And lo! The tablets of stone have been brought down from the top of Mount Florida by Stewart Regan, in whom the SFA Board has “full confidence” (a feeling not replicated in too many other locations apparently).
The statement below, issued by the SFA yesterday, details all, or most, of the loose ends regarding Rangers FC. (As the football authorities are now referring to the football team owned by Sevco Scotland Ltd as “Rangers FC”, I will adopt the same practice). Nine questions are posed, and I have added my comments in bold under each section. The SFA questions are bold and underlined.
Now that the status of Rangers FC has been clarified by the respective league bodies, the Scottish FA has compiled the following information to provide clarity and guidance on the remaining issues to be resolved.
1 When will the Scottish FA consider Rangers application for membership?
Now that the Scottish Football League have made a conditional acceptance of Rangers FC in Irn Bru Division Three we will now consider the club’s application for membership transfer this week.
“Conditional” acceptance by the SFL? That can only mean conditional on the SFA membership being transferred, or a new membership granted, to Rangers FC. The SFA will need to get a move on with its decision, or else, if it fails to do so, any legal challenge by Rangers FC could prevent the start of the football season, which is now only a week and a half away!
In addition, as Rangers FC cannot play matches, even friendlies, until approved, they might feel that they are being placed at even more of a disadvantage in preparing for the new season.
2 How can Rangers be considered for membership when they can’t provide four years’ financial statements?
Sevco Scotland Ltd bought Rangers Football Club PLC’s share in the SPL and membership of the Scottish FA as part of their acquisition of assets. Under Article 14.1, Sevco Scotland are requesting the transfer of the existing membership of Oldco. This is different to an application for a new membership, which generally requires four years of financial statements.
However, Rangers Football Club PLC has not produced the required financial statements either! I wrote about this here.
Sevco Scotland Ltd is therefore applying for transfer of a membership which, if not for the change of owner, ran the risk of being removed or suspended as a result of the failure of Rangers Football Club PLC to comply with the relevant conditions.
The danger in allowing a company to pass membership to another to avoid loss of that membership is that this could be attempted by unscrupulous parties wishing to pass the membership to a connected person, whilst pretending to do so at arm’s length, thus preserving the membership, even where the missing financial records, for example, disclosed wholesale rule breaches.
(I am not suggesting that is the case with Rangers FC).
3 When will the Appellate Tribunal be reconvened?
The Scottish FA has been in dialogue with Rangers FC in respect of the outstanding disciplinary sanction. The decision of the Court of Session to set aside the 12-month registration embargo was complicated by Rangers FC’s administration and subsequent request from Sevco Scotland for a transfer of membership of the Scottish FA. Again, now that the club’s status has been confirmed by the SPL and SFL, we will consider the award of transfer once Rangers FC satisfy the necessary criteria.
This answer seems to make no sense. First of all, I do not see how the decision of Lord Glennie was “complicated” by Rangers Football Club PLC being in administration. It was in administration when the case was brought. It was in administration when the case was heard by the Judicial Panel and by the Appellate Tribunal. It was in administration when the administrators took the case to the Court of Session to challenge the registration embargo. I do not see how the administration process complicates this at all.
Perhaps what the statement means is that the sale of the assets complicates matters, and this is more in tune with mention of the Sevco Scotland Ltd transfer request. In that case there might have been questions about whether or not the penalties should apply to Rangers FC now.
As the application is for a transfer of membership, and as Sevco want Rangers FC to play under the same name, in the same strip, with the same contracts and on the same pitch as last season’s Rangers FC, then this, by implication, means this is a continuation of the club which committed the offences, and therefore the Appellate Tribunal should be re-convened to determine what sanction, if any, to apply.
This would be the case, in my submission, even if Rangers FC and the SFA agree on conditions for transfer of membership to include a registration embargo. The Appellate Tribunal is independent of the SFA. The case is in the midst of the system. To maintain its independence it should be allowed to sit again, as ordered by the court, to conclude matters.
It may well be that, if Rangers FC accept, as a condition, a registration embargo, the Appellate Tribunal decide that they need not impose any additional sanction. That though is a matter for them, operating under the SFA Judicial Panel protocol, and not for the SFA.
One could imagine a scenario where the reconvening of an Appellate Tribunal could, for example, be of embarrassment to the SFA. Surely that body, by refusing to reconvene the independent Tribunal, ought not to be able to interfere with the “independent” procedures, whether in its own interests or those of the accused?
Should Rangers FC accept a registration embargo as a condition of membership transfer, then I cannot see the Appellate Tribunal doing anything other than imposing no additional sanction. However, if a team is five goals down at half time, and the result is a foregone conclusion, the rest of the game needs to be played out.
If on the other hand the SFA position, which is not clear in the above paragraph, is that the SFA Board will take the issue of the still extant Appellate Tribunal into account in determining the transfer application, it could be falling into the trap of “punishing” Rangers FC, rather than “setting conditions”. The label on what it does is important!
4 Will Rangers’ original punishments be transferred to Newco?
The Scottish FA Board has the power to transfer membership under Article 14.1, which states:
“. . . Transfer of membership will be reviewed by the Board, which will have the complete discretion to reject or to grant such application on such terms and conditions as the Board may think fit.”
