Ralph Topping, who is a member of the SFA’s Professional Gaming Board, would have us believe that there is no collusion between the two governing bodies in Scottish football. Let’s be quite clear on this point: they are a concert party working together to avoid title stripping. I would go further and contend that during Regan’s cosy chat with Dave King he invited the career criminal to be the third prong of their trident.
Regan introduced the concept of ‘vested interests’ in a letter to the secretary of the Celtic Supporters Association. The money spent on a QC – or was it Rod McKenzie moonlighting from the SPFL – was well spent. Let’s have no more talk of Sporting Integrity. Let’s isolate Celtic and portray them as acting in their own vested interests. Regan has supped with the devil. If you believe as I do that he was corrupt before in awarding Rangers a UEFA licence in 2011, watch now for how King’s tail will wag the dog.
Topping patronisingly suggested that it was better in the old days when the folly of youthful exuberance would be tempered with some sage counsel from those longer in the tooth:
“Pipe down Laddie. Title stripping is for the birds. Stop drinking on an empty head.”
I was in my local on Friday. As I can best recall, the advice from the local oracle was:
“Nail these self-serving corrupt Rangers-facing jobsworths to the cross.”
On balance I prefer the second option.
An interim meeting, by conference call, was arranged by the SPL on the 28th February 2013 to discuss the findings of the LNS commission. Topping believes that they can defend their consensus not to appeal to the SFA. Despite he himself asserting that a £250,000 fine did not fit the crime, within three hours his mind was changed. The SFA did not want the title-stripping buck passed to them. This had to be spiked. I have no doubt whatsoever that Regan played an active part in this sporting integrity veto.
Let’s take a detailed look at the consensus through the prism of eight confidential e-mails. I will use bold typeface for the original text. Every word will be reproduced verbatim, except where explicitly stated when I cut to the chase:
1. From: Iain Blair Sent: 28 February 2013 16:06 To: Ralph Topping; Neil Doncaster; Eric Riley; Duncan Fraser; Stephen Thompson; Michael Johnston Cc: Michele Shields
Subject: From Rod McKenzie – Right of Appeal
“Gentlemen Please see below advice from Rod. Best wishes Iain. I was asked for advice regarding the scope for an appeal by the SPL against the decision of the Rangers EBT Commission. The relevant provisions are to be found in SPL Rules G8, G9 and G10. G8 provides:
“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.Accordingly, if there was any part of the decision of the Commission which could be regarded as adverse as a determination so far as The SPL Limited is concerned, then an argument could be made that it would be competent to appeal against such an adverse determination Any appeal must, in terms of paragraph 18.104.22.168 of the SFA Judicial Panel Protocol be made to the Secretary of the SFA in writing by Notice of Appeal within five Working Days on the date of communication of the decision. Accordingly, SPL Limited acting through its Board, would have until close of business on 7 March to lodge with the Secretary of the SFA at Note of Appeal against whichever adverse determinations were sought to be appealed against. I would caution that it is very likely that if an appeal was submitted against any decision which was regarded as adverse to The SPL Limited that the right of The SPL Limited to appeal against a decision of its own Commission could be challenged. This might well be dealt with as a preliminary issue by the SFA Appellate Tribunal, assuming of course Rangers OldCo was to seek to respond to the appeal. I have not sought in this note to give any advice on the prospects of success in any appeal, because I would need to know what determination(s) were considered to be adverse to The SPL Limited in the Commission’s decision before giving advice on the prospects of succeeding in an appeal against such determination(s) having regard to the available grounds.”
Harper Macleod LLP
JJ: Rod McKenzie establishes that the SPL can appeal and must do so before close of business on 7th March.
2. From: Iain Blair [mailto:IainBlair@scotprem.com] Sent: 07 March 2013 10:38 To: Ralph Topping; Neil Doncaster; Eric Riley; Duncan Fraser; Stephen Thompson; Michael Johnston Cc: Michele Shields; Rod McKenzie Subject: Commission
Gentlemen, please see below for your consideration and response as necessary. Best wishes
Dear Board member,
You will recall that last week I circulated a note from Rod McKenzie, setting out his advice in relation to whether it would be possible under that relevant Rules and Articles for an appeal to be taken to the SFA by the SPL against the decision of the Independent Commission. You will also recall that any SPL right of appeal to the SFA which might exist lapses today. One Board member has suggested, rather than simply let the right of appeal lapse, that the SPL Board should make a positive decision whether or not to exercise any right of appeal to the SFA. We are conscious that a number of Board members have already expressed a view that a line should now be drawn under this issue. But, in the interests of good order, it would seem sensible to make a recorded Board decision either way. Could you therefore please confirm by email by 2pm today whether you do or do not wish the SPL to appeal against the decision of the Independent Commission? If any Board member does wish to appeal it is essential that the email identifies what part of the Commission judgement is to be appealed against because any appeal notice which might be lodged must be submitted today and must specify in detail precisely what is appealed against and on what grounds. Anything not specified in the notice of appeal cannot later be argued in the appeal without leave of the appeal tribunal and only on good cause shown.”
