How to claim against an unincorporated amateur sports club in England and WalesWilliam Clerk
An unincorporated English amateur sports club holds a disciplinary hearing and expels a member for (for example) persistently harassing other members. The member in question is furious; she believes she has been expelled for no good reason and contrary to the club’s constitution. She appeals to the sports club in question, but her appeal is refused.
The question arises – what recourse, if any, does the (ex) member have to the courts of England and Wales?
The Legal Status of the Club
The legal status of the club in this example is an unincorporated association. It is not a legal person, and cannot itself be sued (save for the rare exception where statute provides otherwise).
In relation to third parties, the club (as an unincorporated association) derives its authority (and liability) primarily from the legal rules of agency. Thus, if the club enters into a contract with a third party, the contract may still be enforceable. How it is enforced will depend on what authority the members entering into the contract had from the club. If they had no authority, the contract will be enforceable against them personally. If they did have authority (whether ostensible, actual or implied), the contract will be enforceable against them as co-principals to the contract.1
In relation to its members, the legal relationship is governed by the ordinary rules of contract: the club’s constitution will be construed as a contract between the individual member and the other members.
The Contractual Analysis
The relevance of the contractual analysis is that a member may sue on the contract: she may bring an action for breach of contract against those members of the club whom she alleges have breached its terms (i.e. who have acted in breach of the constitution).
The most obvious example of such a claim is exactly the example we are considering here - where a committee has expelled a member of a club (allegedly) contrary to the terms of its constitution.
So far, so simple: a private law action for breach of contact may, as a matter of principle, be brought before the courts in this jurisdiction for breach of the constitution. But what are the limits of such an action?
Claims for Breach of Contract
The leading case in this area is Lee v. Showmen’s Guild of Great Britain,2 in which Denning LJ (as he then was) examined the question in the context of a trade union (itself an unincorporated association) and concluded as follows (at 341-342):
“the power of this court to intervene is founded on its jurisdiction to protect rights of contract. If a member is expelled by a committee in breach of contract, this court will grant a declaration that their action is ultra vires.”
Any claim for breach of a constitution must properly be framed within this contractual analysis: the disgruntled member must claim for breach of an express or implied term of the constitution and show that the same has caused her loss. The most common claims are:
- Breach of express terms of the constitution – i.e. where a member has been expelled by an improperly constituted committee under the rules (Young v. Ladies’ Imperial3).
- Breach of an implied term to uphold the rules of natural justice in disciplinary proceedings – i.e. where a member has been expelled without notice or any adequate hearing (Lawlor v. Union of Post Office Workers4).
Breach of Express Terms
In the context of express terms, the analysis is straightforward: the court will see that members adhere to the rules of the constitution. If they have not, the court will adjudicate upon the claim for breach of contract as it would in any other context.
Thus, in Young v. Ladies’ Imperial Club Ltd, where a member had been expelled following an improperly convened meeting, the court held that this constituted a breach of contract. Accordingly, the resolution to expel the member was declared ultra vires (i.e. unlawful for the reason that expulsion was beyond the powers permitted under the constitution).
The courts have made it clear that, in the context of disciplinary proceedings, they will not consider findings of fact made by domestic tribunals i.e. amateur club committees. They will only consider questions of law, such as whether the constitution was adhered to – including questions of construction concerning the constitution itself (Lee v. Showmen’s Guild of Great Britain; Barker v. Jones5).
Further, it is clear that clubs may not oust the court’s jurisdiction by purporting to exclude it under the terms of the constitution (Enderby Town Football Club Ltd v. Football Association Ltd6):
- In Enderby, the club had been fined by an FA affiliated county association. The club appealed against the fine, first to the FA and then through the courts. The FA’s rules at the time excluded legal representation for the club (with certain limited exceptions), and provided that legal proceedings could not be brought without the consent of the FA.
- The club challenged these rules through the courts. The challenge to the rule excluding legal representation failed. The challenge to the rule providing that proceedings could not be brought without the consent of the FA succeeded in the Court of Appeal.
- In a typically forthright dictum, Lord Denning MR, stated unequivocally that “if [governing body regulations] seek to oust the jurisdiction of the court, they are invalid”. Accordingly, the FA rule preventing the club from bringing an action in the courts without the FA’s consent was “plainly invalid” as it sought to oust the jurisdiction of the court.
Breach of Implied Terms – Natural Justice?
In the context of implied terms, the analysis is more nuanced. It is commonly argued that, in relation to disciplinary proceedings, a requirement to observe the principles of natural justice is to be implied i.e. the disciplinary tribunal must not be biased and must ensure procedural fairness so that the member is given a fair hearing.
However, the case law in this area is equivocal at best:
- On the one hand, the courts have expressed a willingness to imply terms requiring the principles of natural justice to be upheld in expulsion procedures. For example, in Lee v. Showmen’s Guild, Denning LJ (as he then was) stated the following:
“On any expulsion [the courts] will see that there is fair play. They will see that the man has notice of the charge and a reasonable opportunity of being heard. They will see that the committee observe the procedure laid down by the rules; but they will not otherwise interfere” (at 343).
The twin roles of the court set out within this dicta, to (a) see that the procedure within the constitution is followed; and (b) to see that there is “fair play” are plainly separate. This suggests that the courts may imply a term of natural justice into club constitutions.
- On the other hand, the courts have drawn a distinction between those cases concerning a member’s livelihood and/or property (as in the case of a member expelled from a trade union), and those cases involving social clubs. As stated by Megarry J in Gaiman v. National Association for Mental Health:
“The mere membership of the association, involving no real interest in property, and no question of livelihood or reputation, does not seem to me to be prima facie a matter in respect of which there is any strong claim to have the principles of natural justice applied” (at 337).7
The question of whether and in what circumstances the principles of natural justice will apply in the context of amateur sports clubs is an open question, and one not conclusively determined by authority. Each case will turn on its facts.
Perhaps the most that can be said is that the principles of natural justice are more likely to be implied into an amateur sports club’s constitution where the gravity of its decisions and the effects are serious.
At first blush, it seems that the courts have a wide jurisdiction over disputes such as this example. However, the courts have been careful to circumscribe their jurisdiction over these claims in order to avoid members bringing public law actions (i.e. claims for breach of natural justice in judicial review proceedings against public bodies) by the back door, that would otherwise not be available to them.
Returning to our example, the member in question may theoretically bring a private law claim for breach of contract before the courts for breach of the sports club’s constitution.
In conclusion, when advising on this type of claim, practitioners should be wary not to conflate public law actions with private law actions, and should consider the following:
- A claimant is more likely to succeed in a claim for breach of an express term of the constitution than breach of an implied term.
- Whether she can imply a term requiring the principles of natural justice to be adhered to into constitutions of amateur sports clubs remains to be seen, and must be tested before the courts.
- In the context of increasing “lawyerisation” of sports, it may be argued that the courts should be slow to imply terms into amateur sports club constitutions that would potentially increase the liability of committees and broaden the remedies that a disgruntled member may have.
- On the other hand, it may be argued that where even amateur sports clubs wield significant power that can adversely affect individual members, it is more crucial now than ever that the courts are prepared to exercise their supervisory jurisdiction and that individual members’ rights are robustly protected.
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About the Author
William is a barrister specialising in civil and commercial law at 2 Temple Gardens (see https://www.2tg.co.uk/barristers/profile/william-clerk). He is rapidly developing a busy sports practice with a strong focus on the commercial, disciplinary, and regulatory aspects of sports disputes across all major sports. He is frequently instructed to advise on the interpretation and application of sports bodies’ regulations.