ARBITRAL AWARD

(BAT 1569/20)

by the

BASKETBALL ARBITRAL TRIBUNAL (BAT)

Mr. Stephan Netzle

in the arbitration proceedings between

Mr. Zeljko Sakic,

- Claimant - represented by Mr. Ivan Todorovic, attorney at law

vs.

BC Grono Sportowa Spółka Akcyjna, Szosa Kisielińska 22, 65-247 Zielona Góra, - Respondent - represented by Mr. Kosma Zatorski, Club's General Manager

1 The Parties

1.1 The Claimant

1. Mr. Zeljko Sakic (the "Player" or "Claimant") is a Croatian professional player, who played the 2018/2019 season for the Polish basketball club Grono Sportowa Spółka Akcyjna.

1.2 The Respondent

2. BC Grono Sportowa Spółka Akcyjna (the "Club" or "Respondent") is a professional basketball club competing in the .

2 The Arbitrator

3. On 26 June 2020, Mr. Raj Parker, the Vice-President of the Basketball Arbitral Tribunal (the "BAT"), appointed Mr. Stephan Netzle as arbitrator (the "Arbitrator") pursuant to Articles 0.4 and 8.1 of the Rules of the Basketball Arbitral Tribunal in force as from 1 December 2019 (the "BAT Rules"). Neither of the parties has raised any objections to the appointment of the Arbitrator or to his declaration of independence.

3 Facts and Proceedings

3.1 Summary of the Dispute

4. On 11 September 2018, the Player and the Club entered into an agreement whereby the latter engaged the Player for the 2018/2019 season (the "Employment Contract").

Arbitral Award 2/24 (BAT 1569/20)

5. According to Article 4 Employment Contract, the Player is entitled to a salary of total EUR 90,000.00 net of taxes. This amount consists of "salary" of EUR 6,300.00 and "image rights payments" of EUR 83,700.00. The salary component was agreed to be paid according to the following payment schedule:

- EUR 700.00: by 15 November 2018 - EUR 700.00: by 15 December 2018 - EUR 700.00: by 15 January 2019 - EUR 700.00: by 15 February 2019 - EUR 700.00: by 15 March 2019 - EUR 700.00: by 15 April 2019 - EUR 700.00: by 15 May 2019 - EUR 700.00: by 15 June 2019 - EUR 700.00: by 15 July 2019

6. The image rights component was agreed to be paid to the Player's image company, i.e. Excel Sports Worldwide LP, as follows:

- EUR 9,300.00 plus 6% taxes: by 31 October 2018 - EUR 9,300.00 plus 6% taxes: by 30 November 2018 - EUR 9,300.00 plus 6% taxes: by 31 December 2018 - EUR 9,300.00 plus 6% taxes: by 31 January 2019 - EUR 9,300.00 plus 6% taxes: by 28 February 2019 - EUR 9,300.00 plus 6% taxes: by 31 March 2019 - EUR 9,300.00 plus 6% taxes: by 30 April 2019 - EUR 9,300.00 plus 6% taxes: by 31 May 2019 - EUR 9,300.00 plus 6% taxes: by 30 June 2019

Arbitral Award 3/24 (BAT 1569/20)

7. The Club did not pay the last three instalments of the salary component (i.e. in total EUR 2,100.00) and the last five instalments of the image rights component (i.e. in total EUR 46,500.00). Therefore, a total amount of EUR 48,600.00 is still outstanding.

8. On 12 June 2019, the Claimant's agency sent a letter to the Respondent requesting the payment of the outstanding salary and image rights compensation of its clients, inter alia of the Claimant, within the next seven days. However, the Club did not pay the outstanding amount to the Claimant.

9. Following further correspondence between the parties, on 16 August 2019, the Claimant's agency sent another e-mail to the Club with the following content:

"Today is August 16th and your club still didn't solve any of the debts towards our agency and towards our clients.

If there are no major payments this moth (August), everybody will start arbitration procedure against your club for original debts, interests, penalties, full arbitration costs and other legal fees and expenses.

We accepted your words and once again trusted you that you will start solving problems in August and this is the very last what we can do."

10. On 27 August 2019, the Claimant's agency sent another e-mail to the Club informing that "none of the debts towards our agency, towards coaches Igor Jovovic, Igor Djaletic, Novak Music and towards players Markel Starks, Zeljko Sakic and Michal Sokolowski are solved, literally nothing all summer long" and that everyone had lost patience and would take legal action against the Club.

