The Lasting Damage to the Integrity of Scottish Football.

DONCASTER & McKENIE

BY AULDHEID

 

You are Rod McKenzie a lawyer working for Harper Mcleod, a law firm that provided legal services to the SPL in 2011 and continue to do so today to the SPFL still using Mr Mckenzie’s expertise in football legalities.

It is a reasonably quiet day on 5th October 2011 and you are contacted by Gary Withey who is Rangers FC Company Secretary and was Craig Whyte’s takeover lawyer with Collyer Bristow before and after Craig Whyte’s took over Rangers on 6th May 2011.

A conversation takes place, possibly by telephone and some of the context can be discerned from an e mail recording the crux of the meeting which was given to Craig Whyte on the 6th October.

That e mail which can be read here tells us that Rod McKenzie briefed the SPL CEO (Neil Doncaster) on Withey’s call and that the SPL had an appetite to pursue a particular route for which an outline paper is required setting out the process to achieve the discussed end.

As well as the structure of the proposed transactions (whatever they were) the paper would also cover compliance with SPL Membership Criteria, ground registration and player registration both with the SFA and SPL.

 

Withey’s summing up was that there was a willingness and appetite at the SPL to assist.

 

Given this took place 132 days before Rangers entered administration on 14th February 2012, it is not beyond the furthest bounds of credibility that the discussion on the 5th October was to brief the SPL of the precarious state of Rangers finances (PAYE and VAT had stopped being paid the month before the discussion, although Withey later denied knowing that.) that an insolvency event was inevitable and contingency plans needed to be considered..

 

This heads up gives the SPL and the SFA a good start on social media in which to prepare for possible insolvency and examine the rules that have to be addressed to achieve the desired destination of the route that Withey and McKenzie discussed.

 

(A route which after various twist and turns saw Rangers FC enter administration and either Sevco 5088 or Sevco Scotland (who knows) apply for a Full SFA Membership of the SFA using the discretionary power of the ill titled SFA Article 14 “ Prohibition of Transfer of Membership” to transfer the SFA membership that belonged to Rangers FC, who lost it on 3 August 2012 after the SPL share they held in the SPL that entitled Rangers to a Full SFA Membership, was transferred to Dundee.

 

Since an SFA Membership could obviously not be held by two different clubs at the same time, a ultra vires Conditional Membership was created on 29th July 2012 to allow Sevco to play Brechin as an SFA Member called The Rangers until The Rangers became a Full SFA Member on 3 August.

 

(ultra vires just means the SFA made up the new category of SFA Membership on the spot with no rules to justify it – see wit can be done with rules if the will exists.)

 

Roll on into the 26th February 2012 and it becomes public knowledge that in order to use the ebts that were the reason Rangers were facing a multimillion demand for back tax, in what has become known as The Big Tax case, Rangers had used side letters not reported to the SPL or SFA. This was seized upon because under the then understanding of registration rules, such a failure of registration made a player ineligible to play and a 3 points deduction for each game an ineligible player had taken part would be the consequence. (Had we kent then wit we ken noo)

 

It is now arguable perhaps with hindsight that a strategical error of judgement was made at this point. Rather than wait for the outcome of the First Tier Tribunal dealing with HMRC’s back tax claim and Rangers Appeal of it to complete its course all the way to the Supreme Court (and although who knew then it would take 5 years, nevertheless there was an inherent flaw in taking the Registration rule breach approach as at that point, using ebts as Rangers had done was not illegal. This was a then fact that allowed Lord Nimmo Smith to decide as he did, which is something that he could not possibly have done had patience been exercised. The idea that the consequences of ineligibility was a three points deduction understandably took hold if that meant Rangers being Stripped of Titles.

 

In early March 2012 after the SFA and SPL had decided that the SPL should lead and leave the SFA as a court of appeal in case Rangers in administration appealed the outcome of the investigation, Rod McKenzie was directed by the SPL to investigate whether Rangers in using ebts with side letters had breached SFA/SPL registration rules and to what extent. The result of McKenzie’s investigation was the Terms of Reference that set up The LNS Commission that only looked at registration breaches and the minor failure by Duff and Phelps to provide requested documents timeously.

