ARBITRAL AWARD

(BAT 1115/17)

by the

BASKETBALL ARBITRAL TRIBUNAL (BAT)

Mr. Rhodri Thomas

in the arbitration proceedings between

Mr. Viktor Sanikidze - Claimant 1 -

Mr. Stefano Meller - Claimant 2 -

both represented by Mr. Sébastien Ledure and Mr. Wouter Janssens, attorneys at law, Place Flagey Plein 18, 1050 Brussels, Belgium

vs.

BC Aris (KAE Aris 2003 BC) 2 Grigoriou Lambraki st, Thessaloniki 54636, - Respondent -

1. The Parties

1.1 The Claimants

1. Mr. Viktor Sanikidze (hereinafter “Claimant 1”) is a professional player and Mr. Stefano Meller (hereinafter “Claimant 2”) is a professional basketball agent (together hereinafter the “Claimants”).

1.2 The Respondents

2. BC Aris Thessaloniki (KAE Aris 2003 BC) (hereinafter “the Respondent”) is a professional basketball club in Greece.

2. The Arbitrator

3. On 29 November 2017, Prof. Richard H. McLaren, O.C., the President of the Basketball Arbitral Tribunal (hereinafter the “BAT”) appointed Mr. Rhodri Thomas as arbitrator (hereinafter the “Arbitrator”) pursuant to Article 8.1 of the Rules of the Basketball Arbitral Tribunal (hereinafter the “BAT Rules”).

4. None of the Parties has raised objections to the appointment of the Arbitrator or to his declaration of independence.

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3. Facts and Proceedings

3.1 Background Facts

5. On 22 August 2016, Claimant 1 entered into an employment contract with the Respondent in relation to the 2016–2017 basketball season (hereinafter the “Claimant 1 Contract”). The Claimant 1 Contract states that Claimant 1 is represented by Claimant 2, who also signed the Claimant 1 Contract. The Claimant 1 Contract contains, among others, the following provisions:

“1. Club hereby employs the Player as a skilled basketball player for a term of one (1) basketball season (2016/2017) to commence on the date hereof and to continue through five (5) days following the final game in which the Club will participate in the 2016/2017 regular season, as applicable and/or the 2016/2017 Greek A 1 playoffs and/or European Cup playoffs for the season, whichever date occurs later. […] It is absolutely understood that Club cannot assign Player to play/practice with any other subdivision of the Club other than the senior professional team of the Club. Nothing contained in this Agreement or any other document shall give the Club any additional rights to the Player for any other or future basketball games. It is absolutely understood that Club hereby gives Player permission to leave the Club and Greece to return to his home place at any time the Player wishes after the date which is five (5) days following the final official game in which the Club participates in Greek A 1 2016/2017, whichever date occurs later. “2. The Club agrees to pay the Player a fully guaranteed Base Salary, net of any applicable taxes, of Euros €200,000.00 (two hundred thousand/00 Euros) net of any applicable taxes; All payments to Player hereunder must be made in Euros in accordance with wire transfer instructions or other instructions to be provided by the Player from time to time. The payment schedule is as follows; provided, however, in the event any payment or payments set forth below are scheduled to be paid after Club’s last official Greek League game, said payment or payments shall instead be due and payable within seven (7) days after Club’s last official Greek League game. PAYMENT SCHEDULE: 2016/2017 season Euros €200,000 .00 (two hundred thousand/00) net of any taxes:

