Three bodies representing Rangers fans recently issued a statement which received uncritical commentary coverage in the media. I wrote about it yesterday here.
I wanted to look specifically at one of the issues raised – Conflict of Interest. This piece takes as its base my section on conflict yesterday but expands on it.
The statement from the fans’ groups said:-
“There would appear to be a serious conflict of interest in the choice of law firm appointed by the SPL to carry out their investigation. Harper MacLeod have acted for Celtic FC, who would be the main beneficiaries of any finding of guilt in the case. Indeed, until it was recently removed, they included a testimonial from Celtic CEO Peter Lawwell on their website. The SPL could have chosen any law firm to carry out this investigation and it was extremely naïve of them to appoint a firm with such a close connection to a rival club.”
The Law Society of Scotland rule governing “conflict of interest” can be found here and states:-
1.7.1 You must not act for two or more clients in matters where there is a conflict of interest between the clients or for any client where there is a conflict between the interest of the client and your interest or that of your practice unit.
1.7.2 Even where there is only a potential conflict of interest you must exercise caution. Where the potential for conflict is significant, you must not act for both parties without the full knowledge and express consent of the clients.
Harper MacLeod (HM) have acted for Celtic FC in connection with various matters.
HM have acted for the SPL in various matters, including carrying out the investigation into the dual contract issue, which has now led to the establishment of the Independent Commission.
There is no “conflict of interest” between the interests of Celtic and those of the SPL. Nor is there a conflict between the interests of HM and the SPL or Celtic.
If HM were acting for the Rangers FC Ltd, then it would have been a conflict of interest to have taken instructions from the SPL to investigate their own client.
The simple fact is that “conflict of interest” is a phrase often bandied about, but rarely used correctly.
As well as acting for Celtic and for the SPL, HM acted for Craig Whyte’s company Tixway UK Ltd. HM acted, and may indeed still act, for Mr Whyte in connection with his court dispute with his estranged wife. These might seem, in some way, like “conflicts of interest” to a layman, but they are not.
Scotland does not have huge numbers of lawyers dealing with the very specialised skills involving sports law.
Chambers guide to Lawyers, which is seen as one of the most reliable assessments of excellence of legal practitioners and firms, has the following to say about Sports Law in Scotland. I have added my own emphases in bold.
Harper Macleod’s sports team is the clear market leader in Scotland, with an unrivalled breadth of expertise and depth of sports practitioners. Its prominence is evident in its client list, which includes major governing bodies such as the Scottish Premier League (SPL) and the Scottish Rugby Union (SRU), as well as leading sports clubs such as Celtic FC and Edinburgh Rugby. The team has also been advising the Scottish Government in relation to the 2014 Ryder Cup. Sources say: “In terms of pure sports law, Harper Macleod is the leading firm in the market.”
KEY INDIVIDUALS Bruce Caldow is an employment lawyer with a considerable practice within the sports field. He is widely recognised in the market for his work with the SRU, for whom he is the national team’s lawyer. He also works with Judo Scotland, and is retained by the European Rugby Cup (ERC) in relation to disciplinary issues arising from its tournaments. Lorne Crerar is both one of the founding partners of Harper Macleod and its current chairman. He is highly regarded in the Scottish sport sector, and is the principal adviser to the SRU in relation to disciplinary issues. Senior partner Rod McKenzie plays a key role in the sports group, and acts as the SPL’s leading legal adviser. His extensive sports expertise is further utilised by the International Rugby Board, ERC and the Six Nations, for whom he is a judicial officer and committee chair. Michael Nicholson also advises the SPL alongside McKenzie.
Anderson Strathern has an extensive track record in Scottish sport, and remains a prominent presence in the market. The firm’s sports practice draws upon a range of cross-departmental expertise in order to provide a broad sports service for a variety of sports clients. The firm’s sporting client base is predominantly formed of governing body clients, such as Cricket Scotland, Cycling Scotland and Scotland Rugby League.
