Jurisdiction and competency of Player Status Committee - FIFA vs Malaysia

Who decides transfer disputes in Malaysian football?

The FIFA jurisdiction and competency is for ALL employment disputes as spelled out in Art 22 of Regulations on the Status and Transfer of Players (RSTP). The focus of all these dispute is contractual stability - Art 22 (a)-(f). Two important wings for operation of Art. 22 are PSC (Players’ Status Committee) and DRC (Dispute Resolution Chamber). The jurisdiction and competency of PSC is only to adjudicate matters that fall under limb (c) and (f). Disputes on limb (a), (b), (d) and (e) are adjudicated by DRC. In this understanding, FIFA makes a distinction between the competence of the PSC (Art. 23) and the DRC (Art. 24).

RSTP:

Art. 22: Without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, FIFA is competent to hear:

a) disputes between clubs and players in relation to the maintenance of contractual stability (articles 13-18) where there has been an ITC request and a claim from an interested party in relation to said ITC request, in particular regarding the issue of the ITC, sporting sanctions or compensation for breach of contract;

b) employment-related disputes between a club and a player of an international dimension, unless an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs has been established at national level within the framework of the association and/or a collective bargaining agreement;

c) employment-related disputes between a club or an association and a coach of an international dimension, unless an independent arbitration tribunal guaranteeing fair proceedings exists at national level;

d) disputes relating to training compensation (article 20) and the solidarity mechanism (article 21) between clubs belonging to different associations; 

e) disputes relating to the solidarity mechanism (article 21) between clubs belonging to the same association provided that the transfer of a player at the basis of the dispute occurs between clubs belonging to different associations;

f) disputes between clubs belonging to different associations that do not fall within the cases provided for in a), d) and e).

Legal Analysis:

DRC will therefore adjudicate all disputes in accordance to its jurisdiction with the exception of the issuance of the International Transfer Certificate - ITC (settled by the PSC). DRC has jurisdiction with regard to disputes between players and clubs with respect of contractual stability particularly sport sanctions and compensation for breach of contract [Article 24 (1)]. Sub (b) of Art 24 for example is about employment related disputes.

Previously (RSTP 2005 edition), PSC was the competent body to decide on the employment disputes. The reasons are (a) International dimension - The first requirement of Art 24 is the presence of the international dimension. It means that only international disputes are referred to DRC. (b) Arbitration tribunal - The second requirement is when no independent arbitration tribunal at national level is guaranteed fair proceedings. This further restricted in respect that the arbitration tribunal at the national level should observe the principle of equal representation of players and clubs (within the framework of the arbitration or based on collective bargaining agreement).

It means that if the national association has established an arbitration tribunal composed of members chosen in equal numbers by players and clubs with an independent chairman (for example in Malaysia, under Kuala Lumpur Regional Centre of Arbitration - KLRCA), then this tribunal is competent to decide on such disputes.

However, none of the these requirements is fulfilled here...

The Malaysian sports law: Governance and Direction

Wanna buy a new 2013 sports law book? The price is US$100. This book is published and printed in Seoul, Korea. Among the famous sports law contributors are James Nafziger, Annie Clement, Matthew J. Mitten and Dimitrios P.    

My chapter entitles 'The Malaysian sports law: Governance and Direction'. It discusses the historical evolution of sports law, sports legislations and the role of the government in developing and regulating sports at national level in Malaysia.

Happy New Year 2014 to you all...

Constitutionalised Autonomy of Sports Organisations

What if someone complains against the by-laws and regulations of sports organisation? 

They said the rule is discriminatory...
They said the article is invalid...unconstitutional...

What if there is no sports legislations on how to govern the sports organisation?

They said, must respect the autonomy of the sports organisation...
They said, don't you understand the nature of public responsibility?

In order to answer these two questions, we must understand the nature of sports organisation, the role of existing law governing sports organisations and the task of court in supervising and reviewing the judicial decision of sports organisations. 

Nature: The sports organisations in Malaysia receive fund from the government. Their interest and function are public but their legal structure and institutional relationship are private. The position is uncertain. The 'governmental interest test' is always inconsistent. The sports organisations said.."Leave the sports matter to us....and don't disturb our way of regulating our sport".

