Brussels court and it is certainly of interest to all those eagerly awaiting to know whether FIFA’s TPO ban will be deemed compatible or not with EU law. More...


The New FIFA Intermediaries Regulations under EU Law Fire in Germany. By Tine Misic

I'm sure that in 1985, plutonium is available in every corner drugstore, but in 1955, it's a little hard to come by.” (Dr. Emmett L. Brown)[1]


Back to the future?

Availing oneself of EU law in the ambit of sports in 1995 must have felt a bit like digging for plutonium, but following the landmark ruling of the European Court of Justice (ECJ) in the Bosman case[2], 20 years later, with all the buzz surrounding several cases where EU law is being used as an efficient ammunition for shelling various sports governing or organising bodies, one may wonder if in 2015 EU law is to be “found in every drug store” and the recent cases (see inter alia Heinz Müller v 1. FSV Mainz 05, Daniel Striani ao v UEFA, Doyen Sports ao v URBSFA, FIFA, UEFA) [3] cannot but invitingly evoke the spirit of 1995.

One of the aforementioned cases that also stands out pertains to the injunction decision[4] issued on 29 April 2015 by the Regional Court (Landesgericht) in Frankfurt am Main (hereinafter: the Court) in the dispute between the intermediary company Firma Rogon Sportmanagement (hereinafter: the claimant) and the German Football Federation (Deutschen Fußball-Bund, DFB), where the claimant challenged the provisions of the newly adopted DFB Regulations on Intermediaries (hereinafter: DFB Regulations)[5] for being incompatible with Articles 101 and 102 TFEU.[6] The Court, by acknowledging the urgency of the matter stemming from the upcoming transfer window and the potential loss of clients, deemed a couple of shells directed at the DFB Regulations to be well-aimed, and granted an injunction due to breach of Article 101 TFEU. More...




Compatibility of fixed-term contracts in football with Directive 1999/70/EC. Part 2: The Heinz Müller case. By Piotr Drabik

Introduction
The first part of the present blog article provided a general introduction to the compatibility of fixed-term contracts in football with Directive 1999/70/EC[1] (Directive). However, as the Member States of the European Union enjoy a considerable discretion in the implementation of a directive, grasping the impact of the Directive on the world of football would not be possible without considering the national context. The recent ruling of the Arbeitsgericht Mainz (the lowest German labour court; hereinafter the Court) in proceedings brought by a German footballer Heinz Müller provides an important example in this regard. This second part of the blog on the legality of fixed-term contract in football is devoted to presenting and assessing the Court’s decision.


I. Facts and Procedure
Heinz Müller, the main protagonist of this case, was a goalkeeper playing for 1.FSV Mainz 05 a club partaking to the German Bundesliga. More...


Compatibility of Fixed-Term Contracts in Football with Directive 1999/70/EC. Part.1: The General Framework. By Piotr Drabik

Introduction
On 25 March 2015, the Labour Court of Mainz issued its decision in proceedings brought by a German footballer, Heinz Müller, against his (now former) club 1. FSV Mainz 05 (Mainz 05). The Court sided with the player and ruled that Müller should have been employed by Mainz 05 for an indefinite period following his 2009 three year contract with the club which was subsequently extended in 2011 to run until mid-2014. The judgment was based on national law implementing Directive 1999/70 on fixed-term work[1] (Directive) with the latter being introduced pursuant to art. 155(2) TFEU (ex art. 139(2) TEC). On the basis of this article, European social partners’ may request a framework agreement which they conclude to be implemented on the European Union (EU, Union) level by a Council decision on a proposal from the Commission. One of the objectives of the framework agreement,[2] and therefore of the Directive, was to establish a system to prevent abuse arising from the use of successive fixed-term employment contracts or relationships[3] which lies at the heart of the discussed problem.[4] More...

