By Blogger Mwakio. P
This Guide has been prepared in response to requests by clubs for guidance in relation to the different legal structures through which a club can operate. The Guide sets out the most commonly used structures that a club may wish to adopt together with some advantages and disadvantages of each.
The Guide also sets out a step by step process to be followed for a club that wishes to set itself up as a company.
The Football Kenya Federation does not have any rules or requirements that specify that a club must be one legal form or another. It is a matter for each club to determine the legal form that is best for it based on its own circumstances. A club should seek independent legal advice in relation to the most appropriate structure and form that it should adopt and the steps to be taken if a club is considering making any changes to its structure including but not limited to incorporation. Before making any structural changes the club should give prior notice to The FKL (and the league and county FKL/KPL in which its membership resides), in relation to the application of football’s rules.
Football clubs can take one of several different legal forms, which are discussed below.
Clubs can also seek tax advantages by becoming a charity or a Community Amateur Sports Club (“CASC”) details of which are also included in the next pages.
1 UNINCORPORATED ASSOCIATIONS
Some football clubs are unincorporated associations, sometimes called private members’ clubs. Unincorporated associations are a group of individuals who are bound together by the constitution or rules of the club. This means that the club is not a legal person in its own right, and so any contract of the club must be entered into by someone on behalf of the club.
Normally a club has a committee to run the club and it will be a member or members of the committee which will enter into contracts and hold land on behalf of the club.
Unincorporated associations are private members clubs and do not have many of the legal requirements that apply to limited companies (such as the filing of accounts) and are not subject to outside scrutiny (unless they are charities) other than required by law. Within the constraints of the law, the rules or constitution of an unincorporated association can be whatever the members choose, and can usually be easily changed by the members.
The members of the governing committee have to enter into contracts in their own names.
This means that the members of the committee could be personally liable if the club breaches a contract or if a claim is made against the club and the club has insufficient assets to meet the claim. Also, if there is an uninsured accident or an employee, officer or player of the club performs an act for which the club is held liable then possibly all of the committee or even all of the members could have to pay. Members are jointly and severally liable for any liabilities meaning one member could be liable for all of the club’s debts if other members cannot pay. It is essential that where possible insurance is purchased to cover all of the club’s activities.
An unincorporated association does not have a separate legal identity from its members and so the members of the governing committee have to hold any land or investments of the club in their own name.
This means that if the named individual leaves the club, all of the land or investments in their name needs to be transferred to someone else.
1.4 Updating your club constitution
If a club wishes to remain as an unincorporated association, it may want to update its constitution.
As a minimum, its constitution should cover the following areas:
• Name of the club;
• Its objects;
• The identity of the members and detail on the process of becoming a member, how membership comes to an end including disciplinary procedures for suspension or expulsion, payment of subscriptions and consequences of non-payment;
• Election of the management committee, any special roles e.g. president, chair, treasurer etc, the role of the management committee and regulations around how and when it meets, the power of members of the management committee to bind all of the members of the association, how members of the management committee can be removed;
• Any other committees that the club has;
• Rules about management of the club’s bank account and other finances and rules about payment of expenses (if relevant);
• Rules about the procedure for the club when buying goods or services from members;
• How the rules can be amended;
• What happens to the property of the club if it is dissolved.
A set of Standard Club Rules suitable for use by an unincorporated association should be established by FKF and KPL. The use of the Standard Club Rules should not be mandatory and it is likely that the majority of club rules are not in this form.
2 COMPANIES LIMITED BY GUARANTEE
A company limited by guarantee is a company owned by its members but, unlike an unincorporated association, has a separate legal identity. Each member guarantees to pay a small amount if the club becomes insolvent e.g. Kshs.1000. The structure is very flexible and common among not-for-profit organisations such as clubs or charities where membership is frequently changing. The club’s constitution will be set out in the articles of association of the new company. Often the members elect the directors, who will be re-elected in accordance with the company’s articles. The directors are responsible for running the club. A company limited by guarantee has no shares and will not pay any dividends to its members. As such it is not suitable for clubs seeking to turn-over a profit for its members (as opposed to making a profit for the club itself). As the company has a separate legal identity, it can enter into contracts and hold land in its own name.
As a company has a separate legal identity, if it becomes insolvent then the members will not be liable for the company’s debts other than the amount which each member has guaranteed to pay, typically Kshs.1000.
This means that, for example, if there is an uninsured accident and the club is liable in such circumstances, but unable to pay, the members and the directors will not normally have to pay unless they have broken company law (including, for example, not acted in the best interests of the company). Any land and investments can also be held in the name of the club rather than the members of the committee as is the case for an unincorporated association. As a limited company it will be required to file accounts and details of the directors at Companies House giving the club transparency to outsiders. No individual should have control of the club unless the articles allow.
