While the proposed Judicial Review of the LNS decision is to be welcomed it is a position that is fraught with legal difficulties such as the capacity to raise the proceedings, potential time bars and all sorts of other arguments.
It would be complete folly to base an argument here solely upon a judicial review of LNS as that would only leave one string to the bow.
Further, take the stated opinion or Mr Rod McKenzie that LNS only dealt with the issue of Player Registrations within the SPL/SPFL — and nothing else.
Any analysis of what is meant by that statement (and others made by Neil Doncaster) leads to the conclusion that there are other matters to be considered which were outwith the tight and narrow remit handed to LNS by the SPFL.
For me, the clearest consideration is this.
1. Craig Whyte has already been personally convicted by the SFA for deliberately failing to pay taxes as and when they fall due under article 5.1 of the SFA rules.
2. No such charge has ever been levied against RFC — just against their CEO.
3. Not only did RFC fail to pay taxes as and when they became due under Whyte’s watch, they deliberately failed to pay taxes for a 13 year period under the stewardship of Sir David Murray. They did this by deliberately entering into two unlawful tax aggressive tax avoidance schemes which even their advisers warned them could only be undertaken at considerable risk to the club as the schemes were never guaranteed to be successful.
4. Those schemes were entered into so that the club could buy players they would otherwise not have afforded.
5. In furtherance of those schemes, RFC chose to deliberately withhold the full details of their contractual arrangements with both players and managers from both the SFA and the SPL when submitting their applications to play under licence and in terms of the rules of both organisations.
6. In each of the years concerned, RFC had to apply for both domestic and European Licences to play football, and it is the granting of these licences which allows any football club to play in structured competition organised under the auspices of, or with the approval of, the SFA or UEFA.
7. Each and every licence application as submitted to the SFA in the knowledge that key financial and contractual information had been excluded in furtherance of tax avoidance purposes, and tax, which has since been declared to be legitimately due and payable from 1999 onwards, was unpaid and remains unpaid.
8. The above processes and procedures are no different, and indeed are considerably worse, breaches of article 5.1 under which Whyte was personally convicted and fined.
9. Further, as part of the HMRC investigations into the use of unlawful tax schemes, RFC deliberately lied to HMRC, SFA and SPL about the existence of side letters and other contractual documentation. This is particularly so in relation to the annual application for a playing licence.
On 20th May 2011, HMRC, in relation to one of the tax schemes, wrote to RFC and accused the club of “deliberate and fraudulent” behaviour in relation to the continued submission of false PAYE and NIC returns over a period of years.
10. It, therefore, follows that each and every application for a football licence made by RFC to the SFA from 2000 onwards (at least) was based on falsified financial, contractual and tax information and was designed to mislead the SFA with a view to persuading them to grant a licence on misrepresented grounds.
11. Not only is the above a breach of article 5.1 of the SFA handbook, but any licence obtained by misrepresentation has not been validly obtained as it has been obtained by way of false representation and deception.
12. It is a pre-requisite of entry into any league competition that the participating club holds a valid licence to play football.
13. In the event that a club did not or should not have held/hold a valid licence to play, that same club is not free to enter structured competition or register players to participate in such competition. It also follows that any declaration of a result of 0-3 in relation to any particular game as a result of a rule breach (such as fielding an ineligible player) is of no consequence because the club concerned was not eligible to participate at all.
14. The Court of Arbitration for Sport has already been invited by UEFA to hold that any application for a licence or any other compliance submission, which is devoid of all necessary financial and contractual information should be treated as null and void and as never having been received.
15. The same Court has also held that any title, championship, award, record, reward or other benefit which has been gained as a result of an improper or prohibited process should not be allowed to stand, the records of the award etc should be expunged and the sporting records corrected accordingly.
None of the above is dependent on a successful review of LNS but goes hand in hand with that process.
In the forthcoming review of Scottish Football recently announced by the SPFL, in conjunction with the SFA, all of the above should be under consideration.
LNS, under review, may determine that the players were in fact not eligible, but much more fundamental is the fact that there are clear facts and circumstances which should mean that the club itself was never eligible in terms of established legal jurisprudence.
As had been pointed out by Rod McKenzie, none of this has been considered by the SPFL as all matters concerning a licence are solely under the jurisdiction of the SFA.
Thus far, the SFA have taken no action against RFC or any of its officials as a result of the clubs involvement in, and cover up of, the Big Tax Case or the Wee Tax Case – both of which will be the subject of the forthcoming review demanded by Celtic and others.