Columbus Sport 99 C.A. v. Ivan Deniz O’Donnell, Marcos Cervero Simonet, Ronald Gillen

VI. JURISDICTION

59. Article R47 of the CAS Code provides as follows:

“An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body”.

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60. The Appellant relies on the arbitration clause of its three contracts with the Respondents dated 24 May and 4 July 2016, providing the following:

“18. DISPUTES:

Any dispute arising from or related to the present contract shall be submitted to the FIBA Arbitral Tribunal (FAT) in Geneva, Switzerland and shall be definitely resolved in accordance with the FAT Arbitration Rules, by a single arbitrator appointed by the FAT President. The seat of the arbitration shall be Geneva, Switzerland. The language of the arbitration shall be English, and the arbitrator shall decide the dispute ex aequo et bono. The arbitration shall be governed by the Chapter 12 of the Swiss Act on Private International Law (PIL) irrespective of the parties’ domicile. Awards of the FAT can be appealed to the Court of Arbitration for Sport (CAS), Lausanne, Switzerland. To the extent legally possible under Swiss Law recourse to the Swiss Federal Tribunal against awards of the FAT and against decisions of the Court of Arbitration for Sport (CAS) upon appeal shall be excluded”.

61. Further to this clause, the jurisdiction of the CAS has not been contested by the Respondents and has been confirmed by the Parties by signing the Order of Procedure.

62. It follows that the CAS has jurisdiction to decide this dispute.

VII. ADMISSIBILITY

63. Article R49 of the CAS Code provides as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. After having consulted the parties, the Division President may refuse to entertain an appeal if it is manifestly late”.

64. The grounds of the BAT Award were notified to the Parties on 13 April 2018 and the Statement of Appeal filed on 1 May 2018, within the required twenty-one days set in Article R49 of the CAS Code.

65. Furthermore, no objection in that respect has been raised by the Respondents. It follows that the appeal is admissible.

VIII. APPLICABLE LAW

66. Article R58 of the CAS Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law,

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the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

67. The matter at stake relates to an appeal against a BAT award, and reference must hence be made to Article 15 of the BAT Arbitration Rules which states that:

“15. Law Applicable to the Merits

15.1 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.

15.2 If according to the parties’ agreement the Arbitrator is not authorised to decide ex aequo et bono, he/she shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to such rules of law he/she deems appropriate”.

68. Article 19 of the underlying contracts entered into between the Parties provides as follows:

“19. GOVERNING LAW:

This contract shall be interpreted and enforced in accordance with the laws of VENEZUELA”.

69. Under Article 18 of the contracts, disputes between the Parties should be resolved in the following manner:

“18. DISPUTES:

Any dispute arising from or related to the present contract shall be submitted to the FIBA Arbitral Tribunal (FAT) in Geneva, Switzerland and shall be definitely resolved in accordance with the FAT Arbitration Rules, by a single arbitrator appointed by the FAT President. The seat of the arbitration shall be Geneva, Switzerland. The language of the arbitration shall be English, and the arbitrator shall decide the dispute ex aequo et bono. The arbitration shall be governed by the Chapter 12 of the Swiss Act on Private International Law (PIL) irrespective of the parties’ domicile. Awards of the FAT can be appealed to the Court of Arbitration for Sport (CAS), Lausanne, Switzerland. To the extent legally possible under Swiss Law recourse to the Swiss Federal Tribunal against awards of the FAT and against decisions of the Court of Arbitration for Sport (CAS) upon appeal shall be excluded”.

70. In its written submissions, the Appellant refers to both Articles 18 and 19 of the contracts and designates the FIBA Rules and subsidiarily, Venezuelan law, as law applicable to the merits of the dispute.

71. By contrast, in their Answer, the Respondents call for the application of the FIBA Rules and Swiss law pursuant to the Disputes clause of the underlying contracts.

