Tag Archives: Phil Mac Giolla Bhain

One Night in Blantyre With One Phil, Two Pauls and Twenty Six Questions – Part 1

On Friday night I had the pleasure of being on a panel witrh Phil Mac Giolla Bhain and Paul Brennan, answering questions from the audience at a charity event at the Blantyre Columba Club.

Last year I took part in two such sessions there – one of which also had the great Archie MacPherson on the panel as well.

It was a full house, and raised over £2,000 for the Columba Club’s charitable activities. The event was a credit to Phil Agnew who organised it, and to John Fallon, the former Celtic goalie, who runs the Club so well. And after the variety of issues we discussed, there was even a comedian, the excellent Pat Rolink, to leave the audience splitting their sides with laughter.

I have seen mentions before the event which grossly misrepresent the nature of the evening, and what would be discussed at it.

To show the range of issues which were raised by the audience, I took note of what the questions were and I have summarised them below in this post, and in one or two to follow. (By the time you get to the end of this post, you will see that I have dealt with 4 of the 26 questions – so it might be more than two additional posts to come!) Continue reading

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Filed under Football, Rangers

How Can the Terms of the SFA/SPL/Rangers 5-way Agreement be Discovered?

The following post is (a) technical and (b) hypothetical. I suspect that nobody will go down these roads to get access to the 5-way Agreement. Maybe old-fashioned investigative reporting will get hold of the executed copy. However, as there are practical reasons why it being published would be beneficial, that probably means that it will stay hidden!

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The “Holy Grail” of Scottish football is, for now anyway, the famous 5-way Agreement. This notorious document was agreed between the Scottish Premier League, Scottish Football Association, Scottish Football League, RFC 2012 PLC (in liquidation) and Rangers Football Club Ltd. Like the Holy Grail, it has been much spoken of, but never seen, except by a select few.

It provided the pathway for “Rangers” to enter Scottish football after the decision of the SPL to refuse to approve the transfer of SPL share from oldco Rangers to newco Rangers. The 5-way Agreement smoothed the path of Rangers to SFA membership.

Despite it being covered and discussed at great length in the press, on radio and TV, and in blogs and message boards, the terms of the Agreement have never been published. On assumes that commercial confidentiality is offered as a reason for this. Of course there are confidential details – but the impression has been given that even the members of the football bodies – the clubs – have not seen the terms.

An SFA official reacts to the suggestion that the 5-way Agreement should be published

An SFA official reacts to the suggestion that the 5-way Agreement should be published

The management of each body has authority to conclude such an agreement – there is no suggestion it was ultra vires – and there was no requirement for each organisation to approve the deal.

One of the key clauses in the Agreement is that by which newco accepted responsibility for oldco’s “football debt”. What does that mean?

There are various possibilities.

It could mean only the debt owed to other football teams when Rangers entered administration.

It could refer to any debt owed, or which becomes owed, by oldco in relation to football activities.

It could extend to fines imposed on oldco for breaching rules.

It could go as far as binding newco to cover awards of damages made against oldco for “football wrongs”.

These thoughts were prompted by an article by Phil Mac Giolla Bhain on Friday 8th March.

In it he suggested, based on information from a sports lawyer, that clubs which had been financially harmed by Rangers breaking rules regarding disclosure, as determined by the Nimmo Smith Commission, could take action against oldco under SFA/SPL disputes procedures.

As the lawyer points out, the case would be against the oldco and not the newco. Whether it would be worthwhile pursuing a case would depend on the terms of the 5-way Agreement.

In addition, although perhaps a more remote claim, sponsors could potentially take action against oldco, in a similar way to the proposed legal actions by various companies against Lance Armstrong. There could also be the possibility (remote however) of a supporter of an aggrieved team taking a civil action on the basis that the contest they were paying to see was rendered unfair by oldco rule breaking.

(The point of this piece is not to consider the possibility of success of such an action but whether there are ways in which disclosure of the 5-way Agreement could be forced as part of, or as a preliminary to, a claim. I am not suggesting that such an action would be used as a device to disclose the Agreement.)

As Phil’s piece mentions, though not in these terms, there is no res iudicata arising from the Nimmo Smith Commission. This means, simply, that the decision of the Commission, whilst persuasive in relation to any future arbitration, Commission or court hearing, is NOT binding.

Now, any of the parties mentioned above would want to know, prior to raising a complaint under the SFA/SPL process, or a court action, if their claim was one newco might have to meet, under the 5-way Agreement.

(I will also pass over just now whether the 5-way Agreement could provide legally enforceable rights of recovery to a third party, not a member of the various football bodies, and not party to the Agreement.)

So how to get hold of the Agreement?