As mentioned in 3 above, the SFA needs to be careful about how it achieves the end it is aiming for. The law of the land, and the rules of football overlap, but do not coincide at all times.
Therefore any action taken in the civil court against Sevco Scotland Ltd by a creditor of “Rangers FC” in relation to goods or services supplied when that club was owned by Rangers Football Club PLC would be doomed to fail. Acquisition of the assets does not mean acquisition of the liabilities. Sevco Scotland Ltd and Rangers Football Club PLC are completely separate legal entities.
However, in football terms, they are closely connected. The plan is to play as the same club as before and indeed a huge part of the marketing plan of Sevco Scotland Ltd must be that it remains the same club.
One can imagine the howls of protest, and more seriously the effect on the cash flow, if Mr Green announced that his “Rangers FC” was nothing at all to do with the former club of that name, and therefore it was a brand new entity starting with a clean slate. Whilst some fans would see that as a clever tactical statement, when all along everyone knew it was the same club, I suspect that many would feel that in such an event Mr Green would have torn the fans’ club away from them. No matter how much sense therefore I would make in a business world to declare that there was no connection, in a football world Mr Green cannot do so.
Whilst Article 14 seems to give the SFA unfettered discretion as to what conditions it imposes, in my submission, this is not so. Any conditions imposed need to be relevant and reasonable.
If the SFA refused to transfer membership as a result of imposing an “unreasonable” condition, then this could be challenged in the courts by Judicial Review. In such a case it would not be for the judge to determine whether or not he or she thought the condition reasonable, but rather if it was so unreasonable that no reasonable Board could have reached it.
Thus the SFA needs to be clear why conditions are being imposed, even down to the labelling on them. Therefore, if the SFA tells Rangers FC that it must accept a condition of a registration embargo as a sanction for bringing the game into disrepute, I suspect that could be open to challenge as the court has already ruled that that penalty was ultra vires. However, if it is a condition, unrelated to the disrepute finding, and not a sanction, then I think Rangers FC would have a far harder time challenging it.
On a side note, I have seen suggestions that the SFA will be in contempt of court if (a) it fails to reconvene the Appellate Tribunal or (b) it seeks to impose a registration embargo as a condition of transfer of membership.
Neither is correct.
Lord Glennie ruled that the Appellate Tribunal did not have the power to impose the embargo for the offence for which it was imposed. As long as the SFA does not suggest that it is going to do so anyway, there would be no issues. In addition, if Rangers FC have a concern about the Appellate Tribunal not being re-convened, they can raise it with the court, but right now it clearly suits them not to have that proceed.
Lord Glennie, to the disappointment of many Rangers FC fans, will not be sending a Reliance van to Hampden to collect Mr Regan and convey him to the Court of Session.
It is interesting, I think, and in keeping with how they are dealing with the matter, that the “answer” to this question does not in fact answer the question!
5 Will Ally McCoist be subject to a Compliance Officer Reference for his comments about the Judicial Panel?
The Compliance Officer communicated with Rangers FC in mid-June to confirm that the matter has been reported and will be initiated through the normal Judicial Panel Protocol upon conclusion of the other outstanding issues affecting the club.
This also seems odd, at first sight. What does the status of Rangers FC and the other issues affecting it have to do with a case against Mr McCoist? That can only suggest that, as well as proceedings against Mr McCoist, there are to be proceedings against Rangers FC too.
If that was not the case then the procedure ought to have been started by now, as the whole point of the Judicial Panel Protocol introduced last year is to deal with these matters as quickly as possible.
Indeed under the Protocol the SFA Compliance Officer is under a duty to issue a Notice of Complaint to the member of Team Staff alleged to have breached the rules. The relevant rule is shown below. It is framed in a contradictory manner. Rule 3.1 makes clear that, in relation to Misconduct by a member of Team Staff, the Compliance Officer shall issue a Notice of Compliant. However Rule 3.2, without reference to Rule 3.1 states that he may do so where the report does not come from a Match Referee.
3.1 Where the Compliance Officer is satisfied that alleged Misconduct by a member of Team Staff or official would if established amount to Misconduct, the Compliance Officer shall issue a Notice of Complaint to that person. The complaint shall be dealt with by the Disciplinary Tribunal under the Judicial Panel Protocol, except as where otherwise provided in these Disciplinary Procedures.
3.2 Where alleged Misconduct by a member of Team Staff or official is not reported by the referee, but the alleged Misconduct is brought to the attention of the Compliance Officer by whatever means, and he is satisfied that, if established, it would amount to Misconduct, he may issue a Notice of Complaint to that person. The complaint shall be dealt with by the Disciplinary Tribunal under the
Judicial Panel Protocol, except as where otherwise provided in these Disciplinary Procedures.
In any event, it seems that the only reason for a delay can be that Rangers FC is to be “prosecuted” along with Mr McCoist. Will this be factored into the SFA decision on transfer of membership?
6 In what round will Rangers Newco join the William Hill Scottish Cup?
Under the Scottish FA’s Cup Competition Rules, Rangers FC as a third division club will join the William Hill Scottish Cup at the second round.
