Lord Nimmo Smith and Rangers – The Judge Sets the Ground Rules

Highlights of the Opinion by Lord Nimmo Smith’s Commission

The “EBT” charges cover a period from 23rd November 2000 to 3rd May 2011.

This includes a charge of fielding ineligible players.

There is a further charge against Rangers (In administration) for failing to co-operate after March 15 this year, which is capable at the very least of causing Duff and Phelps embarrassment.

There is a clear distinction between the Independent Commission set up by the SPL and the SPL itself.

No fair-minded and informed observer would consider the possibility that the Commission or a member thereof was biased.

Rangers dropped the bias argument before the hearing on 11th September.

Mr Green has said the SPL refused to reply to his lawyers.

The Commission says that the SPL’s lawyer did so by letter and in numerous emails.

Which of the two statements above is correct?

Oldco and NewCo were going to turn up, represented by the same lawyer, to argue that the SPL had no jurisdiction. At the last minute they declined to attend.

The SPL undoubtedly has jurisdiction over OLDCO.

The SPL undoubtedly has jurisdiction over THE CLUB.

The club is a separate but non-legal entity which continues notwithstanding transfer from one owner to another. Rangers Football Club therefore continue as before even though ownership has been transferred.

The SPL has no jurisdiction over NEWCO, but as it has power to impose sanctions on the club, owned by newco, newco has a direct interest in proceedings.

Therefore newco could face all of the punishments for the offences if proved, on the basis that the club it bought was guilty of them.

The administrators’ argument that this was a legal process and as such ought to be stopped without their consent failed. The case can go forward to  a full hearing.

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The most clear cut and most informative analysis of the saga of Rangers Football Club (apart of course from that on this site 🙂 ) has come from the courts or from legally qualified people presiding over regulatory matters.

The opinion of Lord Hodge in the case of Martin Bain v Rangers spelled out in detail the financial perils for Rangers and included the assessment by his Lordship that Rangers faced “a real and substantial risk of insolvency if the tax appeal were to be decided against Rangers in the sums which have been discussed”.

We had the decision of Sheriff Ross in One Stop v Tixway, which blew any remaining credibility Mr Whyte had to smithereens. In that case the Sheriff said of the former Rangers Chairman “I reject the evidence of Mr Whyte as wholly unreliable. It is not possible to ascertain whether he is not telling the truth or is simply unable to recollect the true position, and has convinced himself that this arrangement is something that he would not have entered into. Either way, his evidence is contradicted by virtually every other piece of evidence.”

Gary Allan QC chaired the SFA Judicial Panel which found that Rangers and Mr Whyte were guilty of various offences against football’s rules. Their judgement laid bare a concerted campaign by Mr Whyte to avoid paying millions of pounds of taxes, which money was used to keep Rangers Football Club running as far as February (and as the administrators started with around £3 million in the bank which should have been paid to HMRC, that non-payment probably enabled Rangers to make it to the end of the season).

Lord Glennie then overturned the transfer embargo imposed by Mr Allan’s Panel and confirmed by the Appellate Tribunal under Lord Carloway.

We also had Lord Hodge’s opinion on the application by the administrators to regularise their appointment when it turned out they had failed to notify all relevant parties.

We can now add to the ever growing pile of judicial consideration the Opinion published yesterday by the SPL. This is written by the SPL Independent Commission, consisting of Lord Nimmo Smith, Nicholas Stewart QC and Charles Flint QC.

It deals with their hearing last week to determine further procedure in the so-called Rangers EBT investigation. This is the procedure condemned by Mr Green as unfair and seeking to arrive at a pre-determined conclusion.

So, now that these three legal luminaries have considered preliminary matters and issued their opinion, where does it take us?

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After referring to the appointment of the Commission, the opinion narrates some of the relevant history.

At paragraph 4 it states-

The SPL was incorporated in 1998.   Its share capital consists of sixteen shares of £1 each, of which twelve have been issued.   Oldco (Rangers Football Club PLC) was one of the founding members of the SPL, and remained a member until 3 August 2012 when the members of the SPL approved the registration of a transfer of its share in the SPL to The Dundee Football Club Limited.  Each of the twelve members owns and operates an association football club which plays in the Scottish Premier League (“the League”).  The club owned and operated by Oldco played in the League from 1998 until 2012 under the name of Rangers Football Club (“Rangers FC”).

This confirms what seemed rather odd, namely that oldco, even though no longer owner and operator of a football team, remained a member of the SPL for almost two months after the sale of its entire assets.

Para 6 says:-

On 14 June 2012 a newly incorporated company, Sevco Scotland Limited, purchased substantially all the business and assets of Oldco, including Rangers FC, by entering into an asset sale and purchase agreement with the joint administrators.   The name of Sevco Scotland Limited was subsequently changed to The Rangers Football Club Limited.   We shall refer to this company as Newco.

This comes back again to the point I discussed earlier this week  namely that the purchaser seemed to change from Sevco 5088 Ltd to Sevco Scotland Ltd, although this statement by the Commission does not tally with the Rangers spokesman mentioned in the piece I quoted.

Para 7 states:-

Newco was not admitted to membership of the SPL.   Instead it became the operator of Rangers FC within the Third Division of the Scottish Football League (“the SFL”).   It also became a member of the Scottish Football Association (“the SFA”), the governing body of the sport in Scotland.  These events were reflected in an agreement among the SFA, the SPL, the SFL, Oldco and Newco which was concluded on 27 July 2012 and in this Commission’s proceedings is referred to as “the 5-Way Agreement”.

Let’s look at that again. Newco became a member of the SFL and became a member of the SFA (not that it had the existing membership of oldco transferred to it).

Para 8 summarises the definition of the notorious EBTs to be considered by the Commission. It states:-

“Payments made by or for [Oldco] into an employee benefit trust or trusts for the benefit of Players, including the Specified Players, employed by [Oldco] as Professional Players, Registered and/or to be Registered as Professional Players with the Scottish Premier League  and Playing and/or to Play for Rangers FC in the Scottish Premier League and payments made by or for [Oldco] into a sub-trust or sub-trusts of such trust or trusts of which such Players were beneficiaries, payments by such trust or trusts and/or sub-trust or sub-trusts to such Players and/or for the benefit of such Players and any and all arrangements, agreements and/or undertakings and the like or similar relating to or concerning any of such Players and payments.”

 Para 9 indicates that the periods covered in the “complaint” run from 23 November 2000 to 21 May 2002, 22 May 2002 to 22 May 2005 and 23 May 2005 to 3 May 2011 in relation to EBT payments and after 15 March 2012 in relation to failure by Rangers to co-operate with the SPL and to comply with the SPL Rules. Bearing in mind that this last charge is effectively levelled against Duff & Phelps, who were running the company as administrators, it makes the declaration by them that they would have nothing more to do with these proceedings remarkable. A finding that administrators had failed to comply with the regulatory body’s investigations in an industry where they were administrators would at the very least be embarrassing and at worst could have serious financial and disciplinary consequences for the firm and the partners involved.

The “charges” allege that Oldco and Rangers FC breached the relevant Rules of the SPL, and also those of the SFA, by failing to record EBT payments and arrangements in the contracts of service of the Specified Players and/or other Players and by failing to notify them to the SPL and the SFA.   There is one Issue directed only against Rangers FC, alleging that the club was in breach of the Rules by playing ineligible players.  The fourth chapter alleges that during the period from 15 March 2012 Oldco and Rangers FC failed to co-operate and to respond to requests for documents.

The Notice of Commission was served on Oldco, Newco and Rangers FC by letters dated 2 August 2012.

The Commission then goes on to comment on certain preliminary matters.

Independence

They state in para 10:-

It is fundamental to the constitution of a body with investigatory and disciplinary powers, such as the present Commission, that it must act independently of the person or body appointing it.   We must of course operate within the terms of our remit, and apply any rules which are applicable, but in reaching our final determination of the Issues, and in making any incidental decisions, we shall exercise our own judgement, on the basis of the evidence which is adduced, in accordance with the principles of natural justice, and unfettered by the influence of the Board or of anyone else.   None of us would have accepted his appointment on any other basis.   We have the use of SPL premises and are assisted by SPL staff, but this is because we have given instructions to that effect; the members of staff, in particular, act under our instructions.

The Minute of the Board Meeting appointing the Commission is referred to:-

The Secretary advised that once appointed a Commission is wholly independent from the SPL and SPL Board and manages its own process.”

The Commission then goes on to consider the position of Lord Nimmo Smith. Some have argued that his roe in an SFA inquiry into issues surrounding Rangers means he ought not to deal with this matter.

This is answered in robust fashion. Lord Nimmo Smith’s role was as part of an SFA Independent Committee. Its investigations formed the basis for the Judicial Panel proceedings against Mr Whyte and Rangers, and most importantly dealt with Mr Whyte’s period of stewardship. For all the criticism of Mr Whyte, he is not accused of paying anything out in the form of an EBT!

Once the Independent Committee report went to the SFA, the business of the Committee was concluded and Lord Nimmo Smith took no further part in proceedings. However, some say, surely he must have found things out which prejudice him!

Apart from that being a wholly offensive accusation to level at such a distinguished judge as Lord Nimmo Smith, he points out why it is unfounded as a concern.

Para 14 states:-

The topic of the employee benefit trust (“EBT”) referred to in the Issues before this Commission was touched upon in two paragraphs (and only those two) of the report of the Special Committee of the SFA, but no recommendation was made to the Board in that regard.   The main reasons for not making a recommendation were: (1) the EBT came into existence several years before the period with which the Special Committee was concerned; and (2) there was in any event no sufficiently clear evidence of a breach of SFA Article 12.3 to justify any further action at that stage.   Now that the present Notice of Commission has been prepared, it can be seen that there is no overlap between the period with which the Special Committee was concerned and either the period to which the first three chapters of the Issues relate or the subsequent period to which the fourth chapter relates.

Para 15 points out that newco’s lawyers did raise the issue:-

In a letter dated 23 August 2012 solicitors for Newco expressed concerns about the appointment of the Chairman to this Commission.   In short, while it expressly did not allege actual bias on his part, it suggested that by reason of his previous Chairmanship of the SFA Special Committee the Chairman might not be seen to be impartial.   Following receipt of this letter authorisation was obtained from the Board of the SFA – to whom the Special Committee’s report remained confidential – to disclose to the solicitors the terms of the two paragraphs of the report in which reference was made to the EBT, together with two preceding formal passages to explain the context in which it was discussed.  Newco did not respond to the Commission on this point, and in the event no application has been made that the Chairman should recuse himself from these proceedings.

I turn now to Mr Green’s statement on 10th September where he said:-

“Our lawyers have made that point repeatedly to the SPL in correspondence and yet our requests for an explanation from the SPL have been completely ignored. The SPL’s silence on these issues is deafening.”

That suggests to me one of the following:-

  • The Commission is telling an untruth;
  • Mr Green is telling an untruth;
  • Newco’s lawyers have omitted to tell their very high profile and vocal client that the Commission actually replied; or
  • Mr Green is being deliberately obfuscatory in saying that the SPL did not reply, when in fact it was the Independent commission which responded.

Observers may have views on which one is most likely. I know which my money is on…

The Commission outlines the legal tests re bias as follows:-

The test for establishing apparent bias is authoritatively laid down in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, in which Lord Hope of Craighead said at paragraph 143:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

To this may be added that the “fair-minded and informed observer” is “neither complacent nor unduly sensitive or suspicious”:  Johnson v Johnson (2000) 201 CLR 488, paragraph 53.

