The SFA’s Judicial Panel Disciplinary Tribunal (JPDT) process itself is now under scrutiny .
Aberdeen FC have asked for change and the Celtic Supporters Association have written to Ian Maxwell SFA CEO expressing concerns about judgements reached concerning recent on field incidents that appear to herald in A Cloggers Charter.
However the whole Judicial Panel Protocol (JPP) on which the JPDT is based (and which was the brainchild of the discredited former SFA Chief Executive Stewart Regan) has shown itself to be a means of perverting justice rather than providing it since it was introduced amidst a loud fanfare at the SFA AGM in June 2011 (the same one that saw Campbell Ogilvie elected SFA President)
To see how the JPP has been misused we need to start with a definition of judicial which according to Websters dictionary is:
of or relating to a judgment, the function of judging, the administration of justice
The latest Judicial Panel Protocol can be found on the SFA Web Site .
One of its Founding Principles is:
2.2 Principle 1 – Economic and expeditious justice. The objective of the Protocol is to secure the Determination of disciplinary proceedings arising in respect of Association Football and that Decisions are made economically and expeditiously in a fair manner. Tribunals appointed from the Judicial Panel may impose reasonable procedural requirements on Parties to ensure that matters are dealt with economically and expeditiously.
The word justice actually appears nine times and injustice three times, so it would appear that whilst economy and speed are the means to the end, that end is justice, but how has that panned out since June 2011?
I am grateful here to Glasnostandtwostrickers for three enlightening articles in Pie and Bovril in which he reviews the protocol a year later in 2012 with suggestions that with the passage of time have been shown to be prescient when made. They can be read at:
Of particular interest is the important view that the process is not independent of the SFA and the following is an extract from Pie and Bovril 3 covering that aspect which explains how the JPP has been used by the SFA to pervert rather than administer justice.
“So to what extent does the JPP system achieve that independence? We think that it does so to a far greater extent than the old system, but not nearly enough. Ensuring that the Tribunals are chaired by respected members of the legal profession was perhaps the single most important reform to make. But there remains a serious lack of independence in the JPP system. This centres on the roles of the SFA’s Compliance Officer (Vincent Lunny) and the SFA Secretary (Stewart Regan) in the process of bringing a case in front of a Tribunal.
The Compliance Officer’s task is to monitor what goes on in Scottish football, assess whether anyone has broken any rules, and – if so – to initiate the disciplinary process. What happens if the Compliance Officer reviews a given event and decides that the conduct of the club, player or official in question doesn’t breach any rules? Well, that is the end of the matter. Neither the SFA executive nor the Judicial Panel can do anything about that decision. And, given that some SFA rules are very vague (e.g. ‘bringing the game into disrepute), the Compliance Officer wields a great deal of power. If the system is to be independent of the SFA, it the Compliance Officer must be independent of it. Yet, as things stand today, Vincent Lunny is an employee of the SFA.
The lack of independence associated with the SFA Secretary’s role is even more flagrant. Firstly, he can veto any decision of the Compliance Officer to mount a disciplinary case. Secondly, even if he allows a case to go ahead, he has the power to select (from the 100-strong Judicial Panel) the 3 individuals who will hear the case. The SFA claims that this takes place on a ‘cab rank’ basis (i.e. the Tribunal is formed of next 3 people in line), but no such rule is to be found in the JPP. On the contrary, it states that:
“Tribunals shall be appointed by the Secretary or his nominee from the Judicial Panel…The Secretary or his nominee may take such steps in respect of the appointment of Tribunals as he considers, in his sole discretion, to be appropriate.” (sections 7.2.1-2)
This applies equally to the Appellate Tribunals as it does to the first-instance Disciplinary Tribunals. So, in theory at least, the SFA Secretary gets two bites of the cherry. He may appoint to a Disciplinary Tribunal the individuals who he thinks are most likely to return the result that he desires. If they don’t, and there is an appeal, he also gets to choose the make-up of the Appellate Tribunal that will hear the appeal. And that’s only if he hasn’t blocked the case from happening in the first place. That is not to impugne Stewart Regan himself, but rather a system that allows him (and his successors) such great power.
