Saturday, September 29, 2012 1,509 Comments
A number of years ago I sat and watched while the late David Will, one time chairman of Brechin City, former President of the Scottish Football Association and Vice President of FIFA, peered over the upper rims of his glasses at the assembled board and management of St Johnstone Football Club and proceeded to brand them all as a “shower of thrawn buggers!”.
The reason for the tongue in cheek outburst from Scotland’s highest ranking official from the world of football was the organisation of the centenary dinner celebrating 100 years of the Perth Club— which the club saw fit to hold well outside the centenary year. Will had been invited to speak as a guest at the dinner ( yes Mr Cosgrove I was there ), along with then manager Alex Totten and Craigie Veitch the former sports editor of the Scotsman.
For those who are not familiar with old Scots words, Thrawn can have a couple of meanings which are very similar. If someone is being obstinate, stubborn, uncompromising, perverse or intractable then in auld Scots we say that he or she is being thrawn. Equally, the original meaning has been said to be crooked, twisted, misshapen or deformed. A tree could be thrawn, as could someone’s arm or other part of the body. To be thrawn-leggit was to have a crooked leg.
These meanings then sort of morphed into meanings like difficult or contrary, and so twisted and crooked in that sense, and when David Will called St Johnstone a shower of “thrawn Buggers” he meant that they were being awkward, contrary and perverse in holding a centenary dinner when it wasn’t actually the centenary. He was of course being lighthearted.
That episode came to mind this week when I read the latest statements from Alastair Johnston and Charles Green. Both set out an argument which suits their individual purposes and adopted perspectives, and both perhaps chose to ignore counter argument or salient facts which would obviously derail their logic and train of thought. With the greatest of respect to both men— what a pair of thrawn buggers!!!
In that vein let me recap as to where I think we stand on this September morn in relation to the EBT debate, the question of “Club” and the Independent enquiry into payment outwith contract.
Clearly, all of these issues are closely linked but each stands in its own wee pocket or chapter, and when taken together they serve to make a whole book or paint an overall scene.
The EBT issue has been repeatedly explained on the RTC blog and elsewhere but at the risk of repeating what is already known the fundamentals are as follows:
Employee Benefits Trusts under certain circumstances are or were a perfectly legal business and accounting tool.
However, in order for the trusts to provide substantial tax advantages, any reward, remuneration or compensation they provide to a beneficiary must not form part of their contract of employment or work package. If this rule is not strictly adhered to, then tax is payable on the sums “given” to the employee, with the employer being liable for tax and national insurance contributions of any employee.
It is alleged by HMRC, that a number of persons who were at one time employed by Rangers PLC have received benefits by way of a specific EBT. Further, the benefits which these employees received were clearly related to their contracts of employment and so these payments are liable to tax, together with interest for late payment and penalties for non-declaration and so on.
This is denied by Rangers PLC and by Murray International Holdings, and MIH have instigated and conducted an appeal against the HMRC view, with that appeal being determined by an independent tax tribunal (The FTT). The basis of their argument appears to be that the benefits received by the beneficiaries were nothing to do with MIH or Rangers and that these payments were purely discretionary and at the instance of the trustees of the trusts concerned– none of whom have any connection with Rangers PLC or MIH. Therefore– there is no tax payable.
Against this there seems to be a plethora of evidence which contradicts this stance including a number of side letters or second contracts which show that any payments to these EBT’s were indeed contractual and part of an overall contract of employment “package”– and if that is deemed to be the case then tax, interest and penalties are indeed, and always were, due.
These contracts or side letters then seem to fly in the face of the documentation lodged with the SPL and later the SFA, as both bodies require sight of all contractual documentation relating to players remuneration and their terms and conditions of employment. Contracts have to be in standard form and lodged with the appropriate bodies to ensure that the player is in fact properly registered to play for the team.
Further, the rules of football prohibit any player being paid by a third party, and so payments made to a player by someone other than his employer is a breach of that rule.
It is this issue that the Nimmo Smith Tribunal is to investigate and rule upon.
For their part, Rangers PLC appear to argue that the existence of EBT’s were always declared in the notes of their accounts, and so the footballing authorities should have known that they were in use at the club. More recently, Alastair Johnston has stated that the club did receive a request for clarification from the SFA in 2011 to which the Rangers PLC board responded disclosing documents ( although he does not specify what documents ) over and above the normal documentation sent re player contracts. Johnston has gone on to state that there was no response or follow up whatsoever from the SFA, and the appropriate UEFA licence simply arrived in the post without further ado. He concludes that as a result of the documentation sent, the SFA must have known at that time that the EBT payments were being used for “player compensation” purposes.
