Why the Nimmo Smith Commission Will Not Strip Rangers FC of Titles

In the first part of my yearly predictions post, I considered the Nimmo Smith Commission and the outcomes of it. I wrote:-

Nimmo Smith Inquiry will find that the rules of the SFA/SPL were broken by “Rangers Football Club”.

RIFC will challenge this in the courts but fail as a result of them failing to participate in the Inquiry process.

The Nimmo Smith Inquiry will impose a financial penalty on “Rangers Football Club” rather than stripping of titles.

This too will be challenged unsuccessfully in the courts.

RIFC will refuse to pay, and the football authorities will not have resolved by the end of the year how to deal with that.

I think I might be unique in arriving at those outcomes. On one hand there is a view that the iniquities of the former Rangers regime can only be marked by various league titles being taken away, even if not awarded to Celtic, on the basis that numerous players were ineligible over many years.

On the other there is a view that titles cannot be stripped because this would render numerous international matches invalid, or that the football authorities will not have the “courage” or “stupidity” to take such action against the mighty Rangers or that it would be the final straw forcing the Ibrox team to leave for warmer or at least more hospitable climes.

(The argument that international games are void as a result of any Rangers players being ineligible for Scottish football due to these payments is unfounded and one of the scare stories to be expected.)

Why did I reach those conclusions noted above? I will take them in order.

What Will the Verdict Be?

The “charges” are made up of four “chapters” and are as follows:-

• 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 also 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.

As has been made clear by many, including me, the outcome of the First Tier Tribunal, which cleared oldco of most of the so-called “tax avoidance” charges, was asking different questions from Lord Nimmo Smith’s Commission. It was not the case that a verdict in favour of HMRC guaranteed that Rangers would lose the SPL case. Equally, a “not guilty” verdict before the FTT is not a guarantee of victory before Lord Nimmo Smith.

Put shortly, the Rangers “victory” came about on the technical basis (and this is  not an attack on nit-picking or “loopholes”) that money was paid to players for playing football, but done in a way whereby the complicated structure of payments, via trust, sub-trust and loans, sheltered these payments from tax liability. The dissenting opinion was that the structure failed to protect the payments from tax liability. There was no dispute that many players received payments relating to their status as footballers for Rangers, and that this was used to allow the players to be paid more than if no such structures had been put in place.

The question for Lord Nimmo Smith’s team is whether, ignoring the tax issues, the rules re payments requiring to be based only on the contract lodged with the SFA were broken.

I think it is quite clear from the evidence heard by the FTT that it was.

This is not a criminal case – there is no need to establish “mens rea” (guilty mind) – there is no need to establish that the rules were broken deliberately. Of course the element of deliberate machination, if any, has a bearing on the penalty, but not on the verdict.

It does not matter whether there was a deliberate effort to conceal payments from the football authorities. I think there can be no dispute that, as a matter of fact, there were payments made to players for footballing activities in ways which were not compliant with the SFA/SPL rules.

Therefore the likelihood is that a guilty verdict will be passed over the three EBT “chapters” of the case. The fourth chapter, being Duff & Phelps’ failure to co-operate is a bit like a charge of driving without an MOT, when the remaining charge is one of dangerous driving. It is of little importance in the grand scheme of things.

So, the verdict will be “guilty”.

What Will Rangers Do About a Guilty Verdict?  

The position of Rangers (newco) is very clear. As Mr Green has made clear repeatedly over the months, the Ibrox organisation does not accept that the Commission is empowered to deal with the case. It seems clear that newco will not appear at the hearing to defend its position – on the basis that, in some way, this could be seen an as admission of jurisdiction.

In a legal case there is a rule that a party who appears cannot object about the validity of them being brought to the court (although they can still challenge the jurisdiction). In this case the Commission has determined that there is jurisdiction on the basis that the Commission cannot penalise newco, but can penalise the “club” which is owned by the company which is owned by newco, and accordingly there is an interest for newco to protect.

Mr Green has been able to have his team’s fans standing shoulder to shoulder with him against the “evils” of the SPL/SFA. He is unlikely to back down by appearing at the hearing, or indeed engaging in the football authorities’ appeal processes.

In terms of PR, and the consistency of the message being put across to the fans, I see Rangers challenging a guilty verdict in the courts, on the basis that the verdict is ultra vires. As, in their submission, the SPL has no jurisdiction over newco, then the argument would be that, as there is no power to affect them, they ought not to be forced to go through the football appeal processes.  

However, in a court challenge, there normally is a requirement that the party appealing has engaged with the process and exhausted its remedies in the original process before turning to seek the protection of the courts. Here, where they have taken no part in the SPL processes, it seems hard to see how the court would entertain a challenge to the verdict simply on grounds of jurisdiction. And, should Rangers try to argue that they ought not to be guilty on the facts, the answer from the court is probably that they ought to have turned up and fought the case! The court is unlikely to allow a challenge on that basis.