Para 17 goes on to say:-

Bearing this test in mind, the Chairman, in consultation with the other two members of the Commission, has given careful consideration to this question, and has concluded that the fair-minded and informed observer, having considered the facts, and in particular the terms of the SFA Special Committee report quoted above, would not conclude that there was a real possibility that the Chairman was biased.   The main reasons are, as already indicated, that: (1) those of the present Issues which relate to the EBT arise from a period which ended before the period with which the SFA Special Committee was concerned; and (2) not only did the SFA Special Committee not reach any conclusion about the EBT, it did so because there was insufficient material to enable it to reach any conclusion.   The mere fact that the Chairman has reached conclusions adverse to Oldco on another occasion in respect of other issues does not preclude him from continuing to act as Chairman of this Commission, any more than a judge would be precluded in comparable circumstances in court.   The Chairman therefore sees no need to recuse himself and that view is shared by the other two members of the Commission.

Para 18 then says:-

The question raised as to the position of the Chairman was not referred to again in correspondence after the release to the solicitors for Newco of the relevant passage from the report of the SFA Special Committee.   More importantly, it was not mentioned in the list of preliminary issues which we discuss below.

This statement might have a bearing on the assessment of the veracity of Mr Green’s statement referred to above.

Procedure So Far

After detailing various procedural steps, the Opinion continues:-

[The Chairman] directed that a hearing into the Issues set forth in the Notice of Commission, and any preliminary issue, take place on 11 September 2012 and following days.

The order continued:

“Any preliminary issue, in particular the issue of jurisdiction raised by Messrs. DWF Biggart Baillie on behalf of RFC 2012 Plc (in administration) by letter to the Secretary dated 17 August 2012, will be heard and determined before any hearing on the merits of the Issues.  For the avoidance of doubt, in the event that the Commission determines that it has jurisdiction in respect of the Issues, any hearing on the merits of the Issues will take place immediately following such determination.

So the jurisdiction issue had been raised. A hearing had been set to deal with the issue. It would be dealt with before the substantive matters. This is a common procedure in court cases where a fundamental preliminary point, such as one about jurisdiction, is raised by or on behalf of a party.

Para 21 states:-

In the course of a letter dated 15 August 2012 on behalf of Newco Mr McLaughlin (of DFW Biggart Baillie) disputed the jurisdiction of the SPL, and thus of the Commission, in relation to Newco and Rangers FC.   He stated that Newco would not be in a position to decide whether or not it was necessary or appropriate for it to appear or be represented before the Commission until he had been provided with clarification in relation to these matters.   By letter dated 17 August 2012 Mr McLaughlin stated that he acted for Oldco and that he had been instructed to advise that Oldco wished to appear and be represented before the Commission.   The letter also disputed that the SPL, and thus the Commission, had jurisdiction in relation to Oldco and Rangers FC.

Mr McLaughlin was therefore acting for both oldco and newco. Was this a conflict of interest? As matters stand, I do not think so – there seems to be a singularity of mind between Mr Green and the administrators. The mere fact that a solicitor acts for more than one party in a matter is not necessarily proof of conflict. As I have commented before, the legal definition of such a conflict is actually far narrower than the public perception of the issue. No criticism of Mr McLaughlin or his firm is intended nor should any be inferred from what I say above. In fact it could be argued that the dual instruction would reduce costs payable by the administrators and thus they are acting in the interests of the creditors by reducing costs to the bankrupt company.

By letter dated 23 August 2012 Mr McLaughlin, on behalf of Newco, wrote:

“Purely to preserve any position that may require to be protected in this matter my client wishes to be regarded as a respondent as defined in paragraph two of the orders for the time being.   This should not in any way be regarded as an admission that the SPL has any form of jurisdiction over my client in respect of this and/or any other matter or that my client [sic].   It has ‘entered appearance’ simply to allow the preliminary jurisdictional issues to be resolved.” (Italics in original)

Among other concerns, the letter raised the question of apparent bias on the part of the Chairman already discussed.

By letter dated 24 August 2012 Mr McLaughlin, on behalf of Oldco, stated:

“Having reflected on your process as a whole following on from receipt of [the Chairman’s] orders my client is now firmly of the view that the Commission constitutes a legal process pursuant to Paragraph 43, sub paragraph 6 of Schedule B1 to the Insolvency Act 1986 and accordingly it can only be progressed with the Joint Administrators’ consent or with leave of court.   My client does not give its consent. … Accordingly, the orders of the Commission dated 20 August 2012 must be vacated unless and until such time as leave of court has been obtained.”

The Commission referred the matter back to the SPL, as it would be the body requiring to seek court approval, if the same was considered necessary.

By letter dated 27 August 2012 Rod McKenzie of Messrs Harper Macleod LLP, Solicitors, on behalf of the SPL, replied to Mr McLaughlin’s letter, setting out a contrary argument.   In addition to these letters, numerous emails were being exchanged, some of which the Commission have seen.

Again returning to Mr Green’s statement, he said:-

“Our lawyers have made that point repeatedly to the SPL in correspondence and yet our requests for an explanation from the SPL have been completely ignored. The SPL’s silence on these issues is deafening.”

So maybe Mr McLaughlin only received these emails and letter as Oldco’s Lawyer, and not as Newco’s lawyer? Maybe he felt that he ought not to disclose to newco that he had received replies, including “numerous emails”, to his correspondence?

This seems familiar to the situation earlier this year when Mr McCoist demanded that the identity of the Judicial Panel be revealed, when in fact colleagues of his within Ibrox had been aware of the identities before the hearing and had sat in the room whilst the case was being dealt with. In that case Mr McCoist could have strolled along an Ibrox corridor to find out what he demanded publicly. Maybe here Mr Green should have asked Mr McLaughlin, his lawyer, if there had been any response before decrying the SPL for a failure to reply?

Or else he is being 100% accurate in his words, in that the SPL did not reply, but the SPL’s lawyer did?

The Chairman then made an order regarding further procedure:-

1 The hearing to commence on Tuesday 11 September will consider all jurisdictional and procedural issues raised by the parties and give all necessary case management directions for the determination of the substantive issues. Two days [have] been allowed for this hearing.

  1. The parties should exchange and serve on the Commission by 4pm on Friday 7 September outline arguments identifying all the issues to be raised at the hearing commencing on 11 September.
  1. Subject to the outcome of that hearing, the Commission is minded to fix the substantive hearing for 13 – 16 November, with 20 and 21 November available if required.
  1. Subject again to the outcome of the hearing on 11 September, the Commission is minded at that hearing to make a direction that the SPL serve an outline argument (to the extent that such argument is not covered by the outline argument referred to in paragraph 2 hereof) which should:

(a)    Set out by reference to a small number of example cases the precise facts which constitute the alleged breaches of the Rules or SFA articles;

(b)   Explain which persons are alleged to have been responsible for the making of the EBT Payments and Arrangements, without disclosing them in the contracts of service disclosed to the SPL;

(c)    If it is alleged that any entity or person other than The Rangers Football Club Plc (ie. RFC 2012 Plc (in administration)) is subject to sanction under Rule G 6.1, set out a detailed legal argument addressing the rules of the SPL and the general law explaining how such liability arises.

5.            In the meantime the parties are not required to comply further, and to the extent that they have not already been complied with, with paragraphs 4, 5 and 6 of the directions issued on 20 August.”

On 5th September 2012 Mr McLaughlin wrote to clarify the position of Newco in relation to the preliminary hearing.   He raised again questions of jurisdiction – which were of course to be considered at the preliminary hearing – and stated:

Newco is prepared to appear and be represented at next week’s hearing because as SPL Limited’s own correspondence recognises, it has an interest in any process that purports to involve business and assets which it acquired from Oldco, namely Rangers FC.”

Enclosed with the letter was a document entitled “List of Preliminary Issues for Determination”, containing eight paragraphs.   In addition to this, by email dated 4 September 2012, Mr McLaughlin stated that he would lodge and intimate a bundle and a Note of Arguments on 7 September 2012.   In the event this was not done

Para 27 states:-

The Commission expected that both the SPL on the one hand and Oldco and Newco on the other would be represented at the hearing on 11 September 2012.   During the afternoon of 10 September, however, letters were received from Mr McLaughlin on behalf of both Oldco and Newco stating that he had been instructed by each of them that it would not appear or be represented at the preliminary hearing and did not intend to take part in any further procedure.   The letters reiterated the argument about jurisdiction which had previously been made and was reflected in the list of preliminary issues, and which was of course due to be considered the next day

So, having raised the issue of jurisdiction, and having had a session set aside to decide it, Oldco and Newco took their ball home and refused to play. It is also noteworthy, as recorded by the Commission, that no accusations of bias were out forward in the List of Preliminary Issues.

This seems very odd, as Mr Green, a few days later, made a great song and dance about bias and lack of independence.

In addition, it is a legally risky tactic to raise an issue about jurisdiction and then to refuse to attend to argue it. It places any appeal in jeopardy. If Rangers “lose” in these proceedings and were to seek the protection of the court in an appeal, then it would be argued that they had failed to engage with the process and to “exhaust their remedies” prior to going to court. When a party decides deliberately not to come to court, it makes it very hard to argue about what happens in its absence!

After explaining why the hearing had continued in the absence of newco and oldco, as permitted by the rules, para 29 states:-

In the course of the hearing we had regard not only to the outline argument for the SPL, as developed in oral argument by Mr McKenzie, but also to the arguments as set out in Mr McLaughlin’s letters and as focused by his list of preliminary issues.   We ensured that Mr McKenzie’s contentions were thoroughly tested, at least as rigorously as they would have been had Mr McLaughlin appeared.   The hearing lasted for a full day, and we adjourned overnight to consider our decision.

I am sure the suggestion is not that Mr McLaughlin would have been an unnecessary participant! However, bearing in mind the issues raised, and the calibre of the Commission members, I have no doubt that there would have been a very detailed and through analysis of the legalities before the Commission arrived at its decision.

That decision was as follows:-

“The Commission has considered all the preliminary issues raised in the list submitted by Newco and points raised in letters from solicitors acting for Newco and for Oldco.  It has decided:

  1. The Commission will proceed with its inquiry in the terms of the Notice of Commission and will now set a date for a hearing and give directions.
  1. Oldco and Rangers FC, who are named in the Issues contained in the Notice of Commission and alleged to have been in breach of Rules, will continue to have the right to appear and be represented at all hearings of the Commission and to make such submissions as they think fit.
  1. Newco, as the current owner and operator of Rangers FC, although not alleged by the SPL to have committed any breach of Rules, will also have the right to appear and be represented at all hearings of the Commission and to make such submissions as it thinks fit.
  1. Written reasons for this decision will be made available in due course.”

The Opinion then expands upon that decision.

