Guest Post by Andrew Keith – Dundee’s Administration in 2010 and Rangers’ in 2012

Andrew Keith, a Dundee fan and reader of this blog, has sent me some thoughts, referring back to a piece he wrote previously about Dundee FC.

He can explain it better than me, and I am happy to mark Dundee’s return to the SPL by having a Dundee perspective today.

And I will leave the floor free for Andrew now…

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With so very few cogent defences of Rangers’ indignation at their various ‘punishments’ available for comparison, I thought it might be self-satisfying to have a look again at a post I wrote in the aftermath of my team’s latest administration adventure. Interestingly, this might be turned around in the Rangers case and be less a defence and more of a call for further punishment.

Dens Park, Dundee – on a day neither dour nor dreich (c) Dick Donnelly

I am surprised, by the way, that the law of ‘unjust enrichment’ and the remedy of ‘restitution’, which might offer a sound and fair legal basis for framing the issue have not been heard much. Sadly, I am not yet a lawyer and have only an accountant’s legal training, but perhaps, Paul, you or other contributors can explain if this is relevant, or if I am just talking rubbish.

Here is my earlier piece. (Link disabled as I had managed to get it connecting to the wrong piece – Paul)

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I agree with Mr. Brodie [Re: The finding by a judge against the LPGA it is a restraint of trade for sportspeople to be tried by other sportspeople in the same sport] but would go further. We should take our case to the highest courts necessary to have the issues resolved finally. That does not mean we have to alter the plans set out by the administrator. Survival in the league and a successful CVA etc are still our priorities and it would be suicide to jeopardise any of that. But we can do both.

Simply by staying in the league and turning up for games we are declaring our acceptance of the punishment. However, it seems to me that this could be a seminal moment in football and is surely more important than just the consequences of Dundee’s administration. This is about how football is run, not only in Scotland but all over Europe.

In that context, Dundee’s fate is almost irrelevant. I even doubt that the issues could be resolved in a time frame that could have any bearing on season 2010/11, or 2011/2012 for that matter. The court proceedings would not be about Dundee avoiding punishment, but about how football leagues are run, how league decisions are made and the impact those decisions have on private limited companies and individuals that have series’ of inviolable legal rights under European and national laws.

Bryan A Jackson, administrator of Dundee FC in 2010

Let me put the case for the prosecution:

1 Clubs appear to be punished not for the specific and clearly identifiable actions which made administration possible, but for the act of falling into administration itself. As though, the crime is in getting caught and not in indulging in the dangerous activity. That is neither fair nor sensible.

2 A significant number of those allowed to vote on the punishment/appeals are i. businesses in direct competition with the convicted club and ii. themselves indulging in said dangerous activity at their own clubs. Interests don’t merely conflict so much as collide on a cosmic scale.

3 The legal principles of unjust enrichment and restitution would suggest that any gains made by the club should be considered in the punishment as should any losses suffered by other clubs. A fixed points deduction precludes that. A schedule showing actual gains by the offending club and losses suffered by other clubs should be the basis for deciding the punishment.

(As a matter of interest here, it is hard to see how anyone could demonstrate significant gains actually made by Dundee during the period – try deducting our actual points total in seasons 2008/09 and 2009/10 from what we might reasonably have been expected to earn without Melville).

4 The imposition of a signing ban appears to be a restraint of trade and is not prescribed in the membership body’s (SFL) regulations. A ban on signing new players restricts a clubs ability to trade its way out of financial difficulties by limiting its ability to hire the best people it can afford and also to restrict the freedom of individuals who may wish to work for the club but may not.

A league rule that a player may not re-sign for a club within twelve months of leaving is also a restraint of trade. Whilst accepting a need for vigilance in this area to avoid financial manipulation, a blanket ban is unduly restrictive particularly where no financial inducements are either offered or sought.

I am sure a good lawyer could pick holes in this but an equally good one could find more and better arguments and make a real go of it.

Given the magnitude of these issues, I wonder if we could find a legal firm to take up the case pro bono. I accept that Dundee do not have the resources right now and arguably should never be permitted to pay legal costs for a case that would be unlikely, in the end, to benefit it directly, win or lose. But as this would no longer be about Dundee, I would have thought we could elicit some interest from Edinburgh or Glasgow lawyers keen to make a name for themselves on the European stage.