A company has to file annual accounts, an annual return and directors’ details at Companies House, and has to file a form there every time a director is appointed or removed. There are fines for late filing. The directors of a company have duties and responsibilities in company law such as the duty to promote the success of the company, to act in the best interests of the company and to comply with its Articles of Association (i.e. the company’s constitution). This may deter investment into the club by investors that may require control.
3 OTHER INCORPORATED CLUB STRUCTURES
3.1 Companies Limited by Shares
A company limited by shares is the same as a company limited by guarantee except that it is owned by the shareholders who elect the directors. Companies limited by shares are not normally used for clubs that operate membership schemes because each time a member joins a share has to be issued to them and each time a member leaves their share has to be transferred to somebody else or redeemed.
A company limited by shares may be suitable for clubs which owners or investors who wish to invest in the club and want to operate as a profit making operation as they can benefit from payment of dividends and an increase in the value of their shares (which can be sold).
As a company it has a separate legal identity, if it becomes insolvent then the members will not be liable for the company’s debts other than to the extent that they have not fully paid the company for the shares that they hold. Shares in the company can be bought and sold, subject to any restrictions in the articles of association.
In addition to the disadvantages shown in 2.3 shares cannot be advertised and sold publicly and shares have to be issued each time a new member joins and transferred or redeemed each time a member leaves or dies. If anyone holds over 50% of the shares then they can control the board of directors, and if they hold 75% of the shares then they are able to change its constitution and are therefore in complete control of the company.
3.2 Community Interest Company
A Community Interest Company is a special type of company. It has a separate legal identity and so, as with a company limited by guarantee, the members are protected from liabilities.
Only companies can apply for Community Interest status, i.e. this is not available to unincorporated associations.
Community Interest Companies are incorporated in the same way as normal companies but must demonstrate that they are acting for the benefit of the community. Many amateur football clubs would be able to meet this test. The constitutions of Community Interest Companies must comply with certain rules which restrict the way in which the assets can be used (i.e. an “asset lock”). They have no special tax advantages.
It provides a limited company structure for a social enterprise with a secure asset lock and focus on community benefit. The assets, in particular a ground or training ground, are protected and if it is wound up, any residual assets, after satisfying its creditors, will be transferred to another asset-locked body, such as a charity or another Community Interest Company.
There are no tax reliefs, but there is additional regulation from the Regulator of Community Interest Companies including a requirement to produce an annual community benefit report which is publicly available. Community Interest Companies have only recently been available and are still relatively rare. A company limited by guarantee may be more straightforward and cheaper to administer and more familiar to banks, local authorities, accountants etc.
3.3 Charitable Incorporated Organisations
Charitable Incorporated Organisations can be incorporated in Kenya due to the country’s flexible legal systems.
Charities which opt for a corporate structure at the moment have to set up as a company limited by guarantee under company law. This means that they are subject to dual regulation by the NGO Council.
In light of this, many in the charitable sector have long expressed a desire for a corporate structure specifically designed to meet the needs of charities, and regulated only by the Commission.
When launched the Charitable Incorporated Organisations will be able to adopt a very flexible corporate structure but just report to the one regulatory body, the Charity Commission. The charity will have all the advantages of incorporation mentioned above, as well as all the tax benefits of being a charity.
When they do come into force, a disadvantage of using them will be that they are new and unfamiliar to banks, local authorities, accountants etc, and untested in practice.
This may mean increased time and costs for a club, and some risk, at least in the early stages. In addition, charitable status means of course a significant restriction in permitted activities as well as an asset lock.
3.4 Industrial & Provident Society
An IPS is an organisation registered with the Financial Services Authority which conducts an industry business or trade. An IPS can either be a cooperative, run for the benefit of its members, or a community benefit society, which is run for the benefit of the wider community. A company can convert into an IPS or a new IPS can be set up.
3.4.1 Advantages of an IPS which is a Cooperative
A cooperative is a flexible legal structure which can run a football club and has a separate legal identity, so that if it becomes insolvent then the members will not be liable for the co-operative’s debts.
3.4.2 Advantages of an IPS which is a Community Benefit Society
A Community Benefit Society is a flexible legal structure which can run a football club and has a separate legal identity, so that if it becomes insolvent then the members will not be liable for the cooperative’s debts. It has a social objective of benefitting the community, and its assets are protected so that if the Society is wound up, the assets will be applied for the benefit of the community.