UEFA’s FFP out in the open: The Dynamo Moscow Case

Ever since UEFA started imposing disciplinary measures to football clubs for not complying with Financial Fair Play’s break-even requirement in 2014, it remained a mystery how UEFA’s disciplinary bodies were enforcing the Club Licensing and Financial Fair Play (“FFP”) regulations, what measures it was imposing, and what the justifications were for the imposition of these measures. For over a year, the general public could only take note of the 23 settlement agreements between Europe’s footballing body and the clubs. The evidential obstacle for a proper analysis was that the actual settlements remained confidential, as was stressed in several of our previous Blogs.[1] The information provided by the press releases lacked the necessary information to answer the abovementioned questions.

On 24 April 2015, the UEFA Club Financial Control Body lifted part of the veil by referring FC Dynamo Moscow to the Adjudicatory Body. Finally, the Adjudicatory Body had the opportunity to decide on a “FFP case. The anxiously-awaited Decision was reached by the Adjudicatory Chamber on 19 June and published not long after. Now that the Decision has been made public, a new stage of the debate regarding UEFA’s FFP policy can start.More...

Asser International Sports Law Blog | Image Rights in Professional Basketball (Part I): The ‘in-n-out rimshot’ of the Basketball Arbitral Tribunal to enforce players’ image rights contracts. By Thalia Diathesopoulou

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Image Rights in Professional Basketball (Part I): The ‘in-n-out rimshot’ of the Basketball Arbitral Tribunal to enforce players’ image rights contracts. By Thalia Diathesopoulou

A warning addressed to fans of French teams featuring in the recently launched video game NBA 2K15: Hurry up! The last jump ball for Strasbourg and Nanterre in NBA 2K 15 may occur earlier than expected. The French Labour Union of Basketball (Syndicat National du Basket, SNB) is dissatisfied that Euroleague and 2K Games did not ask (nor paid) for its permission before including the two teams of Pro A in the NBA 2K15 edition. What is at issue? French basketball players’ image rights have been transferred to SNB, which intends to start proceedings before the US Courts against 2K Games requesting 120.000 euros for unauthorized use of the players’ image rights. SNB is clear: it is not about the money, but rather to defend the players’ rights.[1] Strasbourg and Nanterre risk to “warm up” the virtual bench if this litigation goes ahead. 

Source: http://forums.nba-live.com/viewtopic.php?f=149&t=88661&start=250 

The clash between SNB and 2K Games, albeit unprecedented at the European level, should not come as a surprise. The commercialization of athletes’ image rights has become a sine qua non component of sports marketing.[2] The transfer of professional players’ image rights to their clubs or third parties is for some of them more lucrative than their salaries. In the framework of international basketball, this has led to the proliferation of image rights contracts, signed by the players in addition to their employment contracts. While the legal nature of image rights and their unauthorized use by third parties has been recently extensively debated- in the wake of US College Athletes image rights cases before US Courts which will be discussed in the second part of this blog series[3]-, image rights contracts and their enforcement by basketball players before the Basketball Arbitral Tribunal (BAT)[4] are still very much uncharted territories.

This blogpost will look at the basketball players’ image rights contracts in a three-pronged approach. First, we will explain how image rights contracts in international basketball serve as tax loopholes by the clubs, which increasingly force players to sign them (I). Thereafter, based on BAT’s case law, we will attempt to build a legal roadmap with regard to the enforcement of image rights contracts by players. In this light, we will examine the relationship between the main contract and the image rights contract as well as the role of the different dispute settlement clauses included in the different contracts when assessing BAT’s jurisdiction (II). Finally, we will analyse the position of the BAT in enforcing image rights contracts and the significant impact of its awards in the basketball world, taking into account the unique features of basketball arbitration (III). 


