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Court It Is Then


Bobbyhouston
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1 hour ago, jlsarmy said:

Did you not say it would have been thrown out , that’s not what’s happened .

No, as I explained on here (I think yesterday or Wednesday) the one thing I didn't express a firm view on was whether the matter would go to arbitration or be heard in Court at first instance. I did go on to say that I suspected it would be sent to arbitration when asked about that (by Dick Dastardly).

So actually, so far exactly what I said I thought would happen happened.

The substance, on which most of our attention on here was focused, has barely been touched, save for Lord Clark to agree that this is, first and foremost, a matter arising out of Association football.

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2 minutes ago, Woodstock Jag said:

No, as I explained on here (I think yesterday or Wednesday) the one thing I didn't express a firm view on was whether the matter would go to arbitration or be heard in Court at first instance. I did go on to say that I suspected it would be sent to arbitration when asked about that (by Dick Dastardly).

So actually, so far exactly what I said I thought would happen happened.

The substance, on which most of our attention on here was focused, has barely been touched, save for Lord Clark to agree that this is, first and foremost, a matter arising out of Association football.

But did you expect it to be an independent arbitration panel (rather than a rubber stamp from the blazers). I think that is the biggest surprise to me and the one which give me most hope.

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Disclosure request could potentially tie things up, as “documents” in this case will refer to emails, chat messages, phone logs, etc.

Much of this is better reviewed in electronic format - hopefully we have that capability.  I’m sure their side will attempt to under-disclose and provide incomplete info.

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1 hour ago, jlsarmy said:

It’s obviously got to be arbitrated or if it’s not it goes back to Court ,  so something has got to be resolved whether that as you say is a solidarity payment as it’s probably too late for reconstruction.

Still think this is going to run , arguing for documents, minutes, copies of alleged email from Dundee which the SPFL were reluctant to hand over .

Arbitration doesn't have to lead to the parties agreeing on an outcome.

Arbitration principally facilitates one of two possible outcomes:

(a) a mutually agreed settlement; or

(b) a decision of the arbitration panel which both parties are bound by even if one doesn't like it

An ex gratia payment would form part of scenario (a).

I still think in the absence of (a) we will lose on (b). For us then to take it back to the Court of Session we have to be challenging the integrity/process of the arbitration itself, not the substance of the disagreement.

As best I understand Lord Clark's remarks about going back to the Court of Session, he meant that in the context of if one side prevaricates during arbitration, such that no determination is reached by August. That's not the same thing as no agreement being reached by August. We could see an adverse determination at arbitration within a month.

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1 hour ago, jlsarmy said:

It’ll still be at our discretion whether that’s acceptable or there will be no agreement.

Arbitration isn't mediation.

Even if we disagree with the proposed solution an arbitration panel can make a decision against us that we don't like and we can't challenge that except to say that the arbitration panel itself acted in some procedurally deficient way. Which is very hard to prove when it's been set-up independently and its composition was basically hand-picked by both parties.

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Just now, eljaggo said:

What happens if the two arbiters appointed by the SPFL and Hearts/Thistle fail to agree on who to appoint as chair of the tribunal?  How long can that process take before arbitration is deemed to have failed?

If they fail to set-up the arbitration panel and the matter looks unlikely to be resolved within the timeframe Lord Clark set out (i.e. sort it before August) then they can go back to Court and ask for relief there.

They will not fail to set up the arbitration panel.

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Just now, Woodstock Jag said:

No, as I explained on here (I think yesterday or Wednesday) the one thing I didn't express a firm view on was whether the matter would go to arbitration or be heard in Court at first instance. I did go on to say that I suspected it would be sent to arbitration when asked about that (by Dick Dastardly).

So actually, so far exactly what I said I thought would happen happened.

The substance, on which most of our attention on here was focused, has barely been touched, save for Lord Clark to agree that this is, first and foremost, a matter arising out of Association football.

Unfortunately that was the only way to go , if we had to to get the SFA to arbitrate before I’m not sure there would have been a good conclusion.

At least now we’ve got an independent legal panel to arbitrate it .

I’m sure Doncaster will be looking forward to handing over his documentation and the SPFL’s incomplete minutes of meetings.

 

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1 minute ago, jlsarmy said:

Unfortunately that was the only way to go , if we had to to get the SFA to arbitrate before I’m not sure there would have been a good conclusion.

At least now we’ve got an independent legal panel to arbitrate it .

