Tuesday, 24 April 2012

The legal status of sports body - can you sue the office bearer?

Malaysian sports body operate as an unincorporated association and a non-profit sporting entity. Some are incorporated entity registered under the Societies Act and the Companies Act. Most are registered under Sports Development Act to carry out their sporting activities.  

Unincorporated sports association lack of legal status. They prefer that way to protect their privacy and autonomous power and need not to comply with any statutory requirement. However, they cannot sue or be sued in the club name (see Karting Club of Singapore v David Mark & Co [1985] 2 MLJ 280, p. 283). What more if the action was brought by the members of the club (see Mohd Latiff Shah Mohd v Tengku Abdullah ibni Sultan Abu Bakar [1995] 2 MLJ 1, per Zakaria Yatim J). It appears that action may only be instituted on the ground of contractual and tortious liability. 

Now the issue is whether members (office bearer - President & Committee members) of the sports association registered under Sports Development Act can sue and be sued? The registration of any sports body under s. 18(2) of Sports Development Act entitled it for accountability and no doubt the committee members are in an analogous position to the directors of a company.  In Taekwondo case, the action still can be brought by the office bearers (their own name) but representing Malaysian Taekwondo Association (see Chin Mee Keong & Ors v Pesuruhjaya Sukan [2007] 6 MLJ 193, per James Foong JCA) or by the public officer (see Kulaisingam & Anor v Commissioner of Lands, Federal Territory & Ors [1982] 1 MLJ 204). So what is the answer if you want to sue football association registered under Sports Development Act?

Interestingly, it also accepted that the committees of the association are acting in the fiduciary capacity when exercising their power. Although their duty of care, skill and diligence are not clearly mentioned, they have a duty to act honestly and in the best interests of the associations. Honestly means disclose the existence and the nature of any direct or indirect interest of the association especially during Annual General Meeting. It is an offence if any office bearers of the association make any improper use of his or her position. So, ask yourself whether you are ready to be sued or not?