Rangers in Crisis: Some Legal Explanations and Questions for the Mainstream Media

17 May

Having listened to several mainstream media outlets struggle to explain to its listeners how the law operates in situations like the one Rangers find themselves in, I decided to spell it out for our less legally inclined.   One of the most common claim listeners make is, “How can Rangers be punished for the acts of an individual like Craig Whyte?”

Another one is,  “Why are the SFA making the rules as they go along?”

Thirdly Graham Spiers claimed last night on Clyde Sports Scoreboard that “he had seen no evidence to suggest John Mclelland or John Greig has done anything wrong”.

The balance of this blog post will debunk these 3 claims and whether you love Rangers or loathe Rangers, the laws have operated clearly and predictably.  These are the laws of the land and in part, govern how businesses and corporations operate.

The second part of this blog asks some real questions that the media are not asking.

Thirdly, I wrap up by laying out where Rangers are now and where Rangers will likely be at the start of next season.

For the avoidance of doubt, Rangers Football Club is a company, subject to the Companies Act 2006 and several other legal instruments that govern how the laws treat companies and businesses. In a legal sense, there is no such things as a ‘club’…

Some lawyers may cringe at the simplicity that follows, but this is for the layman, not you…

Point 1:

In the late 1800’s the House of Lords ruled in the case of Salomon v Salomon that a company is a separate legal entity from a person. This is one of the founding principles of our economic and company policy over the 20th Century. If I am worth a £1billion and I setup a business, specifically a limited company, and I fund it to the amount of £10,000, then I am only liable for £10,000 if it goes bust. Yours truly, me myself, and I do not own the assets of the company, the company does. Accordingly, this also means the company owns its own debts and liabilities. This is commonly referred to as separate legal personality and encourages entrepreneurship and risk taking. By creating a separate legal entity, one of the legal effects is commonly referred to as limited liability. This means, except in rare circumstances, if my business goes bust, my company’s creditors cannot hold yours truly, me myself and I accountable for the company debt – even if I am personally worth £1 trillion by the time my business goes bankrupt.  This is almost absolute – with a few exceptions, but importantly even when my business is in debt up to £120M.  I get to keep my £1 trillion and the creditors are doomed to accept their cruel fates.

What this also means in practice is that a person who makes decisions on behalf of a company is not liable, barring a few exceptions, for the dealings of the company. If a person makes a decision to the gain of the business, it is the business that is meant to gain the benefit. Likewise, if a person in charge makes a poor decision it is the business that suffers the consequences.

In football terms, let’s look at this way. Say a Rangers Chairman buys 2 talented schoolboys for £10K. One turns out to be a dud 5 years later. The other turns out to be the next Messi seven years later. When Chairman A leaves the company in year 6, knowing that he cost the business 5K for the dud player. Rangers own the loss. The chairman doesn’t have to take it with him. The same rule applies when the 2nd boy goes on to be sold for £50M. The club gets to keep the money. The ex-owner can’t come back demanding money for his hit purchase. This works great in practice and ensures a level of certainty. However, like any legal principle when things go bad, the same rule applies and this is where most Rangers supporters and the media are going wrong.

When someone suffers a loss as a result of the actions of a company, either a creditor or a party litigant or a shareholder, they often sue the business. They don’t sue the CEO or the senior manager or the call centre operative. They sue the corporation.

In reality, most CEOs or Chairmen have very little contact with customers about the day-to-day operations of the business. There is no point in suing Bill Gates if Windows 7 crashes. Bill Gates is separate from Microsoft.  You’re unhappy with your contract with Microsoft, you sue them.  When a manager doesn’t clean up aisle 6 at Tesco’s, and little Sally slips in the puddle, Sally sues Tesco’s, not the manager of the Silverburn Store.

The courts have developed a test to determine when a company and its representatives are acting out-with their official role, and when they are acting as a representative of the company. There is a very important distinction.

