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Arbitral Award Basketball Arbitral Tribunal (Bat)

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Arbitral Award Basketball Arbitral Tribunal (Bat) 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 Thessaloniki (KAE Aris 2003 BC) 2 Grigoriou Lambraki st, Thessaloniki 54636, Greece - Respondent - 1. The Parties 1.1 The Claimants 1. Mr. Viktor Sanikidze (hereinafter “Claimant 1”) is a professional basketball 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. Arbitral Award 2/25 BAT 1115/17 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: Arbitral Award 3/25 BAT 1115/17 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. Arbitral Award 4/25 BAT 1115/17 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.
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