Mr Green, who is the man in pole position to take over the running of Rangers, has issued a statement tonight. As it follows on from my last couple of posts, I thought I would offer some commentary on it.
With the greatest of respect to Mr Green, I think his statement tonight is nonsense. He mis-states some of the effects of Lord Glennie’s decision; he talks about wanting a speedy resolution, whilst at the same time flagging up various reasons for delay; he repeats the “received wisdom” that as the people responsible for the “misdeeds” as he calls them are no longer there at Ibrox, this should temper the sanction imposed, notwithstanding that Rangers benefited from those same “misdeeds”; and he cites the good of Scottish football as reasons for a reduced penalty, whilst grossly overstating the importance of Rangers’ position in the Scottish Cup.
As is usual, my thoughts are noted in bold where relevant.
Take it away Mr Green!
He said: “On behalf of the consortium purchasing the Rangers Football Club, it is my firm view that it is vitally important for the current issue of the SFA player embargo to be resolved and neither I nor my investors wish to see an outcome that would be to the detriment of Scottish Football.
The SFA player embargo has been resolved. Rangers went to court and Lord Glennie declared it to be ultra vires. With the greatest of respect, what is he on about?
“Throughout this process, the Club, the Administrators and most importantly the supporters have taken the view that any sanction against Rangers – due entirely to the misdeeds of individuals no longer at the Club – should be proportionate.
Here we go again. Yes, it is true that the “misdeeds” of the Murray and Whyte regimes were not carried out by directors still at Rangers, although many senior employees remain from both periods. However, as I have pointed out, even though the misdeeds might not have been done by anyone still at Ibrox, RANGERS BENEFITED FROM THEM.
For example, as Sir David Murray’s stewardship accrued debt to the bank and, at least according to HMRC illegitimately reduced the tax bill by around £30-50 million, the money “saved” was not carried out of the back door of the stadium in sacks intended for Sir David’s chateau. The cash went on buying and paying players whom otherwise Rangers would not have been able to afford.
When Craig Whyte decided to stop paying PAYE and NI, in a “negotiating ploy” with HMRC, he did not pout the money into a holding account so that, when the time came, it could be handed over. Neither did Mr Whyte remove the cash in a holdall. Rangers spent it! When Duff & Phelps took over, there was less than £4 million in the bank. As they themselves said that the unpaid tax during Whyte’s tenure was in excess of £13 million, this tells us that Rangers, in the autumn and winter of the season just ended, spent £10 million on club costs which should instead have gone to HMRC. As the wage bill is by far the biggest cost, this meant that Rangers survived to reach administration only by withholding tax legally due, and they failed to take steps to sell players either in August or January, to bring in money and cut the wage bill.
Rangers, as it now is, was not complicit in the “misdeeds”. Rangers however benefited, and continues to benefit, from them.
Mr Green refers to the fans wanting “proportionate” penalties. Most of what I have heard and read from Rangers fans has been to the effect that they should not be penalised at all, because the misdeeds were nothing to do with “Rangers”. This is the nature of partisanship, and it might well be the case that fans of any other team in a similar boat would feel the same. However, I do not recall the Rangers faithful marching to Hampden demanding a “proportionate” penalty.
However, we can all agree with Mr Green. A “proportionate” penalty is what Rangers should receive.
As the Judicial Panel put it, in a finding not challenged by Rangers:-
“On any view the matters involved in this case are as serious offences against the ordinary standards of corporate governance as one could imagine. The Tribunal attempted in its exercise of fixing these matters on the scale of offences to identify a more serious offence than those on the complaints, and concluded that only match fixing in its various forms might be a more serious breach. It had no hesitation in concluding that the breaches struck at the heart of good corporate governance and social and financial probity and responsibility. They brought the game into serious disrepute. As such, they required to be regarded as at the top of the scale of seriousness.
In the case of the non-payment of tax (which was possibly by the smallest margin the most serious breach) the massive extent of the failure and the intentional and calculated manner in which it was carried out aggravated the breach even further.”
“We and the Administrators did not want to take the matter to a civil court at all. Unfortunately, the route to apply to the Court of Arbitration in Sport was not open to the Club because the SFA’s own articles fail to include a specific provision permitting appeals to CAS and the Judicial Panel Protocol contains a rule which prohibits any form of appeal to CAS or any other body.
