Lord Nimmo Smith and the Hare and the Tortoise

Good Morning,

Many years ago– and it is more years than I care to remember– a Law Lecturer stood before myself and my class mates in a lecture theatre and tried to explain how a misapplication of the principles of law– or indeed the logical application of only selective parts of the law itself, when applied in relation to selected facts and circumstances — could lead to an illogical legal conclusion in any given situation and set of circumstances.

He added that when this phenomenon occurred then clearly the law had gone wrong and there had to be  a reappraisal of the legal principles and facts considered and applied– alternatively if no other conclusion could be reached other than one which produces and illogical result– then the law itself had to be changed.

To keep his lecture as simple as possible for us thickos in his class, he repeated the tale of the hare and the tortoise as told by a mathematician applying pure logic and a selected theory and law of mathematics.

The theory– which is perfectly logical— is that where you have one object which is stationary and another object which is travelling towards the stationary object, then after a certain period the moving object will have halved the original distance between it and the stationary object. After a further period of time, the intervening distance will have halved again and after yet a further period of time that distance will have halved yet again and so on ad infinitum.

In theory, the distance between the two objects will perpetually continue to be cut in half even down to the most infinitesimal distance.

However applying this theory alone— albeit that it is a mathematically proven theory based on a set of given numbers and proven formula— then the Tortoise never caught the Hare– he just got closer and closer and closer– and so in any race the Tortoise never ran past the Hare! In short, by this theory the Tortoise could never have won.

Yet, as we all know– despite this demonstration of clear logical thinking— The Hare got gubbed and the Tortoise was victorious.

It will come as no surprise to many that the tale of the Hare and the Tortoise with its illogical conclusion as told by the law lecturer came to mind when I came to consider the terms of– and more importantly the implications and consequences of—- the recent decision and report of Lord Nimmo Smith and his colleagues.

By this time there will have been many many far more learned commentaries on the detail of the decision than anything that I could come up with. However there are some points that just stick out for me which require further thought and clarification, and then I think there is a need to just stop and pause to take time to think about where this decision– if it is allowed to stand–leaves Scottish Football and those involved in, and those who support, it.

With respect to Lord Nimmo Smith– his report makes no sense in the bigger picture.

For example- take the position of Sandy Bryson. When it comes to any appeal of findings on any aspect of registration– Bryson is effectively the appeal body– so how can he give evidence at all?  In addition, unless I am mistaken, this inquiry was dealing with the application of the rules of the SPL whereas Mr Bryson is the head of registration for the SFA- an altogether different body– or so we are told. Accordingly quite why an employee of one body should be called upon to give weighted evidence on the internal workings of the rules of another body is more then curious.

Whatsmore Bryson is someone who has a potential conflict as it has long been thought that the registration process within the SFA– or perhaps those who administer it— have been caught with their trousers round their ankles when it comes to this whole debacle. After all he would be part of the body who has to look at club annual returns in respect of the SFA rules- which annual return is meant to contain all contractual details between club and players. Further, each year the SFA have to issue a UEFA licence which once again calls for all contracts and agreements to be disclosed and in addition to that thiose regulations call for someone within the SFA to carry out an annual audit of all documents and contracts between the club and all sorts of people- not just players– including managers, chief executives and so on– and this has to be completed and approved before a UEFA licence can be granted.

Yet despite all of these tests and requirements, inspections and compliance tests, Sandy Bryson’s department failed to uncover or have disclosed to them various contracts and agreements relating to payments to players– and presumably others such as managers, directors and the then CEO who, you may recall, went to the Court of Session where it was shown ( by Rangers PLC no less ) that he, in particular, had asked for his own contract to be placed in the shredder so no one could see it!

However, leaving potential ineptitude aside for the moment, Sandy Bryson gave his evidence and in one easy movement Lord Nimmo Smith dropped the ball completely. There appears to have been no examination of  Bryson’s logic at all, nor his interpretation of the rules of registration and so there is no potential contradiction or alternative view of his interpretation. As this is an inquiry, and a key area of that inquiry turns on Bryson’s interpretation I don’t think the job is complete if you simply accept the word of Bryson. An Inquiry is meant to…. enquire…… to ask questions.Yet it seems to me that Sandy Bryson and all he said was accepted with no enquiry whatsoever.