JJ: So at 10.38 in the morning members are given 3 hours and 22 minutes to formulate their grounds for appeal. A cynic would suggest that the default position of letting this option pass has been predetermined and that Doncaster and Blair are just paying lip service to other board members.
3. From: Michael Johnston Sent: 07 March 2013 10:43 To: Iain Blair; Ralph Topping; Neil Doncaster; Eric Riley; Duncan Fraser; Stephen Thompson Cc: Michele Shields; Rod McKenzie Subject: Re: Commission
In my view, we should NOT appeal.
JJ: Did we expect any more from Kilmarnock, the only club to abstain in the SPL’s decision not to accept Charles Green’s basket of assets to be fast tracked into the SPL?It only took Johnston 5 minutes to respond. If the CSA decide to withdraw the Green Pound from clubs in which Sporting Integrity is suborned by a commercial imperative, Kilmarnock should be first on their list.
4. From: Stephen Thompson Sent: Thursday, March 07, 2013 10:43 AM GMT Standard Time To: Iain Blair Cc: Ralph Topping; Neil Doncaster; Eric Riley; Duncan Fraser; Michael Johnston; Michele Shields; Rod McKenzie
Subject: Re: Commission
I think my position is well known as I was “cornered” by the press at Hampden on Monday at the Scottish Cup draw. I do not wish to appeal the decision that has been made and I personally wish to ‘draw a line under this’ and move on .
JJ: I was under the impression that Thompson had resigned with immediate effect from the SPL board in November 2012. He was marked absent from the interim meeting on the 28th February 2013. I have reverted to my source on this point.
5. From: Michael Johnston Sent: 07 March 2013 15:28 To: Iain Blair; Ralph Topping; Neil Doncaster; Eric Riley; Duncan Fraser; Stephen Thompson Cc: Michele Shields; Rod McKenzie Subject:
I’m in Italy at present so my reply must be brief.
Having read Ralph’s email of 15.49 today, I can appreciate his concerns but my view (and vote) remains against lodging an appeal.
I can elaborate upon why at the next Board meeting.
JJ: Johnston reverts to the board to reinforce his position, and disingenuously offers to elaborate after the appeal window has closed.
6. From: Ralph Topping Sent: 07 March 2013 14:49 To: Iain Blair; Neil Doncaster; Duncan Fraser; Stephen Thompson; Eric Riley Cc: Rod McKenzie
Subject: Appeal to SFA
STRICTLY PRIVATE AND CONFIDENTIAL
I understand that Iain has spoken with most people from the Board about the appeal process and having spoken with Rod I have his advice that in a nutshell we have to appeal today and be clear as to the grounds of appeal . I also understand that Eric is overseas on holiday but for the understandable reason of time zone difference is uncomfortable with the timescale being asked of him. As things currently stand Duncan , Michael , Stephen and Neil are in favour of no appeal being made. In the circumstances , given this is as important a subject as I think the SPL Board has discussed in my time as Chair I want to make my own position clear and not hide behind arithmetic as I could do ! I believe the proportionality of Lord Nimmo Smith’s determination is questionable. A fine of £250,000 for an enterprise of Rangers Oldco’s size and turnover and indeed strong leadership position in Scottish football on the evidence led as to the scale of the undeclared payments is not proportionate. I am also uncomfortable with Lord NS’s view that whilst the SPL Board wanted no sanction ruled out we seem to have led no evidence or made no statement in the course of the consideration by LNS on competitive advantage Ranger’s Oldco enjoyed which effectively ruled LNS from considering it. My question therefore to all Board Members is this : are you happy that in not appealing you are effectively saying that competitive disadvantage to all SPL clubs is immaterial and that you are happy with the scale of the fine? My question to Rod is having not led evidence on Sporting disadvantage is this ruled out as a ground of appeal ? I remain uneasy on both counts but accept that recovering monies from Oldco is unlikely no matter the quantum. The outcome in my view is still not proportionate. I would have liked more time to discuss this in person but as I am advised we don’t have it if you could confirm that you are not for turning I would be grateful . Sorry to ask but I feel I must given the importance of this matter .
JJ: This is the key document, the smoking gun. We have the confirmation that four board members are opposed to an appeal being lodged. Topping puts it to McKenzie:
“that no evidence was led to the Commission by Harper McLeod, and no statement was made, on the competitive advantage Rangers Oldco enjoyed which effectively ruled LNS from considering it.”
So not only was the scope changed to exclude the illegal DOS/VSS antecedent of EBT, no evidence was led on competitive advantage. A cynic could argue that Doncaster and Regan subverted the LNS commission.