As I mentioned in an earlier post, the way that the rules are drawn up under the Judicial Panel Protocol gives a right of appeal to CAS in certain limited circumstances, and in certain situations. However, the establishment of the Judicial Panel, and the creation of an Appellate Tribunal, whose decisions were to be final, were intended to avoid the need for external appeals. That is why the argument of Aidan O’Neill, QC, for the SFA that the “appeal” by Rangers should have gone to CAS seemed to me to be very odd. The absence of a provision allowing appeal from the Appellate Tribunal is not a defect in the system. There is no obligation for such a further appeal to be put in place. The Judicial Protocol was drawn up last year, and approved by all SFA members unanimously. It is, in my submission, too early to call it unfit for purpose. The problem here was that the Judicial Panel and Appellate Tribunal differed in their interpretation of powers from what Lord Glennie thought, and in these circumstances, he is the boss!
If Rangers had approached the SFA and asked if the case could be sent to CAS, then the SFA could have agreed. The nature of CAS is that parties must agree to go there, either in terms of rules of an organisation to which the parties are signed up, or in an individual case. Did Rangers ask the SFA about CAS? From the stance taken by the SFA before Lord Glennie, they might have got a favourable answer!
“Our position has been endorsed by Lord Glennie in the Court of Session. The Club was prohibited from appealing to CAS by the SFA’s own rules.
That is not what Lord Glennie said. He agreed that there was not an obligatory appeal to CAS. But, as was pointed out, the application by Rangers was not an appeal, but an application to the Court of Session’s supervisory jurisdiction.
“The Judicial Review was not an appeal rather it was the Club exercising its right under Scots Law to have the court review whether or not the imposition of the transfer embargo was within the power of the tribunals of the Judicial Panel.
Thank you Charles – just as I said.
“All of the appeal points put to the appellate tribunal relating to the harsh and excessive nature of the embargo were dropped as it would not have been appropriate to have taken those to the Court of Session”.
Correct again. The Court of Session is not the place to challenge the fairness of the sanction imposed, unless so unreasonable that no reasonable Tribunal could have decided to impose it. There is nothing wrong, as I said, with the SFA system where an appeal lies to the Appellate Tribunal whose decision is final.
“Rangers is wholly committed member of the SFA and SPL and fully respects their structures. Lord Glennie has referred the matter back to the Appellate Tribunal which heard the Club’s appeal and we note a hearing is due to take place in due course. Either party has 21 days to consider an appeal. It is the Club’s view that the matter should in fact have been referred back to the original tribunal which imposed the transfer ban because the appellate tribunal in its written judgement made clear the view they held on the appropriate alternative sanction to be imposed in the event that the transfer ban was successfully challenged.
Here is the crux of the issue. Whether belatedly or not Mr Green has realised what the effects of the “success” before Lord Glennie might be. Of course Mr Keen, for Rangers, sought to persuade Lord Glennie that he should make the final determination himself, by quashing the signing ban, and otherwise leaving the matter at an end. That would have resulted in Rangers only being fined, and the fine, despite being the maximum, being the running costs of Rangers Football Club for ONE DAY!
Lord Glennie addressed specifically the reasons why he was sending the matter back to the Appellate Tribunal.
There were three reasons for not doing so.
1 Speed – the Appellate Tribunal could reconsider that part of the decision rather than requiring the Judicial Panel to have a full hearing again regarding all the matters at issue, with the right again of a further appeal back to the AT;
2 As the challenge only concerned the additional sanction, it was appropriate to let the AT decide this, as a quashing of the full decision would send the case back to the JP with all matters, including the question of guilt and the financial penalty again open for argument, even though they had already been accepted and not challenged by Rangers; and
3 Under Rule 18.104.22.168 the AT can itself remit the case to the JP, and Lord Glennie felt that it was better to leave that decision to the AT itself, rather than impose it himself.
What Mr Green is saying seems to indicate a couple of possibilities. First of all, Rangers might well appeal Lord Glennie’s decision to remit the case to the AT, and not back to the JP. That would cause further delays, but might suit Rangers if the penalty was, as it would be, suspended pending the appeal. If Rangers did appeal, I would expect the SFA to cross-appeal. After all, if the case is going to the Inner House (the Civil Appeal Court) then they might as well have a shot at persuading their Lordships that Lord Carloway was right after all, and Lord Glennie wrong.
Secondly, when the case comes back to the AT, and I have seen suggestions it might be as early as the end of the coming week, Rangers might ask the Tribunal to exercise its powers as mentioned in clause 3 above, to remit the case back to the JP. This would occasion further delay, but would retain for Rangers a further right of appeal back to the AT.
Thirdly, the above makes me think that despite Mr Green’s stated desire for a speedy resolution (albeit to a problem already resolved) Rangers might actually be the party looking to do things which will cause delay, whether by asking for a delay till the days for lodging an appeal have passed, actually lodging an appeal, or else asking the AT to remit the case back to the JP.
