Basketball

Bibliography

Abdullah Khairul Hafezad/Sofyan Davi/Roslan Mohd Firdaus/Oluwatoyin Ibraheem Musa/Osiobe Ejiro Uriri, A literature Review and Bibliometric-Analysis of the Game of Basketball: A Case Study on Indonesia and Malaysia, International Journal of Basketball Studies 2022, pp. 32-42 (cit. Abdullah et al.); Brägger Rafael, Unihockey, in: Schneuwly Anne Mirjam/Strub Yael Nadja/Koller Trunz Mirjam (Eds.), Sportverbandskommentar; Casey Angela, Individualarbeitsrechtliche Streitigkeiten im Schiedsverfahren, ASA Bulletin (2) 35/2017, pp. 266-280; Cattaneo Andrea/Parrish Richard, Sports Law in the European Union, Alphen aan den Rijn 2020; Cortada Emanuel, Court of Arbitration for Sport, in: Schneuwly Anne Mirjam/Strub Yael Nadja/Koller Trunz Mirjam (Eds.), Sportverbandskommentar; Dietl Helmut/Franck Egon/Lang Markus/Rathke Alexander, Organizational Differences between U.S. Major Leagues and European Leagues: Implications for Salary Caps, SSRN Working Paper Series No. 11-05 2011 (cit. Dietl et al.); Eichel Benjamin, Der Sport im Recht der Europäischen Union, Hamburg 2012; Engelhard Alexander/Herrlein Maike, How BAT ruled on a player contract affected by Russia Ukraine War (Brantley v Basketball Club UNICS), LawInSport, viewed on 5 February 2024; Engelhard Alexander/Milanovic Luka, An Overview of the dispute between FIBA & EuroLeague – Is there an end in sight?, LawInSport, viewed on 10 February 2024; Fischer Paul, Die Rolle des Ein-Platz-Prinzips in der Autonomie der Sportfachverbände, Augsburg 2017; Haas Ulrich, Sportverbandsstruktur, in: Schneuwly Anne Mirjam/Strub Yael Nadja/Koller Trunz Mirjam (Eds.), Sportverbandskommentar; Haas Ulrich/Martens Dirk-Reiner, Sportrecht: eine Einführung in die Praxis, Zürich 2012; Haas Ulrich/Strub Yael, Entwicklungen im Sportrecht/Le point sur le droit du sport, SJZ 2017, pp. 58-63; Humbel Claude/Schneuwly Anne Mirjam, Gesellschaftsformen im Sportorganisationsrecht, in: Schneuwly Anne Mirjam/Strub Yael Nadja/Koller Trunz Mirjam (Eds.), Sportverbandskommentar; Klingmüller Angela, Die rechtliche Struktur der US-amerikanischen Berufssportligen am Beispiel der National Basketball Association (NBA), München 1998; Ludwig Kai, Fussball, in: Schneuwly Anne Mirjam/Strub Yael Nadja/Koller Trunz Mirjam (Eds.), Sportverbandskommentar; Mamanazarqizi Turg‘Unova Dilnura, The History of Basketball and Development Stages, European Scholar Journal 2021, pp. 69-70; Menz David, Das Basketball Arbitral Tribunal – Ein Schiedsgericht für finanzielle Streitigkeiten im Basketball, in: Schneuwly Anne Mirjam/Strub Yael Nadja/Koller Trunz Mirjam (Eds.), Sportverbandskommentar; Mitten Matthew J., Sports Law in the United States, Alphen aan den Rijn 2017; Naismith James, Basketball: Its Origin and Development, New York 1941; Noll Roger G., The Organization of Sports Leagues, Oxford Review of Economic Policy 2003, pp. 530-551; Rigozzi Antonio/Hasler Erika, The CAS Procedural Rules, in: Arroyo Manuel (Ed.), Arbitration in Switzerland – The Practitioner's Guide, Vol. 2, second ed., Art. R52, Alphen aan den Rijn 2018; Scherrer Urs/Brägger Rafael, Basler Kommentar Zivilgesetzbuch I, 7th ed., Art. 70 and 75, Basel 2022; Scherrer Urs/Muresan Remus/Ludwig Kai, Sportrecht, eine Begriffserklärung, 3rd ed., Zürich 2014; Weber-Stecher Urs, Basler Kommentar Schweizerische Zivilprozessordnung, Art. 354, Basel 2017; Steiner Marco, Verfahrensrechtliche Aspekte der privatrechtlichen Dopingbekämpfung in der Schweiz, in: Schneuwly Anne Mirjam/Strub Yael Nadja/Koller Trunz Mirjam (Eds.), Sportverbandskommentar; Strub Yael Nadja, Reitsport, in: Schneuwly Anne Mirjam/Strub Yael Nadja/Koller Trunz Mirjam (Eds.), Sportverbandskommentar.

Materials

Mapping and Analysis on the Specificity of Sport, A Final Report to the DG Education & Culture of the European Commission, Publications Office of the European Union, Luxembourg 2016 (cit. EC Analysis Specificity of Sport); Study on the European Sport Model – A report to the European Commission, Publications Office of the European Union, Luxembourg 2022 (cit. EC Study on the European Sport Model).

I. General Information

A. Structure

The focus of the lines below shall lie on the framework governing the sport of basketball on an international and national level. Commencing with a general overview of the sport (I.), we will then move on to the organizational structure on an international and national level (II.) followed by an outline of competition regulations and procedures (III.) and conclude with two specific and current legal issues linked to European basketball (IV.).

