Ports lose double IFA appeal

Issues over the contract status of both Gary Twigg (left) and Peter McMahon (right) have led to disciplinary problems for Portadown. Pic by PressEye Ltd.

Issues over the contract status of both Gary Twigg (left) and Peter McMahon (right) have led to disciplinary problems for Portadown. Pic by PressEye Ltd.

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Portadown have lost both appeals against Irish Football Association disciplinary rulings - with a 12-point deduction to remain in place and Coleraine to have a 3-0 scoreline and win awarded.

The ruling of the Irish Football Association Appeals’ Board has described the 12-point deduction as “a proportionate and fair punishment”.

The decision also stated that “since Portadown had a game against Coleraine on 6 August that match is forfeit and the tie awarded to Coleraine with a score of 3-0” is response to the second appeal.

The full decision of the IFA Appeals Board is as follows:

“In the matter of an Appeal by Portadown Football Club. Against decisions of the Irish Football Association Disciplinary Committee made on 15 June and 22 July 2016.

The Chairman, Mr Joseph McCrisken – (with whom all members of the Appeals Board agree)

Introduction

[1] This is an appeal pursuant to Article 14.2 of the Irish Football Association (‘IFA’) Articles of Association (‘AoA’) by Portadown Football Club (‘Portadown’) against two decisions of the IFA Disciplinary Committee (‘DC’) made on the 15 June and 22 July 2016. The first appeal relates to a finding by the DC that Portadown breached Article 17 of the AoA and brought the game of football into disrepute by making payments to a player while he was registered as an amateur. The second appeal relates to the decision to suspend Portadown from all football related activity because the club did not pay monies owing to the IFA following the imposition of a number of fines.

[2] The appeal was heard on 12 September and 3 October 2016 and judgment was reserved. Mr Trevor Marshall, Finance Director and Mr Roy McMahon, Chairman, appeared for Portadown and the DC Chairman, Mr Paul Livingstone, Vice-Chairman, Mr Dennis Hamill and Disciplinary Manager, Mrs Rebekah Shearer represented the DC. We are indebted to all those involved for the considerable assistance that we derived from their carefully prepared, helpful and well delivered written and oral submissions.

The First Appeal.

[3] The first appeal concerns a single allegation of a breach of Article 17 of the IFA AoA, as evidenced, in the submission of the DC, by a breach of Rule 38 (a) of Northern Ireland Football League (‘NIFL’) Rules and Regulations (‘Rules’) which says;

38. Undisclosed Payments

a) It is strictly forbidden to make any payment to a player, either directly or via a related party, which has not been detailed in the official players’ contract, lodged with the Irish Football Association, or not documented in line with related party transactions outlined in Sections 5 and 6 of the Salary Cost Protocol regulations.”

[4] The case for the IFA can be dissected into two parts –

a) The DC found that Portadown forwarded a copy of a contract between the club and a player (Peter McMahon) to the IFA which had been amended so as to redact the part of the contract which disclosed that he would be paid, and therefore was a professional player, from 1 January 2015 until 30 June 2015. The contract was also amended so that the start date of the contract read 1 June 2015 instead of 1 January 2015 (the number “1” had been overwritten so as to read “6”). The contract that the IFA received indicated that Peter McMahon was to be paid only from 30 June 2015 until 30 June 2016. The IFA, therefore, registered him as an amateur player for the 2014/2015 season.

b) The DC found that Portadown made a number of payments of £350 to Peter McMahon which were not disclosed in the player’s contract in accordance with Rule 38(a).

[5] Article 17 AoA provides that

“where any person or body has breached or caused or contributed to the breach of any of the Articles or brings the game of Association Football into disrepute, that person or body shall be liable to punishment or sanction as the Board may think fit and that the Board may delegate these powers to the Disciplinary Committee”.

[6] The DC case is that someone acting on behalf of Portadown amended the contract after it was agreed and signed by the player so as to conceal the fact that the player was being paid as a professional from 1 January 2015 until 30 June 2015. Records confirm that the player was paid by the club for this period. The IFA had registered the player as an amateur and not as a professional for the 2014/2015 season.

[7] The club are in possession of the original un-redacted contract. This contract was never sent to the IFA by Portadown. Instead, as outlined above, someone from the club amended the contract and this was sent to the IFA.

[8] The grounds of appeal put forward by Portadown can be summarised as follows;

The payments to McMahon, not disclosed in his contract, were in fact disclosed by Portadown to the IFA as a result of the Salary Cap Protocol process, albeit at the end of the season.

Since Portadown actually spent less than the salary cap, there was never any risk of the club exceeding the salary cap as a result of the payments.

That any breach of 38(a) was a technical one and, in any event, was not capable of bringing the game into disrepute under Article 17 AoA.