As far as a strict reading of the rules goes, Rangers FC do not have a right to be in the Scottish Cup yet. In addition, the rules about which round they will start in suggest that they could start in either Round 2 or Round 4. Finally, if they do start in Round 2, then, by my reckoning, the SFA will need to alter the teams who have a bye to Round 4, as there are only 15, rather than 16, in that position!
The problem arises because the byes for rounds 1 and 2 relate to current league position, but for Round 3 it is the previous year which counts.
7 Why have the Scottish FA blocked the transfer of Rangers players to other clubs?
The Scottish FA issued a guidance note, based on legal advice and without prejudice, to both Rangers FC and PFA Scotland. Certain players have now chosen not to transfer across under TUPE regulations and, instead, agreed contracts elsewhere.
On a procedural basis, the Scottish FA cannot process an International Transfer Certificate via FIFA’s Transfer Management System where there is an ongoing contractual dispute.
Rangers FC have confirmed that there is such a contractual dispute. In the meantime, the new club(s) can request a temporary transfer from FIFA in order that the player(s) is free to play while the dispute process unfolds. This process has commenced in relation to a number of the players in question.
At the request of one of the parties in dispute, the Scottish FA, through its Articles, can convene an Arbitration Panel, with either side selecting from a list of Panel members, with the two appointees subsequently selecting a Chair of the panel. Rangers FC have made such a request to the Scottish FA.
We would naturally seek an outcome as soon as possible.
A fair answer here from the SFA, designed to make it clear that it should not be found liable for any losses caused to players who suffer detriment by this process. It also ensures that, if any players do allege financial losses, they would be entitled to pursue damages claims against Sevco Scotland Ltd, on the basis that this company is unlawfully interfering with the player’s rights to freedom of work. One wonders how long it will take for this process to resolve?
It is worthy of note that, under the SFA rules regarding player registrations, there is a specific provision for appeals from the Arbitration Panel to go to the Court of Arbitration for Sport. Such a specific provision is not present in the SFA rules and Articles for most other disputes.
8 Does the Scottish FA have a fit and proper person report for the new Rangers owner(s) and do we know who the main investors/directors are?
The Scottish FA has received private and confidential documentation from Sevco Scotland Ltd relating to the above. We have asked Sevco to provide further supplementary information and will consider that information this week.
Under new Scottish FA rules, it is a requirement of the outgoing club directors to conduct a full investigation under the Fit and Proper Guidelines. Given Rangers FC’s insolvency event, it has been incumbent on the administrators, Duff and Phelps, to carry out the necessary checks on the proposed new directors, as well as our own investigations.
Rangers FC had a deadline of 29th June to produce all the information required by the SFA. It said it had done so. Now it is the case that more information is needed. Is this because the details provided were insufficient, or because they have raised further questions?
The fact that it is referred to as “supplementary” information suggests the latter.
It is not clear from the statement if Duff & Phelps have carried out the checks on the new directors. If they have, then one wonders why the creditors of Rangers Football Club PLC should have to pay for that taking place.
If the asset sale was conditional on membership transfer, then one could understand this, but as D+P have said repeatedly, the sale was unconditional.
One can see why the SFA wanted to improve its assessment of the mythical fit and proper person rule. However, asking the seller to certify that the buyer is fit and proper is something which, I suspect, is only of cosmetic value. Here, after all, the sale took place effective on 14th June. Had D+P carried out all the checks then? At that stage no directors were known of other than Mr Green!
What happens if D+P now say that they are not satisfied Mr Green, for example, is fit and proper? If the sale is unconditional, it cannot be reversed by the SFA.
How likely is a seller to report that a purchaser is unfit, especially where, for example, the buyer is the only one there?
With today’s news that Sevco Scotland is threatening legal action against D+P, then one hopes that Mr Green has got from them what he needs, otherwise the paperwork might be slowed down rather!
If it turns out that Mr Green was not a fit and proper person, what could the SFA do to D+P? Prevent them being administrators of another football club? I don’t think so.
9 What is the status of the investigation into use of Employee Benefit Trusts?
This is an investigation under the jurisdiction of the Scottish Premier League specific to player registrations. The SPL have recently confirmed they have prima facie evidence but as the potential appellate body, we cannot comment further at this stage.
As the SPL said before, they would initiate proceedings here prior to the start of the season. We are waiting to see if they manage to do so…
The statement, whilst still leaving a number of issues undetermined, does move matters forward. There is still clearly a lot to do however.
The SFA has to decide on the transfer of membership. It cannot do so till it has the supplementary information requested from Sevco Scotland Ltd.
The list of requirements was made public in June, which included acceptance, as a condition, of a registration embargo. Has Mr Green accepted that, and the other conditions?
Is the SFA Board prepared to take the step of refusing the membership application?
Where does the SFA Licence fit in to this? Is it being taken along with the membership question?
When will disciplinary proceedings commence regarding Mr McCoist and Rangers? Will he accept the charge or seek a hearing?
Have D+P certified Sevco as “good guys” and will that change now they are being threatened with legal action?
These questions, and many more, remain to be answered…
Posted by Paul McConville