cellino vs football league 2 19 of january 2015

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    THE FOOTBALL LEAGUE LIMITED

    PROFESSIONAL CONDUCT COMMITTEE

    DECISION (NO. 2) ON THE APPEAL OF MR MASSIMO CELLINO

    Tim Kerr QC, Chairman

    Greg Clarke

    Richard Bowker CBE

    Introduction

    1. This is the appeal of Mr Massimo Cellino against the written decision of the

    Football League Limited (the League) dated 1 December 2014, that Mr

    Cellino is disqualified from acting as a director of a League club. Mr Cellino is

    entitled under the Leagues Regulations (the rules), Appendix 3, rule 6.1, to

    appeal to the Professional Conduct Committee (the Committee). We have

    been appointed to sit as the Committee for the purposes of determining this

    appeal.

    2. This appeal was heard in London on 15 January 2015. We are grateful to the

    parties representatives for their helpful and constructive contributions before,

    during and after the hearing. The representatives assisted us with written and

    oral submissions of high quality, which enabled the hearing to proceed

    smoothly and comfortably finish within a single day, as scheduled.

    3. Mr Cellino was represented by Lord Macdonald of River Glaven QC and Mr

    Aaron Watkins of counsel; Mr Adam Morallee, managing partner, and Mr Ben

    Polak solicitor, of Brandsmiths, solicitors; and Mr Robert Brackup, partner, of

    Chadwick Lawrence. The League was represented by Mr Jonathan Taylor,

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    partner, and Mr Jamie Herbert, solicitor, both of Bird & Bird, solicitors; Mr

    Nick Craig, the Leagues Director of Legal Affairs; and Ms Ilaria Curti, from

    the Rome office of DLA Piper, solicitors.

    4.

    This decision should be read together, where necessary, with the previously

    issued written decision of the Committee (on that occasion the present chairman

    sitting alone) sent to the parties on 5 April 2014 (the April 2014 decision).

    Abbreviations and definitions in this decision are the same as in the April 2014

    decision. In the interests of speed, efficiency and economy, we will not repeat

    here factual and background matters set out in the April 2014 decision.

    5. On that occasion Mr Cellinos appeal against disqualification succeeded on the

    basis that, although criminal proceedings against him in Sardinia had led to a

    conviction, it was not a conviction for a an offence involving a Dishonest

    Act underthe rules, since there was insufficient information available from

    which it could reasonably be concluded that his conduct in committing the

    offence was dishonest. He was not, therefore, subject to a Disqualifying

    Condition.

    6. The League obtained the written reasons given by the judge in Cagliari, Dr

    Sandra Lepore, dated 28 July 2014. After considering written argument from

    Mr Cellino, the League decided again on 27 November 2014 that the decision

    in March 2014 was a conviction, and that in the light of the judges reasons,

    the conviction was for an offence involving a Dishonest Act, i.e. any act

    which would reasonablybe considered to be dishonest (see the definitions in

    Appendix 3, rule 1.1).

    7.

    The League accordingly decided that Mr Cellino was disqualified from holding

    office or acting as a Relevant Personin respect of Leeds United FC or any

    other Club until 18 March 2015 (pursuant to paragraph 2.1 of Appendix 3);

    must resign forthwith as a director of Leeds United(paragraph 2.2(a) of

    Appendix 3); must not otherwise act in a manner that would qualify him as a

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    Relevant Person(as defined in Appendix 3) until 18 March 2015; and must

    take necessary consequential steps, within 28 days of the date of the decision.

    8. Mr Cellinos appeal is against that decision. The appeal is governed by English

    law (rule 6.8 of Appendix 3 to the rules, incorporating rule 83.1). Mr Cellinos

    grounds of appeal were that the Cagliari courts decision was not a

    conviction;alternatively, that it was not a conviction for an offence

    involving a Dishonest Act, i.e. any act which would reasonablybe considered

    to be dishonest; alternatively, that there arecompelling reasons (see rule 6.2)

    why Mr Cellino should not be disqualified from holding office or acting as a

    director of Leeds United FC.

    The Facts

    9. After the April 2014 decision was provided to the parties, Mr Cellino, through

    corporate vehicles controlled by him and his family, acquired a controlling

    interest in Leeds United Football Limited (the Club). Since then, Mr Cellino

    has acted as President of the Club, which currently plays in the Championship.

    The League and Mr Cellino were aware that Dr Lepores reasonswere due to

    be produced within 90 days of the date of her decision made on 18 March 2014,

    i.e. by the middle of June 2014.

    10. In the event, her written reasons were dated 28 July 2014 but the League did

    not at that stage have a copy of the document containing them. The judges

    reasons were the subject of extensive written and oral submissions from the

    parties, which we consider further below. The written reasons were available to

    us in Italian and in English translation. They include the following salient

    features.

    11. The prosecutor sought a conviction and a fine of 1.1655m in addition to

    confiscation of the Nlie. The defence sought an acquittal on the ground that

    the case could not be made out or on other legal grounds. The prosecution case

    was founded on testimony from a tax enforcement officer, Antonio Pani, and on

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    documents. Mr Cellino gave evidence during the hearing on 12 December

    2013. His evidence was to the following effect.

    12. He said he was authorised to use the vessel by its owner, Freetime Miami LLC

    (Freetime), as manager of that company, in both US and international waters.

