Sport is a key part of kiwi culture. Professional sporting bodies, (NZRU or SPARC for example) are well equipped to deal with breaches of sporting code or employment issues however, amateur sporting clubs are often ill prepared to deal with instances which require club member’s, club employees, players or athletes to be a party in the disciplinary process. This article looks at the interface between employment and sports law with particular focus on disciplinary issues. Club structure in New Zealand is discussed, highlighting the difference between internal and external discipline with a recent case as an example.
Club Structure in New Zealand
Research by Lawlink found the most popular structures for sporting clubs are either an incorporated society or a charitable trust. An incorporated society is a group or organisation that has been registered under the Incorporated Societies Act 1908 and, when incorporated, is authorised by law to run its affairs as though it were an individual person. One of the essential requirements of an incorporated society is the need for a governing set of rules (also known as a constitution) to be adopted. The club can then only act in accordance with its own rules.
In comparison, a charitable trust is specifically set up to hold and protect assets for charitable purposes. It can be set up to aid in the relief of poverty, the advancement of education or religion, or any other matter for public benefit. This includes amateur sporting endeavours.
Internal disciplinary matters require a careful consideration of the club’s rules in conjunction with the individuals employment agreement. The rules should ideally contain provisions which:
- set out the conduct required of employers, members and athletes (code of conduct);
- set out a complaints process; and
- set out the disciplinary process to be adopted once a complaint has been received.
The club should deal with any complaint in a manner which is procedurally fair and balanced. The club must observe the principles of natural justice unless expressly excluded by the rules.
Natural justice considerations will vary depending on the particular circumstances; however, the following issues should be considered when drafting a complaints process or dealing with a complaint:
- the member complained about (respondent) should be given reasonable notice of the complaint including full details of the offending conduct;
- the respondent should be given reasonable time and a fair opportunity to defend any complaint made against them;
- a hearing must be conducted in a fair and unbiased manner including allowing the respondent to hear the complaint and all supporting evidence in full;
- the member who has laid the complaint must not form part of the disciplining body;
- the respondent must be notified of the outcome; and
- the respondent must be notified of any appeal rights.
The rules should cover such issues as:
- who can complain about a member; for example, just members or the wider public?
- does the complaint have to be in writing?
- can the disciplinary body refuse the complaint and/or how long after accepting the complaint should the respondent be notified?
- how long does the respondent have to respond to the complaint – does it have to be in writing?
- who are the members of the disciplinary body?
- should a hearing take place in person or should it be conducted on written submissions alone?
- what penalties are the disciplining body able to impose?
- how long does the disciplining body have to release a decision?
- should the decision be notified to the wider membership and how should records be maintained? and
- do the parties have any appeal rights and, if so, what are they?
The more prescriptive the process, the less room for error or ambiguity and the less chance the club’s decisions can be challenged. The downside to that is losing flexibility which can be very useful in a club setting. Alternatively, the club can adopt a disciplinary process that affords the club the flexibility to deal with complaints as it sees fit. Club members should have access to the club’s disciplinary policies so they can familiarise themselves with them.
A failure to follow the rules opens the decisions of the club up to judicial review by the High Court, potential court action by members against the club for breaches of contract (the rules are arguably a contract between the club and its members), or investigation from the Registrar of Incorporated Societies for breaches of the rules (although this appears to be rare).
Affiliation by a club to a governing sport’s body (regional or national) may bind the club to that governing body’s rules. For example, amateur football clubs which participate in football leagues administered by the Waikato Bay of Plenty Football are bound by Waikato Bay of Plenty Football’s rules.
Care should be taken to ensure that the club’s rules align with those stipulated by the governing body.
If a member or the club is required to take part in a disciplinary process initiated by the governing body, the club should familiarise itself with the disciplinary process to be followed. It may be helpful to nominate a club member, or sub-committee in larger organisations, whose role is to familiarise themselves with disciplinary processes and to be the main point of contact if disciplinary issues arise.
The club should consider whether the complaint is serious enough that it warrants obtaining legal advice. That will require consideration of the nature of any allegation against the member/club, the potential penalty, the publicity that may flow from the complaint, and the need for protection of the club and/or its members.
Shelley v Waitakere United Inc  NZERA Auckland 358
Shelley claimed he was unjustifiably dismissed by his former employer, football club Waitakere United Incorporated (the Club). Shelley played football internationally and coached in Australia. He initially moved to New Zealand after being approached to play for the Club’s premier team. The Club are a large football franchise with eight stakeholder clubs operating in West Auckland. The Club’s premier team plays in the New Zealand ASB National league.
The Club’s premier team finished in the top four teams in both 2013 and 2014 seasons and qualified for the play-offs although some saw this as a decline from previous achievements. Shelley was the joint coach for the first year and sole coach for the second year. The 2015 season commenced with the premier team losing against Auckland City Club, who had just finished third in the Club World Cup. The Club’s team won their second game against a team which was historically lower ranked. The Club then lost their third game to another usually much lower ranked team.
On 24 November, the Club’s board met and there was concern about the team’s season so far. Shelley was not involved in the meeting. The meeting discussed the team’s players, personnel and results to date. On 26 November, the Club’s CEO texted Shelley for a meeting at a hotel, rather than following standard complaint procedure. No other details were provided to Shelley. Shelley considered the fact of the meeting as well as the venue unusual and so called the CEO for the agenda. His reply was simply, “football matters”. At the meeting, in the lobby, Shelley was asked for an account of the season to date and who was responsible for what, which Shelley provided. Shelley was then advised that his employment was terminated with immediate effect. The New Zealand Herald reported on Shelley’s “sacking” later that afternoon.
Shelley was devastated and hurt to be treated how he was. He commented how he had become depressed and disillusioned with the game that he has played all his life. He has completely lost his confidence as a coach and had not been able to put himself back in the coaching environment.
The Employment Relations Authority had to determine if Shelley was unjustifiably dismissed by the Club, and if so, what remedies should he receive.
The Tribunal Member held Shelley did not get advice that the meeting was going to be about him and his employment. Instead, he was advised very broadly it was about general football matters. This was not sufficient for him to know the focus would be primarily on his own performance. He was not sufficiently informed by the Club about the concerns it had and the information or views the Club was relying on. The Club by its CEO, had failed to follow complaint or individual disciplinary process.
The Tribunal consequently awarded Shelley $10,000 as compensation for the unjustifiable dismissal and the humiliation consequently suffered.
To take away
When faced with a complaint about a Club employee or member, a club committee’s first step should be to check the rules (code of conduct or constitution) before making any decisions. The rules should be the cornerstone of the club’s operation and therefore it is vital that they are up to date and are sufficiently broad to deal with issues that each particular club faces.
Every club should review its rules periodically to ensure that the club has sufficient powers to adopt codes of conduct and/or discipline members if required. If a club does not have a code of conduct or disciplinary processes, the club should consider an amendment to the rules, or if the rules already allow it, adopt regulations or policies which deal with those matters.