If the court throws out the transfer embargo can Uefa reimpose it

[KingBillyLives 27]

Look what happened to Bosman while he took his case, banished to french lower non professional leagues and the island of La reunion. I'd be surprised if liege weren't pressured to boot him by UEFA or jeopardise their license, banned from uefa recognised competition etc.... OK the eventual ruling might have changed football, but it didn't help bosman. he ended up a raging alcoholic....

And look what happened to Jacques Glassmann who denounced the Marseille bribery scandal. Though he won the FIFA Fair-Play award he was treated as a total pariah in France. Even the French Federation did nothing to help him. UEFA/FIFA and investigations into corruption don't go well together.

[gersandy 594]

FIFA/UEFA dont like football matters being dealt with outside football.

So even if we do win the case, expect heavy punishments from the sfa.

You know the saying, shit falls down the way.

[caseyjones 3,009]

A Civil Action: Recipe for Disaster?

The developments in Scottish football, this year, have been astonishing and rather controversial. For the sports lawyer, this is a remarkable opportunity to examine and critically analyse further the perennial battle between state regulation and self-regulation. Rangers have certainly given us this opportunity with their decision to challenge the transfer embargo imposed on them, by submitting an application to a civil court in Scotland. Irrespective of the Scottish court's decision, the question remains whether the football authorities in Scotland would impose further sanctions on Rangers as a result of this development. 

Several views have been expressed already and many more will probably appear pending the final decision by the Scottish court. It is my normal practice to listen to all views and evaluate the efficacy and probity of the evidence available. Above all, it is also normal practice for a lawyer to always follow the law and the regulatory framework in place, before the appropriate advice is given to the client. With this in mind, it is not unreasonable to suggest that the application submitted by Rangers to the Court of Session may create several ramifications, not only for the future of the club, but for the future of Scottish football too.

It is a well established fact that clubs who attempt to seek remedies before national courts, may violate specific FIFA and UEFA regulations. This submission cannot be dismissed at face value nor could it be ignored at the expense of doubtful journalistic information. This may indeed make me sound arrogant or force me to come into direct collision with many of my journalist friends; however, I am in a position to appreciate the regulatory framework and the politics of football, as I have been involved in several appeals before CAS since May 2010, on the same matter and I have also advised four clubs in Greece, one in Spain, one in Holland and one in South Africa, on the very same issues under analysis.

On the advice given to a client, you cannot rely on journalistic information, who could be based, most of the times, on sources who base opinions on politics rather than the law. On the facts and subject to the rules currently in place, the advice is clear and unequivocal: FIFA rules do not allow clubs to seek remedies before national courts and when clubs decide to seek such remedies before national courts, the national federations are obliged to impose sanctions. Similarly, UEFA Statutes also prohibit clubs from seeking redress before national courts, or any other courts of arbitration. One could appreciate, therefore, that the Rangers decision to file an application before a national court, against a decision of a purely sporting nature, is, to say the least, brave and, at the same time, quite dangerous. 

One would also question the propriety of such decision and the advice given regarding such decision. On the face of it, an argument could be made that Rangers had no choice but to file such an application before the Court of Session. This is because the rules of the SFA do not allow for a further appeal to the CAS and the decisions of its disciplinary bodies are final and binding. Rangers do not have the time and probably the resources to challenge the legality of the rules that do not allow for an appeal to the CAS. Instead, they decided to challenge something that could, in theory, be beneficial. In terms of legal advice, the law is clear. In terms of the decision making, the risk is great. Those in charge of the decision making at Rangers would have to answer a lot of questions if the Court's decision is unfavourable to Rangers.  The view 'we have nothing to lose' may have prevailed, but we cannot speculate in the absence of evidence. What we can do, however, is to follow the public statements of those advising Rangers.

At a first glance, the legal basis of the application before the Court of Session, appears to focus on the alleged impropriety of the sanction imposed on Rangers in relation to the transfer embargo. The club's submission is that in the absence of a relevant sanction of a transfer embargo, the disciplinary committee of the SFA exceeded its powers and 'made rules' on the go. This is, I would add, a blatant disregard of natural justice and due process. I would also add that the application may have a very good chance of being successful, given that governing bodies must adhere to their rules and ensure that all parties concerned follow the normative environment the regulator created. This, of course, incorporates the SFA's own disciplinary committees who have a duty to ensure that the rules are applied purposefully and not pedantically. 

