I am delighted to welcome The Battered Bunnet to the blog with the following piece which has been posted already on CQN, but which he was kind enough to add a tail piece to for me.
I am grateful to TBB for letting me post it here.
So, without further ado, please welcome the Battered Bunnet, with exclusive addendum too!
Charles Green wasted little time in jumping on the comments from Nimmo Smith last week on what constitutes the Rangers ‘club’, but I think he somewhat misconstrued the issues at hand.
In the SPL Commission’s Reason for Decision from which Green quotes extensively, Nimmo Smith is discussing what constitutes a ‘club’ for the purpose of the SPL Commission which he Chairs, as defined by the SPL Articles and Rules – specifically, rule I1 which states:
“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 and, except where the context otherwise requires, includes the owner and operator of such club”
In essence: Under the SPL’s rules, when a team is no longer entitled to play in the SPL, it is no longer a ‘club’ as defined by the SPL’s Articles.
The Lawyer for Oldco and Newco (same firm) argued to the SPL Commission that under the rules of the SPL, Rangers FC ceased to be a ‘club’ on the 14th June, the day Sevco Scotland Ltd bought the assets of RFC plc from the Administrator.
The SPL’s Lawyer disputed that, insisting that RFC ceased to be a ‘club’ as defined in the Articles on the 3rd August, the day the SPL Board transferred the SPL share from RFC to Dundee.
Nimmo Smith said… it disnae matter what day RFC ceased to be a ‘club’ for SPL purposes because all of the alleged rule infringements in the indictment occurred prior to RFC ceasing to be a ‘club’ under SPL Rules regardless of which date you choose, and cease they surely did, as agreed by all concerned.
Evidently, the Commission, the SPL, Oldco and Newco all agree that, for the purposes of the SPL’s Articles, Rangers FC ceased to be a ‘club’, the only matter in dispute is the date they ceased to be.
This of course is discussed solely within the parameters of the SPL’s own definition of ‘club’ per its Rules and Articles. The discussion does not suggest that a ‘club’ ceases to exist when it ceases to be recognised as an ‘SPL club’. Clearly for example, while a ‘club’ may very well cease to be a ‘club’ in terms of the SPL Articles when it is relegated, it remains a football club provided that it continues to participate in the Game generally.
Nimmo Smith picks up on this and, as allowed for in the SPL’s definition of ‘club’, chooses to separate the ‘undertaking of the football club’ from the owner and operator of it within the context of the SPL Commission’s remit.
For Nimmo Smith, although the owner and operator has been consigned to be dissolved, the ‘undertaking of the football club’ was purchased by Charles Green’s Sevco Scotland Ltd, and the ‘undertaking’ is now operated by a new owner.
Nimmo Smith concludes from amongst the provisions of the SPL’s Rules, that a ‘club’ is an ‘undertaking which is capable of being owned and operated’ and does “..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.”
This then introduces a second definition of ‘club’ into the mix. On the one hand, all parties agree that for the purposes of the SPL, ‘Rangers’ ceased to be a club when it ceased to be entitled to participate in the League. On the other hand, for the further purposes of the SPL’s Commission, the ‘club’ continued as an ‘undertaking’ comprising various assets and staff.
Charles Green jumped on this and claimed: “The Commission has in effect ruled that Rangers and its history did not die on 14 June despite numerous reports to the contrary.”
It’s quite a leap of judgement from Green, and one that is disputed here and elsewhere, but to be fair to him, and drawing from Nimmo Smith’s ‘undertaking’, the stadium continues to be used to host football matches featuring a team of players calling itself Rangers, which begs the question: Is this the same Rangers ‘club’ that was formerly an ‘SPL club’ as Green claims? Does Nimmo Smith’s definition of ‘club’ square with that of the SFA and other stakeholders?
The SFA, the Governing Body of the Game in Scotland, helpfully provide some assistance on the matter with the following definitions:
Drawing from the SFA Articles:
“Club: means a football club playing Association Football in accordance with the provisions set out in article 6”
“Club Licence: means the licence secured and maintained by the clubs in membership of the Scottish FA… upon compliance with the Club Licensing Procedures”
And from the SFA’s Club Licensing Procedures:
“National Club Licensing applies to Scottish FA member clubs”
“Definition of the Club: The club is a full member and/or an associate member of the Association and the expression “membership” shall be construed accordingly.”
“All SPL, SFL and SHFL clubs, as members of the Scottish FA, are subject to Club Licensing and are bound by its requirements.”
“Licence Applicant: The Licence Applicant may only be a football club, that is the legal entity fully responsible for the football team participating in national and international competitions and which is the legal entity member of the Scottish Football Association (Full or Associate Member).”