KEY INDIVIDUALS Corporate partner John Kerr is the firm’s most visible practitioner in the sporting sphere. He frequently puts his corporate nous to use on behalf of sports clients in constitutional, sponsorship and regulatory issues.
This firm acts for a broad range of clients within the sports sector, including both governing bodies and clubs. The team is widely recognised in the region for its representation of the Scottish Football Association (SFA). Its members assist clients with an array of issues, encompassing litigation, employment, IP and real estate. The group is increasingly noted for its brand protection work, and has been advising the SRU, SFA and both Celtic and Rangers FC on brand protection issues.
KEY INDIVIDUALS Colin Hulme leads the firm’s sports sector practice.
This group has forged a tremendous reputation in Scotland for its commercial work with sports clients. In addition to its prominent work on behalf of the 2014 Glasgow Commonwealth Games, the team has been appointed as the main legal adviser to Celtic FC. The team also acts for Dundee FC, and the Scottish and English Golf Unions.
KEY INDIVIDUALS The group is lead by John McKinlay.
Dundas & Wilson’s commercial expertise proves popular with sports clients, including Rangers FC and the English Football League. The firm also has substantial expertise in sports-related insolvency work, which is spearheaded by the London-based John Verrill.
KEY INDIVIDUALS Corporate partner Colin Massie heads up the sports group.
Other Notable Practitioners
Simon Catto heads up the Scottish litigation team at HBJ Gateley, and is well respected for his work in Scottish football, where he has represented a number of SPL sides in high-profile disciplinary cases. Stephen Miller leads MacRoberts LLP’s employment group, and is also highly regarded for his work in the sports sector.
So we have here a list of the top sports law practitioners and firms in Scotland.
HM have acted for Celtic, but Celtic’s main legal adviser is DLA Piper.
HM are legal advisers to the SPL and have a role in many sporting bodies.
Burness advise the SFA, and also act for Rangers AND Celtic!
Dundas and Wilson have acted for Rangers.
Biggart Baillie acted for Rangers in the SFA disrepute case, and associated Court of Session action.
Levy & MacRae acted for Rangers in connection with UEFA disciplinary matters and for Rangers players in “crisis management” situations.
Anderson Strathern acted for Mr Whyte’s Rangers in Court of Session proceedings.
MacRoberts are the lawyers for Sevco Scotland Ltd (now the Rangers Football Club Ltd).
Whilst HM have a role in legal advice in connection with the Commonwealth Games, significant work here is done by DLA Piper.
Is it a surprise that the main sporting bodies, and the main sporting teams, in Scotland use lawyers who come from the top firms in the field?
As I said yesterday, and will repeat today, these companies have very stringent procedures in place to identify and prevent “conflicts of interest”.
The suggestion being floated in connection with HM was that, in some way, the financial influence of Celtic was so great as to make HM behave unfairly towards Rangers. Whilst their dealings with Celtic will bring in a reasonable sum to the HM coffers, it will be a tiny percentage of the firm’s turnover. If Celtic choose to instruct a different lawyer (as in fact they do) this will not cripple HM.
The suggestion seems to be that no firm with connections to Celtic in any way should be involved on behalf of the SPL. It is correct that no firm acting for Rangers could have carried out the investigation as that would have been a conflict.
Doing as suggested therefore would, at a stroke, have eliminated all of the top firms in the field.
If the SPL had stated that the Independent Commission was to be made up of partners of Harper Macleod who were to consider evidence gathered by HM, then that would have been inappropriate. Short of that I fail to see how there can be a conflict here.
It strikes me as yet more “circling of the wagons” or as one commenter put it yesterday, Rangers FC is holing itself up in its laager.
The coverage of the “conflict” argument seems to suggest that it is being uncritically accepted by the media. I did not see one mention of this story which referred to what the definition of a “conflict of interest” actually is. Why?
Posted by Paul McConville