I also find it interesting that Mr Green seems to be raising issues which were not put forward by Mr Keen in court. It would have been possible for Mr Keen to ask the court, if remitting the case back to the AT, to order it to go to a differently constituted panel. This was not done, as far as I am aware. Such an application could be made where, for example, Mr Keen was arguing that the AT was biased, or had a closed mind, or had unfairly determined the issues. In the absence of such reasoning, there was no justification for ordering the matter to go to a different Tribunal. Therefore Mr Green’s hints above, that the AT had already made its views clear, and therefore the case should have gone back to the JP seems odd. That is equally so because, in the absence of the arguments I have detailed, it would have been the same JP to which the case was remitted!
“We are fully aware that one of the sanctions available to the Appellate Tribunal should the matter be referred back there is the suspension or termination of Rangers Football Club membership of the SFA. That in our view would be a disaster for Scottish football and a major setback to our plans to take Rangers forward after a particularly difficult period in its history.
It is very good of Mr Green to be considering the welfare of Scottish football, as his predecessors do not seem to have done so. However when self-preservation, or protection of his investment, is the reason for fearing for the welfare of Scottish football, then this can be taken with a pinch of salt. There is a reason why there is a system for disciplinary matters independent of the SFA, and of the clubs. It is to allow a fair and independent view to be taken of the rights and wrongs of a situation, and the application of suitable penalties.
Having paraphrased Shakespeare earlier today, I will now quote from John’s Gospel, chapter 18 verse 14 “It was Caiaphas who said the ‘It is better that one man should die for the people’”. Maybe the AT will decide that, as a result of the catalogue of serious matters constituting the offence of “bringing the game into disrepute” there needs to be an expulsion or termination of membership, for the greater good of Scottish football.
Mr Green is entitled to moan about the effect a penalty might have on the club – after all he apparently is committed to paying at least £5.5 million to buy a football club which could have been kicked out of football by the time he writes the cheque to Duff & Phelps! However, the effects upon Rangers are of less importance. As a result of Rangers challenging what was a halfway house sentence, the AT has the choice of leaving only a trivial penalty in place, or choosing one of the penalties deemed excessive, WHEN AN ALTERBNATIVE EXISTRED.
“Equally, the alternative sanction of expulsion from the Scottish Cup is itself a very serious punishment which would also have a severe impact on Scottish football as well as on our Club.
Mr Green would, I suspect, be delighted if the additional penalty was only “ejection” from the Scottish Cup. For one, it would allow him to step away from the CVA proposal, for which he is on the hook for £8.5 million, and move to the newco deal where his committed figure is £5.5 million. As I mentioned earlier, I think that, on a strict reading of the letter of the Rules, rather than the spirit of them, “ejection” can only be from an ongoing competition, and as the Scottish Cup has not started, banning Rangers would amount to a suspension from the Cup, which is not open to the AT as a penalty.
Rangers lost in what for them was the second round of the Scottish Cup last season, and what was, for them, the first round of the League Cup. Did Scottish football collapse as a result? No. Mr Green seems to be suggesting (and I know he is not but a bit of reductio ad absurdum never went amiss) that Rangers require to reach the later stages of the Cup at least, so as to avoid “a severe impact on Scottish football”. If a Rangers plays in the next Scottish Cup, under Mr Green’s ownership, will he protest a defeat in the first Cup match they play, on the basis that this does too much harm to Scottish football? Did the same considerations apply to Celtic losing in the Cup to Clyde and to the various “wee teams” who have defeated them at early stages of the Cup over the years?
This is reminiscent of the argument that there must be four Old Firm derbies in the SPL each year, which leads to people wondering what happens if the teams end up on opposite sides of the split!
“We will be considering with our legal team the best way forward after the public holiday.”
The last time there was a holiday weekend, when Bill Miller had been declared “preferred bidder” Duff and Phelps boated about the fact they had worked through it on due diligence issues. If Mr Green has told them to go home for the weekend, enjoy the holiday and not have the meter going round like a whirling dervish, then that is something good. However, I suspect that D&P will be assiduously burning the midnight oil, even on the public holiday, as they work tirelessly for the good of the creditors.
Mr Green’s choices are therefore to appeal against Lord Glennie, to ask for a delay in the AT to await a decision about an appeal, to ask the AT to remit the case back to the JP, to object to Lord Carloway and his colleagues dealing with the appeal or actually to go ahead with the appeal hearing!
There are many variables. We must, as we have often done, wait and see…
Posted by Paul McConville