    He had brought the vessel to Cagliari temporarily, for maintenance and repairs,

    to make her fit state to cross the Atlantic to the USA. He sometimes used the

    boat at weekends while she was being repaired, while awaiting the season

    favourable for departure to the USA. He did not believe he had to pay the

    relevant customs duties, as he believed he could rely on the total exemption in

    cases of temporary admission to the territory of the EU for less than 18 months.

    13.

    The judge made the following findings. Freetime was established in about

    August 2011, one month before the purchase of the Nlie. Mr Cellino was the

    only shareholder and director. Freetime was set up for the sole purpose, as Mr

    Cellino admitted, of acquiring the boat and undertook no other commercial

    activity, nor did it have a registered office or permanent organisation. The

    purchase of the vessel was not linked to any business activity of Freetime; there

    was no evidence that Freetime ever undertook any business activity.

    14. The judge found that the vessel was acquired by Freetime in Croatia in

    September 2011 and had never been used for business purposes. It was

    exclusively for Mr Cellinos personal use. The judge referred to a written

    authorisation to which, it is agreed, a mistaken date was attributed, the correct

    date being 27 September 2011. It was to the effect that Freetime authorised

    (among others) Mr Cellino to use the Nlie in international and Italian and other

    European waters.

    15. The judge noted that it was not disputed that the vessel was based at Cagliari

    from, at the latest, 1 January 2012, that being the date of a contract for a berth at

    the port until 1 October 2012. It was not disputed that she was at Cagliari on 6

    June 2012 and was intercepted and confiscated on the basis of alleged tax

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    evasion, in an estimated amount of 388,500. The judge did not accept Mr

    Cellinos evidence that the Nlie was brought to Cagliaribecause of a need for

    maintenance and repair work.

    16.

    She found that the circumstances of the boats acquisition and use led to the

    conclusion, beyond any reasonable doubt, that the true or beneficial owner was

    Mr Cellino. In a partly disputed English translation that was before us, the

    written reasons include the following (with some Italian words inserted in

    italics):

    the real owner of the vessel is actually Massimo Cellino and thecompany Freetime Miami, LLC is nothing other than a fictitious shell company

    (schermo societario fittizio) established purposely to allow the defendant, as theactual user of the asset, to introduce in the territory of E.U. a means of transport

    under the temporary admission regime, in this way evading (eludendo) thepayment of the amount due as customs duties.

    In light of the considerations above, therefore no doubt exists as to the existenceof an evading intention (intento elusivo) of the defendant, it being deemed that

    the evasion of the V.A.T. on imports was the result of a deceptive(macchiavellica) simulation (simulazione) executed by the defendant to disguisea definitive admission as temporary admission.

    17. The judge concluded that Mr Cellino was guilty as charged and, taking account

    of mitigating circumstances and his previous criminal record, imposed a fine of

    600,000, ordered him to pay the legal costs of the proceedings and confirmed

    that the vessel would remain confiscated as it had been the object of contraband

    activity. The basis on which the judge convicted Mr Cellino was the subject of

    rival arguments which we consider below. An appeal against her decision has

    been brought, but we do not have evidence about the details of the appeal or the

    grounds on which it was brought.

    18.

    Correspondence then ensued between the Leagues lawyers and Mr Cellinos

    lawyers, and Mr Cellino himself. This was because the League understood

    from press reports that the judges reasons were available to Mr Cellino, and

    the League wanted to see them. The League took the view that Mr Cellino was

    being obstructive by deliberately withholding the judges reasons to cause

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    delay. That issue may be the subject of disciplinary proceedings, but is not

    relevant to the present appeal, and we express no view on the issue.

    19. In October 2014, the League successfully applied to the Cagliari Court of

    Appeal (Corte dAppello di Cagliari) for an order that the judges written

    reasons (sentenzaor judgment) should be released to the League, in view of its

    specific interest in the contents of the judgment for the purpose of exercising its

    function of ascertaining the suitability of Mr Cellino to own and operate the

    Club, which is one of the clubs in the League.

    20. The Board of the League then made its decision to disqualify Mr Cellino, as

    explained above, on 27 November 2014, and confirmed it in writing on 1

    December 2014. On 15 December 2014, Mr Cellino appealed against that

    decision. As well as raising certain preliminary issues, he advanced as grounds

    of appeal the contentions that, first, the Cagliari courts decision was not a

    conviction under the Leagues rules; second, if it was, it was not for a

    Dishonest Act; or alternatively, third, there are compelling reasons why the

    conviction should not lead to disqualification.

    The Proceedings

    21. In paragraphs 22 and 23 of the notice of appeal, Mr Cellino asserted his

    entitlement under the rules to the Committee being composed of a chairman

    and two directors of the League, rather than a chairman sitting alone, and

    suggested that the chairman should recuse himself. This submission was then

    developed in writing at the chairmans request, and was opposed by the League

    in writing. By an email on 18 December 2014, the chairman declined to recuse

    himself for reasons to be given in the Committees final decision.

    22. Mr Cellino submitted in writing, through Mr Tim Owen QC and Mr Watkins,

    that the conviction issuewas again a live one in the present appeal; that the

    chairman had committed himself to the view that the Sardinian courts finding

    was a conviction under the rules; and that accordingly there would be an

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    appearance of bias if the chairman were to sit on this occasion. He submitted

    that a reasonable informed observer would consider the chairman disabled by

    his previously reached decision on the conviction issue from bringing objective

    consideration to bear on that issue.

