Lord Nimmo Smith’s Independent Commission appointed to determine the guilt or innocence of Rangers (oldco and “club”) in connection with four disciplinary charges was due to sit in the coming week, but has been delayed due to the involvement of Rod McKenzie, partner in Harper MacLeod, in a serious road accident.
The reaction to this from the unofficial Rangers side of the fence has been to question why there should be a delay, whilst at the same time disputing the need for the hearing at all. Later I will look at the misconceptions being voiced regarding the postponement, but first I wanted to look at some of the errors about the whole matter.
These are either innocent mistakes, and in that case I hope this exposition helps those who are confused, or deliberate obfuscation, whataboutery and red-herring sowing. It is noticeable that amongst the Rangers supporting bloggerati the same common themes on this issue are raised regularly. I do not suggest that there is a united plan or “conspiracy” regarding this. However it does seem that a number of the observers have taken the same opinions to heart and seek to disseminate them at every turn.
A helpful framework is provided by the Rangers Supporters Trust statement issued on 5th August 2012. It can be found in full here.
The RST prefaced its statement as follows:-
Rangers fans are becoming increasingly concerned about the details emerging on the SPL investigation and tribunal being set up to deal with the allegation that so called ‘dual contracts’ were used by Rangers FC. As with other consequences of the mismanagement of the club in recent years, if there has been wrongdoing then we would be victims, too. We are asking for justice and fairness, but in discussing the stripping of titles, it appears the SPL has assumed guilt when nothing has yet been proved.
There are a number of areas of concern that we would like addressed in the hope that the football authorities will now act with the necessary independence, transparency and integrity.
The first area for correction relates to what the case is actually about. There are two parts to this. First of all there is a definition of what an allegedly rule breaking EBT is, and then it is followed by narration of the “charges”.
As the Nimmo Smith Commission stated:-
“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.”
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.
Put simply (hah) the rules on this are as follows.
- All payments made to a player for football related activities must be recorded in the player’s contract.
- A copy of that contract must be produced to the SFA and SPL.
The rule is broken therefore where:-
- Payments are made to a player for a football related activity, which payments are not recorded in their contract.
- There are contractual arrangements for payments which are not included in the contract produced to the SFA/SPL.
Therefore the term “dual contract” may be a misnomer. It could be found, for example, that there were no dual contracts, but that the rule was broken under the first heading, for example. A poster on RTC, the Black Knight, coined the phrase “sneaky payments”. That is actually a more accurate term than “dual contracts”.
Why therefore the talk of “dual contracts”? This concerns the Big Tax Case where it is alleged that evidence of the contractual nature of the EBT payments is provided by side letters which told the recipient player that, notwithstanding the payment from the EBT to them being officially a loan, it was one they would not have to repay.
As I wrote many months ago, it is possible that the FTT could find for Rangers (although unlikely) and the SPL Commission against them, all based on the same evidence, and both would be legally correct.
Therefore, it is NOT a “dual contract” case.
Conflict of Interest
The RST said:-
There would appear to be a serious conflict of interest in the choice of law firm appointed by the SPL to carry out their investigation. Harper MacLeod have acted for Celtic FC, who would be the main beneficiaries of any finding of guilt in the case. Indeed, until it was recently removed, they included a testimonial from Celtic CEO Peter Lawwell on their website. The SPL could have chosen any law firm to carry out this investigation and it was extremely naïve of them to appoint a firm with such a close connection to a rival club.
I wrote before about the conflict of interest allegation. You can find the piece here.
Put simply the position is as follows:-
- A lawyer must avoid acting for two or more clients in matters where there is a conflict of interest between the clients.
- A lawyer must avoid acting for any client where there is a conflict between the interest of the client and the lawyer’s interest or that of the lawyer’s firm.
In this instance Harper MacLeod would only be in an illegitimate conflict situation where:-
- It was acting for two parties whose interests were conflicted but the interests of Celtic and the SPL were not conflicted in this matter; or
- there was a conflict between the SPL’s interests and those of Harper MacLeod.
Neither of those were applicable. Therefore there was no “conflict of interest”.