11. As the Club did not pay the outstanding amount of EUR 48,600.00 to the Claimant, on 22 November 2019, the Claimant initiated proceedings before the Polish Basketball Association's Basketball Arbitral Tribunal, as mentioned in Article 15 Employment Contract.

Arbitral Award 4/24 (BAT 1569/20)

12. It seems that during the proceedings before the Polish Basketball Association's Basketball Arbitral Tribunal, the Respondent promised the Claimant's agency to sign and verify several settlement agreements before a public notary, inter alia with the Claimant. That is why the Claimant did not pay the non-refundable administration fee to the Polish Basketball Association's Basketball Arbitral Tribunal,. On 21 January 2020, the Polish Basketball Association's Basketball Arbitral Tribunal declared the claims of the Claimant invalid.

13. On 4 February 2020, the Player's agent sent a text message to Mr. Janusz Jaszinski, chairman of the supervisory board of the Respondent, and informed him that it was a condition for the Claimant that the settlement agreement would be signed in February 2020 and that the first instalment had to be paid by end of February 2020. Mr. Janusz Jaszinski confirmed this information with "Ok".

14. On 7 February 2020, Mr. Janusz Jaszinski confirmed to the Claimant's agent by text message that the Club had arranged a meeting with the notary to have the settlement agreement with the Claimant notarised and that the Club would pay the first instalment by end of February 2020.

15. On 14 February 2020, the Claimant's agent sent the following text message to Mr. Janusz Jaszinski:

"[…] So, you have now 15 days to finish everything (sign and notarial aprove) and to pay first payment to all – just to Savovic 2 payments by 10k. If you miss to finish this then there will be any more chance to talk again and in July (which shall come very soon) you'll have to pay all at one moment without any negotiations because the players and Misko told me like that. I believe you'll stick with your promise, that's the best for all of us, especially useful for you. Stay well."

16. On the same day, Mr. Janusz Jaszinski replied that "[w]ith Savovic we have signed all papers […]. The rest of papers [the settlement agreement with the Claimant] are in process to make a compromise version". In his response, the Claimant's agent clarified that there should be no changes to the agreed terms of the settlement agreements.

Arbitral Award 5/24 (BAT 1569/20)

Mr. Janusz Jaszinski confirmed this approach by replying "Ok". However, the papers had not been signed by the end of February 2020.

17. In March 2020, the Claimant's agent warned the Respondent that his clients would initiate legal proceedings in case it did not sign all agreements as agreed.

18. On 7 April 2020, the Claimant's lawyer sent the following warning letter to the Club:

"[…] I have been informed by the Agency [BeoBasket Ltd] of all steps that they made trying to solve this off the BAT and cases in front of Polish STA [Polish Basketball Association's Basketball Arbitral Tribunal], and agreed 4 settlements by both sides that should been signed and verified by Public Notary. When the time came to verify Settlements, it is true that COVID-19 situation started but all of our tries to arrange dates for verification were ignored by your side. As Public Notary in Poland are not closed, Agency BeoBasket and their clients Mr. Markel Starks, Mr. Zeljko Sakic and Mr. Michal Sokolowski had been more than patient waiting to settle this but after more than 8 months without signed agreement, they all decided to go to BAT. […]

Before starting all this, this will be the last try to settle this without BAT. […]

Now, I am sending you predicted costs for the Club for the forthcoming 4 BAT cases, beside your debts toward them that were already confirmed by both sides:

[…]

2. Predicted additional costs for the debt of 48.600 EUR towards Zeljko Sakic in BAT case: - 5.000-6.000 EUR for the Arbitration costs - 6.000-7.000 EUR for the Legal fees and expenses - around 5.000-6.000 EUR for the 10% interest per annum for the debt towards Zeljko Sakic Total projected additional costs: 16.000-19.000 EUR (between 33 to 39 percent of the primary debt)

[…]

Now please have in mind that current COVID-19 situation in the world will not have any mitigating circumstances for your team since these debts are almost and somewhere and more than one years old. […].