Law: Section 26(b) of the Sports Development Act 1997 requires that the Minister (without prejudice) may make regulations on duties, powers and functions of sports organisation. The function is governmental (see KBS Strategic Plan) and public (NSP 2009) unless there exist different directions and specific regulations by international federations [s.3(2) of SDA]. The sports organisations said..."Why you are so busy body...we know what to do in our own house..".

Judicial Review: If the power is private and contractual, court refuses to review any judicial decision by sports organisations. The sports organisations said, "See..even court not dare to intervene our private matters...".

Satirical Cartoon on Stop and Frisk from Artist Kevin Eason

You are right...BUT only when your regulation is legitimate.... your mini trial (internal - s.23 SDA) is based on the principle of natural justice... and your CONSTITUTION is autonomously constitutionalised. 

Think about this!!.

Professional Footballers Association Malaysia (PFAM)

FIFPro Division (Asia/Oceania) is an organization representing the voice and the career path for the professional footballers in Asia and Oceania. 

In ensuring the welfare and the career of professional footballers in Malaysia are fully protected, Professional Footballers’ Association of Malaysia (PFAM) will be re-activated. 

See: PFAM kembali bernafas

Legal Action Against Rashid??

In coaching contract, successful coach who breaches the contract and leaving the institution prematurely will not move out freely as he or she wishes. However, the institution which terminates the coach's contract may do so without serious repercussions. The institution has prepared itself through careful contract drafting from various legal protection associated with coach's termination. In most sports contract, the institution has the right at any time to terminate the coach's contract for 'termination without cause' prior to its expiration. It normally involves payment of compensation to the coach.

That is the position of 1980s and 1990s. This has changed dramatically. Coaching now is a high profession. And I believe that the recent possible legal scenario against Rashid Sidek will not only significantly affecting his livelihood but reputation and publicised consequences. Thus, in this case, we have to stretch our legal mind from traditional principles of contract law to special employment relationship. In normal contractual relationship, the institution offers the opportunity, and the coach does the work. If either fails to perform their duties, then that party is in breach and pay damages.

However, in the suit of a departed coach, the institution must consider some important points. First, measuring the 'value' of one coach's service is an inherently difficult. His 10 years service as national single coach is unlikely irreplaceable. Second is bad publicity. Court litigation and intense publicity can prolong bad feeling, thus affect the sports spirit and talent development. Third, the complex calculation for compensation arrangement to obtain the new coach could be extremely difficult. At the end, most coaches may virtually leave the institution at will. Moreover, Rashid is leaving for better position and prestige. 

What I worried most is the implication beyond coaching contracts. The successful coach may claim for 'any real degree of special opportunity for enhancement of reputation'. It carries a potential recovery for extraordinary contractual damages if breaches. This 'subsidiary pecuniary advantages' has been discussed in old English case of Marbe v Edwards (1928) 1 KB 269. This position is beyond lawyer's creativity and imagination....

What happen if Malaysian professional football clubs insolvent?

Questionnaires emailed by FIFPro to me. 

All answers are based on my opinion. Happy reading. 

With the effects of the world wide economic crises still palpable, professional football clubs are finding it more and more difficult to stay solvent. And while the rules regarding solvency are becoming more strict (for example, the UEFA Financial Fair Play Regulations that come into full effect in 2014), it should not be the players who suffer the consequences.

The insolvency of professional football clubs in Malaysia?

Malaysia is a federal constitutional elective monarchy. Sports is under the concurrent list of State and Federal legislation. All sports association must register to Sports Development Act 1997 to do sporting activities. The Football Association of Malaysia (FAM) is registered association under Sports Development Act 1997 that enable her to receive annual fund and financial grant from the Malaysian government. The Malaysian FA (FAM) is not a body corporation under the Companies Act 1965; does not have a corporate legal entity and thus the issue of insolvency and winding up does not arise. The president of the Association is the HRH Sultan Haji Ahmad Shah who always continuously giving high morale and financial support. As a private body, the relationship of the members (players and administrators - member affiliates / clubs) is based on contractual relationship.

