ARBITRAL AWARD

(BAT 1064/17)

by the

BASKETBALL ARBITRAL TRIBUNAL (BAT)

Mr. Stephan Netzle

in the arbitration proceedings between

Ms. Aneika Henry - Claimant - represented by Mr. Jonathan Ackerman Jordan, attorney at law, 267 Kentlands Blvd., Suite 105, Gaithersburg, MD 20878, USA

vs.

Mersin Buyuksehir Belediyesi Spor Kulubu Limonluk Mah. 2486 SK.No:4 Coruhlu New Wave Plaza Kat:8 Daire:16 Yenisehir, Merin, - Respondent - represented by Ms. Nihal Yıldırım, attorney at law, Beyaz Karanfil Sokak No. 39, Levent/Beşiktaş 34330 Istanbul, Turkey

1. The Parties

1.1. The Claimants

1. Ms. Aneika Henry (hereinafter the “Player”) is a professional player. She is a citizen of and the United States.

1.2. The Respondent

2. Mersin Buyuksehir Belediyesi Spor Kulubu (hereinafter the “Club”) is a professional basketball club located in Mersin, Turkey.

2. The Arbitrator

3. On 6 September 2017, the President of the Basketball Arbitral Tribunal (hereinafter the "BAT"), Prof. Richard H. McLaren O.C., appointed Dr. Stephan Netzle as arbitrator (hereinafter the “Arbitrator”) pursuant to Article 8.1 of the Rules of the Basketball Arbitral Tribunal (hereinafter 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 24 December 2016, the Player and the Club signed a guaranteed, no-cut employment agreement for the 2016/2017 basketball season (the “Player Contract”). The Player had played for the Club already during the 2015/2016 season.

5. On 28 December 2016, the Player passed a standard medical examination with the Club’s doctor. This examination included an MRI of the bottom of her left foot which showed that the Player suffered from ______which could be healed with minimal treatment. ______.

Arbitral Award 2/21 (BAT 1064/17)

6. On 30 December 2016, the Player played her first game with the Club for the 2016/2017 season. During a game against Galatasaray on 28 January 2017, she suffered from an injury ______. In the following days, the Player contacted several doctors in Turkey. Another MRI was performed, and the Player received some physiotherapeutic treatment. On 13 February 2017, a doctor in Atlanta recommended that the Player stop playing immediately and undergo surgery. This recommendation was confirmed by another doctor in Atlanta on 20 February 2017. Surgery was eventually performed in Atlanta on 6 March 2017.

7. When the Player stopped attending training sessions and games the Club terminated the Player Contract on 25 February 2017 and did not make any further payments to the Player. The Player now claims unpaid salaries in the amount of USD 120,000 and the reimbursement of medical expenses of USD 26,381. The Club refuses the salary payments because of the early termination of the Player Contract. It also refuses the reimbursement of the medical expenses because the Player did not follow the procedure which was provided by the Player Contract in case of injury or other medical conditions.

3.2. The Proceedings before the BAT

8. On 18 August 2017, the Player filed a Request for Arbitration in accordance with the BAT Rules which was received by the BAT on the same date. A non-reimbursable handling fee of EUR 2,992.92 was received in the BAT bank account on 29 August 2017.

9. By Procedural Order of 14 September 2017, the BAT Secretariat confirmed receipt of the Request for Arbitration and informed the Parties about the appointment of the Arbitrator. Furthermore, a time limit was fixed for the Club to file its Answer in accordance with Article 11.2 of the BAT Rules by no later than 5 October 2017. The BAT Secretariat also requested that the Parties pay the following amounts as Advance on Costs by no later than 25 September 2017:

Arbitral Award 3/21 (BAT 1064/17)

“Claimant (Ms Aneika Henry) EUR 6,000.00 Respondent (Mersin Buyuksehir Belediye Spor Kulubu) EUR 6,000.00”

10. By Procedural Order of 25 October 2017, the BAT Secretariat acknowledged the receipt of the full Advance on Costs paid by both Parties (with a slight overpayment by the Claimant which will be dealt with in the cost section of this award, considering also the slight underpayment of the handling fee), and by the Answer to the Request for Arbitrator from the Club. Moreover, it invited the Player to comment on the Answer by no later than 8 November 2017.

11. By email of 8 November 2017, the BAT Secretariat acknowledged receipt of the Player’s comments. On the same day, the Club was invited to respond to the Player’s comments.