    23. It was accepted in Mr Cellinos written submissions that thiswas not a matter

    where the chairman had an interest, association or pressure extraneous to the

    case; but he submitted that the chairmans decision on the conviction point in

    the April 2014 decision could distort his objective judgment or, at any rate, a

    reasonable informed observer might think so. It was also argued that the

    chairman had predetermined the conviction issue or might be thought by a

    reasonable informed observer to have done so.

    24. The League strongly resisted those propositions, submitting that the test for

    apparent bias was not met in this case. The League argued that, assuming

    (contrary to its stance) the conviction issue was not res judicataas between the

    parties, the chairman would plainly be able to bring objective judgment to bear

    on that issue; and that, while it was legitimate for the Committee to take

    account of the chairmans views on the conviction issue as expressed in the

    April 2014 decision, those views were a matter connected with the merits, and

    did not constitute an interest, association, or pressure extraneous to the case.

    25. The chairmans prefers the Leagues submissions on the point and was not

    persuaded that this was a case where there was any appearance of bias, applying

    the well known test inPorter v. Magill[2002] 2 AC 357, HL, per Lord Hope at

    paragraph 103 ( whether the fair-minded and informed observer, having

    considered the facts, would conclude that there was a real possibility that the

    tribunal was biased.). The chairman does not consider that is the position

    here.

    26. It is true that, as observed by the learned editors of Russell on Arbitration, 23

    rd

    edition, paragraph 4-117: [in] exceptional cases, the past or present positions

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    held or roles performed by the arbitrator outside of the particular case before

    him can give rise to a real possibility of bias. In the same work, attention is

    drawn at paragraph 4-124 to the point that [i]n certain circumstances, previous

    expressed views of an arbitrator, which suggest a certain pre-disposition to a

    particular course of action, outcome or in favour of a party, can constitute

    grounds for removal.

    27. But the chairman does not think that the present case (bearing in mind the facts

    of the cases cited in the footnotes in support of those propositions), comes near

    one in which those propositions can properly be applied. There is no suggested

    pre-disposition to favour the Leagues cause over Mr Cellinos; not

    surprisingly, since the latter prevailed in the April 2014 decision. Thechairmans previously expressed decision on the conviction issue is the only

    matter on which Mr Cellino relies.

    28. It seems to the chairman that the fair-minded and informed observer would

    discount the possibility that he would fail to perform his obligation as a

    decision maker to exercise dispassionate, independent and objective judgment

    in an impartial manner when reconsidering the conviction issue, if it is not to be

    treated as res judicata; including consideration of the possibility that the earlier

    reasoning and conclusion were wrong, whether or not on the basis of fresh

    points that might cast doubt on their validity.

    29. On 22 December 2014 following discussions conducted by email, directions

    were given for the purpose of preparing for the hearing before us. Mr Cellino

    agreed to the appointment of Messrs Clarke and Bowker to sit as members of

    the Committee, expressly waiving (through Mr Watkins, during a telephone

    hearing on 19 December 2014) any objection based on the fact that they had

    taken part in the decision appealed against.

    30. During the discussions, the League offered a differently constituted panel

    comprising the chairman sitting with officials of clubs from League 1 or

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    League 2; but Mr Cellino indicated his preference for Messrs Clarke and

    Bowker, whose participation accords with the Leagues ruleseven though they

    took part in the decision against which Mr Cellino appeals. At the hearing

    before us on 15 January 2015, Lord Macdonald confirmed that Mr Cellino had

    no objection to the composition of the Committee.

    31. Mr Cellino relied at the hearing on a letter from Avvocato Bruno Ghirardi, a

    lawyer from Brescia specialising in sports law, who advises Serie A and Serie

    B in Italy, and also has links with Leeds United FC. In his letter, Mr Ghirardi

    gave a narrative account of certain amendments and proposed amendments to

    the rules governing football and other sports, and expressed his legal opinion to

    the effect that rules which conflicted with the presumption of innocenceguaranteed by article 27 of the Constitution of the Italian Republic would be

    void and unenforceable.

    32. We also had a witness statement from Mr Andrew Umbers dated 19 December

    2014. Mr Umbers is a specialist consultant who conducted due diligence

    concerning Leeds United FC and Mr Cellino, from about March 2014 while the

    proceedings leading to the April 2014 decision were underway. Mr Umbers

    explained that he is now a director of the Club, and gave reasons why, in his

    view, there is good reason to fear severe adverse consequences for the Club if

    Mr Cellino is disqualified from owning and operating it, and even a real

    likelihood of insolvency.

    33. Professor Maffei, instructed by Mr Cellino without any objection from the

    League, provided an expert report dated 29 December 2014. He attached to it

    his previous report, extensively discussed in the April 2014 decision, produced

    for Mr Cellinos first appeal. He stood by the views expressed in that previous

    report. In his report of 29 December 2014, he answered six questions put to

    him by Mr Cellinos legal advisers. He was available to answer questions by

    telephone, but in the event neither party wished to ask any questions of him.

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    34. The first four questions he was asked, concerned the reasoning of Dr Lepore in

    her judgment. The fifth question was about possible decriminalisation of the

    tax offence of which Mr Cellino was found guilty. The sixth question was

    whether the FIGC could impose disqualification on a director or manager of an

    Italian football club on the basis of a finding of guilt by a first instance court

    which is not yet final under Italian criminal law.