B. An Overview of the Sport of Basketball

Basketball is a team sport originally played by two teams of five players each. The aim of each team is to score in the opponent's basket and prevent the opposing team from scoring as per Art. 1.1 Official Basketball Rules, 2023 (FIBA OBR). Fundamental movements of the game involve dribbling, rebounding, blocking and shooting under explosive and strong acceleration (Abdullah et al., p. 32).

More recently, a historically less prominent format of urban basketball played by two teams of 3 players each (3x3 Basketball) on a single hoop experienced extensive popularization and made its debut at the Olympic Games in Tokyo in 2021 (History of 3x3 Basketball).

At an international level, basketball is governed by the Fédération Internationale de Basket-Ball (FIBA) with its Regional Offices pursuant to Art. 1.2, 17.1 and 17.2 FIBA General Statutes, 2021 (General Statutes). Swiss Basketball (SWB), as a member of FIBA and one of the oldest Swiss sports governing bodies (Swiss Sports History, University of Lucerne), regulates the sport of basketball in Switzerland.

C. Historical Outline

Modern basketball was invented in 1891 in Springfield by Dr. James Naismith, a teacher of anatomy and physiology at a YMCA Training School, who sought to keep his students active during cold winter months and was keen to provide an alternative to the «monotony» of gymnastics (Klingmüller, p. 4; Mamanazarqizi, p. 69; cf. Naismith, p. 30). Without going into further detail, the rules at the time were quite different from those of today (cf. Naismith, passim; IOC Basketball).

As an Olympic discipline, basketball made its first appearance in St. Louis as a demonstration sport in 1904. Between 1919 and 1931 the first national associations emerged, leading to an institutionalization of the sport (Mamanazarqizi, p. 70). In 1932, a major organizational development was taken on an international level, when the federations of Argentina, Czechoslovakia, Greece, Italy, Latvia, Portugal, Romania and Switzerland founded FIBA in Geneva (https://www.fiba.basketball/history" style="display:inline" target="_blank">FIBA History), back then as the Fédération Internationale de Basketball Amateur. Shortly thereafter, in 1936, Basketball was included in the medal competitions of the Olympic Games and remained as such ever since (IOC Basketball). It was however only in 1989 when FIBA allowed for the participation of professionals at the Olympic Games, mainly those from the National Basketball Association (NBA). In the wake of these events, the famous «Dream Team», composed of NBA superstars won the Olympic Gold Medal with unparalleled dominance which led to a significant surge in the number of national federations (Mamanazarqizi, p. 70).

Since 1950, FIBA organizes the Basketball World Cup, which is held every four years in alternating terms with the Olympics. Since 2012, FIBA has been organizing a separate World Cup in its 3x3 competition format (FIBA Timeline).

SWB, established in 1929, was among the founding national federations of FIBA. Today, the association unites 9 Regional Associations (RA) with around 200 clubs and 24'000 athletes. The main competitions of Swiss Basketball include inter alia the Swiss Cup, the Swiss Basketball League and the National Youth Championships. Swiss Basketball is engaged in regulating and organizing the sport of basketball on a professional and amateur level in Switzerland (About Swiss Basketball).

II. Organizational Structure of Basketball

A. International Perspective: FIBA

FIBA is headquartered in Mies, Switzerland and organized as a Swiss association pursuant to Art. 60 et seqq. Swiss Civil Code (Art. 2.1 and 2.2 General Statutes; Swiss Central Business Name Index). FIBA's role in the world of organized basketball is inter alia to regulate basketball activities worldwide including the administration of all official international competitions at national team and club level (Art. 4 lit. a and f, Art. 5 General Statutes).

To achieve this goal, FIBA employs the European Model of Sport Governance, i.e. a pyramid system with FIBA at the top as an international federation with national federations as its direct members, who are bound to implement and execute FIBA's rules and regulations (Art. 6 General Statutes and Annex; EC Study on the European Sport Model, 3; cf. Corporate structure of international federations in Humbel/Schneuwly, para. 40; Haas, Sportverbandsstruktur). A cornerstone of the European Model of Sport is the «single-entity-principle», which stipulates that each sport falls under the centralized regulatory jurisdiction of a single federation (Haas/Martens, p. 38 et seq.; Scherrer/Muresan/Ludwig, p. 117). The single-entity-principle is also enshrined in Art. 7.2 General Statutes, establishing that only one national basketball federation per country can be admitted as member of FIBA. The same principle is strengthened by the recognition of one sole international entity per sport by the IOC – in the case of basketball, the IOC recognized FIBA as the competent governing body (Art. 1.2 General Statutes).

Art. 6 General Statutes stipulates that only national federations can acquire membership in FIBA. An imperative obligation of national federations, deriving from their direct membership, is their strict compliance with all sporting and governing rules adopted by FIBA (Art. 7.5, 9.2 - 9.10 General Statutes). At the same time, the General Statutes contain provisions, e.g. in Art. 9.1 lit. d and e, Art. 9.2 and Art. 12, to ensure the binding effect of its regulations also on indirect members, i.e. members of national federations (distinction between direct and indirect membership cf. Scherrer/Brägger, Art. 70 para. 13a), as well as its various bodies and affiliates including clubs and leagues. Up to the present day, FIBA counts 212 member federations from all continents (Annex General Statutes; List of FIBA Members).

