Defending The Indefensible

Prior to a more measured and dispassionate look at the SPFL farrago of half-truths and blatant lies, I pause to reflect on an inordinately poor performance by Celtic. It was not so much the result that should trouble Celtic supporters than the shape of the team and the fact that Sinclair might have well have had sat on the bench as he was absent all night. I revealed exclusively on Twitter that Dembele would be out of both ties and that Celtic would go into this game without an established centre forward. What’s worse is the sinking feeling that if Griffiths had been available it would have made no difference. Forrest, the poor man’s Patrick Roberts, continues to frustrate and Rogic as de facto centre forward in a 4-3-3 was a gamble that clearly did not pay off. If in six days this is the best they can muster they will exit the CL. There was nothing invincible about this Celtic team. Ntcham, Hayes and Benyu, on this showing, were exposed at this level. To be fair the latter only had nine minutes and stoppage time in which to shine. Ajer, in for Sviatchenko, will have a Torrid Time in Trondheim (will this be the headline) if his positioning continues to disappoint. McGregor should have come off the bench as the Celtic forward line were as convincing as the SPFL.

Celtic were a poor facsimile of last season’s team. ‘Banger’ Caixinha would have slept soundly in his bed last night. There was a lack of the passion one associates with a European night at Celtic Park. It was almost as if Bendtner, who was a handful all night and will be a potent threat in the second leg, turned up with a mute button. Would the Green Brigade have galvanised the players who were comfortably contained by Rosemborg or is this squad a lost cause?  Ajer, Hayes, Ntcham, Benyu, Forrest, Sinclair and Rogic were abject. Armstrong, one of Celtic’s best performers last season, had a stinker. Why did Lawwell not move heaven and earth to sign Roberts?  He was sorely missed last night and might well be sorely missed all season.

However when it comes to mediocrity no-one does it better than the SFA and SPFL. Regan and Doncaster have been so seduced by the blue pound and the bookmakers that they are double-dating them. Their pillow talk would be revealing. There was talk when both were hired that, as Englismen, they would not arrive with the Masonic Orange Ordure baggage of old, as typified by Jim Farry. Sacking rampant bigot Hugh Dallas was a good start for Regan, but as soon as he poked his nose into the Ibrox Imbroglio his tenure was increasingly compromised. The blatant cheating of Rangers under the stewardship of David Murray, Dave King, Paul Murray and Alastair Johnston should have resulted in their licence to play professional football being revoked, with all titles won during Murray’s tenure being declared null and void. Murray, who had acquired a controlling interest in Rangers with a $1m bribe and £6m of on the books funding, both loaned by The Bank of Rangers, continued in his corrupt ways for 23 years. There are those who swear he was paying what became the nine in a row heroes cash bungs from the very beginning. He later made cheating a policy. Gordon Brown, the worst Prime Minister in living memory, who championed the odious McCanns and awarded Sir Bribe & Lie a knighthood, has a lot to answer for. Brown’s rictus grin is the stuff of nightmares. Brown backed war criminal Tony ‘Crazed Hyena’ Blair in perpetrating a genocide in Iraq. Just like Regan and Doncaster they have never been taken to task for their crimes.

The anti-Irish/Catholic ‘ethnic cleansing’ of Scottish football by Regan and Doncaster, on behalf of Rangers and Rangers Lite, continues to this day. The proscribed songs of hatred still ring out at The Sectarian Speakeasy with not so much as a raised eyebrow from those who purport to govern the Scottish game.

Given that the SFA and the SPFL are clearly working in concert, did Gerry Moynihan brief both? What does it say about these organisations when they chose to hire a QC prior to the Supreme Court decision?  Were they planning to Defend The Indefensible?

I take extreme issue with Stewart Regan using funds that should be earmarked for Scottish football to cover his complicity in granting Rangers a UEFA licence in 2011, despite an overdue payable quantum of £2.8m having crystallised two weeks prior to the March cut-off. A vote of no confidence should be tabled against Regan. This individual, corrupted by osmosis to Campbell Ogilvie, must be summarily removed from the Scottish game. He is unequivocally and incontrovertibly corrupt

I dealt with Doncaster’s Sophistry (jj passim) in a previous post. One can find it in my archive. I have not yet restored my entire archive of more than 800 articles. When I find the time I will do so. I hope to complete this task prior to being assassinated. It will be my legacy. Should readers turn up to find  that John James is conspicuous by his absence they will know those from the UDA/UVF who have been trained to kill and now hold leading position in The Orange Ordure, have tracked me down. One group plan to burn me alive using a tyre as favoured by the Mexican drug cartels. Their apologists will come on this site and cry foul. But make no mistake these individuals are obsessed with thoughts of my demise. Sooner or later they will get to me. Prior to this eventuality I will shine as brightly as possible.

I digress. I will reproduce the statement from the SPFL website verbatim in bold blue italic typeface. I will use  JJ as a prefix to my running commentary and summary.

The SPFL Board today announced, following legal advice from eminent Senior Counsel, Gerry Moynihan Q.C., that there will be no further disciplinary proceedings taken by the SPFL connected with the use by Rangers of EBTs and other tax schemes.

