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?

SportslawMalaysia.

Sunday 15 April 2012

Whose Responsibility? Weakness in coaching education and sports medicine


Read:

This question is to the government of Malaysia. It seems to suggest that this issue will continuously happen until serious medical criteria for physical education and sports activity in schools are recognized by the government especially the Ministry of Education. Insurance and maintaining sports equipment is still far not enough. See: Safety Guidelines No. 9/2000 

Previously, the ministry ought to consider a few issues - (1) whether the need to distinguish the border between teaching and coaching in sporting activity. (2) whether teachers are professional and therefore they have a duty to teach or to act with reasonable skill and care. (3) whether their duty not only for the supervision of playing fields but as well as sports equipment and first aids. Why? In principle, if they fail, there is no justification for blanket immunity, and the ministry could be vicariously liable for breaches by those whom it employed. In Loco Parentis applies to all who are in that relationship with school children whether school governance (ministry and education departments), school principal, head of co-curricular activity, teachers (PE teachers), referees and even volunteers. These people are 'in place of parents' and must aware any foreseeable risk of injury. They ought to understand their supervisory responsibility as well as any breach of legal responsibility.  

The position in Malaysia showed different direction.  

(1) Chen Soon Lee v Chong Voon Pin [1966] 2 MLJ 264 - the action against the principal and two teachers for negligence damages (picnic at Tanjung Lobang). Not liable, the defendants had done all safety precautions.

(2) Govt of Malaysia v Jumat Mahmud & Anor [1977] 2 MLJ 103 - duty of care of a teacher in controlling pupils in classroom (action for damages for eyes injury). Not liable, merely accident.

(3) Silvadurai a/l Kunnary v Pengetua Sekolah Rendah Jenis Kebangsaan Cina Chung Hwa Asahan, Muar Johor [1996] MLJ 331 - the action against the headmaster of the school, the Ministry of Education and the Government of Malaysia alleging negligence (see-saw accident at school).

This case is closed related to our latter report. After fall, there was no medical evidence to confirm the pupil had been sent directly to hospital from school. This pupil could have been saved had he been brought to the hospital immediately after he had collapsed. Surely a lot of preliminary diagnose would have had to be taken, like scanning or x-ray. Not Liable, the see-saw was not the cause of fatal injury but a fall on some hard object which was advocated as unconnected with the latter. The student would fall and possibly be injured while playing around.

My suggestion is an action on medical services grounds. A classic case of Welch v Dunsmuir Junior High School (1958) 326 P 2d 633 illustrated that the inadequacies of school medical services resulted in damages award of $325 000. The defendant doctor (although available) fail to respond with sufficient alacrity to examine the pupil or provide proper and immediate medical care. There are many causative factors (other than duty of care and supervision) for child injury that serve as a warning. Examples, poor technique, no warm up, playing when over-tired or ill, inadequate skill and fitness training,  inappropriate protective equipment or even poor shoes.

Now it is time to change the direction.

Read other related cases:
(4) Mohamed Raihan Ibrahim v Govt of Malaysia [1981] 2 MLJ 27 - supervision of teacher who participated in gardening class - liable for negligence.

(5) Zazlin Zahira Kamarulzaman v Louis Marie Neube Rt. Ambrose al J Ambrose [1994] MLJ 35 - supervision during music classes. Not liable. Clear direction to ensure safety.


Monday 9 April 2012

Extending Justiciability Against Sports Bodies Determination.

Justiciability - Capable of Being Decided By A Court

Our next discussion is WHO should arbitrate sports dispute in Malaysia. It is true that anybody can talk about football..but none may capable of adjudicating sports matters. Some regulatory functions need exercise of expert judgement. For example, in the lower scale, the rule of the games during play and competition is decided by the referee. Interestingly, the word referee referred to a person appointed by the British Parliament to examine patent application as early as 1621. The word umpire acquires more sense as 'the judge of play in games and sports'. Second example, if there is a breach of any statutory terms, the sports executive committee have autonomous power to hear and decide. Disciplinary committee functions only at the lower level and their decision is not final. The question is 'Why them'? One of the reason is they belong to 'powerful organisation'. They have capacity to act 'governmental alike' while still operating and possessing institutional legal structures with private bodies entities. Those who are not understand their governmental structure always complaint about this...but in fact it is desirable that sporting bodies should be reasonably free to conduct the private affairs. Court cannot interfere with these private matters.