The SFA disciplinary panel made reference to this in the case of Tesco’s v Nattrass [1972] AC 153 – 9 times. This is the law. This is relevant law today and this case is the basis for the decision and the appeal.  The disciplinary panel make reference to this case throughout their reasoning.

Here are the facts of the case:

Tesco was offering a discount on washing powder which was advertised on posters displayed in stores. Once they ran out of the lower priced product the stores began to replace it with the regularly priced stock. The manager failed to take the signs down and a customer was charged at the higher price. Tesco was charged under the Trade Descriptions Act 1968 for falsely advertising the price of washing powder. In its defence Tesco argued that the company had taken all reasonable precautions and all due diligence, and that the conduct of the manager could not attach liability to the corporation.

The House of Lords accepted the defence and found that the manager was not a part of the “directing mind” of the corporation and therefore his conduct was not attributable to the corporation. The corporation had done all it could to enforce the rules regarding advertising.

In the House of Lords Tesco were successful with their defence showing that,

  • a store manager was classed as ‘another person’, and,
  • a system of delegating responsibility to that person was performance of due diligence, not avoidance of it
  • The store manager was not the directing mind and will of the company – the company had done all it could to avoid committing an offence and the offence were the fault of another person (an employee). The company was acquitted.

Lord Reid held that, in order for liability to attach to the actions of a person, it must be the case that “The person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company.”

Let’s look at that again. A person who is acting as the company and his mind which directs his acts is the mind of the company. In other words, according to the law of the land, if Craig Whyte is guilty then Rangers MUST be guilty. Every time a Rangers supporter screams, “its CW that guilty not us”, they are effectively reinforcing Rangers own guilt under the Tesco’s v Nattrass doctrine!

Point 3

This brings us to the Board of Directors and John McLelland and John Greig.  This section might sit uncomfortable with some of the Rangers support, especially Graham Spiers…

If a football club fans are going to insist that a person the fans can relate to is sitting on board level, they need to be aware that the law doesn’t recognize symbolism.  It recognizes statutes, regulations and case precedent.  When Mr McLelland and Mr Greig take the position on the Board as Non-Executive Directors (NEDs), they are under legal obligations to act in a certain way.

Both men sat on the Board during Mr Whyte’s tenure as NEDs.  If one is to sit at board level as a NED, then several legal obligations fall upon them.  NEDs are differentiated from inside directors, who are members of the board who also serve or previously served as executive managers of the company (most often as corporate officers). Sometimes NEDs are often confused with Independent directors who are people who do not own shares in the company. NEDs can also hold shares in the company.

After several high profile business collapses in the late 1990’s the British government commissioned the Higgs Report which was published in 2003. The recommended obligations placed on people who serve as a NON-EXECUTIVE DIRECTOR is as follows:

  • Strategy: Non-executive directors should constructively challenge and contribute to the development of strategy.
  • Performance: Non-executive directors should scrutinise the performance of management in meeting agreed goals and objectives and monitoring, and where necessary removing, senior management and in succession planning.
  • Risk: Non-executive directors should satisfy themselves that financial information is accurate and that financial controls and systems of risk management are robust and defensible.
  • People: Non-executive directors are responsible for determining appropriate levels of remuneration of executive directors and have a prime role in appointing, and where necessary removing, senior management and in succession planning.

It is not enough to give Mr Greig the title of “greatest ever Ranger” and call his appointment symbolic. At the moment he takes the legal title of non-executive director he loses the defence that he doesn’t know anything about corporate governance. When Mr Greig and Mr McLelland take the title of Non-Executive Director, they are considered the legal custodians of the governance process.  Anyone known as an NED at Rangers was under a legal obligation to provide an independent view on Rangers resources, appointments, and standards of conduct.

The failure to oblige to these legal obligations also put Mr Dave King, Mr Alastair Johnson, Mr Paul Murray, and Mr Martin Bain, who all have served as non-executive directors in one capacity or another during the Murray/Whyte reign, on notice.