12. On 28 November 2017, the BAT Secretariat acknowledged receipt of the Club’s additional submissions. It informed the Parties that the Arbitrator had closed the proceedings and invited the Parties to submit their accounts of costs until 5 December 2017. The Player’s counsel provided his account of costs on 4 December 2017 and the Club’s counsel on 5 December 2017.

4. The Positions of the Parties

4.1. The Claimant’s Position

13. On 28 December 2016, the Player attended a standard medical examination with the Club’s doctor. An MRI was taken of the bottom of the Player’s left foot. The MRI showed that the Player suffered from ______, but that the diagnosed condition could be healed with minimal treatment. On the same date, the Club determined that the Player had passed the medical exam. The Player played in all games of the Club’s team between 30 December 2016 and 9 February 2017.

14. On 28 January 2017, the Player suffered a ______in a game against Galatasaray. The injury occurred when she landed awkwardly after contesting an

Arbitral Award 4/21 (BAT 1064/17)

opponent’s three-point shot. The Player continued to practise and play in the next games with pain.

15. On 2 February 2017, the Player saw the Club’s doctor, Professor Dr Sercan Akpinar. A second MRI was performed. However, this time it was on the ____. He recommended “physical therapy and usage of [an] ankle brace.”

16. On 3 February 2017, the Player received treatment from the Kayseri head trainer at a recommendation of the Club’s general manager and coach while preparing for an away game. The treatment caused the Player more pain and made the injury worse. The Player continued to play games on 4 February 2017 and 9 February 2017.

17. On 4 February 2017, Professor Dr Ibrahim Yamnis examined the Player’s MRIs. He recommended arthroscopic surgery because of the a______

18. On 11 February 2017, the Player visited Professor Mustafa Karahan. He recommended a personal subluxation operation immediately. However, after speaking with the Club, his initial diagnosis changed. In his letter, he stated, that the surgery should be at the “appropriate timing”, with protection of the reconstruction post-operatively for 1,5 months, and rehabilitation and return to sports program for 1,5 months. After asking for clarification for “appropriate” timing, Dr Karahan stated that it “refers to a timing that is set by the patient and the team.”

19. On 13 February 2017, the Player received correspondence from Dr Brandon Mines, head team physician of the . He reviewed both of Player’s MRI results and diagnosed her with a ______and that it was recommended that she stop playing immediately. Dr Mines determined the best cause of action was immediate surgery.

20. On 20 February 2017, the Player saw a foot specialist, associate Professor Kaan Irgit. He diagnosed her with a ______. He recommended surgical treatment as soon as possible. He also stated that continuing to play on these injuries could

Arbitral Award 5/21 (BAT 1064/17)

jeopardize her athletic career long-term and negatively affect her performance. He also noted that 3-4 months of rehabilitation is the protocol for this type of injury.

21. On 28 February 2017, the Club failed to pay the Player USD 30,000 of her guaranteed salary which became due on that date.

22. On 6 March 2017, Dr Sam Labib performed the required surgery at Emori University in Atlanta, Georgia. In his report, Dr Labib wrote that the Player’s “______.”

23. The Club must reimburse the Claimant for her medical expenses according to Section 3C of the Player Contract.

24. As of the date of the Request for Arbitration, the Player has not been reimbursed for her medical exams, which total USD 26,381, or paid her February, March, April and May salaries.

25. In her second submission, the Player conceded that she had received on 27 February 2017 a further payment of USD 24,000 which had not been considered in her Request for Arbitration. After all, the open salaries for the 2016/2017 season amount to USD 96,000.

26. The Player received the opinion of six doctors. Four of those doctors, namely Sam Labib, Khan Irgit, Ibrahim Yamnis and Brendon Mines, came to the same conclusion that immediate surgery was required. The Club’s Dr Serkhan Akpinar made no mention of surgery and Dr Mustafa Karahan diagnosed the injury as requiring surgery at an appropriate time. The Player was therefore informed by four doctors (Labib, Yamnis, Mines and Irgit) that surgery was the best available option for a basketball player in her position. These opinions gave her informed consent and legitimate reason to decide the undergo surgery as she trusted the doctors which gave her a treatment plan.

