O'Donohoe v. O'Baroid [1999] IEHC 148 (23rd April, 1999)

JUDGMENT of Mr. Justice McCracken delivered the 23rd day of April 1999 1. The Plaintiff is now twenty years of age, and his family home is in Clonmel County Tipperary, although he now works in Limerick. He has played both hurling and gaelic football since he was nine or ten years old with Clonmel Óg Club, which caters for both games. There was also a considerable family connection with the Club, and his father in fact assisted in coaching for some time. In early 1997 the Plaintiff, who was then eighteen years of age, wished to transfer to two other clubs in Clonmel, which were in fact associated in some way, namely Clonmel Commercials which catered for gaelic football and St. Mary's, which catered for hurling. He applied on a standard form to the South Division of the Tipperary County Board of the Gaelic Athletic Association, which approved his transfer on 5th March 1997. The matter then came before the Tipperary County Committee, and on 8th April 1997 they refused to permit the transfer. In these proceedings the Plaintiff challenges that decision and seeks various declarations and an injunction. The first named Defendant is the Secretary of the Tipperary County Board of the G. A. A., and the second named Defendant is the Secretary of the Clonmel Óg club. 2. The history of the Clonmel Óg club is of considerable relevance in these proceedings. It's origins arose out of the increase in the population of Clonmel, and the perception that the facilities of the existing clubs were not sufficient to cater for the needs of all the school children in the town who wished to play gaelic games. The club originally centred around St. Peter and Paul's Primary School, and indeed still retains close connections with that school. It was affiliated to the Tipperary County Board in 1986, and initially fielded teams at under twelve and under fourteen level. In 1990 it had grown from becoming a schoolboy club to fielding adult teams, but initially these teams only played at a junior level, and as I understand it the adult teams are now in the intermediate grade. They have no adult teams playing at senior level. 3. Both Clonmel Commercials and St. Mary's have for many years fielded senior teams in gaelic football and hurling respectively. Understandably, they have tended to attract promising young players from junior teams who wish to have an opportunity to play at senior level. In particular, over the years, they have attracted a number of players from Clonmel Óg. 4. In 1993 matters came to a head when over twenty players left Clonmel Óg, with many of them going to Clonmel Commercials or St. Mary's. Clonmel Óg brought the matter before the County Board that year and before the County Convention in 1994, and the then Chairman of the County Board requested Mr. Seán Nugent, who was Chairman of the Southern Division at that time, to try to negotiate some agreement between the parties. He held a number of meetings with the clubs in Clonmel and put forward certain proposals which became known as the Nugent Plan. On 14th December, 1994 a meeting of all the Clonmel clubs was held, and his proposals were accepted. In relation to players from minor level upwards, it provided:- "The transfer system would be on an open basis except that any club who wishes may opt out of the transfer system in any year. This would mean no transfers in or out of the club in question for the year in question. The club could retain the right to allow the transfer of a player to another town club if they so desired." 5. The proposal ended by saying:- "I hope that these proposals can form the basis of an agreement that can be put on a trial basis for a year or put in place for a period of years. To further this aim a meeting of the Clonmel clubs will be held on the 14th December in the G. A. A. Centre at 7.30 p.m. Each club is entitled to two representatives." 6. Unfortunately the meeting of 14th December, while approving the proposals, did not determine whether they would be in place on a trial basis for a year or whether they would be for a period of years. 7. In 1995 the matter came before the Tipperary County Board, and on 14th February 1995 the County Board accepted the Nugent Plan in its entirety. Again, they did not say whether they were accepting it on a trial basis or for a period of years. The Plan in fact operated in 1995 and 1996, and there were no transfers between Clonmel clubs, but in 1997 Clonmel Commercials purported to opt out of the Plan, and asserted that from that time players could transfer to them and they were free to accept players from other clubs in the town. However, when the Plaintiff applied for approval of his transfer to Clonmel Commercials, the Tipperary County Committee refused to approve it. 8. The Nugent Plan was clearly a well intentioned effort to solve a difficult problem which possibly threatened the existence of Clonmel Óg club. Obviously their opportunities to attain senior status was seriously hampered by the loss of good players to the senior clubs, but on the other hand the Nugent Plan prevented ambitious young players from attaining senior status. This was a serious dilemma for both clubs and players. 9. Whatever may have been the good intentions of the Nugent Plan, it was in reality merely an agreement between the clubs in the town, and furthermore an agreement which contained a highly ambiguous phrase in relation to its duration. The fact that it may have been accepted by the Tipperary County Board did nothing more than to indicate the Board's approval of the terms of the agreement, but it did not and could not govern the rules of the Gaelic Athletic Association in relation to transfers. 10. Those rules are contained in the Gaelic Athletic Association Official Guide, and the relevant rules appear to be:- "36. Within County: A player who wishes to leave one club to join another in the same county must apply to the County Committee for a transfer. Penalty: For playing without transfer - three months." "38. A transfer becomes effective as soon as it is granted by the appropriate authorities." "56. Powers: A County Committee shall have within its jurisdiction the following powers: (g) To control all other affairs of the Association within the county." "57. The County Committee shall also have the following powers: (a) To confine membership of clubs to the parish in which the players reside or work. This shall not apply to cities or towns of more than one parish, but a County Committee shall have the option of applying it and determining its application in minor grade. ...." 