Some, whose opinions I respect, have questioned the wisdom of my position on Lord Nimmo Smith’s report, I believe that it is unsound and not tenable. I am fully aware that it is one of the two fig leafs that we cling to as others attempt to strip us bare. The prospect of a BDO appeal to the Supreme Court is built on sand. Whether we like it or not, three venerable Law Lords have had the final word on the use of Employment Benefit Trusts. Their conclusions are binding.The report produced by the LNS commission was not legally binding.
In many ways the LNS report was a boon to Rangers. A fine, with no points deduction, was an inordinately favorable result. Despite this a succession of Rangers boards have refused to pay the £250,000 fine and costs. The £250,000 fig leaf was too rich for the blood of the underfunded King administration. Should the SPFL decide to engage in a process of further consideration, the tariff of penalties may well be exacerbated by the findings of the distinguished Law Lords
My desire for a new report was to expose King, Murray and the SFA (who approved both) to further scrutiny. The chances of this are slim unless a majority of the SPFL board demand it. Mr Topping and Mr Doncaster will do their utmost to keep a lid on resentment. The view of the fans of Scottish Football will not be solicited. The fans held their respective boards over a barrel to oppose the latest iteration of Rangers being granted an SPL share. The season cards have been paid for. The fans can inveigh to their heart’s content, but they cannot compel action at this point in time.
In another article I outlined a scenario where a new report could be commissioned by the SPFL and subsequently vetoed by the SFA. A report set up to fail. Some on Twitter argued that this was a cynical view. However if you look at the roles of some of the key contributors to the LNS report, you will find a rationale for cynicism.
The underlying premise of the LNS report was that any recommendations would be accepted and applied by the SPL. with a right of appeal to the SFA. The report would be independent of both governing bodies, and that the SPL and SFA would be at arms’ length from each other.
Sandy Bryson chose to drive a horse and coaches through these established precepts. Mr Bryson, as the head of registration at the SFA, should not have been presenting any documentary evidence to an SPL commission. Any appeal in regard to registration irregularities would have led directly to his office at the SFA. Mr Bryson chose to be a very ineffective poacher and a redundant gamekeeper. He ensured that there would be no rabbits in Lord Nimmo Smith’s snares.
Prior to proceeding, it would be instructive to look at Mr Bryson’s official SFA remit. As the head of the registrations department he would be the ultimate authority in the review of a club’s annual returns to the SFA, which should contain all contractual details between club and players.
He would have been mindful of the rules and regulations of the SFA, including:
Rule D1.13: A Club must, as a condition of Registration and for a Player to be eligible to Play in Official Matches, deliver the executed originals of all Contracts of Service and amendments and/or extensions to Contracts of Service and all other agreements providing for payment, other than for reimbursement of expenses actually incurred, between that Club and Player, to the Secretary, within fourteen days of such Contract of Service or other agreement being entered into, amended and/or, as the case may be, extended.
I cannot overemphasize the significance of this rule, and that has been proven conclusively in court, Rangers flagrant disregard for this rule. This rule is not optional. It is compulsory. Should any club disregard this rule, the ultimate sanction is having their SFA licence withdrawn.
Mr Bryson was also responsible for the issue of UEFA licences which behoves him to diligently review all contracts and agreements and to conduct an annual audit of the contracts of all players, managers and directors prior to the issue of a licence.
However Mr Bryson was somewhat compromised when former Chief Executive, Martin Bain, sued RFC plc for £900,000 damages in 2011. It was revealed to the court that Mr Bain had ordered the shredding of his own contract and other documents for fear of leaving himself exposed to the rule of law. This would be the same contract that Mr Bryson should have reviewed at the SFA prior to granting a UEFA licence.
Despite all of these inspections and compliance tests, Mr Bryson’s department claimed to be oblivious to the subterfuge at Rangers. Some might suggest that there was a singular lack of governance in Mr Bryson’s department and that he went out of his way to conceal his department’s incompetence apropos to the LNS report. It has also been suggested that the audits and tests were not rigorously applied to Rangers and that corners were cut, and details glossed over, to accommodate the Establishment club.
Lord Nimmo Smith’s report castigated the Rangers board. He concluded that year after year the secretary of the club, Campbell Ogilvie. chose not to disclose the contracts and accompanying documents, which were addenda to the contracts, to the SFA. Heidi Poon was equally scornful of the RFC executives in her withering judgement of some 80 pages in the First Tier Tribunal.
The conclusions of two eminent judges did not preclude the appointment of two individuals who were complicit in the disclosure transgressions. As non-executive directors in RFC plc, Mr King and Mr Murray had a duty to comply with Rule D1.13. The SFA set aside its own rules to pass them both as ‘fit and proper.’
The most surprising omission in the LNS report was that all former directors of the club were not punished for their actions, which were deemed to be tantamount to match-fixing. The SFA threw the book at Craig Whyte. He was an easy target. They obligingly overlooked the involvement of Campbell Ogilvie, Andrew Dickson and David Murray. The SFA did not reproach Martin Bain for shredding his incriminating contract.
Mr Bryson advised LNS that the players in receipt of EBT were ‘registered imperfectly’ but ‘eligible.’ to play. Please revert to rule D1.13. I would contend that Mr Bryson’s interpretation of the rule was a self-serving perversion of said rule. I posit that even if they were imperfectly registered, they were not eligible as key parts of their contract had not been disclosed and the clause clearly states that to be registered and eligible those contracts must be disclosed.
The side letters, which former directors denied all knowledge of, were not disclosed.
There was a a deliberate and sustained breach of the rules which resulted in a £47m pecuniary advantage over a ten year period. Despite this Lord Nimmo Smith arrived at the surprising conclusion that there was no competitive advantage
It would appear that the registration interpretations of Mr Bryson is at odds with the arguments presented by UEFA apropos FC Sion.The SFA unequivocally state that clubs and players will be bound by all rules and regulations of the SFA, UEFA, FIFA and by the findings of the Court of Arbitration for Sport. Mr Bryson’s unique interpretation of rule D1.13 is the Achilles heel of the LNS report. The UEFA precedent would suggest that the LNS report is fatally flawed.
In the final analysis, LNS stated that RFC plc executives were able to breach the rules to protect their own tax efficiency interests and that the checks and balances within Scottish Football Governance were ill-equipped to uncover their subterfuge and to stop them. Two separate licensing functions and a supposed compliance audit each and every year were not fit for purpose.
Reassessing fixtures, stripping titles and other considerations are far less significant than ensuring that those who were involved in creating this tax scam and those who were involved in covering it up, bargaining it away, or who simply failed to take the correct action for the sake of expediency, are removed from football for good.