3.4.3 Disadvantages of an IPS which is a Cooperative or a Community Benefit Society
A fee from Kshs.500 – 1000 should be payable on establishment, with the fee level dependant on the drafting of the constitution, and annual fees are also payable.
Only those clubs which can demonstrate that there is a reason why they should be an IPS instead of a company will be permitted to register by the Registrar of Companies. There is uncertainty as to who is going to regulate IPSs in the future, and what impact this may have on annual fees and reporting requirements.
For most clubs, a company limited by guarantee may be more straightforward, cheaper to administer and more familiar to banks, local authorities, accountants etc.
4 COMMUNITY AMATEUR SPORTS CLUB STATUS (CASC)
Following Government and Charity Commission consultation new sports legislation should be introduced to provide community based amateur sports clubs with an opportunity to take advantage of valuable tax reliefs by registering as a Community Amateur Sports Club (CASC) with the Inland Revenue (now HM Revenue & Customs).
4.1 Can my club become a Community Amateur Sports Club?
Unincorporated associations, companies limited by guarantee and community benefit societies can become a CASC. To qualify as a CASC, a club must, as its main purpose, provide facilities for and promote participation in one or more eligible sports. A club is eligible if it meets the following criteria, or is willing to change its constitution so that it will meet the criteria:
• Open to all of the community;
• Main purpose of the club is to promote sport;
• The club is amateur and non-profit making. This means that it cannot pay its players; and
• If the club is wound up, its property will be distributed to a sports governing body, another CASC or a charity.
Law is currently flexible.
Gift Aid can be claimed on donations from individuals to the club (but not on membership fees).
Even if your club doesn’t own its own facility, it can still benefit from Gift Aid. Gift Aid means the Government adds percentage to every Kshs.1 received as a donation to a charity or CASC.
CASCs are exempt from various taxes including taxes on the club’s fundraising or trading turnover (such as receipts from a bar or sales of branded clothing) if they are undera given threshold. They do not pay tax on interest earned in bank accounts and no inheritance tax is payable on legacies left to a CASC.
A club must register with Sports council or FKL. Normally this involves changing the club’s constitution. Once it has become a
CASC, a club cannot undo the process.
The club must continue to comply with CASC rules as to, amongst other things, the criteria set out in 4.1. This compliance will need to be under continuous review, particularly as the club progresses or grows, and a serious transgression of CASC status could lead to an investigation by HMRC into claimed tax relief.
The club must allow anybody to become a member, unless they would be a disruptive influence or the level of facilities means that the club cannot physically accept any more members. If the club has two or more classes of member then the club must allow anybody to become the class of member which enjoys the main voting rights.
The clubs must be amateur therefore players cannot be paid, although they can receive their expenses.
Clubs wishing to progress through the National League System and ultimately pay players need to carefully consider their long term plans and whether registering as a CASC will inhibit their long term development.
A Guide to Club Structures for National League system and Other Football Clubs
5 CHARITABLE STATUS
5.1 Can my club become a charity?
Unincorporated associations, companies limited by guarantee and community benefit societies can be charities. A Charitable Incorporated Organisation must be a charity.
A club will normally have to amend its constitution before it becomes a charity, as it must have objects which are exclusively charitable in law. It will only be charitable if it promotes amateur football (and/or other healthy amateur recreations) e.g. by providing facilities, or promotes education or community participation by reference to sport. In all cases the club must exist for the public benefit.
Charities have more tax advantages than CASCs. They have full exemption from tax on profits that they may make from their membership fees, bank interest or investment income. Gift aid can be claimed on donations from companies as well as donations from individuals. Local authority business rate relief is the same as for CASCs, and there is similarly no inheritance tax payable on legacies left to charities.
People are more willing to fundraise for a charity, and charities are allowed to run certain types of lottery and other fundraising activities that are banned or licensed for non-charities.
Once a club has become a charity, it cannot stop being a charity.
All members of the club must be playing members, it cannot have “social members”. Players must be amateur and may not be paid.
The club must have membership open to all. Although there can be competition to get into, for example, the first team, everybody must have an equal opportunity to use the club’s facilities. The level of fees must be low enough so that everyone has the opportunity to join the club.
A subsidiary company should be set up to run any bar that the club has, but this is not difficult to do. Any profits from the bar can be paid under gift aid to the charity to avoid payment of corporation tax by the subsidiary.
A charity must register with the NGO and Kenya Revenue authority if its annual income is over a given threshold. This means that it must submit annual accounts and an annual return to the KRA and Bureau or any authorised Commission. It must also comply with charity law.