Compared to football (cf. Ludwig), the most structurally developed sport under the European Sports Model, organized basketball differs in terms of continental governance. While the governing structure in football relies on independent continental federations, which are recognized by the international federation (Art. 22 FIFA Statutes), FIBA incorporated so-called Regional Offices as divisions into its own corporate structure (Art. 13.1 General Statutes). Regional Offices are empowered by delegated authority of FIBA but shall not be organized as independent legal entities (Art. 17.1 General Statutes), i.e. they must be fully owned by FIBA (Art. 19.1 General Statutes). Nevertheless, the Regional Offices in Africa, the Americas, Asia, Europe and Oceania (Art. 17.2 General Statutes; FIBA Map) are authorized to organize their affairs in their geographic region within the scope of Art. 18.1 General Statutes, which also includes establishing self-governing bodies (Art. 12 IR Book 5). While national federations as members of FIBA are assigned to a Zone upon acquisition of membership, they do not derive their membership status from the assignment to a Zone and its Regional Office (Art. 17.3 General Statutes). Consequently, national federations in the world of organized basketball, in contrast to football associations, do not attain independent membership in a continental federation.

B. National Perspective: Swiss Basketball

1. Corporate Structure and Memberships of Swiss Basketball

Just like FIBA, SWB is organized as a Swiss association in accordance with Art. 60 et seqq. Swiss Civil Code and registeredin the commercial register at the seat of its General Secretariat in Fribourg, Switzerland (Art. 61 Swiss Civil Code; Art. 2.1 SWB Statutes). Its primary objective is to govern the sport of basketball on Swiss territory within the framework provided by FIBA and Swiss Olympic (cf. Art. 4.1 lit. e SWB Statutes). In this capacity, SWB is recognized by FIBA and Swiss Olympic on the basis of its membership (Art. 1.2 SWB Statutes; FIBA National Federations; Members Swiss Olympic).

To achieve its objectives, SWB foresees the following corporate bodies under Art. 8 SWB Statutes:

• The General Assembly;
• The Executive Board;
• The President;
• The General Secretariat;
• The Chamber for Amateur Sport;
• The Chamber of the Swiss Basketball League;
• The Controlling Bodies;
• The Legal Bodies; and
• The Ethics Advisory Committee.

This commentary will only focus on bodies specific to SWB, i.e. the Chambers for Amateur Sport and of the Swiss Basketball League (SBL), the Legal Bodies (cf. section D. Judicial Structures) and the Ethics Advisory Committee. Their embedding in the ordinary corporate structure of Swiss Basketball will be detailed further if deemed relevant.

The Chamber for Amateur Sport is composed of 40 delegates from Regional Associations (RA). The number of delegates per RA derives from their respective number of licensees (Art. 13.2.1 SWB Statutes). These delegates equally hold delegate status in the General Assembly of SWB (Art. 9.1.1 SWB Statutes). As the name suggests, the Chamber is responsible for the development of Amateur Sport in the regions and approval of regulations of the RAs (Art. 13.3.1 et seq. SWB Statutes).

The Chamber of the Swiss Basketball League is responsible for the governance of professional basketball and represents the interests of professional clubs. The Chamber is comprised of representatives of clubs playing in the highest three basketball leagues (Art. 14.2.1 et seq. SWB Statutes). These representatives elect 20 delegates, of which a minimum of 10 must be presidents of the «SB League Men» clubs (Art. 14.3.2 SWB Statutes), who will serve as delegates in the SWB General Assembly. Consequently, the SWB General Assembly consists of a total of 60 delegates (Art. 9.1.1 SWB Statutes), containing members of the Chamber for Amateur Sport and the Chamber of the Swiss Basketball League.

The Ethics Advisory Committee of SWB is responsible for the implementation of the Ethics Charter of Swiss Olympic (Art. 17ter para. 2 SWB Statutes; see contribution Sport Ethics) and ensures a smooth cooperation with the Swiss Sport Integrity Foundation. Incidents can be reported (a) to respective superiors, (b) to the Ethics Advisory Committee (via ethique.integrite@swiss.basketball) or (c) to Swiss Sports Integrity through its reporting portal or via telephone report.

2. Membership in Swiss Basketball and Binding Effect of SWB Regulations

With reference to the FIBA-Perspective explored above, SWB is equally organized in a pyramid structure, with RAs establishing the next layer of the pyramid. However, in contrast to FIBA, natural and legal persons can acquire membership (different e.g. in Swiss Unihockey – cf. Brägger). Requirements for the corporate form of legal persons to acquire membership can be found in specific regulations, e.g. Swiss Association form pursuant to Art. 60 et seqq. Swiss Civil Code for clubs (Art. 1 SWB Club Regulations – but cf. also Art. 1 lit. c) and RAs (Art. 3 SWB RA Regulations).

Membership in SWB can be acquired by clubs and their members, integrated or independent RAs (Art. 5 et seqq. and 15 et seqq. SWB RA Regulations), other licensees, acknowledged organisations and their members as well as honorary and passive members (Art. 6.1 SWB Statutes). Licenses to participate in SWB's competitions, such as the SBL, can only be granted to clubs that are members of SWB (Art. 3 para. 2 SWB Licensing Guidelines) and its RAs (Art. 1 lit. a SWB Club Regulations).

SWB also sets certain standards for professional player contracts (SWB Employment T&Cs), ensuring in Art. 40 that professional players are bound by the Statutes and Regulations of SWB, FIBA and Swiss Olympic upon signature of their contract with a member club. All pertinent Statutes, Regulations and Guidelines are accessible on SWB's website and can be requested by the player before signature in physical form (Art. 40 para. 2 SWB Employment T&Cs).