In the event there was no appeal of The Commission Decision because LNS was able to state:

 

“ Nor is it a breach of SPL or SFA Rules for a club to arrange its affairs – within the lawso as to minimise its tax liabilities. The Tax Tribunal has held (subject to appeal) that Oldco was acting within the law in setting up and operating the EBT scheme. The SPL presented no argument to challenge the decision of the majority of the Tax Tribunal and Mr McKenzie stated expressly that for all purposes of this Commission’s Inquiry and Determination the SPL accepted that decision as it stood, without regard to any possible appeal by HMRC. Accordingly, we proceed on the basis that the EBT arrangements were lawful.

 

And

 

  • “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 side letters need not be or should not be disclosed”

 

That Decision based on the two bullets above has been shown to be unsound with the passage of time because :

 

  • Rangers did not in fact arrange their tax affairs within the law according to the highest court in the land the Supreme Court

 

and

 

  • Before 31st March 2011 Rangers FC had accepted a £2.8m liability for the tax due on the first EBT arrangement from 1999 to 2001/02 (the Discount Option Scheme – known as the wee tax case- found to be an unlawful means of paying remuneration without taxing it, by a separate First Tier Tribunal in October 2010) That liability was accepted because HMRC could show that when asked about the existence of side letters for the two players with DOS ebts who had side letters, denied there was any. At the same time in April 2005, 29 other player files held side letters under the Big Tax Case scheme in respect of players then at the club or who had left but were paid by ebt.

 

Dishonesty does not have to be an outright lie, it just as easily means not telling the truth by silence. This denial was not a deliberate error of judgement honestly made, it was a lie in response to a specific request, a decision to do so taken at both a corporate and individual level. Ian McMillan of MIH supplied the untruthful answer to HMRC, Andrew Dickson of Rangers was then responsible for the administration of ebt contracts and the paperwork held in player files that HMRC were told did not exist.

 

Since the Supreme Court, the SFA have refused to revisit the LNS Decision despite its obvious flaw in respect of the lawfulness of ebts as Rangers used them or acknowledged that there is evidence of dishonesty at play in 2005 which leads to the question why? Why refuse to revisit an unsound judgement? Who is being protected and at what cost to trust in them to govern?

 

Why were Rangers under Sir David Murray when HMRC were lied to in 2005 or under Craig Whyte from 6th May 2011, never charged with dishonesty when evidence of it existed. The fact this question has never been addressed is why Rangers are perceived as a club who cheated Scottish football by most non Rangers supporting supporters in Scotland. The SFA/SPFL are also perceived by their refusal to revisit as covering up what really happened and so untrustworthy to govern as currently constituted..

 

Why the focus of LNS on the player registration rules and not on dishonesty? Its not as if evidence of it did not exist during 2011 in the form of the letters from HMRC to Rangers accusing them of negligent or fraudulent behaviour.

 

(This latter charge also appears to apply to Rangers FC UEFA Licence application in March 2011, which Andrew Dickson, as a member of the SFA Licensing Committee, was also involved in at the March granting phase followed by Craig Whyte’s involvement in the June and September phases in 2011. This is finally being investigated by The SFA Compliance Officer after 3 years of prevarication).

 

Returning to the lasting damage to the game’s integrity caused by the LNS premature judgement lets look now at how Neil Doncaster’s appetite for a solution and Rod Mckenzie acting on Doncaster instructions manifested itself.

 

Doncaster who is financially rewarded for his performance as SPFL CEO had a personal interest in not losing one of the league’s biggest gambling chips when it came to negotiating TV deals – Rangers FC. They simply could not be allowed to die with an impact on his wages, so he hijacked a change in SPL rules made in 2005 that introduced for the first time the concept of an owner and an operator:

On 21 July 2005 the SPL AGM changed the Articles re clubs to read as follows:

Club means the undertaking of an association football club which is, for the time being, entitled, in accordance with the Rules, to participate in the League;

…… and under Share Capital

A Share may only be issued, allotted, transferred to or held by a person who is the owner and operator of a Club and if a Member shall cease to be the owner and operator of a Club, then such Member shall cease to be entitled to hold a Share.

