Comment on The Vice Closes by HirsutePursuit.
955Enforcement by the court(1)If, on the application of the Panel, the court is satisfied—
(a)that there is a reasonable likelihood that a person will contravene a rule-based requirement, or
(b)that a person has contravened a rule-based requirement or a disclosure requirement,
the court may make any order it thinks fit to secure compliance with the requirement.
(2)In subsection (1) “the court” means the High Court or, in Scotland, the Court of Session.
(3)Except as provided by subsection (1), no person—
(a)has a right to seek an injunction, or
(b)in Scotland, has title or interest to seek an interdict or an order for specific performance,
to prevent a person from contravening (or continuing to contravene) a rule-based requirement or a disclosure requirement.
(4)In this section—
“contravene” includes fail to comply;“disclosure requirement” means a requirement imposed under section 947;“rule-based requirement” means a requirement imposed by or under rules.
As I read it, the court is only asked to consider the question of whether there has been compliance with a TOP requirement under the code.
The court can take any action it thinks appropriate to ensure compliance. But, the court has no part to play in considering the appropriateness of the panel’s instruction. That ship has sailed.
Unless it can be shown that the panel’s instruction (to make an offer) is ultra vires – a sanction not available under the rules – or that DCK can prove that he has already complied, the court will simply take action to enforce compliance.
I would imagine the court may feel somewhat aggrieved that its time is being used in this way. The enforcement action is likely to be something less than subtle.
Personally, I can’t see any way DCK can avoid making a formal offer without being in contempt of court.
The maximum penalty which can be imposed for contempt in the High Court is two years’ imprisonment or a fine or both.
The Vice Closes
It should be remembered that the SFA’s compliance officer is a solicitor advocate and has been involved in criminal casework all the way up to the supreme court. He knows very well what criminal behaviour looks like.
If, during an investigation of alleged breaches of the SFA’s regulations, he finds evidence of criminal behaviour (e.g. fraud), he would be compelled to pass on his findings to the police. Any related SFA proceedings would need to be suspended until the suspected criminal acts have been processed by the Crown Office and Procurator Fiscal Service – and potentially by the courts.
One wonders if he might find evidence (or even have a vague suspicion) that a criminal act (such as fraud) has been facilitated by lax procedures or conspiratorial behaviour within the SFA. Under those circumstances, he will be very aware that a failure to act with complete personal integrity would render him part of the narrative.
Personally, if I was investigating the 2011 issue and found any evidence whatsoever that a License was issued on the basis of false declarations, I would be referring the matter to the police and await a decision from the COPFS.
I am absolutely certain that the compliance officer will behave with the utmost good faith. My bet would be that the matter will be referred to the police.
If he does and prosecutions are successful, there can be no complaints if the guilty parties are later banned sine die by the SFA.
If no charges are pursued by the COPFS or ‘not guilty’ verdicts are returned by a jury, the compliance officer can say that the matter has been tested through the courts and no further action is required.
I just think that this has some way to run yet.
The Vice Closes
If there is prima facie evidence of criminal fraud, the compliance officer cannot proceed on the basis that the matter can be dealt with via SFA procedures. It certainly cannot.
Anyone who suspects that a crime has taken place can report it to the police.
Anyone who has firm evidence that a crime has taken place should always report it to the police.
Of course, should the compliance officer discover or suspect that his employer was a party to this alleged criminal fraud through recklessness or negligence, his employer could potentially be made subject to recovery proceedings under the heading of civil fraud.
The compliance officer just might be in a fairly difficult situation.
The Vice Closes
See if this works?
Who Is Conning Whom?
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?
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.