Statement From Brian Kennedy

I have recently had several confidential meetings with a gentleman representing the shareholders of Sevco, with regards to my interest in purchasing a majority shareholding in Rangers Football Club.

The details of these meetings and the written offer I have submitted have been disclosed from within the club.

Now that this has leaked I have I have no alternative but to confirm that what is reported in the Daily Record regarding such matters is accurate.

I have no further comment to make at this time

Backing the Bomber?

I remember the emotions running wild the day of the protest, finally we had gotten to the stage where we could have our opinions heard and stand together as one proudly proclaiming that never would we allow our club and our fans to be taken advantage ever again.

Earlier that afternoon I spoke on the phone with someone close to John Brown, as we discussed the media reports of John fronting a takeover for Rangers.  I was excited to hear about the former players backing Brown and felt like something special could happen here. If it was done properly.

I have a tremendous amount of respect for John Brown for having the courage to stand up for what he believes in and really take his fight to Charles Green. However, the manner in which the fight would be fought had to be absolutely spot-on.  Complete transparency of the information he had, in conjunction with his plain laid bare for all to see and he’d have every Rangers fan in the land standing right behind him.

Unfortunately, that’s not the way it’s turned out.

John has recently taken to Twitter to release titbits of information and while his online participation with the fans should be commended, it’s ultimately creating separation amongst the support.

What needs to happen now is for John to provide a Q&A session – online or offline – with no questions out of bounds. This needs to happen in the coming days or the buzz that was created by his arrival will have fizzed out for good.

His message to the fans has be absolutely and categorically clear. The total opposite of this past week – which has been fragmented, confusing and in some quarters; ridiculed.

For the record, I’m not going to write off John Brown just yet. It’s my personal opinion that there’s something not quite right about the current setup at the club – and somebody’s clearly telling John the same. But this article isn’t about my opinion, it’s about the general feeling amongst the supporters.

I said during that phonecall that this will only work if he can back up his claims with solid, hard evidence, that hasn’t happened thus far.

We all said we needed a figurehead, and John Brown answered that call. But it’s clear that there are certain rules attached to being that figurehead – open and honest dialogue and complete transparency are key.

Like it or not – the Rangers support are divided on whether or not to back the bomber.

I know where I stand but – without complete transparency – I don’t know for how long.

A ten point deduction. Why it all simply has to be challenged.

Ten important considerations that are apparent in relation to the Rangers case that make the outcome open to scrutiny and challenge.

1. The mission statements of the Scottish Football Association, the SPL, and the SFL, as well as the Articles where they exist (SFA and SFL) mention the duty of these associations to protect the interests of their members. This relates to the collective interests of existing members and not all members minus one. Indeed no advocacy has been made by the Association on behalf of Rangers. Rangers in fact, should have been protected by the application of the “Fit and proper persons” rule, which should have been applied before Craig Whyte took control of the country’s premier sporting institution. The SFA failed in their duty to protect Rangers with respect to this, and the consequences it could be argued are as a result. There is evidence that the SFA were aware of Craig Whyte’s unfit status, while Rangers Football Club, and certainly its fans, were not.

2. The duty of the disciplinary committees and those making judgements on behalf of the governing bodies is to recognise the financial consequences on members and act accordingly. In Rangers case these people have acted in a way that exacerbates negative financial consequences for all members.

3. The difference between the football club and the company which manages the clubs financial affairs. In some cases, and it can be proved that Rangers is one of those instances, these two entities are distinct but that has not been recognised in the current circumstances. The forthcoming criminal case as instructed by the crown office and indeed the BDO liquidation investigation prior to the intended winding up of the PLC that could very well accommodate the view that Craig Whyte starved the PLC of all income during his tenure as he directed the football club’s incoming cash to Wavetower whilst leaving the PLC with all football club related outgoings creating the illusion that the PLC became so overwhelmed with debt that it became insolvent.

4. HMRC have publicly recognised that the “misdemeanours” relating to financial irregularities are the responsibility of the authorised persons and not the club itself, although the SFA and SPL, despite the fact that this pragmatism would be a more beneficial solution for all concerned, have ignored this common-sense approach in their blood-lust.

5. The very existence of the HMRC main judgement (or the “big tax case”) looming presents a prejudicial set of circumstances that could trigger “force majeure” as well as rendering any judgement invalid and inviting presupposition and assumptions which affect the outcome of both decisions.