    35. In response to Mr Ghirardis letter, the League approached Mr Massimo

    Coccia, an Italian CAS arbitrator and sports law specialist, who acts as external

    counsel to CONI. Mr Coccia explained in an email dated 4 January 2015 that

    he was not aware of any plan on the part of CONI to amend or repeal the

    provision in its rules (article 11 of the Code of Conduct) which (among otherthings) provides for provisional suspension from office, as a precautionary

    measure (in via cautelere), of those convicted of certain crimes, for a maximum

    of 18 months or (if sooner) until subsequent exoneration by a court.

    36.

    On 10 January 2015, Leeds City Council provided an emailed statement from

    its chief executive in support of Leeds Uniteds ongoing discussions with the

    Football League. The chief executive stated that the Council had been

    working closely with Mr Cellino and had good working relations with the Club,

    and that the city is starting to see a positive recovery and stability of the club is

    key to its future success. In response, the League referred to a letter from the

    Councils leader dated 3 February 2014, nearly a year previously, emphasising

    the need to ensure any new owner was a fit and proper person.

    37. The parties produced eloquent written submissions of high quality two days

    before the hearing, which we found very helpful. They developed their

    arguments in detail. In Mr Cellinos skeleton argument, a further application

    was also made. He asked the Committee, if we were to dismiss his appeal, to

    deal with his Review Application under rule 6.3of Appendix 3 to the rules.

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    38. That rule provides (among other things) that a person whose appeal has been

    rejected may make a Review Application, for an order that the period of a

    disqualification should be reduced to less than the period during which the

    applicant is subject to a Disqualifying Condition. The ground of Mr Cellinos

    Review Application was that the length of the ban is disproportionate to the

    nature of the Disqualifying Condition (see rule 6.4 c) to Appendix 3).

    39. We were invited, if we should dismiss the appeal, nevertheless to reduce the

    length of the ban from 79 days (the period up to the date Mr Cellinos

    conviction, if any, would become spent under the Rehabilitation of Offenders

    Act 1974, as extended by agreement because of procedural delays), to nil, on

    the ground that the length of the ban would be disproportionate to the nature ofthe Disqualifying Condition.

    40. At the hearing itself, no oral evidence was called, but each side referred to its

    written arguments and to the documentary evidence, and advanced its case in

    succinct and articulate oral submissions. These were made by Mr Taylor, for

    the League, and by Lord Macdonald, with contributions from Mr Watkins and

    Mr Morallee, for Mr Cellino. The hearing lasted from 10.05am until about

    3.45pm, with short breaks. It was tape recorded.

    The Tribunals Conclusions, With Reasons

    41. The following matters were not contested and were uncontroversial, as they

    were in April 2014:

    (1) that the Leagues rules apply to this case, including in particular the

    Owners and Directors Test in Appendix 3;and that the burden is on

    Mr Cellino under rule 6.2 of Appendix 3 to the Rules to satisfy us that

    the appeal should succeed on one or more of the grounds there set out;

    (2) that the court in Cagliari which decided on 18 March 2014 that Mr

    Cellino had committed an offence was a competent court having

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    jurisdiction outside England and Wales(within the definition of

    Disqualifying Condition at e) ix), Appendix 3, rule 1.1);

    (3) that the Committees role in this appeal is not to consider whether it was

    open to the League on the evidence before it to reach the conclusion it

    reached, but to decide the issues on the evidence before the Committee,

    including any evidence not before the League when it made its decision.

    42. The written and oral submissions of the parties made it clear that the issues we

    have to decide, or may have to decide, are:

    (1) whether it is open to Mr Cellino to reopen the issue as to whether the

    Cagliari courts decision was a conviction under the rules, or whether

    he is estopped from so contending on the ground that the issue is res

    judicata;

    (2) whether the decision of the Cagliari court on 18 March 2014 was a

    conviction within e) ix) of the definition of Disqualifying Condition

    in rule 1.1, Appendix 3 to the rules;

    (3)

    if so, whether it was a conviction for an offence involving a Dishonest

    Act, within e) i) of the same definition, i.e. any act which would

    reasonably be considered dishonest (ibid., rule 1.1);

    (4) if so, whether there are compelling reasons (see rule 6.2, Appendix 3)

    why Mr Cellino should not (under rule 2.1 of Appendix 3) be

    disqualified from holding officeor acting as a Club Director at a Club;

    (5)

    if not, whether the Committee should accede to Mr Cellinos Review

    Application made in his skeleton argument, and reduce the length of his

    ban to nil, on the ground that the length of the ban is disproportionate to

    the nature of the Disqualifying Condition.

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    The first issue: issue estoppel or res judicata

    43. The chairman confirmed (by email of 18 December 2014) when declining to

    recuse himself, that he did not intend to prevent either party from arguing any

    point relating to issue estoppel, i.e. whether any issue raised in the previous

    appeal could or should be reopened or not reopened. It is common ground that

    in the April 2014, the Committee decided in the Leagues favour that the

    finding of guilt on 18 March 2014 was a conviction within the rules.

    44. Mr Taylor submitted that the issue had already been decided as between the

    same parties and that decision was, in the normal way, binding so that it was

    not open to Mr Cellino to reopen the issue and seek to argue it again, either in

    the same way or differently, or relying on different evidence. He submitted that

    Mr Cellino was attempting to mount a collateral attack on a binding award

    (Russell on Arbitration, 23rd

    edition, paragraph 6-176) and that any decision we

    might make on the issue would be outside the tribunals jurisdiction and void

    (ibid.paragraph 6-019).

