After the fun and excitement prompted by the release of the Nimmo Smith Report on Thursday, which found oldco Rangers guilty of “deliberate non-disclosure” and which seems to have been taken by many as an acquittal, various questions arise about where things now go.
Some were prompted by the statement issued by the SPL. It can be read here.
It says, with my comments in bold below the relevant sections:-
The SPL Board appointed the Independent Commission to consider all aspects of the above matter and at no point provided any direction to the Commission on any aspect of the case.
This echoes a comment made by the Commission at paragraph 103 as follows:-
“… we wish to emphasise, that the SPL did not seek the imposition by us of any specific sanction.” (Please note that the emphasis IS in the original document.)
Now the frenzy about the case, reflected in the MSM reports in the papers, on STV and on the BBC, was all about “title stripping” which, we are led to believe was the purpose of these proceedings.
As I have said repeatedly, I think that this campaign has been a triumph by Charles Green. Last year I suggested that the focus on title stripping as the most serious punishment was (a) wrong and (b) something which I think was influenced by Mr Green’s team. It provided something for the Rangers fans, initially sceptical of the “snake oil salesman” ( (c) David Leggat) to rally around. Title stripping, without commensurate fines or orders for compensation, would, from a business point of view, been great for Rangers. The fans would undoubtedly pour through the gates for months, filling Ibrox and away grounds, whilst showing their defiance towards the SPL and SFA. Losing titles in this way would not have cost Rangers a penny.
A fine or “compensation order” could have done so.
The SPL Board notes that the Commission has upheld a number of complaints against Rangers Oldco and that Rangers Oldco has been found to have breached SPL and Scottish FA Rules over an 11-year period in relation to the non-disclosure of financial arrangements involving many of its Players.
A factual and short summary of the outcome, which has the added advantage of being correct!
The SPL Board are assured by the integrity of the process followed and thank The Rt Hon Lord Nimmo Smith and his colleagues, Nicholas Stewart QC and Charles Flint QC, for their time and effort.
The Board wishes to give the detail of the decision further consideration at its next meeting.
This last line is the one which raised some queries.
One question was whether the Commission verdict was binding upon the APL, or could it simply ignore it?
The second was whether the SPL could seek to appeal against the decision.
I address both points below the line beneath.
Can the SPL Ignore the Commission Decision?
Next question please!
OK – I will give a wee bit more of a reply.
Section G of the SPL Rules covers disciplinary commissions. This commission was appointed by the SPL Board to deal with the matter on its behalf. Effectively it had the powers of the Board, but was left to act independently.
This is a vast improvement on the old methods of football discipline, where the decisions were made by committees staffed by people from the SFA/SPL. This became clearly unsatisfactory as the years passed, so the Independent Commission idea was adopted.
Rule G4 states:-
A Commission shall comprise not less than three members of the Panel and any decision of a majority of them, subject to the rights of appeal in Rules G8, G9 and G10, shall be final and binding.
I will deal with G8-10 below. But this Rule answers the question – the SPL Board cannot ignore the verdict. It is as binding on the SPL as it is on oldco.
So, notwithstanding the concern some apparently all Rangers fans have about the SPL Board, it cannot de-rail the Commission decision.
Can the SPL Appeal?
What could the SPL appeal against? After all, Rangers (oldco) was found guilty.
Well, it could, one thinks, appeal against the decision that despite the deliberate non-disclosure there was no playing of ineligible players. But it cannot.
Mr McKenzie, who presented the SPL case, did not invite the Commission to find that ineligible players were fielded. Therefore, if he did not ask the Commission to make such a finding, then the SPL cannot appeal against that decision.
As, other than that, the verdict was guilty on all charges, then the SPL does not have anything against which to appeal.
Could the SPL appeal the sentence passed?
In the Scottish criminal justice system for many years the prosecution had no right of appeal against sentence. The logic was that, once the verdict was passed, the prosecution had no further role. It was not for the prosecution, for example, to invite the court to choose a particular sentence.
That has now changed. The Crown can appeal against sentences which are claimed to be unduly lenient. In sentencing the Crown will invite the judge to impose additional orders upon the guilty person.
So, logically, there should be no reason why the SPL Board could not decide to appeal on the basis that the sentence was too lenient. They will not do so. There are a couple of reasons for saying this.
First of all, I suspect that the SPL want shot of the whole mess. The prospect of re-opening the wounds will not appeal to them, especially if they are looking to move on and build bridges.
Secondly, based on the reasoning of the Commission, I see no grounds for saying that the sentence is too light. Lord Nimmo Smith and his colleagues seem to have got matters spot on, taking account of the factors they stated as forming the basis for the decision.
Thirdly, can the SPL actually appeal?
The rules regarding appeals to the SFA are in Rules G8, G9 and G10. They state:-
G8 Any Club or person who or which is the subject of an adverse determination by the Board or a Commission may, unless the Rules expressly state otherwise and provided the SFA Articles provide for a right of appeal to the SFA, appeal against such determination in accordance with the SFA Articles.
G9 The procedures for lodging an appeal with the SFA and the powers of the SFA in relation to such appeals shall be as set out in the SFA Articles.
G10 Where a right of appeal is validly exercised to the SFA the Board or, as the case may be, a Commission, shall provide the appellant and the SFA with written reasons for the decision appealed against.
Now I do not see what in Rule G8 gives the SPL a right to appeal against a sentence it thinks is unduly lenient. The SPL “won” a conviction. It has not been “subject of an adverse determination” as might have been argued if there had been an acquittal.
However Mr Regan of the SFA seems to think there is a right of appeal. The BBC quoted him as saying:-
“The report is subject to appeal from both sides and, as the appellate body, it’s not really up to the Scottish FA to be passing any comment on the sanction at this stage.”
It seems a trifle odd if the CEO of the SFA was to be wrong regarding rights of appeal. I am sure therefore that I am missing something. However, I cannot read Rule G8 as giving the SPL a right of appeal.
What if the Upper Tribunal Overturns the FTT Verdict?
A sensible question arising from the Commission decision is as follows.
The Commission based part of its reasoning upon the findings in fact and law of the FTT. What would happen if the Upper Tribunal reversed the FTT verdict?
The answer is simple.
I say that because of a concession made by Mr McKenzie for the SPL at the hearing before the Commission.
Paragraph 104 of the determination includes the following statement:-
The Tax Tribunal has held (subject to appeal) that Oldco was acting within the law in setting up and operating the EBT scheme. The SPL presented no argument to challenge the decision of the majority of the Tax Tribunal and Mr McKenzie stated expressly that for all purposes of this Commission’s Inquiry and Determination the SPL accepted that decision as it stood, without regard to any possible appeal by HMRC. Accordingly we proceed on the basis that the EBT arrangements were lawful.
So, if the Upper Tribunal decides that the FTT majority got it wrong, it will not affect this case. Mr McKenzie has made clear that the Commission decision is based on the case as it stood following the FTT.
A damning verdict at any appeal, if there ever was such an outcome, would not affect this case. The SPL has decided, even though an appeal is pending, to stick with what is present at this point.
What have we learned?
The verdict is binding on the SPL.
They appear to have very little or no chance of appealing and even less willingness to do so.
A favourable verdict in the Upper will be as naught. They have conceded that point.
All this leads me to believe that there will be no more proceedings in this matter.
Posted by Paul McConville