Now, AJ argues that if any misdemeanour or breach of rules has occurred it does not merit the much discussed and publicised “stripping of titles” and that any failure on the part of the Rangers PLC board amounts to no more than an oversight or an administrative error which does not justify the ultimate penalty.
Let’s just pause there and remember who and what AJ actually is in life. Alastair Johnston holds the posts of vice-chairman and member of the board of directors of International Management Group, the leading international sports and entertainment group. Now everyone knows that IMG was formed by Mark McCormack and represents sports stars as their agent. However what is less well known is that the majority of IMG’s work comes from broadcasting – not necessarily mainstream broadcasting – but the broadcasting of certain events to mobile phones and so on and in this context the company works with the likes of Vodafone and other major service providers in the sector. Further the company has the rights to market and broadcast the sports activities of a huge number of schools and colleges in the US as well as music channels, entertainment and so on.
I raise this aspect for one very important reason.
That entire industry is based on one thing and one thing only and that is………… a Licensing system. Broadcasters of any sort obtain the rights to broadcast by way of a licence. They licence content, they licence by area and geographical location, they licence for set time periods,they share licences, sell licences, create licences and terminate licences. Without a licence, they can have all the technology in the world, all the necessary content and so on but they are not able to show it, sell it and profit from it. Proper licensing is vital!
Further, they are very precious about licences- and rightly so– because unless they have the licences tightly tied up, others in the same field can attempt to steal their content, their territory and their rights– all of which are valuable assets.
So go back again and look at all AJ’s comments about proper registration of contracts, about proper administration of documents and licence applications for players, UEFA competition and so against the background of him being a grand fromage in a major company whose absolute lifeblood depends upon proper licensing.
Do you remotely believe that the continual and prolonged inability to properly declare all relevent contracts and player documentation to a licensing body ( both SFA and SPL in this instance) can be merely an oversight or an administrative error?
Further, take a look at the accounts for Rangers PLC at least in the year ended 2005, where it is made very clear that the football management side of the business was working extremely closely with the board in all business and contract matters.
The SFA in particular fulfills a licencing function– a function which is so important that without passing the tests laid down, any club of no matter what size simply cannot play or participate in the sole sphere it is designed to participate and play in. There are strict rules about licences, and a duty on the SFA as well as Rangers PLC to make sure that all of the conditions that must be fulfilled in order to gain a licence have in fact been met. It is not a process that should be left to chance or a process that any major organisation would leave to a junior member of staff or without there being a company defined process and procedure to ensure that the applications and compliance issues are properly dealt with.
Further, if you think about how a footballer player signs for a club– the negotiations, the transfer fee, the personal terms, the contracts, the agents commission and so on, you will realise that a player signing and the terms of his contract – or contracts for that matter – cannot simply come about by accident and outwith the boards knowledge or consent.
In short, it is impossible. It is also impossible, in my respectful opinion, to proceed on a decade long process of administrative errors involving the repeated failure to disclose secondary contracts or side letters. As someone once said to me, there comes a point where a continued and continual series of repeated errors or omissions starts to look suspiciously like a plan!
However, if we were to take AJ’s comments at face value, and accept that there were repeated failures on the part of the Rangers Board by accident, then to be honest there would be every right for shareholders and investors to hold the Directors liable for such negligence. Directors regularly and properly insure themselves against such claims– so I wonder if AJ has paid his insurance premiums?
Further, if he as Chairman presided over such mismanagement, then no doubt his time at IMG is limited as I doubt such an organisation could afford to have such a dunderheid permanently ensconced in a senior managerial position.
However, AJ appears to be a positively straightforward chap when compared to Mr Green.
He of course is on record as saying that if the proposed CVA were to be rejected and the club forced into liquidation then the club dies, the history dies, and so on and so forth– but of course that was yesterday or the week before or even the week or months before that. That was the message that Mr Green wanted to convey at that time in the hope that HMRC would buckle down and accept the proposals.
Now, Mr Green seeks to sing a different tune, and recently latched on to Lord Nimmo Smith’s comments about the “club” being a continuing entity and capable of transfer from one owner to the next. He muses that if that is the case then the “club” may well in fact still be a member of the SPL and the SFA as no matter what happened to Rangers PLC, Rangers FC are ” a continuing entity” and therefore should not be forced to apply to rejoin any body which it was always a member of– such as the SPL and the SFA. Of course this then means that all the history and so on remains– despite what he himself said earlier!
Now of course, Charles makes for a good soundbite and is mad keen to ensure that as many Rangers fans as possible take up shares in “the club” when he offers them for sale.
Yet there is the problem,– shares in what are being offered for sale? According to Charles– and following his logic— he can offer as many shares in the Rangers Football Club Ltd for sale as he wants — but that company will not actually be Rangers FC– will it? If Rangers PLC was not actually Rangers FC– then what was it that David Murray was offering for sale all those years ago? Or could it be that Charles has just got it plain wrong?
You see for some reason he did not quote Lord Nimmo Smith in full– especially that part where the learned judge gave a brief description of his interpretation of the law of clubs.
For example Charles chooses not to comment on this sentence from the learned judge:
“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.”
Earlier, Nimmo Smith said this:
“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.”
So let’s pause there.
A club is an undertaking— in other words any type of loose arrangement involving a group of people with a common purpose. If a club is not an incorporated club ( a limited company ) then to be anything other than a loose idea of a few folk getting together for a common purpose such as a holiday or a meal or to read a book or anything else– then of course it should have a formal constitution and a set of rules for its members.
So– where is the constitution for Rangers Football Club? Where are its rules of admission which says who can join? Are there certain rules that preclude you from joining? Is there a set limit on how many members there can be at any one time? Who are the officers of this club?
At the current time, Mr Green seems to be very keen on everything British and everything of a loyal and royal nature. So here is a quote from the pages of the Royal Yachting Association of Great Britain on the legal status of unincorporated clubs and so on.
“Since an unincorporated club has no legal status, it is incapable itself of owning property or being party to a contract. It is therefore standard practice to appoint trustees, who are usually required in the rules to comply with committee instructions, to hold the property (whether freehold land and buildings, yachts or a long leasehold of a reservoir) on behalf of the club members.”
Eh going by that statement – Rangers FC never owned Ibrox or Murray Park– and indeed can never own Ibrox and Murray Park. Someone had to be the trustee.
Further, it can never have been granted a licence to play football— you can’t grant a right to a non legal entity or to a body which has no legal status. You cannot accept a licensing application from a body which has no legal status. You cannot be employed by a body with no legal status.
Rangers FC has no constitution, no legal persona, is not allowed to own property ( heritable, moveable or intellectual), can’t enter into contracts and so on.
In short, Rangers FC is a body with no legal status– it does not exist and has never existed— unless it is to be found within the confines of Rangers PLC which everyone now recognises is in Administration and will soon be liquidated.
Still don’t believe me?
Ok here is a recent release by the Scottish legal commission setting out changes that they want to make to the law so that “clubs” can gain some legal status:
“In Scotland, and indeed throughout the United Kingdom, unincorporated associations are not recognised as entities separate from their members. Consequently, such organisations cannot carry out acts such as entering into contracts, owning property or engaging employees. The lack of legal personality can also give rise to unfortunate, and perhaps unforeseen, repercussions for members. For example, it is possible that, under the current law, a member of an unincorporated association could, by virtue of that membership alone, find himself or herself personally liable in delict to a third party injured at an event organised by the association. Further difficulties relating to this area of the law are set out in our Discussion Paper on Unincorporated Associations (DP 140) which was published at the end of 2008.
Our Report recommends a simple regime, with the minimum of administrative burdens, to ensure that associations and clubs are recognised as legal entities. Separate legal personality will be accorded to associations which satisfy certain conditions. The main conditions are that the association has at least two members; that its objects do not include making a profit for its members; and that it has a constitution containing certain minimum specified provisions. These provisions are: the association’s name; its purpose; membership criteria; the procedure for the election or appointment of those managing it; the powers and duties of its office-bearers; the rules for distributing its assets if it is dissolved; and the procedure for amending its constitution. Many associations will already have constitutions which contain these provisions but, for those which do not, we anticipate that style constitutions will be made available, free of charge, on the websites of organisations such as the Scottish Council for Voluntary Organisations”
Maybe Charles should seek some advice from the Scottish Council on Voluntary organisations? And perhaps he should note that part about not making a profit for members too!
Then again, as Lord Nimmo Smith has said the actual status of a club and who or what a club is depends on individual circumstances. So with regard to Rangers, let’s look at who would know– for example, who did Charles get “Rangers” from? Duff and Phelps of course — so what do they say?
Well they have stuck to their guns because in each and every report that they have issued to the court, the shareholders and the creditors they have included the following definition:
|Rangers / the Company / the Club||The Rangers Football Club Plc (In Administration), Ibrox Stadium, Glasgow, G51 2XD (Company number SC004276);|
Now that doesn’t really help Charles does it.
Ok so, lets ignore Craig Whyte because everyone knows that he was a diddy— let’s go to folk that are far more sensible– how about the Board of Rangers PLC before Craig Whyte– what did they have to say:
Well, here is a statement from May 2011 which seems to set out who and what the then Directors thought amounted to the club– and let’s face it– they should know!
“Further to today’s statement from Wavetower Limited (“the acquirer”), the Independent Board Committee of The Rangers Football Club plc (“the club”), comprising Alastair Johnston, Martin Bain, John Greig, John McClelland and Donald McIntyre, (”IBC”) would like to make the following statement:
“In recent weeks the IBC has been engaged with the acquirer and has secured an enhanced financial commitment from Wavetower for future investment into the club. The decision on the sale and purchase of the majority shareholding in the club firmly and ultimately rests between Murray MHL Limited (“MHL”) and Lloyds Banking Group (“LBG”).
“Although the IBC has no power to block the transaction, following its enquiries, the IBC and Wavetower have differing views on the future revenue generation and cash requirements of the club and the IBC is concerned about a lack of clarity on how future cash requirements would be met, particularly any liability arising from the outstanding HMRC case.
“Wavetower is purchasing MHL’s 85% shareholding in the club for £1 and the club’s indebtedness with LBG is to be assigned to Wavetower. This share transaction would ordinarily trigger a requirement on Wavetower under Rule Nine of The Takeover Code for a mandatory offer to be made to the other shareholders.
“Given this transaction structure and following discussions with the Takeover Panel, the IBC considers there to be no purpose in the acquirer making such an offer to acquire all other shareholdings at effectively nil value per share. Accordingly the IBC has agreed that the offer period for the club will now end.
“In agreeing that no offer should be made to all shareholders the IBC has insisted that the acquirer issues a document to all shareholders setting out the full terms of the transaction, comprehensive details on the acquirer and the sources of its funding and giving firm commitments to agreed future investment in the club.
“The IBC is committed to ensure that the transaction and future investment and funding proposals should be transparent to all the shareholders and supporters of the club”
Ah— that doesn’t really help Charles Green’s current argument either does it?
So here we are, on the cusp of the FTT ruling, with a share offering in the offing, and SPL enquiry scheduled for November and no doubt Mark Daly and the Panorama team beavering away in the background getting ready for another documentary.
The decision of the FTT may reveal yet more of what the bold AJ describes as “Administrative errors” by way of failing to administer EBT’s properly so resulting in a massive tax bill, and the SPL enquiry may reveal further “Administrative errors” in failing to properly record player contracts for a decade, with the result that players were never properly registered in the first place and so were illegal players during championship winning games.
Yet all that is history and in the past.
Today’s Rangers has a new hero, a new commander– even though who he works for is a closely guarded secret and remains a mystery to most of us who may be interested to find out who Charles Green really is and who he represents. He seems to attack certain quarters then retreat, antagonise and appease, and has a habit of constantly contradicting himself when it suits.
In the interim he reminds me of the most famous creation of the American writer Timothy Zahn who brought about a revival in the fortunes of the Star Wars franchise, bringing it widespread attention for the first time in years. He did this by creating a new villain to follow in the footsteps of the administratively challenged and ultimately vanquished Darth Vader.
Zahn describes this new villain’s command style as considerably different from that of Darth Vader and other typical Imperial commanders; instead of punishing failure and dissent, he promotes creativity among his crew and accepts ideas from subordinates. He is a tactical genius who has made extensive study of military intelligence and art, and is willing to retreat instead of making a stand in a losing battle.
His full name and his true origins are only known to a few select individuals of the Empire and the New Republic.
To quote Wikipedia:
“His name is ………… reminiscent of the old Scots word meaning Twisted ot Crooked.
The character’s name is……….. Thrawn.
I suspect that we are about to see some pretty Thrawn statements from a shower of Thrawn buggers as the late David Will would have said!