Given the above submissions, the application submitted by Rangers may end up being successful. This does not, however, bring a conclusion to the matter. In my opinion, the Court may come to the conclusion that the SFA's disciplinary committee did in fact exceed its powers in that it applied a sanction that is not available in the SFA's regulations. In this case, it is highly likely that the Court would deem the committee's decision void. This is not, however, going to be a reason for celebrations. The Court of Session does not have jurisdiction to apply the correct sanctions, but only to decide on the appropriateness of a decision taken by a governing body. The Court, if it accepts the application filed by Rangers, would probably send the matter back to the disciplinary committee of the SFA, so the latter could apply the correct and appropriate sanctions. In the absence of the transfer embargo sanction, it is not difficult for an independent observer to appreciate what the remaining sanctions would be. In my view, they would not be simple fines. 

Finally, it remains to be seen, whether the SFA would enforce further sanctions against Rangers regarding the club's decision to seek remedies before a national court. If the SFA decides not to proceed further, FIFA and UEFA may decide to interfere. Again such involvement would very much depend on FIFA's and UEFA's political decision making. The examples in relation to other countries are many and self-explanatory. FIFA and UEFA have the will and the power to interfere with the decision making of a national federation. UEFA's sanctions, in particular, on such matter, are many and range from a simple reprimand to a complete ban on the national team and the clubs. It is this latter sanction that may affect Scottish football in a very damaging way. 

In my view, the SFA's disciplinary panel decided to apply a sanction which, under the circumstances, could be deemed to be proportionate and allow Rangers, at the same time, to continue trading. Had the Panel applied the regulatory framework with a literal and orthodox interpretation, the situation for Rangers would have been far worse. Still, the application to challenge the SFA Panel's decision, may end up being 'utterly irretrievable' for Scottish football as a whole... 

Dr. Gregory Ioannidis 26 May 2012 

PS For the sake of clarity, I would like to state that I am not suggesting in this article that the Application submitted by Rangers will be successful. I am simply analysing the possible ramifications in the event such application is successful.

http://lawtop20.blogspot.co.uk/2012/...aster.html?m=1

[johnarsu 17]

As I understand it football debts stand out with a CVA in Engjand but not sure about Scotland

They are included in the CVA in Scotland, HMRC tried to have the law changed in England so the football debts had to be treated in the same way but lost this case on Friday

[Smile 26,622]

It must be murder being a tarrier one week your a Taxman the next week your a Fifa/Uefa official the next week you're an expert on sfa/spl football legislation.

[jerfeelgood 0]

I keep asking myself... who in the day to day running was cutting the cheques at rangers?

In a corporation you have a finance department. invoices come in via the mail. opened by a secretary of accounts somewhere, processed by a secretary somewhere, a cheque is cut, payment is authorised somewhere (a finance director normally under supervision of the board) by signature and the secretary sends the payment out with receipt. presumably this secretary is a back office staff person (i.e. not board member). This would apply to vendor invoices, wages, hmrc bills, etc etc....

now craig whyte sacked the existing director of finance when he arrived, and as far as i can determine never appointed another (a finance director is pretty essential)... unusual in any corporate structure... did he then take personal control of day to day financial decisions or did he grant somebody else the authority to perform these duties? the duties of the other two board members seem murky.... but I doubt he did away with his accounts and finance departments altogether as i doubt he was going to be on hand to perform the menial back office duties (opening mail, processing invoices etc....). So while it may be true that another director had no direct knowledge of financial matters at a boardroom level... somebody within the corporate structure had to have known that cheques weren't being signed and dispatched... I would imagine this would generate queries within the corporation at the staff level with cover your ass e-mails cc'd to all and sundry as to why this or that cheque wasn't authorised (every staff member does this out of self preservation). The interruption to the normal framework of payments would have been hugely evident within the corporate structure itself....

the alternative defense that it was craig whyte doing all the dirty implies that he was opening mail every day, processing invoices (arduous mind numbing work), cutting cheques, and dispatching them personally. as this would be the work of entire departments in a corporate structure. I just can't see it.

