Track Record: New Board of Football Club Validly Appointed Despite Internal Disputes

Mr. Vincent Besters represented an Amsterdam amateur football club in proceedings concerning the validity of a board appointment

In January 2022, the Amsterdam District Court issued a judgment in main proceedings in which mr. V.M. Besters acted as counsel for the defendant: an Amsterdam amateur football club with approximately 1,300 members. The association had experienced prolonged internal disputes, a governance crisis and ultimately a digital general members' meeting (GMM) at which a new board was appointed.

What was the case about?

After years of governance conflict, the association had an interim board in 2019-2020 that eventually resigned in its entirety. In December 2020, two former interim board members — in the absence of an active board — convened a digital GMM to elect a new board. At that meeting, a new board was appointed by resolution.

Five members (including former interim board members) sought annulment of the appointment resolution. Their grounds:

• The GMM had not been lawfully convened: one of the claimants argued he was still a board member and therefore the only person authorised to convene the GMM.
• The digital meeting was unnecessary and the vote was invalid.
• The newly appointed board members were not members of the association and could therefore not statutorily be appointed to the board.

Mr. Besters defended the association against all these arguments.

What did the court decide?

The Amsterdam District Court dismissed all claims and confirmed the validity of the appointment resolution:

• GMM lawfully convened. At the time of the notice, there was no board — including the claimant who claimed still to be a board member, who had himself notified via WhatsApp that he was stepping down immediately and had approved his deregistration from the Chamber of Commerce. The convening by the remaining members was therefore permitted under the articles.
• Digital meeting permitted due to COVID-19. The court held that during the pandemic, the GMM could also be held digitally.
• Newly appointed board members were members. The court established that the three contested board members were indeed members of the association at the time of their appointment, satisfying the statutory requirement for board membership.
• Access denial also not voidable (subsidiary claim dismissed).

The claimants were ordered to pay costs.

What does this mean for associations and entrepreneurs?

This case provides important lessons for anyone involved in the governance of an association or other legal entity:

• Communicating your resignation means you are really gone. A board member who notifies via WhatsApp that they are stepping down and consents to this being made public cannot later claim to still be in office.
• When an association has no board, members may take control. If there is no board, the articles and the law provide a safety net for members to convene a meeting themselves.
• Statutory requirements for board members are strict. If the articles require board members to be association members, this must be demonstrably the case at the time of appointment.
• Digital GMMs can be legally valid. Provided they are properly announced and correctly conducted, digital meetings are also legally sound.

Case Reference

This post is based on ECLI:NL:RBAMS:2022:162.

Mr. V.M. Besters acted as counsel for the defendant association.