THAT Debate, and the Beauty of Hindsight

ByAllyjambo

THAT Debate, and the Beauty of Hindsight

Acouple of weeks ago we revisited the OCNC debate. This is a useful exercise to turn to periodically, for I have noticed how, with the passage of time, new aspects have become clear as new information emerges, or some ridiculous claim is made and then debunked.

In those circumstances, we are given the opportunity to reassess what we already know using the new known knowns, or finding significance in something previously overlooked, but now shed in a new light.

Or put another way, the Beauty of Hindsight!

In introducing his notion that both ‘sides’ are merely putting their opinion, SFM contributor MarkC recently brought me to see that one side must be correct and factual, while the other will merely be left expressing an opinion. In the same way that one side must be right, because TRFC is either a new club, or it’s not, one argument must be the one that is factually correct and leaving the other as just opinion (at best). Once a factual argument is put forward, it can only be countered with fact, for anything else is just opinion.

Armed with facts, there would be no need to prove that TRFC is a new club, for first it would be necessary for those who claim ‘same club’ to show, using documentary evidence and facts, that ‘Rangers Football Club’ isn’t currently in liquidation.

So, factual evidence; what facts do we have?

Well, it is a fact that Rangers Football Club availed itself of the advantages of incorporation in 1899, and it’s a fact that Rangers Football Club Plc entered the terminal state of liquidation in 2012.

It is also a fact that at no time since this incorporation took place has anyone been aware of any other Rangers Football Club ensconced within Ibrox, no one has written or spoken about it; or not, at least, until a snake oil salesman used it to push his off the shelf company as ‘The Rangers Football Club Limited’.

What’s more, no other failed incorporated football club has ever availed itself of this new notion of the ‘eternal club’. The SFA was apparently unaware of it either, for they never offered up the salvation of its use to the likes of Airdrieonians, or Gretna, or dear old Third Lanark.

In fact it seems to have miraculously appeared only as a result of the failed CVA attempt of Rangers FC Plc, and the words of one of the spivs who surrounded Ibrox at that time (and for some time before, and after).

The only ‘fact’ put forward to support the ‘same club’ argument is that the SPL say, in their rules, that they are the same club. But the rules don’t actually make them the ‘same club’, for it’s not the SPL’s place to say what is and isn’t a club, and they only explain how they would treat the situation under their rules, and as Easyjambo and Hirsutepursuit (see appendices I, II and III) brought to our attention, the football authorities had reasons to introduce this to their rules that had nothing to do with establishing a separate club that lives on eternally.

It does, though, as Easyjambo’s post describes, show a willingness by football’s governors to change the rules to support their desired outcome.

As Hirsutepursuit (Appendix II) points out, the change to the SPL’s rules that enable this ‘interpretation’ of continuance after liquidation, only came about in 2005. So, have we to believe/accept that the split between club and Club has only existed since 2005 and is the preserve of the SPL?

And that brings me to look again at what Lord Nimmo Smith said of how the SPL rules view the continuation of a ‘Rangers’ (see appendix IV for reference). In short, a lot of words that confuse rather than clarify, and give no legal basis, or justification, for what he, or the SPL rules, say. Basically, the rules say ‘Rangers’ continues as the same club because the SPL rules say it does.

Then, in January 2015, Doncaster said this in an interview with the BBC:

“In terms of the question about old club, new club, that was settled very much by the Lord Nimmo Smith commission that was put together by the SPL to look at EBT payments at that time.
“The decision, very clearly from the commission, was that the club is the same, the club continues, albeit it is owned by a new company, but the club is the same.”

What Doncaster seems to be saying here is that TRFC are RFC because LNS said so.

Which is strange because it was the SPL’s own rules, and nothing else, that LNS based his findings on, and to have lent weight to the ‘same club’ argument, LNS would have had to have used some independent reasoning, or examples in law, to back this up. Instead we are left with the following:

• (i) the SPL, through an interpretation of their rules, told LNS that they looked on TRFC as the ‘same club’,
• (ii) so LNS said the SPL looked on TRFC as RFC,
• (iii) and then Doncaster said it’s the same club because LNS said so,

It’s a bit like me telling Big Pink (who is an acknowledged expert in the field of colours) that SFM treat black as white, BP tells the world that SFM treat black as white, and a couple of years down the road I announce that black is white, because Big Pink said so!

SOMETHING IMPORTANT I THINK WE’VE OVERLOOKED

Now here’s a fact for us all to consider. At some point Rangers FC ceased to be a member of the SPL. With the help of Neil Doncaster, Sevco (Scotland) Ltd tried to gain entry to the SPL and to participate as The Rangers FC. They failed.

Whatever entity was trying to gain entry into Scottish football, it was at that time not a member of the SPL, and so never had been under the jurisdiction of the SPL.

Therefore whatever the SPL rules or Doncaster said, or what conclusion LNS reached over the matter when it was based solely on what the SPL rules said, it madeno difference to the new club, since the SPL or Doncaster had no locus in the matter. Sevco were in limbo, and everything then depended on Sevco, as The Rangers FC, getting entry into the SFL.

Now, the ‘same club’ argument’s only factual ‘evidence’ is the SPL’s rules, and if they hadn’t included the recent amendment highlighted in Easyjambo and Hirsutepursuit’s posts, then there would be no ‘factual’ evidence, at all, however flimsy it might be.

So let’s take a look at what the SFL’s Constitution and Rules say on the matter, and I will quote the relevant parts!

Here’s what it says on a liquidated club joining the league:
“ …”

And here’s what it says, in full, about how it would treat a liquidated member club:
“ …”

In fact, there is absolutely no mention of liquidated clubs in the SFL’s Constitution and Rules, because the notion that a club could live on after liquidation is just that, a notion invented by a spiv!

And because liquidation means the end of a football club, there is absolutely no reason for rules covering such an eventuality to be considered within the rules of football.

And as I said earlier:
‘…the change to the SPL’s rules that enable this ‘interpretation’ of continuance after liquidation, only came about in 2005.

So, have we to believe/accept that the split between club and Club has only existed since 2005 and is the preserve of the SPL?’

What is now obvious is that there was nothing in the rules of Scottish football that gives succour to the notion that TRFC is one and the same football club as RFC.

When the SPL clubs voted against Sevco, to be called The Rangers FC, from entering the SPL, they made the SPL rules on the ‘same club’ matter irrelevant.

When Sevco, to be called The Rangers FC, entered the SFL, they were, according to the SFL’s own rules, a new club, for there is nothing in the rules that says otherwise, or can be interpreted as saying so!

Of course, by the time Doncaster made his nonsense statement, the SFL had been disbanded, and it’s clubs were now part of the SPFL, with rules tailored to suit those who bought into the ‘same club’ notion. Handy, huh?

WAS IT ALL ABOUT ARMAGEDDON?

We all laughed at the time it was spewed forth, but perhaps Armageddon was a real possibility, but not in the way we were encouraged to believe. We know that RFC owed a significant amount of money (football debts) to clubs outside of Scotland, and so outside of the SFA’s influence. We also know, with some certainty, that the SFA turned a blind eye to, or were incompetent in policing, some of RFC’s wrongdoings (the EBTs and European Licence) and the last thing the SFA, and SPL, would want would be non-Scottish clubs kicking up the inevitable stink and getting UEFA/FIFA involved, and investigating the SFA. So how to prevent it?

Plan D (plans A through to C had been used up trying to save RFC)
Create a scenario where TRFC must pay these debts, is the answer! How to do that? Well there’s that rule in the SPL Rule book! Right! but we must ensure Rangers stay in the SPL! Easy, we’ll frighten the other clubs into voting them into the SPL, and so TRFC will have to pay ‘Rangers’ football debts… Oops, the vote went against us! OK, we can stall the other leagues for a year, let’s get them into the Championship, promotion’s a certainty… Oops, we did it again… Let’s create a new set up, all under the (effective) SPL umbrella, with rules to suit, before anyone notices!

Could it be that all that help wasn’t so much because, or not only because, it was ‘Rangers’, but because of what no Rangers, to pay the non-Scottish football debt, might mean for the SFA and SPL, and so for the whole of Scottish football? Was that the real Armageddon?

Footnote

While putting this blog piece together I found it very difficult to write whenever I had to include the ‘what do you call it’ newly discovered ‘club’ thingy.

I find the ‘big C/little c’ method of describing it to be a nonsense, and at best a poor effort to create whatever it was they (whoever they are) wanted to create.

Even Lord Nimmo Smith, a much more learned man than I, failed to come up with a word, phrase or expression to adequately describe it. In short, a club with a capital ‘C’ is exactly the same as a club with a small ‘c’ – and only a fool could imagine it creates a difference!

Is a game of Football somehow different from a game of football?

But, of course, what can you call something that you can’t see, you can’t feel, can’t hear, can’t smell, something that has never been heard of or spoken of before?

Clearly, LNS could find nothing within the millions of words previously written within the myriad of cases dealt with under Scots Law, UK Law and EU Law, and clubs and associations, both corporate and incorporate, will have been the subject of a fair number of legal cases in the past for him to draw on, yet there was no answer to this conundrum to be found there.

And if Lord Nimmo Smith was unable to draw on his legal knowledge or research, he was merely expressing a layman’s opinion on how the SPL viewed a ‘????????’ club!

In such circumstances, his opinion is no more valid than any other reasonable person’s might be!

Acknowledgements
Easyjambo and Hirsutepursuit for the posts I have used in the appendices and my thanks in particular to EJ for kindly providing me with some documents I was unable to find on the internet by myself.
I’d also like to acknowledge the part MarkC played in bringing the debate back to SFM’s attention, it can’t be easy, constantly arguing against the accepted wisdom in any debate, but it always seems to bring out the best in us and something new.

APPENDIX I: HIRSUTEPURSUIT
March 1, 2017 at 23:02
EASTWOODMARCH 1, 2017 at 08:366 Votes …
Deviously, both the SPL (around 10 years ago coinciding with Rangers (In Liquidation) entering very choppy waters) and the SFA more recently, changed their rules to adopt this distinct “Club” (capital ‘C’) type definition, distinguishing it from the “owner and operator” company. It could have been said at the time to be a licence for unscrupulous, badly run “Clubs” to dump debts and shaft creditors, and so it proved with Sevco’s exploitation of these rules.

In 2005 the SPL changed its articles to create the definition of Club (with a capital C) – which actually INCLUDES the ‘owner and operator’. Whether the ‘owner and operator’ should be EXCLUDED depends on the context of the article in which it is used and to WHICH Club (with a capital C) it is referring.
The SFA did not add the ‘owner and operator’ tag until 2013.
It is interesting because the original SPL articles referred to the clubs (with a lower case c) as its members. Its members each held shares in the SPL. The clubs were listed by their full company names – rather than their trading names.
The Club (with a capital C) definition came about because the SPL were trying to launch SPL2 and one of the clubs (with a lower case c) that could have been included was Brechin.
Brechin is not a company, so could not as a club (with a lower case c) become a member/shareholder in the SPL. To cover this eventuality, a form of words was created that would allow the club (with a lower case c) to play in the SPL even if the share was not actually held by the club (with a lower case c).
If a club (with a lower case c) has not been incorporated, the club (with a lower case c) cannot own anything. In such cases, the assets are held by its members (usually a committee member or members). Since the original articles defined the member/shareholder as a club (with a lower case c), it would have resulted in the committee member who took ownership of the SPL share being defined as the club (with a lower case c).
The reference to ‘undertaking of a football club’ in the definition of Club (with a capital C) meant that it could refer to both an incorporated body and an unincorporated body of persons.
So the context of when the ‘owner and operator’ should be EXCLUDED from the definition of a Club (with a capital C) is only when that owner and operator is not a club (with a lower case c).
What is even more interesting is that three non-corporate clubs (with a lower case c) have each been listed as members/shareholders of the current SPFL – even though none have the legal personality to own anything.
…which is strange.

APPENDIX II: HIRSUTEPURSUIT
March 1, 2017 at 23:32

I should add that LNS found The Rangers Football Club PLC (the owner and operator) guilty of offences that predate the creation, in 2005, of the definition of Clubs (with a capital C).
Even if you accept that Rangers FC (the Club with a capital C) can be separated from The Rangers Football Club PLC/RFC 2012 (the owner and operator) – which, to be clear, I do not – that distinction only came about in 2005.
So if there is guilt prior to 2005, that guilt lay with the club (with a lower case c).
LNS didn’t seem to spot the distinction.
…which is even stranger.

APPENDIX III: EASYJAMBO

March 2, 2017 at 08:01
My recollection of the change in the SPL and SFA rules on “Owner and Operator” was implemented in early 2006, as the SFA wished to sanction Vladimir Romanov for his comments, but couldn’t do so because he held no official post at the club (small “c”).
It was Vlad’s son Roman who was Hearts chairman at the time, although Vlad was the major shareholder. So feel free to blame Vlad for the change in the rules.
Hearts were fined £10,000 by the SFA for Vlad’s comments about referees in October 2006. The DR article below, suggests that the SFA rule change came into effect in May that year.
http://news.bbc.co.uk/sport1/hi/football/teams/h/heart

APPENDIX IV
(46) It will be recalled that in Article 2 “Club” is defined in terms of “the undertaking of an association football club”, and in Rule 11 it is defined in terms of an association football club which is, for the time being, eligible to participate in the League, and includes the owner and operator of such Club.

Taking these definitions together, the SPL and its members have provided, by contract, that a Club is an undertaking which is capable of being owned and operated.

While it no doubt depends on individual circumstances what exactly is comprised in the undertaking of any particular Club, it would at the least comprise its name, the contracts with its players, its manager and other staff, and its ground, even though these may change from time to time. In common speech a Club is treated as a recognisable entity which is capable of being owned and operated, and which continues in existence despite its transfer to another owner and operator. In legal terms, it appears to us to be no different from any other undertaking which is capable of being carried on, bought and sold. This is not to say that a Club has legal personality, separate from and additional to the legal personality of its owner and operator. We are satisfied that it does not, and Mr McKenzie did not seek to argue otherwise.

So a Club cannot, lacking legal personality, enter into a contract by itself. But it can be affected by the contractual obligations of its owner and operator. It is the Club, not its owner and operator, which plays in the League. Under Rule A7.1.1 the Club is bound to comply with all relevant rules. The Rules clearly contemplate the imposition of sanctions upon a Club, in distinction to a sanction imposed upon the owner or operator. That power must continue to apply even if the owner and operator at the time of breach of the Rules has ceased to be a member of the SPL and its undertaking has been transferred to another owner and operator.

While there can be no Question of subjecting the new owner and operator to sanctions, there are sanctions Which could be imposed in terms of the Rules which are capable of affecting the Club as a continuing entity (even though not an entity with legal personality), and which thus might affect the interest of the new owner and operator in it. For these reasons we reject the arguments advanced in paragraphs 2 and 9 of the list of preliminary issues.