I’m sure Doncaster will be looking forward to handing over his documentation and the SPFL’s incomplete minutes of meetings.

*sigh*

An arbitration panel was always going to be independent. It is set-up under SFA rules and in accordance with Scotland's arbitration legislation. Its composition is set-up under the Arbitration Act. We weren't about to get a panel of Ian Maxwell Neil Doncaster and Peter Lawell.

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Just so that we are clear and .... Woodstock Jag is right (damn him !)

 

 

 

RESOLUTION OF DISPUTES BETWEEN MEMBERS 99. ARBITRATION General

99.1 This Article 99 comprises an agreement by parties who are subject to the jurisdiction of the Scottish FA, to submit disputes of certain natures, as specified in more detail below, to arbitration. It is important for parties to understand that the resolution of any dispute under this Article 99 comprises resolution by arbitration. Accordingly the provisions of the Arbitration (Scotland) Act 2010 (“the 2010 Act”), together with the Scottish Arbitration Rules which form Schedule 1 to the 2010 Act (with the exception of default rules which are disapplied by this Article 99) must be considered together with this Article 99, together with any amendments to the said Act and/or any other statutory or other provisions which may be relevant to the conduct of an arbitration in Scotland.

99.2 It is also important for parties to recognise that arbitrations under this Article 99 provide for resolution by an independent arbitral tribunal. The role of the Scottish FA and officers thereof, arises (in disputes which do not involve the Scottish FA) in respect of the appointment of tribunals. In respect of any jurisdictional matter, which cannot be agreed between the parties, such matters shall be determined by the arbitral tribunal, who shall have available the powers provided to them in this Article 99 and in the 2010 Act or otherwise by the law of Scotland. The Scottish FA may, in its appointment role, point out to parties an obvious jurisdictional issue, or an obvious conflict issue (for instance in a party’s nomination of an arbitrator in terms of this Article) or otherwise. Insofar as a party does not agree with the Scottish FA in such circumstances, then the appointment of the tribunal shall proceed and the tribunal shall resolve the matter. Where the Scottish FA has raised such a matter with a party, and the party declines to take a step suggested by the Scottish FA, an arbitral tribunal may take such into consideration in any award of costs.

99.3 In respect of all arbitrations conducted under this Article 99, the law governing the arbitration shall be the law of Scotland and the seat of the arbitration shall be Scotland.

99.4 Where a player, official, referee, club, league or association has the right to refer a dispute to any recognised football body, then such dispute shall be so referred to such recognised football body and any appeal shall proceed in accordance with the provisions of Paragraph 14 of the Judicial Panel Protocol. Similarly appeals against Determinations of a Disciplinary Tribunal, disciplinary committee or a Club Licensing determination shall proceed in accordance with the relevant provisions of Paragraph 14 of the Judicial Panel Protocol. Where such a right of appeal exists to the Judicial Panel or tribunals appointed therefrom, then such matters shall not be referred to arbitration under this Article 99. Definitions

99.5 An “associated person” shall have the definition ascribed to it in Article 1.1.

99.6 A “Scottish FA Dispute” in this Article 99 shall be any dispute or difference (with the exception of a matter which falls within the supervisory jurisdiction of the Court of Session, and with the exception of any matter for which the Judicial Panel or tribunals appointed therefrom have jurisdiction under these Articles) with the Scottish FA.

99.7 A “Football Dispute” in this Article 99 shall be a dispute between or among members and/or any associated person(s) arising out of or relating to Association Football (with the exception of a matter which falls within the supervisory jurisdiction of the Court of Session, and with the exception of any matter for which the Judicial Panel or tribunals appointed therefrom have jurisdiction under these Articles).

99.8 Other definitions shall have the meaning ascribed to them elsewhere in the Articles. Scottish FA Dispute Arbitrations 99.9 The fact of membership of the Scottish FA and/or the submission to the jurisdiction of the Articles and/or association with such member by an associated person shall constitute an agreement by a member; and/ or an associated person and/or the Scottish FA that such member and/or associated person and/or the ARTICLES OF ASSOCIATION 115 Scottish FA shall settle a Scottish FA Dispute by arbitration conducted in accordance with Articles 99.9 to 99.12.