Dundee FC v. The Scottish Football League and the Scottish Football Association should be as important as Union Royale Belge des Societes de Football Association ASBL & others v. Jean-Marc Bosman for the good of the game and to ensure that the legal basis of its structure and management is kept fair for everyone.

A footballer whose bravery and persistence have made many players millionaires, and who benefited himself by hardly a penny…

Posted by Andrew Keith

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11 Comments

Filed under Administration, Dundee FC, Guest Posts, Rangers

11 responses to “Guest Post by Andrew Keith – Dundee’s Administration in 2010 and Rangers’ in 2012

  1. superb Andrew – excellent argument.. That’s exactly what’s needed for a proper shake-up.

  2. RayCharles

    The SFA rules are Byzantine at best and Draconian at worst.

    Some of the punishments handed out to clubs for minor administrative infractions are wildly excessive.

    “Spartans have been thrown out of the Scottish Cup for fielding an ineligible player in their 2-0 win over Culter. Striker Keith McLeod signed a new contract in the summer but it was dated only once and the Scottish Football Association want it to be signed twice.”

    Using this judgment as a barometer, and given the charges facing Rangers, I am actually struggling to come up with a suitable punishment if the Ibrox club are found guilty of 10 years of deliberate double dealing.

    You would really need to get biblical in order to ensure the punishment is in proportion to the one meted out to Spartans, public stonings etc.

    I believe Andrew is right in that we need a major overhaul to ensure that rules more at ease with natural justice are incorporated into the ethos of the SFA.

    PS: When I hit the link above to “Here is my earlier piece.” I am taken to a message board discussing whether Dundee will be in FIFA13.

    As it is, I sincerely hope they are included.
    Some Rangers fans are concerned about this very same issue.
    Apparently, some of them are convinced FIFA13 will include their team as a “Rest of the World” side now their club is no longer in the SPL.
    Can’t see it myself, however I’m sure Dundee will be in FIFA13 on certain platforms this season.

    Obviously, I digress but only because of the link provided.
    It can’t be the correct link, surely?

    PPS: Would just like to say the fact your club took 3,000 fans to Killie today was amazing.

    I actually had a St Mirren fan at my work tonight bewailing the fact they had got Inverness and only 200 away fans for their first game of the season and how he wished they been scheduled to play Dundee instead.

    He was almost crying as he thought of the lost revenue.
    “It would have made up for a Rangers game”, he wailed, before adding: “And we’ll not get as many when we play Dundee as it won’t be the first game of the season any more and they won’t be up for it as much.”

  3. Andrew, I was particularly interested in your starting point, that ‘Unjustified Enrichment’ and ‘Restitution’ have not featured much in recent events. It would appear that these principles of ‘Common Law’ are confined to the Courtroom and Govt. Depts (such as HMRC in the VAT Manual).

    Of course, the Rangers case in the Court of Session (brought by Rangers) was restricted to the right of a body to impose a certain sanction from a tariff.

    Like RayCharles I was directed to a DFC message board when looking for your earlier piece.

    On a personal note (and from my personal ‘statutes’) I totally agree with Dundee FC’s return to the SPL and stated so prior to the decision being made.

  4. Andrew Keith

    Sorry about the link. It was indeed to the Dundee website forum but it would seem that it is not possible to simply copy the address that appears at the top of the page and get to the page wanted.

    In any case the specific post was shown in full above but if I work out how to provide a link directly to he correct topic, I will.

    The discussion on the forum continued and I even managed to work myself around to predicting what might happen if Rangers went under. Here is the text from two further posts, again from January 2011.

    “MikeM, I take your point. I wouldn’t expect and Edinburgh or Glasgow lawyer to do anything pro-bono to help Dundee (or any other football club for that matter).

    However, I am not suggesting that anyone would do it to help Dundee. In the way that RFC Liege made a decision in 1990 regarding Jean-Marc Bosman, which, at the time was not obviously outwith the rules of the Belgian league, so the Scottish Football League have made a decision regarding Dundee’s administration, which does not appear to be outwith the rules of the SFL.