Where the process is an arbitration, which would apply in a dispute between another football club and oldco, the Arbitration (Scotland) Act 2010 contains the rules of procedure and these give the arbiter the power to order disclosure of any relevant documents. However, to get to that stage, an arbitration needs to have been commenced.

It is possible to seek production of the Agreement in advance of a court action, by using the procedure under the Administration of Justice (Scotland) Act 1972.

Section 1 of the Act confers on the Court of Session and the sheriff court power to make various orders before commencement of proceedings including an order for the inspection, photographing, preservation, custody and detention of documents which appear to the court to be property as to which any question may relevantly arise not only in any existing civil proceedings before that court but in civil proceedings which are likely to be brought, and to order the production and recovery of any such property.

Before the court may grant the order it is necessary for the applicant to show that civil proceedings are likely to be brought, and that in such proceedings questions may relevantly arise as to the documents. In order to do so he must give sufficient information to enable the court to know what the action is going to be about, and what assistance the documents or other property referred to will give in deciding it. The applicant must disclose the nature of the claim he intends to make and show, not only the intention of making it, but also that there is a reasonable basis for making it. A prima facie case must be made out.

As the late Lord MacPhail’s book on Sheriff Court Practice states:-

“Ill-founded, irresponsible and speculative allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings.”

As an action would be against oldco (ignoring too the complications of raising proceedings against a company in liquidation) the relevance of the 5-way Agreement would be to determine if there was in fact a third party, newco, who was “indemnifying” oldco.

Should a company or an individual make such an application, it would be instructive to see if any of the parties holding a copy of the Agreement, namely the five parties, would be willing to agree to disclosure, or whether they would fight against it. Whilst the court would consider an argument about confidentiality, it is by no means certain, and indeed is unlikely, that that would prevent an order for disclosure where that was the only contrary argument.

Matters would be simplified, of course, if the Agreement was published, even with redaction. After all, as it is a document which clearly has importance for the welfare of a PLC and its investors (Rangers International FC PLC), there is an argument that Rangers itself should be disclosing it.

It would be of use to investors to know how far the “football debt” clause extended.

Will someone make such an application? It might be worth a go, if only to provoke reaction! But one should never use court proceedings for such a frivolous purpose!

🙂

Posted by Paul McConville

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Filed under Civil Law, Football Governance, SFA, SPL, Uncategorized

I Have Been Nominated For An Award!

I must thank the charming and level headed star of TV and blogging, Chris Graham, for letting me know that I have been listed as a nominee for an award!

It is not the BAFTAs (or even the BASTAs – despite what some of my fans over on Bill McMurdo’s blog might think).

In fact it is the Maley’s Bhoys Twitter Awards!

The post explaining about it is here. Continue reading

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Filed under Alleged Humour, Blogging, Personal, Uncategorized

Who Should Be “A Certainty for … Journalist of the Year”? Kevin McKenna’s View on Downfall

This year saw the publication of a book described in this article by Kevin McKenna in the Scottish Review of Books as “what will probably be the biggest-selling sports book in Scotland this year”.

The book is written by an author described as “a prolific and respected freelance journalist and author in Ireland”.

As Mr McKenna says, the book “charts the gestation and birth of the most momentous story in the history of Scottish sport”. He ascribes his own sub-title to it – “how was one of the richest and most powerful institutions in Scottish society brought to its knees and destroyed while the rest of us were looking the other way”.

He goes on to say that, if the author was a staffer on a Scottish newspaper “he would be a certainty to be crowned sportswriter of the year, news reporter of the year and journalist of the year for his work on the … story”. Continue reading

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Filed under Books, Football, Press, Rangers

The Book, The Sun and The Rangers – by Angela Haggerty, Editor of “Downfall”

I am delighted to welcome a new Guest  Poster on to the Blog. Angela Haggerty worked as an Editor on Phil Mac Giolla Bhain’s new  book. She has been kind enough to offer some thoughts on the book, the controversy around its publication and the abortive serialisation in the Sun.

As mentioned in my last post, if there was a hope amongst any group of people that the book would disappear quicker than Craig Whyte post-administration, that has proved to be ill-founded.

Indeed, as you can see from the picture below “Downfall” is WH Smith’s Scottish Book of the Month!

It looks as if Angela’s work has complemented that of Phil, taking the book to the top of the charts.

And therefore, enough from me, and I pass you over to Angela.

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A fortnight ago, Rangers fans celebrated a very hollow victory. The only group to lose out after the Scottish Sun’s decision to pull the serialisation of Phil Mac Giolla Bhain’s new book, Downfall: How Rangers FC Self Destructed, is Rangers fans. Continue reading

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Filed under Books, Guest Posts, Rangers