CAS 2000/A/262 R. / International Basketball Federation (FIBA), preliminary award of 28 July 2000
Related cases:
- Swiss Federal Court 4P_230_2000 Stanley Roberts vs FIBA
February 7, 2001 - DIS U (K) 1651_02 Stanley Roberts vs District Court Munich
October 10, 2002
- Basketball
- Doping (amphetamines)
- CAS jurisdiction
- Arbitration clause referring to CAS
1. Swiss Law requires for an arbitration agreement to be valid, that it is made in writing. The written form has as a purpose firstly to warn the parties about the existence of an arbitration clause and secondly to serve as evidence. When reference is made to an external document, and particularly when this reference is of a global nature only (not specifically mentioning the arbitration clause) the question as to whether the
requirements of form are met, must be decided upon the principle of trust.
2. A global reference is not sufficient, when the party proposing an arbitration clause in this way knew or should have known by experience, that the other party did not want to agree to such a clause or if such a clause was unusual under the given circumstances. A global reference on the other hand is valid and sufficient between two parties, who are experienced in the field or when an arbitration clause is customary in the particular
sector of business, regardless of whether the other party has indeed read the document of reference and therefore knew, that it contained such a clause. The Swiss Federal Court has applied and confirmed this principle of trust also to sports related disputes.
3. A professional basketball player can be considered experienced in the field of professional sports. Arbitration clauses have become customary in most international sports federations and many By-Laws or procedural regulations of these organisations refer to CAS arbitration with the explicit exclusion of the right to appeal to ordinary courts. Arbitration is also a widely applied way of dispute settlement in the sport in the
US. An arbitration clause such as the one contained in the FIBA Rules can therefore not be considered as unusual.
On 24 November 1999 the U.S. National Basketball Association (NBA) imposed a 2 year period of ineligibility on the Athlete after he tested positive for a prohibited substance Amphetamine .
Based on the NBA decision, FIBA also sanctioned the Athlete with a 2 year period of ineligibiltiy for FIBA competitions. As a consequence the Athlete’s contract to join the Turkish basketball team Efes Pilsen was cancelled.
The FIBA sanctioned the Athlete under a new set of rules in order to prevent basketball players go overseas without restrictions to resume their career after being expelled from the NBA. The Athlete claimed the FIBA decision damaged his career.
Between 2009 until 2003, the Athlete filed without success severals lawsuits before courts in the USA, Germany and Switzerland against the FIBA seeking cancellation of the sanction and damages of just under $1 million.
- The FIBA Appeal Commission dismissed the Athlete's appeal on 4 February 2000.
- On 31 August 2000 (CAS 2000/A/262) the CAS Panel ruled it has jurisdiction about the imposed FIBA sanction, but considered itself incompetent to rule about damages.
- The Swiss Federal Court decided to dismissed his complaint on 7 February 2001.
- The German Distric Court in Munich dismissed the Athlete's appeal on 20 December 2001.
- The German Institution of Arbitration dismissed his appeal on 10 October 2002).
