In which I suggest that Duff & Phelps seem to be missing the point of “punishment” and that the silence of the SPL regarding the “unfair advantage” gained by Rangers is inexplicable.
Following last night’s brief thoughts, I have had a chance to review what the official Rangers website and through that, the administrators have been saying.
My comments are in bold below the relevant sections.
Once again the club – represented by leading QC Richard Keen – put forward a compelling case that the main charge of non-payment of PAYE, NIC and VAT was down to the actions of Craig Whyte and not the club.
There seems to have been a conscious decision to refer to the case put forward by Rangers as “compelling”. There have been a number of uses of the word in the context of the case and the evidence on the Rangers website.
Can Rangers produce publicly this “compelling” case? Sadly for Rangers it was not compelling enough either for Gary Allan QC’s Panel or for Lord Carloway’s Tribunal. The Judicial Panel which assessed the original verdict and penalty heard Rangers’ evidence and this was not seriously disputed. However, as a matter of law, there was no argument presented, as following Tesco v Nattrass there is not one, that Mr Whyte and Rangers were distinct. The argument was one based on “equity”. It failed.
The argument referred to in the Judicial Panel decision did not seem compelling either. Various witnesses confirmed either that they knew that Mr Whyte had stopped paying tax, and did nothing about it, or knew that there were matters of concern, and failed to fulfill their duties to shareholders, Stock Market and indeed the company.
Rangers fans might well be in shock, but a proper analysis of Mr Allan’s decision and the summary of that of Lord Carloway’s appeal panel would remove any legitimate reason for that shock.
They also explained the severe impact a transfer ban would have but the Appellate Tribunal upheld the decision.
The Appeal Tribunal considered Rangers’ plea in mitigation and rejected it. I am sure the eminent Mr Keen QC who appeared for Rangers would have deployed every argument open to him, but, as regards the sentence, a plea in mitigation normally involves some recognition of guilt and steps being taken towards rehabilitation. That does not seem to be the case here. Rangers appear to be in the position of an accused who vigorously maintains innocence all through the trial. Once convicted counsel for the accused cannot offer a serious apology, having denied matters all the way through.
In fact, explaining the effect that the penalty will have in the graphic detail given by Rangers actually justifies the severity of the penalty!
I may have missed it, but I have seen little if any apology for the non-payment of £13 million in tax, nor for the fact that HMRC will not see much, if any of that, whilst at the same time there is no chance of anything from the Big Tax Case being paid. Nobody has yet explained to me how Rangers did not benefit from the £13 million. There was over £3 million in Rangers bank when Duff & Phelps moved in. Presumably that was the balance of the money left, after the rest had gone paying the bills, including wages of players that Rangers would not otherwise have been able to afford to keep!
This is such a clear-cut case of taking an unfair advantage, as described by Neil Doncaster, that I cannot see why the SPL has not acted to withhold prize money. After all, the SPL proceeded against Hearts under the utmost good faith rule for being, allegedly, one day late. Here, by use of money which was due to HMRC, Rangers maintained their place in the league, to the point where the 10-point penalty has proved meaningless. Almost every team in the SPL below Rangers should be one step up the prize money ladder. Why is no one mentioning this?
Now we move to the statement issued late last night by the Rangers administrator.
Duff and Phelps, administrators of Rangers Football Club, issued the following statement tonight.
Paul Clark, joint administrator, said: “The decision by the appellate tribunal to uphold the sanction, namely the suspension of registration of players for one year, is not competent in the view of the club and its legal advisers.
“Such a sanction was not available to the tribunal and should not have been imposed and it is the intention of the club to challenge the determination. The club will consider seeking review of this most disappointing decision and it is a matter of regret that the certainty and finality Rangers sought on this matter has not been achieved.
It is legitimate to argue about the competency of the suspension. Mr Keen, Rangers QC, would have deployed that argument with customary skill, eloquence and precision. However it failed to convince the Appeal Tribunal.
The best explanation of the competency of the original Tribunal to impose such a penalty comes from Grant Russell of STV. He described the position here.
A brief extract makes the point:-
“Rule 94.1 refers to the powers of the judicial panel, stating it “shall be the sole judge” when a club “in any way brings the game into disrepute or any other grounds it considers sufficient”.
… the Scottish FA essentially has the power to call a club before the judicial panel for any reason it wishes, even if a specific rule hasn’t been breached.
Rule 95 then provides a mechanism for an independent tribunal to impose any sanction it wishes outwith the guidelines set down by the Judicial Panel Protocol, leading to the decision to hit Rangers with a registration embargo.
It states: “The Judicial Panel shall have the jurisdiction, subject to the terms of the Judicial Panel Protocol, to deal with any alleged infringement of any provision of these articles.
“A… club… if found to have infringed the articles shall be liable to censure or to a fine or to a suspension or to an expulsion from the Challenge Cup [Scottish 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.” (Emphases added)
The Judicial Panel therefore had the power to impose any punishment as it saw fit. The statement that the sanctions included the ones contained in the Protocol does not mean that they were restricted to them.
To be frank, that is an elementary matter of interpretation.
The use of the word “review” suggests to me the way that Rangers will seek to challenge this. It looks like a Judicial Review. That however is such an exciting topic, I will deal with it in a separate post.
“Everyone at Rangers is bitterly disappointed and dismayed at this outcome.”
Disappointed? That is to be expected. Dismayed? Not if they had read the decision being appealed against.
Charles Green, who leads a consortium purchasing Rangers, said: “Our group went into the purchase of the club with this sanction in place but we hoped the decision would at least be commuted. We fully support the club as it considers an appeal against this latest decision.”
I can understand why Mr Green hoped the decision would be “commuted”. However, what was the ground for doing so? Did Mr Green expect the Appeal Panel to change the penalty to suit the fact he hopes to buy the club?
As he is in line to be the buyer, at least of the assets, then maybe he will be funding a challenge to the verdict, After all, it would primarily be for his benefit!
Sandy Jardine, spokesman for the Rangers Fans Fighting Fund, added: “Rangers supporters will be shocked and bitterly disappointed by this decision and will find it hard to take that the club has been so heavily punished for the actions of individuals.”
Ah. Now this is an interesting comment. Sandy Jardine says that fans will find it hard to take it that the club is being punished for the actions of “individuals”. This is the official Rangers website, so I suspect an argument that he had been misquoted or take out of context would not work.
Is this the only acknowledgement so far by Rangers that there were more people to blame than Mr Whyte? Maybe someone will ask Mr Jardine to whom he is referring.
Posted by Paul McConville