The SPFL Board further announced that it supports the calls that have been made for an independent review concerning the way in which Scottish football’s authorities have dealt with non-payment of tax by clubs, have applied their rules and regulations, and the sufficiency of changes made to their rules and regulations in this area over the last few years. The Board of the SPFL will seek to facilitate such  a review and the publication of its report with and to the Scottish FA. The SPFL will seek to agree terms of reference with the Scottish FA and the identification of appropriate independent reviewers.

The SPFL Board of directors has considered carefully the judgement of the Supreme Court in the unsuccessful appeal by the former Rangers Football Club PLC (in liquidation) (“Rangers OldCo”) against the decision of the Inner House of the Court of Session finding that OldCo acted unlawfully in failing to deduct and pay over to HMRC, PAYE income tax, from payments made by it to EBTs for many of its registered players.

JJ: It beggars belief that the SPFL will liaise with the SFA in compiling this review and also report to the SFA. Do they honestly believe that we came down in the last shower? Former and current executives of the SFA, notably Campbell Ogilvie, Stewart Regan and Sandy Bryson, led mendacious evidence to the LNS commission. They also reduced the scope and encouraged half-baked conclusions prior to the unlawful use of tax instruments being tested in The Court of Session and The Supreme Court. The LNS Commission, which declared that there was no suggestion of dishonestly in the implausibly ‘imperfect’ registration of 55 players, is unequivocally unsound. As is the commission’s central premise that Rangers’ use of EBT’s was lawful and that up to £48m in evaded taxes did not confer a competitive advantage. Stewart Regan is so compromised by his involvement in the LNS commission that he cannot possibly be considered as impartial. He has skin in this blatant whitewash of the facts. The crowdfunded counsel that will petition The Court of Session for a Judicial Review will wipe the floor with the predetermined outcome of this sham commission. What a shoddy attempt to keep the matter in house as they circle the wagons to protect their compromised careers.

Gerry Moynihan Q.C. has confirmed that:-

(i) the breaches of Scottish FA and SPL Rules and Regulations arising from the failure of Rangers OldCo to make the required notifications in relation to registrations and contract disclosure requirements are now closed and cannot be re-opened by the SPFL nor can the Commission or a new Commission now impose further or different sanctions. The SPFL has no power in law to re-open these issues and the Commission has no power in law, assuming it wished to do so, to modify or supplement the sanction previously imposed;

(ii) there were not and are not in the SPL/SPFL Rules and Regulations any other provisions which can be or could have been pursued in relation to the failures of Rangers Oldco to make payments of PAYE tax to HMRC in relation to its employees who benefited from EBTs;  The SPFL has no power in law to re-open these issues and the Commission has no power in law, assuming it wished to do so, to modify or supplement the sanction previously imposed; 

(iii) there were not and are not in the SPL/SPFL Rules and Regulations any other provisions which can be or could have been pursued in relation to any alleged damaging effects on the reputation of the game resulting from any acts and/or omissions of Rangers OldCo in relation to the failure to deduct and pay over PAYE tax.

In short, Senior Counsel has advised that there are no disciplinary proceedings, beyond those already taken and concluded before the Lord Nimmo Smith Commission, which were at any time or are now open to the SPL and/or SPFL in relation to the failure of Rangers OldCo and/or its officers to deduct and pay over PAYE which Rangers OldCo was obligated to deduct and pay over but which it failed so to do.

JJ: There is one major and fundamental omission in Senior Counsel’s analysis which I personally find astounding. Rangers did not deduct National Insurance Contributions on behalf of HMRC at source, in either the unlawful DOS/VSS antecedent to EBT or the unlawful EBTs. How could senior counsel miss this?

The second point is also fundamental. The LNS Commission had no standing in law. It was a whitewash which made a number of recommendations. Having a retired Lord Ordinary as chair did not in an way elevate proceedings. This commission was not in any way legal under the tenets of Company or Scots Law. To suggest otherwise is at best disingenuous, at worse a blatant lie. The LNS Commission recommendations can and will be challenged in The Court of Session. Mr. Moynihan seems to believe that the SFA and SPFL exist in their own parallel universe where the law of the land does not apply. He will soon be disabused of this notion.

As for no provision in their statutes to punish the errant directors of Rangers, could they not have referred the matter to the SFA and petitioned them to suspend or revoke Rangers’ licence? The SPL could have appealed the LNS recommendations but chose not do so. One can but hope that Moynihan is retained by the SPFL and interested party the SFA at the forthcoming Judicial Review. The egg dripping from his face should be garnered to make a consolatory omelette at the SFA’s Chinese Laundry: Hotel Du Vin.

The only factual statement Moynihan makes in (i), (ii) and (iii) is when he asserts that:

‘The SPFL has no standing in law.’ 

Since 2010, the SPFL has brought in a number of rule changes dealing with non-payment of tax. These were further bolstered at Monday’s SPFL Annual General Meeting.

JJ: This is by far the most incredulous part of the SPFL statement. We are being led to believe that the SPL, who sat on their hands while Rangers engaged in systemic tax evasion and financial doping and were rewarded with prize money, enhanced broadcasting revenue and Champions League participation, have now caught up with their transgressions in a one hour meeting of the shiny new SPFL board. They must really think that supporters zip up their backs.

‘The horse may have bolted but we have bolstered the stable doors.’ 

These people are imbeciles. No-one this stupid should be allowed to govern a game of Ludo, never mind Scottish football.