Jurisdiction

Para 31 states:-

As has been seen, one of the main preliminary issues which we have to consider is whether the SPL, and thus this Commission, has jurisdiction in relation to Oldco, Newco and Rangers FC.   At the outset, Mr McKenzie accepted – as he was bound to do – that the SPL has no direct jurisdiction in relation to Newco:  Newco is not and never has been a member of the SPL, is not and never has been bound by its Rules, and is accordingly not liable to have any sanction imposed on it for any alleged breach of the Rules.   It does however, for reasons which we shall explain, have a direct interest in these proceedings.   What we propose to do is to give our reasons for holding that Oldco, as a former member of the SPL, remains subject to the jurisdiction of the SPL and of this Commission in respect of the Issues contained in the Notice of Commission, and is accordingly liable to have sanctions imposed upon it for these alleged breaches of the Rules, committed while it was a member of the SPL, should such breaches be established.   We shall also consider the position of a Club in terms of the Articles and Rules of the SPL and explain why in our opinion Rangers FC remains liable to the imposition of sanctions for breaches of the Rules committed while it was owned and operated by Oldco, even though it is now owned and operated by Newco.   It is for this reason that Newco has, in our opinion, a direct interest in these proceedings.

I turn aside to the statement by the administrators on 10th September, where it was said:-

“The SPL have been in contact with RFC 2012 PLC with regard to the SPL’s Commission which is examining Rangers’ historic use of EBTs.  However, having taken legal advice, it is the Joint Administrators’ opinion that the SPL is not able to pursue RFC 2012 PLC in this matter.”

Oddly, until the letters sent by Mr McLaughlin on 10th September, Oldco was set to attend the hearing. There must have been a late change in the legal advice, it appears. I am sure it would be wrong to suggest that the administrators were meekly going along with exactly what Mr Green told them to do.

The Commission go on to quote some of the provisions of the SPL Articles and the SPL Rules as follows:-

Article 2 contains definitions which, so far as relevant are:

“Club means the undertaking of an association football club which is, for the time being, entitled, in accordance with the Rules, to participate in the League

Company means The Scottish Premier League Limited

League means the combination of Clubs known as the Scottish Premier League operated by the Company in accordance with the Rules

Rules mean the Rules for the time being of the League

Share means a share of the Company and Share Capital and Shareholding”.

Articles 5 and 6 provide:

“5. The authorised Share Capital of the Company at the date of adoption of these Articles is £16 divided into 16 Shares of £1 each.

6.  A Share may only be issued, allotted, transferred to or held by a person who is the owner and operator of a Club and if a Member shall cease to be the owner and operator of a Club then such Member shall cease to be entitled to hold a Share.”

Articles 11, 12 and 13, so far as relevant, provide:

“11. Except where the transfer of a Share is occasioned by the promotion of an association football club from and relegation of a Club to the [Scottish Football League], the approval of the Members in General Meeting shall be required before the transfer of any Share shall be registered and the Members may, in their absolute discretion, refuse to approve the registration of the transfer of any such Share.

12. The Members shall not approve the registration of the transfer of a Share for the purposes of Article 11 unless the Board shall first have confirmed that the Board has approved the instrument of transfer and that there exists [sic] no circumstances in which the Members shall refuse to approve the registration of the transfer of the Share in terms of Article 13.

13. The Members shall refuse to approve the registration of the transfer of a

Share:-

(i)   to a person who the Board is not satisfied is or, at the time that the  transferee will be entered in the Company’s Register of Members as the holder of the Share, will be the owner and operator of a Club; …”

Finally, Article 97 provides:

“97. Each Member shall be responsible for the discharge of the obligations and duties and shall be entitled to the benefits and rights accruing under and in terms of the Rules of and to the Club which it owns and operates.”

Rule I1 provides definitions of various terms in the Rules.   Of these, we refer to the following:

Club means an association football club, other than a Candidate Club, which is, for the time being, eligible to participate in the League and, except where the context otherwise requires, includes the owner and operator of such club

Company means The Scottish Premier League Limited

Contract of Service means a contract of service for a Player in the standard form of the League and/or SFL and references to any particular type of Contract of Service shall be construed accordingly

League or Scottish Premier League means the combination of association football clubs comprising the Clubs known as The Scottish Premier League

Player means a player who is or has been a Professional Player or Amateur Player of a Club

Registration means the registration of a Player with the League to a specified Club in accordance with Section  D of the Rules and the words Register and Registered shall be construed accordingly”.

It should be noted that this definition of “Club” is wider than that in the Articles, as it includes its owner and operator.

Rule A2.1 provides:

“A2.1 The League shall consist of 12 leading association football clubs  in Scotland.  The association football clubs eligible to participate  in the League in any  Season shall, subject to the Articles of Association and Rules, be those Clubs which participated in the League in the immediately preceding Season, except that, subject to Rules A2.2, A2.3 and A2.4, the Club finishing in last place in the League in the immediately preceding Season shall not be eligible to participate in the League and shall be relegated to the SFL and the Candidate Club shall be promoted from the SFL and admitted entry to the League.”

Rule A4 provides:

“A4 The owner and operator of a Club participating in the League shall become a member of the Company by acquiring one Ordinary Share therein at par for cash, such Ordinary Share to be acquired, through the Secretary, in accordance with the provisions of the Articles of Association.  The owner and operator of a Club ceasing to be entitled to play in the League shall cease to be a member of the Company and shall relinquish its Ordinary Share at the end of the relevant Season in accordance with the Articles of Association.”

Rule A7.1.1 provides:

“A7.1.1 Membership of the League shall constitute an agreement between the Company and each Club, and between each of the Clubs, to be bound by and to comply with:

(a)  these Rules and the Articles of Association;

(b)  the SFA Articles and  the statutes and regulations of UEFA and FIFA.”

Rule A7.2 provides:

“A7.2 Such agreement shall have effect from the date of the Club’s admission to the League and terminate upon the Club ceasing to be a member thereof (but without prejudice to any rights or claims which may have arisen or arise in respect of circumstances prior to such date and to any Rules which, by their terms, establish rights and obligations applicable after such date).”

Para 43 stated:-

Oldco argues that all contractual rights and obligations between the SPL and Oldco were terminated by the SPL on 3 August 2012, i.e. the date when its share in the SPL was transferred to The Dundee Football Club Limited.   The answer to this appears to us to be straightforward.   Although a contract has been terminated, obligations arising from it may continue to be enforceable after termination:  see Lloyds Bank Plc v Bamberger 1993 SC 570, Lord Justice-Clerk Ross at p 573.   Rule A7.2, quoted above, expressly provides that termination of a Club’s membership shall be “without prejudice to any rights or claims which might have arisen or arise in respect of circumstances prior to such date.”   The definition of “Club” in Rule I1, also quoted above, includes the owner and operator of a Club.   The initiation by the SPL of disciplinary proceedings against a former member of the SPL appears to us to constitute enforcement of rights or claims which may have arisen or arise in respect of circumstances prior to the date when it ceased to be a member, given that the alleged breach or breaches of the Rules were committed during the period of membership.

So, the allegation that the SPL Rules were broken whilst Rangers were members of the SPL means that, even when no longer members, the SPL still has jurisdiction over them. That had seemed a very straightforward position, but the strident arguments to the contrary sought to drown that out.

Para 44 makes that clear:-

To take the hypothetical example of a Club which has been engaged in match-fixing in the last game of the season, but is then relegated and consequently ceases to be a member of the SPL, there is every reason why it should still be liable to disciplinary action at the instance of the SPL – whether or not the breach comes to light before or after that Club has relinquished its SPL membership.   We can think of many similar hypothetical examples.  Oldco appears to us to be in no different a position.

Rangers FC

It was argued also that, with Oldco having disposed of the assets which made it a football club, the SPL could have no further jurisdiction over it.

Para 46 states:-

It will be recalled that in Article 2 “Club” is defined in terms of “the undertaking of an association football club”, and in Rule I1 it is defined in terms of an association football club which is, for the time being, eligible to participate in the League, and includes the owner and operator of such Club.   Taking these definitions together, the SPL and its members have provided, by contract, that a Club is an undertaking which is capable of being owned and operated.    While it no doubt depends on individual circumstances what exactly is comprised in the undertaking of any particular Club, it would at the least comprise its name, the contracts with its players, its manager and other staff, and its ground, even though these may change from time to time.   In common speech a Club is treated as a recognisable entity which is capable of being owned and operated, and which continues in existence despite its transfer to another owner and operator.   In legal terms, it appears to us to be no different from any other undertaking which is capable of being carried on, bought and sold.   This is not to say that a Club has legal personality, separate from and additional to the legal personality of its owner and operator.   We are satisfied that it does not, and Mr McKenzie did not seek to argue otherwise.   So a Club cannot, lacking legal personality, enter into a contract by itself.   But it can be affected by the contractual obligations of its owner and operator.   It is the Club, not its owner and operator, which plays in the League.  Under Rule A7.1.1 the Club is bound to comply with all relevant rules.   The Rules clearly contemplate the imposition of sanctions upon a Club, in distinction to a sanction imposed upon the owner or operator. That power must continue to apply even if  the owner and operator at the time of breach of the Rules has ceased to be a member of the SPL and its undertaking has been transferred to another owner and operator.   While there can be no question of subjecting the new owner and operator to sanctions, there are sanctions which could be imposed in terms of the Rules which are capable of affecting the Club as a continuing entity (even though not an entity with legal personality), and which thus might affect the interest of the new owner and operator in it.

This suggests an answer to the Rangers – alive or dead – conundrum. The Club can pass from owner to owner, although it cannot do anything legally itself, not being a legal entity. Here the club has passed from oldco to newco. Whilst the SPL do not have any jurisdiction over newco, they still have jurisdiction over the club. In this way, newco has an interest in the case, even if not a direct one.

Insolvency Act Moratorium

Are the SPL proceedings a “legal process (including legal proceedings, execution, distress and diligence)”? If so, then they cannot proceed as regards oldco without consent of the administrator or the court.

The Commission’s analysis runs from para 49 as follows:-

Paragraph 43(6) (of the Insolvency Act 1986) and its predecessor provisions have been interpreted and applied in a number of court decisions to which we were referred by Mr McKenzie, and which we list here:  Air Ecosse Limited v Civil Aviation Authority 1987 SC 285, Re Olympia & York Canary Wharf Limited [1993] BCC 154, Bristol Airport Plc v Powdrill [1990] 1 Ch 744 and In Re Frankice (Golders Green) Limited (in administration) [2010] EWHC 1229 (Ch), [2010] Bus LR 1608.   The first of these, a decision of the Second Division of the Inner House of the Court of Session, is binding on us, while the others, which are decisions of the English courts, may be persuasive or, in the case a decision of the Court of Appeal, highly persuasive.

[50]        We find it convenient to start with a reference to a passage in the Canary Wharf case, in which Millett J at pages 157-158 considered the legislative purpose for which the statutory provisions then in force (which do not materially differ from those now in force) where enacted.   He said:

“They are intended to impose a moratorium upon the creditors of the company in order to assist the administrator in his attempts to achieve the statutory purpose for which he was appointed.   They are couched in procedural terms and are designed to prevent creditors from depriving the administrator of the possession of property which may be required by him for the purpose of the administration. …   Their construction should be approached with that legislative purpose in mind.   They are not intended to interfere with the rights of creditors further than is required to enable the administrators to carry out their functions, and in particular they are not intended to interfere with the creditors’ contractual rights to crystallise their rights or discharge their own contractual liabilities.”

In the course of the same judgment Millett J also considered the meaning of the word “process”, which was defined in Stroud’s Judicial Dictionary (5th Ed, 1986) as “the doing of something in a proceeding in a civil or criminal court, and that which may be done without the aid of a court is not a ‘process’.