That is especially odd when you consider the all important clause on which his evidence turns which reads as follows:

Rule D1.13: 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, other than for reimbursement of expenses actually incurred, between that Club and Player, to the Secretary, within fourteen days of such Contract of Service or other agreement being entered into, amended and/or, as the case may be, extended.

By this time, everyone knows what Sandy Bryson said and how Lord Nimmo Smith relied on his interpretation in reaching his conclusions- so I won’t repeat all that.

What I will say is this. The regulation concerned uses the word “must”—- you MUST disclose all contracts and arrangements in order to validly register a player— Rangers clearly did not— they failed the “must” test– whether deliberately or accidentally does not matter. Failing the must test requires no sporting advantage or anything like it– must means must! If you haven’t complied with “must” then you have not de facto registered the player– even if you think you have and even if the SFA or the SPL think you have. In any legal rule or document ” Must” is a very carefully chosen word– it is chosen over and above “should”,  “shall”, “Is Obliged to” or any other similar word or phrase. The use of the word “Must” denotes the highest possible duty or obligation- and most importantly– the most drastic and catastrophic set of consequences for failure.

If it says you must– then you must– end of! And if you didn’t then everything that follows from the word “Must” in the clause just does not happen. It is clearly a holy prerequisite- an absolute with no wriggle room!

Yet Sandy Bryson was able to come up with a scenario and an interpretation which makes a total nonsense of any reasonable argument why the word “must” is at the very start of the rule concerned– and no one– not one of the learned panel appears to have questioned  him or his interpretation despite all logic telling you that he cannot possibly be correct.

Presumably, in Lord Nimmo Smith’s world— The hare beat the tortoise after all?

However, lets move on from there.  Taking Nimmo Smith to be correct in his application of the law and  his assessment of the evidence, he is still withering about the Rangers PLC board saying that they failed either through negligence or wrecklessness to disclose the payments to the football authorities. Further he clearly says they took no advice on whether they should or should not disclose for fear that they would be told plainly that any such disclosure would jeopardise the tax scheme the Directors Rangers PLC were so clearly hell bent in following.

In other words the choice to deliberately not disclose the contracts and documents  was a calculated one where they put the desire and need to preserve the tax benefits they envisaged before the football rules demanded by the SPL and the SFA— and as I have mentioned up above the key rule uses the word “must”.

What does that tell you about the attitude of the Directors running that company? What does it say about the desire to ensure that Rangers Football Club, its players and its fans were all properly represented when it came to matters involving Rangers PLC, the SPL and the SFA?

It tells you that these directors did not give a jot as long as their tax scam– legal or not– was not jeopardised. The Football Player, The Football Fan ( of any club ) and the Football Authorities and their rules could get stuffed– they did not count as much as the need to ensure that the tax was kept to a minimum by fair means or foul.

Now I have said all along that in my opinion there are a huge number of victims here– victims of this board and its, to be frank, cavalier attitude towards the rights, hopes and aspirations of others involved in football.

I have said on several occasions that both the Rangers Players and the Rangers Fans are among the innocent victims– but they did gain a benefit from the duplicitous actions of the board of Rangers PLC who are the guys who are really to blame for a whole host of calamities– not least the ultimate liquidation of Rangers PLC and the need for The Rangers to start again in the lower leagues.

Take a guy I have a bit of time for– Billy Dodds. Billy has repeatedly said on air that it would not be fair if any medals were taken away from him because he and all the other players did nothing wrong, never believed that they had done anything wrong and just tried their best.

I have no reason to disbelieve him at all— at any time when I have seen Billy Dodds play for anyone I have always thought he tried his socks off.

However, he was part of a team– and that team includes the backroom staff right up to board room level– and up there, the team members chose to play fast and loose with Billy’s heartfelt graft. By their decision not to risk or jeopardise their tax scheme, they decided to peril any medals or rewards Billy won in the blue shirt. They chose to break the rules in so far as they related to Billy and his team mates registration– and in so doing they sure as hell did not consult Billy– or anyone else on the pitch.

