Andrew Keith, a Dundee fan and reader of this blog, has sent me some thoughts, referring back to a piece he wrote previously about Dundee FC.
He can explain it better than me, and I am happy to mark Dundee’s return to the SPL by having a Dundee perspective today.
And I will leave the floor free for Andrew now…
With so very few cogent defences of Rangers’ indignation at their various ‘punishments’ available for comparison, I thought it might be self-satisfying to have a look again at a post I wrote in the aftermath of my team’s latest administration adventure. Interestingly, this might be turned around in the Rangers case and be less a defence and more of a call for further punishment.
I am surprised, by the way, that the law of ‘unjust enrichment’ and the remedy of ‘restitution’, which might offer a sound and fair legal basis for framing the issue have not been heard much. Sadly, I am not yet a lawyer and have only an accountant’s legal training, but perhaps, Paul, you or other contributors can explain if this is relevant, or if I am just talking rubbish.
Here is my earlier piece. (Link disabled as I had managed to get it connecting to the wrong piece – Paul)
I agree with Mr. Brodie [Re: The finding by a judge against the LPGA it is a restraint of trade for sportspeople to be tried by other sportspeople in the same sport] but would go further. We should take our case to the highest courts necessary to have the issues resolved finally. That does not mean we have to alter the plans set out by the administrator. Survival in the league and a successful CVA etc are still our priorities and it would be suicide to jeopardise any of that. But we can do both.
Simply by staying in the league and turning up for games we are declaring our acceptance of the punishment. However, it seems to me that this could be a seminal moment in football and is surely more important than just the consequences of Dundee’s administration. This is about how football is run, not only in Scotland but all over Europe.
In that context, Dundee’s fate is almost irrelevant. I even doubt that the issues could be resolved in a time frame that could have any bearing on season 2010/11, or 2011/2012 for that matter. The court proceedings would not be about Dundee avoiding punishment, but about how football leagues are run, how league decisions are made and the impact those decisions have on private limited companies and individuals that have series’ of inviolable legal rights under European and national laws.
Let me put the case for the prosecution:
1 Clubs appear to be punished not for the specific and clearly identifiable actions which made administration possible, but for the act of falling into administration itself. As though, the crime is in getting caught and not in indulging in the dangerous activity. That is neither fair nor sensible.
2 A significant number of those allowed to vote on the punishment/appeals are i. businesses in direct competition with the convicted club and ii. themselves indulging in said dangerous activity at their own clubs. Interests don’t merely conflict so much as collide on a cosmic scale.
3 The legal principles of unjust enrichment and restitution would suggest that any gains made by the club should be considered in the punishment as should any losses suffered by other clubs. A fixed points deduction precludes that. A schedule showing actual gains by the offending club and losses suffered by other clubs should be the basis for deciding the punishment.
(As a matter of interest here, it is hard to see how anyone could demonstrate significant gains actually made by Dundee during the period – try deducting our actual points total in seasons 2008/09 and 2009/10 from what we might reasonably have been expected to earn without Melville).
4 The imposition of a signing ban appears to be a restraint of trade and is not prescribed in the membership body’s (SFL) regulations. A ban on signing new players restricts a clubs ability to trade its way out of financial difficulties by limiting its ability to hire the best people it can afford and also to restrict the freedom of individuals who may wish to work for the club but may not.
A league rule that a player may not re-sign for a club within twelve months of leaving is also a restraint of trade. Whilst accepting a need for vigilance in this area to avoid financial manipulation, a blanket ban is unduly restrictive particularly where no financial inducements are either offered or sought.
I am sure a good lawyer could pick holes in this but an equally good one could find more and better arguments and make a real go of it.
Given the magnitude of these issues, I wonder if we could find a legal firm to take up the case pro bono. I accept that Dundee do not have the resources right now and arguably should never be permitted to pay legal costs for a case that would be unlikely, in the end, to benefit it directly, win or lose. But as this would no longer be about Dundee, I would have thought we could elicit some interest from Edinburgh or Glasgow lawyers keen to make a name for themselves on the European stage.
Dundee FC v. The Scottish Football League and the Scottish Football Association should be as important as Union Royale Belge des Societes de Football Association ASBL & others v. Jean-Marc Bosman for the good of the game and to ensure that the legal basis of its structure and management is kept fair for everyone.
Posted by Andrew Keith