27. The Player did not conceal her injury. The Club had knowledge of her previous injuries. She played for the Club already during the 2015/2016 season and had an injury to the same ankle which caused her to miss one game at the end of the season. The Club

Arbitral Award 6/21 (BAT 1064/17)

still decided to hire the Player with another guaranteed contract for the 2016/2017 season. The Club performed a thorough medical exam which included an MRI. On the same day, the Club concluded that she passed the medical exam and allowed her to practise and to play in games.

4.2. The Claimant’s Request for Relief

28. The Request for Arbitration of 18 August 2017 contains the following Request for Relief:

“The Claimant seeks an award in the hereby arbitration ordering the respondent to pay her: a) $ 30.000, - with interest at 5 % per annum starting from 28 February 2017 as outstanding salary b) $ 30.000, – with interest at 5 % per annum starting from 30 March 2017 as outstanding salary c) $ 30.000, – with interest at 5 % per annum starting from 30 April 2017 as outstanding salary d) $ 30.000, – with interest at 5 % per annum starting from 16 May 2017 as outstanding salary e) $26.381 – with interest at 5 % per annum starting from 24 March 2017 as reimbursement of medical expenses totaling f) all costs and legal expenses related to the hereby arbitration

The Claimant expressly reserves its right to amend and amplify the hereby Request for Arbitration and the relief it seeks during the course of this arbitration and she reserves any further rights towards the Club which are not mentioned herein.”

29. The Player later accepted a further payment of USD 24,000 which was paid on 27 February 2017 and amended her Request for Relief accordingly. The open salaries therefore amount to USD 96,000 (instead of USD 120,000) while her request for reimbursement of medical expenses remains unchanged (i.e. USD 26,381).

Arbitral Award 7/21 (BAT 1064/17)

4.3. The Club’s Position

30. The Club confirms that the Player successfully passed the medical examination. The MRI taken of her ____ was not about the injury which is subject to this dispute but was related to another injury.

31. Following the game against Galatasaray on 28 January 2018, the Player informed the Club about her injury and the pain. The injury did not occur during the Galatasaray game. The Player’s problem was rather a relapse of the prior injury. Already in 2016, the Player had paused and did not participate in the WNBA because of that injury. The Player explicitly confirmed in her whatsapp correspondence with the head coach: “I think I need time to properly heal my body. Because having this pain again is stressful. I will talk to my agent. I want to just go home.” The Club denies the allegation of putting pressure on the Player to continue playing.

32. On 2 February 2017, when the team was travelling for an away game, the Parties visited Prof. Sercan Akpinar who recommended physical therapy and wearing an ankle brace. Prof. Akpinar is not the Club’s doctor.

33. Before the team travelled to Kayseri for an away game, the Player refused to attend the training sessions and requested physical therapy instead. The Club met this request and arranged a therapy session with the physiotherapist of Kayseri. On the next day, the Player requested an additional session with Kayseri’s therapist. It is therefore difficult to accept the Player’s statement that she was mistreated.

34. The Player never informed the Club about her contact to and visit at Prof. Ibrahim Yanmis who is not known to the Club. Prof. Yanmis recommended surgery, but such surgery did not have to take place not immediately. Prof. Yannis concluded that the Player’s injury was of chronic nature.

35. On 11 February 2017, when the Player still complained about the pains, the Parties visited another doctor, namely Prof. Karahan, a trusted expert on sports injuries. He was also chosen by the Player’s agent in another injury case earlier this year where he

Arbitral Award 8/21 (BAT 1064/17)

recommended immediate surgery. Dr Karahan recommended surgery to be performed at an appropriate date. Prof. Karahan never recommended an immediate surgery. The Player’s allegation that Prof. Karahan changed his opinion after talking to the Club is simply not true.

36. Following the visit to Prof. Karahan, the Club lost contact with the Player. On 14 February 2017, the Player’s Agent Mr. Lelchitski informed the Club about the diagnosis of Dr Brendon Mines who had recommended immediately surgery. The Player did not inform the Club about her whereabouts. She did not attend games or training sessions and she did not show up at the Club’s facilities.

37. It is a requirement by the Turkish Basketball Federation (TBF), that a Player’s absence must be evidenced by a notary public. In this case, it has been confirmed by several notaries that the Player did not attend the games or the training sessions between 15 February 2017 and 22 February 2017. As a result, the Standard Player Agreement which had been submitted to the TBF for licencing purposes was terminated by a decision taken by the TBF.

38. By email of 25 February 2017, the Club then unilaterally terminated the Player Contract. The Club informed the Player’s Agent that the Player’s salary would be paid until the date of termination, which resulted in the payment of USD 24,000.

