Arbitral Award Basketball Arbitral Tribunal (Bat)
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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, Turkey - 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 basketball player. She is a citizen of Azerbaijan 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 Atlanta Dream. 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.