Despite their administrative efficiency, let's interpret 'them' in the context of Natural Justice. This concept precludes any members of this 'powerful organisation' from sitting in any hearing. If this happens, there is a reasonable likelihood or suspicion of bias unless (1) the disciplinary code is well demarcated as 'prosecutorial' and 'adjudicating' function. It means those who prosecute must not involve or participate or appearing to participate in the evidence gathering process. (2) Any member who sits in the hearing does not participate as adjudicator during the appeal. The simple reason is to avoid the tendency of supporting the previous decision made by him. (3) The proper way is to appoint individual members of the same profession who understand well a breach of professional code of conduct. Some of these requirements are obligatory followed. There is no room to challenge.  

However, if I may suggest, the available challenge now is not only when 'powerful organisation' mistakenly solicit to pack disciplinary committee and tribunal with their own officials. Of course, this ground is validly accepted. Any suspension imposed to any aggrieved party shall subsequently revoke on the basis of a likelihood of bias. The new ground of challenge is on custom and practice. First, the statute of sports body had granted discretionary power to the manner and form of its hearing (for example, power to decide there is no appeal). The monopoly position have been traditionally acknowledged as being reason to supervise and control their power (in the name of integrity and image...family bad story should be discussed internally). Second, certain clauses / articles appear unconstitutional against the rights of person (freedom of speech) in the Federal Constitution. However, the plea by sports body is on the practice of contractual relationship. The issue of excluding the court's intervention and jurisdiction by contract is valid justification and has been considered in many sports cases. The breach of any terms will purport tort actions against members. But the point that sports (for example football) belongs to everyone, and in a position of major national importance. It should be treated as public law issues and no more contractual private affairs.

Sports Law Malaysia

Thursday 5 April 2012

The Sports Judicial System - Executability of Decision



Executability - capability of being executed. 

The legal discussion today is about the competency of judicial bodies at national level to make decision. The issue is what are the effects and enforcement limits of the decision? The principle idea is when sports persons and sports administrators are obliged to abide by national law (example: Sports Development Act 1997) and the rules of the relevant sports association (example: FAM Constitution / Statute), they are also obliged by the rules of the international sports federation (FIFA / IOC) to which their national federations affiliated with.

Effect: People claim that since the nature of obligation among members of the national sports body derives from contractual freedom, nothing much can be said when the provisions agreed by all parties were breached. This is totally unfair against the right of affected party. We agreed that through the statute of national sports body, it regulates internal administration and function and establishes normative and disciplinary competence within their field of responsibility. It applies to their members (athletes and officials) and interestingly prevails over any provisions. However, international sports judicial system does not coincide with traditional sources (or other provisions / statutes). CAS (Court of Arbitration for Sports) constitutes their own arbitration panel sector and its operation is within sports judicial system and the jurisdiction to regulate international arbitration. Thus, all disputes arising between members (athletes and officials) that are refereed to this panel will be arbitrated on the basis of statutes of international sports rules of IFs and IOC. 

Limitation: The theory of lex sportiva is unique or sui generis. It means that it emerges beyond the bounds of states. The international rules are followed by national federations (NSB) and the legitimizing result may prevail over national law / court. Why? Because IFs (FIFA for example) are private legal bodies with objective to regulate the sports for which they are responsible or any disputes that take place across the borders of more than one state. And the same applies to NSB / IFs that wish to have their sports recognized as Olympic sports. The IOC will implement its legal rules as contained in Olympic Charter.

So, why afraid if there is no appeal process in the disciplinary hearing?