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September 30, 2016 €20,000.00 (twenty thousand) net of any taxes October 30, 2016 €20,000.00 (twenty thousand) net of any taxes November 30, 2016 €20,000.00 (twenty thousand) net of any taxes December 30, 2016 €20,000.00 (twenty thousand) net of any taxes January 30, 2016 €20,000.00 (twenty thousand) net of any taxes February 28, 2016 €20,000.00 (twenty thousand) net of any taxes March 30, 2016 €20,000.00 (twenty thousand) net of any taxes April 30, 2016 €20,000.00 (twenty thousand) net of any taxes May 30,2016 €20,000.00 (twenty thousand) net of any taxes June 30, 2016 €20,000.00 (twenty thousand) net of any taxes 2016/2017 season Euros €200,000.00 (two hundred thousand/00) net of any taxes Club agrees that this Agreement is a one (1) years (2016/2017) fully guaranteed agreement. If Player is removed or released from the Club, or this Agreement is terminated or suspended by Club due to Player’s lack of or failure to exhibit sufficient skill, Player’s death, illness, injury or other mental or physical disability (whether incurred on or off the court), or for any other reason whatsoever other than Player’s direct and material breach of this Agreement. Notwithstanding anything to the contrary contained above, it is understood by Player that this Agreement will not be guaranteed for injuries suffered by Player while: (i) player is legally intoxicated, (ii) player is under the influence of illegal substance, (iii) Player participated in a sport which endangered his health or safety (including, but not limited to, boxing, wrestling, motorcycling, moped-riding, auto racing, sky-diving and hand-gliding or (iv) Player was grossly negligent in his activities off the basketball court (any of the events listed in any of clauses (i) through (iv) above is an “Exclusionary Event”). The Player agrees to make himself available for insurance examinations in order to allow the Club to purchase a policy of disability insurance, being understood that the above guarantee is not contingent upon the purchase of or Club’s ability to procure such policy. It is agreed that any payment to the Player pursuant to the above shall be subject to an interest penalty of Twenty Five Euro (€25,00) per day for each day after the fifteenth (15th) day said payment was due. In the event that any scheduled payments are not made by the Club within thirty (30) days of the applicable payment date, the Player shall be immediately entitled to payment of his full Base Salary as specified above, and shall not have to perform in any practice sessions or any games until such time as all of said payments and appropriate interest penalties have been paid. In addition, if any scheduled payment is not received by Player’s bank within thirty five (35) days of the date due, the Player’s performance obligations shall cease, Player shall have the right, at Player’s option, to terminate this Agreement and accelerate all future payments required under this Agreement. In this case, Player shall be free to leave the Club with his FIBA Letter of Clearance as a free agent to play basketball anywhere in the world Player chooses, but the duties and liabilities of Club toward Player and Agent under this Agreement shall continue in full force and effect.

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Furthermore, the Club shall have no rights over or with respect to Player, and Club will not be entitled to request or receive any payments pertaining to the Player playing basketball anywhere in the world. Notwithstanding anything to the contrary contained above, in the event that at any time during the term of this Agreement Player fails any doping test administered by Club or by the National Basketball Federation, Club shall have the right to terminate this Agreement, in which event, Club shall be relieved of all of its obligations and liabilities under this Agreement from and after the date in which Player fails his doping test. In the above-mentioned case the Player will be held responsible for all damages occurred to the Club for his behaviour. 3. The validity of the present agreement is contingent upon Player passing the medical examinations. The parties agree that Player’s initial medical exam will be administered and fully completed within 48 hours after Player’s arrival in Greece. Player will not be required to participate in any Club practices or games until the Club sends to Player’s agent, Stefano Meller (“Agent”) written notification (at Agent’s email [email protected]) certifying that the Player has passed the Club’s physical examination and that the Agreement is now in full force and effect, If Player participates in any of Club’s practices or games prior to Club fulfilling its obligations immediately above, Player shall be deemed to have unconditionally passed his physical examination. During medical check-up the Player agrees to list his complete medical history, i.e. all the injuries incurred by the Player prior to this contract. Also the Player agrees to submit a list of all medications he might be taking at any time during the term of this contract to the Club physician. The Player shall be obliged to provide the Club with complete and true information on his medical record history and actual health condition. […] 5. Club agrees to make all payments of Greek taxes of any nature (including, but not limited to, income taxes) on behalf of the Player. All bonus payments paid to Player hereunder shall be fully net of all taxes. All commission payments paid by Club to Agent shall be net and free of any Greek taxes, which shall be paid for by the Club. The payments for Greek taxes on behalf of the Player will be in addition to all other payments required to be made to Player under this Agreement and will be fully guaranteed by Club in the same manner that all payments to Player are guaranteed hereunder. It is understood that Club shall be required to provide to Player with a tax certificate evidencing that all Greek taxes have been paid by Club on behalf of Player as provided in this Paragraph 5 when requested by Player or Agent. […] 11. Any disputes arising or related to the present Agreement shall be submitted to the FIBA Basketball Arbitral Tribunal (BAT) in Geneva, Switzerland and shall be resolved definitely in accordance with the BAT Arbitration Rules by a single arbitrator appointed by the BAT President. The arbitration shall be governed by Chapter 12 of the Swiss Act on Private International Law (PIL), irrespective of the parties’ domicile. The seat of the arbitration shall be Geneva, Switzerland. The language of the arbitration shall be English. The arbitrator shall decide the dispute ex aequo et bono. 12. AGENT’S FEE: For services of locating and contracting the Player, Club shall

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pay to Agent a commission fee in the amount of 10% of the Player’s base salary for each season of contract, as specified in a separate agreement that shall serve as an addendum to this Agreement.”

