What is the Present Legal Position regarding Rangers FC and Craig Whyte – A Brief 6,000 Word Summary

I have been, as readers of my blog will know, looking at several of the legal issues regarding Rangers present financial circumstances, as more fully reported in the press, by the BBC and on blogs such as www.RangersTaxCase.com .

For my information, and so I can be corrected about any misunderstandings I have, I thought I’d jot down some propositions about where matters are just now, and briefly where they may lead. I am more than happy to be corrected and educated further. I am also more than happy to leave the number crunching to RTC, Adam and others more arithmetically inclined who comment on the RTC blog.

Initial Propositions

I think it is agreed by all, on whichever side of the argument they might be:-

(a) that football is an expensive business to run: (Remember the old joke – how do you make a small fortune out of owning a football team? Start with a large fortune!)

(b) that Rangers (and Celtic) will budget for and depend upon some income from European competition; good runs in either or both the League Cup and Scottish Cup; a top two finish in the SPL as regards prize money; and, latterly, some net income from players sales every year;

(c) that all businesses to some extent are speculative in their budgets and projections, and the “aggression” of the business owners will determine how much of a safety net they have in their forecasts (after all, as we have seen with the News of the World, there is no such thing as guaranteed sales);

(d) that having a lot of the projections fail at once can cause havoc for a business’ finances;

(e) that Rangers were in a parlous position financially (as shown by the fact that the 85% shareholder was willing to sell out for £1 + the debt being taken over);

(f) that as Mr Whyte has himself acknowledged, the wage bill at Ibrox needs to come down substantially, notwithstanding legally binding undertakings to make certain investments in the Club (which may or may not have been put in yet); and therefore

(g) that based upon all that has been made public, and for example ignoring RTC’s spreadsheet, it is still clear that Rangers require extra finance from some source to maintain its trading position.

How much and when are questions to which only those running Rangers and its owners will know. As there appears to be no bank giving Rangers credit just now, there may not even be a financial institution with that knowledge.

Depending on (a) the present cash position of the business (b) Mr Whyte’s investment and (c) funding that might come from other people or institutions by way of loans, Rangers could be poised (Tax cases excepted) to run out of money tomorrow, or next year, or on Christmas Day 2100.

Until details are published with the present position (as even the annual accounts will be historical) all is speculation as regards the cash flow of Rangers.

The Tax Cases – The Small Case

As far as the tax issues are concerned, there has been an arrestment of funds regarding the “small” case. The arrestment will be 60 days old any day now. That would give HMRC some priority in respect of the arrested funds in the event of administration or liquidation. The position regarding receivership is less clear (which is a polite way of saying that I have not fully got my head round the present legal position, though to be fair to me, it does seem confused).

In any event, the arrested sums will automatically be paid over to HMRC once the arrestment has been in place for 14 weeks, and as long as no “Insolvency Event” takes place in between. The money arrested is not paid over after 60 days.

In the event of receivership happening between now and the 14 week period expiring I can imagine there might be extended and complex litigation on the issue. The sum of over £2 million which has been arrested is well worth fighting for.

The fact that the sum mentioned has been arrested but not yet, as far as is understood, paid to HMRC, is worthy of note. Rangers could authorise release of those funds to HMRC now. They are not obliged to wait till the 14 weeks passes. Taxpayers might not rush to sign over the sums in a case like this, but further interest on the unpaid bill will be accruing on a daily basis, and this has led to speculation about Mr Whyte’s intentions. Is he expecting some event between now and the 14 week expiration, which will give him priority, though the Floating Charge in the name of “Group” over HMRC? As Mr Whyte has not stated this publicly, nor indeed said why he has not agreed to that payment despite his undertaking in the takeover to invest funds to meet this bill, we are left in the dark.

It has been stated that Rangers are disputing the matter of penalties as regards the “small” tax case. I am unaware as to whether this is continuing through informal means just now, of if, an appeal having been lodged against the notice of penalty, a date for a hearing before the First Tier Tribunal (FTT) is awaited. One assumes that, if liability is not accepted, then the case will end up at the FTT, insolvency permitting.