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72. In light of the above, and taking into account the fact that the provisions of the contracts may be perceived as ambiguous as to the issue of applicable law, the Panel considers the will of the Parties as expressed in their written submissions and in both Articles 18 and 19 of the underlying contracts. The Panel is therefore of the view that the law applicable to the present appeal shall be primarily the FIBA regulations, and subsidiarily Venezuelan law to the extent that it does not contradict Swiss public Order.

IX. MERITS

73. The core principle that CAS applies when rendering an award is the de novo principle resulting from Article R57 of the CAS Code. According to Article R57, the Panel has full power to review the facts and the law of the case. Furthermore, the Panel may issue a new decision which replaces the challenged decision or may alternatively annul the decision and refer the case back to the previous instance.

74. Based on the Parties’ submissions and oral arguments, the issues for determination are the following:

A. Was there a violation of the Appellant’s right to be heard and if so, was it remedied during the appeal proceedings?

B. Did the Respondents resign or were they dismissed by the Appellant? — C. Depending on the answer to (B) above, what are the legal consequences of the

termination of the Respondents’ contracts?

A. Was there a violation of the Appellant’s right to be heard and if so, was it remedied

during the appeal proceedings?

75. The Appellant argued in its written submissions that the BAT proceedings violated its right to be heard since none of the witnesses it presented were heard by the BAT Arbitrator.

76. The Respondents underline that the Appellant had neither substantiated nor presented any legal merit to support the alleged breach. The former further point out to the late timing of filing of said witness statements as well as to their irrelevance and unreliability with regard to both their content and source, the witnesses being employees of the Club.

77. The BAT Arbitrator, upon examination of said witness statements, concluded that they were not directly relevant to the main issue whether the Club or the Coaches terminated the contracts, but also that they might carry less evidentiary weight as they are made by individuals who are employed by the Club.

78. Based on all of the above, the Panel does not consider that the BAT Arbitrator had breached the Appellant’s right to be heard. With regard to the conduct of the arbitral proceedings,

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arbitrators are granted vast procedural discretion which encompasses their right to choose based on the evidence on file whether to conduct a hearing at all and also whether to call a witness to the stand. The Appellant had filed 11 witness statements prior to the hearing, which had been duly considered by the BAT Arbitrator. The decision of the BAT arbitrator not to hear them does therefore not constitute a violation of the Appellant’s right to be heard.

79. Moreover, as the Appellant rightfully presumed in its written submissions that, even assuming such breach indeed existed, it had been sufficiently cured during the course of the current proceedings. The Panel accepts the Respondents’ assertion that the de novo review contemplated by Article R57 of the CAS Code, must be understood to cure any eventual violation of Appellant’s right to be heard at the previous instance.

80. The jurisprudence of CAS in this regard is abundant and consistent. For instance, in the award CAS 2008/A/1574, the CAS Panel established that the effect of the de novo hearing is:

“a completely fresh hearing of the dispute between the parties [and thus], any allegation of denial of natural justice or any defect or procedural error even in violation of the principle of due process which may have occurred at first instance (…) will be cured by the arbitration proceedings before the appeal panel and the appeal panel is therefore not required to consider any such allegations”.

81. To similar effect, MAVROMATI/REEB (the Code of the Court Arbitration for Sport, Cases and Materials, Edition 2015) observe that CAS panels regularly reject arguments as to procedural deficiencies in the previous instance on the basis of this curative effect, noting the wellestablished CAS jurisprudence according to which “the virtue of an appeal system is that issues relating to fairness of the proceedings before the authority of first instance fade to the periphery”.

82. The Panel concurs with the Panel in CAS 2015/A/4346 that the full power to review the facts and the law, granted under the provisions of Article R57 of the CAS Code, has a dual meaning: not only that procedural flaws of the proceedings of the previous instance can be cured in the proceedings before the CAS, but also that the Panel is authorized to admit new prayers for relief and new evidence and hear new legal arguments (see MAVROMATI/REEB, The Code of the Court of Arbitration for Sport, Commentary, Cases and Materials, Edition 2015, comment under Article R57, para. 12, p. 508) with some limited restrictions which are not applicable in the present case.