C. Additional Insight: The NBA

It was established above that the European Model of Sport, including basketball, employs a pyramid system (Cattaneo/Parrish, p. 19 para. 15; Cf. Haas, Sportverbandsstruktur). However, significant influence in the global basketball market is held by the National Basketball Association (NBA) which operates under the American Model of Sport (Mitten, p. 23 para. 27). Belonging to the «Big Four» leagues, the NBA, widely considered as the most competitive and prominent basketball league internationally, is organized as an unincorporated non-profit association, i.e. a horizontally cooperating entity consisting of independently owned and managed professional basketball teams as members (Art. 2 NBA Constitution 2019, see also term «Member» under Interpretation item (8) NBA Constitution 2019; Dietl et al., p. 5; Noll, 540; Klingmüller, p. 11 et seqq.; cf. Humbel/Schneuwly for «European» corporate structure). As such, the NBA is not integrated into the pyramid system of governance and by extension entirely independent from FIBA and the US-national federation USA Basketball. Consequently, any form of cooperation must rely on horizontal agreements between FIBA and the NBA.

Historically, the NBA and FIBA have developed in a parallel manner, reflecting the traditionally distant relationship between American professional leagues and International Federations. However, a landmark agreement signed in 1990 allowed NBA players to participate in FIBA's competitions and thereby gave rise to cooperative initiatives (FIBA Press Release). Amidst the fierce battle for fans in the ever-commercialized sports landscape, the harmonization of competition calendars can lead to new opportunities in the marketing of sporting events. Only recently, the NBA and FIBA announced to broaden this cooperation also on an economic level by providing on-demand access to live FIBA World Cup 2023 games through the NBA App and NBA's platform NBA.com. In the words of the NBA, this collaboration aligns with «the NBA's efforts to engage with fans throughout the offseason and wider its scope of basketball content» (NBA Press Release). It remains to be seen if this advancing economic cooperation could also give rise to joint efforts and initiatives in the field of sports governance. A noteworthy link already exists in the executive body of FIBA, the Central Board, where one seat is reserved for an NBA representative (Art. 15.1.4 lit. c General Statutes).

D. Judicial Structures

1. FIBA

FIBA's judicial bodies and the respective procedures are enshrined in the General Statutes and FIBA Internal Regulations (IR). FIBA essentially foresees a double-instance system, with the Secretary General or the Disciplinary Panel (e.g. for doping) acting in first and the Appeals' Panel in second instance (Art. 38 et seq. General Statutes; Art. 189 IR Book 1). The double-instance mechanism is maintained in cases of Ethics violations, where a potential violation is first investigated by the Ethics Panel (without sanctioning power) and then, if deemed appropriate, referred to the Secretary General or Central Board (Art. 36 General Statutes; Art. 211 et seq. IR Book 1). Pursuant to Art. 190 IR Book 1, specific provisions regulate disputes or code violations during FIBA's competitions (IR Book 2 and 4 – see below). On appeal the cases are heard by the FIBA Appeals' Panel (Art. 39.4 General Statutes; Art. 234 IR Book 1).

In basketball's system of dispute resolution, two additional independent judicial institutions play a vital role. In this regard, reference is made to the respective contributions concerning the Court of Arbitration for Sport (cf. Cortada) and the Basketball Arbitral Tribunal (cf. Menz) in this commentary.

2. Swiss Basketball

a. Internal Bodies of SWB

In pursuit of its objectives, SWB endeavors to «set up a legal system for basketball, which is specifically tailored to Swiss Basketball and provides mechanisms for appeals and conciliation» (Art. 4.1 lit. m SWB Statutes). The legal system is elaborated in Art. 17 SWB Statutes and Procedural Rules (PR): The judicial bodies of SWB include the Disciplinary Chamber (first instance), the Appeals Committee (second instance) and Auditing Committee (Art. 17.2.1 SWB Statutes; Art. 3 para. 1 and 3 PR). The Disciplinary Chamber and Appeals Committee are competent to decide all disputes of sporting nature that arise from the application of SWB's Rules and Regulations (Art. 17.1.1 SWB Statutes). A separate judicial system within the autonomy of RAs remains reserved (Art. 17.1.2 SWB Statutes; Art. 3 para. 4 PR).

In doping-related matters, SWB is subject to the sanctioning powers of Swiss Olympic and its competent bodies as per the Swiss Olympic Doping Statute (Art. 17bis para. 2 SWB Statutes), i.e. Swiss Sport Integrity as NADO and the Disciplinary Chamber of Swiss Sport (cf. Steiner). The same also applies for ethics violations, where SWB is subject to the Ethics Statutes of Swiss Olympic and its sanctioning procedures (Art. 17bis para. 3 and 4 SWB Statutes). As a recent development, the Disciplinary Chamber of Swiss Sport will be replaced as from 1 July 2024 by the Swiss Sports Tribunal, an independent arbitral tribunal sponsored by a Swiss foundation.