The Tax Cases – The Big Case

As regards the “big” tax case, this has been running for some time now and it is understood that the third session of the FTT hearing is to take place next month (November). I do not know the exact date fixed for it, nor how long it is left to run, but the understanding seems to be that the appeal will conclude during this episode. The FTT will not issue a decision ”on the hoof” as clearly there are substantial arguments to be considered on each side and, one assumes, significant amounts of evidence from either party. Normally a decision would be forthcoming perhaps one or two months after the case closes, so a decision is unlikely prior to 2012.

In any event, either party, if dis-satisfied with the result, can appeal on a point of law, to the Upper Tribunal. Thereafter there is a further appeal to the Inner House of the Court of Session, and a final appeal to the UK Supreme Court. If the full appeal route was followed (and in a case of this magnitude that would not normally be a surprise) it would take some years before the case resolved.

If the FTT upholds the HMRC assessment, and Rangers did appeal, it would normally be expected that the disputed sums by way of tax be paid in any event (to stop a party appealing simply to delay payment). However, the taxpayer can ask the Tribunal to postpone or limit the tax paid on that basis, and this would be determined by the Tribunal, looking at the issues involved in the appeal, the apparent strength of the appeal, the sums involved, and the taxpayer’s record as regards dealings with HMRC. If, in this example, Rangers failed in the Appeal at the FTT, and had to pay the full sum due to proceed further, then, as Mr Whyte himself has said, insolvency is inevitable. If not, the position remains open.

The press has recently reported Mr Whyte as having said that he may not appeal the decision of the FTT, if it goes against Rangers as the matter hanging over the head of the Club causes ling term uncertainty. If the appeal to the FTT fails, and Rangers had what their counsel viewed as reasonable appeal chances, and a reasonable chance of postponing any payment meantime, then why would such action not be taken? If it is Mr Whyte’s intention, as he has said, to run Rangers for the long-term, what will a refusal to appeal an unfavourable FTT decision mean?

Could it indeed open up a challenge by minority shareholders? If the directors of a company have a duty to act in the best interest of the shareholders, in a group structure like this where the subsidiary is 85% controlled by the parent company, can the directors of the subsidiary actually proceed down a road (receivership) which ensures that the parent company is paid in full in respect of the debt it is owed, but the shareholders are left with nothing? On the basis that the parent company’s shares too would be worthless, I suppose the answer is yes, but it would always be possible for a minority shareholder to seek to challenge these actions of the directors in court.

If There Is an Insolvency Event, What Will It Be – Receivership?

It seems hard to see, from all that has been said, and based upon the financial disaster caused by the arrestments and the failure to qualify for European football past the preliminary round stage, that Rangers, especially with the tax cases moving towards conclusions (though, as I have said, the appeal process could delay the “big” case for many years), can survive without an insolvency event.

“Group” being the parent company holds a floating charge over the assets of the subsidiary “Club” which crystallises when the charge is called up. At that point the charge no longer floats but secures the Club’ assets. The receiver, appointed under the Floating Charge, has the job of getting the creditor paid. The receiver, subject to acting fairly, has no role in realising funds for any other creditor. Clearly the receiver could not, for example, agree to sell an asset worth £50 million to the creditor for £18 million, purely to extinguish the debt due under the charge (if in this example, the debt was £18 million). However valuations of assets can vary according to the valuer and as long as a receiver acts on credible valuations, then the chance to challenge that might be limited.

So, if Group appoints a receiver, Mr Whyte would aim to recoup his full investment in Rangers as stated in the circular at the time of the takeover, to include what he paid to Lloyds TSB to clear the Club’s £18 million debt with the bank, and the various interest, management and other charges Group is entitled to levy on the Club.

If There Is an Insolvency Event, What Will It Be – Administration?

An administrator’s job is to see if the company can be kept running and disposed of as a going concern, generating enough from a sale of the business, or assets therein, to satisfy the creditors. Once secured creditors are paid (such as creditors under a crystallised floating charge and lenders with a Standard Security over land and buildings) the administrator, whose fees make him also a preferential creditor, seeks to realise funds for the unsecured creditors.

