Podcast Episode 3 – David Low

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Burghbhoy says: May 2, 2014 at 1:20 am ==================================== I don’t quite understand …

Comment on Podcast Episode 3 – David Low by HirsutePursuit.

burghbhoy says:
May 2, 2014 at 1:20 am
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I don’t quite understand why you think the “suspensive and conditional” nature of the agreement to transfer the RFC membership to Sevco would automatically preclude that transfer being made on a conditional basis before the completion date – when the contract conditions have been met.

As far as I can tell the 5WA makes no specific reference to whether the conditional FULL membership was new or the existing RFC membership.

You appear to be presuming it was a new membership because the 5WA makes no reference to it being issued as part of the discretion available to the board via Article 16. My point is that it is only Article 16 which gave the board any discretion to work with.

It also (going back to my original point) explains the lack of reference to Article 10.3. Without a conditional transfer being in effect, board approval would have been required to allow Sevco use the Rangers name for the Brechin game. The lack of any such approval being sought or promised in the 5WA points to the fact that the transfer of the full membership had already been made – albeit on a conditional basis.

As a slight aside, I should point out that there are a number of things in the 5WA I find difficult to square with reality. For example:

Sevco will become, following on the transfer to it of the full membership of RFC in the SFA, on Completion (defined below) the operator of Rangers FC within the Third Division of the Scottish Football League.

If you:
1. Take “Rangers FC” to be the club
2. Take completion to be the date when the SFA membership transfer became unconditional (3rd August)
3. Take Sevco to have become the owners of the club on Completion

Who played Brechin on the 27th July???

The club that played Brechin was (in SPL terms) owned and operated by Sevco; but (according to this agreement), Sevco did not become the owner and operator of Ranger FC until 6 days later.

“Rangers FC” is no more than the trading name and the 5WA is as much about allowing the transfer of that trading name between two clubs as it is about allowing the transfer of a membership.

HirsutePursuit Also Commented

Podcast Episode 3 – David Low
Burghbhoy, I know you are trying to shoehorn the meaning of undertaking from TUPE regulations into your understanding of the LNS decision; but it is of no relevance whatsoever.

http://www.scribd.com/doc/143090374/Spl-Handbook-2008-09-10-Feb-09-Current

2. In these Articles:-

2006 Act means the Companies Act 2006 including any statutory modificationor re-enactments thereof for the time being in force;

Act means the Companies Act 1985 including any statutory modification or re-enactment thereof for the time being in force;

….

4 Unless the context otherwise requires, words or expressions contained in these Articles bear the same meaning as in the Act but excluding any statutory modification thereof not in force when these Articles or the relevant parts thereof are adopted.

http://www.legislation.gov.uk/ukpga/2006/46/part/38/crossheading/meaning-of-undertaking-and-related-expressions

(1)In the Companies Acts“undertaking” means—
(a)a body corporate or partnership, or
(b)an unincorporated association carrying on a trade or business, with or without a view to profit.

As I've pointed out many, many times previously, the articles of the SFA, SFL and SPL were all written so that they applied equally to a "Club" which is an unincorporated association as well as a "Club" which is a body corporate.

The Rangers Football Club plc (now RFC 2012 plc) was, of course, the relevant undertaking as described by the Companies Act definition.

The LNS enquiry accepted the terms of reference that contained the false premise that a "Club" is some ethereal entity that has no recognisable form; but in truth, this construction is not borne out by a proper examination of the regulations. No-one disputed the Doncaster fiction, simply because it suited all parties (for entirely commercial reasons) to pretend that the "Club" was an asset that could be sold on out of the dying company.


Podcast Episode 3 – David Low
burghbhoy says:
May 1, 2014 at 11:36 pm
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http://www.scottishfa.co.uk/resources/documents/SFAPublications/SFAHandbook/09Articles.pdf

The granting of FULL membership to Sevco was done on the basis of a transfer of membership under Article 16

PROHIBITION ON TRANSFER OF MEMBERSHIP
16. It is not permissible for a member to transfer directly or indirectly its membership of the Association to another member or to any other entity and any such transfer or attempt to effect such a transfer is prohibited save as otherwise provided in this Article 16. Any member desirous of transferring its membership to another entity within its own administrative group for the purpose of internal solvent reconstruction must apply to the Board for permission to effect such transfer, such consent not to be unreasonably withheld or delayed. Any other application for transfer of membership will be reviewed by the Board which will have complete discretion to reject or to grant such application on such terms and conditions as the Board may think fit.

So the Board had absolute power to TRANSFER an existing FULL membership “on such terms and conditions as the Board may think fit.”.

But… did they have power to GRANT a new FULL membership – even on a conditional basis? Article 6 seems pretty clear on this:

APPLICATION & FEES
6. Clubs or associations undertaking to promote Association Football according to the Laws of the Game as settled by the International Football Association Board and the Articles and other rules of the Association may be admitted as registered members, associate members or full members, subject to the provisions of Articles 6.1 to 6.6.

