Why the SPFL Decision to Deduct Points from Clyde FC For An administrative Error is Raising Eyebrows In Social Media and Encouraging Dancing Around The Lord Nimmo Smith Elephant in the Main Stream.
It was reported in the news that Clyde have been deducted points for fielding an ineligible player in two matches, news that has raised supporter eyebrows when a comparison is made with SFA and the then SPL treatment of ten years of imperfect players registration by the then Rangers FC and caused a bit of dancing in main stream media around the LNS Elephant.
When the existence of side letters that formed part of a players remuneration contract was revealed in March 2012, it prompted an investigation by the SPL into the eligibility to play football of players who had been provided side letters by Rangers FC that indemnified them from any loss should the ebt schemes , through which their main remuneration flowed, be deemed unlawful by HMRC.
The issue for the SPL then was were those players properly registered under SPL rules?
The common belief held until then being that incorrect registration made a player ineligible to play and any game an incorrectly registered player played in was void:
- Presumably on the basis the errant club had gained an on field advantage from incorrect registration and/or
- to act as a deterrent to clubs to deliberately conceal full registration details from the football authorities.
The result of games in which such a player played was treated as a 0-3 defeat and the 4 points gained deducted and 3 points each granted to their opponents.
To get answers the SPL, after seeking evidence of side letters accompanying any type of EBT from Rangers FC, established the Lord Nimmo Smith (LNS) Commission to identify if a breach of registration rules had occurred and what were the consequences in sanction terms.
It is interesting therefore to compare the following from the LNS Commission in respect of sanctions against Rangers FC for a breach covering ten years of incorrect registration with the sanctions against both Clyde FC over 2 games and Hearts over one game, based on what Lord Nimmo Smith said in his findings at 107 and 108 of his Decision.
Findings that 7 years later have caused social media eyebrows to raise to Roger Moore levels because of apparent contradictions arising from the justifications given for a financial sanction only in the LNS Decision.
LNS Decision basis 107 /108
We nevertheless take a serious view of a breach of rules intended to promote sporting
integrity. Greater financial transparency serves to prevent financial irregularities. There is insufficient evidence before us to enable us to draw any conclusion as to exactly how the senior management of Oldco came to the conclusion that the EBT arrangements did not require to be disclosed to the SPL or the SFA. In our view, the apparent assumption both that the side-letter arrangements were entirely discretionary, and that they did not form part of any player’s contractual entitlement, was seriously misconceived. Over the years, the EBT payments disclosed in Oldco’s accounts were very substantial; at their height, during the year to 30 June2006, they amounted to more than £9 million, against £16.7 million being that year’s figure for wages and salaries. There is no evidence that the Board of Directors of Oldco took any steps to obtain proper external legal or accountancy advice to the Board as to the risks inherent in agreeing to pay players through the EBT arrangements without disclosure to the football authorities. The directors of Oldco must bear a heavy responsibility for this. While there is no question of dishonesty, individual or corporate, we nevertheless take the view that the nondisclosure must be regarded as deliberate, in the sense that a decision was taken that the sideletters need not be or should not be disclosed.
No steps were taken to check, even on a hypothetical basis, the validity of that assumption with the SPL or the SFA. The evidence of Mr Odam (cited at paragraph  above) clearly indicates a view amongst the management of Oldco that it might have been detrimental to the desired tax treatment of the payments being made by Oldco to have disclosed the existence of the side-letters to the football authorities.
 Given the seriousness, extent and duration of the non-disclosure, we have concluded that nothing less than a substantial financial penalty on Oldco will suffice. Although we are well aware that, as Oldco is in liquidation with an apparently massive deficiency for creditors (even leaving aside a possible reversal of the Tax Tribunal decision on appeal), in practice any fine is likely to be substantially irrecoverable and to the extent that it is recovered the cost will be borne by the creditors of Oldco, we nevertheless think it essential to mark the seriousness of the contraventions with a large financial penalty. Since Issues 1 to 3 relate to a single course of conduct, a single overall fine is appropriate. Taking into account these considerations, we have decided to impose a fine of £250,000 on Oldco.
Compare this with the Clyde FC case where ineligibility was admitted from the outset so there was no question of dishonesty yet they received a sporting sanction in form of a points deduction, whilst Rangers avoided such a fate on account of the Bryson interpretation that meant that a player whilst not fully and correctly registered was nevertheless eligible to play until the errors were discovered.
What Clyde FC said in their defence of their error was
“We are deeply disappointed with the outcome of yesterday’s hearing as, despite the fact that we admitted the breach of the SPFL rules, we feel that we put forward a robust and cogent case as part of our defence. The case concerned a player, Declan Fitzpatrick, who has been registered with Clyde since September 2018 and was recently on loan at Clydebank.
“The breach occurred as a result of a genuine oversight and a gap in the administrative procedures. This error was not the fault of any individual.
“We feel that the sanction imposed was unprecedentedly harsh.
The result of Clyde honestly admitting to an administrative error was a twin football and sporting sanction of £1500 and 4 points deduction for being honest.