    45. Lord Macdonald submitted it would be wrong to apply the doctrine of issue

    estoppel in this case, because this was an appeal against a fresh decision and Mr

    Cellino could not be expected to have challenged the Committees previous

    decision on the conviction issue, having won his appeal on another ground. In

    an attempt to avoid application of the doctrine, he submitted that the present

    proceedings were not arbitration proceedings but internal disciplinary

    proceedings.

    46. This latter submission, also later developed by Mr Watkins, was founded on the

    nature of the process provided for in an appeal against disqualification under

    the rules. Mr Cellinos argument was that, while the presence on the

    Committee of two League directors was perfectly proper, in accordance with

    the rules and indeed approved and insisted on by Mr Cellino, the two directors

    were not independent of the League and had taken part in the decision being

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    appealed. This had the consequence, Mr Cellino submitted, that the appeal was

    not an arbitral process to which the Arbitration Act 1996 applied.

    47. The proceedings were, Lord Macdonald and Mr Watkins submitted, therefore

    merely internal disciplinary proceedings, not arbitration proceedings;

    accordingly, redress against the Committees presentdecision would be

    available in arbitral proceedings under rule K of the rules of the Football

    Association (FA); there was no warrant for applying the strict doctrine of

    issue estoppel to an internal disciplinary process such as this appeal and to do

    so would be unfair and inconsistent with the right to a fresh appeal.

    48. In his improvised response to those submissions (not all made in written

    argument) Mr Taylor referred to the characteristics of arbitration proceedings

    identified in Walkinshaw v. Deniz(transcript, 19 May 1999, Thomas J,

    Commercial Court) andEngland and Wales Cricket Board v. Kaneria[2013]

    EWCA 1074 (Comm), Cooke J. The present appeal proceedings, he said, bore

    the character of an arbitration, and it did not matter whether any subsequent

    challenge lay in the High Court, under section 68 of the Arbitration Act 1996,

    or in a further arbitration under rule K of the FAs rules.

    49. At the chairmans invitation, the parties were invited to identify after the

    hearing any further relevant authority on whether, if the present appellate

    process are merely disciplinary and not arbitral in nature, the doctrine of issue

    estoppel does or does not apply to such proceedings; or whether the question

    was merely one of fairness in the conduct of a disciplinary process. We were

    referred by Mr Taylor and Mr Herbert toR (Coke-Wallis) v Institute of

    Chartered Accountants in England and Wales[2011] 2 AC146, and Christou

    v. Haringey Borough Council[2014] QB 131.

    50. We found it difficult to see any convincing answer to the Leagues plea of issue

    estoppel. The two authorities just mentioned establish that the doctrine applies

    to disciplinary proceedings brought by a body responsible for regulating

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    standards of conduct in a sport or profession, but does not normally apply

    where the relationship between the parties to the disciplinary proceedings is

    confined to that of employer and employee. It is therefore difficult to see any

    basis for us to reopen the conviction issue even if the present proceedings are

    not arbitration proceedings.

    51. On that latter point, we prefer to express no concluded view. The issue is not

    straightforward and it was not possible to consider it fully during the course of

    argument, because the point emerged during oral submissions and had not been

    foreshadowed in written argument. The issue could impact on the manner of

    any further challenge to our decision, and the forum for such a challenge. It is

    better for the court or tribunal before which it takes place to decide, if it isnecessary to decide, whether these are arbitration proceedings or not.

    52. We accept that in domestic proceedings, as in court proceedings, the doctrine of

    issue estoppel is not always applied where changed circumstances exist which

    could not with reasonable diligence have been deployed on the first occasion

    when the relevant issue was decided. An extreme example is that of a higher

    court decision overruling the first decision, as inArnold v. National

    Westminster Bank plc [1991] 2 AC 93 (see per Lord Keith at 104-108, referred

    to in the Coke-Walliscase by Lord Clarke at paragraph 47 of his speech).

    53. The only material in the present case which could not with reasonable diligence

    have been deployed before the Committee sitting in March 2014 is an

    amendment to the rules of the FIGC which was not made until 27 May 2014,

    after the April 2014 decision. Mr Ghirardi says the effect of this amendment

    was to cancel measures adopted under article 22-bis paragraph 3, a provision

    repealed (abrogato) in 2012. It is doubtful whether that is a material change of

    such significance that it justifies reopening the conviction issue.

    54. We incline to the view that the conviction issue cannot properly be reopened

    and that Mr Cellinos submissions, taken together with the amendment to the

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    FIGC rules in May 2014, ought not to persuade us that fairness requires us to

    allow it to reopened. But in case we are wrong in that view, we propose to

    entertain the conviction issue and consider it afresh even though it has already

    been decided in the Leagues favour between the same parties, in the previous

    appeal.

    55. The convenient course, in our judgment, is to decide the conviction point again

    in the light of the new material, on the assumption that Mr Cellino is entitled to

    reopen it, contrary to the Leagues submissions. We appreciate that if we are

    wrong in doing so, our decision on the conviction point will be otiose and void.

    In that event, the Committees earlier decision on the conviction issue will

    stand for the reasons set out in the April 2014 decision.

    The second issue: was the Cagliari courts decision a conviction?

    56. Lord Macdonald submitted that the Committee was wrong in the April 2014

    decision on this point and erred in deciding that the finding of guilt was not a

    conviction under the Leagues rules. We were invited to review the earlier

    arguments and to reconsider and recognise the force of the arguments advanced

    by Mr Owen QC and Mr Watkins at the hearing on 31 March 2014, especially

    arising from the Caldarellicase. Those arguments should lead us to the

    contrary conclusion to that reached in the April 2014 decision.