I. Image rights contracts in international basketball: Cherchez l’argent!

The use of image rights contracts leads to two possible scenarios. In the first one, which is the most common, a player signs an employment contract with a club indicating the player’s remuneration net of all taxes. This initial contract is usually characterized as the “main agreement”[5] or “master agreement”[6]. Thereafter, the club approaches the player with two additional contracts: the league contract which provides for a remarkably lower monthly salary than the main contract; and an image rights contracts, where the player assigns his rights to a third party, an image rights company. The league contract reporting a much lower wage than the wage actually offered to the player is sent to the league and is used for tax purposes. In parallel, the club signs an image rights contract with the image rights company to which the player has previously assigned his intellectual property rights. According to this contract, the company owns the player’s image rights. This means that the player assigns to the club the use of these rights for commercial and promotional purposes. As a result of this assignment, the club undertakes the obligation to pay a specific amount of money per month to the company. Once the club pays the image rights company, the image rights company transfers this amount to the player.

In order to understand this quite complex scheme, let’s use a concrete example. A player signs with the club a main contract indicating a remuneration of EUR 300.000. Thereafter, the player signs the league contract indicating a remuneration of EUR 30.000 by the club, while the club signs a contract with an image rights company and undertakes to pay a total amount of EUR 270.000. Finally, the player receives the amount of EUR 270.000 by the image rights company. Thus, it is clear that a combination of the league and the image rights contracts amounts to sum foreseen in the main contract (30.000+270.000=300.000). While this fictitious transfer of money through a third party does not seem to have a practical effect on the player’s remuneration, the split of the main contract into two separate agreements helps the club to tailor its tax obligations. In fact, the club would in principle have had to pay taxes on the full amount of EUR 300.000. Nonetheless, by breaking up the payment into different amounts, the club pays taxes and social contributions for the individual income of EUR 30.000 only. True, the club is also obliged to pay the taxes due on the EUR 270.000 transferred to the image rights company. However, taking into account that the tax rate over intellectual property rights is typically much lower than that concerning individual income, the club gains significant tax benefits.[7]

In the second potential scenario, in parallel to the main contract, the player signs a side agreement with the club, which explicitly splits the net compensation into an amount derived from the league contract and an amount derived from the image contract. Subsequently the player enters into an exclusive license agreement with an image rights company to which he assigns the use of his image rights receiving as compensation the amount stipulated in the side agreement. At the same time, the club enters into a sublicense agreement with the image rights company in order to use the player’s image rights, by paying the company the same amount of money that the company then pays to the player under the license agreement.

In short, this scheme is a fiction invented by the clubs in order to get significant tax advantages. While this is done pro forma, without any intent of changing the player’s rights and obligations under the main contract[8], this tax evasion scheme can lead to the club evading also its contractual duties when a club fails to pay the player. In this case, with respect to any outstanding remuneration, can the player enforce the image rights contract against the club in BAT proceedings? 


II. How the BAT establishes its jurisdiction on image rights contracts disputes

An overview of the BAT case law shows that players bring a dispute against their club for outstanding payments on the grounds of a broadly drafted arbitration clause in the main contract, which provides for BAT’s jurisdiction over any dispute arising out of, or in connection with the main contract. However, as is already discussed, a player’s remuneration is often based on a matrix of several contracts – the main contract, the league contract, the image rights contract and/or the license agreement-, which may contain a dispute resolution clause of their own that does not refer to the BAT. Therefore, when a dispute for outstanding payments is brought before the BAT, the arbitrator first has to determine whether the claim made by the player falls within the scope of the BAT arbitration clause included in the main contract. Thus, the arbitrator must consequently determine the relation between the main contract and the other contracts, including the image rights contracts.

