The SFA Appeal Panel sat yesterday (Wednesday) and issued its decision last night. The summary can be found here on the SFA website.
Once I saw the Judicial Panel verdict, ably crafted by Gary Allan QC, I thought that the prospects of appeal which I had first entertained seemed very slim indeed. Mr Allan’s decision, written as Chairman on behalf of the Panel, was, it seemed to me, legally watertight, and the only real decisions for the Panel had been (1) whether to reject Rangers “appeal to equity” (otherwise known as the ‘come on Gary, gie’s a brekk’ argument) and (2) having found Rangers guilty, what penalty to impose.
That view was bolstered by the restrictive terms of the permissible grounds of appeal.
The SFA Judicial Panel Protocol states, at paragraph 12.7:-
“Permitted Grounds of Appeal
12.7 Subject to Paragraphs 12.5 and 15.7, findings on fact at first instance shall be final and an appeal shall only be permitted on one or more of the following grounds:
12.7.1 The tribunal failed to give the Appellant a fair hearing;
12.7.2 The tribunal acted outwith its powers;
12.7.3 The tribunal issued a Determination which it could not properly have issued on the facts of the case;
12.7.4 The sanction(s) imposed by the tribunal was excessive or inappropriate.”
Under paragraph 15.6:-
“Additional powers of Appellate Tribunals
15.6.1 The Appellate Tribunal shall have the power to:
126.96.36.199 Affirm the decision of the appealed tribunal;
188.8.131.52 Uphold the appeal by setting aside the Determination appealed against and quashing any sanction imposed;
184.108.40.206 Uphold the appeal in part by setting aside part only of the Determination appealed against;
220.127.116.11 Substitute for the Determination appealed against a Determination to find the Appellant to have breached an alternative Disciplinary Rule;
18.104.22.168 Order a lesser or an increased sanction to that imposed by the appealed tribunal;
22.214.171.124 Refer the case or any part of it back to the tribunal concerned, or to a freshly constituted tribunal;
126.96.36.199 Where it conducts a re-hearing, to re-Determine the Case afresh; and/or
188.8.131.52 Take any step which, in the exercise of its discretion, the Appellate Tribunal considers it would be appropriate to take in order to deal justly with the case in question.”
Therefore the Appeal Tribunal, sitting under the Chairmanship of Lord Carloway, had very limited grounds for granting an appeal, but, if it decided to uphold an appeal, wide powers to deal with the matter.
The permissible grounds of appeal limited the arguments against the “guilty” verdict. Such an apepal against conviction can only be on the grounds that the appellant did not get a fair hearing, that the tribunal acted ultra vires, or that the verdict was one it could not properly have issued. The last means that only if no reasonable tribunal could have arrived at the same verdict could it have been overturned.
The appeal against sentence was more straight forward – arguing that the sanction was excessive or inappropriate.
Richard Keen QC, one of the most eminent counsel in Scotland, was instructed by Rangers. He will have given great consideration to what tack to take. However even a man of his expertise was always going to have problems standing Mr Allan’s detailed and thorough analysis.
The official Rangers website seemed far more confident, stating on Tuesday:-
“Mr Richard Keen QC has been hired to fight the Ibrox club’s corner after a Judicial Panel took the highly punitive action for “bringing the game into disrepute” at a hearing last month.
The main thrust for reaching this decision was over the non-payment of PAYE and VAT. They judged that although Craig Whyte made this decision, other directors should have known and done something about it.
Rangers put forward a compelling case that Craig Whyte was acting alone and Mr Keen will be reinforcing this view over the appeals process which could last two or three days.”
Whose line was it that a “compelling” case had been put forward – Mr Allan’s judgement does not suggest so. Did Mr Keen sit down with Lindsay Herron to discuss the matter? I suspect not.
I note that a full decision will be issued but I will comment on each of the summary paragraphs as follows.
1. It was competent for Disciplinary Tribunal to impose the additional sanction of prohibiting registrations of any new players of 18 years or older for a period of 12 months.