As you can see, the Disciplinary Panel and the Judicial Appeal Board all were correct to hold Rangers and Craig Whyte together. Therefore, it is a fallacy to argue that Craig Whyte operated as a “rogue” when so many other people in the company failed to live up to their legal obligations to proper corporate governance.

Point 2:

The rules are quite clear. The SFA is not making them up as they go along.

The tribunal’s published determination makes reference to articles 94.1 and 95 of the Scottish FA’s Articles of Association, which relate to the permitted penalties for any infringement of the rules:

Rule 94.1 refers to the powers of the judicial panel, stating it “shall be the sole judge” when a club “in any way brings the game into disrepute or any other grounds it considers sufficient”.

And then they add:

Rule 95 then provides a mechanism for an independent tribunal to impose any sanction it wishes out-with the guidelines set down by the Judicial Panel Protocol, leading to the decision to hit Rangers with a registration embargo.

The Judicial Panel shall have the jurisdiction, subject to the terms of the Judicial Panel Protocol, to deal with any alleged infringement of any provision of these articles.

A… club… if found to have infringed the articles shall be liable to censure or to a fine or to a suspension or to an expulsion from the Challenge Cup [Scottish Cup] Competition, to any combination of these penalties or such other penalty, condition or sanction as the Judicial Panel considers appropriate, including such other sanctions as are contained within the Judicial Panel Protocol, in order to deal justly with the case in question.”

This should answer the first two questions.

 

Hopefully this will clarify some of the finer legal points that the mainstream media are struggling to get their heads around. In turn, I hope they help me answer the following questions that need answering…

  • Was the Ticketus deal a double whammy poison pill? I’ll address this in a future blog post, but Ill pose the following question – what if Ticketus deal was done to ensure the club doesn’t have a buyer and does go into liquidation? This is why it is important to make public the people buying into the Green consortium.
  • Did Craig Whyte give up his floating charge over the fixed assets of the club? Giving up his shares doesn’t really mean anything if he still owns a floating charge. I have it on good authority that an examination of the Rangers books will shows how Whyte was operating his floating charge to the tune of a charge of 2%-3% a month in interest. That is likely a premium RFC are paying to Rangers FC Group for the £18M loan facility allowing Whyte as a secured creditor to get cash out of RFC with impunity. Is he still doing this?
  • Thirdly, Dunfermline Athletic, Dundee, Hearts and Rapid Vienna are all due funds. They must be paid in their entirety in order for Rangers to satisfy the football authorities. However in a CVA, one cannot discriminate between creditors. If DAFC, Dundee, Hearts, and Rapid Vienna are to be paid in full, then so are Craig Whyte, Ticketus, and HMRC. How does Rangers (IA) satisfy their football debts without compromising the rules around non-discrimination of unsecured creditors?

Please let us know, MSM…

Where does this leave RFC (IA)? Here is what I see as the potential outcomes in no particular order…

Option 1 – Sell assets, namely players raising cash for a CVA pot. Ticketus and HMRC will have to agree.. Right now, either of them could block a CVA on the 75% Creditors rule. Ticketus has about a £26M claim as an unsecured creditor. HMRC has a claim of approximately £42M claim. (25M +9M PAYE +4M VAT on Ticketus deal, and 4M “wee tax case”). As the judgement from the ‘big tax case’ is not in yet, I’ll leave that out.  I still see HMRC and Ticketus having to agree to any CVA and the only way they will agree is for a fire sale of all Rangers assets to raise the value of the CVA pot.

Rangers stay in the SPL, and with the transfer embargo in place, have to field a team of youngsters for a season.

Option 2: Rangers sell Ibrox and all the other fixed assets to keep the players. I know this is an unlikely outcome. While Ally’s rallying cry “we don’t do walking away” made for good fodder for rallying the troops, when a players livelihood is on the line, he will be hard pressed not to walk away to the bank to collect a pay check from a club on much stronger foundations. Without any working capital and no legal right to buy players, the only way RFC can stay competitive is to sell their fixed assets – Ibrox, Murray Park, and the two car parks.  Take the proceeds from the asset sale and stick it in the CVA pot and hope all the unsecured creditors agree.