6. On 22 August 2016, Claimant 2 entered into an agent’s contract with the Respondent (hereinafter the “Claimant 2 Contract”). The Claimant 2 Contract contains, among others, the following provisions:

“1. LEGAL FEE. The Club hereby agrees to pay a Legal Fee, to the Agent, for its role in the contract drafting between the Club and Mr. Viktor Sanikidze (hereinafter referred to as the “Player” for the basketball season 2016-2017. 2. PAYMENTS SCHEDULE. The total amount of the Legal Fee is fixed at € 20.000,00 (twenty thousand) Euros net of any VAT taxes or any other Greek taxes and charges, and shall be paid by and not later than November 1, 2016. […] LATE PAYMENT. It is understood and agreed by both parties that if the Agent does not receive the payment of the Legal Fee by the Club within fifteen (15) days of the due date, pursuant to paragraph 2 of this Agreement, then the Agent shall be entitled to receive an interest penalty of Fifty Euro (€ 50,00) per day for each day after the fifteenth (15th) day said payment was due. […] GOVERNING LAW. Any disputes arising or related to the present Agreement shall be submitted to the FIBA Basketball Arbitral Tribunal (BAT) in Geneva, Switzerland and shall be resolved definitely in accordance with the BAT Arbitration Rules by a single arbitrator appointed by the BAT President. The arbitration shall be governed by Chapter 12 of the Swiss Act on Private International Law (PIL), irrespective of the parties’ domicile. The seat of the arbitration shall be Geneva, Switzerland. The language of the arbitration shall be Geneva, Switzerland. The language of the arbitration shall be English. The arbitration shall decide the dispute ex aequo et bono.”

3.2 The Proceedings before the BAT

7. On 28 July 2017, the BAT received the non-reimbursable handling fee of EUR 3,000.00 from the Claimants. On 14 November 2017, the Claimants filed a Request for Arbitration in accordance with the BAT Rules.

8. By letter dated 5 December 2017, the BAT Secretariat fixed a deadline of 2 January

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2018 for the Respondent to file an Answer to the Request for Arbitration. By the same letter, and with a deadline of 15 December 2017 for payment, the following amounts were fixed as the Advance on Costs:

“Claimant 1 (Mr. Viktor Sanikidze) EUR 5,000.00 Claimant 2 (Mr. Stefano Meller) EUR 1,000.00 Respondent (BC Aris Thessaloniki) EUR 6,000.00”

9. Claimant 1 paid his share of the Advance on Costs on 7 December 2017 and Claimant 2 paid his share of the Advance on Costs on 18 December 2017. The Respondent did not pay its share of the Advance on Costs and accordingly the Claimants were invited, by letter dated 4 January 2018, to pay the Respondent’s share of the costs by 16 January 2018. Claimant 1 paid the Respondent’s share of the Advance on Costs on 10 January 2018.

10. The Respondent failed to file an Answer by 2 January 2018. By letter dated 4 January 2018, the Respondent was granted an additional opportunity to file an Answer, by no later than 12 January 2018. The Respondent did not file an Answer to the Request for Arbitration.

11. By Procedural Order dated 29 January 2018, the Arbitrator requested the Claimants to provide further information by 7 February 2018 (hereinafter the “First Procedural Order”). The Respondent was requested in the First Procedural Order to provide any submissions it deemed appropriate.

12. The Claimants responded to the First Procedural Order on 7 February 2018. The Respondent did not provide any submissions.

13. By letter dated 14 February 2018, the Arbitrator declared the exchange of documents complete, and requested that the Parties submit detailed accounts of their costs by 21 February 2018.

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14. On 20 February 2018, the Claimants’ submitted a joint account of costs in the amount of EUR 11,797.50 (EUR 9,750.00 plus VAT of EUR 2,047.50) in respect of legal fees and EUR 3,000 in respect of the non-reimbursable handling fee paid by the Claimants.