83. On this basis, the Panel considers that any eventual violation of Appellant’s right to be heard at the previous instance has been cured by these CAS proceedings. Furthermore, the Appellant has been able to present its witnesses who have been heard by the Panel during the CAS hearing. Whether or not their testimony will be given full evidentiary weight is examined in Subsection B below.

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B. Did the Respondents resign or were they dismissed by the Appellant?

84. The pivotal question in these proceedings revolves around determining whether the Appellant unilaterally dismissed the Respondents, and if so – whether it terminated their contracts with just cause (Sub-Section C below), or whether the latter left their jobs without any notice.

85. The Panel shall first examine the relevant burden and standard of proof (1), as well as the applicable tests for the alleged violations (2) before applying them to the specific factual situations of the First Respondent (3), on the one hand, and Second and Third Respondents (4), on the other hand.

a. Burden and standard of proof

86. The Panel considers that determining what the standard of proof for any of those allegations is and whether it has been satisfied by the Parties is paramount to evaluating the evidence on record and reaching a conclusion on the main issue.

87. The BAT Award clearly states that the burden of proving a termination by the Club was on the Respondents (then Claimants), and that they had successfully discharged their burden of proof.

88. The Appellant argues that while it did not have the burden of proving that it was the Respondents who left the Club, it had provided the Panel with enough evidence to substantiate its position. The Appellant further alleges that the BAT Arbitrator misapplied the burden of proof by admitting unproven facts into evidence, and reduced the standard of proof to a mere probability. The Legal Advice provided by the Appellant suggests that, under Venezuelan employment law, the burden of proof is on the party alleging an event took place, and the standard of proof with respect to employment disputes is “certainty”. That being said, the Appellant does not comment on whether it had satisfied the burden of proving its subsidiary defence that there was just cause for dismissing the Respondents.

89. The Respondents do not oppose having the burden to prove that they were dismissed by the Club and confirm they have provided sufficient evidence to discharge their burden of proof.

90. The Panel observes that, as a general rule, the burden of proving the existence of an alleged fact rests on the party who is alleging such fact. This is consistent with both Venezuelan and Swiss law. Therefore, it belongs to the Respondents to prove that they were unilaterally dismissed by the Club, which is the basis of their original claim against the Appellant. However, the burden of proving that the Coaches resigned or were alternatively dismissed with just cause rests on the party relying on those arguments, which is the Appellant.

91. As to the applicable standards of proof to the main claim and to the answer to such claim, the Legal Advice provided by the Appellant suggests that “certainty” is the applicable standard of proof under Venezuelan law. The Expert, however, did not refer to any specific provision on this issue under Venezuelan law. Under Swiss law, for instance, absolute certainty is not required

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in employment disputes, instead “full proof” is usually prescribed which entails that the court is convinced that a fact is correct based on objective evidence. This Panel notes that there is no generally applied standard of proof by CAS panels. CAS panels however often apply standards ranging from the lower balance of probabilities test to the higher comfortable satisfaction standard. This being said, CAS panels do not generally consider that in civil/employment law contexts, allegations need to be proved beyond absolute certainty. This Panel would therefore require that it be satisfied or convinced that an event occurred based on objective evidence. Pursuant to CAS case law, when there is no objective evidence of the alleged fact, that is to say in a one-word-against-another situation, “the party having the burden of proof should provide further evidence supporting its argument”, which can for example take the form of a written confirmation.

b. Applicable tests for resignation and dismissal

92. In establishing the applicable tests for both the dismissal and the resignation, the Panel has to look to the law applicable to the merits of the dispute, such as determined in Section VIII above, limiting itself to what has been argued by the Parties in their written and oral submissions.