6. It is quite apparent that the majority of people, in their hurry to punish Rangers, cannot fully verbalise what it is they are trying to remedy, and exactly what they believe Rangers are being punished for, with most reporting and comment relating to supposed crimes and misdemeanours completely unrelated to the act of administration and liquidation.

7. It is against the interests of justice, and the true principles of sporting integrity, as well as plain common sense, to have rivals, and especially the fans of the clubs who consider Rangers the enemy, determine the fate of the club, and they have no mandate to do so under any of the Association’s rules.

8. In all other cases of punishment, where it has been applied, there have been footballing irregularities as well as financial ones, i.e., not fulfilling fixtures, not paying player’s wages etc. There are from some football-related financial aspects – debts (and credits which amount to more) which Rangers have been trying to settle and are being prevented from doing so. Apart from this, Rangers have done as much as they possibly can to ensure that these are paid. The “judgements” of the SFA and other clubs has actually made this more difficult, and goes against the Articles of Association (as per points 1. and 2.).

9. Under the existing rules, the sanctions which are being proposed against Rangers are not permissible, and any changes to these will be applied retrospectively, which is not allowed because the retrospective criteria relates to when the breach took place and not the point of judgement.

10. The company running Rangers football club, the club itself, and the other clubs similarly affected for whom punishments have been invented, have had no awareness, in rule nor law, of these invented “consequences” when the circumstances themselves were unfolding. Therefore they were unable to mitigate themselves, and had no clear sense of doing anything wrong, which is against all the principles of law and the establishment of rules in particular on behalf of, and to protect, member clubs.

All of the current sanctions being made against Rangers Football Club, as well as being of dubious validity in relation to the above points, may also in future be determined to have been applied against the principles of the rules of the Association and in breach of the spirit or rules of a higher legal authority, making the Association in its rush to punish Rangers and remove them from their position in top flight football, something they may not be authorised to do, could have serious consequences for the SFA, and at the very least make them look like a complete laughing stock to the rest of the Football world.

It could provide Rangers with the moral justification needed to make an application to another football association for incorporation into their league structure and remove the requirement for them to apply to the SFA and/or wait two years which the other clubs must do. UEFA should intervene in this but I am also concerned that they may uncover a can of worms which shows that such actions as undertaken in Scotland in particular, have never actually been applied properly and do not relate to any footballing considerations whatsoever.

In fact, what the SFA have done in making their determinations, as well as acting outwith their own rules and by definition the rules of the game, as they are incorporated in UEFA and FIFA membership, is to make it possible for individuals to come in and manipulate football clubs ensuring that the club itself, and not these individuals, will be punished. This could precipitate rich individuals from rival clubs coming in and destroying football clubs and walking away without punishment. It has to be remembered that Rangers fans and staff have also been wronged by such individuals, but have been prevented from going after them, and also have been prevented during the process from making acts of reparation, establishing fan ownership and being determined the right to self-determination when it comes to which division we would like to play in next season.

The SFA have been shown to be fools here if not villains, and extremely narrow-minded. If ever there was evidence that the old FA/SFA distinction was completely outmoded, and that the SFA should be scrapped and Scottish football, at least in a professional sense, be incorporated in a British league set-up, then this is it. Perhaps the unfair and unlawful and plain morally wrong treatment of Rangers football club, its staff, players and its fans, will lead not only to financial compensation and an apology to the club and its fans, but also to two great outcomes – the dissolution of the outmoded and irrelevant, holding back progress institution that is the Scottish Football Association, and The Rangers FC being free to participate in a more competitive league more in keeping with its stature as a cub.

Few of the other clubs whom both of the Old Firm have kept alive for so long would have the resources to be able to join either of them and may be able stick to part-time football in future. This would be a win-win pragmatic solution for everyone and an outcome ironically more in keeping with the interests of members than the current shambles.

Maybe someone with authority and some common sense will act for the good of football, maintain the clubs in their current divisions and make a determination when the full extent of the facts are known and those individuals held responsible for this shameful episode, both in trying to wreck RFC and in inventing ludicrous rules and punishments, are brought to justice.

Whyte: The legal position

I’ve tried to summarise the key legal issue regarding Whyte’s takeover of Rangers below.

The battleground on which the actions against the club will be fought is the legal doctrine of identification (otherwise known as “attribution”).

In order for the actions of an individual to be attributed to a company, that individual must be the “directing mind and will” of the company. The rules setting out the circumstances in which such an attribution can be made are drawn from a line of judicial reasoning that begins with the case of Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd as far back as 1915.

The principles set out in Lennard’s were refined by Lord Denning in 1957 in the case of H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd. Denning stated:

Some of the people in the company are mere servants and agents who are nothing more than the hands that do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such.

