A necessary premise is that almost all sports clubs, under our system, are facilitated by the art. 36 et seq. of the civil code as these are associations not expressly recognized by law.
From this follows the different regulation between those sports clubs established in accordance with the law and non-recognised associations and therefore, what follows from the recognition or otherwise of legal personality.
In the regularly constituted company for the President there is no responsibility for the obligations assumed by the company and the only financial liability attributable to the President occurs in the case of serious imprudence or negligence or even criminal acts;
Differently, for non-recognised associations, the art. 38 cod. civil states that "Third parties can assert their rights on the common fund and that the persons who acted in the name and on behalf of the association are also personally liable for the obligations themselves".
In other words, the creditors of the association can, at their choice, opt to take action both against the president and against the social fund.
After the issuance of the Legislative Decree 460/1997 and art. 90 of Law 289/2002, the National Register of Amateur Sports Associations and Societies was established at CONI.
The aforementioned legislation led to the limitation of the members' right to determine the functioning and management of the association and gave third parties the opportunity to establish a specific reference in the person who acts in the name and on behalf of the association.
The President's responsibility for the obligations assumed by the company was therefore affirmed on the assumption that these are taken at his direct disposal.
The rationale of the rule evidently lies in the reminder of the President's diligence in controlling the financial activity of the company.
A mitigation of the aforementioned principle lies in the fact that the President is not always held accountable for corporate obligations, since his personal liability is to be excluded in the event that the obligation arises from the assumption of obligations assumed, without his knowledge, by others managers.
The President is then burdened with obligations relating to the management of the company's business which are not only of a purely financial nature and thus his responsibility also arises from a criminal perspective. Consider the case of lack of control regarding the facilities in which the sporting activity takes place as well as the equipment used.
An extremely important profile is that concerning the President's responsibility in relation to the tax obligations incumbent on the company.
Given that any profit-making purpose pursued by the association must always be excluded. the legislation already called introduces tax breaks for companies. However, it is always necessary to determine which activities should be considered non-profit-making, given that they often take the form of activities that are contemporary with the exercise of sporting activity.
Consider the case of running a bar which, although presenting useful aspects for social activity, involves a profit.
A final aspect concerns the responsibilities that may be borne by the President in relation to any subordinate employment relationships belonging to the association and the consequent observance of the legislation governing the employment relationship and the social security position.
Also in this case, the violation of rules determines the exposure of the President to administrative and criminal sanctions.
The conclusion that can be drawn is therefore that, except for the exclusion of joint and several liability for the obligations undertaken by the company, the President responds in the same way as any person who has responsibility for any entity or company.
Milano, May 5th 2016.
Avv. Giovanni Babino
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