    However, it does appear to be arbitrary and, particularly in relation to the decision makers (original and appeal), unfair, leading to a restraint of trade.

    This would be a a case with European wide implications. See this link for an excellent explanation for the basis of such action and more background.

    http://www.liv.ac.uk/footballindustry/bosman/html

    The relevant body to hear the appeal would be the Court of Arbitration in Sport. This is based in Switzerland and, as it has a specific sports remit, the costs are minimal. Please see this link http://www.tas-cas.org/arbitration-costs for more information about the costs involved (maybe as little as �2,000). The Club, the supporters trust, or even an individual fan might be able to bring the case – although, I would assume that whomever brought the case would have to show that they themselves suffered loss, and so, it would best be either the club or the supporters trust.

    We would not be the first Scottish club to use CAS. Hearts did so in a dispute with Andy Webster and his transfer to Wigan Athletic in 2006.

    I am sure there are lawyers amongst our fan base and plenty of wise people who could provide support both intellectual and practical.

    It may take years to conclude. We may not gain any funds for Dundee (and certainly none that would help us get the CVA through), but we will have done two very important things.

    1. Helped create a more fair and equitable regulatory framework for Scottish Football, and
    2. Provided the SFL and SFA with the help they so desperately need to run their respective organisations effectively.

    A word about the McLiesh report, awasteoftimeandmoney!

    To those posters who suggest that we should not waste our time with this appeal, I don’t understand how we, as a supporter group and as individuals cannot be involved in fundraising and this action at the same time. This topic has generated thousands of visits. This is an issue that people are interested in.

    If I am right, we can do this at minimal cost and with a relatively small amount of effort from a few committed individuals. I for one would see it as a labour of love. Perhaps all we need now is at least one lawyer from the fan base to lead, a group of fans willing to put in some time preparing the case (researching and drafting) and a wee group to raise a few thousand pounds to cover costs, and we could very well be there.

    If there is enough interest, I would be happy to produce a paper for general discussion outlining the case and how we might proceed.

    There is a fly in the ointment however, and that is that we have to get the SFL and probably the SFA as well to agree to the arbitration. This might not be easy, however, from their point of view, it would be better to go to the CAS than to face a much more expensive civil action in a Scottish or European court.

    If they are not quite as inept as they seem, they will be monitoring this forum to see if there is a strong movement in favour of legal proceedings amongst the fans who would have to finance it. Therefore, we can assume they are now aware of the possibility of legal action. It would be wise not to talk about the prospective legal proceedings here (it can be continued in private) and that we keep the public forum for discussions about arbitration only.”

    And Post 3

    “It is right to be sensible and cautious at this time. We have nothing to gamble with but our very existence. We should not waste official resources on further appeals especially if it ties us into a continuing battle with the league and SFA, and even more so if it carries the risk that we get further punished for complaining too much.

    Right, hopefully, that takes care of most of the straw man type arguments that have been put forward against continuing to seek a fair resolution to this situation.

    Now, about the arbitration process I was talking about earlier. Nothing I have read precludes contact with the CAS. It exists to deal with precisely this kind of situation. It is not an adversarial process and is in fact designed to avert recourse to the courts in sport related disputes.

    We must be the ones to rise above the level of our governing bodies. This is not revenge, it is not even defending our corner. It is even more important than that. It is doing what is right both for Dundee and for Scottish football.

    The Scottish League and SFA have gone and painted themselves up a cul de sac. There is no way out for them but either to risk destroying Scottish football directly (by forcing many clubs out of existence) or by applying different standards to different clubs (which would lead to a legal free for all). Their legal advisers must understand how shoogily a peg they have hung there tweed jackets on and might welcome an independent arbitration process that could determine a fair and legally defensible basis for working out punishments for administration, and, more importantly, bad management. We might even say we will accept the penalties in place after the SFA appeal no matter what the CAS outcome as a sweetener.

    The clock is ticking in Govan. Does anyone doubt that every possible legal avenue will be followed up in order to ensure that Rangers suffer as negligible a penalty as possible should they go into administration?. When that particular tsunami hits, it will be the SFA crying that ‘big boys’ did it and ran away.