This is where the application of 'must have known' by the SFA comes in. It would appear from this weeks statements that the SFA feel that Rangers/D&P have been witholding documentation in the dual contracts investigation. Could this also be true of the previous investigation? If the SFA got a hold of vendor invoices, and HMRC invoices that had been issued but not paid, in my mind this would imply that the entire finance structure within the club would be aware of these non-payments and....

Now I had a quick read of certain sections of the SFA rules last night, and particularly paid the attention to section 11 regarding the application of sanctions. My laymans interpretation of said rules would be that on presentation of an offense for consideration the empowered panel must determine if (i) an offense was committed, (ii) the severity of the defense, (iii) based upon the severity of the defense, determine the appropriate sanction.

The guidelines imply that an offense shall be broken into four levels of severity, and that with each level of offense will be attached an indicator of what level of appropriate sanction shall be applied as a maximum for that level of offense. The sanction applicable is at the discretion of the empowered panel. Rule 66 implies that for an egregious breach of that rule the most severe sanction available is expulsion. The SFA panel said that they gave serious consideration to applying this sanction, which in turn implies that they were considering the level of offense to be in the most severe category. Fearing a colossal backlash, they instead applied the highest level of fine (fines being for the lowest level of offense under rule 66), with a secondary punishment in the form of a transfer embargo (one might argue that Rangers were unlikely at that point to have funds available for the signing of new players anyway). Their prohibition was only on the registration of new players over the age of 18. They specified that you could retain your existing panel if funding allowed. They specified that you could sell players to generate cash. As rangers retain a large and competitive squad of players at this stage, this meant that if a CVA was agreed, or a NewCo voted into SPL that you could still be competitive in terms of the SPL. This was an effort to stop Rangers outlaying money on new squad (their most expensive outlay) in an effort to get them to make payments on some of their standard debts (vendors, utilities, HMRC etc. who are the screaming creditors in this mess).

One would have to argue that no breach of Rule 66 occurred, or that the level of severity of that breach was not of the most severe category, or that a fine and transfer embargo constitute a greater punishment than expulsion from the SPL/SFA.

my .02p and interpretation on SFA adjudication...

Jer

[caseyjones 3,009]

Spot on that people within the accounts department must have been aware that things were not as they should have been. Self-preservation would have prevented them from blowing the whistle.

[Bertent 2,081]

I used to think so too until the taxman turned up looking for £20K of unpaid tax. Management accounts showed the bills being paid but unless you have sight of the actual bank account/cash book you dont know if someone up the food chain is filtering out payments to massage cash flow.

[jerfeelgood 0]

I used to think so too until the taxman turned up looking for £20K of unpaid tax. Management accounts showed the bills being paid but unless you have sight of the actual bank account/cash book you dont know if someone up the food chain is filtering out payments to massage cash flow.

are you implying that somebody was bouncing cheques? if the taxman turns up at your door he doesn't get staright into the boardroom he goes looking for somebody in accounts first... at which point the entire corporation knows about rubber cheques and then.... see above....

edit: ... and the implication that someone would cut a cheque without first checking the current cash account to ensure that said cheque doesn't bounce, where evidence of refused payments/cancelled cheques would be plain as day. a staff person does not send a cheque up the line that might conceivably bounce. sureley somebody in accounts had to have a ready knowledge of current cashflow in order to manage their department....

[ray 105]

uefa can do what the fuck they like up to a point, fortunately sfa are subject to the law of this land, flouting it which I would love to see them try if we get interdict, would land the mhanky bastards in the pokey.

[Bertent 2,081]

are you implying that somebody was bouncing cheques? if the taxman turns up at your door he doesn't get staright into the boardroom he goes looking for somebody in accounts first... at which point the entire corporation knows about rubber cheques and then.... see above....

edit: ... and the implication that someone would cut a cheque without first checking the current cash account to ensure that said cheque doesn't bounce, where evidence of refused payments/cancelled cheques would be plain as day. a staff person does not send a cheque up the line that might conceivably bounce. sureley somebody in accounts had to have a ready knowledge of current cashflow in order to manage their department....