The detailed advice given by Gerry Moynihan Q.C. to the board of directors of the SPFL as regards the options, if any, open to the SPFL in relation to further disciplinary action by the SPL/SPFL, is provided. 

The Advice Of Gerry Moynihan QC (JJ: cue drum roll for the right honourable Gerry Money-in-hand)

Summary

Given the complexity of the questions it may help if I begin with a short summary. My advice is that neither the SPL nor the SPFL can take any further disciplinary action against Oldco, Newco or Rangers (the club) in respect of the events that culminated in the liquidation of Oldco. Several possible complaints have been canvassed and I will address them one by one. The first possible complaint relates to failure to disclose the full range of payments when players were registered. That complaint was ‘prosecuted’ before the LNS Commission. The decision of the Commission was subject to certain limitations. Principally, it proceeded on the assumption that the EBT scheme was lawful. Secondly, there has been some suggestion that the Commission had an incomplete understanding of the full range of undisclosed payments (though this has not been demonstrated). Notwithstanding these limitations, it is now too late to appeal the decision of the LNS Commission; and, applying the general principle of finality in litigation, it is not possible for the SPFL to bring a new or second complaint in respect of essentially the same matter.

 

JJ: Forgive me if I demur on your assertion that this is complex Money-in-hand. It has been clearly demonstrated that the illegal DOS/VSS antecedent to EBT was not considered by the LNS Commission. This is not disingenuous. This is a blatant lie. As for ‘applying the general principle of finality in litigation’  on a non-legal construct, namely the LNS Commissiion, you are seriously out of your depth Money-in-hand. How on earth did you become a senior QC? By keeping your head down and running up time served? I have seen your ilk before being humiliated in court, as you will be in short order.

The second possibility relates to non-payment of tax. The SPFL now has rules requiring tax to be paid when ‘due’. Those rules were first introduced after Oldco ceased to be a member of the SPL. The Rules define the date when a formally contested tax liability is considered to fall ‘due’: it falls due when the tax dispute is resolved. That day will only come when the Supreme Court announces its decision. Assuming that the Supreme Court holds that there is a tax liability in respect of the EBT scheme that will be a liability of Oldco (not the club under the current ownership of Newco). There can be no complaint by the SPFL against Oldco because that company is not a member. I have been asked whether it would be possible to bring a complaint against the club on the basis that the SPFL Rules can be construed as referring to any tax due in respect of the activities of a club, even by a past owner. While the point is not entirely free from doubt it is my opinion that the Rules do not apply to tax due by former owners and, therefore, it would not be possible to bring a complaint against Rangers (and Newco) in respect of any failure by Oldco to pay tax.

Even if the SPFL Rules cover any tax due in respect of a club’s affairs by former owners, I see no reasonable basis for disciplinary action. A breach of the tax rules leads to a specific sanction, a transfer embargo until the tax is paid. This tax will not be paid. An indefinite transfer embargo would be unreasonable and even an embargo for a restricted period cannot to my mind be justified.

The final option would be to consider the whole affair (non-disclosure of the payments and non-payment of any tax due) as conduct that brought the game in to disrepute. That cannot be pursued by the SPL or SPFL. The Rules of the SPL and SPFL do not contain such a disciplinary offence and, therefore, there can be no charge brought by the SPL or SPFL on that basis.

 

JJ: Leaving the Old Co, New Co, Engine Room Subsidiary and lingual gymnastics aside for a moment, does it not behove the SPL/SPFL to report an errant club to the SFA where it can be tried for bringing the game into disrepute?

Question 1

Does Senior Counsel consider that it would be competent for the decisions of the LNS Commission as regards sanction to be reopened/revisited by the LNS Commission on the application of the SPFL Limited in the light of a material subsequent change of circumstances, viz the decision and/or reasoning of the Inner House being upheld by the Supreme Court, or is the LNS Commission functus as regards sanction notwithstanding any such change in circumstances? It is appreciated that such [re-opening] would give rise to complications as regards the £250,000 fine and the Arbitration.

I answer this question in the negative.

The Commission was appointed under the 2012 edition of the SPL Rules G1.1 and G1.2. I assume that the reference in Rule G7.3 to Rule D1.2 is a misprint and that it ought to refer to G1.2. On that assumption the decision of the Commission is “final and binding on the parties”, subject only to any appeal to the Scottish FA. It follows that the Commission is functus and cannot be asked to reopen its proceedings.

JJ: This can and will be challenged in The Court of Session. Money-in-hand seems to think that the SPFL statutes are legally inviolable. He will soon be disabused of this fallacy,
Question 2

Could an appeal against the sanction imposed by the LNS Commission on Oldco now be pursued, based on new material relevant to sanction i.e. the Supreme Court decision, and, if so, on what basis and with what prospects of success, to the Scottish FA Appeals Judicial Panel, the relevant appellate body? The time for appeal is ordinarily 5 Working Days but can be extended by the Appeal Tribunal.

I answer this question in the negative.

The Memorial refers to the time limits for an appeal in the 2015/16 Protocol (Document 2). Strictly speaking, one should consider the time limits in the contemporaneous code (i.e. that applying in 2012/3), but I do not consider that to be necessary here. An appeal against any order may be barred by acquiescence in the order: McCue v Scottish Daily Record & Sunday Mail 1998 SC 811; and AS v Murray (No. 2) 2007 SC 688. The Commission’s decision has been enforced against Newco through retention or set off and that would amount to acquiescence and would now bar any appeal.

