Why Rangers' court win against the SFA raises more questions than answers

The Court of Session ruling has put the Scottish Football Association in a difficult position.

The landmark ruling of the Court of Session in favour of Rangers FC this week left many more questions than answers regarding the constitutional future of punitive measures handed out by the Scottish FA.

Rangers chose to challenge an SFA punishment which placed an embargo on them registering new players over the age of 18 for a period of 12 months, which was handed out after the club was found guilty of bringing the game into disrepute by not paying taxes under owner Craig Whyte.

Because this punishment is not specifically laid out in the SFA’s article of association, Rangers argued that it was unlawful.

Fifa laws disallow clubs and individuals within football from taking a national association to ordinary court and recognise the Court of Arbitration for Sport as the highest authority on such disputes.

So why did Rangers not go to CAS? Why did the Court of Session believe it held jurisdiction over the dispute? And what does it mean for the future of the SFA’s Judicial Panel?

  • Who is responsible for disciplinary matters?

The SFA’s Judicial Panel hands out disciplinary measures against member clubs found to be guilty of rule breaches.

Article 65 of the SFA’s Articles of Association states that a panel will “carry out and enforce disciplinary procedures” as well as appeals against these decisions. Article 65.3(b) specifically states that “the decision of the judicial panel in any appeal shall be final and binding on all parties concerned”.

  • Can you appeal an appeal?

The SFA does not allow for this. Once the appeal has been heard and a verdict delivered that is expected to be the end of the matter, as per article 65.3(b).

  • So why didn’t Rangers go to the Court of Arbitration for Sport?

The lawyers acting on behalf of Rangers FC argued that CAS had no jurisdiction over their case. They used the legal case of Ashley Cole versus the FA Premier League in 2005 as precedent for this.

In 2005, Cole was fined £100,000 by the Premier League for meeting with Chelsea to discuss a transfer while he was still under contract to Arsenal. An appeal by Cole reduced the fine to £75,000 but he then took the case to CAS.

The CAS ruling of August 31, 2005, stated that it had no jurisdiction over the dispute because the rules of the Premier League do not contain any reference to a right to appeal to CAS. Premier League rule R63 state that their decision is final and binding – exactly the same wording used in the SFA’s rule 65.3(b).

Lord Glennie at the Court of Session agreed with this argument and ruled that the civil court in Scotland was therefore competent to deal with the dispute between Rangers and the SFA.

  • Do Fifa expect football associations to direct all appeals to CAS?

Fifa leaves it up to individual national associations to decide who the ultimate appeal board should be. Article 64.3 of the Fifa statutes reads “disputes shall be taken to an independent and duly constituted arbitration tribunal recognised under the rules of the association or confederation or to CAS”.

The SFA chose to make their Judicial Panel the body which hears such disputes and not CAS, which is entirely legitimate under Fifa rules.

  • So why are Fifa concerned?

It is absolutely against Fifa’s statutes to take a dispute with a national association to the court of law. Fifa statute 64.2 states &“recourse to ordinary courts of law is prohibited unless specifically provided for in the Fifa regulations”.

Fifa insist that associations insert a clause in their rules to specifically prohibit such legal actions. The SFA’s is contained in 65.5 and says “the fact of membership of the Scottish FA shall constitute an agreement by a member that it, or any body interested through such member, shall submit all disputes to the jurisdiction of the Judicial Panel and shall not be permitted to take such difference or questions to a court of law”.

Rangers broke this term of their membership by going to the Court of Session and Fifa’s anger stems from the fact that the SFA appears not to have tried to stop it.

  • What happens now?

The route is now available for members of the SFA to appeal the punishments of the Judicial Panel in a Scottish court of law. Rangers did not seek to overturn the findings of the panel, just the punishment aspect.

However this route still breaches SFA law 65.5 and Fifa statute 64.2 and leaves any member who goes to court open to additional sanctions.

What has changed now is that the SFA no longer has the option of handing down any punishment it sees fit for a member brought on a disrepute charge. It must use the sanctions specifically laid down in article 94.1, “to fine, suspend, expel or eject from the [Scottish] Cup”.

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