However, the issues of non-payment of players’ financial welfare are seriously discussed. Most of the clubs failed to settle their debts towards players’ financial welfare totalling about RM1.2 million – RM833, 793 for EPF, RM101,526 (Socso) and RM365,895 (income tax) - 2012.

The imposition of sanction is well illustrated in the FAM Regulations, however the execution of the regulations is not strictly adhered. Since the insolvency law does not apply, the appointed sports commissioner will determine the financial status of national association through its Annual Financial Reports.

What are the possible stages of insolvency in Malaysia?

Complaint and termination of contract unilaterally by player:

In the event that clubs do not pay players' wages or failed to make contributions to the Employees Provident Fund (EPF) and Social Security Organisation (SOCSO), or fail to pay regular income tax to the Inland Revenue Board for a minimum of one (1) month or player complain to the FAM or upon investigated by FAM and found to be true, then the player may terminate the Contract unilaterally and inform in writing to the FAM.

Fines:

Clubs were instructed to pay a minimum of one (1) month salary for every player or any higher amount as determined by the FAM Status Players Committee.Thefines must be paid by the club within 30 days of the date of the letter is received. If that fails, the FAM can cut financial provision, club competition entries deposits, cash prizes or any money kept by FAM to be paid directly to the players.

Suspension:

If clubs still fail to pay within the 30 days or the financial balance in the FAM is not enough, then the participation of the club may be disqualified from any competitions. If the 30 days is beyond the season, the club is prohibited to join the competition in the next season until the clubs fully settle the payment.

The law of insolvency does not apply here and FAM prefers to apply self-regulation method.

What are the consequences of insolvency, in accordance with the Malaysian law? 

This does not applicable to clubs– since clubs are unincorporated association registered under the Sports Act and not Companies Act 1965. However, the law allows players to sue the executive committee on the basis of representative action and not a derivative action.

For players, in ordinary insolvency cases, employees have right against the company as creditor. In the case of non-payment of wages, players may terminate their contract unilaterally and join other clubs.

Is an insolvent club allowed to remain in competition, and thus keep playing official matches?

In the FAM Transfer Regulation, clubs are restrained from participating in any competition / league organized by the FAM. If clubs fails to pay more than 25% salary, clubs will be suspended automatically for the next season. 

Is there a possibility for the federation to impose sanctions on club in case of prolonged insolvency? (for example: fines, point-deduction, transfer-bans, suspension or forced relegation)

YES. The task is given to Players Status Committee to hold any transfer from and to problematic clubs.

Suggestion

Are there other securities available for players of insolvent football clubs? 

No. The Executive may borrow money in his personal capacity to ensure his club / team is not suspended.

The solution: The Royal Highness normally gives his guarantee to the club to manage football. However, only the rights of club are protected and not the player. The foreign player may request the same (guarantee letter) before signing of contract.

Is there in your country a system of financial fair play, more or less similar to the UEFA Financial Fair Play Regulations, in action?

No. However in order to ensure financial stability in the transfer rules, the celling price of transfer (local) is limited to RM250,000 only.

If so, what are the results of the system?

Fair to all competing clubs - the rich club may transfer (in and out) equal number of best players. Player will receive more salary  (the offer is described in the salary appendix and not the transfer)

Disadvantages

The price of professionalism status is still lower in community’s perception. Agent not interested to be an agent. Sports agent does not represent some foreign players. The result is worst when there is suspension and termination.

If not, are there other mechanisms in operation that stimulate clubs to have financial good governance?

In Malaysia, the transparency is the most precious solution. Everything should be documented to avoid bribery and corruption. The members must submit their Financial Reports annually in the Congress and the same to the Sports Commissioner for records. The double layers inspection is done at both national level (one with respective body with some interest to protects) and non-profit governmental body to check the balance of good governance. The Malaysian football organization is now working closely to Malaysian Anti Corruption Agency (MACA) to eradicate the corruption problem, thus ensure fair play among all competing clubs.

The second opinion is to have an independent body for auditing purposes. The report must be submitted to the Players’ representative and national (and international) association.