So instead losing another 70.000-80.000 EUR on additional costs and having to pay that all debts at once instead of in settlements, I convinced my clients to give you last chance to settle this without going to BAT but on condition that all 4 updated settlements […] are signed and verified by Public Notary not later than Friday 17th of April 2020. If settlements are not verified by then, immediately after will follow 4 BAT Requests." Arbitral Award 6/24 (BAT 1569/20)

19. On 16 April 2020, the Club's General Manager, Mr. Kosma Zatorski, emphasized in a letter to the Claimant's lawyer that the Covid-19 pandemic had made any activities of the Club impossible and that the present dispute was a case of force majeure and the so-called extraordinary change of relations (clausula rebus sic stantibus). According to Mr. Kosma Zatorski, the obligations of the Claimant and the Respondent had to be re- defined. Nevertheless, he also stated that "[o]n the other hand our club is not going to overcome the fulfilment of its obligations. We hereby confirm all debts towards your Clients as pointed ou[t] in your letter from 7th April. In view of the above mentioned circumstances and taking into account that our Club is not able to pay the debts towards your Clients in the way proposed in the drafts of settlement agreements sent by you and preliminary agreed with Mr. Piotr Demianczuk the Club would like to ask you to approve the extension of the deadline for signing relevant agreements by 3 months."

20. On 21 April 2020, the Claimant's lawyer sent another letter informing the Club that his clients would not agree to any further delay in the signing and notarisation of the agreed settlement agreements because the Covid-19 pandemic had no impact on the present dispute and patience had run out after more than 10 months of negotiations. The Claimant's lawyer concluded that "having in mind previous experience, numerous delays and broken promises from the Club, I have the instructions to insists on payments of full debt, including interest on them and full arbitration costs and legal fees and expenses".

3.2 The Proceedings before the BAT

21. On 27 May 2020, the BAT received a Request for Arbitration filed by the Claimant in accordance with the BAT Rules. The non-reimbursable handling fee of EUR 3,000.00 was received in the BAT bank account on 28 May 2020 and 10 June 2020.

22. By letter dated 29 June 2020, the BAT Secretariat (a) notified the parties of the Arbitrator's appointment; (b) invited the Respondent on behalf of the Arbitrator to file an

Arbitral Award 7/24 (BAT 1569/20)

Answer to the Request for Arbitration in accordance with Article 11.4 BAT Rules by no later than 20 July 2020; and (c) fixed the amount of the Advance on Costs to be paid by the parties by 9 July 2020 as follows:

- Claimant (Mr. Zeljko Sakic): EUR 3,500.00; - Respondent (Grono Sportowa Spolka Akcyjna): EUR 3,500.00.

23. On 20 July 2020, the Respondent submitted its Answer to the Request for Arbitration (including an objection to the jurisdiction).

24. By letter dated 20 July 2020, the BAT Secretariat acknowledged receipt of the Claimant's share of the Advance on Costs and that the Respondent had submitted its Answer to the Request for Arbitration. In the same letter, the BAT Secretariat acknowledged that the Respondent had failed to pay its share of the Advance on Costs and fixed a final deadline until 30 July 2020 for the Claimant to substitute for the Respondent's share of the Advance on Costs.

25. By letter dated 5 August 2020, the BAT Secretariat acknowledged receipt of the Respondent's share of the Advance on Costs paid by the Claimant. In the same letter, the BAT Secretariat invited the Claimant to comment on the Respondent's objection to the jurisdiction and the Respondent to provide the arbitration rules of the Polish Basketball Association's Basketball Arbitral Tribunal by no later than 19 August 2020.

26. On 12 August 2020, the Claimant submitted his comments on the Respondent's objection to the jurisdiction.

27. By e-mail dated 20 August 2020, the BAT Secretariat acknowledged that the Respondent failed to submit a copy of the requested arbitration rules of the Polish Basketball Association's Basketball Arbitral Tribunal. In the same e-mail, the BAT

Arbitral Award 8/24 (BAT 1569/20)

Secretariat granted the Respondent a short grace period until 25 August 2020 to comply with the Procedural Order dated 5 August 2020.

28. On 25 August 2020, the Respondent submitted a copy of the arbitration rules of the Polish Basketball Association's Basketball Arbitral Tribunal.

29. By letter dated 16 September 2020, the parties were informed that the Arbitrator had decided already at this stage of the proceedings that the BAT has jurisdiction to hear the present case. As the Respondent did not file an Answer on the merits, the BAT Secretariat granted the Respondent a deadline until 30 September 2020 to file an Answer on the merits.

30. By letter dated 12 October 2020, the BAT Secretariat acknowledged that the Respondent had failed to submit an Answer on the merits. In the same letter, the BAT Secretariat invited the Claimant to answer several questions of the Arbitrator by no later than 22 October 2020.