The difficulty emerges from the fact that the contracts do not define how they should inter-relate. As a result, the BAT has to interpret the contracts and decide whether the subsequent contracts actually supersede the main contract and the applicable BAT arbitration clause or whether they only supplement the main contract. Namely, the clubs, relying on the fact that the image rights contract is signed after the main contract and referring to the legal principle lex posterior derogate legi priori[9], claim that the dispute settlement provision contained in those contracts override the BAT arbitration clause included in the main contract.[10]

In order to decide on its jurisdiction and the underlying relation between the several contracts, the BAT has consistently used a double test based on the common intention of the parties and the wording of the BAT arbitration clause contained in the main contract. At first, the BAT examines whether the main contract includes all the essential elements with regard to the player’s rights remuneration. Then, it elaborates whether these terms reflect the parties’ common intent under the main agreement to guarantee the payment of the full salary to the player, irrespective of any modalities that would be agreed upon in subsequent contracts as to the mode and schedule of payments.[11] If the main contract is seen as containing the common agreement of the parties on the full amount of remuneration, any further agreement referring to the way this payment is organized has only a supplementary function. The second criterion is based on the interpretation of the BAT arbitration clause. The main contract usually contains a broad BAT arbitration provision that covers any dispute arising from the main contract. Once established that the common intent of the parties is to guarantee the salary stipulated in the main contract, the broad terms of the arbitration clause necessarily encompass any dispute relating to the non- payment of any part of the player’s total salary. Once these criteria are fulfilled, the BAT asserts that the outstanding payments deriving from the image rights contracts fall within the scope of the BAT arbitration clause.

Furthermore, in some cases, the BAT has introduced other criteria, such as the necessity to establish a link between the contracts. In the 0115/10 case, the BAT established a close link between the main contract and the image rights contract, in a way that the image rights contract could not exist but for the original contract.[12] Interestingly enough, this rather broad interpretation has been inspired by the liberal case law of the Swiss Federal Tribunal, which requires that the interconnection between different contracts be taken into account when examining the substantive validity of an arbitration agreement.[13]

It is remarkable that until now, when examining the jurisdictional basis, the BAT has consistently adopted a rather liberal approach by piercing the fictitious veil between the club, the player and the third party when using overlapping contractual constructions. However, on the merits, the BAT’s approach is not totally consistent. 


III. Enforcing image rights contracts: the BAT’s enigmatic approach

In a series of awards, the BAT has found the clubs liable for the breach of the image rights contract and the subsequent outstanding payment of the player.

Applying the legal roadmap established above, the BAT has addressed the supplementary role of the subsequent contracts in organizing the payment schedule of the full remuneration of the player provided in the main contract. Indeed, from a contractual point of view, the terms of the main contract are deemed sufficient to entitle the player to claim the entire amount owed to him on the basis of that contract alone.[14] In this sense, the fact that image rights payments have been made via a third party does not free the club from its duty to guarantee the full remuneration of the player.[15] To reinforce this argument, the BAT has even asserted that the only case in which the club would not be found liable for breach of image rights contract would be the case where the image rights contract explicitly provided a waiver of the player’s claims against the club relating to image rights.[16]

However, this - until recently- consistent approach has been overturned in the latest BAT award concerning the enforcement of image rights contracts.[17] In that case, the image contract was signed between a company to which the claimant assigned the rights to his promotion and a company managing the image and endorsement rights of the club. Although having confirmed the supplementary role of the image rights contract with regard to the employment contract at hand, the arbitrator chose to deviate from the entrenched interpretation in BAT jurisprudence of the intent of the parties. Namely, the arbitrator interpreted the parties’ behaviour as intending to discharge the club of its obligation to guarantee the full amount of the player’s salary under the main contract.

While, in this particular case, the company to which the player assigned his image rights could have been found liable for not transferring the missing amounts to the player, the BAT’s approach is questionable in that it undermined the club’s liability under the main contract. At this point, it should be highlighted that BAT decides all cases ex aequo et bono.[18] In this light, it is the opinion of the author of this blogpost that it would be contrary to general considerations of justice and fairness to consider that the club could take advantage of a tax-optimising structure to no longer guarantee principal amounts contractually due to the player. In other words, it would be unfair to consider that the player has implicitly renounced the guarantees offered to him by the club under the main contract. 


