Transcript FoI or DPA? - Northern Ireland Sports Forum

Corporate Governance in Sport
Sport and the Law
•O’Reilly Stewart Solicitors
•Northern Ireland Sports Forum
•5th November 2009
Corporate Governance in Sport
Corporate
Governance in Sport
•Linus Murray
•Northern Ireland Sports Forum
•5th November 2009
Non Incorporated Clubs
and Governing Bodies – the Risks
 Breach of Contract.
 Occupier’s Liability.
 Employees.
 Funding prospects.
What is a Company Limited
by Guarantee?
 A private limited company separate from its officers and members.
 No shares or shareholders, rather there are members who act as
limited guarantors of the Company’
 Each member’s guarantee may be limited to as little as £1.
 Profits or funds raised are not distributed to the members but are
retained to be used for the purposes of the Company.
Advantages of Incorporation
 Attractiveness to funders – e.g. Sports Council NI.
 Personal Liability of members is limited – breach of contract,
debts, employees, occupiers liability.
 Property – legal ownership lies with the Company. No transfer of
Legal Title required when members, trustees etc retire or leave the
organisation.
 Rights and responsibilities of members/directors are clearly
defined.
Disadvantages of Incorporation

Set-up costs – including drafting of tailored memorandum and
articles of association.
 “Red Tape” – additional administrative obligations such as filing of
Annual Returns at Companies Registry.
 Officers of the Company must be aware of potential liabilities if act
improperly.
 Stationery (letters, notices, invoices etc) of the incorporating body
must be altered to include statutorily required information.
Director’s Duties
The Companies Act 2006 has placed the duties directors owe to
their companies on a statutory footing. All those intending to act
as directors should be aware of the 7 statutory duties:
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Duty to act within their powers and use their powers only for the
purposes for which they were conferred;
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Duty to promote the success of the company for the benefit of its
members;
 Duty to exercise independent judgement;
Director’s Duties (continued)
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Duty to exercise reasonable care, skill and diligence;
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Duty to avoid conflicts of interest;
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Duty not to accept benefits from 3rd Parties; and
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Duty to declare any interest any interest in a proposed transaction.
Director’s Potential
for Personal Liability
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Wrongful Trading
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Fraudulent Trading
Practical Steps to Incorporation
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Memorandum and Articles of Association to be drafted, tailored
specifically to the needs of the club or governing body
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Rules of the club or body to be drafted or redrafted as required
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Incorporate by submitting all the necessary documentation to Companies
Registry
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Deal with the transfer of any property, employees or other contracts to the
new company
Employment
and Sport
Shauna McAleese
Northern Ireland Sports Forum
5th November 2009
Employment Status
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Employee – defining features
Self Employed
Volunteer
Commencing Employment
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Contract formed – whether in writing or not
Employee rights
Written Statement of Employment Particulars
Staff Handbook and Policies
Advantages
Cannot change terms of contract without an
employee’s consent.
Statutory Disciplinary Procedure
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Write to the employee informing of allegations
and invite to a meeting.
Inform of the basis of the allegation before the
meeting. Employee right to be accompanied.
Inform of decision.
Right to appeal. Hold appeal meeting. Inform of
decision.
Statutory Grievance
Procedure
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You get grievance in writing.
You should invite to the a meeting to discuss.
Employee right to be accompanied. Inform of
decision – in writing.
Right to appeal outcome. Hold appeal meeting.
Inform of decision
Statutory Dismissal
Procedure
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Same as statutory disciplinary procedure.
Give reasons for dismissal in writing.
Failure to follow procedure – can lead to a finding of
automatic unfair dismissal.
Labour Relations Agency have a Code of Practice in
relation to these statutory procedures. If not followed,
can be taken into account at a tribunal.
See http://www.lra.org.uk under the Publications
section.
Employment Claims
• Unfair Dismissal – 1 year. Employer must show
reason for dismissal was fair:
- Capability
- Conduct
- Redundancy
- Contravention of a duty or restriction imposed
by or under an enactment
- Some other substantial reason
• Some dismissals are automatically unfair
Employment Claims
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Constructive Dismissal – 1 year service
Discrimination – Age, Sex, Race, Disability,
Sexual Orientation, Religion – No length of
service requirement.
Breach of Contract – unpaid wages, holidays,
notice pay, redundancy pay.
Transfers – be aware of Transfer of Undertakings
Protection of Employment Regulations (TUPE)
especially if incorporating.
Key points
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Keep records – audit trail – evidence at tribunal
Get Legal Advice at the right time
Follow Statutory Procedures
If you have Company/Club procedures –
1. Make sure they comply with the law – get
updated if necessary.
2. Follow them
Child Protection in Sport
Child Protection in
Sport
•Tom Anderson
•Northern Ireland Sports Forum
•5th November 2009
Framework
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United Nations Convention on the rights of the
child 1989
Children (NI) Order 1995
Protection Of Children and Vulnerable Groups
(NI) Order 2003
Human Rights Act 1998
Safeguarding Children
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Children have the right to have fun and be safe when
engaging in sport.