31. On 19 October 2020, the Claimant submitted his answers to the Arbitrator's questions.

32. On the same day, i.e. on 19 October 2020, the BAT Secretariat acknowledged receipt of the Claimant's reply to the Procedural Order of 12 October 2020 and invited the Respondent to submit its comments until 29 October 2020. However, the Respondent did not file any comments.

33. By letter dated 16 November 2020, the BAT Secretariat informed the parties that the Arbitrator had declared the exchange of submissions complete and that the final award would be rendered as soon as possible. Finally, the BAT Secretariat granted the parties a deadline until 23 November 2020 to provide a detailed account of their costs.

Arbitral Award 9/24 (BAT 1569/20)

34. On 16 November 2020, the Claimant submitted his cost statement for legal services and disbursements. The Respondent failed to submit its account of costs.

4 The Positions of the Parties

4.1 The Claimant's Position

35. The Claimant submits the following in substance:

36. According to Article 4 Employment Contract, the Player is entitled to a total salary of EUR 90,000.00 (i.e. salary in the amount of EUR 6,300.00 payable in nine equal instalments à EUR 700.00 and image rights payments of EUR 83,700.00 payable in nine equal instalments à EUR 9,300.00 plus 6% taxes). However, the Respondent did not pay the last three instalments of the salary payments (i.e. in total EUR 2,100.00) and the last five instalments of the image rights payments (i.e. in total EUR 46,500.00). Therefore, the amount of EUR 48,600.00 is still outstanding at least since the last due date, i.e. since 15 July 2019.

37. The first four image rights instalments were paid as follows: The image rights company (i.e. Excel Sports Worldwide LP) sent invoices to the Respondent and the latter paid them together with 6% taxes. Afterwards, the image rights company transferred these amounts (minus 6% taxes) to the Player. Although Excel Sports Worldwide LP has sent invoices for the outstanding five image rights payments, the Club failed to pay them. As the image rights payments were meant to benefit the Claimant and Excel Sports Worldwide LP confirmed in a letter that the Claimant was entitled to claim the outstanding amount directly from the Respondent, the Claimant has standing to request the outstanding compensation for the image rights in his own name.

Arbitral Award 10/24 (BAT 1569/20)

38. Between November 2019 and January 2020, the Claimant's agent made several phone calls trying to negotiate a settlement agreement. The Club confirmed its debts towards the Player and promised to sign and verify a settlement agreement before of a public notary in Poland. Because of the Club's promise, the Player did not continue the proceedings before the Polish Basketball Association's Basketball Arbitral Tribunal and did not pay the non-refundable administration fee. However, the Club never signed and verified the settlement agreement before a public notary although it had confirmed its debts towards the Player several times before.

39. As the debts had already incurred during the 2018/2019 season, there is no causal link between these debts and the Covid-19 pandemic. The Club was obliged to settle them before the COVID-19 pandemic restricted the commercial activities of the Club. A reduction of the debts because of the effects of the COID-19 pandemic on the match calendar would therefore not be justified.

40. As the dispute could not have been settled before the Polish Basketball Association's Basketball Arbitral Tribunal and the Club was constantly finding new excuses not to pay the outstanding debts, the Player initiated the present BAT procedure.

41. The BAT has jurisdiction to decide the present case as the Club intentionally misled the Player by promising that it would sign a settlement agreement. In view of the formalisation of the negotiated settlement agreement, the Claimant, therefore, considered it unnecessary to pay the non-refundable administration fee of the Polish Basketball Association's Basketball Arbitral Tribunal. In addition, the Respondent has acknowledged the jurisdiction of the BAT in its letter of 16 April 2020.

42. In his Request for Arbitration dated 27 May 2020, the Claimant requests the following relief:

"Claimant requests:

Arbitral Award 11/24 (BAT 1569/20)

a) […]1

b) To award claimant Zeljko Sakic with amount of 48.600 EUR (forty eight thousand six hundred) and additionally to award claimant's interest at the applicable rate of 10 percent per annum, per Article 11 (Liability, Late payments) of the Agreement, starting from 16th of July 2019 until the day of payment. Interest equals to 4.050 EUR (four thousand fifty), at the time the present Request for BAT Arbitration was filed. c) To award claimant with the full covered costs of this Arbitration and Legal fees and expenses. Having in mind that in case of dispute the agreements set the authority of Basketball Arbitration Tribunal (BAT), therefore, the claimant demand arbitrage of BAT. […]