Hearts had a similar administrative error defence when they said:
“ Due to an administrative error on the club’s part at the end of the January transfer window, Andrew Irving entered the field of play in the 65th minute as an unregistered player. Andrew was given an extension contract in January, 2018 and his extension paperwork was all properly completed and in order. However, it was not loaded onto the online SFA registration system at the time. His official registration, therefore, ran out on 9th June, 2018. Unfortunately, this was not picked up in advance of last night’s game.”
Hearts, as a result of their honesty, were deducted two points and fined £10k.
Yet in the case of Rangers FC, LNS judged the decision to withhold side letters was deliberate and because, as a result of non-disclosures of evidence to the contrary, he was able to decide there was no question of dishonesty.
The size of the penalty £250k recognised the longevity of what he was able to treat as an administrative error, but because LNS treated it as such and because the SFA advised that a flawed registration, apparently even if deliberate dishonesty was the reason for that flaw, was accepted by a blindsided SFA, then a player was eligible to play and so no points deduction sanction was applied.
The question of the validity of a deliberate and dishonest registration was never address by LNS although he did say in para 88 of his decision:
“There may be extreme cases in which there is such a fundamental defect that the registration of a player must be treated as having been invalid from the outset. But in the kind of situation that we are dealing with here we are satisfied that the registration of the Specified Players with the SPL was valid from the outset, and accordingly that they were eligible to play in official matches.”
What exactly constitutes an extreme case?
Had LNS seen the HMRC letter of 23 February 2011 or the HMRC letter of 20th May 2011 (that incidentally should have been in the SFA’s hands immediately on receipt under UEFA FFP rules before UEFA were notified of clubs granted a UEFA licence in 2011) would he have been duty bound to consider if a fundamental defect had taken place?
In those letters HMRC justified their pursuit of the wee tax case liability of £2.8M under their Extended Limit rules on basis that when they sought evidence of side letters for DOS ebts in April 2005, Rangers had responded dishonestly and that on sight of that response Rangers QC Andrew Thornhill advised them in early March 2011 not to appeal.
Does that evidence, which was not disclosed by Rangers Administrators Duff and Phelps to then SPL lawyers in April 2012, not point to such a fundamental defect in registration that a player’s registration should be regarded as being invalid from the outset?
However regardless of the rights or wrongs in the construction of the LNS Commission and subsequent Decision based on that construction, the salient point is that Clyde FC and Hearts were deducted 4 points and 2 points respectively, after both admitted to an honest mistake in their registration process and both received twin financial and sporting sanctions. Why Hearts were not deducted the 3 points gained as a consequence of beating Cove Rangers is unclear, although a 3 point reversal would have made qualification out of the group impossible.
Hearts were able to overcome the effect of the two-point deduction and still qualify for League Cup final stages so are unlikely to want to revisit the SPFL decision of points deducted.
However a £10k fine for an honest mistake in one game might be worth appealing on the basis that if a £250k fine for every match Rangers fielded incorrectly registered players was apt in the circumstances that LNS was led to believe existed that on a pro rate back of a fag packet basis this amounts to £695 per game over 10 seasons of 36 games a season, a £10k fine is excessive but would Anne Budge budge?
Anyhoo lets compare the three cases to highlight why eyebrows were raised.
- honest mistake admitted – financial sanction and points deduction
- honest mistake admitted – financial sanction and points deduction
- Deliberate decision taken not to fully register a player’s details with SFA.
- Evidence of dishonest motivation to not fully registering a player registration concealed by Rangers
- financial penalty but no points deduction.
It was always going to be the case that what took place in 2012 under the cloak of the Lord Nimmo Smith Commission would unravel in time as it set a precedent that flew in the face of sporting integrity principles and a common held belief that incorrect registrations attracted a sporting sanction, a belief rekindled by the recent decision to deduct points from Clyde FC.
Perhaps there is a rules based difference that justifies the LNS Decision that can be used by the SFA to explain to the common man why no sporting sanction was applied, but what the common man will ask is it more or less likely that in light of the LNS Decision clubs will be honest with the SFA in future if a player falls foul of the registration process or will appeal on the basis that LNS set a precedent against which all clubs should be judged and then sanctioned.
In a nutshell if an honest mistake is admitted how can a points deduction be justified unless the SFA can show the mistake was a deliberate one carried out by a club to give them a sporting advantage.
The LNS Commission was always a can of worms waiting to be opened which is probably why the SFA rejected the SPFL’s request of September 2017 to revisit the SFA handing of Rangers use of ebts and side letters. Have the SFA introduced a moral hazard in the form of the LNS Decision that will continue to undermine the integrity of Scottish football as long as they allow it to?
Oh what a tangled web we weave eh?
370 thoughts on “One, er, Two Rules to Rule Them All”
Push or punch??
New “Res 12”, website.
Re the incidents at the game on Sunday.
To use goading on the part of Scott Brown for what happened is pathetic in my view. I accept he is the type of player who gets under the skin of opponents, and other fans, but he is hardly alone in that. When he was a Hibs player he annoyed the hell out of me, but what set of fans genuinely doesn't want a bit of that in their team? I am really glad to have him at Celtic.