JJ: Cutting through the heady bamboo of obfuscation, Money-in-hand is asserting that since the SPL offset the fine and costs of  an appeal against money due to Rangers Lite, they have acquiesced. I disagree. They could argue, in a court of law, that the LNS recommendations were predicated on several false premises.
Question 3.

Does Senior Counsel consider that it would now be competent for the SPFL Limited to initiate wholly new proceedings before a new Commission relying on breach of the same rules and regulations as was held established by the LNS Commission but seeking further sanctions and, if so, with what prospects of success?

I answer this question in the negative.

In Cadder v HMA 2011 SC (UKSC) 13, at §§58-62 and 98-103, Lords Hope and Rodger referred to the principle of legal certainty: final decisions determine the issue between the parties and the same issue cannot be the subject of successive claims between them. In crime that principle is expressed in the concept of double jeopardy and in civil litigation it underpins the plea of res judicata. In England it has been applied to disciplinary proceedings via the concept of ’cause of action estoppel’. I refer to R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England & Wales [2011] 2 AC 146. A complaint against Mr Coke-Wallis was dismissed by a tribunal and the Institute sought to present a reformulated, second complaint in respect of essentially the same matter and was held not to be entitled to do so. There are differences between the Scots Law concept of personal bar and the corresponding English concept of estoppel, and in particular there is no direct Scots Law equivalent of cause of action estoppel. Nonetheless, the rationale for the decision in that case lies in the principle of legal certainty that is recognised in Scots Law and it would bar a second complaint in respect of essentially the same matter.

For the avoidance of doubt, my answer proceeds on the hypothesis expressed in the question: the new proceedings rely on the same rules and regulations. My answer should not be understood to exclude a second disciplinary complaint in all circumstances. To take the examples of double jeopardy and res judicata, the objection is to successive disputes on essentially the same matter. A second case can proceed if there is a sufficient difference between the issues or matters concerned. What amounts to a ‘sufficient’ difference is a fact sensitive question.

JJ: This is where it gets interesting. If the SPFL have bolstered the rules, can they not be applied retrospectively or are they, as I suspect, lying through their back teeth.
Question 4.

There were no specific Rules in existence during the period of operation of the EBTs etc. Schemes by Oldco requiring Clubs or their owners to pay tax liabilities when they fell due; this continued to be the position up to 12 July 2012 when such Rules were adopted. This was shortly before Oldco ceased to be a shareholder in SPL Limited and Rangers FC ceased to be a member Club of the SPL on 3 August 2012. These are now SPFL Rules E20-E29. These SPFL Rules replaced the SPL Rules after Oldco ceased to be a shareholder in SPL Limited. They came into force on 27 June 2013 when Newco became a shareholder in SPFL Limited and Rangers FC a Club in the SPFL.

4.1 Is the reference to Club in SPFL Rules E20 to E29 and to the Tax Liability of such a Club, in context, a reference only to the Tax Liability of the owner and operator of a Club for the time being or does it extend to the Tax Liability of a former owner and operator of the same Club incurred at a time before SPFL Rules E20 to E29 were adopted? Reference is made to the definitions of “Club” and “Tax Liability” in SPFL Rule A4.

4.2 In the case of Rangers FC, it was a member of the SPL and it was owned and operated by Oldco until Rangers FC became owned and operated by Newco. It subsequently played in the SFL in Season 2012/2013. Oldco was a Member (shareholder in) of SPL Limited until 3 August 2012 but Newco was not a Member of SPL Limited (the same company as SPFL Limited) until 27 June 2013 when it became a Member of (shareholder in) SPL Limited (later renamed SPFL Limited) and Rangers FC became a member Club of the SPFL. Is the tax liability of Oldco arising from use by Oldco of EBTs etc. a “Tax Liability” of Rangers FC, as now a member Club of the SPFL, for the purposes of Rules E20 to E29 and if the Supreme Court, as the final appellate body, refused the appeal against the decision of the Inner House will the consequences of Rules E20 to E29 apply to Newco and Rangers FC?

There is scope for argument about question 4.1 but having given the matter considerable thought I prefer the view that SPFL Rules E20-29 apply to the combination of the club and its current owners. The ruling in §46 of the preliminary decision of the LNS Commission (Document 12) supports the proposition that there is a distinction between a ‘club’ and its owners and operators from time to time. That will reflect the fact that fans, and the sports minded general public, identify with the club and not necessarily with the owners. That having been said, the LNS Commission was not considering the proper interpretation of Rules E20-29. A ‘club’ is defined as “a Football club … which is, for the time being, eligible to participate in the League and, except where the context otherwise requires, includes the owner and operator of such club”. The key here is that Rangers FC is not a legal entity. The legal entity liable to tax was Oldco. That being so, the context requires us to read the ‘club’ as including the owner and operators for the time being (i.e. it current owners).

I would answer question 4.2 in the negative. My reasoning proceeds in stages.

Since the liability is that of Oldco, there can be no question of Newco being directly in breach of the rules.