[51]        In the Air Ecosse case the Second Division considered the meaning of the word “proceedings”.  An application had been made by another airline company to the Civil Aviation Authority (“CAA”) for revocation of the air transport licences of Air Ecosse Limited, which was then in administration.   It was held, affirming the judgment of the Lord Ordinary, Lord Jauncey, that the word “proceedings” referred to proceedings by creditors or in relation to actual assets or property of the company and that the hearing before the CAA did not amount to “proceedings” in terms of the statute:  see in particular Lord Justice-Clerk Ross at p 295.   We have examined the other two English cases to which we were referred, and have found nothing in them that appears to us, on a proper analysis, to be incompatible with this approach which is, as we have said, in any event binding upon us.

[52]        Applying that approach to the present proceedings, we have concluded that they do not constitute a “legal process” within the meaning of paragraph 43(6), and accordingly that there is no statutory prohibition on their being continued without the consent of the joint administrators or the permission of the court.   There are three main reasons why we reach this conclusion.   First, these disciplinary proceedings arise from the operation of the Articles and Rules by which the SPL and Oldco were – and, for the reasons we have given, still are – contractually bound.   Secondly, by initiating these proceedings under the Rules, the SPL is not acting as a creditor of Oldco and the proceedings are not at any stage capable of depriving the joint administrators of the possession of property which may be required by them for the purpose of the administration of Oldco.   Thirdly, these proceedings do not in any event constitute a legal process because they can be conducted from beginning to end without the aid of a court.

We accept that, in our final determination, should a breach or breaches of the Rules be established, we have the power to impose a financial sanction, which might constitute the SPL a creditor of Oldco.  But this Commission has no power to enforce its determination on any sanction, nor to deprive a company in administration of the property available to the administrators   The SPL might require the assistance of the court to enforce a sanction determined by a Commission and, depending on the form of any such sanction, at that stage a question might arise as to whether there was a “legal process” within the meaning of the statute.   We are satisfied that in exercising our powers under Rule G1.2 firstly in making any determination as to breach of the rules and secondly (if it arises) in imposing any sanction this Commission is not engaged in any “legal process”.

So, as this is not a court case, then it is not a “process” and as such the moratorium does not apply. As the Commission says, the enforcement of any financial order made against oldco may well constitute proceedings against which the moratorium would operate, but it is not a bar to these proceedings.

Personal Bar

Para 53 reads:-

The list of preliminary issues (also) seeks to advance arguments to the effect that the SPL is, by its conduct, barred from seeking the imposition of sanctions, or at least of a particular sanction, in the event of a breach or breaches of the Rules being established.   We do not propose to deal with these arguments at this stage, as they appear to us to be premature.   They would only arise if we had already held that a breach or breaches of the Rules had been established, and there is therefore nothing in them which could affect our consideration of the merits of the Issues set out in the Notice of Commission.   Moreover, a plea of bar is for the party advancing it to substantiate, and in the absence of evidence in any form from Oldco or Newco to substantiate these arguments we have no basis upon which would could uphold them at this stage.

This seems to relate to Mr Green’s assertions about a pre-determined punishment. As the Commission says, arguing about the sentence before there is a verdict is premature. In any event there requires to be evidence and someone there to argue it. In the absence of representation, it is very hard to see how the Commission can be faulted for ignoring the matter, as it would not have been attempted to be made out, nor would a judicial appeal be looked on favourably on that ground where there has been a wilful decision to ignore the process.

The Commission concluded by giving directions as follows:-

“Further to the decision made today we make the following procedural orders:

  1. We set a date for a hearing to commence on Tuesday 13 November 2012 with continuations from day to day as may be required until Friday 16 November 2012.  We will also allocate Tuesday 20 and Wednesday 21 November 2012 as additional dates should any further continuation be required.
  1. We direct that the solicitors for The Scottish Premier League Limited lodge any documents, additional to those already lodged, together with an outline argument and a list of witnesses by 4 pm on Friday 19 October 2012.
  1. We direct that Oldco, Newco or any other person claiming an interest and wishing to appear and be represented at the hearing give intimation to that effect and lodge any documents together with an outline argument and a list of witnesses, all by 4 pm on Thursday 1 November 2012.
  1. We direct that intimation of the aforesaid decision and of these directions be made to the solicitors for Oldco and Newco.

And the final words make the position of the Commission clear:-

We wish to emphasise that, as is plain from our decision and directions of 12 September, the door remains open for Oldco and Newco to appear and be represented at the hearing in November.   We would invite each of them to reconsider, in light of what we have written above, the decision they took on 10 September not to participate in the proceedings.

Will Oldco or Newco respond to the invitation? Who knows!

Posted by Paul McConville

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217 Comments

Filed under Administration, Charles Green, Football, Football Governance, Rangers, SPL

217 responses to “Lord Nimmo Smith and Rangers – The Judge Sets the Ground Rules

  1. COYBIG

    @Marching on Together

    “So the SFA, the SPL, the SFL, Lord Nimmo Smith and his Commission, the Court of Session, the Football League, the Premier League, the FA, the fans of 92 clubs in England, and the fans of 41 clubs in Scotland, are all wrong eh? It is you and your green-tinted mates who are right, and Rangers and every other club which went into administration like Rangers, are dead just because you say so? Aye, right.

    The club is different from the company that owned the club. Deal with it.”

    I take it you didn’t watch the video I posted.

    Wimbledon Football Club relocated to Milton Keynes in September 2003, 16 months after this move was given assent by an independent commission appointed by The Football Association. The move took the team from south London, where it had been based since its foundation in 1889, to Milton Keynes, a new town in Buckinghamshire, about 56 miles (90 km) to the north of the club’s traditional home district, Wimbledon. Hugely controversial, the move’s legal authorisation directly caused the establishment of AFC Wimbledon by disaffected Wimbledon supporters in June 2002. The relocated club spent most of the 2003–04 season playing in Milton Keynes under the Wimbledon name, before it rebranded itself as Milton Keynes Dons (MK Dons) at that season’s end.

    If you have evidence of the FA officially stating that AFC Wimbledon won the FA cup in 1988, then I am happy to be proved wrong. Also, if you have evidence showing that ALL fans of the 92 clubs in England and the 41 in Scotland share your sympathetic views, then again, I am happy to be proved wrong.

    If you are right, then I suspect it won’t be long before fans of F.C United of Manchester are claiming that they won the European Cup in 1968. According to your logic, they are within their rights to do so.

    Any club that comes out of administration through a CVA is the same club. I did not say otherwise. Any club that exits administration through liquidation is, in simple terms, dead. Gone, never to come back.

    As far as you being a Leeds fan. I don’t believe it. You might be, but I don’t think so. I don’t want an reply to this. I just don’t think you support Leeds. So, as you say, Deal with it.

    • Marching on Together

      1) Your video – shite produced by bigots, without an understanding of either the legal position or what actually goes to make up a club. They want different rules to apply to Rangers than to any other club.

      2) Wimbledon – from the AFC Wimbledon web-site: “The supporters of AFC Wimbledon believe that our club is a continuation of the spirit which formed Wimbledon Old Centrals in 1889 and kept Wimbledon Football Club alive until May 2002. We consider that a football club is not simply the legal entity which controls it, but that it is the community formed by the fans and players working towards a common goal. We therefore reproduce the honours won by what we believe was, and will always be, ‘our’ club, in our community.” Exactly. This is what applies to all football clubs. The honours of AFC Wimbledon from their web-site: http://wimbledonheritage.co.uk/honours.php?Psection_id=4&Psub_section_id=7&squad=

      The Football Supporters’ Federation (FSF) refused the Milton Keynes Dons Supporters’ Association membership of the federation, until they agreed to give up all the history and honours of Wimbledon F.C. In 2006 agreements were reached over MK Dons returning the honours of Wimbledon FC to the London Borough of Merton. This was to include Wimbledon’s FA Cup replica, all patrimony the side had collected, trademark ownership and website domain names. The Borough subsequently transferred all trademarks to AFC Wimbledon. The FA subsequently recognised this. Pete Winkelman (owner of MK Dons) apparently wrote to the FA asking for the FA Cup to be engraved with MK Dons 1 Liverpool 0 and got told by the FA to **** off.

      3) “Any club that comes out of administration through a CVA is the same club.” And? That is not what happened to Leeds United. “Any club that exits administration through liquidation is, in simple terms, dead. Gone, never to come back.” I suggest you come down to Elland Road and announce to the massed ranks there that Leeds United is dead – I am sure you will be persuaded otherwise.

      4) “As far as you being a Leeds fan. I don’t believe it. You might be, but I don’t think so.” Whatever. I really don’t care what you believe, I will just not have you peddling garbage about my team, and the garbage you peddle about Rangers applies exactly to Leeds.

    • Ernesider

      MOT
      had been extolling the merits of Ken Bates for some time.

      Ernesider July 15, 2012 at 8:53 pm

      Marching On Together

      Ken Bates – now there is a man who could give Charles Green lessons in in non transparency. For:

      JUST WHO OWNS LEEDS UNITED follow link below, well worth reading.

      http://www.bbc.co.uk/sport/0/football/15241344

  2. Sir Nicholas Fairbairn

    Its well known in legal circles that Nimmo Smith was the Sarsfield Emerald CSC bus convenor for many years under the pseudynom Wee Tam.

    • Ernesider

      Sir Nick

      From past experience I have discovered that satire/irony (I take it) sometimes does not go down too well.

      Rory just dropped a shot, so put off TV to give him a break from my baleful glare. Might go for a pint or ten to celebrate Donegal’s All Ireland victory.

  3. carl31

    Business. Activities. Undertakings. IP. Goodwill. Registration. Membership. (etc…)
    We have been here before. As yet we have been unable to use the above words and others to satisfactorily define the club for the purposes of the

    club duality opinion. It hasnt been pinointed as part of, some of, bits of, one of, a number of, a combination of, or all of the above (and maybe

    then some). If it could be done to satisfy our purposes, it already would have been. For me, this means the club duality/eternal club opinion

    doesn’t quite ‘fit’ (but again I refer the reader to my first sentence above). I appreciate the view in one of Duplesis’ posts above that it may not

    be necessary to define the clubFC, but I do view it as necessary and important.

  4. carl31

    In the Extinctionist v Survivalist issue, I was pretty sure of the former, but now I’m less sure.
    In answer to a post on a previous thread, to AB, I noted that an opinion by lord Hodge had been discussed and was open to interpretation. This
    opinion of LNS is also open to interpretation, but far less so. The LNS opinion is more specific in setting out the idea of a clubFC within its
    owner/operator Clubco.
    Its probably good to consider the opinion as laid out to help deal with the questions that face the SPL Commission, rather than to be applied in all
    football cases. LH set out the opinion in terms needed at the time and LNS has done so too but with slightly more included.

    From para [46] “…In common speech a Club is treated as a recognisable entity which is capable of being owned and operated, and which continues in existence despite its transfer to another owner and operator. In legal terms, it appears to us to be no different from any other undertaking which is capable of being carried on, bought and sold.”
    The para continues to state that this does to mean that the clubFC has its own legal personality. I interpret this by noting again that the club in this sense of common speech, is a non-legal one, and by adding that any undertaking capable of carrying on is also capable of coming to an end. Whilst not stating that the ‘eternal club’ is always the case, it does not rule it out by specifically stating that ‘common speech’ has the wrong idea either. So in common terms, we might be no further on, and in legal terms, we are no further on than before this opinion.

