I wrote recently about Stewart Regan’s remarkable admission that the “fit and proper” person test as regards football officials was a “myth”. This was because checking the bona fides of new directors and officials would take a “cast of thousands”. Therefore the SFA relied upon the member clubs and the officials themselves to confirm whether or not they were “fit and proper”. This is taking self-regulation to the extreme.
It reminds me of the questions asked on immigration cards when visiting the USA which, from memory, include asking of you are coming to the USA to overthrow the government or engage in terrorist activities. I do not think many people say yes!
The latest news from the SFA, although not accompanied, as of last night, by a statement from Mr Regan on the SFA website, is that the SFA has written to member clubs asking them to state if they have made payments outwith contracts to players in the last 10 years.
This has provoked a range of responses. Some view this as proof that the whole of football in Scotland was rife with what Rangers have been accused of, and this is the SFA catching everyone in the net. Others have seen this as a prime example of “whataboutery” ie an effort to catch others in the same net as, allegedly, Rangers, even if the scale is very different.
It is viewed by some as the SFA doing its job, and by others as a further abdication of responsibility.
After all, if the policing of the “fit and proper” rue would require a “cast of thousands” then how many, on Mr Regan’s argument, would be needed to oversee and review the financial information which football clubs are required to submit to the football authorities? Do the SFA, SPL and SFL employ a phalanx of accountants and lawyers to pore over the accounts lodged by member clubs? Or do they receive them in the post, and drop them into a secure filing cabinet, never again to see the light of day?
Mr Regan commented that the SFA had to rely on a PLC like Rangers fulfilling its legal obligations, which are wider than simply football-related rules. However only a handful of SFA members are PLC’s. Most are private limited companies, whose rules are much less strict than those for PLC’s.
Mr Regan’s “myth” comment therefore appeared to confirm that SFA, and by extension SPL and SFL regulation is “more honoured in the breach than the observance”.
What it does show is, in my view, proof that the SFA’s “governance” of Scottish football has been a “myth” and for many years has worked on the basis that, to quote the great philosopher, Terry from Fawlty Towers, “What the eye doesn’t see, the chef gets away with”.
I thought a look at the SFA’s own rules might be of interest. All can be found online here as part of the SFA Handbook.
The Memorandum of Association of the SFA states, inter alia, the “objects for which the Association is established”.
Article 3 (2) states “…to take all such steps as may be deemed necessary or advisable for preventing infringements of the rules of the game, or other improper methods or practices in the game, and for protecting it from abuses.”
The Articles of Association, being the revised version adopted in 2011 have further details of note. The Articles to which I refer have however been of long standing, and are not last year’s innovations.
Article 3 states that “The Scottish FA is a member of FIFA and UEFA. Accordingly it is itself obliged to:- (a) observe the principle of loyalty, integrity and sportsmanship in accordance with the principles of fair play; (b) comply with the statutes, regulations, directives, codes and decisions … of FIFA, UEFA, and the Court of Arbitration for Sport, and the Laws of the Game…”
Article 10 deals with the Official Return. Article 10.1 provides that by 1st June each year each member of the SFA must lodge this with the Secretary of the SFA. Any changes must be notified “without delay”.
Each member must “procure” that all relevant club officials confirm in writing to the SFA that they are “a fit and proper person to hold such position within Association Football.”
Article 10.2 contains the mythical “fit and proper” test. As I mentioned before, and inconveniently for Mr Regan, it states that “the Board (ie the SFA) must be satisfied that any such person is “fit and proper to hold such position within Association Football”.
This is a positive obligation on the SFA. It does not create the default position, which Mr Regan has admitted exists, that anyone who states they are “fit and proper” is so.
Article 12 relates to Financial Records. Article 12.2 states that “the Board may arrange for an inspection of, and may require the relevant club … to provide copies of all … books, records and details for any purpose, including, but not limited to Club Licensing.
Article 12.3 states “Furthermore, all payments, whether made by the club or otherwise, which are to be made to a player solely relating to his playing activities must be fully recorded within the relevant written agreement with the player prior to submission to the Scottish FA…”
Has the SFA, at any time since the EBT issues surrounding Rangers become public knowledge, approached Rangers to ask to see its books? Has it used its powers to conduct an inspection of the books?
On the basis that the EBT case is to determine if the HMRC view that the Trust payments to the players were “contractual” and therefore taxable, surely that raised a question in the SFA that Article 12.3 might have been breached?
If there were criminal proceedings ongoing then one could forgive the regulatory body taking a step back to so as not to prejudice such inquiries. However the Tax Tribunal is a civil matter, which was being heard, at the request of the appellants, in private. No question of “prejudice” would arise.
What, if anything, has the SFA done to investigate this matter?