If a company is in a state where an administrator is appointed, then it is unlikely that there will be sufficient to clear all creditors in full. In those circumstances, the administrator can seek the agreement of the creditors to a CVA (Company Voluntary Arrangement). By this means the administrator would propose that all unsecured creditors receive the same proportion of the debt due by them, thus writing off the balance. Often these CVA’s propose only a few pence in the pound, as either the administrator can realise few assets, or else the secured creditors take the lion’s share.

Each creditor has a vote in proportion to the size of the debt owed. If creditors owed at least 75% of the debt agree to the CVA it becomes binding and a creditor in the minority cannot stop it going through. It seems to be the case that HMRC would block any CVA where the “owner” of the business got all his money back leaving HMRC (and the other creditors) with little or nothing. This took place at Portsmouth FC and HMRC lost a High Court battle to stop their CVA going through.

If a company comes out of administration under a CVA it is still the same company, even though it might now be owned by different people. This has a bearing on what would happen to Rangers, should they go into administration.

In addition, there exists what is known as a “pre-pack”. This most commonly occurs in an administration but can also arise in liquidation. In simple terms, in a “Pre Pack” a buyer is lined up for a struggling business before it goes into administration or liquidation. A common situation is where a business is carrying historical debt which it can no longer afford to service. The core business may well be still viable however.

In many cases the owners of the existing business form a new company which in turn buys the assets of the old company from the Liquidator or Administrator, but leaves behind the debts. There are those who feel this is morally wrong but there are always differing viewpoints. The procedure is perfectly legal but has to be arranged within strict guidelines. Administrators are appointed to act by the Court.

As with many things in life there are winners and losers. Take the designer clothing chain USC which went into Administration recently. It had 58 outlets and under a “pre pack” sold 43 of those stores back to a new company owned by the original owners. Understandably, such situations can provoke anger among suppliers and landlords, many of whom can be left with unpaid bills. However, out of 1427 staff, 1127 kept their jobs. Tax-payers may question why they should foot the bill for unpaid tax bills often written-off in such arrangements but that too can be countered with the savings of not paying unemployment benefits. Generally, by the time of administration or liquidation, the business owners themselves will have already lost significant amounts, though as we have seen that does not appear to be the case for Group, as per its Floating Charge.

One criticism often raised is that the assets are sold at below market value (which reduces the amount available to pay creditors) but there is often a limited market for the assets. In Rangers’ case, what is a football stadium worth? What are the players’ registrations worth, in a fire-sale? What value is there in Murray Park?

Under a “pre-pack” the company running the business is a new company. The existing one is left to wither and die burdened by the unpaid debt.

If There Is an Insolvency Event, What Will It Be – Liquidation?

If a company is insolvent, either unable to pay its debts as they fall due, or with an excess of total liabilities over total assets, then the directors, or a creditor, can appoint a liquidator. Whilst an administrator’s job is to protect the company whilst generating funds to pay something to creditors, the liquidator’s is to break it up to pay off the creditors.

Liquidation can follow either receivership or administration, either where a creditor decides to take action to protect their own position in a receivership, or if it becomes clear in either example that there is not sufficient to pay the creditors.

In a liquidation, because there is even more of a “fire sale” atmosphere, the assets will generally sell for even less than in a receivership or administration.

A company in administration may find the administrator threatening the creditors that, if a CVA is rejected, there will be a liquidation and creditors will get little or nothing. That proves always reminds me of Cleavon Little, as the Sheriff in Blazing Saddles, holding himself hostage to escape the angry townspeople of Rock Ridge.

Liquidation brings the company to an end.

What About Rangers’ Other Legal Cases?

As matters stand, Rangers are presently being sued by two former executives, Martin Bain, the former CEO and Donald McIntyre, the former Finance Director. Each has been successful in court in having the court order that substantial sums be arrested so that, if they ultimately succeed in their claims, there will be some funds to pay them.

However, as Mr Bain’s case will only go to proof next July, and after that appeals could be lodged, and as Mr McIntyre’s case in only at its earliest stages, it seems likely that any Insolvency Event involving Rangers will have taken effect long before any judicial determination in their cases.