7. From: Rod Mckenzie Sent: 07 March 2013 15:53 To: Ralph Topping Cc: Iain Blair; Neil Doncaster; Duncan Fraser; Stephen Thompson; Eric Riley; Nikky Wales
Subject: RE: Appeal to SFA
Dealing firstly with the level of fine. In accordance with my instructions I did not suggest a fine to the Commission as a sanction far less the level of fine it ought to impose. Levels of fine are an example of a matter which is very much for the decision maker and it will be given a wide margin of appreciation in determining what is appropriate. One decision maker might have said 250K and another 500K. That, in the absence of any established precedent, which there is not, does not mean that either level is unreasonable. Given that the SL specifically said that the sanction if any was a matter for the Commission I cannot see that we would be likely to succeed in arguing on appeal that the level of fine is too low. On competitive advantage in the competition a distinction has to be made between competitive advantage from using EBTs and competitive advantage from not disclosing EBT details to the SFA/SPL. Rangers were not charged with breach of the SPL Rules by using EBTs. There is no such Rule prohibiting their use. They were charged with and convicted of using EBTs and not disclosing such use as required by SPL and SFA Rules. The FTT held after 20 odd days of evidence and submissions that Rangers had used EBTs in a manner which did not give rise to a PAYE liability. There was never any doubt but that the use of EBTs gave a competitive advantage over other Clubs which did not use them but the FTT decided Rangers were entitled to use them as they did from a tax perspective without additional tax liability. There was never the slightest suggestion made by anyone that the SPL should attempt to argue that the decision of the FTT on this should be reversed by the Commission. It was never part of the role of the Commission to determine the correct tax treatment of the EBTs. The Commission was always about, even before the FTT decision was issued, whether Rangers had breached SPL Rules by not disclosing the use of EBTs and the details of the amounts etc for each of the Players. The Commission decided that it made no difference in terms of competitive advantage whether the details of the EBTs were disclosed in terms of the SPL Rules. It found that whether there was disclosure to the SPL did not in itself effect where the competitive advantage lay. It found, in effect, that the advantage form the use of the EBTs was the same whether they were disclosed to the SPL or not. The conclusion of the Commission on sanction was that not disclosing the EBT details to the SPL/SFA did not of itself give Rangers any competitive advantage. It would have had the same competitive advantage even if full details had been disclosed. By not appealing to the SFA the SPL is not saying that competitive advantage is immaterial. It is material to sanction in a disclosure case if a competitive advantage was secured from non disclosure which the Commission held there was not. Since the decision came out I have not seen anything to establish that Rangers secured a competitive advantage by non-disclosure or any evidence which could have been led to establish such an advantage. I am sorry that this note is a little ‘scrappy’ but I have been in a meeting today and have had very little time to produce it. I can answer any further points either by email or on Monday.
JJ: McKenzie’s response is instructive. He asserts that the LNS commission were charged with considering disclosure and giving no consideration to any competitive advantage conferred by the use of EBT. Readers are now aware that the LNS was limited, some would say fatally compromised, from the get go.
8. From: Duncan Fraser Sent: 07 March 2013 16:26 To: Ralph Topping; Iain Blair; Neil Doncaster; Stephen Thompson; Eric Riley Cc: Rod McKenzie
Subject: RE: Appeal to SFA
I wish to put on record to you all my position.
The circumstances we find ourselves in is that we have been unable to get together to discuss the outcome of the commission findings face to face, which is most unfortunate as we would all have benefitted from that. I am and never would pretend to understand the way the law works let alone pass comment. Ralph “Clapham Bus” being as far as I would go. I am at pains to point out that I, like Ralph, find the size of the fine and therefore the punishment to be disproportionate to the scale of the actions undertaken. Although the EBT Tax case has been appealed it would be fair to assume that the somewhat surprising Tax Tribunal outcome, that these undeclared payments fell out with PAYE and NIC and therefore were “legal” had an effect on the Commission. It seems that they viewed the use of the EBT as resulting in no sporting advantage that Rangers would have received if they had been declared. In which case why were they not declared? I truly struggle to understand that outcome but cannot see how that can be appealed. In summary the Tax Tribunal outcome has affected the outcome here to a huge extent. Rod’s point that we did not suggest a sanction and were clear in leaving it to the Commission rules out any appeal on the grounds of “the punishment fitting the crime”. In summary, I do not believe that the Commission came to the correct decision in terms of sporting advantage and we have no grounds for an appeal based on the punishment being too lenient or it appears sporting advantage given the narrow line they pursued. Therefore reluctantly I have to draw the conclusion that the process is at an end.
JJ: I have two more e-mails from this file. One has been published in which Topping reflects the majority view and spikes an appeal. The other is a more polished version of McKenzie’s scrappy e-mail. It does not add any value.
This series of e-mails is proof positive that Rangers were not charged with the unlawful use of tax instruments to evade social taxes and to enjoy a competitive advantage.