This suggests an argument that there was no power for the Tribunal to impose such a penalty. However the Articles of Association and Judicial Panel Protocol make clear that the Panel hearing a case has discretion to come up with a penalty which is not specifically mentioned, as long as it does not exceed the maximum. The maximum penalty for a “disrepute” charge is expulsion from the SFA. A lesser penalty by way of a restriction on player registration is clearly intra vires.
2. The Disciplinary Tribunal was correct to determine that the conduct involved – especially the deliberate non-payment of very large sums, estimated in excess of £13m of tax in the form of PAYE, NIC and VAT – was attributable to the club as a member of the Scottish FA.
Standing the concession by Rangers that, following Tesco v Nattrass, in law Rangers was responsible for the actings of Mr Whyte, there seemed little prospect of this argument succeeding. This was the point on which the plea to equity was tendered. As I pointed out Rangers, although not complicit as Mr Whyte was, benefited from the withholding of tax. Indeed if not for the £13 million withheld by him, Rangers would have run out of money possibly last year! If the £13 million had been sitting in a bank ready to be handed over to HMRC, then one confirmation that had been done, I suspect Rangers might have been admonished on that charge. However the money was spent on players and the club’s running costs, and no matter what arrangement is arrived at regarding Rangers’ assets, it is clear that HMRC will not recover all of the £13 million, never mind a penny of the Big Tax Case.
Reference by Lord Carloway to “deliberate” non-payment of “very large sums” is not good from Rangers point of view.
3. The Disciplinary Tribunal was correct also in holding that the maximum fine available for this breach was £100,000, and on its own was inadequate as a punishment for this misconduct. It was therefore correct to select an additional sanction.
The maximum fine for this charge was £100,000. The Appeal Panel accepts that the maximum fine was insufficient. (A fine of £100,000 for not paying £13 million does seem out of all proportion.) Therefore an additional penalty was needed.
4. The sanctions available included expulsion from participation in the game and termination or suspension of membership of the Scottish FA, which would have had a similar effect. The Appellate Tribunal observes that serious consideration was given by the disciplinary tribunal to imposing one of these sanctions, which would have had obvious consequences for the survival of the club. The Disciplinary Tribunal rejected these as too severe and this Appellate Tribunal agrees with that conclusion.
The Appeal Tribunal agreed that expulsion, termination or suspension would have had a similar effect, and as such would in this case have been excessive. However it is noteworthy that the Tribunal clearly gave thought to the severity of the penalty, and as to whether the ultimate sanction was appropriate. The fact that those “terminal “ effects were seriously considered shows how close to being shut down Rangers was.
5. Although the Appellate Tribunal has listened carefully to the representations from Rangers FC about the practical effects of the additional sanction, it has concluded that this sanction was proportionate to the breach, dissuasive to others and effective in the context of serious misconduct, bringing the game into disrepute. In particular, the Appellate Tribunal recognises that the Disciplinary Tribunal decision does not affect Rangers’ ability to extend the contracts of existing professional players, including those whose contracts will expire at the end of this season and including also those currently on loan to other clubs. The Appellate Tribunal observes that Rangers FC have over 40 professional players in this category.
The Appeal Tribunal at least got to hear submissions from Rangers regarding sentence! The Judicial Panel had not been made aware of Rangers’ financial circumstances. Clearly Mr Keen QC made an argument to the effect that the penalty itself could be fatal to the club.
That has been comprehensively rejected.
The Tribunal pointed put that the sanction, serious though it was, was proportionate, a deterrent and a punishment. Some coverage seemed to omit the fact that it was a penalty for wrongdoing and not some arbitrary decision.
The offence was heinous and therefore the sanction needed to mark this was severe too.
In any event, as the Tribunal noted, Rangers can re-sign existing players and get back loanees. As the summary drolly notes, Rangers have over 40 professional players in the relevant categories.
I suspect no other team in Scotland, other than Celtic, has over 40 professionals available for selection. Therefore the penalty is not as draconian as has been made out, but it is intended to be a stiff and severe punishment.
Therefore, the Appellate Tribunal affirms the decision of the Disciplinary Tribunal.
I will write some more about reaction to the decision and what can happen from here soon.
Posted by Paul McConville