As regards the SFA request to clubs to declare what they have been doing, this may be an effort to “trap” them into a mistake which puts errant clubs into the SFA’s clutches.
After all, the SPL took disciplinary action against Hearts in relation to repeated delayed payments to players, not because of the delays in paying them, but because the SPL considered Hearts had broken an agreement with the SPL.
The breaking of the “promise” to the SPL was viewed as an offence whilst repeated failures to pay staff on time was not?
Does Mr Regan hope (a) that a club will make a mistake in the declaration, and be dealt with as in breach of good faith with the SFA, or (b) that no payments are revealed, in which case he can say that the Board is “satisfied” that there is not a problem?
As the focus shifts of public debate shifts on to football governance, it would be helpful if Mr Regan, whether on Twitter or more formally, could answer the above questions.
Posted by Paul McConville
Random Thoughts Re Scots Law by Paul McConville 
More good stuff, Paul.
Who at RFC (IA) do you think should or will reply to these questions from the SFA?
And what do you think they will say … ?
Sorry: should perhaps have clarified: the questions I referred to are those contained in the SFA’s letter to member clubs asking them to state if they have made payments outwith contracts to players in the last 10 years …
Another great article Paul, keep them coming as I need my fix on a more regular basis.
I feel that the SFA are overwhelmed by this situation. They gave themselves time, quite rightly, by appointing Lord Nimmo to look into Craig Whytes suitability to act as a Director. Since this inquiry brought to light other alleged discrepancies in Sir David Murrays account of how he conducted his business, the SFA seem to have gone into hiding.
There are a few pending issues they could have already resolved such as sectarian singing during the first game after administration. We all heard the alleged sectarian songs on television and radio, why have they taken so long? There is also the question of uncontested monies owed to Dundee Utd. Could the SFA have provided Duff and Phelps with an ultimatum that barred Rangers from next years Scottish Cup thereby allowing Duff and Phelps to release funds as they did with Dunfermline?
I fear that the SFA are, as you have intimated previously, looking for the best way for Rangers to survive rather than aggressively pursuing what is right and proper according to their own rules.
PS. I hear that Hugh Keevins, and others of his ilk, are now claiming that it was Scottish journalists that brought this footballing tragedy to light. We all know that without the excellent work of yourself and RangersTaxCase that they would still be licking the crumbs from a certain ex owners table and ignoring the stench from the dead cat that has been lying in the middle of the road for the past 2 years at least.
Paul , whilst we seem to be dwelling on “the only story in town” , it seems that we are all choosing to overlook the much wider issues surrounding the malaise , greed , financial engineering and selfish interests prevalent in many of the premier clubs in both Scotland and England .
The Ibrox fiasco will run and run but let’s not forget…………………..
** Gretna and Brook Mileson , £4m lost and £600k due to HMRC with the absurb situation of the SPL paying players wages in order to fulfill fixtures.
** Dunfermline, Livingston and Gavin Masterton’s Stadia Group with Mastertons grand plans reportedly costing the BofS north of £25m. This is a really good one as Masteron was BofS Treasurer whilst at the same time running his private company , the Stadia Group .
** Dundee and the Mars Brother , £23m lost and £365K due to HMRC.
** Celtic’s near death experience before the arrival of Fergus McCann.
** Ranger’s implosion under Sir David’s self indulgent ownership and his personal access to Gavin Masterton and the largesse of the BofS.
** Motherwell saved by the millions spent by John Boyle.
** Kilmarnock kept going by the many many millions supplied by the late
Jim Moffat and his family .
** Hearts and the ongoing tradgedy under the Romanov family ownership.
** Hibs before the timely arrival of Sir Tom Farmer.
** The disaster of the SPL and the Setanta non contract.
For the beatiful game its an ugly picture and the same story repeats and magnifies itself in the English game For an unbiased and expert analysis go to http://www.christianaid.org.uk/images/blowing-the-whistle
alasdairB
Sfa are at best showing themselves to be little more than a trade association. A long way from being a governing body.
I couldn’t agree more. I would also add a blazered club!
I think it’s only fair to make a distinction between “the SFA” and Stewart Regan. I’m still, even at this late hour, prepared to continue to give Mr. Regan some benefit of the doubt. He came in to an organisation which has been rightly described as totally dysfunctional and I believe that he has had to tread very warily in the full knowledge that there are very few in whom he can trust. If he hadn’t already suspected that when he arrived, I’m fairly certain that the various scandals involving Scottish referees opened his eyes last year.
His style is not spectacular but he has a precious record of solving problems which were thought to be intractable. That is commendable. He plays a long game and doesn’t get drawn into tactical skirmishes at the expense of his greater strategy. I am still hopeful that he knows what he is doing and that he will make his move when he is absolutely certain of his ground. But not before.