[9] Bringing the game of football into disrepute is a standalone charge under Article 17 of the AoA. It was accepted during the appeal hearing that breaching Rule 38(a) of the NIFL Rules may indicate that a club has brought the game into disrepute but there may be circumstances in which technical breaches of Rule 38(a) may not amount to bringing the game into disrepute.

[10] The term ‘bringing the game into disrepute’ is not defined anywhere within the AoA, NIFL Rules or IFA Disciplinary Code. Article 17(2) of the AoA makes it clear that the IFA DC, when dealing with a charge of bringing the game into disrepute are the final judge of what constitutes `disrepute’. In this case, the DC concluded that Portadown had breached Rule 38(a) and that this breach constituted disrepute. This Board is free, of course, to take different view. In determining what “disrepute” means we have adopted a common sense approach to interpretation, as occurred in the appeal related to Gary Twigg. One dictionary definition is that it means acquiring a bad reputation or lack of respectability. It can also mean actions damaging the reputation of the NIFL. In this case, a finding that Portadown had not only amended a player’s contract after the player had signed it but then had deliberately not disclosed payments to a player would certainly adversely affect not just the club but also the NIFL.

[11] The evidence in relation to McMahon was straightforward. On or before 1 January 2015 Peter McMahon entered into a contract with Portadown which was to run from 1 January 2015 until 30 June 2016. We don’t know when exactly McMahon signed his contract because this date was entered at some point after he signed it, presumably by the same mystery person who amended the contract. The contract sent to the IFA had the 30 April 2015 inserted as the date. The contract was counter signed by Mr Kieran Harding (then the assistant manager) and Mr Ronnie McFall. The contract indicated that payment would be £350 per week. It is worth noting that the original un-amended contract did not contain a date on which it was signed.

[12] During the hearing Portadown did not accept that the club had breached Rule 38(a). The club position is that no undisclosed payments have been made since the payments were ultimately disclosed to the IFA under the Salary Cap Protocol.

[13] As I have said in a previous appeal it is vitally important in maintaining sporting integrity in local football that clubs act in as transparent a manner as possible and comply with all relevant Rules and Regulations. It is our view that, in the case of Peter McMahon, Portadown did not act with the transparency and integrity which was expected of them. Instead representatives from the club signed a player on a contract which was not dated, then at a later stage amended the contract by writing over some of the characters and scribbling out others so that the IFA would think that the player was not being paid for 6 months when he in fact was. Not only does this potentially constitute a criminal offence but is a breath taking breach of sporting integrity. The evidence presented by Portadown to the appeal lacked any real credibility. The club representatives said that they were unable to tell us who the mystery person was that had amended the contract and sought to deceive the IFA.

[14] Accordingly, we have no hesitation in finding, as the DC did, that by sending the IFA a redacted contract which did not disclose that the player was being paid as a professional that Portadown not only breached Rule 38(a) but also brought the game of football into disrepute in breach of Article 17 AoA.

[15] The penalties for breaching Article 17 which are within the discretion of the IFA DC, and therefore this Appeals Board, range from expulsion to a fine. The DC decided that a deduction of 12 points for the 2016/2017 season was a proportionate and fair punishment. The offence committed by Portadown must be treated as (another) serious breach of sporting integrity. It is our view that by sending a redacted version of a player’s contract to the IFA, concealing that a player was being paid as a professional, Portadown deliberately sought to deceive the IFA. In these circumstances the punishment was both fair and proportionate and should act as a deterrent to other clubs.

The Second Appeal.

[16] The second appeal concerns the non-payment of fines by Portadown, including a £5000 fine imposed following an appeal against another breach of Rule 38 relating to the contract of a player.

[17] Article 8 of the IFA Disciplinary Code sets out the position in relation to suspensions and fines;

Article 8 - Fines

8.1 Clubs are liable for fines imposed on their players or officials. Subject to the Committee’s discretion pursuant to the overriding objective, the fact that a person has left a club does not cancel out liability and therefore does not negate the responsibility of the club to pay a fine.

8.2 All fines, unless challenged or appealed against, must be paid within 14 days from the date of the letter imposing the fine unless a payment plan has been agreed with the club. Failure by a club to pay a fine within the specified timeframe may result in the club being fined an additional £25 and suspended from all affiliated football.

8.3 Should a suspension be imposed on a club due to failure by that club to pay a fine, the suspension will remain in effect until the Monday following receipt of payment.”

[18] On 7 July 2016 Mrs Shearer, the Disciplinary Manager, sent an e-mail to Mr Marshall indicating that a fine of £5000, imposed following a previous appeal, was outstanding. This fine had been due to be paid, in accordance with Article 8 (above), 14 days after the appeal decision was delivered on 29 April 2016. It therefore became due on 13 May 2016. At no time before the 7 July had the club or any representative from the club contacted the IFA to pay the fine, set up a payment plan or to explain that the club was unable to pay the fine. It is also worth noting that at no time did the IFA seek to contact the club to request payment of the fine.