The position of players at insolvent clubs

When an employer becomes insolvent, it are often the employees (in this case the players) who receive their remuneration last. For us, this is not a situation we prefer.

Possibilities to improve the position of players under contract at an insolvent club? If so, which?

Yes. It is a clear breach of contract. The management observes seriously about their rights against the players. The head coach for example may recommend termination if players not perform. The same right goes to the player. In the situation the management unable to perform his duty to pay, the contract is frustrated, thus both parties are no more in relation.

However, it is very difficult to incorporated the clause ‘if the club insolvent, the players will receive this and that…”. Applying the concept of nemo dat, the player has duty to investigate (through agent) the financial status of the player before signing of the contract. If he is not sure of the financial status, what he needs is a guarantee letter of at least 6 months salary.

The player may sue in a representation action against the Executive Committee of the Association.

Is a player under contract with an insolvent club allowed to leave the club without a transfer fee?

Yes. He may terminate the contract unilaterally and choose his new club. He just needs to write / inform the national association about this.

Is that player allowed to leave without training compensation or solidarity contribution to be paid for him?

Player may apply for guarantees from the previous clubs. The compensation is based on reasonable quantum meruit depending on his previous performance and competition. The new club will pay the said amount.

Will the federation, in case of an international transfer, issue an International Transfer Certificate without problems?

Yes. The Players Status Committee may use their discretionary power to issue ITC for international transfer.

Thank you. 

The economics of player transfers

The study on the economic and legal aspects of transfers of players by European Commission  demonstrates that the total amount of transfers in football for 2010/11 was about €3 billion in the EU with significant elements of concentration: the “big-5” represented more than 55% of this amount. The study establishes that between 1995 and 2011, the number of transfers in the EU has been multiplied by 3.2 and the total value of transfer fees by 7.4.  

Year                                       Number of transfers                  Value (€)
1994-95                                   5 735                                          €402 869 000
1999-2000                               8 531                                          €1 704 603 000
2005-06                                   15 952                                        €1 952 066 000
2010-11                                   18 307                                        €3 002 198 000
Source: CDES (based on data provided by FIFA and CIES) 

The study highlights the strong segmentation of the labour market in European football and its main developments. Based on the economic literature and on many experts’ advice, the study shows that, unlike theories traditionally used, the market is not a market of pure and perfect competition. It is composed of three main segments with different structures and on which the market power of the different stakeholders are not the same. 

1. the higher primary market, on which a limited number of players (the “superstars”) faces a limited number of clubs, has a monopolistic structure. 
2. the lower primary market, on which a limited number of players (the good and experienced ones) faces a huge number of clubs, has an oligopolistic structure.
3. The secondary market, on which many players face a  limited number of clubs, has an oligopsony structure.

Asian countries? Malaysia? How much do you want to pay for all these three categories of players?

For further reading: http://ec.europa.eu/sport/library/documents/f-studies/cons-study-transfers-final-rpt.pdf

Advanced Sports Law (L.L.M) at UKM

Faculty of Law UKM will introduce UUUK 6356 - Advanced Sports Law. A number of important topics have been chosen for discussion in this course. Students will discuss topics, including the historical development of lex sportiva (sports law) and jus indorem (law of the game), relevant international statutes and world sports governance. International legal issues relating to sports employment contract, intellectual property and commercial rights; and ambush marketing in sports will be discussed. 

The second part of the course continues with discussion on international  human rights law and discrimination towards children and women; world doping and its procedures; international sports gambling; hooliganism, and stadium-event management. Enforcement mechanisms for example ADR and the role of International Court of Arbitration for Sports (CAS) in promoting the rights of sports persons will conclude this course. 

From the discussions, students will be familiar with and understand the relevant laws and principles on sports law. They will be able to relate the laws and principles to any sporting issues and apply the laws and principles in resolving those issues to protect the sports persons-athletes’ rights. The analysis of laws will be at the national and international.