Rent Ibrox back from its new owners. Or play in Hampden and rent it from the SFA. Ouch. That would be a sore one. All the big name players go, with the exception of people like Lee McCulloch and one or two of the rising stars like Andy Little.  This gives the club some working capital. They can’t rely on Ticket sales to raise funds anymore because of the Ticketus deal and the season ticket deals.

Option 3: The big tax case comes back against Rangers and holds up the levy already placed on Rangers. HMRC moves for liquidation. All hell breaks loose and all the assets are sold off – players and fixed and creditors repaid pennies on the pound.  Rangers are killed off by two decades of financial mismanagement. The blame lies at Sir David Murray’s door as much as it is Craig Whyte’s.

Option 4: This is the ‘NewCo’ option and would involve literally start all over again by applying to get back into the SFA. Sell all players and sell all fixed assets. A possibility would be to rent Ibrox and Murray Park back from its new owners. The transfer embargo has ensured those 40 players on RFC rosters have a place to play. It just means that they can’t buy anyone for 12 months over the age of 18.

The competence of the panel and the reasoning behind the decision has now been explained. Let’s say we see, either an oldco RFC in the SPL next season, or a “NewCo” RFC next year.

Under the ‘oldco’ outcome, we will see a club with no stadium, no players, under an effective transfer embargo, and either playing at Ibrox rented from its new owners or Hampden, if Ibrox is sold off to developers. It will likely have been punished a further points reduction for still being in administration. It will likely be a shell club, well shy of its former glory.  It will be Rangers though, and that will be what a lot of the fans will want to see.

Under the ‘newco’ option, it will not be Rangers and that will be a sore pill to take for a lot of supporters.

All of this gets settled and then the double contract announcement comes home to roost. The former RFC as a “newco” can’t be punished anymore, because it is, well new. The “oldco” can be.  I think it will be appropriate  that the football community start to think of the totality of Craig Whyte’s actions as misdemeanours. There will be a wholesalfe shift in how the football community starts to view Sir David Murray. If the double contract judgement comes back against Rangers, it will likely be referred to as a series of felonies – systematic long-term cheating and we will have to have a serious of conversations about how to deal with this.  Do we invalidate all of the results over a year when EBTs and double contracts were in use? If that’s the case, I think we need to look at how much money clubs lost out on after amending  all of the tainted results. Should compensatory damages be paid to all of those clubs that lost out on a second, 3rd or 4th place finish because of a financially doped team? How much did clubs lose out on from not being able to play in Europe? What would be the difference in the amount each club would have received from the commercial fund?  What would attendance have been if the playing field had been levelled?

There will be a lot of questions to be answered. Hopefully, you and I will get there together.

Laters.

Web3dLaw

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36 Responses to “Rangers in Crisis: Some Legal Explanations and Questions for the Mainstream Media”

  1. supercollider May 17, 2012 at 5:15 PM #

    succinct, challenging to those who need to be challenged, great work, thanks for the blog.

  2. Yanasman May 17, 2012 at 6:01 PM #

    This is brilliant, as a non legal language person this makes things so much clearer.

    Appreciate your efforts

  3. Bhoywonder May 17, 2012 at 7:01 PM #

    An excellent analysis of events at RFC (ia) No mention though of Livingstone’s proposed litigation for the handsome sum of £1.2m from The SFA if RFC (ia) are parachuted into the SPL in ANY way shape or form….checkmate seems inevitable in this game of chess with Mr Green holding no powerful pieces.

  4. Timabhouy May 17, 2012 at 8:29 PM #

    Interesting……… hmmmm

  5. Carntyne May 17, 2012 at 8:30 PM #

    A superb blog as others have commented.

    Chrystal clear, leaving no room for doubt. Ahem!…unless you’re a Rangers supporter, in which case the claims will continue that Whyte and Murray alone are responsible, not the company.