Denning’s judgment was quoted by Lord Justice Reid in Tesco Supermarkets Ltd v Nattrass – one of the most important cases regarding the doctrine of identification/attribution.

In order to attribute a state of mind to a corporate entity, therefore, it is necessary to identify a directing mind and will which had the required state of mind.

Now, the issue we are presented with is whether Whyte could be said to have been the directing mind and will of Rangers while CEO.

I understand that our counsel argued before the SFA committee that Whyte was not in fact the directing mind and will of Rangers, but was actually a “lone wolf” or renegade. His actions (non-payment of tax bills, failure to disclose director ban etc…) ought not, therefore, to have been attributed to Rangers. Rangers did not bring football into disrepute through the actions of Whyte – Whyte’s actions were unconnected.

The SFA Appellate Committee rejected this argument. Rangers were subsequently punished, albeit unlawfully (as the Court of Session made absolutely clear).

The criminal investigation into Whyte’s takeover casts considerable doubt, however, on the safety of the SFA’s actions against Rangers. If it is established that Whyte’s takeover was fraudulent in some way (and I outline what I think the biggest issue is below).

Whyte’s agreement with Ticketus has received no small amount of attention over the last few months. The key issue is whether Whyte used cash provided by Ticketus to pay off Lloyds and inherit the floating charge over the assets. This was the condition of purchase – aside from the nominal sum of £1 for Murray’s shares. If Whyte did purchase the company with Ticketus’ cash – he’s got major problems.

Pursuant to the Companies Act 2006 it is illegal to purchase a company with that company’s assets. The cash advanced by Ticketus was secured on season ticket revenues which would be generated in future seasons. This revenue was, and is, Rangers’ asset. It is therefore quite possible that Whyte engaged in illegality (financial assistance) when he took over the club.

Whichever way Whyte’s takeover may have been illegal, if it can be shown that he did break the law – his actions must be seen in a completely different light. He did not own the club legally, he is a fraudster.

I cannot for one moment think that the sanctions against Rangers can be in anyway fair if it is shown that Whyte purchased the club by illegal means. I’m trying to get to the bottom of this thorny issue, but there are a few big questions:

1. Can the Whyte takeover be reversed?
2. If so, what happens to the money/D&P?
3. If too much water has already flowed under the bridge, what is the legal position regarding Green’s “ownership” of Rangers’ assets? I say “owned” as I’m convinced that he doesn’t own them himself.

I’m on the case – watch this space.

Ron Scott – The Voice of Experience – Sunday Post – July 1 2012

*This article was not written by TheBlue Blog, it is the property of The Sunday Post and it’s writer Ron Scott*

The way the Scottish football authorities have allowed the Rangers scenario to unravel is nothing short of disgraceful.

The whole sorry episode should have been nipped in the bud.

Instead we’re now in the situation where it’s not just the survival of Rangers that’s at stake, but the Scottish game itself.

As the fans and clubs become hysterical about how the Light Blues should be punished, it’s worth remembering the Ibrox club has done nothing unlawful.

Employment Benefit Trusts are legal. That’s why HMRC wants to close this particular loophole. Informed sources suggest, at worst, Rangers will receive fine, and there appears no danger of having to pay back-tax on the system Sir David Murray implemented.

The SFA then decided to impose severe sanctions on Rangers after awakening to the fact that Craig Whyte was not a fit and proper person to own the club.

Yet the independent Ibrox board set up to look into Whyte while he was still negotiating with Murray decided themselves that [he] wasn’t fit and proper to own the club. They told the SFA that at least fifteen months ago, but the powers-that-be decided in their wisdom to take no action at that time.

Now the situation is like a runaway train full of explosives that’s about to be derailed and blow up the whole of Scottish football.

Let’s face the obvious here. Not even Celtic will be able to sustain their present level for long without Rangers. So if they end up having to make cuts, how is the rest of Scottish football going to survive?

There are already whispers that other SPL clubs will be forced into administration. There is even talk of part-time football at the highest level, never mind the First Division.

It’s all very well to bleat on about sporting integrity. But why risk the entire future of Scottish football especially when the facts clearly show Rangers have done nothing wrong ! At the end of the day, the main villan of the piece remains Whyte, with Murray a close second.

It’s totally wrong to run the risk of losing Rangers altogether and sending down the entire game with them. It is especially wrong when the facts show there is absolutely no need for the authoeities to treat Rangers the way they appear hell-bent on doing.”