Total amount in dispute: [48.600 EUR + 4.050 EUR =] 52.650 EUR"

4.2 Respondent's Position

43. The Respondent submits the following in substance:

44. The BAT is not competent to hear the present case. According to Article 15 Employment Contract, any dispute arising from or related to the Employment Contract shall be submitted to the Polish Basketball Association's Basketball Arbitral Tribunal. The BAT has only jurisdiction in case the parties fail to settle their dispute before the Polish Basketball Association's Basketball Arbitral Tribunal. There is no doubt that this case was not dealt with by the mentioned Polish arbitral tribunal. Article 15 Employment Contract does not provide the parties the right to choose between the BAT and the Polish Basketball Association's Basketball Arbitral Tribunal. Neither party has the right to submit a Request for Arbitration before the BAT if no prior attempt has been made

1 Subject of the proceedings BAT 1568/20. Arbitral Award 12/24 (BAT 1569/20)

to resolve the dispute before the Polish Basketball Association's Basketball Arbitral Tribunal.

45. The wording "fail to settle their dispute" in Article 15 Employment Contract means that the proceedings before the Polish Basketball Association's Basketball Arbitral Tribunal at least (i) was initiated, (ii) was carried out by the arbitral tribunal and both parties had the opportunity to take part in the proceedings (i.e. at least to take a position on the case), and (iii) for some reason it was not concluded by a decision. As the Claimant did not pay the non-reimbursable administration fee and the Respondent was not even informed about the proceedings before the Polish Basketball Association's Basketball Arbitral Tribunal, these requirements are not met and the BAT does, therefore, not have jurisdiction in the present case.

46. The Respondent confirms that the parties negotiated an agreement on how to repay the Claimant and that no such agreement was finally signed and notarised. According to the Respondent, the parties could possibly be considered to fail to sign a settlement agreement, but the parties did not "fail to settle their dispute" before the Polish Basketball Association's Basketball Arbitral Tribunal, as provided in Article 15 Employment Contract.

47. In its Answer to the Request for Arbitration dated 20 July 2020, the Respondent requests the following relief:

"Considering the above mentioned arguments, the Respondent requests that the claim be dismissed in the absence of BAT jurisdiction to decide the case."

Arbitral Award 13/24 (BAT 1569/20)

5 The jurisdiction of the BAT

48. Pursuant to Article 2.1 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 the Swiss Act on Private International Law (the "PILA").

49. The jurisdiction of the BAT presupposes the arbitrability of the dispute and the existence of a valid arbitration agreement between the parties.

50. The Arbitrator finds that the dispute referred to him is of a financial nature and is thus arbitrable within the meaning of Article 177(1) PILA.2.

51. The jurisdiction of the BAT over the dispute results from the arbitration clause contained under Article 15 Employment Contract, which reads as follows:

"1. Any dispute arising from or related to the present contract shall be submitted to the Polish Basketball Association's Basketball Arbitral Tribunal in , Poland.

2. If the parties fail to settle their dispute within the Polish Basketball Association's Basketball Arbitral Tribunal in Warsaw, it will be submitted to the Basketball Arbitral Tribunal (BAT) in Geneva, Switzerland and shall be resolved in accordance with the BAT Arbitration Rules by a single arbitrator appointed by the BAT President. The seat of the arbitration shall be Geneva, Switzerland. The arbitration shall be governed by Chapter 12 of the Swiss Act on Private International Law (PIL), irrespective of the parties' domicile. The language of the arbitration shall be in English. The arbitrator shall decide the dispute ex aequo et bono."

52. The Employment Contract is in written form and thus the arbitration agreement fulfils the formal requirements of Article 178(1) PILA.

53. With respect to substantive validity, the Arbitrator considers that the wording "fail to settle their dispute within the Polish Basketball Association's Basketball Arbitral

2 Decision of the Federal Tribunal 4P.230/2000 of 7 February 2001 reported in ASA Bulletin 2001, p. 523. Arbitral Award 14/24 (BAT 1569/20)

Tribunal" is not entirely clear and requires an interpretation by the Arbitrator. In particular, it is not clear from the wording (i) whether the BAT should act as an appeal body after a case has been decided by the Polish Basketball Association's Arbitral Tribunal or (ii) whether the BAT should have alternative jurisdiction or (iii) whether the BAT should have jurisdiction only if no settlement agreement has been reached.