39. It is the Club’s belief that the Player intentionally failed to disclose her medical condition. The Player also breached her contact with the Club when she disappeared and failed to inform the Club that she travelled back to the US and underwent a surgery.

40. In this case, the main issue seems to be the contradiction of the doctors’ evaluations. Two of the doctors visited by the Player and the Club, namely Prof. Akpinar and Prof. Karahan, did not recommend immediate surgery. It seems however, that the Player continued to visit further doctors until she got a medical opinion which allowed her to return to the US.

Arbitral Award 9/21 (BAT 1064/17)

41. Article 4 of the Player Contract states what needs to be done if an injury or a medical condition occurs: A physician selected by the Club shall conduct a standard exam. Should the physician’s report be contested, the Player and the Agent are entitled to select a doctor of their choice for a second opinion. If the Club disagrees with the result of this second examination, then the Parties shall mutually agree on a third doctor to conduct a final examination.

42. In this case, the mutually agreed doctor was Prof. Karahan. The Player was obviously expecting a recommendation for immediate surgery. When she did not get this recommendation, she continued to see other doctors on her own.

43. Immediate surgery was therefore the Player’s personal choice. While she was undergoing surgery in the US, she violated the respective duties as agreed in the Player Contract. That is why the Club unilaterally terminated the Player Contract with just cause. It paid the Player’s salary until the day of termination and did not seek legal remedy for its losses arising from her breach of contract.

44. The Club is not responsible for the payment of any medical expenses for the surgery which was not performed in compliance with the Player Contract.

45. With regards to the salary payments the Club finds that the Player is not entitled to remaining payments because the Player Contact was validly terminated by the Club when the Player no longer participated in the team’s activities.

46. In its answer the Club also requests deduction of the February salary of USD 24,000 which was claimed by the Player but paid by the Club on 25 February 2017.

4.4. The Club’s Request for Relief

“In the light of the foregoing explanations, Respondent hereby kindly requests The Honorable Arbitrator to deny and dismiss any and all claims of Claimant and require Claimant to compensate the expenses of the Respondent.

Arbitral Award 10/21 (BAT 1064/17)

Although it is believed that Respondent is not responsible of medical expenses claimed, if Honorable Arbitrator decide in the contrary, Respondent requests a reasonable deduction to be applied.

Although it is believed that Respondent is not responsible of remaining salaries, if Honorable Arbitrator decide in the contrary, then USD 24.000,00 for February salary should be rejected so as to avoid unjust enrichment of Claimant.”

5. Jurisdiction

47. 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).

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

49. 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.

50. The jurisdiction of the BAT over the dispute results from the arbitration clause contained in Article 9 of the Player Contract:

“Any dispute arising from or related to the present contract shall 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 English. The arbitrator shall decide the dispute ex aequo et bono.”

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

52. The Arbitrator considers that there is no indication in the file which could cast doubt on the validity of the arbitration agreement under Swiss law (referred to by Article 178(2)

Arbitral Award 11/21 (BAT 1064/17)

PILA). In particular, the wording “[a]ny dispute arising from or related to the present contract” in Article 9 of the Player Contract covers the present dispute. In addition, the Respondent explicitly consented to the jurisdiction of the BAT.

53. For the above reasons, the Arbitrator finds that he has jurisdiction to adjudicate the Player’s claims.

6. Applicable Law – ex aequo et bono

54. 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 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”.

55. 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.”

56. In Article 9 of the Player Contract, the Parties have explicitly directed and empowered the Arbitrator to decide the dispute ex aequo et bono. Consequently, the Arbitrator will decide the issues submitted to him ex aequo et bono.

57. The concept of équité (or ex aequo et bono) used in Article 187(2) PILA originates from Article 31(3) of the Concordat intercantonal sur l’arbitrage of 19691 (Concordat),2 under

1 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). 2 rd KARRER, in: Basel commentary to the PILA, 3 ed., Basel 2013, Art. 187 PILA N 290.