Taken together, it is clear that for the purposes of the SFA, a ‘club’ is a Member of SFA, that Member being a Legal Entity responsible for a football team that is bound by the Club Licensing criteria.
In order to obtain a Club Licence, the ‘club’ must own or have access to the various elements described in Nimmo Smith’s ‘undertaking’, but a ‘club’ has further prerequisites for the SFA, namely SFA Membership and a Legal Personality.
Similarly, UEFA, the Governing Body for the Game in Europe, defines a ‘club’ for the purposes of a UEFA Club Licence in the following terms:
“Legal entity fully and solely responsible for the football team participating in national and international club competitions which applies for a licence.”
In terms of both the SFA’s use of the term ‘club’, and UEFA’s definition of a ‘club’, the ‘club’ recently known as Rangers FC was in fact the legal entity Rangers Football Club plc, being the legal entity Member of SFA, and licensed by SFA and UEFA to participate in the Game.
On 13th June the relevant ‘Member Club’ of the SFA was Rangers football Club plc. By 1st August it was no longer a member club of the SFA. It had ceased to be a club for the purposes of the governance of the Game.
The SFA now has a ‘conditional’ member club formerly called Sevco Scotland Ltd since renamed The Rangers Football Club Ltd, which because it is a new Legal Entity, is not eligible for a UEFA Club Licence. Whether it satisfies the requirements of SFA Club Licensing, at least at Entry level, remains to be seen.
However, the vestige of Rangers FC remains apparent, referred to by Nimmo Smith as the ‘undertaking’. Charles Green claims that his Sevco company ‘owns’ it, and his Sevco company is fielding a team that is playing matches using the name ‘Rangers’.
Nimmo Smith states that, in Legal terms, while lacking a legal personality, a ‘club’ is “no different from any other undertaking which is capable of being carried on, bought and sold”, a definition somewhat at odds with SFA and UEFA, but remember he is discussing the term ‘club’ within the context of his remit and the definitions provided in the SPL’s Rules and Articles.
Green’s Sevco purchased the undertaking, the physical assets of Rangers Football Club plc, together with the rights to use its brand names, designs, identifiers and other intellectual properties. Accordingly, he is legally entitled to field a football team in matches played at Ibrox Stadium, and call that team ‘Rangers’.
But did he buy the ‘club’?
No says UEFA: The club is a legal entity.
No says the SFA: The club is the legal entity member of the SFA.
Despite playing in the same stadium, with the same strips as Rangers FC, Green’s Rangers is not the same ‘club’ that was a member of the SFA and which held a SFA and UEFA Club License.
For SFA and UEFA, Rangers Football Club plc ceased to be a ‘club’ for the purposes of the Governance of the Game when it was no longer “fully (and solely) responsible for the football team”, and subsequently ceased to be a Member of SFA altogether.
But what of the Supporters of the club? Does the supporter recognise the ‘club’ in the same terms as Nimmo Smith or SFA?
For the supporter, the ‘club’ manifests itself in many ways, including but not exclusively in Nimmo Smith’s collection of assets wrapped up in the ‘undertaking’. For Nimmo Smith, the nature of the ‘undertaking’ is simply the sum of its parts: The Stadium; the Players; the Manager and so on albeit these are apt to change. For Nimmo Smith, while the handle and the brush head might each have been changed umpteen times, the broom is still identifiably Trigger’s. (© Contrarian)
For the supporter though, the ‘club’ has a meaning beyond its legal personality, its tangible assets, its players, its memberships and licences.
For a Supporter, a club is not defined by its legal personality. After all, no one is claiming today to be a loyal Sevco Scotland Ltd supporter.
It is not defined by a group of players playing as a team, as the players and the team change from year to year but the ‘club’ remains.
Neither is it defined by a given team playing at a given stadium, as clubs often change stadium without compromising the identity of the ‘club’.
It is not defined by the strip worn by the team or the badge stitched to the strip, as again, these are merely designs that are periodically changed without impacting on the essence of the ‘club’.
All of these tangible things – Stadium, Players, Strips – may be associated with a ‘club’ in the supporters mind, but they are not in themselves individually or collectively the ‘club’ as the supporter perceives it. They are manifestations of the ‘club’, part of it, characteristics of it perhaps, but they do not define the ‘club’ itself in the mind of the supporter.
So if, to the Supporter, the ‘club’ is not the company that owns the players playing in the shirt with the badge on it, at the ‘home’ stadium of choice, as defined by SFA and UEFA, what is this ‘club’.
I am indebted to my Tutor, @glasnost, for pointing out that it is often futile to attempt to define the essence of a concept where an essence does not exist, and that in this case, perhaps the meaning of club doesn’t consist in any set of the features mentioned, but by the intricate web spun from all of them. Nevertheless….