In that event, should Rangers enter administration prior to the cases concluding, then the gentlemen would lodge claims in the administration for the amounts they are seeking and it would be up to the administrator (or ultimately the court) to decide what the correct level of claim would be.

It has been stated by Mr Whyte that Alastair Johnston, the former Chairman, has threatened court action for £30,000 of unpaid expenses. Similar considerations as regards time apply to such a claim too, although there are methods, for example by suing in Glasgow Sheriff Court under the commercial procedure, whereby a full hearing could be set quicker than in the Court of Session. One would imagine the issues in such a case would be a lot more clear cut than, for example, in Mr Bain’s case.

In addition, John McClelland, the Chairman before Mr Johnston, is rumoured to be ready and willing to engage Mr Whyte, or one assumes his Group, in litigation. As far as I am aware however, there has been no indication as to whether or not this threat actually came from him, or if so, what the basis of any such case would be.

Mr Whyte has also threatened legal action against the BBC for its Inside Story documentary last week. It has been said that Carter-Ruck have been instructed. As yet there is no confirmation of proceedings having been issued to the BBC. The instruction of Carter-Ruck would indicate an intent to pursue the case at the High Court in London. Whilst the laws of defamation in Scotland and libel in England are similar, there are differences. Perhaps, when at a loose end, I can offer some more detailed thoughts regarding the apparent issues, but that is for another day.

Rangers’ Entry to European Competition

There has been, over the last few days, a lot of discussion regarding this point. In terms of UEFA’s rules, a team entering the Champions’ League or Europa League, needs to have the appropriate licence issued by the national football association. Without the licence, the team cannot compete.

One issue which is stated as possibly preventing the issue of a licence is indebtedness of the team at a particular point in the year in respect of tax liabilities. Some have suggested that the two tax bills facing Rangers ought to have prevented them being issued with a licence to compete in Europe in season 2011-2012. Whilst UEFA and the SFA will surely be unwilling to discuss the specifics of Rangers’ case (or indeed of any other team), unless there is sufficient evidence of a fraud or deception (within the criminal meaning of the word) I see no way in which either the SFA or UEFA would be in position to take the action some commenters have been calling for as regards Rangers.

As regards the big tax case, this is under appeal. Therefore nothing is due, until the appeal is resolved. If the FTT goes against Rangers and they appeal further, then the big tax case’s existence would not affect Rangers’ eligibility for European competition in 2012-2013 either.

In connection with the little tax case, whilst Rangers had a provision in its accounts prior to the relevant 31st March 2011 deadline, this does not mean that the bill was at that stage overdue within the meaning of the UEFA regulations. Depending on precisely when the bill was accepted by Rangers and what discussions were taking place with HMRC, I suspect that Rangers would have submitted their required application to the SFA having had legal advice that what they were putting forward was appropriate. Sometimes matters of legal interpretation can be very finely nuanced (remember President Clinton saying “It all depends what the meaning of the word ‘is’ is). Whether something is “overdue” within the regulations might be a matter of interpretation where more than one definition could be used.

Of course people remember the SFA machinations under Jim Farry which delayed Jorge Cadete playing for Celtic, but if anyone is to suggest that the SFA, for example, connived with Rangers to issue a licence they were not entitled to, there would need to be evidence of that. As far as I am aware, there is none in the public arena just now. Presumably a team affected by this issue could seek to obtain information, perhaps by a court order, from the SFA, but without any specific information, and only with general suspicions, a court would not permit a “fishing expedition” in the hope something turns up to support any such allegation.

Craig Whyte’s Disqualification as a Company Director

The BBC programme referred to included what, to me anyway, was new information that Mr Whyte had been disqualified from acting as a company director in 2000 for seven years. Whilst I have seen comments to the effect that this information was known in the takeover process, I have not seen mention of it in checking back through reports. I am not saying that it was not known – simply that, for an important piece of information, it seemed to have very little publicity.

I have earlier written about this issue and speculated as to what might have caused a seven year ban – reaching the conclusion that this must have been more than the claimed “technicality”. Such a disqualification, now served, does not affect his ability to be a director now, although Private Eye has suggested that failing to disclose this may have broken the rules of the Stock Exchange on which the company’s shares are listed.