The transfer saga to Malaysian footballer

Player may terminate his 'fixed term contract' for a 'valid sporting reason' or 'just cause'. A fixed-term contract is defined as a contract of employment which has a definite start and end date. On the other hand, what constitutes 'just cause' is not extensively defined. Art. 15 Regulations on the Status and Transfer of Players stated that players may terminate his contract prematurely on the ground of sporting just cause if he appeared in fewer than 10% of the official matches in which his club has been involved. What is your say fellow? 

If there is a unilateral breach without sporting just cause on the part of the player, sports sanction shall be applied and compensation payable is stated in Art. 17(4): see Chelsea v Mutu [2007] ISLR-SLR 32. How if, for one reason or another, player may want to take advantage of the fact that, his superstar status making it the right time to move on and accepting good offer. What left is the need of transfer registration which requires the consent and cooperation of the old master: see this principle in Radford v Champbell [1890] 6 TLR 488. Luckily, the Rules strictly disallow a club from approaching a player without a latter's approval: see Mainstream Properties v Young [2007] 2 WLR 920. And it is clear that any interference of this contractual relations is unlawful as illustrate in Wayne Rooney's case: see Proform Sports Management Ltd v Proactive Sports Management Ltd [2007] 1 All ER 542. Worst, if a player attempts to left the agreement behind or simply wants to walk away from fixed term contract, he may be guilty of serious or persistent breach of the fixed term contract: see Julian White v Bristol Rugby Ltd [2002] IRLR 204.

When a contract has been breached, compensation is available under FIFA Regulation. For more damages, since the contract is fixed term in nature, the measure of loss is the remaining earnings for the the period that the contract has left to run. If the old master intended to penalize the departing player, then ask for the imposition of penalties: see Murphy v Southend United Football Club Ltd (1999, unreported); Read Paul Mc Grath, 'Football contracts - fact or fiction' [2001] 9(2) SATLJ 114. However, do not attempt to obtain injunction to stop player from leaving. In the boxing case of Warren v Mendy [1989] 1 WLR 853, this effort may not effectively compel the player for personal services since footballer usually needs to exercise his psychological and physical skills for winning. 

The first issue - The justification of 'just cause' in Malaysian Football Player Contract

So, in principle, player and State/Club must respect and honour the contractual obligations during the whole agreed term. This is called 'pacta sunt servanda'. Yet, this principle is also not absolute. Most clauses in the player's agreement are not valid or imbalance (rights and obligations) between players and the States. And it can be presumed that, in fact there are many cases supporting this allegation, the imbalance agreement can be defined as 'just cause'. To justify the issue, the appointed Status Committee must examine all affidavits and comply the required procedure. The player (claimant) in applying 'termination on the ground of sporting just cause' must show the followings:

1. He must be an established player who has completed his training period. (his level of footballing skill is at least equal or even superior of his team mates);
2. He has appeared in less than 10% of the official matches. Appearance should be understood as being fielded or actively taking part in both national and international matches;
3. Termination on this ground will only be valid if the he terminates his contract in the 15 days following the last official match of the season of his club.

Why Not Appeal: The Normative Trend of Resolving Sports Dispute

1. What is the normative trend in resolving sports dispute according to international sports law? 

The answer is arbitration and not court proceeding. For example, (a) National sport body resolves dispute within their sports and territory by way of domestic procedure (disciplinary hearing). International federation (AFC, FIFA) will review decisions of national bodies within a particular sport. (b) National Olympic Committee (OCM) intervenes in dispute at a national level by conducting domestic inquiry (internal procedure). International Olympic Committee (IOC) may review decisions of a National Olympic Committee. (c) Independent arbitration panels may deal with disputes (Court of Arbitration for Sports-CAS, done by Regional CAS) and this is totally arbitration proceeding and if going to the (d) Court, the Court will normally recognised and enforce foreign arbitration award (if arbitration was done by CAS). Only where such disputes are not susceptible of resolution by international sports institutions, they have to be decided by national court and decide it according to substantive system (statutory) of national law.