Is it possible to hold Newco indirectly liable by virtue of the 5-Way Agreement? In other words, is it possible to hold Newco liable for a breach of the rules by Oldco? My view is no because that presupposes that Oldco was in breach of some SPL or SPFL rule. As I shall explain in the next paragraph, Oldco was not in breach of the SPL Rules and cannot be in breach of an SPFL rule.

Under Tax Law an assessment may be immediately due and payable notwithstanding that an appeal is pending. As far as HMRC is concerned, Oldco may have been under a liability to pay tax in respect of EBTs as at the date when the SPL first introduced rules on this matter (16 July 2012). However, the SPL Rules do not take such a hard line. Where a tax assessment is being ‘formally contested’ (i.e. appealed) it is not ‘due’ for the purposes of the SPL/SPFL Rules until the date of final determination of the claim (A6.32 in the July 2012 Rules; and E.28 in the current SPFL Rules).
(a) As at the date when Oldco ceased to be a member of the SPL (August 2012) the EBT tax was not ‘due’ for the purposes of the SPL Rules because it was ‘formally contested’. Oldco was not in breach of the SPL Rules at that date.

(b) Assuming that the Supreme Court upholds the assessment the tax will become ‘due’ as at the date of the Court’s decision but Oldco is no longer a member of the SPL/SPFL and therefore it cannot be in breach of the rules in force as at that future date.

JJ: I suggest that readers ignore Money-in-hand’s musings and focus on (b) which clearly proves my contention that senior counsel was engaged prior to the Supreme Court decision. Why were they so keen to be ahead of the narrative? One might think that they had something to hide other than their overwhelming incompetence.

Question 5

There are some SPFL Rules requiring conduct to be generally compliant with certain standards. These are, or at least were also included in the SPL Rules when Oldco was a shareholder in SPL Limited and Rangers FC was a member Club of the SPL (SPL A3.2 is now adjusted to what is now SPFL B2, note the repositioning of words, the following is as the Rules appeared in the SPL Rules when Rangers FC was a member Club of the SPL and Oldco was a Member of SPL Limited:

“A3.1 In all matters and transactions relating to the League and Company each Club shall behave towards each other Club and the Company with the utmost good faith.

A3.2 No Club, either by itself or its Club Officials, shall by any means whatsoever unfairly criticise, disparage, belittle or discredit any other Club, the Company or the League or in either case any such other Cub or the Company’s directors, officers, employees or agents (which shall, for the avoidance of doubt, exclude supporters).”

SPFL rule A3.2 has been construed so that “unfairly” only applies to “criticise” but this has been clarified by the word being repositioned in what is now SPFL Rule B2.

Assuming the Supreme Court affirms the decision of the Inner House, what would be the prospects of success in SPFL Limited pursuing Oldco and/or Newco and/or Rangers FC before a SPFL Commission relying on breach of one or both of Rules A3.1 and/or A3.2? To date A3.2 has been construed as applying to a Club committing an act of belittling etc. e.g. saying something negative about the League etc., as opposed to doing something which, as a consequence, brings discredit on the League, e.g. not discharging its tax liabilities.

I agree that Rule A3.2 is limited to the specified acts and is not to be construed as a more general prohibition against bringing the game in to disrepute. It is, accordingly, not relevant.

I doubt the prospects of a complaint under Rule A3.1 succeeding. Firstly, there can be no complaint against Newco. That company cannot be in breach of Rule A3.1 because this is an SPL Rule and Newco is not subject to those rules. With regard to Oldco and the club, it is open to question whether the implementation of a tax avoidance scheme is inconsistent with the utmost good faith because tax avoidance is lawful. If the Supreme Court upholds the decision of the Court of Session the result will be that the tax avoidance scheme will have failed but I doubt that it is appropriate to reinterpret past events in light of a court ruling that comes at least 4 years later. The mere fact that the scheme is ultimately held to have been ineffective does not mean that when the scheme was being applied the club and Oldco acted with less than the utmost good faith.

For completeness, I should deal with the possibility of a disrepute charge combining SPL Rule A7.1.1(b) (July 2012 edition) and Scottish FA Article 94.1. SPL Rule A7.1.1(b) obliged Oldco to comply with the Scottish FA Articles. Scottish FA Article 94.1 contains a specific provision relating to conduct that brings the game in to disrepute. Non-payment of tax can bring the game in to disrepute and therefore non-payment of tax would be covered by Article 94.1. Could the SPL have brought a charge against Oldco by a combination of these two rules? My answer is in the negative because in 2012 the disrepute provision was of limited scope. At that time (see Document 1) Scottish FA Article 94.1 only conferred jurisdiction on the Judicial Panel and it gave that tribunal discretion to select from a limited range of sanctions. The decision of Lord Glennie in Rangers Football Club PLC Petitioner 2012 SLT 1156 highlights the limitations of that Article. It does not establish a more general disciplinary obligation that can be enforced independently of the machinery specified in Article 94.1 and therefore it could not provide a platform to the SPL/SPFL for separate prosecution by them.

JJ: Think again Money-in-hand. When Rangers lied to HMRC about the existence of side letters/dual contracts no-one could ever accuse them of acting in good faith.