93. The Respondents’ contracts all contain a provision on termination dealing with the situation where the Appellant, the respective Respondent and the Agent might agree to a mutual termination. However, the underlying facts clearly do not fall within the scope of said provision because of the very disagreement giving rise to the present dispute. Additionally, the Respondents bring up the fact that their contracts are guaranteed. Article 5 of the Respondents’ contracts provides that even if the Coaches are released by the Club due to poor performance, they will be paid their salaries until the end of their fixed-term contracts. In such a case, the Club must send written notifications to the Agent within the last 5 days of the previous month. The contracts do not address the termination by the Coaches or the termination by any of the Parties for any other reason than poor performance.

94. The FIBA regulations do not expressly address the termination of an employment contract between a coach and a club. The Panel will therefore focus its analysis on the applicable law interpreted in light of persuasive CAS case law.

95. The Appellant filed as part of its pleadings a Legal Advice on Venezuelan employment law. The Legal Advice envisages both the resignation and dismissal scenarios. It results from the Legal Advice that if an employee wishes to resign from her/his functions, she/he must notify her/his resignation to the employer, the absence of proper notification being considered a just cause for dismissing the employee abandoning her/his position. Also, the employee can only lawfully resign for the reasons enumerated in a state statute, including for any act of the employer constituting indirect dismissal. A situation which would constitute indirect dismissal would be the employer somehow altering the existing work conditions of the employee. Therefore, if the employee resigned from her/his position with just cause and duly notified the employer of such resignation - the latter owes the former due compensation in the amount of the remaining salaries if the contract has a fixed term, as in the case at hand. However, if the employee

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terminates the employment contract without just cause, Venezuelan law does not prescribe any sanctions for the employee, with the exception of losing the opportunity to get any compensation under her/his contract. This unjustified termination by the employee, on the other hand, gives the employer the right, but not an obligation, to file a “Justified Dismissal of Abandonment of Work”. When not filing such a report, the employer remains exposed to claims similar to those underlying the present proceedings. This being said, it cannot be automatically inferred from such conscious choice or omission that the employer dismissed the employee.

96. Regarding dismissal, the Legal Advice submitted by the Appellant distinguishes between dismissal with just cause and unjustified dismissal. Under Venezuelan law, an employer can lawfully dismiss its employee if it has just cause. According to the Legal Advice, this situation however entails that, within 5 days of the dismissal, the employer initiates legal proceedings and participates in a procedure before the Judge of Mediation and Execution to explain which or what were the justified reasons for the dismissal. The Legal Advice expressly notes that “[i]f the employer does not act in such a way, the dismissal will be considered as unjustified”. Facts constituting a just cause for dismissal are the employee’s abandonment of work, which, according to the Legal Advice, encompasses untimely and unjustified departure without permission, refusal to perform assigned tasks, etc., the serious breach of obligations imposed by the employment relationship, or labour harassment. In case the employee that is being dismissed does not agree with the cause of dismissal, she/he shall apply to the competent courts for reinstatement or due compensation within 10 days following the dismissal. Based on the above, it appears that under Venezuelan law, if the employee terminates the employment relationship without just cause or notice, it loses its right to compensation under the contract.

97. The Panel notes that the Legal Advice was prepared by a person that the Panel discovered is employed by the Appellant which necessarily affects its credibility and diminishes its probative value. The Panel will therefore only take it into consideration as moderately persuasive authority.

98. On the issue of just cause, the Panel notes that pursuant to CAS jurisprudence, “just cause to terminate a contract is generally said to exist where the breach has reached such serious levels that the injured party cannot in good faith be expected to continue the contractual relationship” (CAS 2015/A/4161). In the above-mentioned case, a coach was dismissed after failing to attend and oversee three training sessions. The panel in that case found that the alleged violation did not qualify as just cause and the club should have first initiated some internal disciplinary proceedings. Additionally, another panel, relying on the applicable provisions of Swiss law, which are similar to the ones applicable to Venezuelan law, held that “only a breach which is of a certain severity justifies termination of a contract without prior warning” and that “the breach is considered to be of a certain severity when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties such as serious breach of confidence” (CAS 2006/A/1180).