2. FAM Constitution (for example) is a comprehensive one that had incorporated many clauses in Rules and Regulations adopted by international federation (FIFA). One of the important clauses is an arbitration clause. Thus any attempts to resort to the courts without regard to an arbitration clause will generate stay of proceeding (see Colchester United FC Ltd v Burley [1995]). This is on the basis of Article 58 of FIFA Rules that requires all clubs / member associations (including Leagues) to refrain from litigation in court until all possibilities of sports jurisdiction within, or under the responsibility of their national association have been exhausted. To emphasize their authority, all national member associations must ensure all members / clubs observed this obligation.

3. However, Neuberger J in Notts Incorporated Football Club Limited v The Football League Limited and Southend United FC Limited [1996] exceptionally unravelled by saying that "a point of law not requiring resolution of contested facts, may be resolved on a summary judgement application before a court notwithstanding any arbitration clause. The reason is simply because an arbitration clause is unlikely to displace the right of access to court. Thus, any rules seeking 'to refer to the court' in the association’s constitution as a breach is invalid. If the rules of any association do not contain an arbitration clause at all (as claimed by many of sports body's constitutions in Malaysia), the arbitration is optional and may be used if both parties consent (see Stevenage Borough FC Limited v The Football League Limited [1997]) 

4. The intention of writing is not to criticize any association. The sports association should understand that despite the ambiguous interpretation of arbitration clause, the rule is conceptually distinct from a right of appeal against a decision of the lower organ (disciplinary committee). And yet the internal appeal still does not involve recourse to any external body that may expose them to any strictures.  

5. And most important, a right of appeal merely provides for a second tier ruling, derived from autonomous authority within the association. Nobody looses...

SportslawMalaysia 

Olympic Games: Ambush marketing, Issues and Defences

1.  The eligibility criteria for each member of NOC's team (OCM) are set out in the Olympic Charter. A competitor, coach, trainer or team official must not only respect the spirit of fair play or/and observe the regulation in the World Anti-Doping Code, but to disallow his/her image to be used for advertising immediately before, during and immediately after the Games without prior approval .

2. This ensures real exclusivity for the official marketing  partners of the Games. Olympic imagery and assets are carefully controlled and regulated. Only those sponsors known as The Olympic Partner Programme (TOP) have the worldwide rights to use Olympic rings and imagery. However, IOC also in the past has created another category of sponsor known as International Sponsors. These sponsors have similar rights but limited to selected NOCs territories only. Organiser and NOCs share in the revenues and deals (see Olympic Charter, bye laws 2.2.2.; Host City Contract, clause 48(e).

3. Why this? To combat ambush marketing. Ambush marketing occurs when a company or firm claims an association with the Olympic Games, which it does not have / sponsor / partner. This causes confusion in the minds of customers, prejudices to the Organiser and will make those TOP and International Sponsors get angry. Ambush marketers (parasite) claim a false association in many ways. Examples are (1) unauthorised use of intellectual property rights (2) advertising (3) broadcast sponsorship (4) pourage agreement and (5) corporate hospitality and ticketing.

4. I may say compared to Olympic Beijing 2008, London 2012 works smarter. Instead of sing up for Nairobi treaty to protect Olympic symbol, UK government enacted the Olympic Symbol (Protection) Act 1995 - OSPA. And to specifically address ambush marketing activities, a new law known as London Olympic Games and Paralympic Games Act 2006 (LOGPGA) was introduced.

5. What I want to emphasize in this blog is not the detail description of the LOGPGA. The first issue is about athlete’s contractual conflict. Athletes normally were insisted to wear sportswear suppliers or equipment or to visibly appear in advertising slots of sponsors appointed by NOC. And even during the competition, the athletes must wear at least sponsors logo and NOC emblem. But this leads to the situation which contradicting with the Olympic Charter. However, at the same time, refusing to wear or appear in sponsor’s advertisement may put the athlete in breach of his/her athlete’s individual contract.

6. I believe this suppose to be a well settled issue. Since 1997, these rules have been set for every edition of Olympic Games. There is a consultation between IOC and the World Federation of the Sporting Goods Industry about the matter. The reason why we do not know is either the non-intervention of OCM in athletes' individual contractual deal or the misappropriation of good intention of Malaysian sponsors towards the Games (especially without proper research). Take note that athletes cannot report his winning or act as journalists without the permission, or even blogging during the Games. This may also consider as a breach under by law to Rule 49, Olympic Charter. Strict maaa...

