Mr McCoist, as long as he reads the papers, looks at the news, or surfs the internet, will not have to issue a demand for names to be named of the SPL Independent Commission looking into alleged wrongdoing by Rangers FC.
The Scottish Premier League today announced that the independent Commission to inquire into alleged EBT payments and arrangements made by Rangers in relation to players during the period from 2000 until 2011 will be chaired by Lord Nimmo Smith.
The other members of the independent Commission are Mr Charles Flint QC and Mr Nicholas Stewart QC.
The Commission will determine whether during that period in relation to alleged EBT payments and arrangements for players, Rangers was in breach of the relevant SPL Rules. In the event that the independent Commission decides that such breach or breaches occurred the independent Commission will have powers to determine what sanctions, if any, are appropriate.
The SPL has decided that what it needed were real “heavy weights” when it came time for this Commission. It has them.
Charles Flint QC
Charles Flint QC is described on his chambers’ website as:-
“A commercial barrister, arbitrator and mediator specialising in banking and financial services. He is rated by the independent legal directory Chambers UK 2012 as a leading QC in Financial Services. In the Banking & Finance area in Legal 500 2011 he “is the pre eminent QC in this area”.
Charles has wide experience in general commercial law having practised in all divisions of the High Court. He now specialises in financial services regulation and acts as an arbitrator and mediator in banking and financial services disputes. He is recognised by Chambers UK 2012 as a leading mediator in financial services.
Charles is ranked in Dispute Resolution in Chambers Global 2012.”
He has also had enormous experience in sports law. He has advised and acted both for players and sports organisations, including Rugby Unions, Grand Prix teams, the International Tennis Federation, the British Athletics Federation and the Football League. He has appeared before a variety of sporting tribunals including the Court of Arbitration for Sport (CAS), the FIA and many national disciplinary bodies.
He now acts mainly as an arbitrator in sports disputes and is the Vice-President of the National Anti-Doping Panel.
He was chairman of the disciplinary panel appointed by UK Athletics in the case of Dwain Chambers in February 2004, and in the case of Christine Ohuruogu in September 2006. He has acted as chairman of tribunals appointed by the International Tennis Federation.
He is a co-author of “The Regulation of Drug Use in Sport” in “Sport: Law and Practice” (Butterworths – 2008). He appeared in the BBC Radio 4 series “Unreliable Evidence” speaking on sports law. He was a member of the Ethics Advisory Group established as part of the London 2012 bid. He is Chairman of the Sports Broadcast Monitoring Committee established by CCPR to monitor compliance with the code relating to broadcasting rights granted by the major sports. He was a member of the Anti-Doping Review established by the British Olympic Association in preparation for the Olympic Games 2012.
He is a man of the utmost experience and expertise, and also a man of unimpeachable reputation…
Well, to neutral observers he is a man of unimpeachable reputation…
However, on 6th July 2012 Mr Flint was appointed to the UEFA Club Financial Control Body Adjudicatory Chamber. The tasks of the CFCB are to oversee the application of the UEFA Club Licensing System and Financial Fair Play Regulations. The CFCB can take disciplinary measures and its final decisions may be appealed directly to the Court of Arbitration for Sport. Importantly the CFCB is competent to impose disciplinary measures in case of non-fulfilment of the requirements and decide on cases relating to club eligibility for UEFA club competitions.
Why is this of concern?
The “detectives” on a number of websites for fans of the Rangers FC have been hard at work tracking down any suggestion of bias. They think they have struck gold with Mr Flint. One of the newly appointed members of the UEFA Club Financial Control Body Investigatory Chamber (not the Adjudicatory Chamber) is Brian Quinn.
As one of the Rangers contributors put it, expressing his concern about the fairness of the SPL process:–
“Another stitch up with a Celtic man’s sticky fingers in the pie. We can forget going down the CAS route as Charles Flint QC sits on the arbritation (sic) panels too.”
Brian Quinn was Chairman of Celtic until he stepped down in 2007. He is also a distinguished economist, having reached the position of Deputy Governor of the Bank of England. Clearly the fact that he sits on one part of a UEFA body, whilst Mr Flint sits on a different one, compromises Mr Flint’s integrity and independence. (In case anyone mistakes that for a serious comment, it is not.)
In addition, what about Mr Flint and his role on the Court of Arbitration for Sport? Could that in some way compromise him? Well, no. Whilst he has appeared before CAS, he is not a member of it.
His involvement too in the National Anti-Doping Panel seems to compromise him in some eyes. The link discloses that Mr Flint has a role on the same Panel as is served upon by Rod Mckenzie, Senior Partner of Harper MacLeod. That firm of course is the one which despite the wishful erroneous thinking of many, does not have a conflict of interest in connection with its inquiries for the SPL into the issue to be determined by this Commission.