Why this change was necessary is covered in detail at https://www.celticquicknews.co.uk/neil-doncaster-and-the-birth-of-monster-myths/ but it was certainly not for the purposes of conferring immortality. In fact in applying that interpretation to the 2005 rule change and then introducing it into the Five Way Agreement as Doncaster and McKenzie did, Doncaster changed the SPFL into a franchise. That might be a good thing, it may not, but on whose authority, was such a significant change agreed? The SPL Board? If it was, should such a decision lie with them alone without some interaction with clubs and their supporters about the consequences.?

Thus both Doncaster and Rod McKenzie, two lawyers who remember had at least 132 days of forewarning of Ranger’s difficulties to prepare their route, saw on 26th February 2012 their plans being blown away by the revelation that Rangers had used side letters, which is where the existence of HMRC letters of February and May 2011 become significant.

 

If Rangers had complied as required by UEFA FFP Article 56 ( c ) then the letter from HMRC dated 20th May 2011, which repeated the charges of negligence or fraud made in a HMRC February letter should have been put in in the possession of the SFA immediately it was received by Rangers. Did the SFA have it? Did they inform the SPL when it was decided that they should take the lead on investigating Rangers use of side letters? Was the existence of that letter the reason why the SFA stepped back from commissioning LNS?

 

Regardless of answers, both letters of February and May 2011 should have been provided to Rod Mckenzie after he wrote to Rangers Administrators Duff and Phelps on 15 March 2012 requesting all documentation relating to all ebts from July 1998.

 

So again, the question is why was no charge of dishonesty ever made against Rangers FC? Why no reference to the wee tax bill and failure to pay it even by the SFA Judicial Panel of April 2012 that charged Craig Whyte alone of bringing the game into disrepute, but not Rangers under Sir David Murray, of dishonesty?

 

Two of the arguments for not stripping titles that fuelled the LNS Commission were put forward by Michael Grant the Times Scottish football correspondent in November 2015

 

https://www.thetimes.co.uk/article/the-clamour-to-strip-rangers-is-wrong-hrm589tkjvr

 

where he said:

 

To cheat, don’t you have to set out to deliberately break the rules? Don’t you have to know something is forbidden and say, to hell with it, this is what we’re doing anyway? Ben Johnson, Lance Armstrong, the Russian athletes and their federation: deliberate, sustained, systematic corruption and lying. Rangers using/misuing EBTs isn’t in that ball park.”

 

Ten years of systemic deliberate concealment of documentation has to be a huge ball park and when you add the deliberate decision to lie to HMRC about documents you were not prepared to inform the football authorities about, this more than suggests that there was an attitude of to hell with it and we are doing it anyway, catch us if you can.

 

Michael also repeats the legality of ebts argument discussed earlier and in fact quotes the same justification from LNS about arranging tax affairs within the law now flawed but he also says

 

But Nimmo-Smith did not act on using EBTs to pay players because it was not covered in the SPL rules (non-disclosure of “side-letters” was and Rangers were fined £250,000 for their shifty, dubious behavior on that). His verdict was not based on the actual EBT use or misuse and, for what it’s worth, he doubtless he assumed that HMRC (losing its case at the time) would continue its appeal. So what exactly is that people are calling for now? That Rangers be stripped of titles for avoiding tax between 2001 and 2010 even though that itself broke no football rules at the time? How does that work, exactly? Should those rules and punishment be drawn up now?”

 

Michael would have a point if no football rules in existence were broken but whilst there are no football rules about using ebts regardless of their status, there is one rule that can be found in the SFA Handbook of 2011/12 that replaced the SFA Articles dating back to 26th September 1903, where the then SFA Articles stated one of the SFA’s aims was:

 

 

“To promote and support the principles of fair play by encouraging everyone involved in football to read understand and accept the Laws of The Game, to show respect to opponents and to behave in a sporting manner both on and off the field of play.”