99.10 Failing agreement, in respect of a Scottish FA Dispute, the arbitrator shall be selected and appointed by the Chairman or Vice Chairman of the Chartered Institute of Arbitrators (Scottish Branch) or by the President or Vice President of the Law Society of Scotland or by the Executive Director or the Chairman of Sports Resolutions (UK) (a trading name of Sports Dispute Resolution Panel Limited, company no. 03351039, registered at 1 Salisbury Square, London, EC4Y 8AE) (“Sport Resolutions”). Where appointment is by Sport Resolutions, Sports Resolution’s Arbitration Rules, as amended by Sports Resolutions from time to time (https://www.sportresolutions.co.uk/uploads/related-documents/D_3_-_Arbitrations_Rules.pdf), shall apply, save that (1) all such arbitrations shall follow the Full Arbitration Procedure; and (2) their provisions regarding the seat, applicable law, and statutory regime shall be deleted, so that the the law governing the arbitration shall be the law of Scotland and the seat of the arbitration shall be Scotland, and the Arbitration (Scotland) Act 2010 (as amended), shall apply.

99.11 With reference to Schedule 1 of the Arbitration (Scotland) Act 2010, Rules 11, 22, 26, 41, 43 and 46 of the Scottish Arbitration Rules shall not apply.

99.12 A member, an associated person and/or the Scottish FA shall not take a Scottish FA Dispute to a court of law except with the prior approval of the Board. For the avoidance of doubt, this Article 99.12 does not prevent a member, associated person and/or the Scottish FA from raising proceedings for time bar purposes, subject to such proceedings being sisted at the earliest opportunity for resolution in accordance with this Article 99. Football Dispute Arbitrations

99.13 The fact of membership of the Scottish FA and/or the submission to the jurisdiction of the Articles and/or association with such member by an associated person shall constitute an agreement by (i) a member; and/or (ii) an associated person that such member and/or associated person shall settle a Football Dispute by arbitration conducted in accordance with Articles 99.13 to 99.29.

99.14 A Football Dispute shall not be referred under these provisions where (i) the Scottish FA (including the Judicial Panel and any Committee or sub-committee) has power to determine a dispute or other issue in accordance with a different provision of these Articles or the Judicial Panel Protocol; or (ii) the member or associated person has not taken every possible step to have the Dispute resolved in accordance with these Articles or rules of the Scottish FA and appeals processes contained therein.

99.15 A member or an associated person may not take a Football Dispute to a court of law except with the prior approval of the Board. For the avoidance of doubt, this Article 99.15 does not prevent a member or associated person from raising proceedings for time bar purposes, subject to such proceedings being sisted at the earliest opportunity for resolution in accordance with this Article 99.

99.16 The submission of a Football Dispute to arbitration by a member or associated person (“the Referring Party”) shall be lodged in writing by delivery to the Secretary and, at the same time, to the other party or parties to the Football Dispute of a notice to refer to arbitration (a “Notice to Refer”), which notice shall include (i) the nature and a brief description of the dispute and of the parties involved; (ii) details of where and when the dispute has arisen; (iii) the nature of the redress which is sought; and (iv) the names and addresses of the parties to the contract (including, where appropriate, the addresses which the parties have specified for the giving of notices). The last date on which the Notice to Refer is served on the other parties and the Secretary shall be deemed to be the date on which the arbitral proceedings are commenced.

99.17 Where a Football Dispute has been referred to arbitration, each such member or any associated person involved in the Football Dispute shall submit to the jurisdiction of the Tribunal and shall adhere to the provisions in this Article 99.

99.18 The Scottish FA shall maintain a list of qualified candidates (“the Tribunal Candidate List”) to sit as arbitrators in tribunals to determine Football Disputes referred in accordance with this Article 99. The Secretary is authorised by the Board to appoint members of the Tribunal Candidate List for the purposes of this Article 99.

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There is another point to note from Lord Clark today......there is no real downside for us......the worst that will happen is we play in Div 1 and some clubs don’t like us ......and then there are the documents which might be fun .....we go into extra time .....

 

However, Lord Clark said that it was is view that such a punishment could be deemed unlawful.

He said: “In my opinion, the existence of that potential penalty – which includes expulsion or as Mr Moynihan put it, ‘being put out of the game’ – is a factor that has to be considered when analysing the lawfulness or otherwise of Article 99.15.

“The issue of penalties could itself be subject of the supervisory jurisdiction of the court.”

 
 
   
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What about this threat which surfaces every few days about being kicked out of the SPFL.? Is this something to which  we should pay serious attention? 

I see SPFL Lawyers are saying that if we continue dragging Scottish Football through the courts we will be kicked out of the SPFL!  My understanding of this threat is that if Arbitration fails and we return to Court, action will be taken that can lead to our membership of the SPFL being terminated! 