15. 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 Parties’ Submissions

4.1 Claimant 1’s submissions

16. Claimant 1 alleges that the Respondent made only three payments to him in respect of salary for the 2016-2017 season:

a) EUR 16,000.00 on 23 November 2016 – a belated and partial payment in respect of Claimant 1’s September 2016 salary, which was due by 30 September 2016;

b) EUR 9,345.00 on 15 February 2017 – a belated payment of the remainder of Claimant 1’s September 2016 salary and partial payment of Claimant 1’s October 2016 salary, which was due by 30 October 2016; and

c) EUR 24,000.00 on 23 February 2017 – a belated payment of the remainder of Claimant 1’s October 2016 salary and partial payment of Claimant 1’s November 2016 salary, which was due by 30 November 2016.

17. Claimant 1 submits that, other than the above payments, the Respondent failed to

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perform its obligation to pay Claimant 1’s salary according to the terms of the Claimant 1 Contract. Claimant 2 sent formal notices to the Respondent in respect of the unpaid salary payments. In particular, Claimant 2 sent a formal notice dated 26 January 2017 to the Respondent in respect of the unpaid salary payments that were unpaid as at that date and Claimant 2 sent a further formal notice dated 20 March 2017 in respect of the salary payments that were unpaid as at that date. Both of these formal notices refer to additional communications by telephone and in meetings in relation to the unpaid salary payments, involving the Respondent, Claimant 1 and Claimant 2’s business partner.

18. Claimant 1 claims that he was accordingly entitled to terminate the Claimant 1 Contract, and that he did so on 28 April 2017. Claimant 1 claims all unpaid salary amounts under the Claimant 1 Contract at the time of its purported termination, together with late payment fees and a “termination indemnity”. In particular, Claimant 1 claims:

a) EUR 110,665.00 in respect of outstanding salary payments due for the 2016- 2017 season, as follows:

a. EUR 10,655.00 in respect of the November 2016 salary payment;

b. EUR 20,000.00 in respect of the December 2016 salary payment;

c. EUR 20,000.00 in respect of the January 2017 salary payment;

d. EUR 20,000.00 in respect of the February 2017 salary payment;

e. EUR 20,000.00 in respect of the March 2017 salary payment; and

f. EUR 20,000.00 in respect of the April 2017 salary payment;

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b) EUR 14,650.00 in late payment fees in respect of the above unpaid salary payments, calculated on the basis of a late payment penalty fee of EUR 25.00 per day for each day that a salary payment had not been paid in full, up until the date of the purported termination of the Claimant 1 Contract (i.e. 28 April 2017);

c) EUR 40,000.00 as a “termination indemnity” which corresponds to the May and June salary payments under the Claimant 1 Contract; and

d) interest on each of the sums set out at a) to c) above, at a rate of 5% per annum.

19. Claimant 1 also seeks from the Respondent a tax certificate indicating the net amount of all past and future payments made by the Respondent to the Claimant 1 in respect of its obligations under the Claimant 1 Contract.

20. In response to the First Procedural Order, Claimant 1 explained that he was injured during the Respondent’s first official game of the 2016-2017 Greek competition season (on 8 October 2016) and suffered a rupture of the patella tendon. The Claimants submit that Claimant 1 did not play in any further games for the Respondent as a result of the injury.

4.2 Claimant 2’s submissions

21. Claimant 2 alleges that the Respondent did not pay the agent’s fee that was payable to him under Clause 2 of the Claimant 2 Contract.

22. Claimant 2 accordingly claims:

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a) EUR 20,000.00 in respect of the unpaid agent’s fee; and

b) EUR 8,150.00 in respect of late payment penalties, calculated on the basis of a late payment penalty fee of EUR 50.00 per day for each day that the agent’s fee was not paid, up until the purported termination of the Claimant 1 Contract on 28 April 2017. Or, in the alternative, interest at a rate of 5% per annum on EUR 20,000.00 from 2 November 2016 to 28 April 2017; and

c) interest on the amount of EUR 28,150.00 at a rate of 5% per annum from 28 April 2017 until payment.

23. The Claimants have claimed 165,305.00 (the combined total of the principal sums claimed by both Claimants) from the date of the purported termination of the Claimant 1 Contract (29 April 2017) until the date of full payment.