b. Recourse to CAS, BAT and State Courts

The judicial bodies of SWB, i.e. the Disciplinary Chamber and Appeals Committee, are internal adjudicating entities within the structures of SWB and cannot be deemed as independent arbitral tribunals or courts. Consequently, pursuant to Art. 75 Swiss Civil Code, after exhausting all internal remedies, recourse to a state court or independent arbitral tribunal (cf. Scherrer/Brägger, Art. 75 para. 7 and 29) remains open. Accordingly, an appeal against a final decisions of SWB (Art. 17.4 SWB Statutes) can be filed with the Court of Arbitration for Sport (CAS; cf. Art. R47 Code of Sports-related Arbitration [«CAS Code»]). The binding effect of the arbitration clause in SWB's statutes is expressly confirmed by all members of SWB in a signed declaration of membership (Art. 6.4 SWB Statutes). The appeal to CAS has no automatic suspensive effect (Art. 17.4.3 SWB Statutes; cf. also Art. 13.1 lit. b Swiss Olympic Doping Statute). Any request for a stay of execution of the appealed decision must therefore be requested as an interim measure (Art. R52 para. 1 CAS Code; Rigozzi/Hasler, 1492). Caution is advised with regard to the time limits to file an appeal and particular provisions in SWB Statutes: As elaborated, doping and ethics-related matters fall under the Swiss Olympic Doping Statute and Ethics Statute. These regulatory frameworks directly or by reference to the CAS-Code provide for a time limit of 21 days (Art. 13.1 lit. b Swiss Olympic Doping Statute; Art. 5.8 para. 1 Swiss Olympic Ethics Statute and Art. R49 CAS-Code). However, all matters falling outside the scope of the mentioned regulatory frameworks, e.g. all disciplinary decisions of SWB, can only be appealed to CAS within 10 days (Art. 17.4.1 SWB Statutes). Future decisions of the newly established Swiss Sports Tribunal in application of the Swiss Olympic Ethics Statute will no longer be appealable to CAS. Respectively, such decision can only be appealed directly to the Swiss Federal Tribunal (SFT).

For «employment contracts of non-amateur players», SWB foresees a choice of dispute resolution either by ordinary courts or the Basketball Arbitral Tribunal (BAT), while maintaining the disciplinary authority of SWB's bodies (Art. 39 SWB Employment T&Cs). In this respect, the option in SWB Statutes might cause friction with FIBA General Statutes, which provide in Art. 9.5 that «[n]ational member federations shall establish a system for the resolution of disputes by independent arbitration, excluding – to the extent legally possible – recourse to the state courts. They shall promote recourse to and recognize decisions of the CAS and the awards of BAT (…)». In other words, according to FIBA General Statutes, independent arbitration (such as CAS or BAT) shall only be excluded in case employment-related matters are not arbitrable under national law. However, in application of the Swiss Federal Act on Private International Law (PILA), essentially all employment-related disputes are arbitrable (Art. 177 PILA; Casey, p. 277 et seq.). The application of PILA (Art. 176 para. 1 PILA) could be relevant for foreign players in Switzerland, who had their domicile outside of Switzerland at the time of signing the arbitration clause (i.e. in most cases their employment contract). The situation is less clear-cut and controversially debated in doctrine and jurisprudence, where the Swiss Civil Procedure Code (CPC) applies to domestic matters, i.e. where there is no international element as per Art. 176 para. 1 PILA (Casey, p. 277 et seqq.; Weber-Stecher, Art. 354 para. 24). This could be the case for most of the players subject to SWB's structures. According to the CPC, only claims that are subject to the parties' free disposal are arbitrable (Art. 354 CPC). In these cases, the SFT in its sports-related jurisprudence recalls that certain employment-related provisions are mandatory under Swiss law and cannot be waived by the employee up until one month after the termination of contract (Art. 341 Swiss Code of Obligations). Consequently, an arbitration agreement can only be entered into after such one-month period (SFT decision 144 III 235, consid. 2.2.1 et seq.; 136 III 467, consid. 4.5). As decided by the SFT, this restriction under the CPC cannot be lifted by opting-out in favor of the PILA as foreseen under Art. 353 para. 2 CPC (SFT decision 144 III 235, consid. 2.3.3).

In this context, concluding from the above, SWB's current regulations seem to provide for a more open approach towards recourse to state courts in employment-related matters than is provided for in FIBA General Statutes.

III. Amateur Sport and Grassroot Development

As evident from the historical elaborations, the roots of basketball are closely linked to school and college sports. Also the increasingly popular basketball 3x3 format, now a professionalized sport with official rules sanctioned by FIBA and an Olympic discipline, originated in the backyards, parks and urban areas in the US (History of 3x3 Basketball). Alongside the growing professionalization of basketball disciplines, it remains an important objective of FIBA as well as national federations and sport governing bodies, to continue the engagement on grassroot level and develop basketball also as an amateur sport (FIBA Strategic Objectives 2019-2027).

FIBA pursues the goal to strengthen its grassroot engagement through two initiatives: The World Association of Basketball Coaches and the FIBA Foundation. The FIBA Foundation specifically promotes basketball for youth categories through a discipline called Mini Basketball with a specific set of rules and guidelines that are employed and further developed by national federations (SWB Mini Basketball). Accordingly, it is one of the objectives of the SWB Chamber for Amateur Sport (see above) to promote and govern Mini Basketball in Switzerland (Art. 13.3.1 lit. c SWB Statutes). To develop basketball in youth categories, Basketball became one of the first sports to be included in the federal government's largest sports funding program «Jugend und Sport», which is governed by the Federal Office of Sport (BASPO).

To ensure a fair and equitable rewarding system for the development of players, SWB issued guidelines for training compensation, which become due by professional clubs, inter alia, upon registration of the amateur player as a professional and a respective license request (SWB Training Compensation Guidelines). Clubs are advised to consult these guidelines containing the pertinent amounts of compensation and including various examples for respective payment obligations.

IV. Basketball Competition Rules & Procedures

A. General Information

FIBA governs a set of international competitions such as the World Cup for Men and Women in senior and youth categories including the qualifying rounds, the Continental Cups and the Olympic Tournament which forms part of the Summer Olympic Games. These tournaments are essentially divided into two separate formats: The classic basketball format played by 2 teams with 5 players each (Art. 1 FIBA OBR) and the 3x3 format played on one hoop by 3 players per team (cf. IR Book 6). Both formats are played as club and national team competitions sanctioned either by FIBA or the National Federations such as SWB (for an overview of all FIBA competitions see Art. 2 et seq. IR Book 2 and Book 6). Apart from these formats, aligning with the rising popularity of e-sports, FIBA, together with ESL FACEIT Group, launched an official tournament called eFIBA with regional qualifiers. The tournament is played in NBA2K23 using the Pro-Am game mode (FIBA Press Release).