The RST statement also seemed to be, as later paragraphs confirm, jumping the gun. Celtic would only be the beneficiary of this process if honours were removed from Rangers AND AWARDED TO CELTIC.
Should the Commission decide ultimately to do so, then it will be for the SPL, and not for the Commission, to decide what to do about the relevant years. I suspect that the SPL would choose to follow the example of the UCI. As you will recall, the cycling ruling body, after the USADA report into allegations of Lance Armstrong having doped, elected not to award the Tour de France titles vacated by Mr Armstrong to anyone else.
In the same way, should titles be removed, I suspect the winner’s slot will be left blank.
And in any event, it never was intended to be Harper MacLeod involved in deciding the case against Rangers, and therefore the conflict argument was incorrectly founded in the first place.
To recap, Harper Macleod have no conflict of interest in this matter.
Prejudicial Media Coverage
The RST chose this as its second ground of attack.
There is a concern that any tribunal appointed to rule on this matter will have been seriously prejudiced by the negative media coverage surrounding it. Several managers and chairmen of SPL clubs have attempted to prejudge the matter in the media over the past few months. This includes, but is not limited to, giving opinion on what the punishment should be. This has led to a media feeding frenzy which will have been difficult for any potential tribunal member to disregard. We want reassurance on the selection of the tribunal members and confidence in their impartiality.
The SPL appointed Lord Nimmo Smith, Nicholas Stewart QC and Charles Flint QC to the Commission. You can find more about each of them here. Each is an eminent legal practitioner, experienced in sporting regulatory issues like this.
The accusation that Lord Nimmo Smith’s appointment might create the perception of bias was comprehensively dealt with by the Commission. The lawyer for Rangers did not suggest there was bias but that people might perceive same.
That was ruled to be an argument without foundation.
As far as prejudicial coverage goes, if the case was going to a jury, then that might be a consideration. However professional judges are deemed to be able to ignore prejudicial coverage. It is rare, if not completely unknown for a judge sitting without a jury to have his verdict overturned because he was influenced by media coverage.
If Rangers (oldco or newco or club) had its lawyer appear at the hearing and argue this point, I would expect the final decision to say that the panel had disregarded all external coverage and only made its decision based on the evidence and arguments presented at the hearing itself. They would say that because that is what they would have done.
If they say that then it would require evidence remarkable in its character to prove that, in fact, the Commission had been so influenced.
In any event, this is not a court of law. It is not governed by the Contempt of Court Act. The press can make whatever comment it likes about the matter, as long as the law of the land is complied with.
Therefore prejudicial media coverage has no bearing on this issue at all.
Focus on Most Severe Sanction
The next ground for the RST’s concern is as follows:-
We are concerned that, despite the SPL having 18 sanctions available, the only punishment being discussed is the most serious yet no guilt has even been established. This, again, leads to a danger of exerting undue influence on the tribunal members through the media. We believe this is being driven by influential members of the SPL board and recently formed ‘steering committee’ with the most to gain.
Firstly, the full list of sanctions available, in the event of a guilty verdict, is as follows.
Upon determining that a breach of or failure to fulfil the Rules has been established, the Board or, as the case may be, a Commission may:-
G6.1.1 give a warning as to future conduct;
G6.1.2 give a reprimand;
G6.1.3 impose a fine;
G6.1.4 annul the result of an Official Match;
G6.1.5 order that an Official Match be replayed;
G6.1.6 impose a deduction of points;
G6.1.7 award an Official Match (with such deemed score as it thinks appropriate) to a Club;
G6.1.8 order the playing of an Official Match or Matches behind closed doors;
G6.1.9 order the closure of all or part of a Stadium for such period and for such purposes as it thinks appropriate;
G6.1.10 order the playing of an Official Match or Matches at such Stadium as it thinks appropriate;
G6.1.11 subject to Rule G6.3, order that a Club be expelled from the League;
G6.1.12 withdraw or withhold the award of a title or award;
G6.1.13 order any Club, Club Official or Player to pay compensation to any Club, Player, person or party;
G6.1.14 order any Club, Club Official or Player to comply with any obligation or direction;
G6.1.15 cancel or refuse the Registration of any Player Registered or attempted to be Registered;
G6.1.16 order that a Club concerned be debarred from Registering Players for such period as it thinks appropriate;
G6.1.17 order that any person, persons or group of persons be prohibited from attending at such Official Match or Matches and for such period as it thinks appropriate;
G6.1.18 make such other direction, sanction or disposal, not expressly provided for in these Rules, as it shall think appropriate; and/or
G6.1.19 make such order as to expenses, including the expenses of the Board and/or, as the case may be, Commission and/or other party, as it thinks appropriate.