No I was stating that despite the line in management accounts showing the VAT being paid, the FD and Chairman, with held the payment as they had a more pressing issue at group level. The smaller co was shafted to protect the mother-ships arse, quite how well shafted I didnt realise till I got the papers from the administrators. .Lots of debt owed to the parent company for services rendered that I certainly hadnt seen. Hey presto they are the biggest creditors, the rest is as they say the current Rangers story.

[jerfeelgood 0]

No I was stating that despite the line in management accounts showing the VAT being paid, the FD and Chairman, with held the payment as they had a more pressing issue at group level. The smaller co was shafted to protect the mother-ships arse, quite how well shafted I didnt realise till I got the papers from the administrators. .Lots of debt owed to the parent company for services rendered that I certainly hadnt seen. Hey presto they are the biggest creditors, the rest is as they say the current Rangers story.

and the point I was trying trying to make was that if payments were being witheld at group level this would have been evident up and down the line fairly quickly as creditors pursued payment... therefore the argument that only craig whyte was aware of the financial hole he was digging is facile... thence the SFA others 'must have known' statement as rationalisation for disrepute charge....

[HHB 63]

and the point I was trying trying to make was that if payments were being witheld at group level this would have been evident up and down the line fairly quickly as creditors pursued payment... therefore the argument that only craig whyte was aware of the financial hole he was digging is facile... thence the SFA others 'must have known' statement as rationalisation for disrepute charge....

But that does not mean that other board directors knew what was going on unless the Controller or other finance staff told them. I would not expect a director to get involved in the minutiae of operations.

The other staff may well have queried the reasons with Craig Whyte and received an explanation. The either accepted the explanation or were not willing to risk their jobs by 'whistle-blowing'.

In my professional career I have seen several examples of fraud where staff were unwittingly complicit through exercising their boss's instructions in good faith. Hindsight is of course 20-20. At the time, it may not have been as clear cut. The 'must have known' is, as you say, a rationalisation. The reality is probably a lot murkier.

[jerfeelgood 0]

But that does not mean that other board directors knew what was going on unless the Controller or other finance staff told them. I would not expect a director to get involved in the minutiae of operations.

The other staff may well have queried the reasons with Craig Whyte and received an explanation. The either accepted the explanation or were not willing to risk their jobs by 'whistle-blowing'.

In my professional career I have seen several examples of fraud where staff were unwittingly complicit through exercising their boss's instructions in good faith. Hindsight is of course 20-20. At the time, it may not have been as clear cut. The 'must have known' is, as you say, a rationalisation. The reality is probably a lot murkier.

fair points all...

then the issue becomes at what point does holding your hands in the air and saying "not my problem" become corporate dereliction of duty... at what point as an employee as head of accounts are you entitled to notify the entire board if you feel that accounts are being mismanaged....

random thought... people bandy about between "must have known" and "beyond reasonable doubt" to argue that the case is unproven... The SFA can demand documents but have no right to manually retrieve them, unlike HMRC as an agent of government who can get warrants and come through the door and pull out all your books and raid your e-mail banks... Therefore the "reasonable doubt" statute of criminal law is unattainable in this circumstance... this is a situation where the SFA demand documents... nothing's forthcoming and they have to make a decision based on the available evidence....

now i'm not aware of what documents and evidence the SFA had access to, or what they asked for, so I can't attest to how they reached their decision.... just speculating...

[HHB 63]

fair points all...

then the issue becomes at what point does holding your hands in the air and saying "not my problem" become corporate dereliction of duty... at what point as an employee as head of accounts are you entitled to notify the entire board if you feel that accounts are being mismanaged....

random thought... people bandy about between "must have known" and "beyond reasonable doubt" to argue that the case is unproven... The SFA can demand documents but have no right to manually retrieve them, unlike HMRC as an agent of government who can get warrants and come through the door and pull out all your books and raid your e-mail banks... Therefore the "reasonable doubt" statute of criminal law is unattainable in this circumstance... this is a situation where the SFA demand documents... nothing's forthcoming and they have to make a decision based on the available evidence....

now i'm not aware of what documents and evidence the SFA had access to, or what they asked for, so I can't attest to how they reached their decision.... just speculating...