    I would say that I feel uncomfortable disagreeing with the considered opinion of LNS and the other members of the SPL Commission, which sets out the club duality opinion, but I do nevertheless. In this case the opinion that a club has a dual existence doesn’t quite make it, IMO. The
    extinctionist view that Newco Rangers is a new club, remains the best fit to the facts (and the behaviour of Newco so far), and the existing law in
    this regard is sufficient – so I remain of that opinion …
    …for now.
    I feel it a better fit to the situation to consider Newco to have started a new Rangers, but must face the punishments of the footballing side of
    old Rangers as long as they claim to be old Rangers. Responsibility for the sins of the past can be avoided by ceasing claim to be the club of the past. Who knows?, this idea might be used in a future insolvency event scenario.

    I also have an issue with the following…
    If the opinion supported the eternal club idea in a legal sense, the LNS opinion endorses a ‘roadmap for blatant debt-sheddery’, which has its obvious direct implications for the sport, as well as indirect implications. All UK clubs would now have a roadmap for shedding debts (or accumulating unmanageable debt then shedding it) in which, without pressures of potential punishment and the Newco club facing searching questions about Oldco’s dodgy activities, clubs see a route towards clearing financial burden. Consider how a Kilmarnock or a St Mirren, for example, which have their own financial issues, may look to undergo an insolvency event to leave their debt burden behind and simply continue as before under different ownership. Consider potential purchasers of troubled clubs – they would see no advantage in taking on a club with such debt when they could simply wait until the insolvency event, purchase out the clubFC as part of the assets, and have a go at it from there. Further, activities like these last two hypotheticals, if becoming more widespread has the potential for football sliding towards a worsening reputation in society generally. There are financial implications for football should the roadmap increasingly be followed too. Financiers would see the risk and impose higher interest rates on any finance for all clubs. This would increase the cost base for clubs, and further disincentivise ‘good behaviour’ where its less of an overall financial disadvantage to join the ranks of the ‘misbehaving’ clubs.

    I dont argue that by the LNS opinion, all this would come about inevitably, but I’m sure you appreciate the potential scenario.

    Fortunately we are not at the stage of a ruling – we are still without a legal test to offer a definitive on the survivalist/extinctionist debate – one side v another under the law with a judgement passed. Even this might not be fully satisfactory to all, but it essentially would persuade me either way. A legal test would occur if, speculating, the Commission punished the eternal club which Groan/Newco challenged on the specific basis that it was, in fact, a new club and was not the current owner and operator of the eternal club. Given that out the Groan/Newco dummy has been spat, I doubt we would see such a test, but I suppose there is the possibility of a volte face.

    One last point on the ‘ground rules’. They set out specifically that, in the event of breach, it would be unfair to punish the Newco, but may punish
    the clubFC (RangersFC) which would have an effect on the Newco. I see that as ruling out a direct financial penalty on the clubFC. What that leaves could include, expulsion (but theyre out of the SPL, and SFA expulsion is unlikely as it would effectively end the business for Newco), bar from one or more tournaments (too late to bar them from any cups this season, but this could happen for future season(s), I suppose), a transfer embargo (which could run consecutive to the current one, or could run concurrently, the latter of which wouldn’t be much of a punishment – but that issue has been seen before).
    I dont see the setting the record straight re titles as a form of punishment.

    • Marching on Together

      A serious post, which I will treat with respect. However I disagree, and with respect i think you are misunderstanding things a little.

      1) “I interpret this by noting again that the club in this sense of common speech, is a non-legal one” If there is no legally defined definition of a word or term, and by that I mean as set down in statute, then the courts are required to apply the everyday meaning of the word to its interpretation. This does not mean that the meaning applied by the court is any less of a legal definition, just that the source of its definition by the court is different.

      2) “any undertaking capable of carrying on is also capable of coming to an end” True. But there is nothing in the saga of Rangers the football club, to suggest that the Football club aka the undertaking, has come to an end. If Charles Green flogged Ibrox, sold all the players, sacked Fat Sally, and all the Rangers punters went home quietly and took up flower-arranging instead, then yes, the undertaking would have come to an end. But Rangers and their fans are still doing what they do week in week out.

      3) “in legal terms, we are no further on than before this opinion” We very much are further on. One of the most respected judges in the UK and 2 eminent QCs have interpreted the rules of the SFA and the SPL and the law of the land to accept that the club is separate from the owners of the club, and have done so in a highly persuasive manner.

      4) “The extinctionist view that Newco Rangers is a new club, remains the best fit to the facts (and the behaviour of Newco so far), and the existing law in this regard is sufficient” In making this assertion, you ignore what the football authorities in Scotland have always maintained, and what has been the custom and practice to date of football in the UK. Do you also not think that if the existing law said something different to what the Commission decided, then they would have felt bound by it, rather than the rules of the SA and the SPL?

      5) “Responsibility for the sins of the past can be avoided by ceasing claim to be the club of the past.” Not if by contract with the SFA and SPL, newco have agreed to accept the punishment visited on oldco.

      6) “the LNS opinion endorses a ‘roadmap for blatant debt-sheddery'” This what currently happens to business of all sorts up and down the country, and it is nothing special to football. Company goes into administration, it is sold via a pre-pack, and opens for trading the next day, with creditors out of pocket. The law is not going to be changed just because some Celtic fans are aggrieved at Rangers exploiting the law.

      7) “Consider potential purchasers of troubled clubs – they would see no advantage in taking on a club with such debt when they could simply wait until the insolvency event, purchase out the clubFC as part of the assets, and have a go at it from there.” That is what already happens. “Financiers would see the risk and impose higher interest rates on any finance for all clubs.” This what already happens.

      8) “Fortunately we are not at the stage of a ruling – we are still without a legal test to offer a definitive on the survivalist/extinctionist debate” Well unless someone takes this case to an actual court, then this ruling is the best we are going to get, and if Charles Green and co don’t turn up for the hearing, then they are not going to waste their money on recourse to the courts.

      • COYBIG

        @Marching on Together

        “1) Your video – shite produced by bigots, without an understanding of either the legal position or what actually goes to make up a club. They want different rules to apply to Rangers than to any other club.”

        So a video, in which there is legal documentation, is “shite produced by bigots”. So can you provide factual evidence to disprove it? The bigots, as you call them, don’t want different rules applied to The Rangers. All they want is the rules to be applied and adhered by.

        “2)”

        (I’ve added a few definitions to help you understand the statment better)
        The supporters of AFC Wimbledon believe(to think that something is true, correct or real. Not a matter of fact) that our club is a continuation of the spirit(the form of a dead person, similar to a ghost, or the feeling that a dead person is present though you cannot see them. Not the person themself) which formed Wimbledon Old Centrals in 1889 and kept Wimbledon Football Club alive until(up to the time that. Not after) May 2002. We consider(to believe someone or something to be, or think of them as. Not a matter of fact) that a football club is not simply the legal entity which controls it, but that it is the community formed by the fans and players working towards a common goal. We therefore reproduce the honours won by what we believe(to think that something is true, correct or real. Not a matter of fact) was, and will always be, ‘our’ club, in our community.

        If, however, AFC Wimbledon was a continuation of Wimbledon F.C, it would have read as: The supporters of AFC Wimbledon KNOW that our club is a continuation of Wimbledon F.C. We KNOW that a football club IS the legal entity which controls it, but that it is ALSO the community formed by the fans and players working towards a common goal. We therefore SHOW the honours won by what we KNOW was, and will always be, ‘our’ club, in our community.

        “In 2006 agreements were reached over MK Dons returning the honours of Wimbledon FC to the London Borough of Merton. This was to include Wimbledon’s FA Cup replica, all patrimony the side had collected, trademark ownership and website domain names. The Borough subsequently transferred all trademarks to AFC Wimbledon.”

        If true, then it is purely nothing more than a symbolic gesture. If AFC Wimbledon really are a continuation of Wimbledon F.C. then there would be no need for any transfer.

        “The FA subsequently recognised this. Pete Winkelman (owner of MK Dons) apparently wrote to the FA asking for the FA Cup to be engraved with MK Dons 1 Liverpool 0 and got told by the FA to **** off.”

        So you have factual evidence, that The FA offically recognises AFC Wimbledon as the 1988 FA Cup winners, then? (Apparently: used to say that something seems to be true, although it is not certain). If true, then rightly so. The name of the team that won the 1988 FA Cup is Wimbledon F.C. Not Milton Keynes Dons F.C or AFC Wimbledon.

        “3) “Any club that comes out of administration through a CVA is the same club.” And? That is not what happened to Leeds United. “Any club that exits administration through liquidation is, in simple terms, dead. Gone, never to come back.” I suggest you come down to Elland Road and announce to the massed ranks there that Leeds United is dead – I am sure you will be persuaded otherwise.”

        It’s very nice of you to threaten physical violence as a reason for me to change my views. It’s funny tho, because other than questioning your support, I have not mentioned Leeds United. But if Leeds United where LIQUIDATED, then yes, the club you claim to support is a Pheonix. But, since I am sure that Leeds United where not LIQUIDATED, what has Leeds United got to do with a conversation on The Rangers, a Pheonix Club of the now liquidated Rangers?

        “4) “As far as you being a Leeds fan. I don’t believe it. You might be, but I don’t think so.” Whatever. I really don’t care what you believe, I will just not have you peddling garbage about my team, and the garbage you peddle about Rangers applies exactly to Leeds.”

        Peddling garbage? Like what? All my posts are based on factual evidence I have seen or read. Not just hearsay. If you can show me factual evidence, that would change my view ON THE RANGERS, then please, do so.

        As far as I know, the Leeds United situation is not exactly the same as The Rangers one. If you think that it is, then please, never attempt to practise Law.

        Your argument is based on ‘the spirit of a football club’. My argument is based on Law. I think that you are correct as far as the club living on throught the fans. But I am talking in regards as to a legal view. Also, unless you are going to show real evidence to back up your views, and not just hearsay, then I suggest that you don’t bother. Because this debate is just getting repetitive.

        • Marching on Together

          I will restrict myself to 3 points, as none of the rest merits any response:

          1) If you go to the FA’s website to check the winners of the FA Cup, it states that for 1987-88 the winners were “Wimbledon”, not Wimbledon FC”

          2) “But, since I am sure that Leeds United where not LIQUIDATED” More peddling of garbage. After selling the assets of the company i.e. the club, to newco, the administrators placed the company in creditors voluntary LIQUIDATION in February 2008. Checking Companies House would be easy for one so well versed in the law such as you. “As far as I know, the Leeds United situation is not exactly the same as The Rangers one” The only substantive difference is that oldco Rangers have not yet been placed in liquidation.

          3) I am far more versed in the law, as my posts on this site over the previous few months demonstrates, than you. I actually read the whole of the Commission’s preliminary judgment, and unlike most understood it in full. If you are unable to understand the legal points made in that judgment, then that is not my problem. Try asking your elders and betters to explain it to you.

      • COYBIG

        @Marching on Together

        “A serious post, which I will treat with respect. However I disagree, and with respect i think you are misunderstanding things a little.”

        Yes, because my post was fake. Oh, how honoured Carl31 must feel.

        “But there is nothing in the saga of Rangers the football club, to suggest that the Football club aka the undertaking, has come to an end. If Charles Green flogged Ibrox, sold all the players, sacked Fat Sally, and all the Rangers punters went home quietly and took up flower-arranging instead, then yes, the undertaking would have come to an end. But Rangers and their fans are still doing what they do week in week out.”