From a Swiss perspective, SWB carries out a variety of senior competitions divided by performance level into several divisions (SBL, NLB, NL1) as well as youth leagues and cups. The updated regulations, guidelines and modalities of the championships can be accessed via the Resource Center of SWB.

Both FIBA and SWB have detailed licensing procedures in order to ensure the compliance with participation requirements of its respective competitions. Licensing requirements extend to participating clubs as well as players and include financial and administrative criteria. In this regard, reference is made to the specific legal frameworks which can be subject to frequent changes and developments, e.g. IR Book 3, FIBA Regulations for European Club Competitions or the licensing section of SWB.

B. Reporting and Consequences of Rule Violations in Competitions

1. FIBA

Violations of FIBA Rules can be brought to FIBA's attention by any third person (Art. 95 IR Book 2). With respect to decisions concerning a specific game, only an adversely affected team can file a protest as per Appendix C FIBA OBR.

In all FIBA competitions, protests can be filed for field of play decisions, i.e. in cases of

• «an error in scorekeeping, timekeeping or shot clock operations, which was not corrected by the referees;
• a decision to forfeit, cancel, postpone, not resume or not play a game; or
• a violation of the applicable eligibility rules.»

In view of the field of play character of the decision, the FIBA OBR stipulate a very short time span of 15 minutes following the end of the game to file a protest. The protest is filed by informing the crew chief and signing the scoresheet in the column stating «Captain's signature in case of protest». The written reasoning behind the protest must be submitted to the crew chief by no later than one hour following the end of the game. The competent body to deal with such protest in first instance is, if no other rules are provided for in the specific competition regulations:

• the Technical Committee in case of a tournament format of the competition (Art. 100 lit. b IR Book 2; Art. C.6 FIBA OBR);
• the FIBA Disciplinary Panel in case of home and away games and questions regarding eligibility of players (Art. C.6 FIBA OBR);

It should not go unmentioned that sporting results ought to be decided on sporting grounds and an interference through legal remedies should remain the very last resort. Legal remedies, such as protests, should therefore only serve as a corrective in cases where circumstances lead to an unlevel playing field. To maintain the credibility of sporting results, such legal remedies must be decided in an expedited manner and a result should only be overturned on the basis of clear factual circumstances. These principles are reflected in Appendix C FIBA OBR: The protest shall be decided within 24 hours following the end of the game (Art. C.4 FIBA OBR) and while the FIBA OBR empower the competent body to the full scale of decisions, including a replay of the game, clear and conclusive evidence of the error and a respective nexus to the sporting result is an imperative prerequisite (Art. C.4 FIBA OBR).

Apart from protests, the Technical Committee of a competition also approves the final score of each game and imposes sanctions, such as suspensions, in case of the violations of any FIBA Regulations including the Code of Conduct, Code of Ethics or Code of Fair Play during a competition (Art. 100 lit. a, c and d IR Book 2). In second instance, decisions of the Technical Committee regarding the approval of game results and imposed sanctions can be appealed to the Jury of Appeal (Art. 107 IR Book 2) established at the beginning of each competition (Art. 101 IR Book 2). Decisions of the Jury of Appeal with regard to game results are final and cannot be further appealed, e.g. to CAS (Art. 107 IR Book 2).

2. Swiss Basketball

a. General Remarks

SWB's disciplinary and protest proceedings in competitions are conducted in line with its Procedural Rules (Art. 2 PR). These must be set apart from administrative sanctions of SWB against its member associations, e.g. in cases of violations of licensing and financial regulations – such proceedings are governed by SWB's Regulations on Administrative Sanctions. Ethics and Doping matters are also conducted in separate proceedings as elaborated on in separate chapters of this article (cf. Art. 1 para. 3 PR).

SWB's internal adjudication provides for a Disciplinary Chamber (first instance) and an Appeals Committee (second instance). These bodies render their decisions either in Ordinary or Specific proceedings under the PR.

b. Ordinary Proceedings

In accordance with Art. 12 et seqq. PR, Ordinary Proceedings are initiated

• upon receipt of a referee report;
• upon request of one of SWB's bodies or members; or
• ex officio.

A reporting person should take into account the following key points, when submitting a report to the Disciplinary Chamber (DC):

• The report must be submitted to the DC or the General Secretariat of SWB (Art. 12 para. 3 PR);
• The request must be substantiated and contain an overview of the facts as well as a deriving prayer for relief (Art. 14 para. 1 PR);
• Additionally, the applicant should include the exhibits corroborating the pertinent facts (Art. 14 para. 1 PR);
• Finally, the request must be signed and submitted by registered mail or E-Mail within a time limit of 2 days after the match giving rise to the request or 10 days after any other event giving rise to the incident (Art. 14 para. 2 PR).

