Sunday, 6 May 2012

FAS vs. FAM: The Possibilities

1. Court will not intervene into dispute between national sports association and its members. Under the common law, associations may require their members to exhaust all internal remedies within the association before resorting to any court or tribunal outside of the association. 

2. As a general rule, when a private organization has procedures for internal review of its decisions, those procedures must be exhausted before seeking any redress from a court. (Holt Hackney, How State Judges Are Clearing Backlogs In Cases Involving Associations And Clubs, 22 Ent. & Sports Law. 31). The Malaysian law applied the same principles (see previous discussion).

3. Section 23 of Malaysian Sports Development Act 1997 spelled out that 'every sports body shall resolve any dispute arising amongst its members or with its committee or governing body in accordance with the internal procedures prescribed in the regulations'. 

4. However, the section broadly defined dispute as 'any disputes' thus confusing and need interpretation. I may simply divide the disputes into two; Intra-Association Conflict and Inter-Association Conflict. Intra-association conflicts are disputes that involve an association's adoption and implementation of its national rules. It includes the procedures of conducting hearing, decision making and punishing by the national sports body for its members. Inter-association conflicts simply mean disputes between members within the sports association. Disputes normally arise on gate received, assault and transfer issue.

5. The issue of discussion now is not about control and jurisdiction. Obviously FAS (Football Association of Sarawak) is affiliated to FAM, which means, an organization that is under the control of FAM. FAM is affiliated to an International governing body of football, FIFA. And at the same time, FAM is a registered National Sports Association with Olympic Committee of Malaysia (OCM) as an associate member. 

6. Affiliation and association of one sports body to larger structure of sports body is merely a tool to seek 'recognition and sense of belonging'. Nothing more. But the key to be a sports body in Malaysia is registration. This is clearly stated in section 15(1) of Sports Development Act 1997, 'Every sports body shall apply to the Commissioner to be registered under this Act to carry out any sporting activity'. By registering its identity, the sports body stands by itself as an incorporated legal entity. 

7. OCM at the same time not only recognise sports body registered under the auspices of Sports Development Act, but other statutes. OCM Constitution interpreted that (d) ‘Registered Organization’ means any organization duly registered under the Sports Development Act, 1997, the Societies Act, 1966 and/or the Companies Act 1965 and with an interest in sports. ‘Associate Member’ means a registered National Sports Association or Registered Organization involved in the promotion and development of sport, which may or may not be affiliated to any International Federation. 

8. With due respect, FAS may register itself as 'registered organisation' under any of the Acts to be associated with OCM. This will deprive FAS from receiving direct funding from FAM or other detriment including the possibility of not competing in the Malaysian league. However, the only good thing is FAS is  an independent incorporated legal entity (private and domestic body). Having no fear of non-intervention of private issue, FAS will bring court action as FAS, and not as an affiliated member.