    57. Further, Lord Macdonald submitted that even if it were right to interpret the

    word conviction as understood in the legal culture prevailing in England, it is

    of the essence of a conviction in England that it must entail a seamless

    liability to immediate punishment. It is not enough that the process should

    satisfy minimum standards of procedural fairness acceptable by English

    standards of justice. It is also necessary, said Lord Macdonald, that the finding

    of guilt must lead (normally, in the absence of a stay) to immediate certain

    punishment, not possible future punishment.

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    58. In relation to the new material not before the Committee on 31 March 2014,

    Lord Macdonald submitted that Mr Ghirardis written evidence demonstrated

    that, contrary to what was thought to be the position then, sports bodies

    including the FIGC had amended or were in the process of amending their rules

    so as to row back from the unconstitutional discretion to impose precautionary

    suspension from office in the case of officials subject to a non-final judgment.

    59. Mr Taylor submitted that if, which he disputed, the issue could be reopened at

    all, the arguments which prevailed in the April 2014 decision should prevail

    again for the same reasons as then advanced by the League. He added that the

    legal dictionary definition of conviction on which he had relied at the hearing

    on 31 March 2014, did not include the element of liability to immediatepunishment, contrary to Lord Macdonalds submission.

    60. As to the evidence of Mr Ghirardi, Mr Taylor said that it did not contradict the

    proposition advanced to the Committee in March 2014, that both the FIGC and

    CONI had in their rules provision for precautionary suspension founded on a

    non-final first instance finding of guilt. He pointed out that this proposition had

    been accepted by Professor Maffei in his report for the hearing held on 31

    March 2014, and that he had appended that same report to his report for this

    appeal, without altering his view on this very point.

    61. As Mr Taylor pointed out, the rule on which he relies is not article 22-bis but

    article 22-ter of the FIGC rules, which confers discretion on the President to

    impose precautionary suspension founded on a non-final judgment, by cross-

    referring to article 11 of the CONI code of conduct, subject to a right of appeal

    to an independent court. Mr Ghirardi had not even mentioned article 22-ter,

    still less asserted that it had been repealed in 2012 along with article 22-bis,

    paragraph 3.

    62. Finally, Mr Taylor submitted that the Committee determining the previous

    appeal had not found Italian sports law rules persuasive and there was no good

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    reason to attribute more importance to them on this occasion. Even if the

    present Committee were satisfied that precautionary suspension based on a non-

    final judgment is unconstitutional in Italy, and that any provision for it in sports

    bodies rules there is void and unenforceable, that is not the position under the

    Leagues rules, which are governed by English law.

    63. We turn to our reasoning and conclusions on this issue. First, we must

    reconsider the arguments, the reasoning and the conclusion reached in the

    previous appeal. Having carefully done so, we do not see any flaw in the

    reasoning which invalidates the previously reached conclusion, in so far as

    based on the arguments advanced in March 2014, which excluded the new

    argument of Lord Macdonald that an English conviction must entail liability toimmediate punishment, and the points now made by Mr Ghirardi.

    64. We do not, with great respect, find Lord Macdonalds new argument

    persuasive. A conviction in England consists of a finding of guilt by a court of

    competent jurisdiction following due process. That is what also happens in

    Italy in a first instance trial. In England, the punishment is then pronounced.

    So it is in Italy. In both countries, ancillary matters are then dealt with; for

    example, in this case, confiscation of the boat and legal costs.

    65. Even in Italy, a defendant must act to avoid punishment, by appealing. The

    earliest time liability to punishment can become immediate is on expiry of the

    appeal time limit. In England, unlike in Italy, Lord Macdonald is correct to say

    that the punishment decided upon must then immediately be served, unless

    stayed. Bail may be granted pending appeal, or sentence may be deferred, or

    the punishment stayed. But the norm is that the punishment is served

    immediately and any appeal takes place while it is being served.

    66. We bear in mind that the League rules refer to a conviction, not to conviction

    and sentence. In the ordinary use of the English language, and in the English

    legal culture, conviction and sentence are regarded as different things. The

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    sentence is not part of the conviction. It is a consequence of the conviction.

    The issue of conviction is for the jury; the issue of sentence, for the judge.

    They are so different from each other they are not even decided by the same

    decision maker where the crime charged is serious.

    67. We consider that Lord Macdonalds added requirement of liability to

    immediate punishment is really another way of expressing the argument

    rejected in the first appeal, that the word conviction should be interpreted in

    accordance with the norms of the country where the accused is charged and the

    trial takes place. The conception of a conviction as something requiring

    immediate liability to punishment has a distinctly Italian flavour to it.

    68.

    As for the fresh evidence from Mr Ghirardi, and the materials he produces, we

    are of the view that they do not assist Mr Cellino. The new evidence is, in our

    judgment, inconclusive and not supported by Professor Maffei who referred in

    his first report to sport related sanctions as one of the consequences of a first

    instance finding of guilt, as part of the reasoning supporting his conclusion that

    the first instance finding of guilt is not a nullity.

    69. Mr Ghirardi, for his part, is willing to condemn the validity and enforceability

    of rules which have that effect, yet without mentioning article 22-ter, neither

    explicitly condemning it as invalid nor asserting that it has been amended. As

    for the May 2014 amendment, the extracts from FIGC amending provisions

    provided to us do not, on their face, clearly support his proposition that the

    amendment was to cancel the effect of previously imposed measures.