[19] There was no response to the e-mail of 7 July 2016. At the appeal hearing, Mr Marshall was unable to offer any explanation as to why he had not responded. On 14 July Mrs Shearer tried again. This time she referred Mr Marshall to the Disciplinary Code and raised the possibility of a suspension should the fine not be paid. A deadline of 5pm on 21 July was given. If the fine was not paid by that time then the club would be suspended from all football activities.

[20] On 20 July Mrs Shearer received communication from Mr Marshall. This, at least, confirmed that his e-mail address was working correctly. No explanation was given for his ignorance of the 7 July e-mail, failure to respond to the 14 July e-mail for some 6 days, or for the failure to pay the fine within the 14 day period required by the Disciplinary Code. He did, however, indicate that the club did not have the finances to pay the fine as monies were owed from the NIFL. It transpired that the NIFL money had, in fact, already been paid to the club on 2 July 2016.

[21] On 21 July Mrs Shearer e-mailed again. This time she informed Mr Marshall that as well as not paying the fine from April 2016 there were other fines dating back to October 2015 which had not been paid. These totalled £1,300.

[22] On 22 July Mrs Shearer wrote to the club indicating that a suspension would take effect from 25 July since no fines had been paid. On the 22 July Mr Marshall called to the IFA and produced a cheque for £3,000. A payment plan for the outstanding amount was also agreed. On 25 July Mrs Shearer e-mailed Mr Marshall indicating that the DC had agreed to the payment plan and that the suspension would be lifted but would automatically re-commence in default of payment. Mr Marshall responded 16 minutes later indicating that the payment plan would be adhered to. Importantly, at no point did Mr Marshall indicate that it was his view that the club had already paid the £1,300. This is something which he raised for the first time at the initial appeal hearing on 12 September 2016, causing that hearing to be adjourned.

[23] On 28 July 2016 the cheque for £3,000 was returned by the bank as unpaid. There were no funds to honour it. No notification had been given by the club to the IFA that there might be an issue with payment. Presumably Mr Marshall should have known that there were insufficient funds to clear this cheque and that the start of the new season was approaching. On 2 August Mrs Shearer e-mailed Mr Marshall to say that the cheque had been returned and that the suspension had been re-instated with immediate effect. Six minutes later Mr Marshall responded saying that funds were now available. All outstanding fines were paid by Mr Marshall on 5 August.

[24] The DC met on 3 August to decide if the suspension should be lifted which would allow the first game of the new season to take place. The DC heard from Mr Marshall. The DC decided that the suspension should remain in place until 8 August 2016 as set out by Article 8 of the Disciplinary Code. The DC relied upon legal advice that Article 13 of AoA gave it discretion to remove a suspension which had been commenced.

[25] On 12 September the appeal hearing was adjourned because, for the first time, Mr Marshall told the Appeals Board that it was his view that the club had already paid the £1,300 worth of fines. When he was asked why he paid the money if he thought the club had already paid it he said that he paid the money from his own account so as to enable the first game of the season to go ahead. He was thinking of Coleraine FC and the good of football when he paid the money. He knew, he said, that the club had already paid the money and, when pressed further, he told the Appeals Board that documentation could be easily provided which proved this. We decided to test this statement and adjourned the hearing to allow this documentation to be provided. When the hearing reconvened on 3 October 2016 absolutely no material was presented to support the claims of Mr Marshall. The club had not paid the fines as we originally had been told and further time and resources were wasted in adjourning the hearing.

Conclusions.

[26] Article 8 of the Disciplinary Code makes it clear that the DC has discretion as to whether or not a suspension should be imposed on a club which fails to discharge a fine. Once the suspension is imposed, however, it can only be lifted by the club paying the fine. Once the fine is paid the suspension remains in effect until the Monday after the fine is paid. In this case, since the fines were paid in full on 5 August, this means the suspension expired on 8 August 2016.

[27] It is clear from the wording of Article 8 that neither the DC, nor the Disciplinary Manager, enjoys discretion to remove a suspension once it has been imposed. Article 13 of the AoA does not provide discretion, contrary to the legal advice given to the DC.

[28] Accordingly, since Portadown paid the outstanding fines on 5 August the suspension should have remained effective until 8 August 2016. Since Portadown had a game against Coleraine on 6 August that match is forfeit and the tie awarded to Coleraine with a score of 3-0.

Portadown officials have refused to comment on the IFA decision but a statement from the club is expected within the next 24 hours.