Does this fall into the category of attempted intimidation or are we simply being reminded of the possible consequences of seeking justice through the courts? 

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2 minutes ago, javeajag said:

There is another point to note from Lord Clark today......there is no real downside for us......the worst that will happen is we play in Div 1 and some clubs don’t like us ......and then there are the documents which might be fun .....we go into extra time .....

 

However, Lord Clark said that it was is view that such a punishment could be deemed unlawful.

He said: “In my opinion, the existence of that potential penalty – which includes expulsion or as Mr Moynihan put it, ‘being put out of the game’ – is a factor that has to be considered when analysing the lawfulness or otherwise of Article 99.15.

“The issue of penalties could itself be subject of the supervisory jurisdiction of the court.”

In plain English what he's saying here is that if the SFA expel us for going to Court instead of arbitration there might be a court case we could bring if it was done in a prejudicial way.

I think that's pretty obvious.

Edited by Woodstock Jag
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Just now, Woodstock Jag said:

In plain English what he's saying here is that if the SFA expel us there might be a court case we could bring if it was done in a prejudicial way.

I think that's pretty obvious.

I think he was actually warning them off from that course of action .

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36 minutes ago, javeajag said:

There is another point to note from Lord Clark today......there is no real downside for us......the worst that will happen is we play in Div 1 and some clubs don’t like us ......and then there are the documents which might be fun .....we go into extra time .....

 

However, Lord Clark said that it was is view that such a punishment could be deemed unlawful.

He said: “In my opinion, the existence of that potential penalty – which includes expulsion or as Mr Moynihan put it, ‘being put out of the game’ – is a factor that has to be considered when analysing the lawfulness or otherwise of Article 99.15.

“The issue of penalties could itself be subject of the supervisory jurisdiction of the court.”

 
 
   

There is a more succinct way of summarising things; Doncaster is a fud.

Edited by sandy
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If anyone thinks the threat to throw Hearts, one of largest-supported clubs in Scotland and one half of the second-largest derby in the country, out of the system is anything other than hot air, they're soft in the head. Thistle on the other hand, I'm sure they couldn't give a toss about, so it's lucky we're riding on the Jambo's coat-tails and cash.

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40 minutes ago, West of Scotland said:

If anyone thinks the threat to throw Hearts, one of largest-supported clubs in Scotland and one half of the second-largest derby in the country, out of the system is anything other than hot air, they're soft in the head. Thistle on the other hand, I'm sure they couldn't give a toss about, so it's lucky we're riding on the Jambo's coat-tails and cash.

Are we riding on Hearts'cash?

Edited by Garscube Road End
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9 hours ago, Woodstock Jag said:

Given the timescale given for the arbitration, there's absolutely no way this ends up with Hearts in the Premier League next season (and by extension Thistle in the Championship) unless the clubs have a change of heart and decide to rip-up the league structure and do some restructuring.

We are in the realms of token solidarity payments to make the lawyers from all sides go away now, I suspect.

But wouldn't you agree that getting even a "token solidarity payment" (and there's no guarantee that Hearts and Thistle would accept a mere token, because they stand to lose millions) would be better than getting zero, which is what we would have received without the legal action?

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5 hours ago, javeajag said:

There is another point to note from Lord Clark today......there is no real downside for us......the worst that will happen is we play in Div 1 and some clubs don’t like us ......and then there are the documents which might be fun .....we go into extra time .....

 

However, Lord Clark said that it was is view that such a punishment could be deemed unlawful.

He said: “In my opinion, the existence of that potential penalty – which includes expulsion or as Mr Moynihan put it, ‘being put out of the game’ – is a factor that has to be considered when analysing the lawfulness or otherwise of Article 99.15.

“The issue of penalties could itself be subject of the supervisory jurisdiction of the court.”

There's a long road to travel for justice to make its claim..................

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36 minutes ago, Jaggernaut said:

But wouldn't you agree that getting even a "token solidarity payment" (and there's no guarantee that Hearts and Thistle would accept a mere token, because they stand to lose millions) would be better than getting zero, which is what we would have received without the legal action?

No because:

(a) we didn’t need to go to court to get to arbitration. We wasted (even if someone else’s) time and money bringing it before a judge

(b) once again, arbitration isn’t mediation. It is still (in my view) highly likely that if there isn’t a settlement at arbitration that the panel will straight up find against us and we get nothing.

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