Now, if you are a member of an athletics relay team and one member drops the baton or runs outside of the lane, then despite your heartfelt efforts and your total sincerity you will be disqualified simply because the rules have been broken– even if there is no real sporting advantage. That is just the way it is.

Lord Nimmo Smith slates the old Rangers Board and says they bear a heavy responsibility. Heidi Poon slaughtered the same people in her dissenting judgement of some 80 pages in the FTT and the remaining two judges there chose not to demur.

However what should also be borne in mind is the evidence adduced in the case of Martin Bain v Rangers PLC where it was revealed to the court that Martin Bain had ordered the Shredding of his own contract and other documents for fear of leaving himself exposed to the rule of law. Then add to that, the fact that in another tribunal, another Director of the same club was banned from all involvement in football for conduct which was described as  as close to match fixing as you could get. That conduct was the deliberate non payment of tax in order to further and protect the trading viability of the football club.

Presumably, the players who played during the Craig Whyte regime also tried their socks off yet the panel described the off field activity as very close to match fixing.

Further remember, that while Mr Whyte was castigated for not disclosing his disqualification from being a director, there was no suggestion that he had shredded contracts, withheld documents relating to player registrations and payments and so on for a period exceeding a decade.

With all of that info available, and given that the Nimmo Smith inquiry was to be for the benefit of everyone in football– players, ex players, managers, ex managers, fans, officials etc why does Nimmo Smith not look in detail at  those directors who he so clearly criticised — their position within RFC and their experience in football and sports administration? Because one of the things he could have potentially done was recommend further sanction against  the directors themselves just like a previous panel did with Craig Whyte.

Yet he makes no mention of any possible sanction against the people involved.

So why not examine who did what or failed to do what? Why not for example sanction the individuals– as it appears that they have brought the game into disrepute— surely if you criticise a ref and that amounts to disrepute then failing to comply with rule registration for a decade in order to cover up a tax scheme merits at least a charge or a discussion about a charge of bringing the game into disrepute or more?

Failing to examine that possibility seems bizarre to me.

I would also want to ask some questions here. How do the former Rangers players feel about the fact that it now appears irrefutable that the then directors chose not to disclose all their contractual documentation? Would they trust those directors and officials again? If they have to have dealings with these same people in the future– as a manager or coach of another club, or as a players agent– what do they think about this past conduct where their playing papers were not perfect by design?

What do other managers and club directors think of that?

We know that Campbell Ogilvie, who was very much involved in all of this, is at the heart of the SFA– for all we know he was also at the heart of the attempted negotiations where a place in the SPL was to be given in return for some titles being taken away. What do Rangers fans and former players think on that topic?

Also– the head of football administration at Ibrox from 2003 was Andrew Dickson. Even allowing for a decade of “Administrative errors”, how do fans feel about the fact that he still performs that same role today apparently?

Re no sporting advantage on the field of play.—- I think Nimmo Smith takes a very narrow interpretation of what amounts to a sporting advantage and what does not. I think he sees that Rangers were able to field eleven players who they intimated would be their registered players over the course of any year, and that those players were registered ( albeit imperfectly if we accept Bryson at face value ) and so “eligible” to play.

 Well there is a strong argument to say that even if they were registered ( which is a real stretch of the relevant rule )  they were not eligible because key parts of their contract had not been disclosed and the clause says that to be registered AND eligible those contracts “must” be disclosed.

Well as we all know the side letters– which if I recall correctly certain former RFC Directors said did not exist at all— were not disclosed.

What Nimmo Smith appears to say is that by failing to disclose the contracts, Rangers gained no advantage on the field of play as it was still eleven versus eleven!

However, what Nimmo Smith does not take into account is the cumulative effect of his own findings namely that the side letters were not disclosed for fear of voiding the tax scheme, that this was a deliberate and prolonged breach of the rules, which enabled Rangers an off field financial advantage of £47M over a ten year period– which obviously enabled them to buy more and better players—- and which £47M may well not have been available to them had they disclosed and had to pay their taxes— and which £47M or any part of it— was not available to any other club in the same way because they had chosen to comply with the rules and had disclosed all payments made with the consequence that they were open and transparent about all financial arrangements.

