by Paul Horvath © SportsLawyer 2013 Risk Management Presentation for the Sports Club Management Expo 17th November, 2013 by Paul Horvath © SportsLawyer 2013

Introduction Part 1: Board of Directors Legal Duties of Board Members and avoiding liability Good governance principles Risk Management Constituent Documents of the Sporting Organisation Governance - Practical tips Part 2: Coaches Negligence Standard of Care

1) Legal Duties of Board Members and avoiding liability- General Obligations and limitations are placed on the organisation and its board members by applicable legislation Can depend on whether the organisation is a company limited by guarantee, an incorporated association or an unincorporated association – volunteer immunity

1) Legal Duties of Board Members and avoiding liability Exercise due skill and diligence Avoid conflicts of interest Keep proper books of account Act for the benefit of the association as a whole and for a proper purpose Do not improperly use your board position or information acquired from your position Act honestly and in good faith Director insurance

1) Legal Duties of Board Members and avoiding liability- Case studies Commonwealth Bank v Friedrich – part time, volunteer, non-executive director personally liable for $92million debt

2) Good governance Principles Following good governance principles is no guarantee of your organisations success but it will generally increase chances of success No one size fits all – depends on size and resources of your organisation Guidance from Australian Sports Commission and Australian Stock Exchange guidelines

2) Good governance Principles- Australian Sports Commission (download at http://www.ausport.gov.au/supporting/nso) ASC Principles focus on planning, documenting, implementing, monitoring and evaluating and cover the following areas: Board composition, roles and powers Board processes Governance systems (inc risk management) Board reporting and performance Member relationship and reporting Ethical and responsible decision making

3) Risk Management -Risk management program Develop relevant risk management policies and procedures Make relevant people aware of such policies and procedures Monitor policies and procedures Have a way of enforcing the policies and procedures Review the policies and procedures every 12 months to ensure they remain up to date

4) Constituent Documents As a member, or as the competition organiser, you need to ensure your League/competition and you comply with the issues below; Ensure your constitution is current, and has been updated; allows you as a Board, or your tribunal, to do what you are doing – don’t assume that as you are taking certain action, you must have the power to do it; constitution must be clear (detailed and tedious exercise); Weightman v Tasmanian Football League (1995) – court said the constitution lacked meaning in parts; found the tribunal was not properly delegated power to hear cases - suspensions imposed were invalid/void;

5) Governance - Practical tips Board is responsible for setting the strategic plan for the organisation Make sure the plan is understood by management Regular reviews of organisation’s performance as against strategic plan Create specialist sub committees 10

Part 2: Coaches 1) negligence For a negligence claim to be successful: A legal duty of care must be owed by a coach to the player The coach must fail to provide a standard of care expected of a competent coach who is both reasonable and prudent The player must suffer some injury or damage which was reasonably foreseeable The coach’s conduct must have caused or led in some way to the injury suffered. How easy is it to remove/minimise the risk?

2) Standard of Care Takes into account the following factors: probability of injury gravity of injury type of activity age of participants ability of participants physical condition of participants

2) Risk Management Key duties coaches should seek to meet: provide a safe environment – no bullying plan activities adequately evaluate players for injury and incapacity use safe and proper equipment warn players of the risks of the sport closely supervise activities keep adequate records develop rules for training and general conduct

Questions

Contact Details Paul Horvath A: Level 4/221 Queen Street Melbourne Vic 3000 P: 03 9642 0435 E: paul@sportslawyer.com.au W: www.sportslawyer.com.au https://www.facebook.com/sportslawyeraustralia @SportsLawyerAus