More pertinently, some have suggested that, under SPL rules, Mr Whyte cannot be a director of an SPL team as he has been disqualified from being a company director within the last five years. Here is a point of interpretation which might seem confusing. As his suspension lasted until 2007, he was clearly “suspended” within the last five years. But the normal rules of interpretation would suggest that it is the time when the disqualification was imposed (in this case 2000) which is important, not when it continued to. A plain reading makes either possible. If the SPL now sought to suspend him taking the first literal interpretation to be accurate, I would suggest that his appeal would take about two minutes to succeed (if his representative spoke slowly!)

Even if there are no legal consequences of any alleged failure to disclose this matter, I suspect it might have affected the views of some of the parties to the takeover, both directly involved and as media commentators. However, “he has served his time” and is undoubtedly entitled to be a director now.

The BBC programme made certain allegations too about his conduct whilst disqualified. These were made in the context of the winding up of a company where, according to the Government’s Insolvency Service, Mr Whyte was a shadow director. Mr Whyte denies such allegations.

Questions have been raised about this allegation, and the fact that he was not prosecuted. As I have said before, this might be because the Crown Prosecution Service viewed him as innocent, or that there was not sufficient evidence to give reasonable prospects of a conviction, or that there was enough evidence to prosecute, but the fact he was at the time resident in Monaco made it not in the public interest to do so. Bottom line? He was not, and cannot now, be prosecuted for alleged breaches of corporate or insolvency law dating back to 2003.

Might Rangers Be Stripped of Their Titles or be Liable to Pay Damages to Other Teams?

Some have said that, if Rangers are found to have underpaid their taxes, they should be stripped of their titles won whilst the “illegal” Employee Benefit Trusts were in operation, and that they should be held liable for damages to be paid to teams who lost out because of what is seen as Rangers cheating.

Whilst there are moral arguments about benefiting from wrongdoing (even if only the civil wrong of not paying taxes) they do not help here.

If, as RTC believes, there is clear evidence of criminal activity by persons involved in the running of Rangers and administration of these schemes which will result in criminal prosecutions, then this allows a slightly stronger argument, but even then, I do not see any way in which previously won titles will be forfeited. If, as happened with Marseilles and Juventus, there was evidence of the teams conspiring directly to fix matches or results, or to suborn referees, as these can be shown to be directly affecting the outcome of games and are clearly against football’s rules, then such draconian action is justified. However, unless there is some rule in the rulebooks of the SPL, as regards the League, SFA as regards the Scottish Cup or Scottish League, as regards the League Cup, then the titles will not be forfeited.

Equally too, any club taking action against Rangers directly, or against the SFA/SPL for permitting Rangers, to operate these unlawful (in tax terms) schemes would be doomed to fail, as it would be impossible to link the wrongful act with the loss. Whilst it might be shown that Rangers, operating legally, might have had less money, or not been able to sign specific players, a court is not going to determine that this definitely altered the course of a season. The loss is too remote from the wrong. If the loss is not seen to flow from the wrong, then there can be no liability.

If certain individuals were found to have been guilty of criminal offences as regards these schemes (and such a determination, if one is ever made, is far away) then I understand that the SPL could take action against such persons on the basis that they were not fit and proper persons to be involved in running a football club. Such an allegation in connection with these matters cannot of course be put against those involved with running the club with Mr Whyte, as his new broom has swept clean.

So, What Will Happen To Rangers? – They Might Survive Financially

First of all, Rangers might be able, as a result of funding from Mr Whyte or elsewhere, and regardless of the HMRC result, be able to survive financially. That seems unlikely in view of the figures being discussed and spoken about, even by Mr Whyte and particularly so if the tax case is lost. But his business acumen might render such an outcome possible.

So, What Will Happen To Rangers? – Craig Whyte Could Sell Up

Secondly, Mr Whyte might sell the team. It is hard to see anyone buying it when the tax case is looming. That case ending in Rangers favour might make that more plausible, but would Mr Whyte be able to sell the club in a way to recoup his investment and make a profit? Hard to see that in the short or medium term.