    Oh, but wait a minute…………….

  6. StAndrewsBhoy May 17, 2012 at 10:12 PM #

    Thanks for the blog, helped make things much clearer to this layman. Looking forward to future posts.

  7. michaeljamesroy May 17, 2012 at 10:17 PM #

    Excellent blog, thank you. Maybe you can clear something up for me? The asset transfer to the new company presumably cannot happen unless through a liquidation process, surely? If they were to transfer assets such as Ibrox, Murray Park etc into a newco then any one of the creditors – but probably HMRC – could claim it was a ‘gratuitous alienation of assets’ and have the asset transfer overturned? And football is alone (I think I am right in thinking) that the players are on the books as assets, depreciated over the lifetime of their contracts and thus they would also be subject to the same firesale that would happen in the event of liquidation. Or would they? They are also employees and the newco would have to honour their contracts under the TUPE rules. But if a newco took over the contracts then a whole new contract would have to be registered, not just a contract variation, because a new legal entity would be involved. But Rangers (whosoever holds the franchise, whether newco or oldco) are barred from registering new contracts. What would happen in this circumstance, I wonder?

    • web3dlaw May 17, 2012 at 11:18 PM #

      working on a full response to this very issue… Ill have something up shortly… Watch this space… Laters. WEB3DLAW

    • garryjbmacinnes May 17, 2012 at 11:44 PM #

      Assets could be transferred to a ‘newco’ whilst Rangers F.C still exists under the pre-tense that a C.V.A. pot is on offer and therefore the assets would be irrelevant if accepted. A problem may arise upon rejection of a C.V.A. however I do not know the make-up of the Rangers asset ownership to comment. Do Rangers own their own assets or are the assets owned by A.N. other company or person? (I do not know). .Gratuitous alienation can only be challenged by the liquidator if I remember correctly or a creditor (s.242 insolvency act 1986). However there are various defences to this:

      (a)after the alienation the company’s assets were greater than its liabilities? possibility.

      (b)alienation was made for adequate consideration
      (c)that the alienation was a birthday, Christmas or other gift, it was for a charitable purpose? Must be reasonable.

      This needs to be witout prejudice to any right or interest acquired in good faith and for value from or through the transferee in the alienation.

      I will allow you to take from that what you will.

      As for your second part about contracts. My argument, if I were to present the case would be that the punishment of a transfer registration ban by the SFA would be entirely incompetent against a new co. The new company would be a company with a separate legal identity and could therefore not be punished for the actions of the old company in any circumstances even although the new company may comprise of the SPL share held by the old company. The company itself would infer a different company number and a new legal personality henceforth the registration embargo would be null.

      • garryjbmacinnes May 17, 2012 at 11:46 PM #

        If any of that is wrong I apologise. I have not done much company law/insolvency/commercial law since 2nd year at university. I have a vague recollection.

      • web3dlaw May 17, 2012 at 11:47 PM #

        On last point, the SFA has already said if a NEWCO comes into effect, in order for the SPL share to be given to the NEWCO, the NEWCO would have to agree to the contractual obligation to accept the binding transfer embargo.

      • garryjbmacinnes May 17, 2012 at 11:59 PM #

        Yes well this is the argument that I would have made. Any punishment made to the ‘newco’ would need to be made as a ‘stipulation’ or ‘ bound term’ for aquiring its share as opposed to a ‘punishment’ – surely the wording of such would be open to challenge? It is one thing to qualify a contractual agreement on the basis that, “by entering this contract you agree to a one year player registration embargo” as opposed to ” you accept the punishment of the previous owner of this share”. The problem being that the SPL rules and obligations are that of the SPL – not that of law.

        Also, if a ‘newco’ were to be punished with the embargo of not being able to register players over the age of 18 then this could be considered as a restriction on the companies trade, with no viable reason for such restriction. Would the ‘punishment’ on a new company be considered as ‘reasonable’ in wednesbury terms.

        I don’t know…..