7. The next issue is defence. (Please read Adam et al., Sport: Law and Practice, 2008 for detail).We have to consider many aspects, for example burden of proof, concept of 'association' and whether or not a ‘commercial’ or ‘contractual’ relationship exists. Normally the ground of defence is whether 'honestly made statement' are really confusing, misleading or used in the context of the Games. And there are exceptions too. For example advertisement which are presented as a report or information on the Games, or product representation, design rights or registered trademarks which have been made continuously since prior of the Olympic.

8. Whatever exceptions or defences available, it is all about sports legal education. The law means to regulate and not means to be manipulated.

SportslawMalaysia

Duty to act fairly - hearing process

1. In unincorporated sports association, members are governed by its Constitution and by-laws (Rule). However, the principle of natural justice is still applied to any accused members. Members of the sporting association could not arbitrarily be expelled or suspended without first being given a hearing, for their contracts of membership included a duty to act fairly.

2. In discussing the principle of natural justice in hearing process, we will consider a few issues:

(a) the objection on the ground of  likelihood of bias against the chairman / appointed Disciplinary Committee. A person who is appointed as chairman must objectively, fairly and impartially deal the matter brought before him. The universally accepted principle is that a person acted in a quasi-proceedings must be able to act above suspicion of unfairness. What account to suspicion of unfairness? (i) his past relationship (ii) feeling of bias or animosity or (iii) relevant circumstances from the available evidence or knowledge of which would not necessarily be available.

Read:

Darshan Singh v Farid Kamal Hussain  [2005] 3 MLJ 502;

Andhra Pradesh State Road Transport Corporation v Satyanarayan Transporters AIR 1965 SC 1303
Franklin v Minister of Town and Country Planning [1948] AC 87

(b) If the appointed chairman of disciplinary committee is also the same person to hear an appeal hearing. The chairman  or any disciplinary committees had shown active participation in the disciplinary proceedings. The general principle is the complainant or prosecutor should not participate in a decision or in an appeal from a decision, and should not even appear to participate; to do so would be contrary to the rule of natural justice.

Read:

Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487

Rattan Lal Sharma v Managing Committee AIR 1993 SC 2155

Collins v Lane, Cornish and Worcester Norton Sports Club Ltd [2003] LLR 19

(c) The failure of the Disciplinary Committee to provide full report of its decision. This constitutes breach of natural justice. The report must be made available in order to answer any allegations against the accused.

Read:
BSS Kanda v Government of the Federation of Malaya [1962] MLJ 169

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.

SportsLawMalaysia

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.

Whose Responsibility? Weakness in coaching education and sports medicine

Read:

pelajar mati main bola;

pelajar tahun 3 maut;

pelajar maut disambar petir;

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.

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

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?

How do you define sexual harassment in sports?

The Court of Appeal released out Ramanathan (former athletics coach) yesterday after he had served 10 months in Kajang Prison. He get one-third remission for good behaviour, however will lose his pension - as reported by NST, 22 Sep, p. 8. In his statement after the release " It was only a sports massage. I have been successful with athletes as this was part of the preparation to keep them injury-free".

Do general institutional sexual harassment law/policies applicable to sporting activities?

Section 509 of the Penal Code is the only section protecting the modesty of a person, thus restraining the element of sexual harassment from occurrence. It stated that ‘whoever intending to insult the modesty of any person, utters any word, makes any gestures or exhibits any object, intending that such words or sound shall be heard, or that such gestures or objects shall be seen by such person as intruding upon the privacy of such person shall be punished with imprisonment for a term which may extend to five years or with fine, or with both’. 

The legal concept of sexual harassment is far from clear. Based on the second limb of the section, it is obvious that the victim will not report a problem unless they perceive the behavior as offensive. The wording of section 509 of the Penal Code is so general and not referring to workplace only. However, the nature of sporting activities and relationship between coach-athlete creates unique and different environments. The physical nature of sports that involves bodily contact is entirely accepted. For example stretching and massaging or rubbing stiff muscles are totally unaccepted in the school or workplace but common for athletes.