Conclusive Remarks

The system of image rights contracts in international basketball is fragile. Based on the lack of legal certainty in BAT jurisprudence, this blogpost has evidenced the risk that clubs use the BAT to escape their obligations deriving from the image rights contracts. Taking into account that BAT awards are directly enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, subject only to an appeal on the limited grounds provided in Article 190 Swiss Private International Law Act (PILA)[19], a denial of the BAT to enforce image rights contracts against the clubs leaves the players deprived of any real legal avenue to vindicate their rights. In this sense, a consistent approach of the BAT with regard to the intimate relation existing between the image rights contract and the main employment contract would not only be desirable, but would also be in line with the ex aequo et bono principle.


[1] Johan Passave-Ducteil, the president of SNB remarks in l’Equipe:"Ce n’est pas une histoire d’argent, on défend le droit des joueurs"

[2] D-R Martens, ‘An innovative System for Resolving Disputes in Sport (only in Sport?)’ (2011) 1-2 International Sports Law Journal 54, 60.

[3] Edward O’ Bannon et al v National Collegiate Athletics Association, Electronic Arts Inc and Collegiate Licensing Company ( US District Court, 08.08.2014) and NCAA Student-Athlete Name and Likeness Licensing Litigation, 724 F. 3d 1268 (9th Cir. 2013).

[4] The tribunal was established by FIBA in 2006 under the name “FIBA Arbitral Tribunal (FAT)”. In accordance with the 2010 FIBA General Statutes, the tribunal was renamed into “Basketball Arbitral Tribunal (BAT)”.

[5] Vladimir Golubovic v Basketball Club Union Olimpija Ljubljaba, BAT 0174/11, para 6.

[6] Pawel Kikoeski v KK Union Olimpija Ljubljana, BAT 0155/11, para 23.

[7] In the case where the image rights company is seated in a tax haven state, the tax benefits are almost double for the club.

[8] BAT 0155/11(n 6), para 51.  See also, 0174/11(n 5) para 10: “The Club suggested the image contract because it served tax driven purposes only. That was the only purpose for such a contract, and it was irrelevant for the player, because his remuneration were settled in net amount (tax free)”.

[9] i.e a subsequent law imparts the abolition of a previous one

[10] Richard Hendrix v Club Baloncesto Granada, FAT 0115/10, para 36.

[11] FAT 0115/10(n 10), para 44, Dalibor Bagaric v Fortitudo Pallacanestro SrL FAT 0105/10 para 49, Lazaros Papadopoulos v Fortitudo Palacanestro Societa’ Sportica Dilettantistica a R.L. FAT 0071/09 para 61, Darryl Eugene Strawberry and Bill Duffy International Inc v Fortitudo Palacanestro Societa’ Sportica Dilettantistica a R.L. FAT 0067/09, para 66.

[12] FAT 0115/10 (n 10), para 41.

[13] Ibid, para 43 where the arbitrator makes an extensive reference to Swiss Federal Tribunal case law: Decision of the Swiss Federal Tribunal of 16 October 2003, reported in ATF 129 III 727, 735 using the

word “liberal” with reference to ATF 121 III 38, 45 and the decisions 4P.126/2001 of 18 December 2001

reported in ASA Bulletin 2002, p. 482; 4C.40/2003 of 19 May 2003 at 4, reported in ASA Bulletin 2004, p.

344; see also decision 4P.230/2000 of 7 February 2001 reported in ASA Bulletin 2001, p. 523.

[14] FAT 0067/09 (n 11), para 83.

[15] FAT 0071/09 (n 11), para 76.

[16] FAT 0115/10 (n 10), para 64.

[17] Steven Smith v Virtus Palacanestro Bologna S.p.A, BAT 0413/13

[18] BAT Arbitration Rules, Article 15.1: "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 ".

[19] In fact, according to Article 190 (2) PILA, only serious procedural defects or rulings on substance that are contrary to international public policy may constitute grounds to set aside an award. See A Rigozzi, ‘Challenging Awards of the Court of Arbitration for Sport’ (2010)1 Journal of International Dispute Settlement 217, 217-254.

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