G6.2 When imposing a direction, sanction or disposal the Board or, as the case may be a Commission, may apply such number and combination of the directions, sanctions and/or disposals provide for in Rule G.1 as it thinks appropriate, may make such provision for time to comply with any one or more of same as it thinks appropriate, may defer for such period or until such event as it shall think appropriate the decision on or imposition of a sanction or sanctions and shall be entitled to suspend the effect of any such direction, sanction or disposal for such period and/or on such conditions as it thinks appropriate.
As the reader can see, there is a wide discretion given to the Commission in deciding on the “sentence” in the event of a guilty verdict. There may be a debate about the comparative severity of the punishments but is removal of titles a more severe punishment than, for example, a huge fine, an extended registration restriction, an order to play games behind closed doors, a determination that sizeable compensation be paid to the League or other teams, or even expulsion from the league? Of course not.
I have repeatedly commended Mr Green for the brilliant exercise in spin, and the RST statement shows how successful that has been. In their mind the most severe punishment = removal of titles.
If imposed in isolation, it will not cost Rangers one penny. It will in fact be financially advantageous as, seeing Mr Green fighting against that presumed goal for the SPL has seen his reputation amongst the fans soar. A conspiracy theorist would speculate about whether there has in fact been collusion between the SPL and Mr Green to promote this anticipated end-game to enhance Mr Green’s reputation! (For the avoidance of doubt, I am NOT suggesting that has happened. My comment is to be taken in jest. Please.)
Newco Rangers argues that the SPL Commission has no jurisdiction over it, as newco has never been a member of the SPL and thus cannot be bound by its rules. This argument was accepted by Lord Nimmo Smith’s Commission.
However, the Commission also determined that they had the power, in the event of a guilty verdict, to pass sentence on oldco, as it was a member of the SPL AND ON THE CLUB.
That is important because the possibility of the club being penalised is clearly relevant to newco, which owns the club, and thus newco has a right to be involved in the proceedings in its capacity as the owner. The Commission, in recognising, for these purposes, that the Club can have a separate existence from the company which owns it, made it clear that it could therefore impose a penalty on the club, and by implication, newco would have to satisfy such a determination.
Thus the Commission could, for example, remove a number of SPL titles from Rangers and order that the prize money which was paid by the SPL to oldco be repaid by the club. In that case newco would have to write the cheques. Tied in with Mr Green’s acceptance that newco would settle oldco’s “football debts” this would seem an entirely legitimate disposal.
If Mr Green and his investors were asked whether they would prefer a heave financial penalty or ne only affecting the record books, then I have a good idea as to the answer.
Ask the fans and you might hear a different response!
To recap, removal of titles is NOT the most severe punishment that can be applied in the event of guilt being established.
In the time when the lawyer for newco (who was also the lawyer for oldco) was communicating with the SPL, the argument was advanced that the SPL was barred from taking action in respect of title removal because of its previous actions, including the proposal that newco accept such a sanction as a condition of membership of the SFA.
The Commission considered that argument. They rejected it at this stage in the basis that the time to argue about sentence is after conviction, not before the trial starts!
In any event they pointed out that it would require newco to attend the hearing and to produce evidence regarding the matter before this argument could be considered.
Rangers will not be able to argue in a court that they were unfairly punished if it chooses, as it has done, not to participate in the process. Mr Green’s deliberate decision to shun the Commission is placing his company and club at risk.
In Part 2 I look at the fourth argument – the “Focus on Rangers”.
On the Scots Law Thoughts Blog…
Posted by Paul McConville