What say you?

Regards

SportsLawMalaysia.

negligence or ignorance?

"KLANG: A standard five pupil of Sekolah Kebangsaan Kampung Jawa 2, here died after being hit by a falling goal post when playing football at the school field yesterday evening. The victim, Muhammad Fakhrul Amin Abdul Rahman, 11, suffered severe bleeding and a cracked skull in the incident at 6pm." - Bernama.

This is not a new story about our young talents. Previously, it happened to Julli Sari Osman from Sek. Menengah Kebangsaan Muadzam Shah and R. Vijian from Sek. Menengah Triang. The legal issue here is whether such incidents is merely accident or negligence?

For the intro, let's briefly talk about the circulation of safety guidelines by the Education Ministry - KP (BS) 8591/Jld.VIII(84), issued since April 6, 1995 to ensure proper safety measure. This circular tell of measures that should be taken in and outside the classroom..and the responsibility for the storage and use of equipment. This circular goes unread and unheeded. The one who then will receive blame is teacher..and school ...and sports education system. NUTP will come up with comment and condemn. Sports minister will defence his dept as not liable but denote and declare more guidelines. Safe school manual and more directives will be issued that cover various safety aspect..water safety, rock safety..hill safety..far outside the boundaries of school compounds. Nothing happen later till the story of pity repeats once again...another student dies..

Why?

The right of safety and sports protection is not directly under national law. We do have Children Act, Education Act and Human Rights Act that talk about who is children and their protection...but no special act talk about sports safety and co curriculum activity. The government apply the non-interventionist approach when we talk about sports and pastimes activities. The damages of injury in sport-school related cases fall under the stream of negligence (Tort). However, courts have been reluctant to hold school and education system liable in negligence. The court felt 'it is no way that a teacher can give a personal attention to every student all of the time'. What more if there is 'no duty' to supervise and you played football alone at 6 pm after school time. Thus, most of the Malaysian case is reported as 'accident'. 

So?

If there is no duty, the question of breach is moot. Actionable duties must compliment. Insurance covering and inspecting the equipment is no more optional. Check whether any potential precaution measure reasonbly taken care of, or any proximate cause available for tortious action. It is timely we change the direction and perspective. The current legal action concentrate on product liability. Make it double, school failed to supervise and failed to supply effective equipments. School ordinarily have a duty to provide proper equipment, they owe a duty to their students (even out of school activities) to use reasonable care to inspect and maintain its equipment and to protect its student from any unreasonable risk of harm. School have a duty to maintain reasonably safe facilities. The failure to maintain is the proximate cause of negligence. If parents believe "Allah lebih menyayanginya - God loves him more", actually, they are not resting him in peace.

In the near future, I guest the facilities in school also administered under OSHA (Occupational Safety and Health Act 1994) that require teachers to maintain the workplace and the sports equipement used to ensure proper safety as enforced by the law. Who knows? Malaysia still 'boleh'.

Regards.

Sports Law in Malaysia

The new standpoint, better prospect...

Orang2 Jepun percaya kepada 3 kuasa...pedang, emas dan cermin. Ketiga2 nya mempunyai ide yang tertentu. Pedang bermaksud senjata atau kuasa yang bersifat kekuatan dan kejayaan. Emas bermaksud kekayaan dan orang yang mempunyainya mewah kehidupan. Cermin bermaksud self-knowledge, berilmu dan mereka disanjung tinggi. Kombinasi ketiga2 nya akan menjadikan seseorang itu bukan sekadar berjaya dalam hidup tapi boleh menguasai masyarakatnya.

My point simple jer..Atlet memiliki dua daripadanya tapi tidak semua mampu memiliki kuasa yang terakhir. Dengan skill kemahiran yang tinggi, mereka mencipta nama dan rekod kejayaan. Justeru mudah mendapat kekayaan melalui hadiah kemenangan. Tapi adakah mereka bijak menggunakan kekuatan dan kekayaan mereka. Saya masih ragu. Dan kerana itulah, saya ubah sedikit perspektif Blog Atlet ni..