Child Protection is about best practice.
Be realistic, exercise common sense
Be aware
Be able to recognise and respond to child protection
concerns
Have an understanding of how best to address
safeguarding issues and what steps to take
Recruitment
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Confirm their identity
Ask how they think they can contribute to the development of the Club
Obtain written qualifications
Obtain 2 references
Obtain vetting
Set if possible a trial period
The Club should provide support for Coaches and members alike
Codes of Conduct for
Coaches/Volunteers
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Respect the rights and dignity of every person equally within the Club
Obtain up to date coaching qualifications and hold appropriate insurance
cover
Be an excellent role model, no smoking, drinking, bad language
Work in an open environment avoiding private or unobserved situations
Maintain safe and appropriate distance with players
Make training, coaching fun and fair
Involve the parents/guardians wherever possible
Give enthusiastic and constructive feedback
Keep a written record of any injury that occurs and notify the
parent/guardian
Challenge bullying in any form
Defining the problem
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Physical abuse
Emotional abuse
Neglect
Sexual abuse
Mixture
Recognising and Responding
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Physical Abuse is deliberate
Physical injury eg hitting, shaking, confinement, inappropriately giving
drugs
Emotional abuse is persistent emotional ill-treatment causing severe and
persistent adverse effects on the child’s emotional development
It may involve conveying that the children are worthless or unloved.
Children should feel secure and involved.
Neglect - persistent failure to meet a child’s physical and/or psychological
needs resulting in significant harm to the child eg: failure to provide
proper food/shelter and clothing, lack of stimulation or lack of supervision.
Sexual – Forcing or enticing a child to take part in sexual activities which
may involve physical contact or looking at pornographic material or
encouraging the child to behave in a sexual inappropriate way
Responding to Concerns
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There is a responsibility on the Club to protect children in order that the
appropriate agencies can make enquires once the disclosure has been
made to the designated Officer within the Club
Good Practice
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Club should have a written Constitution
Club should have a Child Protection Officer and Complaints procedure
and Code of Conduct to deal with disclosures and misconduct issues
Club should have a disciplinary procedure and disciplinary committee
which can refer the case to an outside agency
Policy statement which is Child centred
Recording procedures and pro-formas to deal with recruitment and
training
Access NI disclosure Certificate application form
Key Responsibilities
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To devise, implement and review policies and procedures to safeguard
children and maintain standards
To exercise good practice
To report concerns
To safeguard the welfare of the child
To discharge your duty of care
Vulnerability of those with
a disability
It is recognised that Children with a disability:
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Have the same needs and require the same safeguards as all children
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But may also have additional needs associated with their disability which
may increase their vulnerability to abuse
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They are often dependant on adults
Remember
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It is not your responsibility to decide whether abuse as occurred
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It is your responsibility to act if you have concerns
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NSPCC Helpline 0808 800 5000
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Child Protection in Sport Unit 028 90 351135
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Childline 0800 1111
www.oreillystewart.com
Volenti Non Fit Injuria
“To a willing person no injury can be done”
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Basic principles of Negligence;
1.
Duty
2.
Breach
3.
Damage
Donoghue v Stevenson [1932]; Per Lord Atkin:
“persons who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so
affected”
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Sporting Context – Volens to the risk?
Volenti Non Fit Injuria
“To a willing person no injury can be done”
KEY FACTORS : Caldwell v Maguire and Fitzgerald [2001] PIQR 45
1.
2.
3.
4.
Each contestant owes a duty of care to each and all other contestants
That duty is to exercise all care that is objectively reasonable in the
prevailing circumstances for the avoidance of injury to fellow
contestants.
The “prevailing circumstances” include the sports object, the demands
made upon contestants, inherent dangers (if any), rules, conventions
and customs, and the standards, skills and judgment reasonable to be
expected of a contestant…
Given the nature of such prevailing circumstances the threshold for
liability is in practice inevitably high; the proof of a breach of duty will not
flow from proof of no more than an error of judgment or mere proof.
EXAMPLES
FOOTBALL
 Condon v Basi [1985] 1 WLD 666 CA - “by engaging in a sport… the
participants may be held to have accepted risks which are inherent in
that sport…but this does not eliminate all duty of care of the one
participant to the other.”
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Paul Marcellis Elliot v Dean Saunders & Liverpool Football Club [1994]
– Mistimed tackles or errors of judgment are part of the game.
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Ben Collett v Gary Smith and Middlesbrough Football and Athletics
Company [2008] EWHC 1962 (QB); Contrasts the above, Injured party
awarded £4.5 million in compensation.
www.oreillystewart.com
EXAMPLES
RUGBY
•Smolden v Whitworth & Nolan [1994] – referee negligence,
collapsed scrum
•Vowles v Evans and the Welsh Rugby Union [2002] - as above
•Rougerie v Greening & Wasps [2007] - Conduct outwith the
laws of the game
www.oreillystewart.com
Vicarious Liability
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Doctrine of vicarious liability provides that the employer of a
Defendant is liable for the Defendant/Employee’s tortious actions if
they are performed during the course of employment.