6 If there are reasonable prospects of success having regard to the answer to the question at 4.5, what are the prospects, having regard to the terms of clause 2.1 of the 5-Way Agreement and the SPL Side-Letter, of SPFL Limited recovering from Newco any financial sanction that might be imposed by an SPFL Commission on Oldco and/or Rangers FC for breach of the Rules referred to in question 4.5 in relation to operation of EBT etc. Schemes by Oldco?

8 Assuming an affirmative answer to 4.5, how should any charges/Issues be framed, against which party(ies) should they be brought and what categories of evidence would require to be adduced to establish same?

These do not arise in light of my answer to question 5.
Question 7

SPFL Rules J16.6, J16.7 and J16.13 comprise a variety of ‘sporting sanctions’ which might be imposed by a SPFL Commission for a breach of or failure to comply with SPFL Rules. Equivalent provisions were included in the SPL Rules. If there were a finding of breach of the SPL Rules by Oldco/Rangers FC with respect to the use of EBT etc. Schemes and/or non-payment of tax in connection with EBT etc. Schemes would it be competent for a SPFL Commission to:

(i) now impose sporting sanctions in relation to SPL competitions which took place during the period 1999-2010 e.g. the cancellation of the award of a Championship during that period;

(ii) now impose sporting sanctions on Rangers FC in relation to the League Cup in the period prior to 27 June 2013 in respect that prior to that date the competition was owned and operated by the SFL;

(iii) impose sporting sanctions in relation to SPFL Competitions taking place now and since 27 June 2013; and

(iv) in each of cases (i), (ii) and (iii) would such sporting sanctions be effective as against any one or more of Oldco, Newco and/or Rangers FC?

It is recognised that the effectiveness of a historical sporting sanction is not a straightforward concept. For present purposes, unless counsel advises otherwise, what might be considered effective in the case of a Championship or Cup might be an order that its award is withdrawn ab initio and a direction to Newco and Rangers FC that it does not represent that it was a Championship or Cup won by Rangers FC. It is understood that the historical awards of Championships or Cups are amongst the ‘assets’ of Oldco purportedly ‘sold’ to Newco, through the agency of the administrators by Oldco, in June 2012; so that Newco might now be sanctioned by SPFL if it did not cease to claim that such an award stood in the records of Rangers FC.

This also does not arise given my answers to the preceding questions.

JJ: This is risible nonsense. I have seen the bill of sale to Charles Green. It is itemised. Green’s counsel referred to it in court as a basket of assets. He specified that Rangers no longer exist. He did not buy their history. He could have inherited their history if the CVA had been successful. Perhaps one should take a closer look at your credentials as it’s unworthy of a QC to engage in idle speculation which has no basis in fact. ‘Purported’ by whom Money-in-hand? Neil Doncaster or some other agent lying through their back teeth?

Question 9

Senior Counsel will be aware that partners in BDO are the liquidators of Oldco. Once the Supreme Court has issued its decision in the appeal, it is likely that the liquidators will thereafter take steps to finalise the winding up of Oldco and to secure its dissolution. The latest reports of the Liquidators of Oldco suggest that the liquidation will be ongoing for a considerable period.

Senior Counsel is asked to advise on the legal implications for SPFL Limited and the SPFL of the dissolution of Oldco, particularly if disciplinary proceedings have been initiated against Oldco prior to dissolution but are not completed? Would SPFL Limited be able to prevent (by interdict or otherwise) such dissolution if such process was considered likely to prejudice those disciplinary proceedings?

Would dissolution of Oldco discharge Newco of its obligations to SPFL Limited as regards sanctions imposed on Oldco in terms of Clause 2.1 of the 5-Way Agreement?

25. The Court can, on an application, defer dissolution under section 205(5) of the Insolvency Act 1986.

JJ: I concur. There can be no dissolution until after the forthcoming crowdfunded Judicial Review.

 

JJ’s Summary

The SPFL is essentially a trade association of member clubs. These clubs lack the moral courage and integrity to act. I’m particularly disappointed with Ann Budge. Stewart Milne, who could never be accused of being the sharpest tool in the box, is so compromised by his Masonic leanings that impartial analysis on his part is conspicuous by its absence. A boycott of their respective clubs by the CSA and other supporters’ association, would be effective. If the only language they understand is in terms of filthy lucre, giving then less to play with would be a good first step.

I find it particularly galling that the SPFL hired a QC to forensically examine the minutiae of their regulations to support their desire ‘to move on.’ But why would any right thinking supporter move on when the SPFL’s retained counsel is making ludicrous claims about Charles Green buying Rangers’ history.  Is Money-in-hand oblivious of Charles Green’s counsel statements? Was he attempting to get Continuation Doncaster out of a bind?  There was no transfer of history transcation. Was it purported by anyone other than the 4th Estate? Is Money-in-hand so naive that he believes the tabloid press?

The forthcoming crowdfunded Judicial Review will sweep away Money-in-hand’s sandcastle assertions.

Money-in-hand of Axiom Associates lists the following as his areas of expertise:

Public Law

Judicial Review and Human Rights
Professional Liability
Planning

 

How did Ralph Topping arrive at the conclusion that Moynihan who has a conveyancing bent was the best mind to call on? From what I can gather this is his first rodeo. Was Rod McKenzie unavailable?

