Tod v Swim Wales

An implied contract is not established merely because an individual is subject to a national governing body’s rules, is registered for administrative purposes, or participates in activities supported by that body. The claimant must show, objectively, sufficient certainty, intention to create legal relations, consideration and, critically, the necessity of implying a contract. Necessity requires more than consistency with contractual relations. It is absent where an existing two-tier structure between the individual and a club, and between the club and the governing body, adequately explains the parties’ dealings. In a sporting context, references to an individual as a “member” may be administrative shorthand and cannot override express rules stating that individual members are not members of the governing body.

The claimant was a volunteer water polo coach and a member of a club affiliated to Swim Wales. After his historic court-martial convictions became known, Swim Wales directed the club to suspend him and conducted an investigation which led to restrictions on his future involvement in affiliated organisations.

The claimant alleged that payment of membership fees, registration, participation in activities and agreement to comply with Swim Wales’ rules created an implied contract between him and Swim Wales. The court was directed to decide whether such a contract existed and, if so, its terms.

1. No implied contract. The preliminary issue was answered in the negative. The applicable principles required sufficient certainty, intention to create legal relations and consideration, but also necessity. The burden rested on the claimant. Conduct merely consistent with a contract was insufficient.
2. Two-tier structure. Swim Wales’ Rules expressly provided that individual members were not members of Swim Wales. They were bound by the Rules by virtue of membership of their clubs, and their participation rights arose through the club’s membership of Swim Wales. Obligations concerning compliance were imposed on the clubs, with failure potentially resulting in expulsion. This structure fully explained the relationship without implying a direct contract.
3. Administrative registration. References to the claimant as a Swim Wales “member” were convenient but potentially confusing shorthand for registration for insurance and administrative purposes. The registration form did not create legal relations, and the isolated reference to doping control was too vague and contextually insufficient.
4. Necessity and participation. The claimant had participated in activities before his registration was processed, and the relationship did not materially change afterwards. The parties would have acted in the same way without a contract. The activities relied on were club-led events supported by Swim Wales, rather than Swim Wales events. Neither the club, participation nor submission bases derived from Modahl v British Athletic Federation assisted him.
5. Alternative findings. Had a contract existed, the claimant’s misleading account of his convictions would have given Swim Wales a right to rescind. The court also held, provisionally, that any implied terms would have required Swim Wales to appoint a suitable independent investigator and to act in good faith when considering the investigator’s report and any sanction. More extensive requirements of oral or written representations were unnecessary.