Sporting and recreational clubs

As a group, sporting and recreational clubs represent the largest number of associations incorporated in Western Australia.  They vary in size and complexity, and offer a diverse range of competitive, recreational, professional and amateur activities.  This chapter provides an overview of some of the issues that concern sport and recreational associations.

Key Points

  • Incorporated associations are required to have a set of rules that comply with the Associations Incorporation Act 2015.  These rules are often referred to as the Constitution.  Additional rules can be included in a set of by-laws.
  • It is compulsory for incorporated associations to keep an up-to-date register of all its members, including children.  The register must be made available to association members for inspection upon request.
  • A priority for sport and recreational associations is to ensure that safety rules and procedures are implemented and to be protected against liability.  It is very important to ensure that all members and participants are fully informed of the safety rules and requirements.
  • Parents must give their consent, preferably in writing, for children to participate in sports and recreational activities.
  • Sport and recreational associations must ensure that they have adequate insurance.

Eligibility for incorporation

Sport and recreational groups that intend to operate as not-for-profit associations are generally eligible for incorporation under the Associations Incorporation Act 2015.  This does not mean that sports clubs cannot sell club merchandise, charge admission fees for sporting fixtures, or make a profit from their activities.  No proceeds may be distributed to the members or former members of the club.

Rules of association and by-laws

All groups applying to become an incorporated association are required to adopt and submit a set of rules of association (also known as the ‘constitution’) to Consumer Protection. 

The rules of association regulate the overall management of the incorporated association.  These rules provide for matters such as management committee elections, meetings and financial records, amongst others.  The minimum matters that need to be dealt with in the rules are prescribed by the Act.

Significantly, an association’s rules may only be amended by means of a special resolution of the members. 

However, an associations will often have additional needs and requirements that are specific to its organisation and day-to-day management that might also be included in its rules.  To keep the rules of association simple and manageable, sporting associations in particular, often find it easier and more efficient to set up these additional rules as by-laws.  

By-laws are secondary rules that expand on the rules of association and cover non-administrative matters that do not need to be included in the rules of association.

Typically, by-laws might deal with matters, such as the following:

  • club colours
  • uniforms and dress codes
  • competition rules
  • sporting fixtures
  • player eligibility
  • selection of players
  • coaching regulations
  • awards
  • supply of liquor
  • a code of conduct
  • tribunals

In order for by-laws to be lawfully effective the rules of association should include a simple clause, referring to the addition and amendment of by-laws.
  
For example:

The management committee shall have the power to make, alter and rescind any by-laws that it considers necessary for the effective administration of the association, provided that no by-law may be inconsistent with the rules of association.

Authorising the committee to make and change by-laws means they can be kept relevant and current without the need for approval by members at a general meeting.  It is important that members are kept informed of any amendments – no less frequently than at each Annual General Meeting.  There is also no legal reason why changes to by-laws should not be under the control of the members, if that is desired.  The by-law clause in the rules would need to reflect that.

Note: apart from the clause that authorises them, the by-laws themselves are not intended to form a part of the rules of association that are subject to the Act.  By-laws are separate from the rules and can be easily amended within the association. 

Do not attach by-laws to rules that are submitted to Consumer Protection.  If they are, it is possible they will become legally part of the rules.  They can only be amended by a special resolution of members and then lodged with Consumer Protection before they become effective. This undermines one of the primary reasons for establishing by-laws.

The Department of Local Government, Sport and Cultural Industries - Sport and Recreation has a useful  website that provides an example of a constitution (rules) specifically designed for sporting groups.

Department of Local Government, Sport and Cultural Industries - Sport and Recreation:

Postal address: PO Box 329, Leederville WA 6903
Telephone: (08) 9492 9700
Email: www.dsr.wa.gov.au/contact
Website: www.dsr.wa.gov.au

Membership and members’ register

It is compulsory for an incorporated association to keep an up-to-date register of all its members, including children where they are members.  The members’ register must list each member's name and postal or residential or email address.

The register must be made available to members for inspection upon request.  The member may also make a copy of all or part of the register.  The register is not required to be available to non members, unless the non-member has legal authority such as a warrant.

Other than member names and addresses, no other information is required for the register.  Associations cannot insist on members providing other personal information for the purpose of the register.  

If an association has a genuine need for keeping additional information about members, it is recommended a separate list of the information is kept.  This additional list is treated with the utmost confidentiality and is not made available to any member or other person for inspection.

More detail on the members register may be found in Record Keeping.

Children as members

Parents are often genuinely concerned about the names and addresses of children being included on the members register.  One way to relieve these concerns is to have the parents (or at least one parent) join as the member(s) while the children are signed up as players or participants.  Only the names and addresses of the parents would be kept on the members register.  A separate ‘players’ register’ would need to be maintained so the club could effectively run its sporting activity.  This register would not be accessible to the general membership.

This strategy may require the rules of association to be amended to provide for a ‘players’ category and for maintenance of the players list or register.

A different concern regarding children as members is that some clubs may not have any adult members who can legally form a management committee. 