So, What Will Happen To Rangers? – Rangers Might Enter Administration

Thirdly, Rangers might suffer an “Insolvency Event”. What are the consequences of this?

There would be an immediate loss of ten points in the SPL, and that ten point deduction would apply in each season where the “Insolvency Event” was ongoing. Therefore if the Club is to come out of administration by way of a CVA, this must be concluded prior to the start of season 2012-2013 to avoid a second 10 point penalty. As mentioned, HMRC would appear likely to object to a CVA which left them getting only a small return on the huge sums they are claiming. This suggests that the existence of “new” Rangers needs to be examined.

In addition, the occurrence of an “Insolvency Event” would likely prevent the SFA issuing Rangers a licence for European football next season, if the administration process was not resolved by the relevant date. That would clearly be important for Rangers going forward, as the lack of any significant UEFA money this season seems to have quickened the pace as regards such an event taking place.

Then comes the question of Rangers’ registration. Others have written in forensic detail about this, so I will skim over the top of the issues. If Rangers go into and come out of administration, by way of a CVA, then it is the same corporate entity and as such it would retain its history – it would remain, legally, the same club.

So, What Will Happen To Rangers? – They Might Be Bought Over in a Pre-Pack or Liquidation

If however there is a pre-pack, where the assets are bought by a new company (referred to as “newco”) or there is a liquidation and a “newco” buys up the assets and, for example, buys another team with the intention of moving them to Ibrox, whilst changing the name, this would be a new corporate entity. In the former case, legally, the team would have no connection with the “old” Rangers. Indeed if the newco attempted to pass itself off as the oldco, there would be a risk of HMRC and other creditors looking to pursue it on the basis it was a phoenix company and effectively a continuation of the oldco. Any purchaser, whether Mr Whyte or someone else, would not want to make the connection so obvious that that would happen. Would that affect the claimed history of the team, the name of the team, the colour of the strips, or the ground where they played? All of these might be relevant.

The rules of the SPL seem to prevent a newco being admitted directly to the SPL without having come up the ladder from the Third Division. However, the SPL is a company, owned by its shareholders, the teams in it. An Insolvency Event allows the SPL to reclaim the share held by an insolvent member. The SPL, by a 10-1 vote, could agree to allow a newco immediate entry to the SPL by changing its own rules. Thus a newco Rangers, in theory, and as long as no more than one other SPL team opposes them, get straight back into the SPL. Indeed, if the change to a newco happened mid season, there is nothing in law which would preclude the SPL from allowing the newco to take over the oldco’s points.

Would fans of other SPL teams agree to their directors effectively resurrecting Rangers? Would, for example, Celtic fans approve Peter Lawwell voting in favour of Rangers’ immediate re-admission? Would Vladimir Romanov vote in favour of one of the detested Old Firm? I suspect from what I have read that a Celtic Park following such a decision would either be full of protesting fans, or three quarters empty, with tumble weed blowing around!

UEFA too might have issues, but when it comes to these matters, in the spirit of subsidiarity, it prefers to leave the local associations to resolve these knotty issues. The problem would then be one for the SFA, and I suspect that, if the SPL allow a newco Rangers back into the SPL, then the SFA would go along with that.

Might a decision to allow newco Rangers to inherit oldco’s points be challenged? I suppose it is possible that the team who end up facing relegation might argue that this was unfair, but the counter argument would be (a) that the SPL had voted in favour by the required margin and (b) that the points won were effectively part of the assets acquired by the newco.

If the worst happened from a newco point of view, and direct admission to the SPL was not allowed, then they would need to seek admission to the Third Division and work their way up. In the same way that Juventus, relegated to Serie B for corruption, kept most of its players and motored back to Serie A in one season, banging in goals and packing grounds left, right and centre, one could imagine a newco Rangers doing the same as it travelled from Arbroath to Annan, from Peterhead to Berwick.

The Cleveland Browns Analogy

The matter of sports teams’ histories can be very emotional, not just in Scotland. The Cleveland Browns were a team playing in the NFL. They had a history dating back to their founding by Paul Brown (hence the name) in 1946. In 1995 however, the franchise owner Art Modell, decided to move the team, lock, stock and barrel, to Baltimore for the 1996 season. The loyal Clevelanders went mad. Court actions, threats, vandalism etc occurred, but the move was not stopped, and the re-branded Baltimore Ravens kicked off in 1996, with the players, staff, and history, of the Cleveland Browns.

Then what happened showed how flexible these matters can be.

The NFL decided that the fairest solution it could come up with was as follows.

The “new” Baltimore Ravens were treated as having come into being in 1996, even though the ownership was that of the previous Browns and most of the players and staff were too. A new franchise would be created to commence playing in Cleveland, as the Browns, in 1999, and the relevance for our discussion was that the league agreed that the history of the Browns from 1941 to 1995 was the history of the “new” Browns – they had had a “hiatus”. From a football perspective, it is of note that Al Lerner was the owner of the new franchise in Cleveland, and on his death his son, Randy, took over. That is the same Randy Lerner who owns Aston Villa!

What about the Players’ Registrations?

As far as the players’ registrations go, there are varying views about this. As I understand it, administration does not affect their contracts (though the administrator can elect not to keep them on) unless they are not paid, which would be a breach of contract entitling a player to terminate the contract and become a free agent. Whether or not a player did so would depend on whether he, or his agent, thought he could get a better and more secure deal signing elsewhere. Any player who was out injured long term or whose performance level had dropped off might be happier, administrator permitting, to hang on at the Club as the cash would not be forthcoming elsewhere.

Liquidation however is different. As I understand it, the appointment of a liquidator would effectively turn the players’ registrations over to the governing body. In that case, newco Rangers would not be burdened by the old contracts but would have none of their players either, unless they individually agreed a new deal with newco.

If there is a newco following a liquidation, then the absence of debt, and the likelihood that, even without the legal connection, many fans would see newco Rangers as a continuation, there would be far more money available than in any other Division 3 team and we would see a repeat of what Gretna did in shooting up the divisions, except with more money being spent and in a 50,000 seat stadium.

What Does Craig Whyte Stand to Gain?

Mr Whyte is a businessman, and by all accounts a successful one. He seems, from all publicity, to be a man who gets involved in failing or troubled businesses, and either seeks to turn them round, selling them on as profitable and this making his own profit, or breaking them up and realising the assets to make his profit that way.

His dealings with Rangers suggest a similar approach. He is believed to have cleared the full debt to Lloyds TSB by paying them £18 million. In return he took over their rights under the Floating Charge. This is security, if in standard terms, for all sums due by the debtor, “Club” to the creditor “Group”. Accordingly, this charge assists Group to recover all the money paid to Club or on its behalf and fees and interest. Mr Whyte could have discharged the Bank’s security and taken a new one of his own, bur Floating Charges granted pre-2003 are better for the creditor, for reasons discussed elsewhere.

Group also undertook to write off the debt owed to it by the Club 90 days after the end of the “big” tax case. Why would a successful businessman agree to write off a debt of in excess of £20 million, at least, owed by a subsidiary to its parent company, especially as Mr Whyte has either had to raise from his own funds, or from a third party, the £18 million paid to Lloyds TSB? This is not a paper debt he has said will be written off.

It may simply be that Mr Whyte is a loyal Rangers fan, able because of his vast personal wealth to take over his lifelong football team and who will not baulk at paying whatever is needed to keep that team going and do so successfully.

However it may also be that he is a very canny businessman who perceived that, with an average European season, there would be enough funds to keep going till January at which time players could be sold, this being in anticipation of the FTT decision, but sadly it would have become apparent that there was simply too much dent to survive as oldco. In that event, Group appoints a receiver – it gets all its money back, including fees, charges and interest (levied at 3% per month). It might even be that he uses the funds he has realised, to pay the administrator or liquidator to take over the assets of the oldco, and he is then full owner of Rangers, unencumbered by any debt, and able, if he can persuade his fellow SPL directors, to keep going, minus only a ten point penalty.

The early losses in Europe and the League Cup have damaged the plan. He may well have had to put in more than he wanted now to keep the team going. However none of that necessarily renders void the original plan mentioned above.