The reasons why the JPP is structured in the way that it is are unclear. Despite the fact that it represents a great improvement over the system it replaced, more work must be done if we Scottish football is to have a genuinely independent – and therefore credible – system of footballing ‘justice’.
This article however will let the readers decide if they impugn Stewart Regan and shows how he has used the Judicial Protocol not to deliver justice but to prevent such an outcome, which might just clarify the reason why the JPP was structured in the way that it was and why it absolutely must be replaced on the lines of the suggestions in the excellent Pie and Bovril articles.
Perverting the Course of Justice.
The First instance can be found in this E Tim’s article where Regan and LNS met in February 2012 to set the terms of reference for the Judicial Panel that charged Craig Whyte with bringing the game into disrepute.( Telegraph Report 21 Feb 2012 )
As the E Tim’s article shows, whilst Whyte was charged with non payment of PAYE and VAT no charges were made with regard to his failure to pay the £2.8m tax liability that CW undertook to pay in his statement to Rangers shareholders of June 2011. This omission prevented scrutiny of what lay behind that liability, what created it and why it was accepted by RFC in March 2011 and how the SFA were able to grant RFC a UEFA licence in April 2011.
Whatever information Regan had from his telephone conversation with Andrew Dickson on 6th December 2011 and subsequent meeting at Hotel Du Vin with Craig Whyte along with Campbell Ogilvie and RFC CEO Ali Russell, appears not to have been passed to Lord Nimmo Smith in February 2012 when Regan and Nimmo Smith were drawing up the JPP Terms of Reference for the Craig Whyte Tribunal.
The second instance of Regan’s ability to shape outcomes is in respect of the LNS Commission. Here the SFA stood aside on the grounds they were the Court of Appeal should RFC wish to appeal the eventual LNS Decision and let the then SPL take the running in March 2012. This was a convenient argument given that Regan knew by March 2012 that RFC had a £2.8m tax liability that Sherriff Officers had called to collect that prompted a number of enquiries asking how the SFA were able to grant a UEFA licence in March/April of 2011.
That event caused UEFA and the SFA in September 2011 to discuss the submission RFC made in June 2011 under Article 66 of UEFA FFP that described the status of the liability as postponed and awaiting scheduling of payments but more of this SFA/UEFA discussion later in the context of the current JPDT charges of non compliance against Rangers FC.
It is inconceivable that by March 2012 when the investigation into ebts and side letters began that this September 2011 discussion along with his conversations in December 2011 that Regan was unaware that the tax owed was the result of RFC use of unlawful ebts nor the reasons why RFC had accepted liability for the sum owed arising from their use. However by standing aside there was no specific mention in the SPL Lawyers letter of 15 March 2012 that began the investigation of the by then clearly unlawful ebts that caused the £2.8m tax liability, although it did refer to all ebts with side letters from 1998. All rather convenient for Regan under the powers the Judicial Panel Protocol gave him.
The impact of this exclusion in skewing the LNS Terms of Reference and so the LNS Decision is now a matter of Social Media record that can be followed from beginning to end HERE.
The E Tim’s article already mentioned covers how events from February to April 2012 allowed the exclusion from the Craig Whyte JPP and The Reasons given by Lord Nimmo Smith in September 2012 appear in a follow up E Tim’s article where LNS himself justifies the exclusion of the £2.8m tax liability caused by RFC’s use of unlawful ebts in from 1999 to 2003 on what are less than convincing grounds unless he was kept in the dark by Regan.
The final instance of the misuse of the JPP begins in September 2017 when after court testimony stating when the £2.8m tax liability was accepted, the SFA, whilst rejecting an investigation into the handling of RFC use of ebts with side letters (and the foregoing on LNS spells out why) Regan accepted that the granting of the UEFA Licence by the SFA in 2011 should be subject to the Judicial Protocol process.