Arbitral Award 12/21 (BAT 1064/17)

which Swiss courts have held that “arbitrage en équité” is fundamentally different from “arbitrage 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 those rules.”3

58. In substance, it is generally considered that the arbitrator deciding ex aequo et bono receives

“the mandate to give a decision based exclusively on equity, without regard to legal rules. Instead of applying general and abstract rules, he must stick to the circumstances of the case at hand”.4

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

7. Findings

7.1. Early termination of the Player Contract

60. The Player claims the payment of unpaid salaries in the amount of USD 96,000 while the Club refuses to pay any salaries which may have become due after the date of the unilateral termination of the Player Contract (i.e. 25 February 2017). The Club justifies the early termination of the Player Contract because of the Player’s absence from the team without any notice of departure after 11 February 2017.

61. What is undisputed is that the Club was aware of the Player’s medical condition (______) when it contracted the Player in December 2016 and that the Player nevertheless participated in all training sessions and games until 9 February 2017. It is also undisputed that the Player complained about the ______on 2 February 2017. The Arbitrator does not support the Club’s argument that the Player concealed a

3 JdT (Journal des Tribunaux), III. Droit cantonal, 3/1981, p. 93 (free translation). 4 POUDRET/BESSON, Comparative Law of International Arbitration, London 2007, N 717, pp. 625-626.

Arbitral Award 13/21 (BAT 1064/17)

pre-existing medical condition. To the contrary, the Club knew and accepted the risk that comes with such a condition.

62. The Parties disagree on whether this pain was the result of an incident that took place during the game against Galatasaray on 28 January 2017 or whether it was a consequence of a prior medical condition that had already been diagnosed at the medical exam of 20 December 2016. The email exchange between the Player and the Club’ head coach indicate that it was her previous medical condition that caused or at least added to the pain. For example, the Player wrote: “Ok, yeah basically the same thing as last year. I think I need time to properly heal my body. Because having this pain again is stressful.” Whether the pain returned because of the incident during the Galatasaray game or because of physical stress resulting from intense training and playing games is impossible to determine at this point of time. It is also irrelevant for the reasons set out below.

63. Article 4 of the Player Contract addresses the issue of medical exams and injuries as follows:

“4. Medical exam, injuries a. The Club agrees that the Player shall pass a standard medical examination for basketball players, and that the Club’s obligations under this Agreement shall be contingent upon Player’s passing (or being deemed to pass) such examination. Within three (3) days of Player’s arrival in Mersin, a physician selected by the Club shall conduct this standard medical examination. If Club fails to notify Player and Player’s representative of a failed medical examination within six (6) days of Player’s arrival in Mersin, the Player shall then be treated as having passed the medical exam. In the event that the physician selected by the Club determines that the Player is unable to pass the standard medical examination for basketball players, Club agrees that the Player and the agent shall be allowed to select a physician of their choice to render a second medical opinion concerning the Player’s ability to pass the standard medical examination. In the event that the Club disagrees with the second medical opinion, a third reviewing physician who is mutually acceptable by the Club and Player and player’s representatives shall render a medical opinion concerning the Player’s ability to pass the standard medical examination will be paid by the player and such opinion shall not be final and binding. Player shall not be required to participate in any Club’s practices or physical activities until such medical examination is conducted. If the Club believes that the Player is not healthy upon Player’s arrival in Mersin, Club shall immediately notify Player and Player’s representative and shall not allow Player to participate in any training sessions or training camp.

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b. In the event that the Player sustains an incapacitating injury or illness during the term of this Agreement, as long as injury and illness are incurred due to activity made by the Player for the Club that renders the Player incapable of performing in some or all of the remaining games, the Club agrees to meet all payment obligations as though the Player had performed in all games. (…)” (sic)

64. This paragraph regulates the procedure related to the medical examination that the Player must pass before the Player Agreement may enter into force. It seems however that this paragraph is the result of a hasty copy/paste exercise by the drafter of the Player Contract because it makes no sense to e.g. declare the third medical opinion by a reviewing physician who is mutually acceptable by the Club and Player and player’s representatives “not be final and binding”. In addition, this article 4 does not explicitly address the procedure to be followed after an injury occurs during the term of the Player Contract. There is obviously a lacuna which needs to be filed by the Arbitrator, taking the hypothetical intent of both Parties into consideration.