6 WHAT IS THE BEST STRUCTURE FOR MY CLUB?
It is a matter for each club to determine the most suitable legal form based on its circumstances. Clubs should consult with their professional advisors in this respect and seek independent legal advice.
Small clubs may not want to incur the expense of changing their status. However, they should consider registering as a CASC if they own land or may receive donations from members so as to benefit from the tax reliefs available to a CASC (See 4.2 for details).
Clubs (even relatively small ones) may wish to pay the one-off cost of changing from an unincorporated association to a company limited by guarantee because of the advantages listed, especially acquiring legal identity and protecting members from possible liabilities. They should also consider registering the company as a CASC if they own land or may receive donations from members, and they should also consider the benefits of becoming a charity.
Any club which receives substantial donations from companies (donations do not include sponsorship payments) should consider the benefits of becoming a charity, for example, taking advantage of the Gift Aid scheme if any.
3. INCORPORATION STEP BY STEP
If you decide that you would like to adopt a new structure for your club, this section of the Guide sets out the procedure for doing so. In all cases, this procedure will be dependent on:
(a) the new structure which you have chosen; and
(b) the current status of the club, including its assets and liabilities. This is something that you should discuss with your club’s professional advisors. However, the guidance in this section provides a generic overview of the steps that will need to be taken.
An overview of the process is set out in the chart in
A club’s right to play football is through its holding of the relevant football memberships. If a club is considering incorporating then these memberships will have to be transferred from the unincorporated association to the new limited company. The club should notify The FKF, the league of which it is a member and it’s county FKF of its intentions at an early stage of the process for guidance in relation to any of football’s rules that need to be followed.
An example of this is included in Appendix 2, Rule 2.7 of the
Standardised Rules that apply to clubs playing at Steps 1 to 6 of the Premier or Nationwide League System.
2 Internal Clearance
You will need to obtain any internal approvals required by the club’s current constitution prior to establishing a new entity. This will differ and will need to be determined on a case by basis but is likely to include holding a general meeting of the club’s members.
3 Steering Group
The club may wish to form a Steering Group that is tasked by its Committee to manage the process of incorporating the club.
4 Formation of a New Legal Entity
Having obtained required internal approvals, the first legal step will be to set up the new legal entity which the club is adopting. Where the club is establishing itself as limited company (i.e. a company limited by shares or by guarantee), this will be very straightforward and quick as there are no approval processes or hurdles to be satisfied. Where IPS charitable or Community Amateur Sport Club status is chosen, the timeframe will be somewhat longer as there are certain registrations or approvals that need to be obtained.
It will be necessary to send the following documents to Companies House:
• Form (Application for Registration)
• Memorandum of Association
• Articles of Association
The memorandum and articles of association are considered further under paragraph 5 below. Full details on completion of the Form (Application for Registration) is beyond the scope of this Guide: however, it requires the completion of information about the:-
• proposed company name,
• the type of company,
• the registered office,
• directors and secretary,
• statement of capital and initial shareholdings and a statement of compliance.
The company will come into existence when the Registrar of Companies issues a certificate of incorporation. The standard service takes 14 days or up to 60 days (fee); an express service within 24 hours is available (fee); or the application can be made electronically (at standard service).
Alternatively the club may choose to use its professional advisors or a company formation agent in establishing the company. The legal advisor(s) is/are able to provide a variety of services depending on what is suitable for the size and nature of the club.
In the case of Community Interest Companies, the Club will need to pass a test demonstrating that its activities are for the benefit of the community or a section of the community. It will therefore be necessary to apply to the Regulator of Community Interest Companies to obtain this approval using an available Forms together with the other documents outlined above. While the Regulator considers the application, the incorporation of the company will be held up and cannot therefore be effected in 24 hours.
5 New Constitution
Memorandum and Articles of Association for a Company
The new company will need to have a constitution – i.e. legal documents in the form of a memorandum and articles of association establishing the company and setting out rules governing its administration and operation.
The memorandum is a short document setting out the subscribers to the company and its share capital (if any).
The articles of association are more detailed and regulate the share capital (if any) of the company, the board and shareholder/member powers. Different approaches can be taken towards the choice of articles of association, although all must contain the provisions of The FKF Rules on directors acting in compliance with The FKF’s Rules and regulations and regarding the distribution of assets on winding up the company.
I have prepared a generic articles of association (withheld) that will be suitable for most clubs as part of the package. These can be adopted with minor amendment as required to suit particular circumstances. These would then need to be supplemented by separate bye-laws of the club setting out in detail the decision making process (see further below). Alternatively, the articles of association can be tailored for your club.