  8. King William May 17, 2012 at 10:43 PM #

    But we are the people!

  9. garryjbmacinnes May 17, 2012 at 11:16 PM #

    First time i have come across your blog, didn’t get a chance to read the full thing but i will in due course.

    When i got to the salomon case i had instant respect for someone willing to take it all back to the very basics. Who would have thought that wee boot and shoe maker would be causing such a stooshy all those years later.

    Look forward to reading some other pieces. It is often difficult to explain the law in laymans terms, or if not difficult…fustrating to the extend you sound patronising to many. You have managed to avoid all of those.

    • web3dlaw May 17, 2012 at 11:19 PM #

      thank you for your kind words. More to come… watch this space. WEB3DLAW

  10. Marching on Together May 18, 2012 at 12:31 PM #

    Just came across your excellent blog, having been signposted from Paul McConville’s site.

    The only point I would wish to comment on is the newco scenario, and whether punishment for oldco in terms of the double contracts issue, or the current transfer embargo could be imposed on newco. It would be perfectly competent for the SPL to say to the newco that as a condition for the SPL agreeing to the admittance of newco to the SPL, that newco takes ownership and responsibility for any penalties imposed due to the actings of oldco. So long as the rules permitting this discretion to the SPL are clearly in place, and the procedures for applying them are carried out correctly, then the courts won’t interfere. This was demonstrated by the English case when Leeds Utd appealed against the Football League’s position of an additional 15 point penalty as the condition for transferring their golden share, under the “exceptional circumstances” discretionary clause, for coming out of administration not via a CVA. The judge basically said that the Football League could have whatever it wanted in its rules, and exercise its discretion in whatever way it wanted, so long as the procedures were correct.

    Having said that, do I think that the SFA or SPL would do this? No.

    • garryjbmacinnes May 19, 2012 at 11:55 PM #

      This is what i was getting at myself earlier; it would need to be a ‘condition’ for ‘any team’ entering the SPL through any other means other than natural promotion. What my point would be is that if it were termed as a ‘punishment’ rather than a requisite then it would indeed be open to challenge.

      The procedures, at present – are inept, and this is where i feel a stumling block may arise.

      • Marching on Together May 20, 2012 at 12:03 AM #

        There might be a challenge, but I doubt if it would be successful. The SPL are entitled to set their own rules, and where the rules permit, exercise their own discretion.

        When Leeds Utd were “penalised” 15 points as a condition for having their golden share transferred by the Football League, the appealed, and for the arbitration panel that ruled, the judge who chaired it made it clear that the Football League could do what they want, so long as they followed their own rules.

        I know there are differences between England and Scotland here, but the Scottish courts are reluctant to interfere in these sort of matters. Rangers might however be thinking of going to the CAS, but I doubt if they will have any more success there. In any event UEFA hate with a vengeance clubs who seek to go to CAS.

      • garryjbmacinnes May 20, 2012 at 12:13 AM #

        CAS is very expensive and takes a helluva long time. Rangers have neither of these things to spare so i would expect this to be unlikely.

        I understand the Leeds case; and i am fully aware that there are powers within an organisation to impose their own sanctions by ‘lifting the veil’ so to speak. Ie) If it looks like Rangers, walks,talks and acts like Rangers…..it is Rangers.

        My only concern for the SFA/SPL will be in the wording; it is the procedure that will probably be rushed through in the coming weeks where they will need to be very careful.

        Then again, as has been seen in recent weeks the SFA appear to have got their act together legally.

      • Marching on Together May 20, 2012 at 12:22 AM #

        The thing I suppose will be to make it a matter not of punishment as you suggest but a matter of contract i.e. new Rangers agree to accept A, B, C & D from the SPL, and the SPL agree to let them in. If Rangers newco then refuse to accept any of A, B, C & D, then that is a material breach of contract, and the SPL can resile from the contract and Rangers are removed from the SPL.

      • garryjbmacinnes May 20, 2012 at 12:41 AM #

        Yeah exactly that’s my thinking on the matter.

