The judge, Lord Glennie, decided at the Court of Session in Edinburgh that the sanction of a prohibition on registering players was outwith the penalties set down by the SFA’s articles of association and its judicial panel protocol. He therefore ruled that the transfer ban had been outwith the legitimate powers of the discipline tribunal and should not have been affirmed by an appeals tribunal, which was chaired by one of his colleagues, Lord Carloway.
However, the prospect of an own goal by the Ibrox club was raised by Lord Glennie saying that the matter would be sent back to the appeals tribunal for reconsideration.
The explicit punishments stated in the SFA’s rule 66 are a maximum £100,000 fine, suspension or expulsion from participation in the game, ejection from the Scottish Cup or termination of membership. The original judicial panel’s report stated that, in their view, “only match fixing in its various forms might be a more serious breach” than the financial irregularities committed by the Ibrox club. The report revealed that the tribunal had considered suspension of membership of the SFA to be an “appropriately severe punishment”, but had, in the final analysis, deemed it “too severe”.
Lord Glennie’s decision has put the ball back into the SFA’s side of the court, or at least that of an independent judicial panel. He said: “The fact that I find the imposition of the additional sanction to be ultra vires [beyond one’s powers or authority] does not necessarily mean the petitioners (Rangers) will escape to a lighter and ineffective punishment. That is entirely a matter for the appellate tribunal and not this court.”
The SFA released a statement last night expressing “surprise” at Lord Glennie’s decision, which also ruled that the governing body must pay the costs of the case. The governing body was further rocked by Fifa stepping into the saga. World football’s governing body take a dim view of clubs using courts of law to settle football disputes. Fifa have now pointed out that they expect member associations to take “direct action” against clubs who take them to court.
“We are surprised by today’s verdict at the Court of Session, especially since the original sanction against Rangers FC was imposed by an independent panel chaired by a leading QC and upheld by an appellate tribunal chaired by a Supreme Court judge,” said an SFA spokesperson last night. “We will now consider our position with our legal advisers before making any further comment.”
Lord Glennie had been told that the discipline tribunal had turned away from sanctions which were open to it, such as suspension or termination of Rangers’ membership of the SFA, because it felt those would be “too harsh”. A fine of £100,000 had been imposed but, on its own, that had been felt to be too lenient, so the additional sanction of the transfer ban was selected.
The SFA’s counsel, Aidan O’Neill, QC, argued that there must be room in interpreting the 61 pages of disciplinary rules for something between a fine, at the one end, and suspension or termination, at the other, which was proportionate and effective.
Without the “something in between” which had been selected – the transfer ban – the tribunal had said that suspension might have to be thought appropriate for such serious conduct, the court heard.
“Suspension is a greater sanction than the transfer ban which was imposed. Suspension would not just simply impose a transfer ban, but would stop any playing of friendly matches in the off-season,” said Mr O’Neill.
However, Lord Glennie agreed with the interpretation of the rules for which Richard Keen, QC, dean of the Faculty of Advocates, for Rangers, had argued. That was, in effect, that the only sanctions which the tribunal could impose were those listed in the rules for the specific charge, and a transfer ban was quite clearly not on the list.
“We are the victim of an unlawful sanction and we have had imposed on us a sanction that the SFA panel had no right to impose,” said Mr Keen.
Lord Glennie stressed that the only issue before him in the petition for judicial review brought by Rangers was whether the “additional sanction”, the transfer ban, was within the powers of the two tribunals. Lord Glennie was not hearing an appeal and did not have to decide whether the sanctions were too lenient or severe.
Ruling on a preliminary issue, Lord Glennie rejected a submission by the SFA that he was not entitled to hear the case because such matters were reserved for the Swiss-based Court of Arbitration for Sport. He also ruled that the expenses of the case before him should be met by the SFA.
The fact the matter was being heard in a court of law at all has been noted by Fifa, who have warned the SFA that they must now take action against Rangers for seeking recourse in the ordinary courts.
A statement from Fifa read: “At the time of writing we have not received any communication from the Scottish FA.
“In such a case, Fifa will ask the member association to take action so that the club withdraws its request from the ordinary courts.
“Fifa will closely monitor the situation so that the issue is resolved as fast as possible.”
Fifa’s articles of association call for member bodies to take “direct action” against clubs who seek redress over football matters before ordinary courts. Last year the governing body threatened to suspend the Swiss Football Association if it failed to impose strict sanctions on FC Sion, who had been involved in a long-running legal dispute with Uefa after being refused re-entry to the Europa League following a breach of player recruitment rules. Celtic took Sion’s place instead, while the Swiss club were eventually hit with a 36-point suspension.
An SFA source last night expressed a fear that Rangers’ actions could yet rebound on Scottish football as a whole, with Fifa having been prepared to take such extreme action in the case of Switzerland.
However, Rangers administrator Paul Clark hailed yesterday’s events in the Court of Session, saying: “We welcome the decision by Judge Lord Glennie today that vindicates the club’s position that the original SFA judicial panel tribunal and the appellate tribunal acted beyond their powers in imposing a transfer embargo on the club.
“The costs for this legal action have been awarded against the SFA and it is our position it is very regrettable that court action was required.
“Both we, and the SFA, will have to study the full ramifications of the judgment when it is published and either side has 21 days in which to decide the next course of action or whether they wish to appeal.”