It took until mid-May 2018 for that process to come up with two charges of non compliance of SFA Articles by RFC that were put to TRFC presumably on the basis that they were responsible for the events in 2011, particularly when at least three current TRFC officials/Directors were in place in 2011, charges which TRFC said they would contest and subsequently in July wanted CAS involvement on grounds that the secret 5 Way Agreement requires it but on scope that that have still to be made known as the parties negotiate the terms of reference to CAS.
Now seven plus months is a long time to finally arrive at charges that according to a TRFC statement in May 2018 in this BBC report excluded the very period at end of March 2011 stating accusations were groundless, that caused the SFA to invoke the JPP process, but what is interesting about those charges is the absence (and as Regan left in February he might not have had an influence or was his parting shot), of any charges against the SFA itself of aiding RFC noncompliance at end of March in September 2011. The Compliance Officer himself resigned not long after the charges of non- compliance were made which raises eyebrows higher than Roger Moore level.
Perhaps it was because of possible SFA complicity in September 2011 that the Compliance Officer agreed to exclude this end March period although that exclusion was challenged by Resolution 12 lawyers just before the SFA Judicial Panel Disciplinary Tribunal (JPDT) sat on 25th June. No answers to the evidence backed questions in that letter, copied to Celtic, have so far been provided.
So what are the SFA hiding from or behind the JPP process this time?
Here is a copy of the Good News e mail of 19th September 2011 between Keith Sharp the UEFA FFP man at the SFA and Ken Olverman the Financial chap at RFC. In it Sharp tells Olverman that UEFA have verbally accepted the RFC submission of June 2011 under Article 66. (This admitted that the 2.8m EBT proposed settlement also required to be disclosed but is shown as a status of postponed (awaiting scheduling of payments) but that a further declaration will be needed under Article 67. This can be read here but note the Comments were not part of original exchange.
Note the tone of the advice given about the Article 67 submission but the point is, either Sharp of the SFA told UEFA porkies to get the monitoring submission under Article 66, that itself was false at the time it was made, verbally accepted or told UEFA the truth and as RFC were out of Europe there was an agreement to bury it between SFA and UEFA.
That UEFA involvement if the latter instance, would explain Celtic’s reluctance to take Res12 to UEFA in 2013 especially as we don’t know UEFA’s response to Celtic’s earlier letter of May 2012 to SFA re ebt investigation copied to Infantino at UEFA.
If the former instance i.e. SFA told UEFA porkies it makes SFA complicit in covering up the non compliance they are charging Rangers with!
I mention this in the context of the SFA Judicial Process being totally inappropriate in this case and why there should be a speedy independent investigation because the charges of non-compliance that the JPDT are covering relate to RFC and NOT the SFA which is perhaps why the terms of reference to CAS are taking so long to emerge.
There is clearly a conflict of SFA self interest here.
It would be more than ironic if the organisation bringing charges against Rangers were in fact complicit in the non-compliance by Rangers after it became public HMRC were owed tax in August 2010!
The point of this long blog is that the Judicial Panel Protocol introduced by Regan in June 2011 with the flaws pointed out a year later in The Pie and Bovril articles has been used by the SFA under Regan not to produce justice but pervert it since 2011.
Only a truly independent investigation will provide the justice that the crimes perpetrated against Scottish Football and its supporters since 2000 by RFC under the dishonest leadership of Sir David Murray requires, an investigation that should recommend changes that make the JPP independent of the SFA..
Justice is there to uphold the rule of law, that applies to football law as much as natural law and without justice there can be no law. That is where Scottish football now exists, in outlaw territory with the bad guys still ruling as they please, not as justice demands.
Until justice is served and seen to be served there is no law in football and no fake Judicial Protocol Panel is ever going to provide it.
The owners and Directors of all SPFL clubs need to revisit the scene of the crime, the 5 Way Agreement has done its job, a form of Rangers drawing big crowds will continue to exist, but on it has to be on more honest grounds, where who knows, they might even earn redemption.