24. The Claimants’ request for relief states:

"Claimants request an award to be rendered, per which Respondent shall:

▪ pay Claimant 1:

▪ an amount of one hundred and ten thousand six hundred and fifty-five Euro (€ 110.655) net as overdue salaries;

▪ an amount of forty thousand Euro (€ 40.000) net as termination indemnity;

▪ an amount of fourteen thousand six hundred and fifty Euro (€ 14.650) as late payment penalties or, in the alternative: late payment interest at a rate of five percent (5%) per annum as follows:

Principle Start Stop

€ 20.000 October 1, 2016 October 30, 2016

€ 40.000 October 31, 2016 November 22, 2016

€ 24.000 November 23, 2016 November 30, 2016

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€ 44.000 December 1, 2016 December 30, 2016

€ 64.000 December 31, 2016 January 30, 2017

€ 84.000 January 31, 2017 February 14, 2017

€ 74.655 February 15, 2017 February 22, 2017

€ 50.655 February 23, 2017 February 28, 2017

€ 70.655 March 1, 2017 March 30, 2017

€ 90.655 March 31, 2017 April 28, 2017

▪ late payment interest at a rate of five percent (5%) per annum on an amount of one hundred and sixty-five thousand three hundred and five Euro (€165.305) as from April 29, 2017, until the date of full payment.

▪ pay Claimant 2:

▪ an amount of twenty thousand Euro (€ 20.000) net as agent fee;

▪ an amount of eight thousand one hundred and fifty Euro (€ 8.150) as late payment penalties or, in the alternative: late payment interest at a rate of five percent (5%) per annum as follows:

Principle Start Stop

€ 20.000 November 2, 2016 April 28, 2017

▪ late payment interest at a rate of five percent (5%) per annum on an amount of twenty-eight thousand one hundred and fifty Euro (€ 28.150) as from April 29, 2017, until the date of full payment.

▪ provide Claimant 1 with a tax certificate indicating the net nature of all past and future payments made under the Employment Agreement;

▪ reimburse Claimants all BAT expenses and procedure costs; and

▪ indemnify Claimants for all incurred legal and advisory expenses up to an amount to be determined during the BAT proceedings."

4.3 The Respondent’s submissions

25. The Respondent did not file an Answer, despite being granted additional time to do so

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by the Arbitrator. Similarly, the Respondent failed to file any submissions in response to the First Procedural Order.

5. Jurisdiction

26. As a preliminary matter, the Arbitrator wishes to emphasize that, since the Respondent did not participate in this arbitration, he will examine his jurisdiction ex officio on the basis of the record as it stands.

27. 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 the Swiss Act on Private International Law (PILA).

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

29. 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.1

30. The existence of a valid arbitration agreement is to be examined in light of Article 178 PILA, which reads as follows:

"1 The arbitration agreement must be made in writing, by telegram, telex, telecopier or any other means of communication which permits it to be evidenced by a text.

1 Decision of the Federal Tribunal 4P.230/2000 of 7 February 2001 reported in ASA Bulletin 2001, p. 523.

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2 Furthermore, an arbitration agreement is valid if it conforms either to the law chosen by the parties, or to the law governing the subject-matter of the dispute, in particular the main contract, or to Swiss law.

3 The validity of an arbitration agreement may not be contested on the grounds that the principal contract is invalid or that the arbitration agreement concerns a dispute which has not yet arisen."

31. Both the Claimant 1 Contract and the Claimant 2 Contract stipulate:

“Any disputes arising or related to the present Agreement shall be submitted to the FIBA Basketball Arbitral Tribunal (BAT) in Geneva, Switzerland and shall be resolved definitely in accordance with the BAT Arbitration Rules by a single arbitrator appointed by the BAT President. The arbitration shall be governed by Chapter 12 of the Swiss Act on Private International Law (PIL), irrespective of the parties’ domicile. The seat of the arbitration shall be Geneva, Switzerland. The language of the arbitration shall be English. The arbitrator shall decide the dispute ex aequo et bono.”

32. The Claimant 1 Contract and the Claimant 2 Contract are each in written form and thus their respective arbitration clauses fulfil 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 respective arbitration agreements contain ned in the Claimant Contracts under Swiss law (referred to by Article 178(2) of the PILA). In addition, Respondent 2 did not object to the jurisdiction of the BAT over it.

33. For the above reasons, the Arbitrator has jurisdiction to adjudicate the Claimants’ claims.

6. Discussion

6.1 Applicable Law – ex aequo et bono

34. With respect to the law governing the merits of the dispute, Article 187(1) PILA

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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 authorize the arbitral tribunal to decide ex aequo et bono”.

35. 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.”

36. The Claimant 1 Contract and the Claimant 2 Contract each provide that “[t]he arbitrator shall decide the dispute ex aequo et bono”.