54. It is undisputed that the Claimant has lodged a claim before the Polish Basketball Association's Basketball Arbitral Tribunal, but it was dismissed for lack of payment of the non-reimbursable handling fee. As the Polish arbitral tribunal declared the claims of the Player invalid, there was no settlement attempt before that tribunal.

55. Nevertheless, the Arbitrator concludes that the BAT has jurisdiction in the present case for the following reasons:

i. First, it was the Respondent's manoeuvre that led the Claimant to conclude in good faith that it was no longer necessary to engage the Polish Basketball Association's Basketball Arbitral Tribunal. The WhatsApp messages and e- mails exchanged by the parties show that they agreed on the conditions of a settlement agreement and that the Club's lawyer was preparing all necessary documents for the signature and the notarisation. Therefore, the Arbitrator accepts the Claimant's argument that he did not pay the non-reimbursable handling fee because the Club promised to sign and notarise the negotiated settlement agreement. The Arbitrator is of the view that these negotiations replaced the requirement of a settlement attempt before the Polish Basketball Association's Basketball Arbitral Tribunal.

ii. Second, the Arbitrator reminds the Respondent of the legal principle embodied in most legal systems that a condition precedent is deemed to be satisfied if the other party prevents its fulfilment in good faith. The settlement was negotiated and only the formally correct signatures were missing. The Player could rely on

Arbitral Award 15/24 (BAT 1569/20)

the fact that this missing formality would not jeopardise the conclusion of the settlement and that it was therefore no longer necessary to pay the cost advance to the Polish Basketball Association's Basketball Arbitral Tribunal.

iii. Third, in its letter dated 16 April 2020, the Club did not only confirm the debts towards the Player but also explicitly stated that "[w]e also agree with you that the new potential cases in BAT will cost us additional money. We disagree with the amount calculated by you as we will admit by first procedural actions that we don't contest the claims and we will proposed Consent Awards". The content of this letter has to be taken into account by interpreting the arbitration clause in Article 15 Employment Contract. According to the letter exchange between the parties in April 2020, it was clear for both sides that if this case would not be solved amicably, it would be decided by the BAT. In other words, the Respondent acknowledged in its letter of 16 April 2020 that the BAT would be competent to hear the present case if no settlement agreement could be reached.

56. For the above reasons, the Arbitrator has jurisdiction to adjudicate the Claimant's claims.

6 Discussion

6.1 Applicable Law – ex aequo et bono

57. 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

Arbitral Award 16/24 (BAT 1569/20)

authorize the Arbitrators to decide "en équité" instead of choosing the application of rules of law. Article 187(2) PILA is generally translated into English as follows:

"the parties may authorize the arbitral tribunal to decide ex aequo et bono".

58. Under the heading "Law Applicable to the Merits", Article 15 BAT Rules reads as follows:

"15.1 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.

15.2 If, according to an express and specific agreement of the parties, the Arbitrator is not authorised to decide ex aequo et bono, he/she shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to such rules of law he/she deems appropriate. In both cases, the parties shall establish the contents of such rules of law. If the contents of the applicable rules of law have not been established, Swiss law shall apply instead."

59. Article 15 Employment Contract provides that the Arbitrator shall decide the dispute ex aequo et bono.

60. Consequently, the Arbitrator shall decide ex aequo et bono the issues submitted to him in this proceeding.

61. The concept of "équité" (or ex aequo et bono) used in Article 187(2) PILA originates from Article 31(3) Concordat intercantonal sur l’arbitrage3 (Concordat)4, 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

3 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). 4 P.A. Karrer, Basler Kommentar, No. 289 ad Art. 187 PILA. Arbitral Award 17/24 (BAT 1569/20)

not inspired by the rules of law which are in force and which might even be contrary to those rules."5

62. This is confirmed by Article 15.1 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".

63. In light of the foregoing considerations, the Arbitrator makes the findings below.

6.2 Findings

6.2.1 Standing to sue of the Claimant

64. According to Article 4 Employment Contract, the Club "agrees to pay to the Player's Image Company (Excel Sports Worldwide LP) the following amounts for image rights of the Player: 83 700,00 EUR […] plus 6% tax towards the Image Company […]".

65. The question arises whether the Claimant is entitled to request not only the outstanding salary payments in the total amount of EUR 2,100.00, but also the outstanding image rights payments in the total amount of EUR 46,500.00.