That as a ground of compromise is equally spurious, but probably enough to get him on one of the hugely tentacled charts showing the “web of Celtic-engineered corruption in Scotland”. © FollowFollow.com
However, why let the facts get in the way of a persecution complex?
Nicholas Stewart QC
Maybe the SPL will have better luck with Mr Stewart, and have him invulnerable to even the wholly misconceived written attacks from some fans of the Rangers FC?
He has been a Deputy High Court Judge in England for 21 years. He has acted as arbitrator in contractual disputes (including agents’ commissions), disputes on dissolution of business and international sporting issues. He has chaired Football Association disciplinary tribunals and Appeal Boards, British Olympic Association tribunals on eligibility for Olympic Games. He is a member of the Licensing Appeal Panel of UEFA and the Panel of Arbitrators (Chairperson List), Sport Resolutions (UK).
He was described in the Chambers Directory of Sports Law in 2009 as follows:-
“…. he is also skilled when it comes to sports such as athletics and rugby.”
“A charming man and a safe pair of hands,” he has “a reassuring manner and a great ability to put everyone at their ease.”
However, he is known to be an Arsenal fan, and this caused him to be castigated by Sir Alex Ferguson when the disciplinary body chaired by Mr Stewart suspended Patrice Evra for four games for an altercation with a member of Chelsea’s ground staff.
In addition, the alleged involvement of Arsenal FC with EBTs seems to have persuaded some that he too has a conflict of interest because, as a fan of Arsenal, he would clearly have known all the intricacies of the Arsenal salary arrangements.
I think that the references by Rangers fans to his RC name “Nicholas” and to the Stewart Dynasty being Catholics (even though the line of James and Charles is spelled Stuart) are ironic, I hope.
That however appears to be the extent by which he is “compromised” apart form the fact that, having been appointed by the SPL, it is argued, he cannot therefore be impartial!
Lord William Nimmo Smith
Lord Nimmo Smith served as a judge in the Court of Session and High Court for around thirteen years. Latterly he was a member of the Inner House, hearing appeals in both civil and criminal cases. He has a long and distinguished career in service of the Crown and the country.
Since his retirement from the Bench, he has continued to play a part in public life and part of this has involved his role in Scottish football.
He was commissioned earlier this year to chair a commission of the SFA investigating alleged rule-breaking by Rangers FC and Craig Whyte. His report was prepared quickly and submitted to the SFA where it formed the basis for the disciplinary proceedings against Rangers but was not itself produced to the Panel hearing the case.
His Lordship has now been asked to take up the cudgels again, this time by chairing the SPL Independent Commission.
Needless to say, his appointment has been met with almost universal mistrust by Rangers FC fans.
This comes from a number of different standpoints.
Some suggest that “Nimmo” is a silly name; others that he is a Celtic season ticket holder and shareholder; he is accused of being “vindictive” because he imposed the Rangers signing embargo overturned by Lord Glennie (he did not – and he was not part of either Panel which imposed and re-considered that sanction); reference is made to his involvement conducting inquiries long ago, one of which, into accusations of religious bias within Monklands District Council, is held up as proof of his anti-Rangers bias, on the basis he did not find the allegations to be well founded.
Perhaps the only possibly valid criticism of his appointment is his role in the previous SFA investigation. However, that was an inquiry by a different body into different matters, his function in that was to chair a panel looking to recover and analyse evidence to see if a case should be brought, as turned out to be the case.
This Commission sees him performing a separate role. Now he is chairing a high-powered panel to determine the facts, law and if “convicted” penalties.
Does the fact that he previously found that there was a prima facie case against Rangers regarding other matters stop him dealing with this? Of course not.
Even if this was a criminal case in court (which of course it is not) he would not be disqualified from sitting as a judge merely because he was aware, from dealing with a previous case involving the same party, that there were previous convictions. As a professional judge, he is well aware of the need to consider only the evidence put before the court or commission, and to ignore extraneous and inadmissible material.
Day in and day out, especially in the Sheriff Courts in Scotland, particularly in smaller ones where there might only be one or two Sheriffs, people appear at court denying criminal offences where the presiding judge has convicted them in the past, and often many times in the past. However the Sheriff puts it out of his mind, and if he reaches a verdict or conducts the case in a way which suggests bias, then there is an appeal process available.
It, on the other hand, is not appropriate to do what one lay Justice of the Peace was heard to do in a District Court in Central Scotland. Seeing a youth standing in the dock pleading “not guilty” and as the trial was about to start, the JP addressed the accused directly.
“Look son, I’ve jailed your grandfaither. I’ve jailed your faither. I don’t want to have to jail you.” And turning to the procurator fiscal, he asked for the first witness to be called.
That is not justice being seen to be done!
Lord Nimmo Smith’s situation is entirely different. There is nothing publicly known, nor any suggestion of any valid private criticism, which would bar him from dealing with this matter. In any event, the solution for the Rangers FC is quite clear. If they had any problems with him, they could object to his appointment.