And here I go back to Billy Dodds’ argument about he and his fellow players doing nothing other than trying their heart out and so it would be unfair to take away medals etc– as he wants to show them to his kids and grandkids etc.

Whilst I understand– and sympathise with that— every member of every other team in the league also tried their heats out and wanted to show their kids and grandkids winners medals. Billy Dodds is only able to do so because he played in a team with players that Rangers could not otherwise have afforded had they been forced to pay tax on their salaries– like every other team in the league. By the way– don’t take my word for that– that was the evidence of some of the MIH contingent before the FTT.

However it is only once you have been open and honest about all financial and contractual arrangements that your players and your team become eligible to take the field and get the chance to try their heart out against similarly registered and rule compliant opposition. Only then can your clever board directors and company lawyers and accountants seek to secure the maximum tax advantage in accordance with the law of the land as a result of people paying good money to see a game of association football played within the rules— and that is the off field rules and the on field rules.

Nimmo Smith does not start from that point and he should.

If Billy Dodds had played for a Dundee United team or an Aberdeen team which was financially enhanced by £47 Million over a ten year period then I wonder how many more medals he might have won?

Remember too that Nimmo Smith’s findings are only recommendations– so the SPL board have to consider the recommendations– but they need not do that in isolation. That board can look beyond the terms of the remit to Nimmo Smith– so they can look at the tax case and so on. So– If I were them I might just suspend all sentence– leave the whole thing standing in abeyance until after the UTT decision and I would seek clarification on the registration process from the SFA by way of official letter and if necessary from UEFA–as it would appear  that the registration interpretation of the SFA does not sit well with the arguments presented by UEFA re  FC Sion and by other authorities elsewhere such as in the case of Melbourne Roar FC.

Within the SFA rules it states clearly that the association, the clubs and the players will be bound by all rules and regulations of the SFA, UEFA, FIFA and by the findings of the court of arbitration for sport– which has previously ruled in terms which appear to say that Sandy Bryson has taken the wrong approach thus making the Nimmo Smith findings fatally flawed.

Further winning or coming high up in the SPL is the qualification standard to Champions League or European  football which, as mentioned above, requires further licensing provisions of an exacting standard. Looking at the SFA Handbook and the rules and regulations on their site, it is not only the players registrations that have to comply– check those parts where the clubs have to disclose all contracts for managers, coaches, youth coaches, physios, CEO’s and so on

— where does Nimmo Smith look at any of that?– the answer is nowhere.

So what are the SFA doing about their rules and the potential breaches of those rules? Given the statement made by the CEO yesterday are we just to forget about those rules and regulations as if they did not exist?

How does that serve football in Scotland and elsewhere?

In the wider picture we can see that there has been a flagrant and complete breach of administrative function within Scottish Football– no one on the terraces has any idea if they are watching a game that is properly administered, players that are properly registered, club officials that have complied with basic fair play duties, and all overseen by executives who have openly accepted that they would flush the rules down the toilet for the sake of expediency— all because of one club– and the desire not to simply implement rules for the sake of that one club.

There is no trust in the game at all any more– none whatsoever.

I’m afraid this is no longer about just the conduct of Rangers PLC over the decade examined by Nimmo Smith. It is about the absolute lack of governance and regulation by SFA the SPL and those who were in charge of those organisations and who were meant to be ensuring that all the rules were complied with before the players take the field.

In that regard Scottish Football has failed totally for over a decade or more– that is a straightforward and accepted fact.

At the very least Nimmo Smith is saying that a team of suits were able to breach those rules to protect their own vested interests and that the checks and balances within Scottish Football Governance were ill equipped to discover it or stop it despite there being two separate licensing functions and a supposed compliance audit each and every year.

What is the fan to make of that?

Reassessing fixtures, stripping titles and all that stuff is far less important than ensuring that those who were involved in creating this mess– and those who were involved in either covering it up, bargaining it away, or who simply failed to take the correct action for the sake of expediency are removed from football for good.

To ignore that notion is to effectively declare the hare as the winner of the race because in theory the tortoise was never going to be allowed to win as he could never have passed the hare no matter how hard he tried.