While the articles of association set out the high level rules and regulations for administration of the club, the adoption of separate bye-laws are recommended in order to establish in more detail such matters as:
• The number of and qualifications required for directors;
• Operation of the bank account(s);
• Terms of reference for committees and sub-committees;
• Powers and terms of reference of the board;
• Arrangements for Members’ meetings;
• Voting and proxy procedures;
• Membership categories and subscriptions;
• Reporting processes.
It is likely that the club already has a constitution or rules dealing with these matters. If that is the case and these remain sufficient, these can simply be adopted by the new entity as its bye-laws.
Community Amateur Sports Club
If your club wishes to become a community amateur sports club then its new constitution must meet certain requirements. These are set out above in section 2. It is possible to send a draft new constitution to KRA for their opinion about whether the draft is compliant.
If your club wishes to become a charity then its new constitution will have to be drafted to comply with certain legal requirements, so that it will be acceptable for registration with the NGO Bureau or KRA or Charity Commission if any. It must be set up for wholly charitable purposes, and there must be certain limits on payments made to its directors and members. The NGO Bureau or KRA or Charity Commission if any does not normally give an opinion on draft constitutions, and so it is advisable to use the NGO Bureau or KRA or Charity Commission’s precedents to seek legal advice.
A critical part of setting up the new entity for your club will be determining the board or committee membership and general governance structure for your club.
A limited company must have at least one director who is a natural person (i.e. not a corporate director), although typically it is recommended having at least two directors to form a board of directors. If the club is a charity then it will normally have to have at least three directors. The company may also have a secretary, although this is no longer strictly required by law. Again, however, we would recommend nominating a secretary.
You are free to determine how you wish your club to be managed. The simplest approach is to leave all decisions to the board of directors to determine on a majority vote basis. This is reflected in our specimen articles of association. If desired, it is possible to delegate power to management committees, or other sub-committees, or to allow members to participate in certain decision making processes in general meetings.
Whatever decision is taken, this should be reflected in the club’s bye-laws (see 5. New Constitution).
7 General Meetings and Notification of Decision to Stakeholders
It is likely that your club holds general meetings of its members on an annual basis or more frequently. There is no longer a legal obligation for companies to have annual general meetings, but you should consider during the incorporation process whether there should be, what powers those general meetings should have, and who should be entitled to attend. This will be reflected in the club’s articles of association and bye-laws.
FKF Rule must require a club to have its annual accounts laid before the members of the club at a general meeting.
Having taken the decision to establish a new entity, it is advisable to call a general meeting and notify any key stakeholders in the club as to the decision and to outline key differences going forward.
8 Transfer of Assets and Liabilities
Once the new legal entity has been formed, it will be critical to ensure that all assets and liabilities of its predecessor are transferred to the new entity – i.e. anything which was owned or owed by the club must be transferred into the name of the new entity on a certain date or dates.
There is a wide range of assets and liabilities that needs to be considered, including:
1. Staff and employees;
2. Equipment and machinery;
4. Contracts, e.g. supplier contracts, insurance etc;
6. Bank overdraft facilities, loans, and mortgages;
7. Book debts;
8. Intellectual property in the club, e.g. its name and logo;
9. FKF registration, league registration and County FKF membership.
It will, therefore, be necessary to assess and put together a list of the club’s assets and liabilities. Once compiled, these will need to be transferred to the new entity by means of an asset transfer agreement. The agreement will also cover such issues as when and what announcements can be made, whether there are any conditions to be fulfilled before the transaction can be completed, or any consents to be obtained. A key condition to be included within the agreement is that written football authority (FKF, league and county FKF/KPL) consent has been obtained prior to the transaction being able to complete. It is essential that clubs obtain legal advice before attempting to transfer their assets and liabilities.
9 Taxation Clearances
If a club wishes to register as a Community Amateur Sports Club, it will need to apply to KRA and will need to be accompanied with a copy of the club’s constitution.
If a club amends its constitution to become a charity, then it will normally need to register with the NGO Bureau/KRA or Charity Commission if any to obtain a charity registration number.
If a club has an annual income of under a given set threshold then it will not be able to register with the KRA or Charity Commission if any.
STEPS TO INCORPORATION
1. Approach football authorities in relation to the proposed incorporation
2. Internal Notification: obtain internal club clearance and take decision to set up new entity (e.g. consult club members and vote)
3. External Notification: to the FKF, League and County FKF
4. Incorporate new legal entity:-
– Form (Application for registration)
– Memorandum of Association
– Articles of Association
5. Adopt bye-laws for new legal entity
6. Transfer assets and liabilities to new entity after obtaining football authority approval
7. Taxation clearance
8. Internal and External Notification of new structure
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