I apologise to readers in advance as this piece runs to more than 6,000 words. In my humble opinion it is worthy of your time. It will be available in my archive should one wish to read it more than once.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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31 thoughts on “Defending The Indefensible”

  1. Fantastic piece here JJ.
    It’s too late this season to stop Season book, but I have already e-mailed my club Celtic that I no longer wish to be included for tickets for any League or Scottish cup games.
    I game them my reasons why, I don’t expect a reply.
    Like thousands of fans, I love my club, and where possible would support them wherever I could get to a game, but this is a game changer. We must get together and fans of all clubs should do the same.
    Boycott League and Scottish cup games, I know it will be hard, but sometimes we need to make sacrifiecs for the greater good.
    I would love to be a fly on the wall when this takes off.
    I see there are a few blogs appearing about funding for QC’s, perhaps somebody..JJ.. should try and galvanise the mood to there being only 1 where we can donate to pay for it.
    This won’t go away

    Keep up the great work

    1. Oh, if only there were more supporters like yourself willing to make sacrifices for the greater good, then football in Scotland would Be in a far better place than it is now

  2. The plot thickens.
    The thought quickens…

    1 Hubris.
    2 Nemesis.
    3 Katharsis.

    It looks like stage 2 is about to begin.

  3. No need to apologise. The length is occasioned by the amount of material you needed to quote. In any event, Money-in-hand’s responses show that a law degree is not necessarily the sign of of a brilliant mind. The more convoluted the responses, trying to evade the obvious, the greater the number of hostages to fortune left behind – as your analyses clearly show.

    Any independent judicial review should drive a whole procession of coaches and horses through this farrago of lies. One thing puzzles me. The Nimmo Smith advice/opinion (for it was not any sort of legal ruling) contained, as I remember it, a caveat that the EBTs were considered lawful and the advice was given in that light. Since they have been shown to be tax evasion, hence unlawful, I would have expected a Nimmo Smith statement extricating/exculpating himself from this imbroglio.. as a matter of integrity I would have expected nothing less.

    1. As always, I stand to be corrected on matters of fact. I believe the caveat was clearly stated so confirmation might be nice from anyone. Perhaps ‘extricating/exculpating’ is a bit strong. Perhaps ‘correcting aspects of his opinion’ might be more accurate. Mea culpa. It’s what I would do in such a situation anyway.

      1. Looks like the line being taken is that ‘it wisnae a review and recommendation, it bound our hands’. It’s absolutely extracting the urine. What really gets my goat about this though is that it is absolutely within their rights to investigate further any malfeasance around such scams to determine whether or not it was done ‘in good faith’. They just don’t want to and would rather not know more so they can swerve responsibility easier.

        Also – why such a focus on punishment for avoiding tax? You could pick from appalling governance, intentionally hiding contractual information required to be filed, intentionally misleading the SFA about overdue tax payables, trading while insolvent or many others to go collecting evidence. Instead it’s a obfuscation job and a good scrub of the hands. Absolute charlatans!

  4. A well thought out piece. I agree we should be considering away day boycotts Sponsors and other affiliations to spfl/sfa are also fair game. Keep up the good work

  5. Your attention to detail is matched only by your eloquence.

    A quite stunning dissection of the QC case.

    If the governing bodies don’t have the power to control the fundamentals of the game in Scotland – and to ensure the INTEGRITY of the game – then what on earth IS their purpose.

    We have just witnessed the greatest scandal in the history of Scottish sport. Cheating, year after year at Rangers, under the stewardship of SDM. And the governing bodies are powerless to act?

    The governing bodies, the press and member clubs have treated the paying fans with utter contempt.

  6. Good grief JJ. Haven’t got time to read all at moment. How large is the bloody book going to be? Stay one step ahead, keep on keeping on..

  7. Fantastic JJ, truly Fantastic.

    A wonderful forensic analysis and dissection of a pile of merde (as they say in Lausanne).

    As all of that “legal advice” was sourced during Peter Lawwell’s recent tenure at the SPFL, I must beg the question, did Peter engage Gerry Moynihan? Was it Peter’s strategy to source an Irish catholic sounding named QC rather than a quintessentially Scottish Protestant name such as Donald Findlay? All part of the duping?

    Peter L certainly read all of the QCs tripe before switcheroo-ing to the SFA. Were there several versions produced and edited before this final approved copy? Did Peter assist with the editing?

    Who had the idea of releasing the SPFL statement on the day of a Celtic champions league night?

    Lord Nimmo-Smith (retired) should have stated he could not undertake his commission until the legal court cases were exhausted and final legal judgement brought. Was he therefore incompetent? Will LNS now come out and call for a review of his commission, given the Supreme Court guilt of Rangers? He now has a moral responsibility to do so. Who in the SMSM will doorstep LNS for some soundbites?

  8. Good work on recommending the rangerstaxcase on twitter. Funds are being raised at a quick rate on the gofundme page, so hopefully something will be put forward by the end of the week. I made a donation myself, as will not be going to any future SPL games.

  9. Some absolutely stellar work this week JJ. Usual donation made and a little extra in recognition of your efforts. 6KC472277N520****

    Stay safe pal

  10. Meanwhile back at the ranch:

    http://www.dailyrecord.co.uk/sport/football/football-news/well-fight-calls-rangers-title-10878275

    This is not the Review Celtic fc has called for. Celtic has invited the games authorities to revisit LNS and the finding EBTs conferred no Sporting Advantage. Which is clearly garbage.