65. Considering the spirit of the Player Agreement, the procedure regarding the medical examination agreed in the Player Contract and the conduct of the Parties when the Player complained about her ankle pain, the Arbitrator finds that the following procedure was in the best interest of both Parties and would have been agreed upon if addressed during the negotiation: If an injury or illness occurs or if the Player complains about a medical condition, she has to report to the Club’s doctor or a doctor accepted by the Club first, either directly or through the head coach. If the Player does not agree with the first medical opinion and recommendation, she may see a second medical doctor of her choice and at her own expense. If the Club does not agree with the medical opinion of that second physician, the Parties shall mutually agree on a third physician to examine the Player. That third medical opinion shall be final and binding. If such procedure is followed, the Club shall remain obliged to comply with its contractual duties and in particular continue paying the Player’s salary. The Arbitrator also finds that the costs of the third medical opinion shall be borne by the Club.

66. In fact, upon the occurrence of the ankle pain, the Player visited Dr Sercan Akpinar. Although he is not the Club’s doctor, he was accepted by the Club. Dr Akpinar recommended physical therapy and ______but not surgery. The Player did not agree

Arbitral Award 15/21 (BAT 1064/17)

but visited Prof Ibrahim Yanmis on her own. Prof. Yanmis recommended arthroscopic surgery. There is no indication as to whether the surgery should be performed urgently.

67. When there was no agreement on the proper treatment after the second medical opinion, the Parties agreed to see Prof. Mustafa Karahan on 11 February 2017. He recommended “______operation at the appropriate timing, protection of the reconstructive postoperatively for 1.5 months, and rehabilitation and return to sports program for 1.5 months.” He later clarified later:

“Appropriate timing refers to a timing that is set by the patient and the team which the contrary would be an emergency / urgent surgery without any delay such as a locked knee.”

68. There is no evidence that Prof. Karahan recommended immediate surgery first and changed his mind upon demand of the Club.

69. The Arbitrator finds under the circumstances that Prof. Karahan was the third medical expert mutually agreed upon by both Parties and the Player’s representative. His opinion must therefore be considered as final and binding upon both Parties. This means that the Player was then obliged under the Player Contract to return to and participate in the Club’s practices and games to the best of her abilities. However, that is not what the Player did. She continued visiting doctors and did not return to the Club despite several reminders to do so. Eventually, the Player returned to the US and underwent surgery in Atlanta. By not accepting the result of the contractual procedure as determined by the Arbitrator and by simply breaking off contact with the Club, the Player violated her contractual duties. Whether such breach entitled the Club to unilateral termination of the Player Contract is a separate question.

70. Article 7 of the Player Contract reads as follows:

“Should the Club decide to unilaterally terminate the hereby agreement at any time during the term of the Agreement, it shall pay the Player the guaranteed salary for the full term of this Agreement. (…) The Club accepts and agrees that all remaining payments shall immediately become due in such a case. The Player shall be entitled the use of an apartment as specified in Paragraph 3.b. above for five (5) days.”

Arbitral Award 16/21 (BAT 1064/17)

71. On the other hand, Article 8 of the Player Contract entitles the Player to no longer comply with the stipulated obligations and to unilaterally terminate the agreement if the Club fails to make the contractually agreed payments. Article 8 c of the Player Contract explicitly states that unilateral termination of the Player Contract may be justified also by other reasons.

72. While Article 8 explicitly grants the Player a right of unilateral termination of the Player Contract if she is not timely paid or if other reasons may justify such termination, Article 7 does not grant the Club a similar right even if the Player is in material breach of the contract. It is however a generally accepted principle that any permanent contract may be terminated for cause if such termination is not explicitly excluded. In particular, the Arbitrator finds that the Player not reporting to the Club despite several warnings must indeed be regarded as sufficient ground justifying unilateral termination of the Player Contract by the Club. That is the principal obligation of the Player which is equivalent to the Club’s obligation to pay the Player’s salary and bonuses.

73. This finding does not mean that the Player had to struggle through painful training sessions and games, thereby worsening her medical condition. She was not prevented from re-opening the procedure following a medical complaint if the recommended conservative treatment turned out to be ineffective. However, considering her disregard of the accepted procedure in case of an alleged injury, the chronic nature of her injury, the Player’s explicit wish to return to the US and the incongruent medical advice collected from various doctors, the Arbitrator finds that the Player did not comply with her basic duties under the Player Contract when she simply disappeared from the Club.

7.2. Financial Consequences

7.2.1. Salary payment

74. Since the Arbitrator finds that the Club was entitled to unilaterally terminate the Player Contract when the Player failed to report to the Club, the Club was no longer obliged to pay the Player’s salaries after the termination date which was 25 February 2017.

Arbitral Award 17/21 (BAT 1064/17)

75. The Player has already accepted in her second submission that the amount of USD 24,000 paid by the Club on 27 February 2017 shall be deducted from her initial claim, as requested by the Club in its answer.

