A Civil Action: Recipe for Disaster?

The developments in Scottish football, this year, have been astonishing and rather controversial. For the sports lawyer, this is a remarkable opportunity to examine and critically analyse further the perennial battle between state regulation and self-regulation. Rangers have certainly given us this opportunity with their decision to challenge the transfer embargo imposed on them, by submitting an application to a civil court in Scotland. Irrespective of the Scottish court's decision, the question remains whether the football authorities in Scotland would impose further sanctions on Rangers as a result of this development.

Several views have been expressed already and many more will probably appear pending the final decision by the Scottish court. It is my normal practice to listen to all views and evaluate the efficacy and probity of the evidence available. Above all, it is also normal practice for a lawyer to always follow the law and the regulatory framework in place, before the appropriate advice is given to the client. With this in mind, it is not unreasonable to suggest that the application submitted by Rangers to the Court of Session may create several ramifications, not only for the future of the club, but for the future of Scottish football too.

It is a well established fact that clubs who attempt to seek remedies before national courts, may violate specific FIFA and UEFA regulations. This submission cannot be dismissed at face value nor could it be ignored at the expense of doubtful journalistic information. This may indeed make me sound arrogant or force me to come into direct collision with many of my journalist friends; however, I am in a position to appreciate the regulatory framework and the politics of football, as I have been involved in several appeals before CAS since May 2010, on the same matter and I have also advised four clubs in Greece, one in Spain, one in Holland and one in South Africa, on the very same issues under analysis.

On the advice given to a client, you cannot rely on journalistic information, who could be based, most of the times, on sources who base opinions on politics rather than the law. On the facts and subject to the rules currently in place, the advice is clear and unequivocal: FIFA rules do not allow clubs to seek remedies before national courts and when clubs decide to seek such remedies before national courts, the national federations are obliged to impose sanctions. Similarly, UEFA Statutes also prohibit clubs from seeking redress before national courts, or any other courts of arbitration. One could appreciate, therefore, that the Rangers decision to file an application before a national court, against a decision of a purely sporting nature, is, to say the least, brave and, at the same time, quite dangerous.

One would also question the propriety of such decision and the advice given regarding such decision. On the face of it, an argument could be made that Rangers had no choice but to file such an application before the Court of Session. This is because the rules of the SFA do not allow for a further appeal to the CAS and the decisions of its disciplinary bodies are final and binding. Rangers do not have the time and probably the resources to challenge the legality of the rules that do not allow for an appeal to the CAS. Instead, they decided to challenge something that could, in theory, be beneficial. In terms of legal advice, the law is clear. In terms of the decision making, the risk is great. Those in charge of the decision making at Rangers would have to answer a lot of questions if the Court's decision is unfavourable to Rangers. The view 'we have nothing to lose' may have prevailed, but we cannot speculate in the absence of evidence. What we can do, however, is to follow the public statements of those advising Rangers.

At a first glance, the legal basis of the application before the Court of Session, appears to focus on the alleged impropriety of the sanction imposed on Rangers in relation to the transfer embargo. The club's submission is that in the absence of a relevant sanction of a transfer embargo, the disciplinary committee of the SFA exceeded its powers and 'made rules' on the go. This is, I would add, a blatant disregard of natural justice and due process. I would also add that the application may have a very good chance of being successful, given that governing bodies must adhere to their rules and ensure that all parties concerned follow the normative environment the regulator created. This, of course, incorporates the SFA's own disciplinary committees who have a duty to ensure that the rules are applied purposefully and not pedantically.

Given the above submissions, the application submitted by Rangers may end up being successful. This does not, however, bring a conclusion to the matter. In my opinion, the Court may come to the conclusion that the SFA's disciplinary committee did in fact exceed its powers in that it applied a sanction that is not available in the SFA's regulations. In this case, it is highly likely that the Court would deem the committee's decision void. This is not, however, going to be a reason for celebrations. The Court of Session does not have jurisdiction to apply the correct sanctions, but only to decide on the appropriateness of a decision taken by a governing body. The Court, if it accepts the application filed by Rangers, would probably send the matter back to the disciplinary committee of the SFA, so the latter could apply the correct and appropriate sanctions. In the absence of the transfer embargo sanction, it is not difficult for an independent observer to appreciate what the remaining sanctions would be. In my view, they would not be simple fines.

Finally, it remains to be seen, whether the SFA would enforce further sanctions against Rangers regarding the club's decision to seek remedies before a national court. If the SFA decides not to proceed further, FIFA and UEFA may decide to interfere. Again such involvement would very much depend on FIFA's and UEFA's political decision making. The examples in relation to other countries are many and self-explanatory. FIFA and UEFA have the will and the  power to interfere with the decision making of a national federation. UEFA's sanctions, in particular, on such matter, are many and range from a simple reprimand to a complete ban on the national team and the clubs. It is this latter sanction that may affect Scottish football in a very damaging way.

In my view, the SFA's disciplinary panel decided to apply a sanction which, under the circumstances, could be deemed to be proportionate and allow Rangers, at the same time, to continue trading. Had the Panel applied the regulatory framework with a literal and orthodox interpretation, the situation for Rangers would have been far worse. Still, the application to challenge the SFA Panel's decision, may end up being 'utterly irretrievable' for Scottish football as a whole...

Dr. Gregory Ioannidis

26 May 2012

PS For the sake of clarity, I would like to state that I am not suggesting in this article that the Application submitted by Rangers will be successful. I am simply analysing the possible ramifications in the event such application is successful.