99. With regard to notice of termination, the panel in another CAS case found that “although the need to send notices is not mandatory in all cases and is established on a case by case basis, CAS panels have regarded notices as a vital step which could possibly have played a role in bringing an end to an unexplained breach or

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series of breaches, particularly where the breach or breaches in question has not yet reached a fundamentally unacceptable level and/or unduly prejudiced the non-breaching party to the extent that the latter cannot be reasonably expected to continue the contract” (CAS 2014/A/3460).

100. Under Venezuelan Law to lawfully terminate an employment contract either by the employer or the employee, there has to be just cause and a prior notice or remedial effort from the terminating party. However, as rightfully noted by another CAS tribunal, whether the unilateral termination is valid depends on the overall circumstances of the case (CAS 2006/A/1180).

101. The Panel considers that the legal analysis of the termination with regard to the First Respondent, on the one hand, and the Second and Third Respondents, on the other hand, has to be made separately based on the differences in their factual situations.

c. First Respondent

102. The First Respondent alleges that it was dismissed by the Club and files what it qualifies as objective evidence of such dismissal. Undisputable objective evidence would be, in this situation, a written notice of dismissal or some other kind of written confirmation of the employer’s decision, or alternatively the employee’s preferably written request for reinstatement or explanations with regard to the dismissal.

103. Such written proof has however not been made available to this Panel. The First Respondent provides the Panel with only circumstantial evidence of said termination in the form of WhatsApp messages, open to different interpretations. The BAT Arbitrator found that the WhatsApp messages exchanged between the President of the Club, the First Respondent and the Agent satisfy the Respondents’ burden of proving the dismissal and that such dismissal took place. The Panel disagrees that such messages provide reliable and sufficient proof of a potential dismissal as they are, in the Panel’s view, clearly ambiguous. For instance, the Respondents rely on an exchange between the Agent and the President of the Club dated 10 November 2016 to prove that point. However, a plausible reading of the same communications could be that the Respondents allegedly left the Club upon what they thought was a just cause (deterioration of the relationship with the Club, external and internal threats, criticism, etc.), while the President confirms the resignation but disapproves the reasons, thereby refusing to make any additional payment than what has already been due prior to 6 November 2016. Furthermore, the messages exchanged between the President, the First Respondent and the Agent on 6 and 7 November 2016 could very well be read in a similar way. It stems from the Agent’s message to the President of the Club that there is a common expectation to continue the conversation on the following day “with tranquillity about all this matter”. One could argue that if the President had already dismissed the First Respondent on 6 November 2016, it would be unnecessary to further discuss the situation at a second meeting scheduled for the following morning. Moreover, the First Respondent’s message to the President dated 6 November 2016, read as a whole, demonstrates that his departure was dictated by the “threats, insults and continuous criticism” during his time at Columbus.

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104. The First Respondent also relied on various press articles qualifying the events as a dismissal as well as on the press release published by the Club after the departure of the Respondents. The Respondents argue in that regard that the press release is fully consistent with such statements previously published by the Club upon the dismissal of a coach. The Panel notes that it is common practice in the sports world that such messages are left intentionally ambiguous so as not to harm any of the concerned parties’ reputation. Also, as previously noted with regard to the press articles submitted by the Appellant, such publications cannot be relied on for the truth of the asserted matter because of the existence of contradictory articles, and the low probative value of such evidence.

105. Neither the First Respondent, nor his Agent filed witness statements attesting to the veracity of the above-mentioned WhatsApp communications or the statements asserted in the so submitted press articles or releases. Neither of them was present at the CAS hearing, nor did their counsel offer their testimony going to proving the First Respondent’s allegations. In addition, Respondents’ counsel did not take the opportunity to cross-examine the Appellant’s witnesses in order to set the record straight and relied instead exclusively on the findings of the BAT Arbitrator, thereby demonstrating a general misunderstanding as to the de novo standard of review applied by CAS tribunals. The Panel was hence unable to reconstruct the full story of what happened on 6-7 November 2016.