In a company like Rangers where one person owns 85% of the shares, the employee is put in an impossible situation. Even if he/she does bring his/her fears to a director, that director is, in effect, powerless. At a time when the job market is still bad, that is asking the employee to take on a lot of personal risk. It is far more likely that the employee would go to Craig Whyte, query why something is happening or not happening and accept the explanation even if they did not believe it. That way they are covered.

I suspect that the SFA's position is far more about covering up their lack of due diligence and slowness in relation to concerns about Craig Whyte than anything else. Ranger's directors should have known, therefore, it cannot be the fault of the SFA.

[jerfeelgood 0]

In a company like Rangers where one person owns 85% of the shares, the employee is put in an impossible situation. Even if he/she does bring his/her fears to a director, that director is, in effect, powerless. At a time when the job market is still bad, that is asking the employee to take on a lot of personal risk. It is far more likely that the employee would go to Craig Whyte, query why something is happening or not happening and accept the explanation even if they did not believe it. That way they are covered.

I suspect that the SFA's position is far more about covering up their lack of due diligence and slowness in relation to concerns about Craig Whyte than anything else. Ranger's directors should have known, therefore, it cannot be the fault of the SFA.

and in typical corporate governance this is done nowadays via e-mail, with all relevant parties cc'd in to cover your ass.. thence evidence of corporate mismanagement....

[HHB 63]

and in typical corporate governance this is done nowadays via e-mail, with all relevant parties cc'd in to cover your ass.. thence evidence of corporate mismanagement....

That is possible. But the evidence was, in fact out there.

17 October 2011

"They result from John McClelland and John Greig both being of the opinion that since the change of ownership they have been excluded from participating in corporate governance at the club.

"Therefore they have decided not to continue in their positions as non-executive directors."

The news follows the resignation of finance director Donald McIntyre from the Rangers board last week. McIntyre, who remains an employee of the club but is currently suspended from his role pending an internal investigation, also cited a lack of input into corporate governance as the reasoning behind his decision."

http://local.stv.tv/glasgow/274995-john-greig-and-john-mcclelland-resign-from-rangers-board/

So the alarm bells were rung and promptly ignored by everyone including the SFA. When the shit finally hit the fan, the SFA, having failed in their role as regulator of Scottish football, chose to cover their back by making Rangers a scapegoat.

Should have known? They did know something was wrong although probably not the gory details. They went public with it and nobody did a thing.

[JRodgA2k8 542]

I love how the mhedia have decided to couple us in with Sion...Sion flouted a ban that was imposed by FIFA where they then fielded the ineligible players in a UEFA competition, the precise reason why UEFA acted.

This is simply a domestic problem and a domestic dispute, there is simply no need for UEFA or FIFA to become involved in things and I in fact believe that will be the case.

Despite all the protestation towards both these governing bodies they simple don't want to get involved in something which is purely to do with the SFA, nothing to do with any infringement of a UEFA or FIFA ruling.

[jerfeelgood 0]

I love how the mhedia have decided to couple us in with Sion...Sion flouted a ban that was imposed by FIFA where they then fielded the ineligible players in a UEFA competition, the precise reason why UEFA acted.

This is simply a domestic problem and a domestic dispute, there is simply no need for UEFA or FIFA to become involved in things and I in fact believe that will be the case.

Despite all the protestation towards both these governing bodies they simple don't want to get involved in something which is purely to do with the SFA, nothing to do with any infringement of a UEFA or FIFA ruling.

true, and they won't, until it becomes evident that the SFA can't control the situation anymore... the reason the Sion issue came to the attention of UEFA was because the swiss FA had lost control of their association members... allowing illegitimate players to be fielded in a competition match... the swiss FA could have excluded sion from the game, could have notified UEFA of sions intention to field illegitimate players in an attempt to get the match abandoned etc etc...

i don't feel that we've reached that stage yet and thence why UEFA and FIFA aren't interested yet... they're hoping the SFA can get their house in order....