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A vicarious liability claim is limited to its reliance on the contract of
employment regarding professional players employed by a sports
club to play sport.
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Three stages of vicarious liability:
1. The Defendant/employee must have committed an actionable
tort.
2. The employee is employed by the employer.
3. The tort is to have been committed during the course of
employment.
Vicarious Liability
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In sport an employer/ governing body may be held liable if an employee performs
an authorised act in an unauthorised way.
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A club will not be held to be vicariously liable if an act is performed out a personal
vendetta.
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A club may be held liable for an assault if it thrown as part of a “melee of the kind
which frequently occurs during rugby matches” even though it happened after the
whistle had blown.
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For participants in unpaid sports this cause of action will not be available.
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Referees may be held vicariously liable incidents which occur during a game
Occupiers’ Liability
STATUTORY OBLIGATIONS
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Occupiers’ Liability Act (NI) 1957
Operates with respect to lawful visitors to the Defendant’s premises
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Occupiers’ Liability (NI) Order 1987
Governs liability to non-visitors ie trespassers
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Wheat v E Lacon & Co Ltd [1966] AC 552 HL
The test is whether a person has some degree of control associated with and arising from his
presence in and use of or activity in the premises. There may be two or more occupiers
simultaneously and exclusive occupation is not required.
Duty of Care
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Section 2 Occupiers Liability Act (NI) 1957
Not an absolute duty. Take such care as in all circumstances of the case is reasonable to
ensure that the visitor will be reasonably safe in using the premises for the purposes which he
is invited or permitted by the Occupier.
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Breach of the Occupiers duty under the Act where the occupier is using the premises for his
business will give rise to liability. Granting access to premises for educational, recreational use
is considered for the business purpose of the occupier.
Caparo Industries Plc v Dickman [1990]
‘…there should exist between the party owing the duty and the party to whom the duty is owed,
a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the
situation should be one in which the court considers it fair, just and reasonable that the law
should impose a duty…’
Duty of Care
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Cunningham and others v Reading Football Club [1991]
Judge Drake held that, ‘…those who control football grounds remain under the clear duty to
take such steps as are reasonable in all the circumstances to see that lawful visitors to their
grounds, spectators and others alike, will be reasonably safe in those premises.’
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Williams v Cardiff Corporation [1950]
Higher standard of care in relation to children and children/young adults with disability. Regard
must be had to the physical and mental powers of the child visitor. For what is not a danger to
an adult may well be a danger to a child.
Case Law – Duty of Care
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Occupier does not escape liability for dangerous hazards on his premises by
handing over control of the premises to another.
Glenie v Slack & anor [2000] unreported
Owner of racetrack handed over control of circuit to promoter. However occupier
held liable for dangerous hazards construction of the race track which breached
the sports governing body's safety records
Davis v Feasey & anor [1998] unreported
Motor track designed by defendant, claimant suffered injury at corner. Judge ruled
that Defendant owed duty of care. That injury sustained was a result of the poor
design of the race course, and that this danger was reasonably foreseeable.
Simple steps should have been taken to prevent hazard.
Case Law – Duty of Care
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Gymnasia/Sporting Equipment
Duty of Occupier is to provide equipment, floor space etc which is reasonably safe in the
circumstances. Gilmore v London City Council [1938]
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Swimming Pools
Ensure pool of appropriate dimensions – O’Shea (1995)
Depth clearly marked and identifiable – Banks v Bury Borough Council (1990)
Subject to regular cleaning which meets manufacturers standards – Taylor v Bath and North
East Somerset District Council (1999) unreported
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Sports Pitches
Dibble v Carmarthern Town Council (2001)
Goalkeeper settled claim after suffering horrific burns from pitch markings when dived to make
save.
Cook, Cochrane and Hampson v Doncaster Borough Council (1993)
Jockeys made claim for injuries resulting from defect in race track which caused horses to
stumble and fall
Safety of Sports Grounds
(NI) Order 2006
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This legislation created the provision that a
Safety Certificate must be issued by the local
Council in relation to large sports stadia.
Each Certificate may specify the maximum
number of spectators, the size of the grounds,
entrances and stands etc.
Each Council to inspect each sports ground
individually to identify requirements
Supervision and Warnings
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Occupiers can protect themselves from liability by the use of
warnings.
Section (4) Occupiers’ Liability Northern Ireland Act 1957
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Inadequate supervision will place occupier at risk
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Clear and unambiguous warning of dangers must be given and
appropriate instruction as to how hazards should be approached
Conclusion
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Occupiers – local authorities, clubs, owners
have wide range of responsibilities
Liability in respect of accidents occurring within
a sporting area has potential to be enormous
Must avoid liability by ensuring the facilities are
of high quality and that advice provided by
Manufacturers, health and safety executive
and sports governing bodies are strictly
adhered to.