106. The Panel also notes that the Respondents, while being convinced of their right to compensation under the employment contracts, only claimed such amounts around 8 months after the 6-7 November 2016 events took place. The same goes for the Appellant, who neither requested from the Respondents any written explanation of the termination, nor sent them any notification of dismissal. The Panel observes that the Parties to this arbitration are sophisticated professionals who could not have omitted the fact that a fixed-term employment contract does not simply dissolve after only partial performance thereof, without any written notice of termination or efforts to repair the relationship emanating from either of the Parties. The lack of such effort only attests ignorance or even negligence of the Parties.

107. As to the evidence submitted by the Appellant, the Panel agrees with the finding of the BAT Arbitrator that the Club submitted little further evidence to show that the Respondents resigned. However, the Panel also understands that such proof might simply not exist. The Appellant relies in its submissions on one press article as well as on the witness testimony of players and different members of the staff and management of the Club. Nonetheless, none of the witnesses offered direct evidence of either an act of dismissal or of resignation. At most, the underlying statements could provide elements as to why the relationship between the Club and the First Respondent deteriorated. Also, the Panel agrees with the BAT Arbitrator that such testimony emanating from individuals who are in different ways employed or closely related to the Appellant carries less evidentiary weight than the testimony of the Parties or objective evidence which has been scarce. The Panel is also unwilling to rely on press articles which are usually considered hearsay not admissible into the evidence on file.

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108. The Appellant had the burden to prove that the First Respondent resigned by offering objective or all available evidence to convince the Panel that a resignation did in fact take place. Although the Appellant has, in the Panel’s view, satisfied its burden of proof as it seems, based on the totality of circumstances, that no objective evidence of the termination events exists, it has failed to meet the required evidentiary standard. That is to say that the evidence procured by the Appellant is insufficient to conclude that the First Respondent unilaterally terminated its contract without just cause.

109. It can be inferred from the above that the requirement of a prior notification, preferably written, or any remedial efforts has not been satisfied. This would make both a resignation and a dismissal under Venezuelan law, imposing on the employer the commencement of mandatory proceedings right after the dismissal or on the employee a proper notification, invalid. Swiss law, as interpreted and applied by CAS tribunals, gives the parties to an employment relationship the option of exiting such relationship overnight and without notice only upon just cause which as mentioned above had been restrictively interpreted to only include violations of a significant severity.

110. The Appellant submitted that in the event this Panel was to consider that it did in fact dismiss the Respondents, it did so with just cause. Therefore, the Appellant claimed that it would be justified in terminating the Coaches’ contracts because the latter behaved in an unbearable and unreasonable manner with the players and with the staff and management of the Club which allegedly deteriorated the Club’s objective performance and subjective perception by the fans. The Appellant describes the First Respondent’s behaviour in detail both in its written and oral submissions, which have been summarized above. The Panel notes that the described behaviour does by no means exceed the common boundaries of a coach’s discretion in selecting the methods it uses in order to achieve the Club’s goals. In the professional world, coaches are generally granted broad discretion in training teams as far as it does not result in a clear violation of a player’s or club’s rights. A dismissal by the Appellant would therefore not have been justified.

111. The Appellant’s main claim is that the Respondents unilaterally terminated their employment relationship with the Club overnight. This being said, the Appellant makes the argument that if the First Respondent left, it was because of its deteriorating relations with the Club and because of the negativity and serious threats to his safety made by fans. The question is whether these facts constituted just cause for the First Respondent to resign without notice.