        The ‘shell’ that was Rangers, is, in a football sense, dead. And, in a legal sense, all but liquidated. It’s assets, were sold to Sevco 5088, to raise money for the creditors. To say the entity that now owns said assets, is the same one as the former, would be wrong. If I sold you my car, then died a week later. Would you become me? No. But you would still drive it, full it with petrol and make sure it passed it’s MOT aka the undertaking. The fans still support the new club, because it is seen as a spiritual continuation of the old club.

        “One of the most respected judges in the UK and 2 eminent QCs have interpreted the rules of the SFA and the SPL and the law of the land to accept that the club is separate from the owners of the club, and have done so in a highly persuasive manner.”

        There has been no legal difinitive yet. So, for now, it’s only your interpretation.

        “4) “The extinctionist view that Newco Rangers is a new club, remains the best fit to the facts (and the behaviour of Newco so far), and the existing law in this regard is sufficient” In making this assertion, you ignore what the football authorities in Scotland have always maintained, and what has been the custom and practice to date of football in the UK. Do you also not think that if the existing law said something different to what the Commission decided, then they would have felt bound by it, rather than the rules of the SA and the SPL?”

        The custom and practice of football in the UK to date, has been:
        Any club that goes into liquidation is removed from the league setup.

        “6) “the LNS opinion endorses a ‘roadmap for blatant debt-sheddery’” This what currently happens to business of all sorts up and down the country, and it is nothing special to football. Company goes into administration, it is sold via a pre-pack, and opens for trading the next day, with creditors out of pocket.”

        And then HMRC pursues the company for the said debts. As it is blatant tax avoidance.

        “The law is not going to be changed just because some Celtic fans are aggrieved at Rangers exploiting the law.”

        Maybe it’s because your away down in Leeds. But it ain’t just Celtic fans who are, as you say, aggrieved.

        “if Charles Green and co don’t turn up for the hearing”

        Yes, because Charles Green has stated that it is not the same Club.

        • Marching on Together

          1) “The ‘shell’ that was Rangers, is, in a football sense, dead.” No its not. It is playing (badly) every week, supported by the same fans, at the same stadium, under the same name.

          2) “To say the entity that now owns said assets, is the same one as the former, would be wrong” You just don’t get it. The entity that owns the club has changed, not the club itself. No-one is saying that the entity which owns the club is the same. The club is an asset of the company.

          3) “If I sold you my car, then died a week later. Would you become me? ” No, but I would still own your car, and would still host the legions of admirers travelling from far and wide to admire said car, and to buy the merchandise featuring said car.

          4) “There has been no legal difinitive yet. So, for now, it’s only your interpretation.” Well if you don’t accept the judgment of a Senator of the College of Justice and two QCs as legal definitive, then what are you waiting for? There has been no legal definition by a court of Celtic yet, but that does not mean that we don’t all know what Celtic is.

          5) “The custom and practice of football in the UK to date, has been: Any club that goes into liquidation is removed from the league setup.” A club cannot go into liquidation, only the company owning it can. In any event, a club is removed from the league set-up if its owners go into liquidation only if that company still owns the club at the time. With Rangers the club has been sold prior to its owners going into liquidation.

          6) “And then HMRC pursues the company for the said debts. As it is blatant tax avoidance.” Simply not true. Pre-pack administrations happen all the time, and HMRC accept it as it is perfectly legal if done properly. Or are you a tax lawyer in disguise?

          7) “Yes, because Charles Green has stated that it is not the same Club.” Basing your argument on what Green says from day to day, which is usually different, shows the paucity of your argument.

  5. Slightly off-topic but would appreciate any assistance. As I recall, the CVA meeting on 14th June lasted only 9 minutes given that HMRC had notified that they would vote against in advance.

    D&P said later in a statement that a vote had taken place (BBC reported 30 creditors attended). Can anyone advise if the votes of the other creditors were made public and , if so, where this info can be found?

  6. RayCharles

    I am a fan of simplification. It works well in the field of mathematics, physics and engineering where allowing tolerances and rounding down of numbers help matters.

    I would have thought simplification would be a useful tool for judges.

    Why overcomplicate things?

    If you want to conceptualise a football club in legal terms then the Articles of Association of the quasi-judicial bodies that govern football offer a simple, clear definition and would surely be the natural place to look in order to understand the issue.

    The club is defined as a legal entity responsible for running a football team.

    The club IS a legal entity.

    It is therefore personified by law.

    As I have pointed out before, my points probably only go to show my ignorance of the issues but from a layman’s perspective the way that Rod McKenzie has gone about trying to prove that a club is a distinct and separate entity that has no legal personality seems to overcomplicate the legal “reality” of the situation.

    I posted earlier that at the Collyer Bristow case in London, the QC’s talked about the club when, according to LNS, they should really have talked about the specific company.

    But this did not appear to confuse the presiding judge.

    He assumed that the club and the company were the same thing.

    It was a natural assumption. A simple one even.

    • ecojon

      @ Ray Charles

      I’m afraid simplification leads you inro a cul-de-sac.

      However I think it only fair that we firstly deal with your comments re Mr McKenzie which are way off-beam. The Nimmo Smith Commission actually reported: ‘This is not to say that a Club has legal personality, separate from and additional to the legal personality of its owner and operator. We are satisfied that it does not, and Mr McKenzie did not seek to argue otherwise.’

      And yet you state: ‘Rod McKenzie has gone about trying to prove that a club is a distinct and separate entity that has no legal personality seems to overcomplicate the legal “reality” of the situation’. Could I ask where the evidence is for your statement as I can’t find it in the Commission findings.

      Returning to your main argument you say: ‘Articles of Association of the quasi-judicial bodies that govern football offer a simple, clear definition and would surely be the natural place to look in order to understand the issue’.

      The problem with that approach is that at a minimum you have a league rule-book and an over-arching Association rule book and also a Uefa one and the Law of the Land.

      It is clear from the debate that various rule-books can be at odds with one another dependant on particulat circumstances and therein lies the real problem which creates a fluid definition.

      I would argue that the real definition of a football club could only lie in the individual club constitution and aims drawn up by its members. But in relation to Rangers (and most other clubs) that doesn’t hold good as a because the club ceased to be unincorporated in the late 19th century when it became a Ltd company.

      Although it does open-up an interesting concept which arises from the Nimmo Smith enduring club definition if you extend it beyond the fairly narrow bounds of the Commission remit.

      Basically I am postulating that if an unincorporated club constitution and aims survived to the present day could they, in the absence of anything that might replace them, still be held, in this day and age and indeed into the future, to be the continuing bedrock principles of an enduring club.

      The strength of the concept to me is that this original written document would have been framed and agreed on by the very core of players and supporters who founded the original club. Sometimes a return to roots can be no bad thing.

  7. carl31

    re the video posted earlier by COYBIG…
    Whilst it was compiled by one who obviously fails the ‘fair and balanced observer’ test, ad hominem should be avoided, and some of the content should be considered alongside other posters’ content.

    The video, IMO, does offer illustration of something… looking for examples of legalese that documents and supports the ‘club is company – no duality’ position vs the equivalent supporting club duality, IMO there is very significantly more of the former. Indeed, up until a few days ago, I would have said the latter was just about non-existent ( an opinion by Lord Hodge a notable exception).

    This is part of the reason for my remaining as an Extinctionist. For now.

    • Marching on Together

      Carl31

      The makers of the video are confusing two different uses of the word “club” – (a) how we currently use it to describe a team playing football together with its associated traditions, history, supporters etc; and (b) an unincorporated voluntary association, such as a bowling club or a miner’s welfare club, with office-bearers, a constitution, members and a committee. This is what Rangers were pre-1899. “Incorporation of a club” does not involve a magical process transforming an unincorporated voluntary association into a company. What it involves, is the formation of a company, the transfer of the assets of the unincorporated voluntary association to the company in accordance with the constitution of the unincorporated voluntary association, and the winding up (possibly) of the unincorporated voluntary association.

      If the makers of the video are reduced to using quotes from the Rangers web-site, written by people clearly with no legal training or input, then more fool them.

      UEFA rules are irrelevant – UEFA rules say somewhere that you must not be corrupt, and you must not bribe referees, but UEFA are happy to connive with that.

      As for the SFA rulebook, I would much rather accept the judgement of Lord Nimmo Smith’s Commission, where there were expert legal minds interpreting it, rather than the makers of the video, who took one section out of context.

  8. I think we are spinning ourselves into a hole here – as I understand it Nimmo Smith & the Commission (sounds like and 80s band) are looking at this case as it pertains to the rules of the SPL. This is not a criminal case, its not even a civil court case (though that may follow). I understand that people who want to see Rangers under its new owners continue as an unbroken history would leap onto this hook like a Tay salmon – for the record, I am one of those, though not for the same reasons as many fans of the Sevco-owned entity – but I don’t think NS&C have set the bar to “a legal high” (so to speak)… It remains to be seen how the other actual investigations (HMRC, BDO, police) see the relationship between club & owners, past & present, and who might be liable for any clean-up post-spill.

    I am happy for Rangers history to be unbroken as long as they agree to abide by whatever findings Nimmo Smith & the Commitee present. The possibility of any “club” cheating for a decade and then pulling “the old switcheroo” and walking away Scot-free (pun intended) is, to my mind, beyond the pale (ditto). It would be like Bernie Madoff changing his name to Mernie Badoff and being allowed to walk away.

    It seems to me, “the club” made decisions that benefited directly “the club” both financially and in terms of “honours” and I for one am very happy this will be investigated. If “the club” under whatever owners happen to be in place don’t want to particpate – effectively refusing to give evidence – fair enough, that is their right – NS&C are of course experienced enough to infer what that might mean.

    I’d also like to say that
    a) I think it’s a disgrace that the independence has been impugned by what is effectively the accused. Where else would that be given any credence, let alone the lead committee member thinking to has to make a statement asserting such.
    b) if Rangers are found not to have breached any rules, well good luck to them.

  9. Carl31

    MOT,
    Thank you for your reply earlier.
    As an observation, you seem, throughout your posts, to mix some salient, sensibly put arguments, with some prejudiced rubbish for which you can have no evidence whatsoever. Arguing that you have legal expertise where others are amateurs, would be more acceptable were you in possession of all contributor’s currucula vitae.
    And i wonder how you could possibly back up that ‘ UEFA are happy to connive with [bribery of referees]’.

    If you had a proper understanding of the legal landscape here you would know that we debate that which is not easy, and clearly not simple, and most definitely not settled. So i would put to you that the position ‘this happens all the time with loads of companies in the UK’ is evidently not the answer – its been plainly put by many posters, that what happens is a sale of assets. Showing that this is the sale of the club is somewhat tricky, there is considerable evidence that its just sale of assets. seeking to claim it as sale of club requires some legal mental acrobatics IMO.

    If you approach the Rangers situation with the settled view that its the same as the Leeds Utd situation, and youre adamant that club is eternal, I wonder how you think you do on the ‘fair and balanced test’? Are some posters saying ‘extinction not survival’ to one who, whilst clearly not ‘complacent’ may be ‘unduly sensitive…’?

