The subject of discipline in sport is never far from the headlines. Professional sporting bodies are well equipped to deal with breaches of a sporting code’s rules, however amateur sports clubs (clubs) are often unprepared to deal with events which require the club, or a player affiliated to the club, to be a party to a disciplinary process. This article attempts to provide some guidance on how clubs should deal with disciplinary issues.
Status of clubs in New Zealand
According to Sport NZ, the most popular structures for amateur sports clubs in New Zealand are incorporated societies or charitable trusts. Our experience has been that the majority of amateur sports clubs which have adopted a formal structure use the incorporated society model. While this article will refer to clubs using the incorporated society model, the same considerations apply to clubs which operate through a charitable trust structure. Those clubs will have the same obligations but will need to refer to the founding trust deed rather than club rules.
Incorporated societies are established under the Incorporated Societies Act 1908 (Act). One of the essential requirements of an incorporated society is the need for a governing set of rules to be adopted. The Act sets out the minimum requirements for the rules but the rules do not have to include a code of conduct or mandatory disciplinary processes. A club may only operate in accordance with its rules and therefore if the rules do not contain a power to discipline members, the club will be powerless to take any steps to discipline, or remove the member from the membership.
Clubs are generally made up of like-minded people (hopefully!) who share a particular interest whether it be sports, food and wine, or other cultural pursuits. However, it is inevitable that disputes will arise from time to time, either internally between members or externally, and it is important that clubs have sufficient powers to ensure that any dispute can be dealt with quickly and in a robust manner.
Internal disciplinary matters require a careful consideration of the club’s rules. The rules should ideally contain provisions which:
- set out the conduct required of members (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? e.g. 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 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. Care should therefore 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 a disciplinary issues arises.
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.
When in doubt, check the rules
When faced with a complaint about a member, a club committee’s first step should be to check the rules 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.