112. Based on the totality of the circumstances and to different extents on the evidence on file, this Panel is satisfied that the First Respondent was not dismissed but rather resigned from his position and his relations with the Club and fans triggered his decision to leave. The Panel finds that the communications of 6-7 November 2016 could very well be read as the President of the Club simply expressing his dissatisfaction with the First Respondent’s performance which let the latter to leave the Club upon an unjustified belief that it could easily request payment of its salaries until the end of the fixed-term contract based on the guarantee clause contained therein. For the guarantee clause to be triggered, however, the Club has to have dismissed the Coach,

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while the evidence does not favour that approach. On 10 November 2016, the Agent contacted the Club asking for the above-mentioned compensation. The Panel reads the exchange as indicating that the Club clearly did not consent nor initiate the Respondents’ departure and did not believe it owed them any contractual compensation for that reason. The Respondents then waited for more than 8 months before initiating the BAT proceedings. Furthermore, they did not bother to provide all available evidence of the litigious events, nor to testify to the events of 6-7 November 2016. Based on the evidence on file, the Panel is satisfied that the First Respondent unilaterally terminated its contract with the Appellant.

113. Based on the provisions of Venezuelan law, the First Respondent would still be entitled to compensation if he proved that he left the Club with just cause. While serious threats to one’s integrity and security may constitute just cause, such facts have not been proved before this Panel. In addition, such circumstances would have constituted a just cause to the extent that the Club had prompted or contributed to the threats extended to the First Respondent, if any. Such conduct on the part of the Club was not proved or even argued. Neither the First Respondent, nor his Agent testified as to the First Respondent’s situation and state of mind as of 6-7 November 2016. Consequently, the Panel finds that the First Respondent terminated the contract without just cause.

d. Second and Third Respondents

114. The Second and Third Respondents claim they have been dismissed by the Appellant without notification or just cause and request payment of compensation in the amount of their unpaid salaries under the 2-year fixed-term contract.

115. The Appellant argued that the Second and Third Respondents never claimed nor proved that any representative of the Club had any discussion with them prior to their departure.

116. The Panel finds that the Second and Third Respondents have not satisfied their burden of proving that they were dismissed by the Appellant. No factual or legal submissions have been made with regard to either of them. The only evidence remotely relating to their situation is the Second Respondent’s communications with players of the Club about the recent termination of the Respondents’ employment contracts. However, such communications do not bring any clarity to the reason and manner of their departure, let alone whether they resigned or were dismissed by the Appellant.

117. In fine, neither of them were present at the hearing or available to testify to the events that took place on 6-7 November 2016.

118. For the above reasons, the Panel is satisfied that the Second and Third Respondents simply resigned from their positions without just cause without any prior notification or subsequent effort to repair the relationship.

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C. Depending on the answer to (B) above, what are the legal consequences of the

termination of the Respondents’ contracts?

119. All three Respondents unilaterally left the Club without just cause and are therefore not entitled to compensation.

120. The Respondents’ employment relationship with the Appellant took place from 1 September 2016 to 6 November 2016. Therefore, in accordance with their contracts, the Appellant has to pay the Respondents the salaries for the time they performed their contractual duties as coaches of the Appellant.

121. However, the Respondents claimed in their written submissions that the Appellant only paid them for one month concerning September 2016. This claim has not been objected by the Appellant neither in its subsequent written communications, nor at the hearing.

122. In light of the foregoing, the Respondents are entitled to receive salaries for the period between 1 October 2016 and 6 November 2016. For the First Respondent would be a total of USD 25,499.98, and for the Second and Third Respondents would be USD 2,999.98.

123. Also, pursuant to the First Respondent’s contract, the Appellant has to pay the former a bonus for winning “any official competition league title (…) PAYED IN THE NEXT 72 hours after achievement”. It is undisputed between the Parties that on 18 September 2016, under the Respondents’ training, the Club won the 2016 FIBA Intercontinental Cup. A bonus in connection with that victory is therefore owed and has not been paid to the First Respondent. The Appellant has to pay the First Respondent the amount of USD 21,250.

124. Furthermore, the BAT Arbitrator, while noticing that the Respondents’ contracts do not contain a “late payment” or default interest provision with regard to delay in paying the Coaches’ salaries, awarded them ex aequo et bono a late payment fee in the approximate amount of one of each of the Respondents’ respective monthly salaries. At the same time, the BAT Arbitrator refused to award the Respondents an additional 5% per annum interest considering that the above-mentioned late payment fee would be “more than adequate to compensate” them. The Panel notes that the Parties failed to inform the Panel on how Venezuelan law deals with the issue of default interest.