76. According to the Player Contract, the salary for February 2017 became due on 28 February 2017. Until the termination date of 25 February 2017, she was entitled to USD 26,785.70. On 27 February 2017, she was paid only USD 24,000. The difference of USD 2,785.70 is still due since 28 February 2017.

7.2.2. Medical expenses

77. The Player’s non-compliance with her contractual duties, which justified the early termination of the Player Contract by the Club, must be separated from her medical condition as such. Surgery of her left ankle was recommended by most of the doctors, including Prof. Karahan, the third medical expert accepted by both Parties and the Player’s representative. The disagreement rather concerns the timing of the surgery. While the Arbitrator accepts that on 11 February 2017, Prof. Karahan did not see the necessity of an immediate surgery, it is well possible that when the Player had returned to the team, the Club would have acknowledged in the following weeks that more specific treatment, including surgery, was medically required while the Player was still under contract. The Club was aware of the medical risks when it contracted the Player anew and it would not have been acceptable to postpone otherwise necessary medical measures until the Player Contract expired. According to Article 4 of the Player Contract, it would have been the Club’s obligation to bear the costs of such medical treatment.

78. It is difficult to assess the costs of such medical treatment and the Arbitrator is not ready to simply accept the costs of the Player’s visits to various doctors and the surgery performed in Atlanta, although they may serve as an indicator of such medical costs. The Arbitrator, deciding ex aequo et bono, finds that the Club shall contribute an amount of USD 15,000 to the medical costs of the Player.

Arbitral Award 18/21 (BAT 1064/17)

79. With respect to the requested interest for late payment, the Arbitrator finds that interest of 5% per annum shall be due on the remaining salary of USD 2,785.70 since 1 March 2017 (i.e. the day following the payment date of the February 2017 salary), and on the contribution to the Player’s medical costs of USD 15,000 since 25 April 2017 (i.e. the day following the expiration date of the Player Contract corresponding to the last day of the Club’s participation in the Turkish Championships which was the last quarter final game against Fenerbahce).

8. Costs

80. Article 17 of the BAT Rules provides that the final amount of the costs of the arbitration shall be determined by the BAT President and that the award shall determine which party shall bear the arbitration costs and in what proportion; and, as a general rule, shall grant the prevailing party a contribution towards its reasonable legal fees and expenses incurred in connection with the proceedings.

81. On 11 February 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 “[t]he fees of the Arbitrator shall be calculated on 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 to be EUR 8,600.00.

82. The outcome of the case suggests that the Player must bear the larger share of the procedural costs. However, considering the specific circumstances of this case, especially that the Club was aware of the Player’s medical risks when it signed the Player Contract, and that the Club gave the impression that it tried avoiding or postponing surgery although surgery turned out to be the appropriate solution of the

Arbitral Award 19/21 (BAT 1064/17)

Player’s health issue, the Arbitrator finds it fair that the fees and costs of the arbitration be equally borne by both Parties.

83. Given that the Advance on Costs of EUR 12,000 was equally paid by both Parties as set forth in para. 10 supra, in application of Articles 17.3 of the BAT Rules the Arbitrator decides that the BAT shall reimburse the remainder of the respective advances in the amount of EUR 1,700.00 to each Party equally, plus the amount of EUR 160,28 to the Claimant as reimbursement of the overpayment of the advance of costs by her;

84. The Arbitrator also finds, for the reasons set out in para. 82 above, that the Parties shall bear their own legal fees and expenses, including the handling fee.

Arbitral Award 20/21 (BAT 1064/17)

9. AWARD

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

1. Mersin Buyuksehir Belediyesi Spor Kulubu is ordered to pay to Ms Aneika Henry the amount of USD 17,785.70, plus interest of 5% p.a. on the amount of USD 2,785.70 since 1 March 2017 and on the amount of USD 15,000.00 since 25 April 2017.

2. Mersin Buyuksehir Belediyesi Spor Kulubu and Ms Aneika Henry shall each bear half of the arbitration costs.

3. Mersin Buyuksehir Belediyesi Spor Kulubu and Ms Aneika Henry shall bear their own legal fees and expenses.

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

Geneva, seat of the arbitration, 20 March 2018

Stephan Netzle (Arbitrator)

Arbitral Award 21/21 (BAT 1064/17)