    • Marching on Together

      “Showing that this is the sale of the club is somewhat tricky, there is considerable evidence that its just sale of assets. seeking to claim it as sale of club requires some legal mental acrobatics”

      I don’t see what is difficult about accepting that the club is an asset, or indeed a series of assets. I have previously suggested comparisons with other brands to assist with the understanding of this. If all the assets that go to make up a club are sold as a package, then surely it is not too difficult to accept that the club itself has been sold.

      “Arguing that you have legal expertise where others are amateurs, would be more acceptable were you in possession of all contributor’s currucula vitae.” I have argued that only once, against someone who has demonstrated a lack of a understanding of basic legal concepts and who tried to claim that my understanding of legal issues was deficient, leading me to rightly conclude that he had no or very little legal expertise at all.

      “If you approach the Rangers situation with the settled view that its the same as the Leeds Utd situation” Surely you would be good enough to accept that having been through the whole administration, failure of CVA, asset sale, transfer of golden share, sanctions imposed by football authorities, liquidation of company saga with my own club, that I would have started with a smidgen more understanding of what it all entails for Rangers than most?

      As for “club being eternal”, nobody suggested in 2007 that Leeds United were defunct, and the only reason I can see for those wishing to treat Rangers differently and not according to the rules is rooted in pre-existing prejudice.

      • ecojon

        @Marching on Together

        I think you err in attempting to equate a club which has no legal personality and exists primarily in the hearts and minds of its support with the interests of financiers interested in assets, brands and Intellectual property rights which all have a legal persona.

        I think I understand the difficulty you have because unless you extend the history of a club into a legal entity how then can even an enduring club which is a non-legal entity based in the hearts and minds of supporters actually hold a legal transferable claim to titles.

        It can’t but actually to supporters it doesn’t need to because at the end of the day no matter whether titles are stripped or not they will still exist in the living Collective Memory of a club and that goes for any club and not just Rangers.

        I think we must be careful, especially some Celtic supporters, not to get too tightly focused on Rangers but rather think that if the shoe was on the other foot would we still claim titles if we believed they had been wrongly stripped from us. Football supports can suffer from serious ‘delutional’ behaviour as mick descibes it – I love the spelling and it might become a new word used only in a footballing context 🙂

        But I happen to believe that clubs only win the right to a title, in the main, for a 12 month period and then it returns to its parent body who physically also own the actual silveware as well as the right to loan it out on an annual basis.

        If an title is subsequently stripped from a club and the holding or operating company persists in claiming it among honours publicly displayed or claimed then the club/holding/operating company and relevant officials would be open to sanctions as per the league and SFA rule books. If fans carried banners into the ground then the club/holding/operating company would again be responsible.

        But if fanzines or fan websites carried the claim I believe whether there was any actual legal breach of anything or not then the League and SFA and even Uefa would be unable to act in any practical sense.

        • Marching on Together

          If by ‘club’ you mean in common parlance those collection of assets including intangible assets which go to make up a football club, then yes, it has no legal personality, if by ‘legal personality’ you mean a person (in the legal sense). However assets, brands and intellectual property rights do not have a separate legal personality either. they are merely various types of property, both tangible and intangible, corporeal and incorporeal.

          “unless you extend the history of a club into a legal entity how then can even an enduring club which is a non-legal entity based in the hearts and minds of supporters actually hold a legal transferable claim to titles” Treat it as parasite and host. The parasite is a separate thing, but cannot survive without the host to host it. The parasite has collected the titles, but it if moves onto a different host, the titles go with it.

          “if the shoe was on the other foot would we still claim titles if we believed they had been wrongly stripped from us” Agree. There was mock outrage over on Phil McG’s site from the man himself when I pointed out that if Fergus McCann had turned up an hour later and had had to buy the assets of Celtic from the receivers then the Celtic fans would be adamant that they were still one and the same club, and that the club of Jock Stein, 9 in a row and 1967 were the same club post receivership, as would have been the case for supporters of any club. But no apparently, Celtic supporters are whiter than white and would have been forming a queue to hand back all those trophies.

          “to supporters it doesn’t need to because at the end of the day no matter whether titles are stripped or not they will still exist in the living Collective Memory of a club and that goes for any club and not just Rangers” Agree. I know as a Leeds fan, in our collective memories that we won the European Cup Winners Cup in 1973, even though the official corrupt-UEFA record books show the holders as AC Milan, as the ref was bought and paid for by Milan, as has been long admitted and accepted by everyone but corrupt-UEFA. No-one in Leeds cares what corrupt-UEFA thinks on the subject any more.

          • ecojon

            @ Marching on Together

            Where I probably disagree with you is equating ‘club’ with ‘parasite’ and indeed would think that the parasite is more likely to be the roving opportunistic investor looking to make a quick ‘killing’ usually at the expense of the ‘club’ before dropping-off having liquidised the assets and then seeking another host victim. The feeding mechanism is off course facilitated by the use of incorporated operating and holding companies and often share flotations.

            I would say that where the host, in the shape of a holding/operating company with a legal personality, dies and there is no replacement because there is no flesh left to strip in the shape of assets that the club can actually survive or be reborn in the shape of a new unincorporated association if the determination of the supporters is strong enough.

            Of course the vultures are always out there waiting for the club to grow and garner assets so that they can swoop and feed yet again in a continuation of the parasitic cycle which sometimes requires more than one host to actually be completed.

      • carl31

        I don’t see what is difficult about accepting that the club is an asset, or indeed a series of assets. I have previously suggested comparisons with other brands to assist with the understanding of this. If all the assets that go to make up a club are sold as a package, then surely it is not too difficult to accept that the club itself has been sold.

        There are difficulties. If its not difficult, then why, again, was it not set out as the clubFC in the list of assets bought from Oldco to Newco? If it was within the ‘goodwill’, it would have been straightforward to state what aspect of the goodwill comprises the clubFC. The reason, in my view is because the transaction simply involved assets of the club, since Oldco and clubFC are one and the same under the law. The ideas of brand and/or parasite-host make sense and can be considered, but they don’t need to be since there exists sufficient explanation of events.

        Surely you would be good enough to accept that having been through the whole administration, failure of CVA, asset sale, transfer of golden share, sanctions imposed by football authorities, liquidation of company saga with my own club, that I would have started with a smidgen more understanding of what it all entails for Rangers than most?

        I most definitely would as its clear your posts are informative …but I’m sure you don’t require such approval.
        In the LNS opinion, the bit about the question of bias mentions the ‘fair-minded and informed observer’ – my question to you related to the ‘fair-minded’ aspect, whereas you have described why you would be considered ‘informed’. So my query on how you regard yourself against this test – being neither complacent nor unduly sensitive or suspicious – still stands.

        • Marching on Together

          “why, again, was it not set out as the clubFC in the list of assets bought from Oldco to Newco? If it was within the ‘goodwill’, it would have been straightforward to state what aspect of the goodwill comprises the clubFC” Because the accounting practice is that there is no separate entry for brand- that is all included within goodwill and IP. For example if you peruse the consolidated balance sheet of The Coca Cola Company as at 31 Dec 2011, you will not find an entry for brand, but ‘goodwill – $12,219m’ and ‘Trademarks with indefinite lives – $6,430m’. As The Coca Cola Company say in the notes to that balance sheet: “Intangible assets are classified into one of three categories: (1) intangible assets with definite lives subject to amortization;
          (2) intangible assets with indefinite lives not subject to amortization; and (3) goodwill.” These are the things which make up the brand.

          “The reason, in my view is because the transaction simply involved assets of the club” It did. All the assets of the club, which go to make up the club, were sold. Why would you think that if all the assets of the club were sold that ‘the club’ was somehow left behind, when it is clear that the buyers intended to buy the club and the sellers intended to sell it?

          “the bit about the question of bias mentions the ‘fair-minded and informed observer'” I have posted in response to COYBIG the details of my allegiances. I think you can safely conclude from that that my bias is if anything against Rangers. However, what I want to see is the rules applied to all.

          • carl31

            “The reason, in my view is because the transaction simply involved assets of the club” It did. All the assets of the club, which go to make up the club, were sold. Why would you think that if all the assets of the club were sold that ‘the club’ was somehow left behind, when it is clear that the buyers intended to buy the club and the sellers intended to sell it?

            So you hold that all the assets of the club were sold?
            No. They have been reported as ‘certain assets of’ the club by the sellers (D&P). Certain assets were sold, not ‘all the assets’, and not the club. If it were all the assets, then thats how the terms of sale would have been set out in the Asset Purchase Agreement.
            This has been covered before.

            • Marching on Together

              All the assets owned by oldco necessary to comprise a football club were sold to Sevco. Irrelevant stuff like Arsenal shares were not.

            • Duplesis

              @carl31

              LNS confirmed that which assets make up “the club” will vary from case to case, but suggested a minimum of the name, the player contracts, the manager and staff, and the ground – all of which were sold by the old plc to the new Ltd company in the RFC case.

            • carl31

              I dont want to keep covering old ground, but would add something here.

              Part of the issue I have is the obvious difficulties in a common thread of argument to the claim of the eternal club. An illustration is the two posts by MOT at 4.59 and Duplesis at 6.24 – they both follow on the theme ‘assets necessary to comprise a clubFC’, but earlier strenuous points by MOT are that the goodwill is key, whereas the fair point that LNS’ minimum suggested assets are given, but dont include goodwill. If the brand/goodwill is key, why is it not given in the set of assets deemed to be a minimum? Also, its worth pointing out that the asset examples given may each/all be subject to change. They dont embody something eternal or continuous. Ibrox has been/will be there for a very long time (raise a glass) but go tell Arsenal fans that their club’s eternal legacy is defined by where they play footy.
              There are other inconsistencies from other contributors who argue the undying RangersFC (actually, if you look back at a number of my posts, you’ll see that I have no issue with fans arguing their eternal club idea – I simply take the view that the law holds otherwise).

              Looking from the Survivalist ‘side’, the only common thread I find is the idea that the clubFC is that which is thought to be the clubFC. It is beheld as clubFC. This fits the ‘regarded as/considered as/ recognisable as’ requirement, and also fits with ‘having no legal personality’ as per LNS. It fits with all the requirements for a clubFC to continue through any/all changes of ownership or assets, and be as definable/undefinable as it needs to be. Through all of this saga, surely RangersFC is that which is beheld as RangersFC?

              Now, getting the law to formally recognise this is another thing.

            • Marching on Together

              When talking about the assets necessary as a minimum to constitute a club, Lord Nimmo Smith said: “…it would AT THE LEAST its name, the contracts with its players, its manager and other staff, and its ground…”. The list was not exclusive or all-encompassing.

            • carl31

              Agreed, but with respect my point was that I would have thought ‘goodwill’ would have made it in there – going by your, and other, previous posts.

  10. ecojon

    I really think that we are into the old ‘how many angels can dance on a point of a needle’ argument with the definition of a ‘club’. It doesn’t actually matter what other people think the term means all that matters is the Commission view in the current context.

    Nimmo Smith has defined ‘club’ to make it clear the context the term will be used by his Commission. Now, that could actually be incorrect legally but the only way Nimmo Smith’s definition will be altered is if the courts are asked for a judicial review or some other legal mechanism is employed to challenge the definition.

    Off the top of my head I think the only parties with credible legal standing to do this are D&P, oldco and newco. For a variety of reasons I think in reality only newco might actually go ahead or at least lead in any legal challenge.