66. The Claimant has convincingly demonstrated and submitted corresponding evidence that he was the sole beneficiary of the image rights payments. In addition, the Claimant filed a confirmation of Excel Sports Worldwide LP that the Claimant is entitled "to request the remaining of the debt for the playing season 2018/2019 for the image right's of the Player in the NET amount of 46.500 EUR, directly from Grono Sportowa Spolka Akcyjna".

5 JdT 1981 III, p. 93 (free translation). Arbitral Award 18/24 (BAT 1569/20)

67. The Arbitrator therefore concludes that the Claimant is entitled to request not only the outstanding salary payments in the total amount of EUR 2,100.00 but also the outstanding image rights payments in the total amount of EUR 46,500.00 (total: EUR 48,600.00) in his own name and on his own account.

6.2.2 Player's claims based on the Employment Contract

68. According to Article 4 Employment Contract, the Player is entitled to a total salary of EUR 90,000.00 for the 2018/2019 season. Pursuant to the same provision in the Employment Contract, all amounts are net. As the Claimant only requests the net amounts for the image rights payments (i.e. without 6% taxes), the question who is entitled to this additional 6% can be left open.

69. The Club did not pay the last three instalments of the salary (i.e. in total EUR 2,100.00) and the last five image rights payments (i.e. in total EUR 46,500.00).

70. As the Respondent confirmed the debts in the total amount of EUR 48,600.00 to the Player in its letter of 16 April 2020 and did not contest it during the BAT procedure, the Club's debts towards the Player of EUR 48,600.00 is considered undisputed.

71. According to Article 4 Employment Contract, the salary (not the image rights payments) "shall be made in Polish Zloty". The Arbitrator nevertheless finds that the Club shall pay the due amounts in EUR as (i) neither the Player nor the Club has invoked this clause in the present proceedings, (ii) the Club seems to have made previous salary and image rights payments in EUR and not in Polish Zloty and (iii) it would be unfair to burden the Player with the currency depreciation risk, under the circumstances.

72. Therefore, under the Employment Contract, the Claimant was entitled to remaining salary and image rights payments in the total amount of EUR 48,600.00 net.

Arbitral Award 19/24 (BAT 1569/20)

6.2.3 No salary reduction because of the COVID-19 Lockdown

73. Due to the Covid-19 pandemic, the Polish league was cancelled on 17 March 2020.

74. The BAT COVID-19 Guidelines (the "Guidelines") provide that it would be "fair and just that the obligation of the club to pay salaries during the Lockdown Period be subject to a general reduction", taking specific circumstances into consideration, which must be demonstrated by the parties. The Guidelines also state that "[...] salaries that became due before the Lockdown Period are not subject to above reduction". Finally, the Guidelines say that "in case of a termination unrelated to the COVID-19 crisis, the arbitrators will, in principle, not take into account the hypothetical impact that the COVID-19 crisis would have had on the contract had it run its normal course".

75. The Employment Contract expired already after the 2018/2019 season. The salary and image rights payments became due on 15 July 2019 at the latest, i.e. 8 months before the lockdown in Poland.

76. The Respondent was already in default with the payments prior to the lockdown period and did not provide specific reasons to demonstrate the impact of the Covid-19 pandemic on the outstanding debts, and the termination of the Employment Contract was a consequence of the non-payment of the debts which were outstanding before the outbreak of the pandemic and the lockdown in Poland, and not of the lockdown itself.

77. Therefore, no reduction of the owed amount of EUR 48,600.00 (see section 6.2.2 above) is justified.

Arbitral Award 20/24 (BAT 1569/20)

6.3 Interest

78. According to Article 11 Employment Contract, in case the salary payments are made later than 14 days after the scheduled payment dates, "the interests will be imposed at the rate 10% per annum".

79. As the Claimant requests 10% interests per annum only from 16 July 2019, there is no need to answer the question whether the interests on certain salary or image rights payments began to run already at an earlier date.

80. Therefore, the Arbitrator awards interests at the agreed rate of 10% on the total amount of EUR 48,600.00 from 16 July 2019.

7 Conclusion

81. Based on the foregoing, and after taking into due consideration all the evidence submitted and all arguments made by the parties, the Arbitrator finds that the Respondent is obliged to pay the Claimant outstanding salary and image rights payments in the total amount of EUR 48,600.00 net, plus interest of 10% p.a. from 16 July 2019 until payment.