 

 

This became in 2011:

 

  1. Obligations and Duties of Members

 

5.1 All members shall: –

 

  • observe the principles of loyalty, integrity and sportsmanship in accordance with the rules of fair play

 

So, there was no need to invent rules although in 2014 in an effort at harmonising the SFA and SPFL rules the SFA saw fit after the events from 2000 to 2011 to stiffen their Article 5.1 (a) with the addition from SPFL rules of

 

5.1.(f ) behave towards the Scottish FA and other members with the utmost good faith

 

Which is an indication that both SFA and SPFL believe Rangers FC failed to do just that- act in goodfaith.

 

However any breach of integrity is a breach of honesty and a failure to act with the utmost good faith and it is on a foundation of honesty, trust and good faith that football regulations are built and more crucially depend.

 

In doing what they did since the first ebt was used to pay players from 1999 who can possibly argue that Rangers acted with integrity and observed the principle of sportsmanship in accordance with rules, including registration rules, designed to provide fair play?

 

How loyal were they to opponents who were not indulging in similar behaviour?

 

Is failure to be true to Article 5.1 a) not what LNS described as a fundamental defect when he said

 

“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”.

 

So how was it able to be treated as not a fundamental defect in the investigating and commissioning process?

 

Perhaps the reason why events have unfolded as they have and no charge of breach of Article 5.1(a) of SFA Articles was made, was a decision that having looked into the rules from 6th October 2011, Doncaster/McKenzie decided that it was much easier to deal with the consequences of registration breaches, particularly in light of the then “ within in the law” status of ebts and the convenient Bryson interpretation of the registration rules that meant that an improperly registered player was properly registered if the impropriety was not caught at or near the outset, than it was to face the consequences of Rangers acting dishonestly.

 

(Was the Bryson interpretation really news to Doncaster in the same building as Bryson? Did it really surprise McKenzie?)

 

 

So what were the consequences of Rangers being found to have acted dishonestly?:

 

  1. A new policing regime would have to be introduced at a considerable cost to the SFA and SPL to check that the self certified submissions from all clubs were in fact truthful which meant checking them all and perhaps not wanting to find untruths.

 

  1. Compensation claims might have killed the SFA , who were supposed to police registration rules from 2000 and knew about Rangers use of ebts and side letters from 2009 after HMRC paid a visit to Hampden but did not act.

 

  1. Justifiable removal of titles and fear of the reaction from Rangers supporters to such an event (even though removal of titles had been considered in negotiations on the 5 Way Agreement)

 

  1. However perhaps the real reason no charge of dishonesty was ever made initially s that it would have made it impossible to achieve the objective of the route first discussed on 5th October 2011 between Gary Withey and Rod McKenzie that Neil Doncaster (and presumably the SFA) had an appetite for, which was the continuing existence of “Rangers” in Scottish football in one form or another.

 

  1. It is no coincidence that Neil Doncaster is the only person of authority at the SPL or SFA to say that the current version of Rangers is the same club as before (something UEFA do not agree with) because it was Neil Doncaster that invented that assisted by Rod McKenzie when drafting the 5 Way Agreement.)

 

If only the same appetite existed after the Supreme Court decision as before it to address the issues the “solution “has created.

 

Perhaps the SFA and SPL and the clubs thought they were acting in the best interests of Scottish football and it will do no good raking over the coals, certainly not for those who caused the problem and engineered the “solution”..

 

Then again perhaps if both SFA and now SPFL admitted that in trying to do what they thought was right, they have severely corrupted the integrity of the game and that those who caused the corruption by dishonesty will be removed, perhaps then supporters could then start to believe the members of the SFA and SPFL are meeting the same obligations to supporters as they are supposed to meet to each other under harmonised Article 5.1 a) and f) of their own Articles.

 

 

  • All members shall: –

 

5.1.(b) observe the principles of loyalty, integrity and sportsmanship in accordance with the rules of fair play

 

5.1.(f)  behave towards the Scottish FA and other members with the utmost good faith

 

And treat us with some respect.

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