    And therein lies the problem for chico because if Nimmo Smith is declared to have erred and a ‘club’ doesn’t actually ‘live’ through a change in operator/ownership then Rangers as a ‘club’ doesn’t survive and in that case it could be reasonably legally argued that the titles cannot actually transfer to a new operating company as it has no ‘history’ but is a brand-new legal entity. So newco could actually end up with every title it ever held being legally stripped from it.

    So chico is in a Mexican stand-off. He gambled that all his bluster would buy him time so that he could pull-off his AIM Flotation without the bad publicity from this ‘problem’ hanging over investors. But the SPL has carried on albeit delayed for various reasons and chico made his big mistake by not being represented at the initial Commission hearings.

    That action was more akin to a naughty-child tantrum than measured deliveration from a serious businessman and will prove to be a real lead lifebelt round his neck in any legal action taken by him or Rangers.

    Quite simply he is now on the legal backfoot and his opportunities to get the law on his side are rapidly diminishing and his fear of legally challenging Nimmo Smith or the Commission can only lead to an impartial and fair-minded observer to conclude there isn’t a scintilla of evidence in his armoury – just weasel words that stop short of being actionable or ‘murmuring’ a leading member of the justiciary.

    And of course Ally has again returned to the fray with yesterday’s defence of EBTs and stated: ‘“I do find it strange that 
people want to strip titles or threaten to strip titles before you have been found guilty of any alleged offence.”

    He fails to reveal whether he was a benefiary of an EBT and also that the 5-way draft was actually a rather foolish and misguided attempt to help Rangers creep into SFL1. The suits who were trying to engineer that particular outcome must rue the day – if they had stuck to the rules Rangers wouldn’t even be in SFL3 and. It’s amazing how the truth behind the 5-way draft has been twisted by Rangers as a punishment when it was actually crafted as a reward.

    However the 5-way draft has nothing to do with the Nimmo Commission and if Green had a shred of evidence that it did then he would have already taken legal action.

    So now we await to see if he turns of for the October disrepute hearing and November Commission Hearing so it looks as though Rangers will maintain centre stage at least off the field for quite some time. And I nearly forgot about Hector just about to pronounce but at the end of the day that is meaningless to the outcome of the dual contract inquiry.

  11. Bluesnaw

    It’s a pity McConville wasn’t so thorough when he dealt with miners’ compensation claims. Perhaps if he’s been so, he may still be allowed to practice law in this country unsupervised!

    This man has no credibility whatsoever, yet we still have a procession of morons engaging in his hackneyed, one-sided drivel… or is it a case of: credo quia absurdum est?

    • Will you be be allowed back on Follow Follow if you go around quoting Latin…?

    • Marching on Together

      I think that if you go to the dictionary and look up “hackneyed, one-sided drivel” you will find a big photo of your ugly pus.

      • Bluesnaw

        Aye, and look up phrase like “serial haters” and “intolerant clowns” and you’ll see a who’s who of idiots like you lot… incapable of original thought, with an insatiable hunger for watery gruel served up as facts by the likes of McConville, Mac Giolla Bhain (or possibly Gillivan, McGillivan or maybe even White?), Hassan et at.

    • ecojon

      @ Bluesnaw

      Obviously not enough brain cells to participate in debate or even to count the number of posters involved in the debate here from a lot of different clubs including the one you ‘use’. I don’t need latin to recognise you as an eedjit 🙂

      • Bluesnaw

        You don’t need brain cells to engage in debate with you lot; you simply need a fertile imagination, an unhealthy obsession with all things Rangers and a penchant for made up stuff!

    • Mick

      @bluesnaw your totally deluded

    • Ernesider

      Latet anguis in herba – (Virgil)

      • Mick

        Now the paperchase is hotting up and Charlie bhoy is feeding the media with docos about secret deals at same time as lord nimmo smith report what it’s pure popcorn and cola stuff

        • ecojon

          @ Mick

          Interesting about the document in the Record that it had no letterheading on it. There must also have been discussions and possibly previous drafts and the markings on the one displayed in the Record tends to make me believe it was a ‘working’ document that had not yet been finalised.

          It seems to me that is this was chico’s ace in the hole then it’s a busted flush. It most certainly ain’t a get outa jail free card 🙂

      • ecojon

        @ Ernesider

        Excellent – I always knew Virgil would come in useful one day!

        However, do you have the Old French translation as that seems to be the only language chico comprehends 🙂

  12. mick

    greens kept all the dodgey drafts as amo lol
    it doesnt matter what was said and done the wheels of justice are in progress and the titles will be stripped and expultion is still a viable option to the dirty tricks campign to me looks like a broken arrow type event

  13. mick

    getting back to the zombie debate throw week theres lots of articles popping up on it heres the 2 a thought were best and worth a read
    http://www.philmacgiollabhain.ie/the-zombie-sense-of-humour/#more-3126

    http://www.scotzine.com/2012/09/zombie-banner-and-whataboutery-is-football-banter-no-more/
    a read throw most sites and comments on it and lots of fans of all teams think its banter and the sfa have called it wrong

    • ecojon

      @ mick

      The sad thing about all of this is that the whole zombie thing could have been handled and presented in a totally humorous way and tbh I think the Demand Justice for Zombie banner in amongst the other GB banners was hilarious. The Keep Calm Shooting Zombies is not Sectarian is also fine. Left for Dead in Div3 another great one

      What I think is wrong about the banner subject to the SFA complaint is the inclusion of a gunman because of all the negative connotations that can be manufactured from that. It wasn’t necessary as we do all KNOW that zombies always get shot so it didn’t need to be used. And what happened to the good old stake through the heart?

      I also object to the human to ape progression shown in the banner which tio me is actually worse than the gunman and if people can’t work that out for themselves I have no intention of wasting a moment of my time trying to explain it.

  14. COYBIG

    @Marching on Together

    Some questions for you Sir, if you would be so kind as to reply, please:

    1. Cards on the table. I am a Celtic fan, who finds The Rangers current situation somewhat humorous, yet equally saddening. I also feel agreeved, and rightly so in my mind, that my team was ‘seemingly cheated’ out of 5 SPL titles by a team that had players who, without the EBT/dual-contracts, would not have been playing them. I know that, being a Celtic fan, and thinking this way, will undoubtedly cloud my judgement on the situation as a whole. But, do you think I have any right to feel agreeved?

    2. Do you think it is morally right for a club to simply liquidate, shedding all debts, and carry on as if nothing has happened. To announce that it is exactly the same club as it allways was and nothing has changed. From what I have read, this is illegal, and HMRC, along with BDO will interject. What do you think?

    3. I would like to take this opportunity, to sincerely apologize, for anything I have said that you have found offensive. As I have said, being a Celtic fan has clouded my judgement on this. In reflection, since reading your subsequent posts, you seem to be a knowledgable person. And I, quite frankly, had ideas above my station, and am out of my depth. So, I apologize for anthing that looked like it questioned you academic ability. I am also sorry for doubting that you are genuine Leeds United fan. With all the ‘trolls’ that have posted on here, under suspicious guises, I got ahead of myself, and jumped to the conclusion that you were one of them masquerading. Also, I would like to ask you, please don’t think of or label me as a bigot, as that is absolutely not the case. I despise all of that stuff. Once again, I sincerely apologize to you, for anything I have said that you have found offensive. What I wrote was, in no way, meant to be volatile. It was rather someone who needed some sleep.

    • Marching on Together

      Thank you for the content and tone of that post. I offer my apologies in reciprocity if anything I said offended you. I tend to respond in similar tone to that to which I am responding, but no excuse really.

      I am a Scottish and Scotland-based Leeds fan of some 40+ years. Bremner, Gray, Harvey, Lorimer, Jordan, McQueen etc etc However growing up in Scotland, it was necessary to have a Scottish team, and although most of my friends were Rangers, I chose Celtic for the simple reason that Rangers were masters of hoofing the ball long to the big man, whereas Celtic played attractive attacking football based on a passing game under Big Jock. I have been to watch Celtic many times, both in Scotland, England, and in Europe. However I have no truck with any of the old Irish, Catholic heritage, IRA freedom fighter stuff that goes with it for so many Celtic fans. My reasons for following Celtic were purely football related. I have given up on Celtic somewhat after an extremely unpleasant incident involving racist abusive Celtic fans in Milan in 2004, and I started paying more attention to the stuff that was being sung round about me on my occasional visits to Celtic Park. However, I still have Celtic sympathies.

      I have never set foot in Ibrox, and years ago pledged never to do so. I also find the situation quite humorous, and on the day the CVA failed, I certainly had a good chuckle with my neighbours about it.

      Having said all this, the subject of the EBT and dual contracts, are separate from this issue of whether Rangers continue as a club. I know how you feel about being cheated out of titles – as a Leeds fan we have a long and glorious history of being cheated 1973 Cup Winners Cup Final – bought ref; 1975 European Cup Final – bought ref; European Cup semis in 1970 – forced to play 53 games in three days (or something like that) by the League secretary Alan Hardaker (who hated Leeds) so as to ensure we had no chance against Celtic; Don Tinkler v West Brom; losing the 1965 league title on goal average, when the next season they changed it to goal difference, which we would have won on; etc etc etc.

      I would not be satisfied unless every game in which a player with a dual contract played was not registered as a 0-3 loss to Rangers, which has always been the customary penalty for this offence. If that means that Rangers lose 5 or more titles and countless cups, so be it. Those are the rules they played under, and which should be applied without fear or favour.

      If that means that there has to be a clawing back of prize money, then so be it, although that can only be against oldco, and the SPL and SFA and SFL would have to join the queue of unsecured creditors, unless C Green was daft enough to agree something open-ended about taking responsibility for any financial losses arising as a consequence of sanctions. Similarly there should be a fine against Rangers for systematically carrying this out, but again this should be against oldco. All this is predicated on Rangers being found guilty of the charges.

      As to your second question of whether it is moral for a club to liquidate and shed its debts and then carry on before, I have little interest in what is moral, and lost that naievety when it comes to football in the 1970s. The question is whether it is legal, and IMHO according to the rules of the SFA, the SPL, and the law and custom of the land, it is.

      • COYBIG

        @Marching on Together

        Thank you for accepting my apology. I accept yours too, tho none was needed. Now, lets forget all about it and move on.

        Nice to hear that your a still a Celtic man, well, sort of anyway. If a ‘The Rangers’ fan read your last post, they would probably say that you certainly have the paranoia down to a tee. (Joke)

  15. Ray Charles

    Charles Green says:
    “Lord Nimmo Smith has said that Rangers FC is a recognisable entity which continued in existence notwithstanding the change in ownership,” said Green in a statement.

    “He also stated that Rangers FC, the club, includes its owner and operator.
    “The commission has in effect ruled that Rangers and its history did not die on 14 June, despite numerous reports to the contrary.

    “This means that Rangers FC and its owner, i.e. me and my consortium, remained a member of the SPL even after the change of ownership.

    Lord Nimmo Smith chaired the investigation into Rangers rule breaches
    “The SPL made the club (including its owner and operator) reapply to be a member of a league that the commission says it was in already.
    “If the commission is right then the change of ownership was frankly irrelevant to SPL status.”

    http://www.bbc.co.uk/sport/0/football/19722487

    Is he right?

  16. Plughole

    Paul,

    How do I contact you on another matter, I need your and the blog’s help with a tale of malfeasance at the heart of local government!

    Plughole

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