37. Accordingly, the Arbitrator will decide the issues submitted to him in this proceeding ex aequo et bono.

38. The concept of équité (or ex aequo et bono) used in 187(2) PILA originates from Article 31(3) of the Concordat intercantonal sur l’arbitrage2 (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

2 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). 3 P.A. KARRER, Basler Kommentar, No. 289 ad Art. 187 PILA.

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those rules.”4

39. 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”.5

40. 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”.

41. In light of the foregoing matters, the Arbitrator makes the following findings.

6.2 Findings

6.2.1 Claimant 1’s principal claim

42. The validity of the Claimant 1 Contract was contingent upon Claimant 1 either passing a medical examination or being deemed to have unconditionally passed the medical examination by playing in any of the Respondent’s practices or games in the circumstances set out in Clause 3 of the Claimant 1 Contract. It is apparent from public information submitted by Claimant 1 that he played in at least one of the Respondent’s games. The Arbitrator therefore finds that the Claimant 1 Contract was valid and effective.

43. Under the Claimant 1 Contract, the Respondent agreed to provide Claimant 1 with a

4 JdT 1981 III, p. 93 (free translation). 5 POUDRET/BESSON, Comparative Law of International Arbitration, London 2007, No. 717, pp. 625-626.

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“fully guaranteed” base salary for the 2016-2017 season. The salary was specifically stated to be not guaranteed in the event of one of four “Exclusionary Events”, namely where Claimant 1 suffered an injury (i) while intoxicated; (ii) while under the influence of an illegal substance; (iii) while participating in a sport which endangered his health or safety (including, but not limited to, boxing, wrestling, motorcycling, moped-riding, auto racing, sky-diving and hand-gliding or (iv) in circumstances where he was grossly negligent in his activities off the basketball court. It follows that if Claimant 1 suffered an injury while playing for the Respondent, the salary would be fully guaranteed.

44. The Arbitrator finds that Claimant 1 was unable to play for the Respondent for all but one game in the 2016-2017 season as a direct result of the injury that he sustained while playing in the first game of the season. Claimant 1 submitted a link to video footage of him sustaining this injury, as well as a press article dated 9 October 2016. The article quotes the Respondent’s head coach discussing the injury and refers to a statement made by the Respondent, which indicates that Claimant 1 was expected to be unable to play for the Respondent for at least six months.

45. Claimant 1 also submitted a medical report dated 6 February 2018, which states that Claimant 1 underwent surgery immediately after sustaining the injury. The medical report states that Claimant followed a specific rehabilitation regime for more than six months after his surgery, and Claimant 1 submitted separately that he stayed with the Respondent’s team to perform the rehabilitation.

46. The medical report further explains that Claimant 1 later demonstrated ______, which was related to the initial injury. Claimant 1 had further surgery for this on 5 April 2017.

47. In light of the above, the Arbitrator considers that the “Exclusionary Events” listed in the Claimant 1 Contract do not apply and so the Respondent was obliged to pay to Claimant 1 his full salary.

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48. Claimant 1 has requested that the Respondent be ordered to provide him with “a tax certificate indicating the net nature of all past and future payments” made under the Claimant 1 Contract. Clause 5 of the Claimant 1 Contract states: “It is understood that Club shall be required to provide to Player with a tax certificate evidencing that all Greek taxes have been paid by Club on behalf of Player”. Accordingly, the Arbitrator finds that the Respondent is required to provide Claimant 1 with a tax certificate showing that all Greek taxes have been paid by the Respondent, on behalf of Claimant 1, in relation to the Claimant 1 Contract.

6.2.2 Mitigation

49. The Respondent committed a fundamental breach of the Claimant 1 Contract by repeatedly failing to pay Claimant 1 his salary. Claimant 1 has submitted copies of a formal notice, to prove that he terminated the Claimant 1 Contract on 28 April 2017. The Arbitrator finds that Claimant 1 did so in accordance with the Clause 2 of the Claimant 1 Contract, which entitled Claimant 1 to unilaterally terminate in the event that the Respondent failed to make a salary payment within 35 days of its due date.

50. The Arbitrator notes the rules of mitigation that generally apply in BAT jurisprudence. The Arbitrator further notes that Claimant 1 has submitted evidence to show that he was injured for the duration of the 2016-2017. Accordingly, the Arbitrator considers that Claimant 1 was not in a position to mitigate his loss by joining a different club for the remainder of the 2016-2017 season, following the termination of the Claimant 1 Contract.