[HHB 63]

true, and they won't, until it becomes evident that the SFA can't control the situation anymore... the reason the Sion issue came to the attention of UEFA was because the swiss FA had lost control of their association members... allowing illegitimate players to be fielded in a competition match... the swiss FA could have excluded sion from the game, could have notified UEFA of sions intention to field illegitimate players in an attempt to get the match abandoned etc etc...

i don't feel that we've reached that stage yet and thence why UEFA and FIFA aren't interested yet... they're hoping the SFA can get their house in order....

The ban on Sion was a FIFA ban and not a Swiss FA ban. It was a ruling of FIFA’s Dispute Resolution Chamber and the ban was confirmed by the CAS. It was nothing to do with the Swiss FA.

The issue came to the attention of UEFA because Celtic made a complaint. Up to that point, UEFA had not been involved and had taken no part in the dispute.

The Swiss FA did not lose control of Sion. Sion won a temporary court order which allowed them to field the players concerned. The Swiss FA could not act against Sion while that order stood as that would have been contempt of court. It is outwith the powers of any sporting organisation to prevent a club (which is usually incorporated as a business under the civil jurisdiction) exercising its right to seek redress before the courts.

[jerfeelgood 0]

The ban on Sion was a FIFA ban and not a Swiss FA ban. It was a ruling of FIFA’s Dispute Resolution Chamber and the ban was confirmed by the CAS. It was nothing to do with the Swiss FA.

The issue came to the attention of UEFA because Celtic made a complaint. Up to that point, UEFA had not been involved and had taken no part in the dispute.

The Swiss FA did not lose control of Sion. Sion won a temporary court order which allowed them to field the players concerned. The Swiss FA could not act against Sion while that order stood as that would have been contempt of court. It is outwith the powers of any sporting organisation to prevent a club (which is usually incorporated as a business under the civil jurisdiction) exercising its right to seek redress before the courts.

my bad!

So the Swiss FA could not act against one of it's associations members.... by definition does this not mean they had lost control of their member club?

[HHB 63]

my bad!

So the Swiss FA could not act against one of it's associations members.... by definition does this not mean they had lost control of their member club?

They were not party to the original dispute which was between FIFA and Sion. Because FIFA had won at the CAS, the Swiss FA would not register the players. Sion went to the Civil Court of Martigny and St. Maurice which ordered FIFA, the FIFA subsidiary Transfer Matching System GmbH, and the Swiss Football League to allow six FC Sion players to play with immediate effect.

I don't like the concept of 'losing control'. In a democratic society, individuals and companies have a right to redress before the courts. If 'losing control' means depriving them of this right then that 'control' is abusive.

Once the court had found in favour of Sion, what was FIFA and the Swiss FA to do? If you try to sanction someone for winning an court order against you then you are in a rather sticky legal position. What FIFA decided to do was to make it the Swiss FA's problem which, essentially, it was not. The Swiss FA declined to take action until after the appellate court, the Tribunal Cantonal Valais, overturned the lower court rulings. Indeed, and probably due to other legal action in the Canton of Vaud and before the CAS, the Swiss FA did not take action until the end of December.

[BLUENOSE BINMAN 5]

scottish courts are a joke to be honest would be more confident in an english court

[A.T.G 10,773]

Whoever opened the mail

Accounts Payable Manager

Accounts Assistants

Craig Whyte

The only ppl who are responsible for non payment of bills and or VAT/PAYE

An utter disgrace! If u have no board meetings and exclude directors then what chance u got

[Carsons Dog 9,878]

Good post HHB

Going back to the "must have known" argument you just need to look at events like the Banstead £250k and the Arsenal shares

These issues didn't become public knowledge until weeks after they had occurred

This infers that the circle of knowledge within Ibrox was very very small because those events, in particular the Arsenal shares, were things which should have leaked to the fans immediately and I would have thought there would have been no shortage of staff/directors with an axe to grind with Whyte who would have been willing to leak them.

They "must have known"

Or maybe not