        The contract would of course need to be ‘reasonable’ in its demands. I have no idea exactly what would be considered as reasonable for any ‘newco’ to accept upon automatic entry to the SPL. There appears to be little yardstick to judge this against although the Leeds United example would be the most probable example.

        Another problem (and we could go round in circles here all night i am sure with and, buts and maybes) could arise over the contract also. Could the SPL be judged to have ‘undue influence'(slim) on any new team? – effectively ‘forcing’ them to agree to the terms for the chance to play football on negative terms, which is effectively the lifeblood of their existence and therefore refusal to agree to the terms rendering their business unable to trade. This would open the contract, even although signed for to be ripped up once Rangers get their feet in the front door.

        A completely hypothetical situation; with little reality to develop from such : however, again….it raises questions.

        I remember when Saturday nights involved socialising – I now seem to be resigned to using internet blogs to break from the boring wilderness of ‘material considerations’ for a new tesco store………

      • Marching on Together May 20, 2012 at 1:09 AM #

        “effectively ‘forcing’ them to agree to the terms” This was one of the points made in the Leeds United case, and not taken seriously by the arbitration panel. I think you need to distinguish between this case and say consumer contracts or contracts with the state where an uneven bargaining position or undue pressure might be relevant, and here, where it is up to the SPL as a private organisation who it admits into membership and on what terms, and on what basis it contracts with other parties. As I say the courts have been reluctant to interfere in such matters.

      • garryjbmacinnes May 20, 2012 at 1:18 AM #

        no no i understand that, as i was hinting at with my use of (slim) in the text i was merely playing devils advocate i did not for a minute consider such a challenge to be at all competent. Just a matter for discussion that was all 😉

      • Marching on Together May 20, 2012 at 1:26 AM #

        From the Leeds Utd arbitration decision: “This was a commercial bargain, at arms length between a powerful and rich Consortium of businessmen and a responsible professional Sports Governing Body.”

        From the Compromise Agreement signed between Leeds Utd (newco) and the Football League: “The Board has determined that the appropriate sanction should be the imposition of a penalty points deduction of fifteen championship points in Season 2007/8 subject to an appeal to the member clubs of the League as outlined in Clause 3 below”;

        and

        “4.1 Leeds hereby release the League, any of its directors, officers, employees and any member club of the League (past, present or future) (the “Released Parties”) from all claims, whether known or unknown to Leeds, which Leeds has or may have against the Released Parties arising out of or connected, whether directly or indirectly with the service of the Notice, the conduct of the League with regards to OldCo, the Conditions and the imposition of the sanction or, if passed, the Appeal Sanction (the “Claims”).”

        “4.2 Except for the obligations created by this Agreement Leeds hereby covenants that it shall not, and will procure that its directors, associated companies …, shareholders, officers or other employees shall not commence, or threaten to commence, any proceedings in any jurisdiction before any court, arbitration panel or other similar judicial body against the Released Parties (including by way of third party claims in any other action) arising out of or connected, whether directly or indirectly with any of the Claims.”

        The arbitration panel considered that Leeds were barred as a matter of contract from taking any further appeal beyond the appeal to the membership of the Football League, which had been made and lost. Interestingly though, in its judgment and reasoning it ignored any suggestion that the rules of natural justice had been broken by having parties with a vested interest in the appeal i.e. those other clubs in the same division as Leeds, voting whether the 15 point penalty should be upheld. However, in a postscript (obiter dicta, I suppose) it stated: “We feel obliged to record that we consider an Appeal to Members of the League to be unsatisfactory. Some Clubs in the same League may not readily agree to reduce a points sanction in the understandable self-interest of their Clubs.” I thought then and still think now that the courts might be interested in any internal appeal against a penalty whether imposed by the SFA or the SPL, where the only right of appeal lies to your direct competitors. The SFA of course have amended their procedures to rule that out.

        Thought this detail might be of interest in your musings.