51. Therefore, the Arbitrator finds that the Respondent must pay EUR 110,665.00 to Claimant 1 in respect of the salary payments that were outstanding as at the date of termination of the Claimant 1 Contract, together with EUR 40,000.00 in respect of salary payments that were due in May and June 2017.

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6.2.3 Claimant 2’s principal claim

52. The Respondent’s obligation to pay an agent’s fee to Claimant 2 is provided for in both the Claimant 1 Contract and the Claimant 2 Contract. The Claimant 2 Contract specifically states that the agent’s fee was to be paid to Claimant 2 in consideration for his in role in drafting the Claimant 1 Contract.

53. The Arbitrator considers that Claimant 2 clearly fulfilled his obligations in assisting the parties with drafting the Claimant 1 Contract. The agents’ fee was due to be paid before 1 November 2016, however the Respondent failed to make payment. Accordingly, the Arbitrator finds that the Respondent is required to pay Claimant 2 EUR 20,000.00 as compensation for the unpaid agent’s fee.

6.2.4 Late Payment fees

54. Late payment fees have been considered extensively in BAT jurisprudence (see, for example, FAT 0036/09, BAT 0319/12 and BAT 0487/13). In general terms, parties may be entitled to receive late payment fees, provided that the fees are not excessive.

55. Claimant 1 seeks, in accordance with the terms of the Claimant 1 Contract, late payment penalties at a rate of EUR 25.00 per day. The application of this rate would produce a combined sum of EUR 14,650.00 for late and unpaid salary payments that were due to Claimant 1 in respect of the period 1 October 2016 to 28 April 2017 (i.e. the period between the first late payment penalty becoming due until the termination of the Claimant 1 Contract). This penalty equates to approximately 13% of the principal amount being awarded to the Claimant in respect of this period.

56. In the circumstances of this case the Arbitrator considers ex aequo et bono that such late penalty payments are fair. In reaching this decision, the Arbitrator has paid regard to: (a) the amounts of principal compensation being awarded to Claimant 1; (b) the

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length of time that the principal payments were outstanding; (c) the number of salary payments that were either paid late or not at all; (d) the fact that Claimant 1 has not sought to claim late payment penalties beyond the date of the termination of the Claimant 1 Contract; (e) the fact that the Parties agreed specific disincentives for the Respondents to avoid late payment (in the form of late payment penalties); and (f) BAT jurisprudence regarding late payment fees.

57. Claimant 2 seeks, in accordance with the terms of the Claimant 2 Contract, late payment penalties at a rate of EUR 50.00 per day in respect of the period from 2 November 2016 to the date that the Claimant 1 Contract was terminated. The application of this rate would amount to EUR 8,150.00, which equates to approximately 40% of the principal amount being awarded to Claimant 2.

58. In the circumstances of this case the Arbitrator considers ex aequo et bono that the late penalty payments claimed by Claimant 2 are excessive. In particular, the amount claimed is equivalent to an annual interest rate of more than 90%. In the circumstances of this case, and having regard to BAT jurisprudence, the arbitrator considers ex aequo et bono that a fair sum representing penalty payments would be half of the amount claimed by Claimant 2. Consequently, the Arbitrator finds that the Respondent must pay Claimant 2 EUR 4,075.00 as compensation for late payment of the agent’s fee.

6.2.4 Interest

59. Both Claimants have claimed interest on the sums due to them from the Respondent at a rate of 5% per annum from the date of termination of the Claimant 1 Contract until such time as those payments are made. Neither the Clamant 1 Contract nor the Claimant 2 Contract provide for default interest. Consistent with BAT jurisprudence, the Arbitrator considers that default interest should not accrue concurrently with late payment fees as this would give rise to a ‘double compensation’ (see, for example, BAT 1026). However, the Arbitrator considers it appropriate that interest should accrue

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after the late payments have ceased to accrue (i.e. from 29 April 2017). This approach is consistent with BAT jurisprudence (see, for example, BAT 0162).

60. Although interest is not provided for in either the Clamant 1 Contract or the Claimant 2 Contract, default interest 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, 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 BAT jurisprudence, that 5% per annum is a reasonable rate of interest. Accordingly, the Arbitrator awards interest at a rate of 5% per annum on the principal amounts awarded to the Claimants from 29 April 2017 until the date of payment. Claimant 2 has claimed interest on both the principal (i.e. the outstanding agent’s fee) and the late payment penalties. The Arbitrator finds that interest is only due on agent’s fee because the late payment fee, like default interest, is a form of compensation for unpaid agent’s fees and in these circumstances it would be inequitable to award compensation (in the form of interest) on compensation (in the form of late payment fees).

