arbitral award basketball arbitral tribunal

29 Pages·2017·0.2 MB·English

ARBITRAL AWARD
(BAT 0768/15)
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, 106 73, Athens, Greece

vs.

Mr. Richard Elmer Dorsey Jr.
- Respondent -

represented by Mr. Lance Young,
Excel Sports Management, 1700 Broadway 29th Floor, New York, NY 10019, USA
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
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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 email) 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 €18.000 (Euro eighteen thousa nd) 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.
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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 2013-2014, was negotiated by the Claimant for the Respondent (the
“FCB Contract”). The second, with Galatasaray for the 2015-2016 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 2013-2014 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 2014-2015 season. The Respondent
signed a contract to do so on 19 June 2014.
8. 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 email 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.”
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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 email attaching the
23 February Letter, but this time with a signature on it, and this time copied to an email
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 email 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 2015. The Claimant notes that this email was sent to
his “old” email account, even though he had been exchanging emails with the
Respondent from a different account.
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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 650,000.00. 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 650,000.00.
3.2 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 2,000.00 on the same date. The Arbitrator was
appointed on 10 December 2015.
19. On 10 December 2015 the Advance on Costs was fixed at EUR 12,000.00 payable by
the Claimant (EUR 6,000.00) and the Respondent (EUR 6,000.00), to be paid by
21 December 2015. 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 2016.
20. 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 email 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 2016. On 9 February the BAT wrote to the parties, again including
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Mr. Young, giving the Respondent a further extension of time to file an Answer, this
time until 7 March 2016. 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’ email 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 2016. 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 1,050.00 in respect of an
adjusted Advance on Costs and opt for an award without reasons in accordance with
rule 16.2.1(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 5,050.00. The Claimant therefore ultimately paid a total amount in
respect of the Advance on Costs of EUR 12,100.00.
22. 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 2016.
23. 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 email sent to the
BAT Secretariat.
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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
2016. 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
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USD 76,000.
4.2 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
4.3.1 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
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Letter; and
(ii) whether the Respondent replied to an email that the Claimant sent on 22 July
2015, which made clear that the Claimant was working on options for Claimant
for the 2015-2016 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 email 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.
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