…I think ‘club’ in the mind of the football supporter is essentially an idea, a concept, something intangible on one hand, but capable of articulation and expression on the other.
It is more than a brand, a brand being capable of being owned, copyrighted, bought and sold. Indeed a brand being conceived and executed for that purpose.
It is, I think, a notion, akin to an idea or a philosophy. Indeed, ‘clubs’ are often associated most with philosophical ideas, ‘Corinthian Spirit’, philanthropy, socialism and so on. Can an idea die? Can a philosophy cease? I think not.
Can the entity that manifests that philosophy cease? Well, yes of course. While Friends die, Friendship remains.
And so we have ‘Rangers’. Quite what is it that Charles Green and his Sevco investors have bought?
Clearly, he has bought the stadium, training ground and assorted equipment. He has bought the business of Rangers, its intellectual property rights, the brand name and identifiers of Rangers, and the right to trade as such.
Did he but the ‘club’ as defined by Nimmo Smith – the ‘undertaking that is capable of being bought and sold’? Absolutely. Charles Green’s Sevco Scotland Ltd is permitted to trade as ‘Rangers’, operate as ‘Rangers’, market itself and benefit from being marketed as ‘Rangers’ come what may.
Did he buy the Football Club, as defined by SFA and UEFA? Clearly: No. The football club that was known as Rangers FC, which was a member of the SFA for over 100 years, and which was licensed to play in UEFA’s tournaments no longer practically exists.
Charles Green’s Rangers no more won the 2009 SPL title than David van Day’s Bucks Fizz won the 1981 Eurovision Song Contest. (Younger readers may find Google useful here…)
Did he buy the ‘club’, the entity with which the supporters have such affinity? Again: No. You can no more buy the idea of Rangers than you can bottle and sell Christianity. Extending which notion, and please excuse the apparent blasphemy (but the analogy holds I think) ‘for where there are two or three thousand gathered together in the name of Rangers, there Rangers is’.
Ultimately, as with Trigger’s Broom, it matters not how many times the handle and the brush head have been changed, the broom is Trigger’s only providing that Trigger believes it to be.
Thus it is for the supporters of ‘Rangers’ to decide if Green’s Rangers represents the ‘club’ they have supported through the years.
Charles Green’s Sevco-owned reincarnation of Rangers represents the Rangers ‘club’ only provided the supporters recognise and acknowledge it as such. Without the endorsement of the supporters, Green’s Rangers has no provenance as the original ‘club’. Indeed, without that it has little value as a business undertaking.
Which perhaps explains the lengths to which Charles Green is going to win their approval lately.
All in my opinion, of course.
NB This message has not been endorsed by any of the parties referred to in the text, and no endorsement is implied or should be inferred.
Addendum by TBB
The confusion on what constitutes a club arises I think from the historic nature of football clubs colliding with the modern day need to contract within a reliable framework. We know RFC was an unincorporated club at conception, and incorporated as a limited company some time later. What we are not clear on is when this transition was effected at SFA level. Green’s ‘certificate on the wall’ indicates that as recently as the mid 90s, the SFA member clubs were recognised as the team, not the legal entity, but with the advent of – yip, you guessed – Quality Management Systems, specifically UEFA’s efforts to standardise the professional football landscape, it became increasingly necessary for elite clubs to be defined by their legal personality, such that there is no doubt that the SFA member formerly known as Rangers was indeed the legal entity RFC plc. I am quite sure Chuckles has a revised Certificate from the SFA to that effect.
While you’re playing Sunday league under 15s, there is no need for the club to be a body corporate. When you’re trading players for £30M at a time, and carrying responsibility for a £1 Billion annual television contract, you need a little certainty in your life. Club Licensing still permits unincorporated clubs to be licensed, but not new applicants, and only provided the applicant plays below SFL1 level. To be Silver or Gold Licence standard, you MUST be a Legal Entity and a member of SFA as such. This development has not been well reflected in the various Articles, Rules and Procedures across Scottish Football.
BTW, here’s a curiosity:
While I am definitively unqualified to challenge the eminent Lord Nimmo Smith….
Quoting from para 46 of his Reasons on the one hand:
“…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.”
And on the other:
“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”
An undertaking that does not possess a legal personality cannot be an employer of players, managers or staff. Neither can it own property, such as a stadium. I’ll allow him that it can have a name, albeit the rights to the name belong to someone else, but players? There may be some question as to with which ‘entity’ players are registered at SFA, but not the contracts of employment.
The fact that the employment undertakings required to be transferred under law would indicate as much.
Whatever LNS thinks the undertakings of a ‘club’ are, it certainly does not include the employees and associated contractual undertakings.
Posted by The Battered Bunnet