    Dundee could come out of this with our reputation enhanced. All we need to do is to help Scottish football treat the disease that is poor management; a symptom of which is administration.”

    And now back to August 2012

    As you might imagine there was not a huge amount of support from Dundee fans for these suggestion. There was some debate and lots of reads but in the end few people wanted to be guinea pigs even for the greater good.

    I still feel proud of the way Dundee have conducted themselves during and after this administration episode and the turnout yesterday at Kilmarnock tells you that I am not alone. But, sadly, it won’t be us that eventually leads the way in finding a more just and equitable solution to the governance failures in Scottish Football. I doubt very much if it will be Rangers either. They appear to have dug their heels into a very different moving walkway and are, I fear, destined for complete oblivion, leaving the SPL, SFA, and SFL free to blunder on as they always have.

    Lets hope Hearts fans (they are next to go, right?) have the stomach to try and find a solution for the whole game. I have my doubts.

  5. ecojon

    Andrew

    A very thought-provoking piece – I might need to reach for the MSM Sundays to get me back to my usual Sunday tempo :)

    It stands the test of time so well, being pertinent when first written and even more so today. I doubt if any fair-minded fan would disagree that the various rule-books are needing a root and branch rewriting. Different bits have been fiddled about with for too long and it has become a mess.

    But never ever underestimate the difficulties of rule-book change and I am reminded of when I used to whinge about the arcane Elizabethan language used in the 1601 (I think from memory) Contract of Marine Insurance which formed the backbone of marine insurance even in the 20th C and might even still be used today. The reason it had survived was that every single word, phrase, sentence, and piece of punctuation had been tested in the highest courts in the land and therefore their ‘actual’ meaning was held – by and large – to be known and fixed.

    It’s really easy to criticise the SFA, SPL and SFL for not sorting it all out but we have to recognise the difficulties, time and cost that the exercise would create. That should not be used as an excuse for inaction as that will slowly throttle the Scottish Game.

    I think the involvement of the CSA is the only way to go. But I would counsel that the process is split into at least three distinct stages. Firstly, we must set up a structure that allows us to decide what we want to change and the reasons for coming to decisions. We must also include ‘minority’ objections.

    Secondly, we must talk and discuss our proposals with the SFA, SPL and SFL and this must be done in a constructive manner. No matter what we sometimes think about their decisions they should not be treated as the ‘enemy’. We want to make changes for the good of Scottish Football as we perceive it but we have to recognises that without the support of the governing bodies that task will become more complex, more expensive, take longer to achieve and continues the negative ‘splinter’ effect on changing things for the better.

    I realise that many on our side and also among the ‘suits & blazers’ might view the whole process with suspicion and even hostility – we have to be professional in our approach and climb beyond that. And from our side we must be wedded to the Common Good of Scottish Football and not be attempting to create a narrow advantage for any individual club. It might be an old-fashioned concept but I believe that without ‘Honour’ we have little chance of success.

    Thirdly, there is the CSA and I must stress that this shouldn’t be seen as our last ditch attempt to have our contrary views to the SFA, SPL and SFL be declared victorious. No, I see it more as our blueprint for Scottish Football – fashioned and influenced through constructive discussions with SFA, SPL and SFL – being given an imprimatur that will allow those at the top the ability to change the rules in a positive way rather than an attempt to legally force them into a corner which will only see them hunting for loopholes.

    All the earlier work we have done will slot naturally into our submissions to the CSA and we should also check to see if there are any parallels from other countries or work already done that we can draw on.

    This is the broadest of a broad brush approach and there are a million of details to be worked on about what we should be looking at and the structure required to drive forward our objectives. But firstly we have to decide what those objectives are and they have to be sound.

    As to raising cash there could be an approach to supporters groups but why don’t we go down the path of trying to raise it on the internet – I can’t remember the name but by asking those interested to contribute to a project. We could issue a ‘share’ certificate nicely done with appropriate graphics signifying that the supporter named has contributed towards the preservation and maintenance of ‘Sporting Integrity’ in Scottish Football by taking a stake in its future.