So, notwithstanding an appeal to the courts, I see that as not shifting the guilty verdict.

What Penalty Will Be Imposed?

This is the area where the FTT verdict will have a bearing. If the FTT verdict had gone against Rangers unreservedly, then the Commission would be looking at the most severe penalties, on the basis that the offences were amongst the most serious possible. Effectively this would have led the Commission to conclude that there had been a lengthy and deliberate process of rule-breaking to gain advantage. Look at it like a “Lance Armstrong” situation.

Instead the effect of the FTT decision is that the Commission is likely to find that the “offences” are more technical than deliberate. It will still be a situation where the offences took place over a long time, and the FTT evidence made it clear that there was a deliberate effort to conceal the details from the football authorities. However the FTT verdict allows, I suggest, the Commission to determine that the rule-breaking was almost only a result of an incorrect interpretation of the rules, rather than a deliberate effort to cheat.

I think too that Mr Green’s excellent campaign might actually backfire.

I have repeatedly said that Mr Green’s positioning on the possible penalties has been masterful. It has provided a rallying point for Rangers fans, whilst at the same time being a penalty which would have no negative practical effect on newco.

The outcome of the campaign has been that all commentators seem to have accepted that “title-stripping” is the most serious penalty which can be imposed. It is not. The Commission could decide to expel “the club” from football.

However, as a result of the verdict I expect, this will be seen as guilty, but only in a middling sense. There will have to be a greater penalty than a slap on the wrist, or a censure, or an admonition.

However it will not be at the top of the scale either. Therefore, and the Commission is made up of three very smart lawyers, the penalty will be pitched at a suitable level.

The best way to mark the length of the rule-breaking is, I suggest, by imposing a financial penalty upon the “club”. A financial penalty imposed on oldco is a waste of time. It would fall into the liquidation and not affect the club.

However a financial penalty on the club, with the Nimmo Smith opinion already being that they can impose penalties on the club and that these therefore affect the newco.

Therefore I suggest that a financial penalty will be imposed, on the basis that an annual amount will be chosen, assessed over a number of years. I would suggest that the total fine could amount to around £500,000, being £50,000 a year over 10 years.

What Will Happen After The Penalty is Imposed?

Depending on precisely how the Commission produces its verdict and penalties, I can see a second court attempt being made to dispute the penalties. For the same reasons as already stated, I do not hold out much hope for the argument this time either.

But, once the verdict is confirmed, or at least with the court refusing to intervene, what happens then?

I think Mr Green would find it very hard to agree to pay. I suspect that the Rangers fans, and the ever more vocal Rangers bloggers and Twitterers, and the Rangers media operations under Jim Traynor, would all combine to create an atmosphere where Mr Green, even if he wanted to, could not make payment without destroying much of the goodwill he has gained from the supporters.

And, frankly, he does not want to pay up either!

What happens therefore when Rangers refuse to pay?

At this stage the football authorities have a serious decision to make. Refusal to pay a fine to the football authorities would normally, and ultimately, lead to expulsion from football.

However, I think it is highly unlikely that the SFA/SPL would be willing to stare Mr Green down.

We saw this indeed in the summer negotiations about Rangers getting into the SFA again. Whilst Mr Green signed up to the so-called 5-way agreement, the conditions imposed upon Rangers were less than the authorities had been angling for. Mr Green drew a line in the negotiations and insisted that they would only go so far before they stopped. The football authorities blinked and allowed Rangers in, notwithstanding that they could impose any relevant conditions they wanted.

When the point was reached where the football authorities faced the stark prospect of there being no “Rangers” in Scottish football, they could not take the final steps.

Ironically the most likely circumstance in which the SFA/SPL would insist on payment would be if Rangers were being admitted to a league elsewhere. After all, if they are leaving, there is no harm in taking draconian action as they leave.

However, the prospect of expelling Rangers (and equally the prospect of expelling Celtic, should that ever appear) would be so “brave” on the part of the football authorities that there is clearly no way that the rulers would take such a step.

Conclusion

So, as I see it, we have a guilty verdict, but one seen as nowhere near the top end of the scale.

However, Mr Green has whipped his fans to such a frenzy that they will not accept any penalty being imposed.

The football authorities must be now regretting ever starting this process.

Later this year there is no doubt in my mind that the heads of the SFA and SPL will be pounding as they try to work out how to deal with a vital member refusing to bow to their authority.

I have no doubt that the SFA/SPL will blink before Mr Green does.

Posted by Paul McConville