11. In fact the Plaintiff's original application for a transfer in this case was not made to the County Committee pursuant to Rule 36, but was made to the South Division. Under the Tipperary County Board bylaws, the County was divided into four divisions, and it is provided that each division should have power to control all affairs of the Association within its jurisdiction, although it does not refer specifically to transfers. However, it also provides that each division shall be subject to the County Committee, and accordingly I do not have to decide whether the original application was correctly made to the South Division, as their decision was clearly overruled by the County Committee. The Plaintiff argues that Rule 36 does not in fact state that the County Committee has the right to refuse a transfer, and indeed, even if such right can be inferred, it gives no guidelines for such refusal. He also seeks to argue that the effect of Rule 57, which is stated not to apply to cities or towns of more than one parish, is that an application for a transfer within a city or town must be granted. I cannot accept this interpretation, and in my view the wording of Rule 36 is quite clear. A player wishing to transfer must apply to the County Committee for a transfer, and the use of the word "apply" seems to me to imply with it that the County Committee has a discretion whether to allow such transfer. If the rule had not intended there to be such a discretion, it would simply have stated that a player who wished to join another club must notify the County Committee of his transfer. As far as the guidelines as to when a County Committee may refuse a transfer, in my view this is a matter for the determination of the individual County Board in accordance with the circumstances then pertaining within that County. 12. The Plaintiff further argues that he is only bound by the rules insofar as this does not affect his constitutional right of association, and that such right cannot be waived without a deliberate decision made with full knowledge of that right. In support of this argument, Counsel for the Plaintiff cites a passage from the Judgment of Murnaghan J. in Murphy -v- Stewart [1973] I. R. 97, and it undoubtedly is a principle which in general I would accept. However, in the same case, which related to the refusal of a trade union to allow a member to transfer to another trade union, the Supreme Court held that such refusal did not infringe any constitutional right of the Plaintiff. Walsh J. said at page 117:- "The learned Judge in the High Court made the Order sought by the Plaintiff declaring that the Defendants, in objecting to his acceptance into membership of Irish Transport, were infringing the Plaintiff's right under the constitution 'of joining the union of his choice.' By this I take the learned trial Judge to mean an infringement of the guarantee contained in Article 40, S.6, Sub. 1(iii) of the Constitution. In the ordinary sense, there is no constitutional right to join the union of one's choice. The constitutional guarantee is the guarantee to form associations or unions, but in ordinary circumstances, before a person can join an existing union or association, he must be entitled to do so either by law, or by the rules of that association or union, or by the consent of its members." 13. In the present case, as in that case, the Club which the Plaintiff seeks to join is not prepared to accept him unless in doing so it will not infringe the rules of its governing body. The Plaintiff has no right, either under the Constitution or otherwise, to join Clonmel Commercials or St. Mary's or any other specific club in such a way as to cause that club to breach the rules of an association of which it is a member, nor has he a right to have the rules of any such association set aside to enable him to join any specific club. 14. The Plaintiff makes several other points which I will deal with briefly. It was contended, although I think not very strongly, that in fact he was not a member of Clonmel Óg or of the G. A. A. It is true that, on attaining eighteen years of age during the year before this dispute arose, he did not formally apply to join Clonmel Óg, nor did he pay a subscription. However, he was registered by them with the G. A. A. as a player, and until that time had been a member because there was a family membership comprising his parents and all minor children. In any event, he had played for the club in G. A. A. competitions for some years, and in my view is clearly estopped from saying that he is not bound by the rules of the G. A. A. 15. It is also contended that a letter of complaint written by his Solicitor to the County Committee ought to have been read to that Committee before they made their decision in relation to him. The first Defendant makes the rather unusual answer to this that it was not the policy of the County Committee to consider Solicitor's letters at their meetings, but the letters would simply be passed to the County Board's Solicitor. While I find this a strange attitude, and in certain circumstances I think it could work an injustice, I do not think that can be said of the present case. The County Board were well aware of the Plaintiff's position, and indeed of the fact that Clonmel Commercials and St. Mary's would have accepted him as a player and wish to have him as a player, provided the County Board approved. In particular, they had debated the position of players in Clonmel Óg on a number of occasions, and had clearly taken a policy decision that they had an obligation to protect the junior club against a haemorrhaging of its members, so as to enable it to have some opportunity to attain senior status. This was an entirely reasonable approach to take, whether one agrees with it or not. In my view the Plaintiff's Solicitor's letter would have made no difference whatever, because the refusal to allow the Plaintiff to transfer was a policy refusal, which policy was not unreasonable and in fact the Plaintiff's application was not the only one before the County Committee, and similar refusals took place in relation to several other Clonmel Óg players at the same time. 16. Accordingly I must refuse the relief claimed in this case. © 1999 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII