Some Thoughts re SFA v Craig Whyte – post Disciplinary Hearing

Late on Monday evening the outcome of the SFA Judicial Panel hearing into allegations against Craig Whyte and Rangers was made public. It is fair to say that the sentences passed, if not the verdicts, were surprising. The immediate response from the administrators of Rangers was to condemn the “draconian sanctions”. On the other hand, commentators and fans of teams other than Rangers expressed surprise at the severity of the penalties. There had been a widespread view that a rap on the knuckles would be delivered. However, what landed on Rangers was the equivalent of a Joe Frazier hook to the head.

I wrote in March about the charges, and predicted that Rangers and Mr Whyte would have no case to answer. I missed the target just a bit, as you will see.

The SFA released the decision which can be read in full here.

The Rules of the Judicial Panel, under which the matter was dealt, can be read here.

All charges against Rangers and Mr Whyte covered the period from 6th May 2011 to 6th March 2012. In this post I will write about Mr Whyte, and about Rangers in the next one.

 

Craig Whyte – Charges, Verdict & Sentences

Rule 66 – No recognised football body, club, official, Team Official or other member of Team Staff, player, referee, or other person under the jurisdiction of the Scottish FA shall bring the game into disrepute.

The Tribunal found Craig Whyte guilty under Rule 66 and fined him £50,000.

Rule 71 – A recognised football body, club, official, Team Official, other member of Team Staff, player or other person under the jurisdiction of the Scottish FA shall, at all times, act in the best interests of Association Football and shall not act in any manner which is improper.

The Tribunal returned a Not Proven verdict in respect of Rule 71.

Rule 105 – Any Party who is subject to a Direction from a Tribunal must follow that Direction as so Directed by the Tribunal. Any Party who fails to do so, may be found to be in breach of this rule.

The Tribunal found Craig Whyte guilty on three separate counts under Rule 105 and fined him £50,000 in respect of each breach.

The decision as regards Mr Whyte ends:-

The above sanctions shall be paid within 30 days, with interest of 4% per annum over the base lending rate of Bank of Scotland plc from the date of determination until paid.

Under Articles 94.1 and 95, the Tribunal expelled Craig Whyte for life from any participation in Association Football in Scotland.

The two articles referred to are shown below:-

Article 94.1: The Judicial Panel shall have the power to fine, suspend, or expel or in relevant cases to eject from the Challenge Cup Competition or apply such other sanction as is provided for in the Judicial Panel Protocol any recognised football body, club, official, Team Official or other member of Team Staff, player, referee or other person under the jurisdiction of the Scottish FA who, in its opinion, in any way brings the game in to disrepute or is likely to bring the game into disrepute or on any other grounds it considers sufficient and of which, subject to the rights of appeal, it shall be the sole judge.

Article 95: The Judicial Panel shall have jurisdiction subject to the terms of the Judicial Panel Protocol to deal with any alleged infringement of any provision of these Articles. A recognised football body, club, official, Team Official or other member of Team Staff, player, referee or other person under the jurisdiction of the Scottish FA if found to have infringed the Articles shall be liable to censure or to a fine or to a suspension or to an expulsion or to ejection from the Challenge Cup competition, to any combination of these penalties, or such other penalty, condition or sanction as the Judicial Panel considers appropriate, including such other sanctions as are contained within the Judicial Panel Protocol in order to deal justly with the case in question.

 

What Does That Mean?

Mr Whyte has been found guilty of bringing the game into disrepute and of breaching three separate Directions of the Disciplinary Tribunal. The charge of behaving improperly was not proven.

Under Rule 10.5 the Tribunal can make “Directions” as to procedures which the participants must follow, on pain, under Rule 10.5.3, of the Tribunal finding there has been a breach. In that event the Tribunal can penalise the participant for the Breach.

Therefore, Mr Whyte has been fined a total of £200,000, being £50,000 for the disrepute charge, and £50,000 for each of the failures to comply with directions.

He has also received a lifetime expulsion from Scottish football.

The terms of the rule regarding this changed when the disciplinary rules were revised last year.

Now the rule applies to an “official” which is defined in Article 1.1 of the SFA’s Articles of Association as “any person having a function or duty or position involving authority or trust within a club … including any such person who is able to exercise control over the majority of the board of any such club (whether or not that person is himself intimated to the Registrar of Companies as holding the office of a director)”.

From that I take it that Mr Whyte can be prevented from being the director of a football club, but also that he can be prevented from being majority owner. There would, I am sure, be some interesting legal challenges about the fact that Rangers FC Group Ltd owns 85% of Rangers, but Mr Whyte made it clear that he was in charge and that he was the owner.

The Judicial Panel Protocol states at page 114 that the maximum penalty for failure to follow a Direction is a £50,000 fine and suspension until compliance is achieved. That allows, as has happened here, a £50,000 fine for each offence.

The penalties are classified into Low End, Mid Range and Top End, with Maximum above that.

Mr Whyte’s failure to follow Directions is therefore seen by the Tribunal as deserving of the maximum penalty. However, it is not that failure which has led to his expulsion. That comes from the disrepute charge.

I commented in my piece linked to above that the problem with this charge is that which dogged the criminal charge of “breach of the peace”. People generally knew what it meant, but an exact definition could prove beyond even the wisest.

Case law from the European Court of Human Rights led to changes in the law regarding breach of the peace and it was effectively replaced by a more clearly defined statutory crime.

The same is overdue here – “disrepute” covers so many things that officials and players could legitimately argue that they had no idea what they were doing was wrong. If that is the case, it is very hard to punish fairly someone who falls foul of the charge.

The “Top End” penalty for “disrepute” for an official is listed as is a £10,000 fine. The maximum is stated to be a £50,000 fine. Page 102 of the Protocol, which carries these provisions and the penalties mentions that expulsion is one of the sanctions available, but in the chart which accompanies that text, the only class of individual stated to be at risk of expulsion is a referee found guilty of bringing the game into disrepute.

It therefore seems odd that the Tribunal have imposed what is in fact more than the stated maximum penalty on Mr Whyte.

The end result is that Mr Whyte owes the SFA £200,000 and is at risk of having to step down as Chairman, even if Rangers survives, and divest himself of the shares. My reading of the new rules suggests that now the SFA can get rid of a rule-breaking owner.

Can Mr Whyte Appeal?

Yes. From when the full written reasons are provided to each party, they have three days to advise the SFA that they intend to appeal.

In view of the short timetable, I would expect Mr Whyte to lodge an appeal, even if he has no intention of going ahead.

I think that he stands excellent chances of appealing successfully.

We do not know yet of course precisely what Mr Whyte’s behaviour was which justified, in the eye of the Tribunal, a life ban.

We will see when the full reasons are produced, as I am sure they will be soon.

I will write about the appeal process in my next post.

What if Mr Whyte does not pay?

Mr Whyte’s public statement makes it clear that he has no intention of acknowledging this so-called “kangaroo” court.

However the SFA can still get the money, even if Mr Whyte refuses to pay. Article 97.2 states that if a person does not pay a fine, then the funds can be deducted at source from the money due to the club by the SFA.

Therefore, if Mr Whyte is bloody minded, he might find that the angst from Rangers fans towards him gets even worse!

To Conclude

Mr Whyte fined the maximum fine of £200,000 (£50,000 x 4).

Mr Whyte expelled from the sport for life.

Mr Whyte’s unpaid fine (if not appealed) will be deducted from footballing prize money due to Rangers from SFA.

 

 

More to follow!

Rangers/ Appeals etc

 

 

Posted by Paul McConville

 

 

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33 Comments

Filed under Administration, Football Governance

33 responses to “Some Thoughts re SFA v Craig Whyte – post Disciplinary Hearing

  1. Seamus1967

    mmm, a 12 month ban from buying players for a club that can’t afford to buy players anyway?

    I smell a political rat.

  2. MO

    The sentences are surprising and I think there’ll be no one more surprised than the SFA themselves!

    If left to their own devices I think the SFA would, mindful of the wider considerations, have delivered a considerably more lenient punishment.

    The SFA Judicial Panel sat to consider whether Rangers and CW should be punished on the basis of the issues contained in the report – submitted to them at the start of March – by the independent panel. The independent panel was appointed to investigate recent goings on at Ibrox and was chaired by Lord Nimmo Smith and also included: Professor Niall Lothian, a past president of the Institute of Chartered Accountants of Scotland; Bob Downes, depute chair of SEPA; as well as Stewart Regan.

    As I’m sure you know better than me Paul, judges who chair inquiries will often negotiate their terms of reference before agreeing to the task. I suspect that Nimmo Smith will have stipulated that the independent panel’s report would contain suggested punishments for the actions they uncovered. (Otherwise Nimmo Smith et al could be left looking rather silly if the SFA later let RFC or CW off more-or-less scott free despite having been caught breaking the rules.)

    For political reasons Stewart Regan may not have been over-the-moon with the full contents of the independent panel’s report to the Judicial Panel but he wouldn’t have been able to out-vote the truly independent members who dealt with the matter purely on its merits. Having received the independent panel’s report, and knowing that by this time a diligent journalist – Alex Thomson – was asking serious questions of the SFA and taking the issue beyond the national, the Judicial Panel have been left with no option but to set wider considerations of RFC’s precarious position aside and punish significantly. That’s why it strikes us as surprising.

    If the punishments are based on the reasoning contained in Nimmo Smith’s report to the Judicial Panel I doubt whether either CW or RFC will successfully appeal.

  3. Richboy

    Dear Paul

    Another great analysis of events and produced in such a timely manner, well done.

    The major thing that astonishes me in all of this is that Duff and Phelps seem to be continually surprised at every turn of events. Surely they were aware of the pending meeting of the SPL to review their rules in regards to clubs becoming insolvent and that the SFA tribunal decision would possibly inflict some more pain on the club. I feel that their intention to nominate the preferred bidder prior to the results of the tribunal was somewhat irresponsible.

    D&P, and many Rangers fans, have berated the SFA/SPL for the timing of their decisions, insisting it is not helping the sale of the club. It seems to me the SFA/SPL have been good corporate citizens in ensuring these matters are out in the public domain rather than waiting until a bidder has committed non returnable funds (i.e. 500,000 pounds).

    As for the fines and punishments, I do believe they will have little effect on Rangers. Should Rangers survive, the fine can be paid in small increments over the year (or possibly by the Fans Fighting Fund). If Rangers do not survive then who will care, the amount will be a drop in the ocean compared to their other debts. The transfer embargo is also a paltry punishment as I could not envisage Rangers spending a lot of money on “big name” players in 2012/2013.

    The major problem I see, as you described, is that we are in for a round of court cases that will drag on for months at least. I cannot see a bidder being able or willing to sink funds into the purchase of a club that has so much uncertainty around it. Can Rangers survive in the close season for that long?

    Can’t wait for your post on the club punishment.

    PS Slightly off topic, does anyone have any idea of the value of Rangers assets. It surprises me that someone offering only 11m gets Ibrox, Murray Park, the car park etc. Personally I think D&P need to pop into the local real Estate Agent for a quick chat.

    • Richboy – I know I’m surprised at the price – for only £10,999,999 less than that, Craig Whyte bought Ibrox, Murray Park, the car park etc.

      • Richboy

        Not really Jockyboy (apologies if you were only joking). Whyte agreed to settle the small tax case (2.8m), pay off the bank (18m), invest 5 million and take responsibility for the big tax case (potentially squillions). I think he promised to pay tens of millions more than the club was worth, but then he is a shyster who never intended to pay anything, only strip the club of its assets and do a runner with the cash.

        The point I was making is that it seems to me that these bidders are very much in the Craig Whyte mould and could put rangers into even more doo doo.

  4. gopaul

    is there any prize money at the SFA (not the SFL) that rangers are due…. ?

    dont think so ? so SFA will need to chase rangers for the money – but this is a new debt – so does that not need to be paid – or its liquidation ?

  5. Fisiani

    Do the SFA penalties only apply to Rangers (IA) ? Can a newco escape the censure of oldco? Can a newco sans censure be a candidate for SPL?

  6. Just to clarify, who is responsible for paying these fines? Rangers or Whyte? These are Whyte’s penalties – so he is personally liable for the £200k (that’s £50kx4 btw Paul). Whether he belives this is a kangaroo court or not, whether he believes he is liable or not, he presumably signed something when he bought Rangers that says he is prepared to abide by the SFL’s rules.

    Rather than docking money that migfht be earmarked for Lee Wallace’s transfer fee anyway, can the SFL not just get the bailiffs round? They (illegally) took my car for a congestion charge fine my ex-wife incurred, am sure they can get £200k’s worth of gear from a Castle NumbSkull*.

    * to save time: which I mean the castle “owned” by the numbskull Whyte not Ibrox aka Castle Greyskull, I know, that was where the good guys lived I should have said Snake Mountain… we have done all this before

  7. Also, I do have a nagging feeling that this is further setting Whyte up as the scapegoat for the whole shenanigans, when in fact he just pushed the plungher on the charges set by Murray.

  8. Bhoywonder

    “[Chief executive] Stewart Regan and [president] Campbell Ogilvie had dinner with me in November and they told me it wouldn’t be a problem”. So what has changed since November? The public’s knowledge and outrage at the level of inactivity at that time perhaps, possibly put pressure on Regan and Ogilvie to backtrack and leave CW “dangling like a fish on a hook” as Mr Steinbeck would say.

  9. Midlothian_Celt

    Nicely set-out explanation Paul – thanks.

    One question. You say you think Whyte’s chances of a successful appeal are extremely high – yet you offer no reasons for this.

    Unless I have missed another example of your delicious sense of irony that so often pepper your articles (and which also keeps you out of the libel court!) are you able to expand on this point?

    All the best.

  10. Niall Walker

    Unless Craig Whyte is charged with some form of fraudulent behaviour then I fail to see how this ban can be upheld, as far as I am aware he is not even been charged with unlawfully trading while insolvent.

  11. Niall Walker

    Can anyone explain to me why Rangers have been hit with a transfer embargo on signing new players ?

    Is it a penalty for not paying their debts to other SPL clubs ?

    • Richboy

      I must admit that one came out of the blue for me as well. I do not recall any other club being hit with an embargo on signing players but must admit there are periods when I was unable to fully track the goings on in Scottish football.

      I am sure Pauls analysis on the clubs punishment will explain the reasons for this.

  12. thomas cochrane

    is this good?……….or is this good?????

  13. John Pollock

    Depends who you are I suppose Tam. Are the sfa assisting their old pals in their attempts to run CW out of town? Maybe the sfa felt free to dish out “draconian” punishments safe in the knowledge that in reality this will add little to their woes whilst seemingly satisfying UEFA and other fans groups etc that appropriate action has been taken. Every day my view that rangers will cease to exist grows. I suspect that you don’t need to be an expert in anything to conclude that the chances of rangers being able to field a team in any league next year are zilch!

    • Bhoywonder

      Well said John. The transfer embargo will have no affect on a newco, it really appears to be a means to an ending of the role of CW. Since CW cannot now be involved in any way with RFC, he can only attempt to syphon what he can out of the sinking ship. The legal eagles that finally determine who gets what will need to be gifted on the extreme.

  14. RM

    It doesn’t look good for Rangers, however it looks more like the SFA are intent on suicide…
    If Rangers go down, who will sponsor a 1-team league…?
    SPL with Celtic and no sponsor will lead to a whole load more clubs going under…
    Looks like time for Scottish football to fail, with the SFA & SPL to faid away and some NewCo to emerge…

  15. Niall Walker

    Assuming the transfer embargo is a punishment for non-payment to other SPL clubs then it may be unlawful, they are in effect restricting Rangers ability to trade and punishing them twice( 10 point deduction) for the obvious repurcussions of being in administration.

    Surely the correct penalty should be simply no credit deals, Rangers must pay up front for any new players. This embargo may have a detrmental affect on other SPL clubs, whose affordable talent can not be sold to Rangers, not to mention the players who will be deprived of the opportunity to sign for Rangers.

    • Tommy B

      I’ve heard it all now, surely preventing someone from boarding a sinking ship is not depriving them of an opportunity.

    • Marching on Together

      The 10 point deduction was made by the SPL under their rules. The transfer embargo is made by the SFA under their rules. There is no double punishment. As regards the courts being involved, it seems to have been settled long ago in England that a points deduction for going into administration was legal, even if administration was meant to protect companies from such adverse consequences. The courts in England have also held that if you sign up to the rules of a competition and its governing body, then you are stuck with them, no matter how unreasonable they might seem to be.

  16. Niall Walker

    Tommy,

    The SFA can not know Rangers are sunk yet, and one way or another Rangers will have to replace the exodus of high wage earners in the summer. It seems to me to be depriving SPL clubs of the opportunity to make money out of Rangers new financial reality. The SPL is a group of companies that buy and sell internally, its part of the trading structure and the SPL have just banned one of its biggest customers from trading ?

    Seems counter productive to me.

    • John Pollock

      The SPL havent banned anyone Niall it was the SFA.

      • Niall Walker

        I stand corrected, the SFA has just banned one of its biggest customers from trading internally, sounds counter productive to me.

    • deekbhoy

      Naill your having a laff!

      ‘depriving SPL clubs of the opportunity to make money out of Rangers’

      What planet are you on what SPL club would be silly enough to believe that Ranges would pay them for their players.

      • Niall Walker

        By insisting they pay up front until their credit worthiness has been restored, it happens every day in business.
        Sometimes the only way to get ones debt back is from the profits of future sales to the same company.who defaulted.

        There is no point in cutting off your nose to spite your face in business, its not personal.

  17. James Patrick

    I just read the following info on the RST site:
    “As part of that process the Liquidator could sell the business and assets of the football operation to a purchaser, who through a newco would then operate the football club.The business of the football club would continue; the history attaching to the business would continue”.
    Is this the case can a business be bought in liquidation?

    I thought the business would end in liquidation, just like the company as they are the samething.

    • Niall Walker

      A newco can inherit the assets of a business but they can not inherit their history, its not the same company.

      • Marching on Together

        Every team in the UK that has undergone any form of corporate re-organisation, whether it be an asset sale or a liquidation, seems to think that their history has gone with them e.g. Bristol City in liquidation in 1982, when the player registrations were sold on, and Leeds United in 2007 when they exited administration via an asset sale to a newco. Even AFC Wimbledon, who are most definitely a different club from Wimbledon FC, which transmuted into MK Dons, have reached agreement with MK Dons that they are the true inheritor of the history and tradition (and honours) of Wimbledon FC. In any event, was there not a corporate re-organisation of Rangers in 1899 – is their history prior to that point wiped out?

  18. Marching on Together

    Expect to see a lot of old-looking under 18s playing for Rangers next season. If they can operate for a decade with two contracts for each player and get off with it, operating with two birth certificates for each player should be a dawdle.

  19. Saint GG

    When the SPL decide to hand down their punishment to RFC I would think it only fair to kick them out of SPL and make them join division 3. I would think this would have a knock on effect mind you and if this happens I would think many more teams might go to the wall due to lack of SKY sponsorship and revenue. They too might end up joining RFC and it might just end up the best league of em all. LOL
    With regard to the SFA banning RFC from buying players, I cannot fathom out their thinking. A con man comes in, pillages the club, manages to hood wink HMRC, fans, ticketus and the SFA themselves and the club is given the blame and a whacking punishment. Still these clever men in blazers have far more brains than me.

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