Brown's slight touch on Morelos is the type of wee dig we see from many players every week without so much as an afterthought. What we don't see is a forearm smash in response every week. Also, what Brown did with Kent when the Referee had not even tried to re-start the game was similar to what we often witness, but Kent's violent reaction most certainly was not.
Then at the end the inability by Andy Halliday to exercise any form of self respect or control was clearly the catalyst for what happened.
Goading is part of the game, and the Rangers players were guilty of it on Sunday too when they scored. Also, ask any Celtic fan sitting near the away dug out on Sunday and ask if any goading took place from within it when Rangers equalised. In truth they were probably only giving back what they had been subjected to for much of the game. It has been notable to me in games against Hearts and Aberdeen in particular this year, that the Rangers players went out their way to goad the opposition fans when they scored, but notably none of the opposition players saw it as a reason to start a fight.
Morelos, Halliday and Kent acted like street corner thugs on Sunday and their actions don't speak well of them at all. In terms of the fall out I suspect that has more to do with the cold light of day realisation that Stevie G and his 55 Express has derailed and is lying at the side of the tracks, and I include many of the media in that, as well as the pathetic individual(s) who made a Police complaint about Scott Brown. If you dish it out you have to take it. It's one of the oldest sayings in the book, but it seems lost down Ibrox way.
If they really want someone to blame for where they are look no further than David Murray and the succession of crooks and shysters who have held the fort since. Had Murray not implemented his grand scheme of tax evasion it is highly unlikely they would be staring at an ever increasing possibility of Celtic getting ten in a row. Perhaps driving away genuine businessmen like Bill Miller and Mike Ashley in the past was not the wisest move either. You reap what you sow!
A few weeks ago someone on here asked for an update on "Resolution 12", to which Auldhead replied "When it happens, you won't miss it" or words to that effect.
The Resolution 12 website that you linked to is, or should be, a game changer.
In the RTC days, the correct response would have been either "Wow, just Wow" or "Chapeau".
Obviously I don't know whether RTC is in any way connected to the Resolution 12 group but, if not, he will surely be delighted with the forensic presentation they have produced.
Well done to all involved.
Now, let's see what the SMSM make of it, eh. (Stop laughing at the back!!!)
Cluster One 3rd April 2019 at 06:58
"..New “Res 12”, website.
Thank you for that important link, Cluster one.
I have said before that I was not and am not one of the 'Res 12' group, but I am wholeheartedly behind them.
The authors of this thoroughly researched and excellently drafted and presented account of what the Res12 issue is all about are to be congratulated and applauded.
No one reading that account could honestly assert that there are not major questions to be asked of the behaviour of the now dead RFC , its owners and directors, and of the SFA.
One can very well understand the anger many people feel at:
the point blank refusal by the SFA to have the matter fully and independently investigated, and the suspicion that this raises as indicating that they fear what may emerge from an investigation
the meek acceptance by Celtic plc that they and their shareholders may have been cheated out of millions, and their readiness to kick a shareholders' AGM-resolution into the long grass rather than insist on a full investigation .
And one can very well understand why a reference to the COPFS/Police Scotland seeking a police investigation into criminality is being held as a backstop.
I am quite ready to believe that the apparent success of the dirty work involved in the granting of the UEFA licence to an unentitled club encouraged black hearts and dishonest minds some years later to believe, smugly, that they could get away with the utterly disgraceful 5-Way Agreement.
Scottish Football supporters owe it to themselves to try to save Football in Scotland by getting to the truth. And a thorough reading of https://www.res12.uk/ will convince them of that fact.
A little bit of speculation on my part:
TRFC will appeal Kent's notice of Complaint today.
Tomorrow, they will represent their defence at a hearing. The word 'provocation' will be used unsparingly. The Judicial Panel, having read all the Level Sinko froth over the last few days, will refer to the JPP Section 11.4 & particularly 126.96.36.199:
188.8.131.52 The existence of provocation and whether the Party acted in retaliation and/or self defence.
The Notice of Complaint will be rescinded. Level Sinko will get a bonus. TRFC will rejoice Real football fans will shake their heads, both at the injustice of the findings, but also in embarrassment.
JJ at 11:41
A bit negative ? I see that Section 11.4 is headed Determination of Sanction. BBC is pushing for 2 games, I'm hoping for more.
On the subject of perceived provocation please see attached link which I hope I have managed to post. How can any right minded individual believe that racism or sectarianism is an acceptable reaction to scoring a goal or winning a game or celebrating either or both. Is it the same mindset which leads to individual violence against innocent fans celebrating their team’s success. I do have to wonder.
Bill1903 3rd April 2019 at 06:32
Push or punch??
Well, that's the clearest view so far of the incident.
And regardless of whether it's a push or a punch, whether Kent was provoked or not…
TRFC is missing a hugely significant point here.
After Kent's contact with Brown's face, Brown could have copied Morelos' antics by rolling along the deck holding his face – as though taken out by a sniper.
That would have guaranteed an ever bigger melee.
Brown got up quickly and rightly protested about this punch.
If TRFC has the audacity to appeal Kent's red card, it tells any neutral everything you need to know about that club's attitude to rules and civilised, acceptable behaviour – both on and off the pitch!
Says it all really
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