    Too little too late Topping should push off quietly.

    Interestingly, in court it will be conveyancing Moynihan defending his SPFL legal position. Pushover comes to mind. Was this Peter L’s plan all along? The hidden Fenian hand?

  11. Celtic need to buy an £8m striker before the Rosenborg game. Given £50m is at stake, it’s a worthwhile gamble.

  12. Fans have 2 choices

    Number 1
    View Scottish football as paid for scripted entertainment a la WWF,
    where the team in the blue spandex pants always win.

    Number 2
    Walk away, taking their wallets with them.

    Not much of a choice but the tax-free principality of Ibrox has finally killed football as a sport in Scotland.

  13. JJ, James Forrest has just posted that there are bogus crowd funding sites being set up to “strip the titles” and that no official site has been set up. He advises that when it is it will be announced by him, yourself, Phil, Clumps etc. Something to make people aware of perhaps?

  14. What’s the difference between Ibrox and Monaco?

    One’s a predominantly catholic, tax avoiding haven and the other isn’t very catholic at all.

  15. JJ
    Just returned from sunnier climes but have been following your usual excellent analysis on a daily basis. Please keep up the good work and stay safe.
    Donation made-transaction no 7JC34733M67857xxxx

  16. Dear SPFL,

    The only Review that needs undertaking is a Judicial Review.

    Your lessons learned will be contained in the Judgement.

    Regards,
    Celtic

    I’d like to note that the original LNS Commission was contrived/ commissioned by the SPFL.

    The SFA agreed to be the appellant body.

    Surely LNS can now be appealed to the SFA? The SFA agreed to be the appellant body. Are they backing out of that now?

  17. I do hope that you are up for another award this year. Your articles just keep getting better and better with incredible forensics coupled with stunning eloquence.

    Your award winning site is also enhanced with terrific and knowledgeable contributors.

    You have set a very high bar.

    On a personal level, I would like to say THANK YOU. You continue to do an incredible job and provide us with treats. Scottish journalists, who read this site, must do so with envy. Most of them wouldn’t warrant a gig on this site of excellence.

  18. Send me an email if you need advice from an ex CCS top boy(in the glory days and more recently CSC (to keep my hand in)
    I can fight and fear no fat Billy big mouth
    Orange orders are full of fat wasters and uvf style executions just don’t happen unless it’s to rival scrotebag drug dealers operating in the NI shit holes they ‘control’ I honestly don’t get why you are scared stiff from what is most likely fake threats by mischief makers.
    WE HAVE YOUR BACK ,MAN UP AND GO PUBLIC
    You write a blog about sevco we all love it,it’s a bit of fun,I’m sorry mate but while you rally the Bhoys and give ideas for pub arguments to guys who maybe cannot normally put their feelings into words.in the grand scheme of things you’re insignificant like we all are,I can’t think for a minute why anyone would think you need taken out apart from you bumming yourself up .

    1. The prosaic fact of the matter is that you are not privy to the real dangers that I face. Dangers that led to the police visiting my parents. Dangers that resulted in a long standing family friend, who has access to police intelligence, informing me of three groups of individuals who had/have links to proscribed terrorist organisations. I’m pleased that you find my pieces humorous. I receive numerous endorsements in e-mails and comments which praise my work. Did you know that David Murray paid a $1m bribe to Lawrence Marlborough? No you did not. I have no need to ‘bum myself up’ but in the final analysis Ken if you don’t value what I write and find it insignificant then don’t read it.

  19. we must have the worst sports hax in the world. linfields finest tom norn ironish posted on the live match site last night that 0-0 wasnt great for cfc….. tom tit for your info, when you’ve been outplayed at home in euro comp and played without your two euro class strikers to be the only team going into the 2nd leg with the chance of scoring an away goal and forcing your opponents to beat you…… IS a great position to be in……. learn about the game before you think you can write about it……

    and gerry moyndering QC why do we need judicial process to stick billy nimmo’s words behind each rfc trophy won with EBT players…… AS EBT’S WERE ILLEGAL THIS TROPHY WAS GAINED BY UNFAIR SPORTING ADVANTAGE…….the lower league championships and petrofac cup won by trfc dont need billy nimmo’s words behind them for your information………..

  20. Great article but all I kept thinking while sticking with it was that, the QC was dealing in smoke and mirrors only, insulting us all the way!

    Newco, has nothing to do with this.

    Oldco now, have very little to do with it as they have all but gone. Yes, the cheating happened, of that there is no doubt but stripping titles is symbolic only to recognise what went on. The titles amassed can only decrease in number, they can’t ever win any more as they’re not allowed to compete these days.

    All the chat about Newco (Sevco in reality), is deflection, nothing more, nothing less and is designed to involve the Bears, it has NOTHING to do with them other than the bragging rights they cheated their way to for so long.

  21. Why has a statement of pure obfuscation been issued to either confuse or bore the normal punter while completely skirting around the point. LNS was not asked to investigate fully tax dodging (DOS) and at the time his findings although questionable were relevant as appeal was on going so had to be considered legal, when appeal fails and verdict is final all investigations must be revisited fully.
    Also to state that LNS findings are time barred is an offence to all people with a brain and to compare to the double jeopardy law is risible.

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