    We have seen what can be done when we get together as a body and we must build on that support to improve things: I remember a speech by Bill Keys back in 1974 when he had become general secretary of SOGAT the print workers union – and I apologise in advance to any Tory readers – when someone raised the power of the Tories and Bill replied: “The Tories? If we all spit together at the same time we will drown the B******s!” Those were interesting times politically :)

    However, you get the drift – we have the power and we have already demonstrated it this year. Let’s continue to build and work together for improving Scottish Football.

  6. Gobsmacked

    Unfortunately it is a fact of life that “you don’t get punished for breaking the law, but for getting caught breaking the law”. There were rule changes which everyone signed up to, but unfortunately the rider that they should only apply to the diddy clubs was omitted. You used the term fair, were RFC fair to the Creditors, were they fair to Scottish Football? Yes, let’s change the rules yet again, just to be fair.

    Relating Dundee’s misfortunes to a deliberate process to gain football titles and trophies by RFC does an injustice to Dundee. RFC got a 10 point penalty for going into Administration.

    Mr McCoist complained that decisons were being made by non football people. You seem to imply that football people have their own agendas. Let me be judged by a jury of my peers, seems to imply that the system applied by the SFA seems adequate though not perfect.

    Also agree good to see Dundee banck in SPL.

  7. Stuart

    The discrepancy between the points deductions imposed on Rangers and Dundee for going into administration arises from the difference between the SPL rulebook, which specifies a 10 point deduction regardless of the scale of the offence, and the SFL rules which effectively give their disciplinary commissions full scope to fit the size of the punishment to the crime as they deem to be appropriate. Yes, some of the penalties imposed by the SFL appear to be draconian compared to those handed out by the SPL, but does that mean that the SFL are the ones who have it wrong? Rangers’ debts dwarfed those of Dundee, but did their 10 point penalty alter the final league table in any meaningful respect?

    One of the problems with a specified penalty for a specified crime is that those who look to bend the rules will always try to stay one step ahead of the rulebook and the punishment will not be imposed for getting caught out. It will be for allowing someone else to get caught first before the legislators have caught up with the scam.

    Opinion will frequently be divided in that supporters of the punished club will always think that they have been penalised too much, especially since the crime was committed by a few individuals rather than by the club itself (sound familiar?) while supporters of their rivals will see the unfair benefits that the offenders gained over their own clubs.

    However, legislation frequently leads public opinion on emotive matters. Quite a few clubs went into administration before anyone caught on to the idea that this effectively gave them an unfair advantage on the field.

    • ecojon

      @Stuart

      I like this bit especially: ‘One of the problems with a specified penalty for a specified crime is that those who look to bend the rules will always try to stay one step ahead of the rulebook and the punishment will not be imposed for getting caught out’.

      It reminds me of the Olympic Badminton debacle whereby the cheaters go so caught-up in the minutiae of bending the rule book, without creating an offence, that they lost sight of the catch-all type of rule that should be at the core of every rule book viz: ‘Subject to appeal any penalty, authorised by the sport’s governing body, can be imposed on any contestant, official, or club for acting to the detriment of the sport’.

  8. Marching on Together

    Andrew

    “I agree with Mr. Brodie [Re: The finding by a judge against the LPGA it is a restraint of trade for sportspeople to be tried by other sportspeople in the same sport] but would go further”

    In the case of my own club, Leeds United, they appealed against the imposition of a 15 point deduction for not coming out of administration via a CVA in 2007, and the appeal according to the rules of the Football League was to the whole membership of the Football League. That meant that those other clubs in League 1, who would want Leeds to stay in League 1, to benefit financially from their large away following, and to improve their own chances of getting promoted, got a vote. It also meant that those clubs in League 2, who expected to see Leeds with their away following in League 2 the next season (up to that point, anyone in England suffering a points deduction had been relegated), also had a vote. Unsurprisingly the vote against the appeal was 70+.

    Leeds appealed further in terms of Rule K of the FA’s rules i.e to an arbitration panel, and the High Court judge chairing the panel, was critical of this provision, breaching as it does natural justice, and recommend that the Football League should change it. However the Football League have done diddly squat in that direction ever since.

    • Andrew Keith

      Hopefully, someone will take one of these cases to the Court of Arbitration in Sport and get it resolved once and for all.

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