    70. The documents produced would seem to indicate that it was in 2012 that this

    amendment was made, and that the only amendment made in May 2014 was to

    add a requirement, where disqualification is imposed by reason of a final

    judgment, that the crime committed must have led to a sentence of at least one

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    years imprisonment.1 But we will assume, in Mr Cellinos favour, that Mr

    Ghirardi is right and that the amendment in May 2014 did also cancel

    previously imposed suspensions.

    71.

    Mr Ghirardis evidence, read together with the rules produced to the Committee

    in the previous appeal, Professor Maffeis two reports and Mr Coccias email

    professing ignorance of any plan to amend article 11 of the CONI Code of

    Conduct, indicate at the most a debate in Italian sports law circles about the

    propriety of precautionary suspension provisions based on a first instance

    criminal judgment, the possibility that they might not survive a legal challenge,

    and that they are being phased out to avoid such a challenge.

    72.

    We conclude that the new materials, if it is permissible to look at them and to

    reconsider the conviction issue at all, do not alter the conclusion reached by the

    Committee in the first appeal. If we have the power to determine the conviction

    issue, we determine it now in the same manner as before: we decide that the

    finding of guilt on 18 March 2014 was a conviction within the meaning of the

    Leagues rules.

    The third issue: was Mr Cellinos conviction for an offence involving a Dishonest Act?

    73. The parties agreed that we should approach this issue by considering the

    judges written reasons and asking ourselves whether they lead us to conclude

    that the offence of which Mr Cellino was convicted involved a Dishonest

    Act, i.e. any act which would reasonably be considered to be dishonest.

    Rightly, the parties agreed that we should disregard any views of our own about

    the merits of the case, and that it is not for us to question the correctness of the

    judges decision or reasoning.

    1See amendments of 7 March 2012 (bundle tab 17, pages 20-22, 35-36); cf. amendments of 27 May 2014

    (bundle tab 17, pages 23-34; at pp. 24-25 the only bold text is a pene detentive superiori ad un anno

    (punished with more than one years imprisonment); while the language of the Norma finale at page 25

    appears to be as in the 2012 version, which appears to be pages 35-36.

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    74. It is agreed that in reaching her conclusion, the judge considered and rejected

    the defence contention that no tax was due in respect of the entry of the Nlie

    into Italian waters because of the temporary admission exemption, based on

    an EU regulation (EEC Reg. no. 2454/1993). It is further agreed that the judge

    based her rejection of that contention on (among other things) the absence of

    any employment contract between Mr Cellino and Freetime, the written

    authorisation from Freetime not being an employment contract.

    75. What is not agreed is whether the judges remarks about the mens reaof Mr

    Cellino formed a necessary part of her reasoning supporting her finding of guilt,

    or whether, as Mr Cellino contended, those remarks were gratuitous dicta added

    as a postscript after she had reached her conclusion. Mr Cellino submitted thatthe judge adopted a strict liability approach and founded her decision on the

    proposition that criminal liability for the offence is established simply by non-

    payment of the tax due and the inapplicability of any exemption.

    76.

    We heard detailed submissions from the parties, but they can be summarised

    quite briefly. Lord Macdonald emphasised the judges treatment of the tax

    exemption issue, and her remark that, having rejected the applicability of any

    exemption, criminal responsibility was established. In English translation, the

    passage on which he relies, reads:

    Given the above, having ascertained that Massimo Cellino could not benefit fromthe regime of total exemption from the customs duties consequently to the so-called temporary admission, no doubt can thus exist on the criminalresponsibility (penale responsabilit) of the latter with regard to the offence he is

    charged with . .

    77. Lord Macdonald said that passage showed that rejection of the defences

    argument that Mr Cellino was exempt from paying the tax due was alone

    sufficient to establish guilt in the mind of the judge, and that she therefore

    convicted him without needing to rule on any issue of mens rea, or dolo. He

    submitted that the passages which followed reflected moral condemnation, not

    legal reasoning.

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    78. Mr Taylor, by contrast, submitted that Mr Cellinos interpretation of the

    judgment was unrealistic. He pointed out that, while the reference to criminal

    responsibility in the passage just quoted preceded the judges analysis of mens

    rea, it did not indicate a strict liability approach, which would be contrary to the

    position of both sides in the previous appeal, supported by Professor Maffei,

    that some form of dolowas necessary to establish the offence.

    79. Furthermore, said Mr Taylor, the judge proceeded to analyse the factual

    elements relevant to mens reaand had to do so in order to assess the defences

    contention which she rejected, that Mr Cellino was not guilty because of

    absence of mens rea. As the English translation of the judgment states in the

    passage that follows on shortly after the passage previously cited:

    Moreover, it cannot be legitimately argued that the mens rea[sic - mental

    element] (lelemento psicologico) of the disputed offence does not exist, on thebasis of the good faith of the defendant, who, according to the defensive

    allegation, did not pay the customs duties due because he was convinced he couldbenefit from the suspensory fiscal regime consequent to the so-called temporaryadmission and, therefore, in the absence of any elusive conduct (intento elusivo)

    towards the Inland Revenue.

    80.