Questions are still to be answered. For example, he has pledged, even in insolvency “to protect the small shareholders”. How does he plan to do so? What would happen to season ticket holders in an administration or liquidation>? The administrator or liquidator can refuse to honour their contracts and seek admission on a game by game basis, whilst leaving the season ticket holders as unsecured creditors.

Would Mr Whyte be able to persuade a large number of fans to pay twice for their seats, probably so!

What would happen with supporters who purchased season tickets through a finance company? They would still be liable to pay the company, even whilst no longer having rights to a seat.

Conclusion

There are many matters listed here, and I know many more I have not addressed. However, I think these are the main points as we sit on 27th October at 3.30 pm.

I will be very happy if any readers have comments on what I have said about the legal and factual issues. As I said at the top of the page, I am interested in the legal issues, and thought that a portmanteau piece, pulling them all together, might be of value, if only to me.

I suspect there is still more to be written here, and, to re-assure any readers who follow Rangers, rest assured I will be happy to write about legal issues concerning Celtic, Hearts, Albion Rovers or Inverurie Locos, as long as something of sufficient legal interest arises.

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11 Comments

Filed under Bain v Rangers, BBC, Civil Law, Courts, Football, McIntyre v Rangers, Rangers

11 responses to “What is the Present Legal Position regarding Rangers FC and Craig Whyte – A Brief 6,000 Word Summary

  1. Good post. I thought I’d weigh in on this:

    “Each creditor has a vote in proportion to the size of the debt owed. If creditors owed at least 75% of the debt agree to the CVA it becomes binding and a creditor in the minority cannot stop it going through. It seems to be the case that HMRC would block any CVA where the “owner” of the business got all his money back leaving HMRC (and the other creditors) with little or nothing. This took place at Portsmouth FC and HMRC lost a High Court battle to stop their CVA going through.”

    I believe, though I haven’t double checked, that the CVA with Portsmouth wasn’t about owners getting money back but stopping the agreement that football debts are paid before the HMRC. As far as I know the HMRC were a relatively small percentage of the total debt of Portsmouth and so lost their case. In Rangers position the HMRC would be overwhelmingly the largest creditor and should have a big say in how the money is paid to various parties. Though it’s worthing noting Craig Whyte submitted a document which makes him a preferred creditor should Rangers go into administration (not 100% on that, someone will clarify either way). After that it’s HMRC’s party if regular administration looms.

    • Fritz,

      Thank you! Portsmouth had a bit of both elements. HMRC were challenging the football creditors rule, but the administrator had decided to reduce the claim by from £37 million to £24 million. Completely by coincidence, this meant that HMRC were not in a position to block the CVA.

      In that case too, the various individuals who were owners of Portsmouth, or who had been so, were able to get much of their debt repaid to them prior to the unsecured creditors getting pennies in the pound

  2. Steve

    Great post. I think it’ll take a few reads to absorb everything.

    Something not mentioned that I’ve seen over the last few weeks – could another possible problem for a Newco be that they’d have to exist for 3 years before they can compete in Europe?

    Article 12.2 (Page 12)
    http://www.uefa.com/MultimediaFiles/Download/Tech/uefaorg/General/01/50/09/12/1500912_DOWNLOAD.pdf

    Wanted to check with someone who can read these things!

  3. Excellent read. What significance is there in the apparent lack of a board.

    • Thanks Patrick.

      There is a Board, it just never meets.

      Off the top of my head there are requiremnents about borad meetings every so often, but that won’t really affect RAngers. Their problems are less “technical” than that.

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  7. lordmac

    hi Paul have you heard of Charlottes Web, when RANGERS liquidate,
    the way it is heading now is this, CRAIG whyte, will receive his money from Rangers, say £36million he will strike a deal with ticketus, before he reinvest in the new Rangers, he will demand that he gets those seats in the directors box , he will then, buy or be given a 25% share of the new Rangers at a reduced price so long as he can control ticketus, then return them to the Rangers trust, or to David Murray, then walk away with £6 million, getting the fans of his back, and RANGERS taking ticketus to court, to try and renege on there payments at a later date. , that would be the way it was planed
    either way, they are able to take money from a club that owe every one money, but they will have this money to reinvest sad as it is, but it will be legal.

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