6.1 A club or association shall be admitted as a registered member automatically by reason of its being admitted as a member of an Affiliated Association or an Affiliated National Association, or in the case of a club through membership of or participation in an association, league or other combination of clubs formed in terms of Article 79 and in the case of an association by being formed in terms of Article 79 provided it is not already an associate or full member. A registered member shall not be a member of more than one Affiliated Association or more than one Affiliated National Association. A registered member may apply at any time to become an associate member.

6.2 A club or association desiring to qualify for full membership of the Association must first be admitted as an associate member. A club cannot be admitted as an associate member unless it meets, and commits to continuous compliance with the Membership Criteria and amendments thereto as shall be promulgated by the Board from time to time in connection with the membership of the Association.

Article 6 precludes the conditional FULL membership from being a new one?
“A club or association desiring to qualify for full membership of the Association must first be admitted as an associate member.”

Would Sevco have even qualified for a new ASSOCIATE membership?
“A club cannot be admitted as an associate member unless it meets, and commits to continuous compliance with the Membership Criteria and amendments thereto as shall be promulgated by the Board from time to time in connection with the membership of the Association.”

Allowing that transfer of FULL membership to be made on a conditional basis (before being made permanent by the conditions of the 5WA being met) was certainly within the board’s gift.

Granting a new FULL membership to Sevco – even on a conditional basis – was not.


Podcast Episode 3 – David Low
burghbhoy says:
May 1, 2014 at 10:08 pm
10 1 Rate This

A question regarding the bizarre narrative surrounding that Brechin game in 2012 (for HirsutePursuit in particular but any boffin may step up!…)

If Sevco were already (as the rulebook seems to suggest) SFA registered members from July 13th when accepted into the SFL, why the need for the “conditional membership” fudge, urgently cooked up to cover the Brechin game?
============================================
http://www.scottishfa.co.uk/resources/documents/SFAPublications/SFAHandbook/09Articles.pdf

10.3 Each club in full or associate membership shall in its Official Return register its ground and playing field dimensions and no such club shall remove to another ground without first obtaining the consent of the Board. Any club in full or associate membership wishing to make any alteration to its name, its registered ground or its playing field dimensions must first obtain the prior written consent of the Board. No club in registered membership shall adopt in whole or in part the name of a club in full or associate membership without the prior consent of the Board.

Had the FULL membership remained with the old club for the Brechin game, the SFA board would have been forced to pass a resolution permitting the new club use of the Rangers FC brand. This would have confirmed beyond any doubt that the two clubs were separate entities.

Since Sevco were in registered membership the FULL membership held by Rangers at the time, was a block to the new club’s use of the name- if no permission was sought under Article 10.3..

Allowing Sevco to use the FULL membership on a conditional basis meant that the board did not have to make a decision on Article 10.3.


Recent Comments by HirsutePursuit

Who Is Conning Whom?
Auldheid
I am with you in most of what you say, but there are some important differences.

SFA Article 6.1 & 6.2 say:

Clubs or associations undertaking to promote Association Football according to the Laws of the Game and these Articles and other rules of the Scottish FA may be admitted as registered members, associate members or full members, subject to the provisions of Articles 6.2 to 6.7 (both inclusive).
6.2 A club or association shall be admitted as a registered member automatically by reason of its being admitted as a member of an Affiliated Association or an Affiliated National Association, or in the case of a club through membership of or participation in an association, league or other combination of clubs formed in terms of Article 18 and in the case of an association by being formed in terms of Article 18, provided it is not already an associate or full member. A registered member shall not be a member of more than one Affiliated Association or more than one Affiliated National Association. A registered member may apply at any time to become an associate member.

We are in complete agreement, I think, that SFA Article 6.2 made Sevco a registered member of the SFA from the date it was accepted by the SFL – 14th July 2012.

But, and I think this is important, the nearest the SFA get to insisting that a club has associate or full SFA membership is Article 6.2 which simply says, ‘A registered member may apply at any time to become an associate member.’
Note: no timescale applies… and no consequences (from an SFA perspective) if a club chooses to not make that application.

So I think we are on common ground that Article 6.2 was applicable as far as the registered membership was concerned – and Sevco did not take the opportunity to apply for associate membership by this method.

If we then go back to what the SFL Rules actually said:

6. REGISTRATION WITH SFA A CONDITION OF MEMBERSHIPA Member or Associate Member who is not already a full or associate member of the Scottish Football Association must make application to become a full or associate member of the Scottish Football Association (as the case may be) within fourteen (14) days of being admitted to membership of the League failing which its membership of the League will lapse, and in the event that the application is unsuccessful, its membership will lapse upon that decision being intimated to the League.

Now, if the SFL was being prescriptive about which SFA Article was to be used (to apply for full or associate membership), and that Article 6 was the only valid route, why mention full membership as an option. If ‘application’ is meant to mean only applications in terms of SFA Article 6, the only relevant option would be to apply as an associate SFA member.

No, the SFL rules are not prescriptive in the manner of that application. I think Rule 16 is clearly written to allow a transfer of associate or full membership from an existing club to a new club or entity under SFA Article 14. 

In fact the only method by which this could be achieved is SFA Article 14

14. Prohibition on Transfer of Membership14.1 It is not permissible for a member to transfer directly or indirectly its membership of the Scottish FA to another member or to any other entity, and any such transfer or attempt to effect such a transfer is prohibited, save as otherwise provided in this Article 14. Any member desirous of transferring its membership to another entity within its own administrative group for the purpose of internal solvent reconstruction must apply to the Board for permission to effect such transfer, such consent not to be unreasonably withheld or delayed. Any other application for transfer of membership will be reviewed by the Board, which will have complete discretion to reject or to grant such application on such terms and conditions as the Board may think fit.

…which allows the board to grant an application for transfer of an existing membership on such terms as it sees fit.

Importantly, the discretion only applies to which terms and conditions to a transfer of a membership that already exists.

Having complete  discretion on how or if that transfer (of full membership) took place is completely within the board’s power via Article 14.

What it doesn’t do is empower the board to create a new type of membership. 

And, even if it does claim to have done so, I still don’t understand how the SFA ‘conditional’ membership would satisfy the SFL requirement for an application for associate or full membership?

Remember, this transfer application was an SFL requirement. The SFA had no interest in whether or not Sevco applied for associate or full membership.

It seems to me that the SFA and SFL approached the Sevco scenario in a similar way as they did when Inverness Caledonian were admitted (as a new club) in 1994.

Difference is ICT, the SFL, SPL and SFA all recognise that that club was founded in 1994.

As I said earlier with regard to the birth of Sevco, the deceit is not so much in what they all did, but in what they said and continue to say.


Who Is Conning Whom?
The new club (Sevco) was issued with written permission to use the name of a club in full membership (Rangers).

This was necessary because both existed as SFA member clubs at the time.


Who Is Conning Whom?
This was the nub of the ‘conditional membership’

10.7 Each club in full membership or associate membership shall in its Official Return register its ground and playing field dimensions and no such club shall remove to another ground without first obtaining the consent of the Board. Any club in full membership or associate membership wishing to make any alteration to its name, its registered ground or its playing field dimensions must first obtain the prior written consent of the Board. No club in registered membership shall adopt in whole or in part the name of a club in full membership or associate membership without the prior written consent of the Board.


Who Is Conning Whom?
Auldheid
The 14 day application deadline was an SFL requirement – not something that the SFA had any locus in considering.

As long as Sevco was a member of the SFL it was a member of the SFA.

It would have been up to the SFL management committee to decide if the application for transfer (rather than application for a new associate membership) met its requirements. If it did not, it would have been within its powers to revoke Sevco’s league membership. It is an arguable point, but there is no suggestion, as far as I’m aware, that the SFL league management committee ever met to even discuss the matter.

Nevertheless, I think you are saying that Sevco was no longer a member of the SFL at the time of the SFA statement – therefore needed this ‘new’ SFA membership category to play Brechin.

But how would any type of membership of the SFA help if it was no longer a member of the SFL? If its membership of the league had already lapsed or been revoked, another SFL EGM would have been required to try and vote the club back in. I’m 100% sure that did not happen.

On 29th July, Sevco must still have been a member of the SFL as the Ramsden Cup was only open to members of that league.

There was simply no mechanism for the club to rejoin the league in the available time. If it did not rejoin (and I’m as certain as I can be that it did not) then it cannot ever have been removed as a member of the SFL.

And as I keep saying, as a member of the SFL, it was also a member of the SFA.

The SFA’s deceit was not in its actions – but was in its words.

Don’t forget that the SFA had to consider the use of the Rangers name. The ‘conditional’ membership squirrel has been particularly useful in covering up the SFA board’s approval for Sevco to play Brechin under the Rangers name.

That, in reality, was the big announcement on that day. The rest was sleight of hand.

Smoke and mirrors.


Who Is Conning Whom?
The golf club analogy has been used before.

Dear old dad is a member of St Andrews (other golf clubs are available). To make best use of the facilities new members must apply to a ‘house’ that will give access to their respective lounges and bars. After 15 years of continuous membership Mon pere was awarded the status of ‘Gold Member’.

Gold Members have their own lounge and gain a range of additional benefits. 

Recently poor old dad has become poorly and suggests that l join the golf club and take over his ‘Gold Membership’.

I join the club and, with a letter of agreement from sickly pater, apply for the transfer of his ‘Gold Membership’ status.

The committee meet and decide that I can only take on the enhanced membership status if old pop dies.

I tell them that father is on his last legs and won’t last the weekend.

As an existing member I can enter the club’s Saturday medal competition. On a conditional basis, they tell me I will be eligible to use the ‘Gold Members’ facilities. They issue me with a letter to confirm this arrangement.

They will reconvene in several weeks to confirm the transfer of membership status – assuming that by then papa will be gone. If he makes a miraculous recovery I must then apply to join one of the standard houses.


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