Subsequently, the DC decides on the admissibility of a request. A negative decision can be contested within three days with the Appeals Committee (Art. 20 PR). In case disciplinary proceedings are initiated, the DC regularly renders a decision within 30 days (Art. 21 PR).

c. Specific Proceedings

In factually straightforward cases, the DC can apply Special Proceedings, which are expedited in nature. In these cases, a decision must be rendered at the latest 24 hours before the next match of the affected team but can be issued as a summary judgment without hearing the affected party. The affected player or team can raise an objection against the decision within five days. Following an objection, the decision is lifted with immediate effect and the DC initiates Ordinary Proceedings (Art. 25 PR). A problematic aspect of Special Proceedings occurs in instances of one-match suspensions, where objections and by extent also the right to be heard of an affected party are excluded entirely (cf. Art. 23 para. 1 in connection with 25 para. 1 PR) and likely without a possibility to appeal as the Appeals Committee only deals with decisions rendered in Ordinary Proceedings. The extent to which such a provision aligns with Swiss legal principles applicable to SWB's proceedings as per Art. 18 para. 2 PR may be subject to scrutiny, i.e. to what extent the interest in a swift resolution and legal certainty outweighs the individual interests of the player and the team. Special Proceedings without the possibility of an objection are also foreseen for the «final stage» of all SWB championships, i.e. from the third match before the end of the regular championship, which precedes a relegation match, the play-offs, the play-outs, a final promotion tournament or a relegation tournament (Art. 11 PR). However, in these cases recourse to the Appeals Committee remains expressly open (Art. 26 para. 2 in connection with Art. 33 para. 1 PR).

d. Proceedings concerning provisional suspensions

For severe violations of conduct, players can be provisionally suspended for up to five matches. The DC can act ex officio or upon a request, which must be filed 24 hours following the incident and no later than 8 a.m. prior to the player's subsequent match within the identical category where the incident transpired (Art. 28 PR). These proceedings are employed as an interim measure and a decision is rendered without hearing the affected player and without the possibility of an appeal. However, with a provisional suspension Ordinary or Specific Proceedings are initiated automatically, where the right to be heard must be subsequently granted.

e. Protest proceedings

Protests serve as a corrective for rule violations occurring in close connection to a match (cf. the specific grounds for protests in Art. 29 PR). With regard to the concept of a protest and its connection to field of play decisions, reference is made to the general remarks made above (cf. para. 40 et seq.). Accordingly, the Protest proceedings are fast-tracked and subject to very short time limits: The notification of the protest is due within 15 minutes following the end of the match and the grounds of the protest must be submitted within 60 minutes following the notification of the protest (Art. 30 PR). Within 24 hours, the Technical Committee of SWB renders its decision, which is not subject to an appeal except for cases of eligibility (Art. 31 PR). Caution is advised with regard to more specific provisions in regulations governing the respective competitions, e.g. in the case of the Swiss Cup, Protest proceedings are amended by the Swiss Cup Regulations and Guidelines.

C. Anti-Doping

Cases of Anti-Doping within the competence of FIBA shall be heard by the Anti-Doping Division of the Disciplinary Panel of FIBA, which acts as first instance in all purported anti-doping rule violations (Art. 198 and 189 lit. b IR Book 1; Art. 8.1.1 IR Book 4). An appeal from the Anti-Doping Division of FIBA's Disciplinary Panel should be made, without recourse to state courts, directly to CAS within a time limit of 21 days (Art. 13.6.1 IR Book 4), i.e. without the possibility to appeal to the FIBA Appeals' Panel (Art. 13.2.2 IR Book 4). Suspensions deriving from the non-compliance with IR Book 4 (Anti-Doping Regulations) are published by FIBA on its website in all cases where FIBA acted as the Results Management Authority.

Within the jurisdiction of SWB, as touched upon above, anti-doping matters are governed by the Swiss Olympic Doping Statute (Art. 17bis para. 2 SWB Statutes). Specifically, Swiss Sports Integrity conducts the Result Management of each case, after which the affected party can lodge an appeal to the Disciplinary Chamber of Swiss Sport (as from 1 July 2024 to the Swiss Sports Tribunal) within 21 days following the notification of the decision. Decisions of the Disciplinary Chamber can be further appealed within the same time limit to CAS (Art. 13.1 Swiss Olympic Doping Statute). For an overview of the procedure as well as some practical information for an affected party, reference is made to the respective elaborations by Swiss Sports Integrity.

V. Specific Issues

A. EuroLeague, EuroCup, Europe Cup and more – who is who in European Basketball

The intersection between competition law and sports regulations exhibits a unique dynamic, which is the subject of various jurisprudence and academic publications. This perennial issue has gained renewed attention following recent rulings by the Grand Chamber of the European Court of Justice, specifically in the cases of the European Superleague (C-333/21) and ISU (C-124/21 P).

Tensions between associations and breakaway leagues are not a novelty in the world of basketball. The division between FIBA and Euroleague Basketball resulted in the emergence of a major and competitive league in Europe outside of FIBA's structures (the EuroLeague). Unfortunately, it also showcased some negative effects on the landscape of European basketball competitions, which are intended to be avoided by the Single Entity Model in sports. Namely, disputes arose concerning harmonized match calendars, which then by extension weakened national team competitions governed by FIBA. Additionally, an unwieldy array of similarly named club competitions emerged, leading to an overall confusion in the landscape of European basketball competitions. While Euroleague's structures now involve the EuroLeague, the EuroCup and the U18 Next Generation Tournament (About Euroleague Basketball), FIBA governs similarly named club level competitions such as the Europe Cup, Euroleague Women, EuroCup Women and Europe SuperCup as well as the Basketball Champions League and the Intercontinental Cup (Competitions FIBA Europe).

As a result of the above, both FIBA and Euroleague Basketball lodged complaints with the European Commission and accused each other of abusing a dominant position – in the case of FIBA on the market for national competitions and in the case of Euroleague in the market for club competitions (EC Analysis Specificity of Sport, 13; HAAS/STRUB, p. 61; for an overview of the dispute see Engelhard/Milanovic). The FIBA/Euroleague-Saga has not yet come to an end. There is however a glimmer of hope after a joint press release issued by FIBA and Euroleague in July 2023, declaring that they had agreed on non-overlapping match calendars and confirmed an on-going dialogue about the future of basketball in Europe within the next year (Joint Press Release FIBA/Euroleague).

