“FIBA demonstrates the argument of power instead of the power of argument”

2016-11-18T12:47:03+00:00 2016-11-18T12:47:23+00:00.

Aris Barkas

18/Nov/16 12:47

Eurohoops.net

Can a FIBA ban on registering new players be used as leverage in the ongoing conflict against Euroleague? It’s an absurd question, but the answer is more than tricky in the case of Montenegrin champions Buducnost

By Aris Barkas/ barkas@eurohoops.net

Can a FIBA ban on registering new players be used as leverage in the ongoing conflict against Euroleague? It’s an absurd question, but the answer is more than tricky in the case of Montenegrin champions Buducnost.

On the 9th of July 2015, Slovenian Aleksandar Capin won a BAT case against Buducnost, which owned him a total 132,655 euros. It was a typical case for the arbitration court and the Montenegrin club had no other choice than to pay in order to lift the FIBA ban which is imposed upon the request of the claimant.

Buducnost paid the total amount of money, but Capin got 62.621 euros and his former agent Zeljko Vergot got 70.043 euros. Vergot had won a case against Capin in the District Court of Novo Mesto, Slovenia, on the 7th of April 2008, which concerned their collaboration before 2006, when BAT was not established yet. Capin had avoided all those years to pay Vergot who in turn managed to get two enforcable decisions from the Basic Court of Podgorica in Montengro, the last on March 2015, regarding the transfer of the club’s debt toward the player to him.

According to Buducnost, the club was bound by the Montenegrin court and had no choice but to pay Vergot with the money owned to Chapin. As the club’s president Dragan Bokan said to Eurohoops: “Our club had to honour the enforceable decisions of Montenegrin courts and public executioner and therefore to pay Mr. Vergot all the money according to the enforceable judgment of the higher Court of Ljubljana, Slovenia. We were ordered to pay to Mr. Vergot and could not disregard those decisions. Should we had paid according to the BAT award and also according to the above-mentioned enforceable decisions, we would have ended up paying EUR 70.000 more than we owed to Mr. Capin”.

That is why Buducnost entered into the agreement with Vergot and agreed to pay the Capin’s debt towards him. Buducnost paid the whole debt according to the BAT award, split between Capin and Vergot, and sent all the proper paperwork to FIBA with a request that FIBA recognizes this payment as a fulfillment of all obligations arising from the BAT Award. On the 24th of September 2015 the ban was lifted as FIBA concluded that payment was made in accordance with the BAT award. “We believed that FIBA will recognize such payment as a valid one”, said Bokan, “and so it happened. FIBA has decided that the payments were made according to the BAT award and Mr. Ćapin has not appealed such decision. This is the point where the story should have ended”.

The conflict

This was not, however, the end of the story. On the 8th of October an e-mail by Benjamin Cohen, head of governance and legal affairs of FIBA, was sent to the club, which was informed that “FIBA exceptionally lifted the ban on registration”. And also that “BC Buducnost has also effected certain payments to a third party who was not involved in the BAT proceedings. Please note that FIBA is not bound by the domestic court orders”.

So simply put, according to FIBA, Buducnost still had to pay arround 70.000 euros to Capin – the same ammount that it was paid to Vergot – or the ban would remain. The Montenegrin club asked for more explanations and the answer of Cohen who had received a letter from the side of the player with Capin’s position was that “the club chooses not to respect the BAT Award, and decides to pay a part of the debt to Mr. Capin’s alleged creditor. Acting in this manner, the club took part of a financial institutions, solely authorized to deal with securities, debts and non performance loans, and even they under the strict regulation of the Central Banks. It is clear and important that FIBA prevent such practice in the very beginning”.

In the following months FIBA urged Buducnost and Capin to find a settlement, while Buducnost had filed an appeal towards the decision of FIBA concerning the ban since the 16th of October 2015. It has also to be noted that every Capin’s appeal was rejected in the civil courts where he even claimed that Vergot’s lawsuits were not aimed toward him but an other person named Capin (error in persona), and he never made an appeal for the decision of FIBA on the 24th of September to lift the ban.

Buducnost still states that has fully paid its debt, Capin disagree and on the 2nd of August the FIBA ban was reinstated. FIBA therefore changed its decision from 2015 without any appeal being filed against it and without any explanation. On the 16th of September a second appeal by Buducnost was filed with the club requesting an “interim relief” of the ban because of the intricacies of this case. So far, more than a year after the first appeal (filed in Ocotber 2015) the reasons for such decision making remain unclear, according to Buducnost’s side.

FIBA’s side on the matter

Eurohoops asked FIBA about its take on the case and got the following answer by the press office.

“Buducnost has been since 2 August 2016 under a ban on international transfers for not honouring BAT award. The arguments mentioned in your mail are part of Buducnost´s appeal against the decision imposing the ban. The appeal is currently pending before the FIBA appeals panel and a hearing is expected to take place next month.

Together with its appeal, Buducnost requested a decision on interim measures, i.e. that the FIBA appeals panel would allow Buducnost to perform transfers until the final decision is issued. The player Capin is a party to these proceedings and has presented a series of arguments against Buducnost´s appeal. FIBA is also a respondent but understands that the matter is primarily a monetary dispute between Mr Capin and Buducnost. FIBA´s role is limited to ensuring that decisions of the BAT, to which the parties voluntarily submit their claims, are honoured. In fact, FIBA accepted Buducnost´s proposal that the money in dispute be deposited as an escrow in the account of a notary in Podgorica, so that Buducnost can be allowed to perform transfers. For reasons unknown to FIBA, Buducnost has changed its position and, therefore, it has not received a letter of clearance for the new players. FIBA has informed Buducnost that it reserves its rights regarding the responsibility of the persons involved in these transfers”.

The Montenegrin club was surprised to hear that Capin is still included in the proceedings, since Buducnost appeals does not concern the financial dispute, or the BAT award, but FIBA’s decision on the ban.

“The argument of power”

You can view all this case as a strage dispute with FIBA trying to do the best as an arbitrator and Buducnost being in an akward place between BAT and civil courts. However this view may change if you also consider the fact that Buducnost has chose to play in the Eurocup and not in FIBA’s Basketball Champions League. And the club can register its new players in the Eurocup which is governed by the Euroleague without any ramifications so far.

In the current status quo of European basketball, Buducnost made transfers which are banned by FIBA, but the players even without having their letters of clearance are already used in the main two competitions in which the team is a contender, Eurocup and the Adriatic league. “FIBA presently makes no comment on the validity of the results in the games played by these players in the Adriatic League and Eurocup”, was the response of the International Basketball Federation to Eurohoops.

Has anyone suggested that things could have been different, if Buducnost had chosen the Basketball Champions League? The answer of the club’s president Bokan is no: “No, no such implications were ever made. However, this case leaves us wondering about the background of this story. When a decision has no reasons, it is not explained and it not rendered according to the rules of proceeding, than something is not right”.

Still nobody has a clear answer about why this simple BAT case ended up being such a mess. “I can say that everything in this case was informally pre-approved by FIBA as we did not want to lose any time because we have had just four days to uplift the sanctions and register new players”, explains Bokan from his side. “FIBA has changed its decision after one year. Our club plays in the ABA league and the Eurocup, two competitions not sanctioned by FIBA.

For me this is a clear demonstration of the argument of power instead of the power of argument.

Buducnost has always respected all final and enforceable arbitral or court decisions. The same applies in this case. Let me also point out that Mr. Capin either has not appealed against the decisions of Montenegrin courts and public executioner or his appeals were rejected. If necessary we will seek justice with CAS.”