The fact of the announcement by the SPL suggests that the identities of the Commission have already been made known to Mr Green and no complaint has been made. It would be a very silly move to make the details of the Commission public prior to notifying Rangers, because then any objection to the Commission membership would be public, which would itself potentially compromise the fairness of the proceedings.
It is clear that fans of the Rangers FC, encouraged by comments from Mr Green, believe that the SPL and SFA are implacably opposed to them, and that anything connected to these bodies cannot be “independent”. However, calls for the Commission to come from outside the UK seem over the score – where next – Mars or Venus?
What is the Commission deciding on?
It will determine whether during the period from 2000 until 2011 in relation to alleged EBT payments and arrangements for players, Rangers was in breach of the relevant SPL Rules.
This statement attempts to make clear that the issue is not the simple use of EBTs per se. Instead it is how these admitted arrangements were carried out within, or without, the framework of the SPL rules relevant at the particular times for registration and payment of players.
Because the issues are not the same as those within the First Tier Tax Tribunal, there is no need for the Commission to await a decision from that body.
The Commission will be deciding what the payments represented – were they payments for footballing activities. Is it the case that there was additional documentation forming part of the players’ contracts of employment which were not disclosed?
For clarity payments to non-players is irrelevant to the SPL inquiry. It is only payments to players which fall under the SPL’s jurisdiction.
If Found Guilty, What Penalties Can be imposed?
As the statement makes clear, in the event of a “conviction” the Commission will decide on the penalty to be imposed.
As detailed in the SPL Rules, the available penalties are as follows:-
G6.1 Upon determining that a breach of or failure to fulfil the Rules has been established, the Board or, as the case may be, a Commission may:-
G6.1.1 give a warning as to future conduct;
G6.1.2 give a reprimand;
G6.1.3 impose a fine;
G6.1.4 annul the result of an Official Match;
G6.1.5 order that an Official Match be replayed;
G6.1.6 impose a deduction of points;
G6.1.7 award an Official Match (with such deemed score as it thinks appropriate) to a Club;
G6.1.8 order the playing of an Official Match or Matches behind closed doors;
G6.1.9 order the closure of all or part of a Stadium for such period and for such purposes as it thinks appropriate;
G6.1.10 order the playing of an Official Match or Matches at such Stadium as it thinks appropriate;
G6.1.11 subject to Rule G6.3, order that a Club be expelled from the League;
G6.1.12 withdraw or withhold the award of a title or award;
G6.1.13 order any Club, Club Official or Player to pay compensation to any Club, Player, person or party;
G6.1.14 order any Club, Club Official or Player to comply with any obligation or direction;
G6.1.15 cancel or refuse the Registration of any Player Registered or attempted to be Registered;
G6.1.16 order that a Club concerned be debarred from Registering Players for such period as it thinks appropriate;
G6.1.17 order that any person, persons or group of persons be prohibited from attending at such Official Match or Matches and for such period as it thinks appropriate;
G6.1.18 make such other direction, sanction or disposal, not expressly provided for in these Rules, as it shall think appropriate; and/or
G6.1.19 make such order as to expenses, including the expenses of the Board and/or, as the case may be, Commission and/or other party, as it thinks appropriate.
Rule G6.2 allows the Commission to “apply such number and combination of the directions, sanctions and/or disposals provide for in Rule G.1 as it thinks appropriate”.
As the SPL does not lay down specific penalties for each offence, as long as the Commission imposes a penalty within the 19 categories above, the last being the catch-all clause, then it would not be ultra vires.
What About An Appeal?
G8 Any Club or person who or which is the subject of an adverse determination by the Board or a Commission may, unless the Rules expressly state otherwise and provided the SFA Articles provide for a right of appeal to the SFA, appeal against such determination in accordance with the SFA Articles.
G9 The procedures for lodging an appeal with the SFA and the powers of the SFA in relation to such appeals shall be as set out in the SFA Articles.
G10 Where a right of appeal is validly exercised to the SFA the Board or, as the case may be, a Commission, shall provide the appellant and the SFA with written reasons for the decision appealed against.
The rules seems to suggest that, whilst Rangers could appeal against a conviction, the SPL could not appeal an acquittal.
When Will This Take Place?
It is being suggested that these proceedings might not commence until October. There will be discussions ongoing just now between the SPL ad Rangers FC’s lawyers about the procedures to be followed. Will the case require evidence from witnesses, either in person or by way of statements?
Will the case be determined by legal submissions about the nature of payments and documents, or are there factual matters to determine?
Do Rangers FC admit that oldco made all of the alleged payments to players, whilst denting that they were payment for football activities?
Will the trustees of the various trusts and sub-trusts attend to explain how the operation of the EBTs was all above board?
Will Sir David Murray appear in an effort to clear hi name, or will his Press Association statement, as I commented on here be his contribution?
These, and many more questions, remain to be answered!
Posted by Paul McConville