125. As a result, since the Panel is unable to determine the applicable provisions of Venezuelan law with regard to default interest, the Panel finds that in accordance with Article 16 of the Swiss PILA, which applies by analogy in arbitration proceedings in Switzerland1, Swiss law shall apply instead of the applicable specific national law. In this respect, Article 16 of the Swiss PILA stipulates the following:

1 See to that regard KARRER P., in: HONSELL ET AL., IPRG Kommentar, 3rd edition, Article 187, p. 1943. See also ad hoc MAVROMATI/REEB, The Code of the Court of Arbitration for Sport. Commentary, Cases and Materials, Kluwer Law 2015, p. 546, 547 with further references to relevant CAS case-law: cases CAS 2011/A/2321, CAS

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“Article 16. Establishing foreign law.

1. The contents of the foreign law shall be established by the authority on its own motion. For this purpose, the cooperation of the parties may be requested. In matters involving an economic interest, the task of establishing foreign law may be assigned to the parties.

2. Swiss law applies if the contents of the foreign law cannot be established”.

126. In light of the above, the Panel shall apply Swiss law in order to establish the default interest to the Respondents’ unpaid salaries. In accordance with the Swiss Code of Obligations, a default interest of 5% per annum shall apply to the due amounts.

127. In general, under Swiss law, where the parties have agreed on a specific date of payment or performance, the debtor will automatically be in default as of this date. Therefore, the default interest will become due as of the date of default on the contractual obligations. Under the Respondents’ contracts, monthly salaries must be paid on the last day of each month. On 30 September 2016, the Appellant paid the Respondents their first salaries. However, on 31 October 2016, when payment of their salary for the month of October became due, no payment ensued.

128. Thus, the Appellant owes the Respondents interest on the sums awarded for the month of October at 5% per annum from the date the performance of the payment obligation became due, that is to say from 31 October 2016. With regard to the period between 1 November 2016 and 6 November 2016, payment became due on the day of the contract termination. Consequently, for this period, the Appellant owes the Respondents default interest at 5% per annum starting from 6 November 2016. Regarding the First Respondent’s bonus, it should have been paid 72 hours after achievement (i.e. 21 September 2016).

129. In conclusion:

- Columbus Sport 99 C.A. shall pay to Mr Ivan Deniz O’Donnell the total amount USD 46,749.98, plus interest as follows:

- USD 21,250 corresponding to the month of October 2016, plus an interest of 5% p.a. calculated as from 1 November 2016 until the date of effective payment.

- USD 4,249.98 corresponding to the month of November 2016, plus an interest of 5% p.a. calculated as from 7 November 2016 until the date of effective payment.

- USD 21, 250 corresponding to the bonus for achieving the 2016 FIBA Intercontinental Cup, plus an interest of 5% p.a. calculated as from 21 September 2016 until the date of effective payment.

award of 1 April 2019

- Columbus Sport 99 C.A. shall pay to Mr Marcos Cervero Simonet the total amount of USD 2,999.98 plus interest as follows:

- USD 2,500 corresponding to the month of October 2016, plus an interest of 5% p.a. calculated as from 1 November 2016 until the date of effective payment.

- USD 499.98 corresponding to the month of November 2016, plus an interest of 5% p.a. calculated as from 7 November 2016 until the date of effective payment.

- Columbus Sport 99 C.A. shall pay to Mr Ronald Gillen the total amount of USD 2,999.98 plus interest as follows:

- USD 2,500 corresponding to the month of October 2016, plus an interest of 5% p.a. calculated as from 1 November 2016 until the date of effective payment.

- USD 499.98 corresponding to the month of November 2016, plus an interest of 5% p.a. calculated as from 7 November 2016 until the date of effective payment.

130. The Panel therefore partially upholds the appeal, setting aside the BAT Award, which is replaced by this CAS Award.