Nevertheless, competition law challenges in a world of increasingly commercialized sports remain and horizontal cooperative agreements with private competition organizers may well be a reoccurring phenomenon (cf. also example of FEI vs. Global Champions League in Strub, para. 57). As elaborated above, such horizontal agreements are already a common instrument of cooperation between international federations and American leagues and they might also emerge in increasing numbers in Europe (see also Fischer, p. 218). However, it is important to acknowledge that the institutional hierarchy of the pyramidal structure provides numerous benefits in terms of coordination, efficiency, and control, parts of which are also acknowledged under Art. 165 TFEU (cf. dimension of Art. 165 TFEU in Eichel, p. 148 et seqq.; EC Study on the European Sport Model, p. 16 and 26). These benefits contribute to fair sporting competition, comparable results, and the safety and integrity of all involved stakeholders, e.g. by anti-doping, match-fixing or safeguarding regulations. Nevertheless, as evident from the case at hand, some of these issues can also be tackled by cooperative efforts: As an example, Euroleague submitted its doping control system and results management to FIBA (Art. 140 et seq. Euroleague Bylaws 2023-24) – in this regard, cooperation remains imperative to ensure safe and fair competition.

B. Employment Contracts in Ukraine-Russia War: Brantley v. BCU

The Russian military invasion of Ukraine, which caught many by surprise, presented numerous athletes and support personnel employed in both countries with challenging decisions. Many stakeholders sought a way out of the territories affected by the Russian attack and looked for guidance from sports governing bodies. The latter adopted different approaches to the termination of athletes' contracts with Russian and Ukrainian clubs: While FIFA provided legal certainty by implementing a regulatory framework, which officially enabled players and coaches to suspend their contractual obligations with Russian and Ukrainian clubs (Annexe 7 FIFA RSTP), other sports governing bodies, including FIBA or Euroleague, did not issue harmonized regulations or guidelines, thus referring to a case-by-case assessment. An arbitral award rendered by the BAT in the case of Mr. Jarrell I. Brantley vs. Basketball Club Unics provided some guidance for employees in similar situations, while leaving space to subjective elements of each case (BAT 1813/22; cf. also case analysis by Engelhard/Herrlein):

The case involved a US-player, Mr. Brantley (Player), who suspended his contractual obligations to his employer, Basketball Club Unics (BCU), located in Kazan, Russia a few days after the invasion of Ukraine. After a security alert issued by the U.S. Embassy and Consulates in Russia, the Player left Russia and travelled to the USA. BCU objected to the Player's actions and terminated the employment contract due to the Player's alleged failure to meet his contractual obligations. Subsequently, the Player filed a Request for Arbitration to the BAT, claiming outstanding salaries and compensation for breach of contract by BCU. While the Player argued that the Russian invasion constituted a force majeure event, which enabled him to temporarily suspend his contractual obligations, BCU opposed, inter alia, by stating that the Player had neither authorization nor justification to leave the club and the Player could not invoke any force majeure clause given the fact that a potential force majeure event «only took place on Ukrainian territory», leaving Russian territory unaffected (BAT 1813/22, para. 54).

The Sole Arbitrator ruled that the attack on Ukraine constituted a force majeure event, the extent of which is not limited to Ukrainian territory. Consequently, the Sole Arbitrator rejected BCU's argument by establishing that «the consequences of a force majeure situation do not necessarily unfold only locally», i.e. on affected Ukrainian territory, and «therefore, the relevant test is not where the conflict takes place, but where and how its consequences unfold. In other words, the central question is if and to what extent the contractual relationship between the Player and the Club was affected by the conflict, and if the effects of the conflict (if any) essentially made it impossible for the Player, objectively or subjectively, to stay with the Club» (BAT 1813/22, para. 86). On the other hand, an application of a force majeure clause requires a careful balancing of interests as it results in «a deviation from the fundamental principle of pacta sunt servanda» (BAT 1813/22, para. 87).

With the above in mind, the Sole Arbitrator held that the suspension of Russian clubs from the Euroleague or other international competitions and the consequential concern of the Player for his future career was not sufficient to invoke the effects of a force majeure clause (BAT 1813/22, para. 89). However, the Player's demonstrated fear for his safety and that of his family, combined with the clear and urgent advice from the U.S. Embassy and Consulates to leave Russia immediately, resulted in a subjective impossibility of the Player to perform his contractual obligations. Thus, the Player's absence was justified and BCU's termination of contract occurred without just cause (BAT 1813/22, para. 94).

Finally, the Sole Arbitrator clarified that in a force majeure situation, no compensation for breach of contract can be awarded as «the underlying premise of this standard damages claim is that a player would have been able and willing to render playing services to his club, and that the termination was the only (or at least primary) reason for the Player's impossibility to continue performance» (BAT 1813/22, para. 94). In the case at hand, it was not the termination of contract by BCU that caused the impossibility of the Player to render his services – but safety concerns due to the war in Ukraine. The Player would have had to demonstrate that there was a reasonable chance to return to the club before the end of his contract, had it not been terminated, i.e. that there is a causation between the unlawful termination of contract and the Player's suspension of contractual performance (BAT 1813/22, para. 97). The failure of the Player to meet this burden of proof resulted in the impossibility to award any compensation due to the breach of contract by his employer, leaving the Player with a confirmed claim to the remainder of his salary until the end of the contract.