Confusing Times for All

Just as many in football have found the events in the West hard to comprehend in the past six months it would appear that even those charged with administering the game are having a problem.

In a piece entitled “Starting Over in 2017” Not the Footy Show highlighted the fact that Football West had failed to hold an AGM in 2016, the second year in a row that the organisation had failed to do so in a calendar year. Also highlighted was the overstaying of appointed Board members and the rotation of Board members that is due when the next AGM is actually held.

One club President, and Chair of the State League Standing committee, Maurice Oteri raised the issue with Football West and received a reply from the new CEO Mr James Curtis, which appeared to show a lack of understanding as to the actual meaning of the Football West Constitution, or in fact how open to interpretation it is.

Having been shown the letter and doubting the new CEO’s explanation of the situation this writer contacted a lawyer specialising in Constitutional law and sat down and sought clarification.

The interesting initial question posed by the lawyer was “who owns Football West?” The company is registered as a Pty Ltd which is the usual set up when a company has shareholders or a group of owners. This is why a Constitution is set up, to give those Shareholders the opportunity to vote and if they want sack a director of the company. The lawyer said that without knowing who owns Football west it makes the Constitution almost pointless. In fact in his opinion the words that we refer to as a ‘constitution’ are in fact merely by-laws, rather than a constitution.

It was explained in this way. There are a group of units all on the same piece of land. Each unit is owned by a different owner. A Strata company is set up to maintain the properties and ensure that no one unit is allowed to operate in a seperate way which could impact the whole group. This is fairly common knowledge and practise. According to the lawyer the clubs and players involved with Football in Western Australia are like tenants in one of those properties. So, someone who has moved into one of the units, is paying to live there and interacting with the other owners. However, because they are not the owner of the unit, they have no say in the maintaining of the Units.

In his letter to Mr Oteri, on the topic of appointed Directors, Mr Curtis wrote, “The constitution does not limit the number of times an appointed director may be reappointed subject to 10.16(c).”

According to the lawyer this is untrue. Which if you take the time to think about it makes sense. An elected Director may only serve two terms of four years, unless they are elected Chairman in the second term which means they could stay on for another four year term and serve the Board for a total of sixteen years without a break.

With such a restriction on a Director who is elected by the members, why would there be no restriction on an appointed Board member? A Board member invited onto the Board? If there were no restriction it would be in everyone’s interests to be an appointed Board member, and simply renew that appointment every two years and stay in the role as long as they wished.

According to the lawyer we consulted section 10.16 Appointed Directors subsection C is very clear. It reads:

“(c) An Appointed Director hold office for a term of two years or such shorter term as may be determined by the Directors, and subject to approval by the Nominations Committee under article 10.21, is eligible for re-appointment.”

The key wording is ‘a term of two years or shorter,’ it does not say two years or longer. The stipulation that it can be shorter confirms that the term of office as an appointed Director cannot last more than two years. Which backs up our claim that all three of the current appointed directors must step down at the AGM, when it is held, as all have served two or more years in this role. The re-appointment mentioned would according to the expert come after a spell away from the Board and subject to meeting all of the required criteria, such as holding positions with a club.

Mr Oteri in his correspondence also asked for clarification that under the Constitution Football West’s Board needs to see half of its elected Directors step aside at the 2016 AGM; This was not held in 2016 as mentioned, so must now be held as soon as possible in 2017, still with 21 Days notice. This particular issue was not really addressed, with Mr Curtis advising “Any term of an elected director is limited to the time between the AGM at which he or she was elected and the 4th AGM following his or her election. Generally speaking, this period is about 4 years, but may not be exactly 4 years depending on when the AGM is held.”

Sadly once again according to the lawyer we consulted Mr Curtis is incorrect.

Section 10.7 Rotation of Directors in the constitution states clearly in its first two subsections the following:

“(a) Despite article 10.6, at the annual general meeting relating to the financial year ended 30 September 2006 and at each second subsequent annual general meeting one-half of the Elected Directors must retire from office.
(b) If the number of Elected Directors is not a whole number which is a multiple of two, the number of Elected Directors is to be rounded down to the next whole number.”

So if one moves forward every two years from 2006 when this was established, the rotation is due in 2016. With the Board having currently six elected Board members, three must step aside. As mentioned in our original article Ms Janette Spencer has come to the end of her two terms of four years so has to step down.

According to the lawyer we consulted there is no question in relation to this being the case. It was stated that eight years is the maximum term, unless you are elected Chair in your second term as a Director in which case an elected Director you could in fact serve 16 years on the board if two of those terms were as Chairman. If not, then as Mr Curtis stated they must step down after eight years, they must then have at least a two year break before being either appointed or elected back onto the board. Current Chairman Liam Twigger could stay on in his role for another four years, rather than step down as the second longest serving Board member as he was made Chairman halfway through his first term as a Board member and has not served two full terms as Chairman.

Before the conversation concluded the lawyer made a very interesting point in terms of anyone wishing to complain about the issue, if they felt that the by-laws or in this case, thus named Constitution was not being adhered to. Whereas we had always felt that the Standing Committees and Zone Reps had the power to enforce adherence to the Constitution, we were advised that they in fact have very little power.

It comes back to who the owners of Football West PTY Ltd are, and the shareholders or owners having their say.

The only course of action open to anyone is to write to the Football Federation of Australia (FFA) with their complaint and asking what they intend to do about the situation. If the FFA refuses, or fails to address the issue, then a letter to FIFA is required.

As laughable as FIFA is at this point in time they take such issues very seriously and many former Eastern bloc countries faced suspension from FIFA tournaments until they brought their governance in line with FIFA’s guidelines. The FFA is after all a member of FIFA and the Football West Constitution states in the very first section the following:

“1 Objects of Company 1.1 Objects
The objects for which the Company is established are:
(a) to be the member of FFA in respect of the State and to comply with the constitution and by-laws of FFA;”

Hopefully advertisements for new Board members will be posted soon and a date given as to when the overdue AGM will be held. As yet ASIC, who officially cannot grant an extension now the deadline of a calendar year has past, – but did last year – has not given Football West an extension.

It is important that all of these regulations are adhered to so that the game can get back onto an even keel. As confusing as the “Constitution” is, hopefully the new CEO will take hold of the tiller and steer the game to calmer waters in 2017.