For example, Consumer Protection has encountered several sporting clubs where under their rules only children are signed up as members.  Although the parents actually run the club as a committee, they are not members of the club and therefore not entitled to form a management committee. 

All sporting and recreational clubs are advised to review their rules of association to ensure those rules appropriately distinguish between under-age players or members and adults who can realistically and lawfully form management committees.

Child Protection

An association is responsible for providing a safe environment for members and associates such as players.  Protecting young members and associates (children under the age of 18 years) against any form of abuse, harassment, maltreatment and intimidation is a priority.  Child abuse is a criminal offence and must be taken seriously. 

It is important for associations that have young members and associates and/or provide activities for children, to have a clear policy statement on child protection and procedures for reporting child abuse. 
 
A child protection policy conveys the message to all members that they have a legal duty to ensure the safety of children and that child abuse is unlawful.  Child abuse is a serious offence and inevitably leads to the expulsion of a member from the association.

Safety in sport

Many sports and recreational activities have inherent risks and dangers.  It is inevitable that injuries amongst participants will occur.  Negligence in sport accounts for a large number of legal cases.  Sports participants, officials, members and the association itself can be held legally liable (responsible) for negligent conduct that causes harm to another person.  In some cases a person may also be liable for the negligent act of another person, even though the first person did not know about the negligent act.

To establish liability in negligence for sports related injuries, the general principles of the law of negligence apply.  

Legally, a person's (the defendant’s) conduct is only negligent if it is found the person owed the injured person (the plaintiff) a duty of care, the defendant breached that duty of care, the damage (injury) was caused by that breach and that it was reasonably foreseeable to the ordinary person that the damage was a potential result of the breach. 

Each of these four elements must be present for liability to be established. 

Participants

It is established law that participants such as players, have a duty of care to other participants.  The standard of care is measured in terms of the 'reasonable person' test.  Participants are expected to behave in a reasonable and careful manner with the knowledge and skills of a participant in that situation.  If the person's behaviour falls below the standard required, the person may be said to be negligent.  This objective standard of care may be modified due to the inherent risks of a sport that participants are aware of and accept.  The standard is modified to suit the sport.  For instance, lawn bowls and tennis carry few risks compared with sports such as rugby, hockey and soccer.

A number of factors may be taken into account when determining whether a person acted as a reasonable participant.  These include the age of the participant, the nature of the sport, the level at which the sport is played, the sporting rules, the circumstances in which the sport is played, the likelihood of an injury occurring and the likely seriousness of potential injuries.

Participants are generally taken to have voluntarily accepted and consented to the risks inherent in a particular sport.  This includes the risk of injury that might arise from minor or expected breaches of the rules of that sport.

However, they do not consent to unacceptable and non-inherent risks and unnecessary dangerous play.

Participants are expected to play within the rules of the sport and any safety requirements.

Where participants infringe safety rules and regulations to a significant degree, their behaviour may amount to negligence.  Whether an act is negligent or not is determined by the facts.

In contact sports, participants consent to physical contact by voluntarily playing the sport.  If a player is injured as a result of physical contact that occurs within the rules of the game or as a result of minor or expected breaches of the rules, then the conduct is not negligent.

However, if the physical contact is dangerous, reckless or outside the type of physical contact associated with the sport, the conduct may amount to negligence. For example, punching is an inherent part of boxing but is unlawful in a game of soccer.  Unlawful physical contact in a sport can also give rise to a conviction for criminal assault and battery.  Again, whether an act is negligent will be determined on the facts of each case.

Coaches and referees

Coaches and referees owe a duty of care to participants in sports activities.  The reasonable person standard of care applies to both coaches and referees.  They are expected to do what a reasonably competent coach or referee would do in that position.  Some of the coach's duties may extend to the activities they teach and to the safety of participants.  They are expected to provide reasonable supervision and ensure that participants are properly instructed in the rules of the activity and safety requirements.  Likewise, some of the referee's duties may extend to ensuring that games are played within the rules and enforcing safety regulations.

Spectators

Spectators and bystanders are also exposed to risks at sporting events.  A sports association, officials and participants have a duty to take reasonable care not to injure or cause injury to spectators or bystanders.

Spectators and bystanders could be injured in a variety of ways such as by stray golf balls and cricket balls, racing cars leaving the track and crashing into the spectator area, errant horses, faulty equipment, grandstands collapsing and unruly behaviour.

A sporting association may be held liable for injuries to spectators if they have failed to take reasonable steps to ensure the safety of spectators or bystanders.  For a spectator or bystander to succeed in a negligence claim against the association, the four elements mentioned above must be proved.  The injured person will need to prove that the risk was reasonably foreseeable and that reasonable steps were not taken to protect spectators or bystanders.  In most cases involving sports events, the risks are reasonably foreseeable and the association and organisers must ensure that they take the necessary steps to protect spectators and bystanders.  The law also takes a pragmatic view in some matters.  For example, a spectator who is standing on the sideline at a football match and is hit by the football is unlikely to succeed in a negligence claim.  They are taken to have accepted the risk inherent in standing on the sideline.

It is also important for these sorts of associations to have public liability insurance.