8. Costs

61. Article 17.2 of the BAT Rules provides that the final amount of the costs of the arbitration shall be determined by the BAT President and may either be included in the award or communicated to the Parties separately. Furthermore, Article 17.3 of the BAT Rules provides that the award shall grant the prevailing party a contribution towards its reasonable legal fees and expenses incurred in connection with the proceedings.

62. On 28 April 2018, considering that, pursuant to Article 17.2 of the BAT Rules, “the BAT President shall determine the final amount of the costs of the arbitration which shall include the administrative and other costs of BAT and the fees and costs of the BAT President and the Arbitrator”, and that “the fees of the Arbitrator shall be calculated on

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the basis of time spent at a rate to be determined by the BAT President from time to time”, 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 7,700.00.

63. Article 17.3 of the BAT Rules provides that the award shall determine which party shall bear the arbitration costs and in which proportion and 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.”

64. The Claimants have been awarded 98% of the total sum that they claimed in relation to unpaid salary, agent’s fee and late payment penalties. The Claimants were successful, in part, in their claim for interest on those sums. The Arbitrator considers that this measure of the success of the Claimants’ claim is the starting point for determining the allocation of the arbitration costs. The Arbitrator notes the Parties’ conduct in the proceedings, in particular, the fact that the Respondent failed to provide its share of the Advance on Costs. In light of this, and the circumstances of the case, the Arbitrator considers that the Respondent should bear all the costs of the arbitration.

65. The Claimants have claimed EUR 14,795.50 in legal fees and expenses (including the non-reimbursable handling fee of EUR 3,000.00). The Arbitrator notes that in these proceedings: he issued one Procedural Order seeking addition information from the Parties; that the Respondent made no submissions at all; and the Respondent failed to provide its share of the Advance on Costs. In light of this, and also the volume and complexity of the Claimants’ submissions, the Arbitrator considers that a fair contribution towards the Claimants’ legal fees and expenses (including the non- reimbursable handling fee) would be EUR 7,500.00. This amount does not exceed the highest amount that can be awarded as contribution to legal fees and expenses under

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Article 17.4 of the BAT Rules, whereby such amount is calculated separately for each Claimant.

66. Therefore, the Arbitrator decides:

(a) the balance of the Advance on Costs, in the amount of EUR 4,300.00, will be reimbursed to the Claimants by the BAT;

(b) the Respondent shall pay to the Claimants EUR 7,700.00, as reimbursement of arbitration costs advanced by them;

(c) the Respondent shall pay to the Claimants EUR 7,500.00, as a contribution towards the Claimant’s legal fees and expenses, including the non-reimbursable handling fee.

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7. AWARD

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

1. BC Aris Thessaloniki (KAE Aris 2003 BC) shall pay Mr. Viktor Sanikidze EUR 150,665.00 as compensation for unpaid salary plus interest at a rate of 5% per annum from 29 April 2017 until payment.

2. BC Aris Thessaloniki (KAE Aris 2003 BC) shall pay Mr. Viktor Sanikidze EUR 14,650.00 in late payment fees.

3. BC Aris Thessaloniki (KAE Aris 2003 BC) shall provide Mr. Viktor Sanikidze with a tax certificate in respect of all Greek taxes paid by BC Aris Thessaloniki (KAE Aris 2003 BC) in respect of all payments to Mr. Viktor Sanikidze.

4. BC Aris Thessaloniki (KAE Aris 2003 BC) shall pay Mr. Stefano Meller EUR 20,000.00 as compensation for unpaid agent’s fees plus interest at a rate of 5% per annum from 29 April 2017 until payment.

5. BC Aris Thessaloniki (KAE Aris 2003 BC) shall pay Mr. Stefano Meller EUR 4,075.00 in late payment fees.

6. BC Aris Thessaloniki (KAE Aris 2003 BC) shall pay jointly to Mr. Viktor Sanikidze and Mr Stefano Meller the amount of EUR 7,700.00 as reimbursement of the advance on BAT costs.

7. BC Aris Thessaloniki (KAE Aris 2003 BC) shall pay jointly to Mr Viktor Sanikidze and Mr Stefano Meller the amount of EUR 7,500.00 as a contribution towards their legal fees and expenses.

8. Any other or further-reaching requests for relief are dismissed.

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Geneva, seat of the arbitration, 8 May 2018.

Rhodri Thomas (Arbitrator)

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