Why Did Lord Glennie Find in Favour of Rangers in the Judicial Review against the SFA?

In which I go through Lord Glennie’s judgement and try to make sense of it.

The Herald has been kind enough to post the opinion of Lord Glennie in relation to Rangers’ “appeal” against the signing ban imposed by the SFA. Michael Grant’s article on it is here, and is worth a read.

You can see the full judgement here – Opinion of Lord Glennie in Petition of Rangers Football Club PLC for Judicial Review

I propose to go through it in some detail, and in a later post wrote about what might happen going forward. For clarity, the Judicial Panel (JP) is that chaired by Gary Allan QC which imposed the signing ban initially. The Appellate Tribunal (AT) was that chaired by Lord Carloway which upheld the decision. The relevant documents used in determining the decision were the Articles of Association of the SFA (Articles) and the Judicial Panel Protocol (JPP).

I would say is that, without the resources to have legally qualified, or at least legally attuned, reporters present throughout the hearing, it was always going to be difficult for the media to cover this case properly. The coverage there had been was confusing, and indeed one lawyer with whom I engaged on Twitter indicated that the disposal from the bench had not made especially clear what the precise decision was, other than Rangers had been successful in having the signing ban declared outwith the powers (“ultra vires”) of the JP. However, having sight of the decision makes all these matters crystal clear, and I hope not to muddy the waters in explaining it myself!

What was the Decision?

Put simply, Lord Glennie decided that, despite the arguments of Aidan O’Neill QC for the SFA, the JP did not, under the Articles of Association and JPP have the power to impose a signing ban. He therefore quashed that sanction.

He then decided to send the case back to the AT for reconsideration of the additional sanction, if any, to be imposed over and above the maximum fine for bringing the game into disrepute. Rangers were found entitled to the expenses of the application.

He could have instead quashed the full decision of the JP and sent the case back there. There were three reasons for not doing so.

1                     Speed – the AT could reconsider that part of the decision rather than requiring the JP to have a full hearing again regarding all the matters at issue, with the right again of a further appeal back to the AT;

2                     As the challenge only concerned the additional sanction, it was appropriate to let the AT decide this, as a quashing of the full decision would send the case back to the JP with all matters, including the question of guilt and the financial penalty again open for argument, even though they had already been accepted and not challenged by Rangers; and

3                     Under Rule 15.6.1.6 the AT can itself remit the case to the JP, and Lord Glennie felt that it was better to leave that decision to the AT itself, rather than impose it himself.

It needs to be said that, whilst the case was undoubtedly won by Rangers, in that the signing ban was quashed, their success was not complete. Richard Keen, QC, the Dean of the Faculty of Advocates, had urged Lord Glennie “simply” to quash the additional sanction. If this suggestion had been accepted, then the case would have been over, and the only penalty for bringing the game into disrepute would have been the fine.

Lord Glennie refused to follow this helpful suggestion and remitted the matter back to the AT. That he did so was entirely in accordance with the principle of Judicial Review. Put shortly, the purpose of Judicial Review is to see that decisions are made in accordance with the rules and that, within the wide legal definition, these are “reasonable”. The purpose of Judicial Review is not for the court to interfere by imposing the decision the court thinks right.  What the court thinks the correct decision to be is actually irrelevant. Lord Glennie noted that, if he did what Mr Keen urged, then the only penalty would be the £100,000 fine, which had been identified by both the JP and the AT as inadequate.

In this case, it was made clear by Mr Keen that this was NOT an appeal, but instead an application to the supervisory jurisdiction of the court, as the JP and AT had exceeded their jurisdiction. As Lord Glennie noted, “There is no appeal to this court on the merits of the case or concerning the appropriateness of the sanction if it was within the powers of the Tribunals.”

Therefore the decision to remit the case to the AT is entirely in accordance with the principles of Judicial Review. Indeed, for the court to have refused to do so and to impose its own decision would have been an acknowledgement that the AT was so tainted by its mistake to render it impossible for a fair decision to be given, or else that there could be no other decision by the AT than the one left after the court had quashed part of it.

That is why the case has been remitted to the same AT to deal with. Whilst Lord Carloway’s Tribunal has been decided to have fallen into error regarding its powers, it was not such an egregious mistake as to suggest bias or some other reason for removing the appellate power from it.

Did Lord Glennie Give the AT Any Directions?

Other than telling them that, for reasons I will come to, the AT could not impose a signing ban, and that it was restricted to the specific penalties mentioned in Rule of the JPP, he did not give the AT any directions. For a breach of Rule 66 (bringing the game into disrepute) the JP had the power to impose any of the following penalties, or a combination thereof:- a fine, suspension, ejection from the Scottish Cup, expulsion from participating in football and termination of membership of the SFA.

He commented that the JPP gave a range of sanctions, low level, mid level, top level and maximum. He noted that “in the present case the Tribunal thought that the conduct merited the maximum sanction and that is not challenged in this court.”

He quoted the AT which had said, in commenting on the JP decision:-

“Although the AT agreed with the JP that termination, suspension of membership would have been excessive, it made that assessment in the context of the availability of competent lesser sanctions such as the one actually imposed. Ere that option not to have been available, suspension might have had to be considered appropriate for such serious misconduct which has brought the game into disrepute.”

