Does Punishment Fit the Crime in Sports Law?

The Rangers matter is now reaching a very crucial stage in terms of legal analysis and a consideration of the application of possible sanctions. Any prediction could be extremely subjective as the regulatory framework of the SFA allows for the application of a wide range of sanctions, including a combination of such sanctions.

The latest development in the Court of Session demonstrates that the independent Appellate Tribunal of the SFA will be the final arbiter. Lord Glennie's reasoning, as predicted in a different post here, produces an orthodox and literal interpretation which is going to determine the boundaries of the SFA's judicial creativity. 'Consider only the rules you have' is the message from the Court and within these parameters, one would attempt, without prejudice, to apply the sanctions that would best fit the crime.

The job of the Appellate Tribunal would be extremely difficult. We are not considering here whether the allegations are valid. These have been proven already. We are only concerned with sentencing and as in criminal law, different considerations exist. The job of the independent Tribunal is difficult, simply because there is a wide variety of sanctions available. At the same time, the Panel, which I expect it this time to be different, will be aware that they have a combination of sanctions at their disposal. In applying these sanctions, they would first attempt to interpret the intention of the legislator towards the inception of a particular sanction and the surrounding circumstances in which the offence occurred. They will also have to consider whether any aggravating factors exist and whether the offender is repeating the offence. 

My personal view is that the Panel will not consider the Tax matter which is under examination before a different forum, nor will they consider the 'double contracts' matter which is under investigation. Any outcome of these two different matters, would have to be part of a different and separate sporting sanction, if any. The Panel will, therefore, concentrate on the original findings that relate to the evidence already considered.

At this point, it is my view that the Panel will consider again the Articles of Association of the SFA as well as the Judicial Protocol. I am also convinced that they will consider the rules of FIFA and UEFA and the relevant jurisprudence of, both, the Court of Arbitration for Sport and the one of the Dispute Resolution Chamber of FIFA. It is not an easy job, as the principle of proportionality would 'play' heavily on their minds. One issue that could also determine the extent of the sanction will be the Rangers' Application before the Court of Session, which violated several other rules. Ignorance of the rules could not sustain a valid defence, so the question is not whether there will be a sanction for such violation, but instead, what the sanction will be. 

Even if the members of the Panel are forced to consider the additional sanction for the use of the national court by Rangers, my personal opinion is that between expulsion and suspension [from the SPL competition], the Panel will consider and choose the latter. This is because Rangers have already been banned from European football and considering that the club submitted an Application to the Court of Session, this European ban may be extended to a further season. In addition and considering, at the same time, all the surrounding circumstances of the offence, the Panel may decide to suspend Rangers from the championship of the SPL for a maximum of 10 games. This in effect would cause Rangers to lose a potential maximum figure of 30 points in the League [as opposed to deducting 30 points and allowing them to start the season from the beginning]. Finally, these sanctions could also be supplemented by a possible expulsion from the Scottish Cup, which would effectively remove from Rangers a further financial opportunity.

In my opinion, the combination of these different sanctions would most certainly fit the offences, so far, and would observe the principle of proportionality. At the same time, they would give Rangers the opportunity to continue trading and an opportunity to realise that the sporting integrity of the game is paramount. Although some of you may disagree with such interpretation, we need to remember that the rules have not been created so they can exterminate a club, but to ensure that fair competition is observed and the good reputation of the sport is protected. Given that additional sanctions may be imposed later for the other two matters under investigation, it is submitted that my choice of the above sanctions would be fair, just and reasonable.

As I explained above, any consideration of possible sanctions could be subjective and it would certainly be subject to intense criticism. There would always be a difference of opinion and such opinion would possibly be surrounded by the unbearable lightness of human prejudice. The Panel's job is extremely difficult. But it is also sacred and noble. The search for justice knows of no limitations or boundaries. As argued previously, justice and convenience are at odds; but in this matter, where the members of the Panel have to make a decision, they speak with a single voice...

Dr. Gregory Ioannidis

2 June 2012