Effect of the Civil Liability Act 2002

In Western Australia, the Civil Liability Act 2002 (CLA) limits liability for injury resulting from a recreational activity.  A recreational activity includes any sport, whether organised or not, as well as activities that are pursued for enjoyment, relaxation and leisure.  Therefore, the CLA will apply to many of the activities of sporting and recreational associations.

The CLA provides that a person accused of causing harm (the defendant) will not be held liable for harm caused to another person if the injured person was involved in a dangerous recreational activity and the harm is a result of an obvious risk of that activity.

A dangerous recreational activity is one that involves a significant risk of harm such as rugby and abseiling.  An obvious risk includes risks that are commonly associated with an activity, even if the risk is not very observable. 

If a risk is obvious, there is no duty to warn a person of the obvious risk.  However, a person will not avoid liability if the injured person had specifically asked for advice about the risk or the person conducting the activity is required by law to warn the person of the risk.

A person is also not liable for harm that occurs as a result of an inherent risk, such as from something that cannot be avoided by the exercise of reasonable care and skill.  For example, tackling is part of the game of rugby that can cause injury, however, the tackle must still be within the rules to avoid any liability. 

Boxers can also expect to get hurt from punches to the body, as punching is inherent to the activity.

The CLA also provides that a person (the defendant) does not owe a duty of care to a person who engages in a recreational activity if the person was warned of the risks

If a child is injured, the person who is accused of causing the harm may rely on a risk warning that was made to a parent or another person, if that parent or person is not deemed to be incompetent and the child was accompanied by the parent or other person (eg a guardian).  A risk warning reasonably warns the person about the risks involved in the activity.  A risk warning can be a general warning in oral or written form.

A person may not avoid liability by relying on a risk warning if the injured person was required to engage in the activity by the defendant (eg a compulsory school activity).

Waivers and participation agreements

It is not uncommon for sporting associations to require members to sign a waiver that indemnifies the association and its officials from any liability.  Waivers have limited value and in the case of children, parents may not sign away children's rights to safety and protection against negligent acts.  Parental consent is essential for allowing children to engage in organised sports and recreational activities.  

Parental consent forms can be extended to serve as a 'participant agreement.'  It requires parents to give permission for participation and clearly states that they and their children are aware of the dangers or risks of the activity, that they will abide by the rules of the activity and that they understand the safety requirements.  A participant agreement can also set out parents' responsibilities in terms of medical costs and insurance.

Insurance

The Insurance and Risk Management section of this guide deals with insurance matters.  Sporting groups can obtain insurance specifically designed to cover sports injuries, liabilities and events.

 The following are examples of some insurance policies for sports groups:

  • Accident and injury insurance covers players and officials (eg a coach) for injuries that occur during officially sanctioned activities;
  • Public liability insurance provides insurance cover for the association for their legal liability to participants, members, spectators and the general public during events;
  • Professional indemnity provides cover for administrators, coaches and referees while performing official duties;
  • Directors and officials insurance provides cover for directors, officers of the association and management committee members who may be sued for negligence in the performance of their official duties.  People who are involved in the management of an association are responsible for implementing legislation and policy and may be exposed to legal actions arising out of matters relating to employment, safety and health, discrimination and the financial affairs of the association.  There is no cover for intentional acts of dishonesty;
  • Contingency insurance provides cover for prize money, the cancellation of events, adverse weather conditions and the non-appearance of people;
  • Special events insurance is obtainable for a particular event such as a tournament or festival;
  • Property insurance provides cover for items such as office and sports equipment and facilities; and
  • Voluntary workers insurance provides cover for volunteers working for the association.  For example, fundraising, organising activities and assisting at events.

Sporting groups are advised to consult a specialist sports insurance broker to obtain the most suitable sports cover for the group.

Although sports groups may have a basic insurance policy, participants, members and officials should be informed of the nature and extent of the insurance cover.  Participants in particular should be advised to have their own private health insurance.

Sample Form - Participation Agreement

PARTICIPATION AGREEMENT

A MODEL SPORT AND RECREATIONAL PARTICIPATION AGREEMENT

      I/We ___________________________________ [Insert full name of parent/s or legal guardian in block letters] hereby:

  1. give consent that __________________________________________ [Insert name of child] may participate in the following activities: 
    _______________________________________________________________________________________________________
  2. confirm that the child named above does not have any medical condition that  excludes him/her from taking part in the above activity/ies.
  3. acknowledge that I/we have read and understood the rules of the activity/ies and that I/we are bound by these rules.
  4. acknowledge that I/we have a responsibility and obligation to ensure that my/our child/children understands and abides by the rules of the activity.
  5. I/we understand there are risks associated with my child's participation in the activities listed above that can result in injury.
  6. acknowledge that I/we have read and will abide by the Association's sport and recreational by-laws.
  7. acknowledge that I/we have read and will abide by the Association's Code of Conduct and Child Protection Policy.
  8. consent to the child named above receiving medical treatment and that I/we agree to reimburse the Association for all medical costs.
  9. agree that I/we have read and understood this Participation Agreement.

 

      Signature:                             Witness:                                             Date: