Fiat justitia, et pereat mundus
(Let justice be done, though the world perish)
Picture the scene. A wealthy old lady decides to disinherit her only son. So he kills her before she gets the chance to make a Will. What should happen to her estate? Succession law couldn’t be clearer: she died without leaving a valid Will and, under the intestacy rules, her son is entitled to inherit all her wealth. The extended family bring a legal challenge.
You’re the judge: what would you do?
Hold that thought: we’ll return to it shortly.
The SPL Commission’s decision in the Rangers case has proven to be highly controversial. But on one point there appears to be widespread agreement: the Commission had no choice but to apply the SPL’s rules as written – no matter how absurd, perverse or unjust the result. The rule that a player registration is valid unless and until revoked must be applied according to its plain meaning – even if it means that the club in question will benefit from deliberately concealing information that would’ve invalidated the registration.
The purpose of this article is to put some pressure on that widely-held view.
The pressure is generated by one of the three fundamental rules of legal interpretation that every law student has drummed into them at Law School. This is the so-called ‘golden’ rule: that a law should not be applied according to its literal meaning if to do so would lead to an absurdity or a manifest injustice. The rationale behind the ‘golden’ rule is that laws are not simply arbitrary sets of rules – they are expressions of the intentions of the law-maker. And it should be presumed that the law-maker did not intend that the law should have absurd or unjust consequences. As Lord Millett put it in R (oao Edison First Power Ltd.) v Central Valuation Office [2003] 4 All ER 209:
“The Courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless.”
The ‘golden’ rule also recognises that the “law” consists not only of specific rules but also general principles e.g. that a person should not benefit from his own wrongdoing (ex turpi causa non oritur actio). This principle was in play in the ‘murderous son’ scenario, which came before the High Court in Re Sigsworth [1935] 1 Ch 98 (and also the Court of Appeals of New York in Riggs v Palmer (1889) 115 N.Y. 506). The Courts on both sides of the Atlantic used the ‘golden’ rule and declined to apply the law as written. Allowing the son to profit from his own murderous act would have been so unjust that the High Court invented an exception to the intestacy rules to prevent him from inheriting the estate.
Is that what you would’ve done? Did you think that, as the judge, you were compelled to apply the law literally and therefore had no choice but to let the murderer scoop the lot?
Re Sigsworth is a very vivid example, but cases applying the ‘golden’ rule are legion (at the end of this article, I’ve summarised ten more cases in which Courts used the ‘golden’ rule to prevent an absurd or unjust result). A particularly relevant case, in the context of Rangers, is the recent Supreme Court decision in Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council [2011] UKSC 15. This concerned the application of planning law to a house that was disguised as a barn. Mr Beesley obtained planning permission to construct a barn for grazing and haymaking on open land that he owned. He constructed a building which was (to all external appearances) the permitted barn, but (internally) was a fully fitted-out dwelling house with garage, living room, study, bedrooms, bathrooms and gym. He moved in to the ‘barn’ with his wife and they lived there for many years. When the ruse was discovered, Mr Beesley’s defence was that the 4-year time limit for taking enforcement action against him had expired.
The Supreme Court applied the principle that statutes must be construed so that no one should be allowed to profit from his own wrongdoing. The rationale behind the time limit for enforcement was that 4 years was a reasonable period during which a planning authority would normally be expected to discover an unlawful use. The Supreme Court held that it would frustrate that rationale if someone like Mr Beesley, who had used deliberately false statements to prevent discovery of the illegal use, was allowed to rely on the time limit. The Supreme Court also held that such a result would damage the public’s confidence in the law: any law-abiding citizen would be astonished to think that Mr Beesley’s dishonest scheme, once discovered, would not be subject to enforcement action but rather “crowned with success”. It was unthinkable that Parliament intended such an outcome. Mr Beesley must not be allowed to get away with it.
Returning to the Rangers case, there is a powerful argument that applying the player registration rule literally involves absurdity or injustice – principally because it creates three perverse incentives. Firstly, it incentivises clubs to apply for a player to be registered even if they know that the conditions of registration are not satisfied, in the hope that the application will somehow ‘slip through the net’ and be granted anyway (in which case it will be valid until revoked). Secondly, a club which discovers that it has made an error in its application is incentivised to say nothing and to ‘let sleeping dogs lie’ – because it may be in a better position by not confessing its mistake. Thirdly, and most importantly, it incentivises fraud – by deliberately concealing relevant information, a club can ensure that a player who does not satisfy the registration conditions is treated as being eligible – and therefore allowed to play – for as long as a period as possible (potentially his entire spell with the club). And then, if the club is no longer around when the deception is finally discovered, it may be impossible to impose meaningful sanctions.
The Commission would therefore have been justified to (and was, arguably, required to) apply the SPL’s rules so as to prevent Rangers from relying on its own wrongdoing as a defence to the charges. The exception that it should at least have considered reading into the general rule (that a player registration is valid unless and until revoked) may be formulated in a number of different ways, but would go something along the lines of:
“…unless the club knowingly concealed information the disclosure of which would have led to the individual concerned being treated as ineligible to play.”
This exception would remove the second and the third of perverse incentivises, whilst also addressing the SPL Commission’s concerns as to the purpose of the Register. It is indeed very important to ensure a degree of certainty over which individuals are eligible to play; but cases of knowing concealment would presumably be rare, and it seems reasonable that – in those rare cases – the deceitful club should expect to forfeit the benefit of the certainty that the registration system provides.
My claim is not that the Commission ought to have applied the ‘golden’ rule in the Rangers case. I think that it should have – but opinions may legitimately differ on the point. There are many reported cases in which the Court was invited to apply the ‘golden’ rule but declined to do so. Conceptions of absurdity and injustice differ; and the judicial popularity of the ‘golden’ rule has waxed and waned over the course of our legal history (it’s currently rather popular). My claim is more modest: that applying the ‘golden’ rule was an option that was legally available to the Commission, and therefore that the widely-held view (that the Commission had no choice but to apply the rule literally) is simply false.
It’s (unfortunately) a truism that legal disputes are often won not by the party that has the strongest case, but by the one which has the best lawyers. The responsibility for ensuring that this doesn’t happen rests with the judges, who should apply the law as it really is – and not just as the lawyers have presented it to be. In my experience, judges all too often fail in this fundamental task – and the fairness of the legal system suffers as a result. Money does, indeed, talk. If Spartans had been able to afford a QC to represent them at their SFA disciplinary hearing 18 months ago, perhaps they would not have been thrown out of the Scottish Cup for failing to double-date Keith McLeod’s employment contract.
The Commission, in its preliminary judgment, was at pains to insist that Rangers wouldn’t be prejudiced by its declared intention not to participate in the hearing –it would ensure that the case against Rangers was rigorously tested in its absence. However, the Commission seems not to have taken such a benevolent attitude towards the SPL’s presentation of its case. It appears to have forgotten the ‘golden’ rule: that its job is not to apply the rules mindlessly, but to do justice.
Examples of the application of ‘golden’ rule
In R v Allen (1872) LR 1 CCR 367, Mr Allen purported to marry a second wife and was charged with the offence of bigamy: “whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence”. Under a literal interpretation, it was impossible for Mr Allen to commit bigamy – because the purported second marriage was void (as the ‘bride’ was a close relative). The Court applied the ‘golden’ rule: it would be unjust to allow Mr Allen to plead his own wrongdoing as a defence to the charge. The Court therefore rewrote the phrase “shall marry” as ‘shall go through a marriage ceremony’ and the defendant’s conviction was upheld.
Richard Thomas & Baldwins Ltd. v. Cummings [1955] AC 321 concerned the legal duty, under the Factories Act 1937, to fence off dangerous parts of machinery when they are “in motion”. Mr Cummings lost a finger while repairing a broken machine, the repair of which had required him to turn the machine by hand. The House of Lords applied the ‘golden’ rule and rejected Mr Cummings’ claim for compensation. Although the machine had clearly been set “in motion” by Mr Cummings, it would have been “quite unreasonable” to impose a legal requirement that it must therefore have been securely fenced – as it would’ve made the machine impossible to repair in practice.
In Smith v Hughes [1960] 1 WLR 830, the defendants were prostitutes who were attracting potential customers from the first floor window of a flat. They were convicted of the offence of soliciting in a “street or public place”. They appealed on the ground that they were soliciting in a private property, not a public place. The Divisional Court refused to apply the Act literally and upheld their convictions – it would have been absurd for the law to have permitted the defendants to solicit through the open window of a flat.
In Adler v George [1964] 2 QB 7, Mr Adler was convicted of obstructing a member of the armed forces “in the vicinity of” a prohibited place. He appealed on the basis that he was actually in the prohibited place (Norfolk air force base), rather than in the “vicinity” of it, at the time of obstruction. The Court applied the ‘golden’ rule: it would be absurd for a person to be guilty if they were near to a prohibited place but not if they were actually in it. Mr Adler’s conviction was therefore upheld.
In Sweet v Parsley [1970] AC 132, Miss Sweet was a schoolteacher who rented out rooms in her farmhouse – which she didn’t live in herself. One of her tenants was caught smoking cannabis in his room. Miss Sweet was convicted of the offence of ‘managing premises used for the purpose of smoking cannabis’. The House of Lords applied the ‘golden rule’ and quashed the conviction. Lord Reid commented that if the law were to be applied literally then the implications (i.e. that Miss Sweet would be a criminal even though she was entirely blameless) would be “astonishing”.
In R v Chief National Insurance Commissioner, ex parte Connor [1981] QB 758, Mrs Connor deliberately stabbed her husband and was convicted of manslaughter. The Court rejected her claim to be entitled to widow’s allowance, applying the ‘golden’ rule to avoid a perverse result (that she would profit from her own wrongdoing).
In Cooper v Motor Insurance Bureau [1985] QB 575, Mr Cooper injured himself while riding his friend’s (uninsured) motorbike. The Motor Insurance Bureau was required, by law, to pay compensation to “any person” hurt in a collision involving an uninsured vehicle. The Court of Appeal applied the ‘golden’ rule and upheld the MIB’s right to reject Mr Cooper’s claim, by limiting the very general phrase “any person” to third parties only – to prevent the perverse result that the driver of the uninsured vehicle himself would be entitled to compensation for an accident that he himself had caused.
In R v Registrar General, ex parte Smith [1992] 2 QB 393, Mr Smith (a psychotic convicted murderer) applied for a copy of his birth certificate. This was refused by the Registrar General, on the ground that it was likely that he would use information contained in it to attempt to murder his mother. The Court of Appeal upheld the Registrar’s decision, in spite of Mr Smith’s clear and absolute legal right to receive the copy, as it would be absurd to endanger his mother by applying the law literally.
Mallinson v Secretary of State for Social Security [1994] 1 All ER 295 involved an application for attendance allowance for a blind man, Mr Mallinson, to help pay for someone to assist him with his personal care and mobility needs. Under the relevant Act, he was only entitled to the allowance if he needed “frequent attention…in connection with his bodily functions”. The Court of Appeal upheld the Social Security Commissioners’ decision that, as Mr Mallinson had lost all function in his eyes, the test was not satisfied and he was not entitled to the allowance. The House of Lords applied the ‘golden’ rule and reversed that decision – to avoid the anomalous consequence that a partially-sighted person would be entitled to the allowance but a completely blind person would not be.
Mykoliw v Botterill [2010] CSOH 84 concerned a fatal coach accident in Inverness. Several members of the deceased’s family claimed compensation against the coach driver for grief and emotional distress, including his step-father (with whom the deceased had a close loving relationship). The law entitled the “immediate family” of the deceased to claim compensation, and this had been amended in 2006 to include anyone who had accepted the deceased as a child of their family (even if they were not related by blood). However, the 2006 amendments had inadvertently excluded step-parents from the right to compensation. The Court of Session applied the ‘golden’ rule and upheld the step-father’s claim for compensation. Lord Pentland said that, if the law were to discriminate against marriage by entitling an unmarried cohabitee of the deceased’s mother to compensation but excluding her husband from the right to compensation, it “would be absurd and would give rise to injustice”, would “offend against common sense” and be “devoid of any rationality” and it would have “an entirely anomalous and nonsensical basis”.
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Glasnost (and a Pair of strikers) 
Nice, thoughtful and informative piece. Unfortunately rare in the LNS aftermath. But one question on the 3 perverse incentives. None of them are applicable in the Rangers case I would submit. The decision not to disclose the side contracts was nothing to do concealing something that would invalidate a player’s registration. Therefore there was no fraud. The motivation was a fear – at the moment a wrong fear – that disclosure could compromise the effectiveness of the tax scheme Rangers were using (a completely different issue).
Many thanks for your kind comments.
On your specific point, I think that you’re confusing motivation (which isn’t legally relevant) with intention (which is). A criminal who blows up a bus may have been motivated purely by political or financial aims – and indeed may have considered that the virtually certain death of the passengers was a necessary evil. However, he nonethless intended to kill the passengers and is therefore guilty of murder.
Similarly, Rangers may well have been motivated purely by saving tax – but they nonetheless intended to conceal the side contracts from the SPL etc. and have now benefitted from actively doing so.
If they had applied the rules as written then they would surely have declared all those players ineligible.
Rule D1.13 is really quite clear and the registration issue is clearl being used as a diversion.
“A Club must as a condition of Registration and for a Player to be eligible to Play in Official Matches, deliver the executed originals of all Contracts of Service and Amendments and/or extensions to Contracts of Service and all other agreements providing for payment …..”
“and” is the key word in that first phrase.
So, it follows that it would not have been necessary to rescind the player registration as stated in this contrived judgement, as the relevant rule clearly states that registration and eligibility to play are BOTH impacted by any failure to provide the required paperwork.
Therefore it would be quite possible (as in this case) for a player to be registered but still not be eligible to play.
“The decision not to disclose the side contracts was nothing to do with concealing something that would invalidate a player’s registration”.
“The motivation was a fear – at the moment a wrong fear – that disclosure could compromise the effectiveness of the tax scheme Rangers were using”.
And you know this how?
In any event, regardless of what Rangers’ reasons were for not declaring the side letters, they broke SFA rules deliberately and benefited from their own wrongdoing, since had the SFA found out at the time all games those players participated in would have seen a 3-0 win awarded to their opponents.
I submit LNR should have applied the golden rule and stripped Rangers of five league championships to reflect the seriousness of ten years of footballing dishonesty by the Ibrox club.
The EBT payments themselves were not undisclosed (they were in the annual accounts which the SPL received and also in the financial information given to the SFA in connection with the club’s UEFA licence). Nor were the payments ruled to be illicit. The offence was not handing over additional documentation. No sporting advantage was gained from not giving over additional documents (as opposed to from the payments themselves) and so no sporting punishment was appropriate.
Problem with this arguement John is that everyone else played by the rules as understood – that all documents were to be declared to the SFA to register a player. Any other club looking to use EBTs would see that as an problem – RFC did not and were given leeway to use EBTs (an avenue closed to all others). Also the EBT payments were in the accounts – but could have applied to directors wages only as far as everyone else was concerned. So the argument that RFC did nothing wrong and gained no advantage can be repeated and repeated as you wish using Josef Goebbels propaganda theory – if you repeat a lie often enough it will become fact. However, a bit of humility would be the best policy of the new club to disassociate themselves from SDM’s old regime whose financial recklessness led to the ruin of the old club.
“EBTs were in the annual accounts”.
Really?
The only reference to EBT matters in the annual accounts was a two-line comment at the bottom of a page that EBTs were used for the payment of loans.
No detail at all as to who received them.
Since not one recipient of a Rangers EBT has repaid one penny of the so-called loans, nor have been asked to, how can they be classed as loans?
They can’t.
They are clearly payments to club employees in a form that would avoid paying income tax and national insurance.
Why else would the club hand over millions of £s to employees that need never be repaid?
Philanthropy?
Pull the other one.
Thanks for that, nice and easy to understand :-). No idea how the law works but it seemed logical to me that there must be a way to dispense justice – despite the law – in cases like this. Glad to know there is, sad to see it not being used.
I think the examples show that it is being used.
Just not in Rangers case.
I wonder why.
Your response to TallWall is interesting. You differentiate between motivation and intention. Rather raises a question in some minds over LNS’ motivation and intention in interpreting the rules as he (and his colleagues) did. Surely not.
Apposite, concise and clear …thank you.
For some reason it reminded me of a (possibly apochryphal) tale of a compensation case before the court. The plaintiff (a miner) was gilding the lily somewhat when giving evidence and the judge interrupted: “Mr Smith is your client aware of the maxim “de injuria non profitetur”?”
Learned counsel for the miner replied “M’lud, in the working men’s clubs of Barnsley, they talk of little else”
Ah well
Thanks for that, Glasnost. I was unaware of the Golden Rule. This one becomes curiouser and curiouser.
Time for a change………
Without sounding demeaning here ur legal argument is far more convenient than stable. Indeed it is more a compilation of fact im without methodical application. Sorry, but as I say….. Convenient, not accurate.
Garry – please set out why you think the legal argument is unstable or inaccurate, so that I can respond to your points.
Quite simply, this is not statutory interpretation – you give a straight forward and accurate description of the golden rule in relation to statutory interpretation, of that there is no doubt! However, LNS was not asked to concern himself with parliaments words but rather the rule book of football authorities. In such a situation there was nothing absurd in his judgement, nor anything to suggest that the wording was a clear and obvious mistake. Therefore, the golden rule could/would not apply in this case on the matter of fairness!
There was absolutely nothing wrong with LNS judgment on the decision, he was 100% correct in his conclusion. Just because some people don’t want to hear that does not make it wrong.
Thanks Garry. You are, of course, correct that we’re looking at the ‘laws of the game’ rather than the ‘laws of the land’ here. However, when construing the SFA/SPL rules, I’d argue that the similarity with statutory interpretation is stronger than with (say) contractual interpretation. The rules were not, in any meaningful sense, negotiated and agreed between the SFA/SPL and Rangers – they were imposed on Rangers by the SFA/SPL and, in turn, (largely) imposed on the SFA/SPL by FIFA. The possibilty of serious sanctions for breaking the rules, and the presence of quasi-judicial procedures for resolving disputes, strengthen the analogy with statutory interpretation.
One could argue that, strictly, the rules take effect as a matter of contract – so the canons of contractual (rather than statutory) interpretation should be applied. However, much the same principles apply in interpreting contracts as in interpreting statutes – and for the same underlying reasons. As a statute is not an arbitrary set of rules to be applied mindless but rather an expression of the intention of Parliament, so a contract is not an arbitrary set of clauses to be applied mindless but rather an expression of the intention of parties to that contract. And the Courts have held, in numerous cases, that the parties must presumed to intend that their contract should not lead to perverse outcomes. As Lord Diplock put it in The Antaios Compania Naviera S.A. v Salen Rederierna A.B. [1985] A.C. 191 at 201:
“…if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.”
There are probably even more cases applying this principle than there are cases applying the ‘golden’ rule. I’ll limit myself to referring you to the leading case on contractual interpretation, Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 W.L.R. 896, in which the phrase “Any claim (whether sounding in rescission for undue influence or otherwise)” was effectively rewritten by House of Lords as “Any claim sounding in rescission (whether for undue influence or otherwise)” in order to avoid a perverse result.
As mentioned above, the SFA/SPL rules were effectively imposed on Rangers rather than being a matter of agreement. So the test of ‘what did the parties intend?’ really boils down to ‘what did the SFA/SPL intend?’ – Rangers’ contribution to a ‘mutual’ intention was limited to whether to accept the rules, or to find a different line of business. Which brings us back to the close analogy with statutory interpretation – and hence an article on the ‘golden’ rule.
If you want to argue that it’s more a matter of contract because Rangers was a member of the SPL and had a vote on adopting the rules, my response is two-fold. Firstly, that ignores that fact that the player registration rules are substantially imposed on the SFA/SPL by FIFA (though not, it seems, this ‘unless and until cancelled’ rule). They were not up for negotiation. Secondly, various new sets of SPL rules were adopted AFTER Rangers had started to conceal a large number of side contracts from the SPL – so you run straight into ‘bad faith’ arguments. That Rangers may have voted for a set of rules knowing that it was in breach of them (and perhaps also knowing that the rules contained a loophole that would get them off the hook) significantly strengthens that argument that the rules should be interpreted in such a way as to do justice.
Again, an excellent and academic answer and in doing so you have answered most of the points that I was going to raise. Due to that, there is no point in us covering old ground. LNS is a man of undoubted skill and experience so I would be very surprised if he were to overlook one of the three most basic legal principles without good cause.
It is my opinion, that the rules were indeed intentional and therefore did not create any absurdity. Although many may call me sinister for making such an accusation 😉
The argument over statutory or contractual is interesting and personally I stick with contractual on that one. I am sure we could argue over that at length but, for me, the relationship is contractual. Contractual interpretation may have developed somewhat in recent years but it is still unclear and inconsistent therefore difficult to apply. To be honest the same could be argued over Statutory interpretation – something that, in my view, has much less certainty in Scotland than in England.
The English and Scots law positions are substantially similar – see Lord Reed’s outstanding analysis of the authorities in Credential Bath Street Ltd.
If the SFA didn’t want someone to interpret the laws of the game in the way a judge interprets the law of the land…why appoint a high court judge??
It would have made more sense to have asked an administrator from a different national association.
LNS like most lawyers seems more interested in how he can complicate straightforward issues than in serving justice.
How else can he demonstrate how clever he is.
If this matter had come before an objective jury, they would have seen the blindingly obvious truth.
Rangers tried to conceal from the footballing authorities their use of second payments to players, and were found guilty of that charge by Nimmo-Smith.
Rangers director Martin Bain applied by email for an annual bonus to be paid through the EBT wheeze and then for good measure reminded the recipient to make sure to delete the email after reading.
Why?
I think we know!
By some miracle of gymnastics LNS found a way to apply non-punishments for the charges Rangers were found guilty of.
A farcical £250,000 fine that cannot and will not be paid by the now deceased club.
Outrageous.
The LNS conclusion is, in my mind an injustice, and “makes my blood boil”. When the authorities, the SFA, knowing full well the decision is rubbish urge me to “move on” I am further incensed that I’m thought to be a fool. How do we, Scottish football fans, get justice and new administrators?
Excellent piece and the first acceptable insight into the inexplicable decision by the noble lord and friends. The response from the football establishment is the insulting one all supporters have come to expect. I am afraid my days of cap doffing are long gone and one can only hope that this latest “pit bossing” of the authorities has pushed the Scottish fans into rebellion. The governance of the SFA and the football leagues is a pitiful joke that has more to do with pocket linings than standards. It may be very late in coming but it is time for either a complete change or a complete withdrawal of support.
How is it possible for LNS to arrive at the published decision when the law as evidenced above appears to totally contradict his view?
A very informative piece. Thank you.
As a non legally trained person, can I ask you to explain the following? I can’t think how to ask as a concise question, so this is the form of an example.
Anon willingly fails to dislose that they are registered blind on a car insurance form and is granted insurance. Anon then has a crash.
During the investigation of the crash this comes to light and the policy is declared null and void. The insurance is invalid because it was never valid in the first place and has effectively (in my understanding) ceased to exist. it is not revoked as that would mean the person was insured at the time of the accident and the insurer would have to pay out.
How does this differ from the registration issue at RFC? Presumably for the registration to be valid, it has to be correct. If it was not correct then it was invalid, even if written down. There is then no need to revoke the registration since it was not valid in the first place.
Are the rules for the registration process such that this principle doesn’t apply?
Apologies if I am on the slow bus here.
Imagine that there is a Register of Insurance Policies, the purpose of which is to provide certainty as to who is (and who is not) insured, and Anon’s policy is placed on this Register. Imagine also that insurance law states that a policy which is placed on the Register is valid unless and until it is removed from the Register. Clearer now?
OK, so it is down to the fact that insurance policies have a clause when you sign up to them to say that if there are any material omissions or other shennanigans it is null and void. Presumably this isnt in the SPL / SFA rules. I’d have thought it would be at least implied, but hey ho.
Thanks.
No. It’s down to the fact that you’re eligible to play if you’re on the Register – even if you should never have been put on it in the first place. According to the Commission’s interpretation…
So Rangers lied on footballing documents, and were not found out for ten years in spite of Campbell Ogilvie holding both a directors role at Ibrox and at the same time being on the board of the SFA and its O.K. no questions asked, and just lets forget all about it.
A very handy way to avoid any unnecessary, wicked punishments.
It all makes sense now
The interpretation of the registration rules that the SFA registration secretary gave at the LNS commission has never been used by any SFA disciplinary committee or by any other football association’s disciplinary committee affiliated to the SFA, this was a unique interpretation previously missed in thousands of registration appeals going back over a hundred years, only for Rangers
Reblogged this on The Scottish Football Monitor and commented:
Excellent food for thought which we thought worthy of inclusion…
Something doesn’t add up here.
I’m curious as to how previous (unknowing) transgressors (i.e. Spartans) didn’t know their players weren’t registered at the time of the offending games. I can imagine 2 possibilities:
1. The SFA have a grace period to review registration (then per LNS is that player registered?) If said player is DEEMED registered while checks are carried out then does the LNS opinion not lead to the conclusion that it was incorrect to punish Spartans as their player was actually registered?
2. The SFA review all registrations before allowing a player to take the field and in this case they reviewed Spartans registration before the offending game and chose not to contact the club to notify it that the registration was inaccurate.
Someone is having their cake and eating it.
The SFA Registration Secretary asserts his interpretation of the rules without evidence, precedents or even logical pleading. LNS accepts this without asking for an even cursory examination of his argument but at some length expounds on his (LNS’) understanding of the Registration Secretary’s argument .
In the absence of Justice we have to make do with the Law but god isn’t the stench overpowering at times
Thanks for this. On your last sentence, the nub of the article is that the law allows judges to decide that justice trumps the rules.
Surely a person that has been in charge of registering anything that requires registration would, after a period of time, develop an eye for spotting something not quite right and flag this up to a person in a higher position who would then take this forward (and also possibly mention to another colleague at lunchtime as a conversation topic)? That, as he was looking through club x’s latest registrations, a player who is a 5 star player seems to be getting the same or less than a 4 star player, and asks for this to be confirmed by club x. Well surely this has happened somewhere along the process? Some other employees seem to have keen eyes when it comes to smaller clubs having minor mishaps with registration although there is not a lot to see there, but wages between 4 & 5 star players is surely a talking point at pub time with these guys? Too simple to believe maybe.
All good logical analysis.
What you’ve forgotten is that on this occasion they were dealing with Rangers.
Different rules apply.
Obviously.
This is getting ridiculous now. An independent commission was demanded. It then happened. That the result was not the one that some people wanted is unfortunate for them, but it was an independent investigation as demanded. Please just accept the result and move on, instead of being blinded by a desperate desire to see Rangers punished for the wrongs you believe they committed. The case has been tried and the result must be accepted.
We would like to see Rangers punished for the offences of which they have been found guilty, not offences we ‘believe’ they committed.
A £250,000 fine, like other fines imposed on Rangers, will never be paid as the club has deceased, so there’s been in effect no punishment applied.
Totally unacceptable.
ptd1978
The Spartans case is actually rather cut and dried: Keith McLeod signed a new contract with the club in July. The contract had not been dated twice as required. The SFA noticed this at the time the documents were lodged – in July – and immediately wrote to Spartans informing them that the registration was not valid. Spartans did not receive the letter. Neither did Spartans check the online Register to ensure that McLeod was registered. Had they done so, they would have known he was not registered.
Following the Culter tie being played in October, the SFA – on checking the team lines – noticed that McLeod had played despite not being registered. Accordingly, Spartans forfeited the tie.
The SFA’s reliance on post rather than email is regrettable. As is the fact that no one at SFA followed up the letter when clearly there had been no remediating action by Spartans. But it’s not the SFA’s job to supervise club administration staff, and the issue was apparent on the Registrations website.
Unfortunate. Spartans accepted without challenge that they had hade an error. Them’s the rules, and they had not complied with them.
Interestingly, the East of Scotland League has a completely different set of rules, and the player was not ineligible in those fixtures played before the issue came to light.
Well put.
Now explain why the SFA didn’t discover Rangers hadn’t declared second payments to players for ten years.
One date missing, the SFA wrath descends on Spartans.
Ten years of dishonesty at Ibrox results in no punishments.
It was the SFA’s responsibility, but it took online bloggers to expose the scandal.
You don’t even have to use email, which could always be subject to abuse although it’s quick, what’s wrong with sending such material by registered post?
Someone has to sign for it so no possibility of porkies over receipt and a cast iron excuse if non- delivery does occur.
EMBARRASINGLY (EMBARASSED ?) NEUTRAL says @12.32pm today
“The case has been tried and the result must be accepted.”
Not so. LNS’ findings have to be accepted by the SPL Board or the SPL Clubs or the SFA and there is an appeal procedure available. None of these has happened yet.
The “case” was not “tried”. Evidence was presented to LNS’ Tribunal and LNS came to his own conclusions and recommendations. This was not a trial any more than the FTT was a trial.
What is your view of the ‘Golden Rule’ in the context of McTear v. Imperial Tobacco?
http://www.scotcourts.gov.uk/opinions/2005csoh69.html
The dugs in the street know that smoking cigarettes is a major cause of lung cancer. Scots Law says it has not been proven. Scots Law says it probably cannot be proven.
The McTear decision poses great problems for future litigants affected by alcohol or fast food addictions too.
Common sense wins again!
In Lord Nimmo Smith’s Decision was his statement there was no question of dishonesty.
However in the case of the DOS ebts ( which were illegal but leaving that aside) which LNS treated as continuous there was clear evidence of dishonesty.
That evidence alone would have to have had an impact on the thinking of LNS which may then have taken his Decision down the golden rule path and decided to apply the rules as intended.
Not to deflect from the golden path point and why it is important for football to specify why an a registration that is invalid from the outset means a player is ineligible, there is the matter of DOS EBTs being unlawful and more seriously why that was never drawn to the attention of LNS either in the commissioning or testimony, to be investigated.
In order to protect football the LNS Commission should no longer carry any authority and the whole issue should be revisited once the nature of all ebts used from 1998/99 is finally established.