Lord Glennie went on to say “The fact that I find the imposition of the additional sanctions to be ultra vires does not necessarily mean that the petitioners will escape to a lighter and ineffective punishment. That is entirely a matter for the Appeal Tribunal and not for this court.”

Why Did Lord Glennie Decide the Signing Ban was Ultra Vires?

What we saw was a good old piece of interpretation.

He viewed the issue as one of interpretation of a contract, as the Articles and JPP effectively form Rangers contract with the SFA.

It was agreed that the AT and the JP were “specialist” tribunals and therefore assumed to be looking not at what the outside observer or disinterested lawyer might make of the Articles or the JPP, but instead at what people involved in football meant by these documents.

Mr O’Neill sought to argue that the Articles should not be interpreted as if a contract, but instead as rules governing football in Scotland at all levels. He described it as being absurd if an over-rigid interpretation led to a way which prevented the JP from having sufficient powers top deal with a problem, or which required it to use disproportionate and excessive powers.

However, Mr O’Neill fell foul of the normal rule of interpretation which is that words are to be given their normal meaning, and outside sources of interpretation only arise where there is doubt about what the statement means. Here Lord Glennie did not see any such doubt.

His decision making process started at Article 94.1 which deals with the powers of the JP. It gives the JP powers to use against anyone who brings the game into disrepute. These are stated to be the penalties mentioned above and any other sanction as provided for in the JPP.

Article 95 states that the JP has the power to deal with any breach of the Articles by various means including the imposition of any sanction mentioned on the JPP. However Lord Glennie pointed out that Article 94 only gave powers to the JP in the event of a breach of the rules, and did not itself create an offence, and therefore Article 95, as founded on by the SFA, was irrelevant.

Article 94 gives the JP power to apply sanctions as per the JPP. Reference is made in the Disciplinary Code in the JPP to specific punishments for each offence, categorised in severity as referred to above. Each Rule has its own page or pages, where amongst various items listed is the “Sanctions available to the Tribunal”. There are two references on each page to the sanctions “available”.

As regards Rule 66, a signing ban was not listed as “available”. Mr O’Neill argued that, as a mere fine was insufficient, and in fact “ridiculously low”, and suspension, expulsion or termination too harsh, there must be a way to read into the Rule and available penalties something which amounted to a proportional and effective penalty. The argument as laid out by the AT was that the Tribunal could award anything which was less than the maximum penalty.

This did not find favour with Lord Glennie. He contrasted Rule 66 with Rule 62, where the maximum penalty listed was a fine of £1,000,000 and termination. However there was no provision for a suspension, expulsion or ejection from the Scottish Cup. He took the view that, if the SFA interpretation was correct, these lesser penalties could be imposed nonetheless. That, in his view, made no sense. Why specify different penalties for each offence, if the Tribunal could do whatever it liked up to the most serious penalty, even where the option chosen was not mentioned as a penalty for that offence? Accordingly the JP and AT were wrong to impose and upheld respectively the signing ban.

Why Did the SFA Argue the Case should have gone to the Court of Arbitration for Sport (CAS)?

Mr O’Neill referred to Article 5.1(c) which states that all members shall recognise and submit to the jurisdiction of the CAS as specified in the relevant provisions of the FIFA and UEFA statutes. The FIFA statutes put before the court require FIFA to provide the necessary institutional means to resolve disputes and to recognise CAS and allow appeals to CAS in certain circumstances.

The FIFA statutes do not require members to submit disputes to CAS and the Articles do not do so either.

In fact there are specific areas in the SFA Articles and Protocols where an appeal to the CAS is recognised, but these primarily relate to disputes between member clubs, or regarding player or agent registrations. The inclusion of specific rights of appeal to CAS in some cases implies that there no such general right. In particular, as the JPP lays down a process of having the case heard by the JP and with a right of appeal, although on limited grounds, to the AT, there is not necessarily a need for a further appeal.

In fact, as mentioned earlier, theses proceedings were not an appeal, but an application to rein in the SFA whose judicial arms had exceeded their jurisdictions. There are many cases in UK administrative law where, even if a body’s decision is stated to be final and not subject to appeal that can be reviewed if the “decision” is made in jurisdictional error i.e. ultra vires.

Mr Keen brought the court’s attention to two case, Ashley Cole v the FA Premier League, and Al-Wehda Club v Saudi Arabian Football Federation which Lord Glennie accepted were authority for the proposition that no appeal lay to CAS unless provided for in the national association’s rules.

CAS, as its name indicates, is a form of arbitration, and a hallmark of that is that parties require to agree to enter into it. In some cases contracts lay down that any disputes MUST be settled by arbitration. Here it is possible that Rangers could have asked the SFA if they could agree to take the case to CAS, but the SFA might well have refused on the basis that the JPP gave no right of appeal after the AT decision. In any event, Rangers did not ask to go to CAS, nor were they, in my opinion, obliged to do so.

Conclusion

This was a victory for Rangers, however it might well be a Pyrrhic one. My next blog will address where the issue might go from here, and the risks faced by Rangers and by Scottish football in taking this route.

Posted by Paul McConville