      • garryjbmacinnes May 21, 2012 at 12:03 PM #

        Yeah thanks for that, the ‘obiter’ style comment is quite interesting – and it also makes sense. Decent enough precedent for me – so that is the party line i will thoroughly expect to be followed.

      • Marching on Together May 21, 2012 at 2:53 PM #

        I’ve been looking at the second case of “exceptional circumstances” considered by the Football League, that of Rotherham Utd in 2008, their second administration, and at the same time Rotherham were seeking to get permission to play at Don Valley Stadium in Sheffield, while their ground was completely re-developed. As well as a 17 point penalty, the Football League imposed a condition: “The club must undertake to return to Rotherham within four years and provide an irrevocable bond of £750,000. This will be forfeited if the club fails to return within that timeframe, as will the club’s membership of The Football League.” Clearly based on a contractual basis.

  11. johant May 18, 2012 at 12:47 PM #

    great blog, well explained for dummies like me. look out for your fine work being plagiarised by every lazy journo and tabloid football hack in Scotland now.

  12. fenceclimber May 18, 2012 at 5:56 PM #

    Didn’t I just hear Neil Doncaster today saying that any newco would be held liable for the sins of the oldco? Maybe I picked it up wrong.

    • Marching on Together May 18, 2012 at 8:10 PM #

      Yes, interview in the Scotsman, basically saying that if you want to keep your history and stay in the SPL, then you take the penalties that go with oldco.

  13. FIFA May 19, 2012 at 12:29 PM #

    Well put,it now looks like even a Houdini will not help escape if not all but very few of the wrong doings that have went on.

  14. KEIGHLEY BHOY May 19, 2012 at 12:40 PM #

    BRILLIANT BLOG, FOR THE TOTALLY INAPT LEGAL EAGLES LIKE MYSELF THEN IT MADE FOR QUALITY READING, SHAME NOT MANY ORCS CAN EVEN TALK PROPERLY NEVER MIND READ OR THEY JUST MIGHT REALIZE THERE DEED. HAIL HAIL, GOD BLESS IE CELTIC+

  15. John May 19, 2012 at 6:30 PM #

    Fine legalistic stuff I’m sure. The only snags are that neither the SFA nor their tribunals are courts of law, and that it is not their job to enforce the “laws of the land”. They are sporting bodies, something quite different.

    • web3dlaw May 19, 2012 at 8:07 PM #

      Not true.. Both regulatory bodies are subject to the law of the land… Ask Duncan Ferguson…

      • Marching on Together May 19, 2012 at 11:06 PM #

        True, but the courts are reluctant to get involved in the internal affairs of a private body (i.e. the SPL or SFA) even if they do have a semi-public role. IMHO the courts would only be interested if there had been a clear breach of natural justice in the SFA or SPL’s procedures, or if their procedures had not been followed. The courts will not entertain a defence of, we did it, but please let us off anyway.

  16. Jack Sparrow May 20, 2012 at 4:05 PM #

    I don’t think the point is that the SFA can make the rules up as they go along, but it would appear they certainly *can* make the punishments up as they go along. Wasn’t it exactly such ambiguity and interpretability of these written rules that Celtic campaigned long and hard against last season following Lennon’s multiple suspensions? They sought to have clearly defined punishments. For bringing the game into disrepute, the these exist in the Judicial Panel Protocol document, but the same table where the suggested sanctions exist does not make mention there specifically of “any other punishment”. One has to hark back to the Articles of Association to find their sneaky disclaimer, a disclaimer which effectively could be applied in the reverse – ie for something minor like displaying dissent to a referee via foul and abusive language you could see your team kicked out of the game forever. After all, that is what the rules say, right?

  17. Shaun Gibson June 7, 2012 at 7:16 AM #

    WOW..A lot to take in. And my brain hurts also. I think “think” I understand most of it. But I may have to sleep before I do. Lot of info there, some of it went over my head. But brilliant post. Thanks..ps; Years ban is gone now, could it emerge from another sanction?

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