8 Costs

82. In respect of determining the arbitration costs, Article 17.2 BAT Rules provides as follows:

"At the end of the proceedings, the BAT President shall determine the final amount of the arbitration costs, which shall include the administrative and other costs of the BAT, the contribution to the BAT Fund (see Article 18), the fees and costs of the BAT President and the Arbitrator, and any abeyance fee paid by the parties (see Article 12.4). […]" Arbitral Award 21/24 (BAT 1569/20)

83. On 2 December 2020, the BAT President determined the arbitration costs in the present matter to be EUR 5,925.00.

84. As regards the allocation of the arbitration costs as between the parties, Article 17.3 BAT Rules provides as follows:

"The award shall determine which party shall bear the arbitration costs and in which proportion. […] When deciding on the arbitration costs […], the Arbitrator shall primarily take into account the relief(s) granted compared with the relief(s) sought and, secondarily, the conduct and the financial resources of the parties."

85. Considering that the Claimant was the prevailing party in this arbitration, it is consistent with the provisions of the BAT Rules that the arbitration costs be borne by the Club alone. Given that the Player paid the entire Advance on Costs in the amount of EUR 7,000.00 (of which EUR 1,075.00 will be reimbursed to the Claimant by the BAT), the Club shall reimburse EUR 5,925.00 to the Player.

86. In relation to the parties' legal fees and expenses, Article 17.3 BAT Rules provides:

"as a general rule, the award shall grant the prevailing party a contribution towards any reasonable legal fees and other expenses incurred in connection with the proceedings (including any reasonable costs of witnesses and interpreters). When deciding […] on the amount of any contribution to the parties’ reasonable legal fees and expenses, the Arbitrator shall primarily take into account the relief(s) granted compared with the relief(s) sought and, secondarily, the conduct and the financial resources of the parties."

87. Moreover, Article 17.4 BAT Rules provides for maximum amounts that a party can receive as a contribution towards its reasonable legal fees and other expenses. The maximum contribution for an amount in dispute between EUR 30,001.00 and EUR 100,000.00 excluding handling fee according to Article 17.4 BAT Rules is EUR 7,500.00. The amount in dispute in this case is EUR 52,620.00.

88. The Claimant requests a contribution to his legal fees in the total amount of EUR 7,500.00. This does not include the non-reimbursable handling fee of

Arbitral Award 22/24 (BAT 1569/20)

EUR 3,000.00. The Claimant did not provide the BAT with a detailed account of what kind of work has been done at which hourly rate.

89. The Respondent did not submit an account of its costs.

90. Considering the outcome of the proceedings, the amount in dispute and the major work of the Claimant's counsel, the Arbitrator finds it fair and adequate that the Respondent shall pay a contribution of EUR 3,500.00 to the Claimant, plus the non-reimbursable handling fee of EUR 3,000.00. The Respondent shall bear its own legal costs and fees.

91. In summary, therefore, the Arbitrator decides that in application of Articles 17.3 and 17.4 of the BAT Rules:

(i) The BAT shall reimburse EUR 1,075.00 to the Claimant, being the difference between the costs advanced by the Claimant and the arbitration costs fixed by the BAT President; (ii) The Club shall pay EUR 5,925.00 to the Claimant, being the difference between the costs advanced by him and the amount he is going to receive in reimbursement from the BAT; (iii) The Club shall pay to the Claimant EUR 6,500.00 (3,000.00 for the non- reimbursable fee plus 3,500.00 for legal fees), representing the amount of his legal fees and other expenses.

Arbitral Award 23/24 (BAT 1569/20)

9 AWARD

For the reasons set forth above, the Arbitrator decides as follows:

1. BC Grono Sportowa Spółka Akcyjna shall pay Mr. Zeljko Sakic outstanding salary and image rights payments in the amount of EUR 48,600.00 net, plus interest of 10% per annum from 16 July 2019 until payment.

2. BC Grono Sportowa Spółka Akcyjna shall pay Mr. Zeljko Sakic an amount of EUR 5,925.00 as reimbursement for his arbitration costs.

3. BC Grono Sportowa Spółka Akcyjna shall pay Mr. Zeljko Sakic an amount of EUR 6,500.00 as reimbursement for his legal fees and expenses.

4. Any other or further requests for relief are dismissed.

Geneva, seat of the arbitration, 7 December 2020

Stephan Netzle (Arbitrator)

Arbitral Award 24/24 (BAT 1569/20)