    Mr Taylor said that the judge gave detailed factual reasons for that conclusion,which would have been unnecessary if the defence had not asserted an absence

    of mens reaor doloas a basis for seeking acquittal. This detailed factual

    analysis, Mr Taylor submitted, was the necessary foundation for her conclusion

    beyond any reasonable doubt that Mr Cellino had set up Freetime to disguise

    his beneficial ownership of the boat, to disguise its definitive (or permanent;

    definitiva) entry into Italian waters as temporary, and by this macchiavellica

    simulazioneto achieve non-payment of customs duties.

    81. Finally, Mr Taylor reminded us that the judge concluded her exposition of the

    defendants guilt by observing that she found, as stated in translation all the

    elements constituting the offence attributed to the defendant fully

    integrated (ritenuti pienamente integrati tutti gli elementi costitutivi del reato

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    ascritto allimputato ). That passage, said Mr Taylor, could only sensibly be

    understood to embrace the mental element of the offence as well as the actus

    reus. Consequently, there was no sense in the assertion that the offence had

    only one ingredient, the actus reuswithout any mental element.

    82. We come to our reasoning and conclusions on this issue. First, we accept that

    the offence with which Mr Cellino was charged included the need for the

    prosecution to prove some form of dolo, or mens rea, going beyond mere colpa

    or blame. This was the position of both parties during the previous appeal. It is

    supported by Professor Maffei, who considered that dolo eventualewould

    suffice to establish the offence, a mental state that would not necessarily

    correspond to the English concept of dishonesty.

    83. Secondly, it is plain that Mr Cellino did advance, as part of his defence, the

    proposition that he could not be guilty of the offence charged not just because

    he was in fact and in law entitled to benefit from the tax exemption, but also

    because he lacked the necessary mens reafor the offence charged. It is clear

    that his lawyer submitted to the judge that Mr Cellino had believed in good

    faith (la buona fede) that he was entitled to benefit from the tax exemption;

    and it is clear that Mr Cellino gave evidence to that effect.

    84. For present purposes, it is not of much importance whether the judge would

    consider dolo eventualea sufficient basis for a conviction, or whether she

    would regard the higher standard of dolo direttoas essential to establish the

    offence. The contest between these two reprehensible states of mind, central to

    the Committees previous decision, is peripheral to this one. A belief formed in

    good faith that he was entitled to the tax exemption would be unlikely to

    correspond to dolo eventuale.

    85. This is because, as explained in the April 2014 decision, dolo eventualewould

    entail an awareness of the risk that Mr Cellino was not entitled to the tax

    exemption, and willingness to run that risk. Awareness of a risk and

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    24

    willingness to run it is not easy to square with most peoples notion of good

    faith. Not surprisingly, Mr Cellino did not run a defence of dolo eventuale; it

    might well not have availed him, for reasons given in the April 2014 decision.

    He denied that there was on his part any doloat all.

    86. The judge begged to differ, as is plain from her written reasons. She found that

    the mental element of the offence was made out. We do not accept that she

    found no mental element was required. She did not define the mental element,

    save to imply that an innocent belief in entitlement to the tax exemption formed

    in good faith would support an acquittal. For present purposes, we do not need

    any definition of the mental element of the offence.

    87.

    What matters is that we have the judges findings about what Mr Cellinos state

    of mind was, which she deduced from her findings of fact. We have to decide

    whether those findings of fact and her description of Mr Cellinos state of mind

    based on them, is conduct which would reasonably be considered to be

    dishonest. As previously noted, the test in the Leagues rules approximately

    equates to the first, objective, limb of Lord Lane CJs test of dishonesty inR. v.

    Ghosh[1982] QB 1053 (see paragraph 88 of the April 2014 decision).

    88. The judge used graphic language in her description of Mr Cellinos conduct and

    state of mind. The meaning of that language was pored over in written

    submissions, with the aid of dictionaries. We were referred to many definitions

    and translations of the Italian words she used. Mr Cellinos linguistic

    interpretation was that the words the judge used do not point to dishonest

    conduct. The League disagreed.

    89.

    We agree with the League that the question for us does not engage Italian law,

    and that we are not assisted, with great respect, by the commentary of Professor

    Maffei on this aspect of the case. We would only need expert assistance on

    Italian law if it were impossible to interpret the judges words withoutsuch

    assistance. We do not think that is the case. We need to understand the

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    meaning of the judges words, but the relevant parts of her decision do not raise

    points of Italian law.

    90. Macchiavellica simulazioneis thejudges vivid phrase describing the state of

    mind she found, arising from her findings of fact. The English equivalent of

    the Italian adjective macchiavellico, derived from the celebrated 15th

    century

    Florentine courtier, is adequately rendered as Machiavellian. The adjective

    has entered the English language sufficiently to merit a definition in the Oxford

    English Dictionary, the online version of which defines it thus:

    Of, relating to, or characteristic of Machiavelli, or of his principles or allegedprinciples; practising, or characterized by, (esp. political) expediency;

    unscrupulous, duplicitous; astute, cunning, scheming.

    91. In Italian usage, one of several sources we found useful was the online

    dictionary athttp://www.dizionario-italiano.it/,in which the adjective

    macchiavellicois defined as astuto, subdolo, privo di scrupoli [unscrupulous] e

    di lealt [disloyal]. Astutois given several English meanings by Google

    Translate; among them are astute, shrewd, cunning, crafty, wily, sly, canny and

    artful. Subdolois defined in the online dizionarioasfalso, ingannevole, i.e.

    false and misleading.

    92. Simulazioneis translated into English by all sources simply as simulation. In

    the online dizionario, it is defined in Italian as atto, effetto del simulare;

    finzione, i.e. the act, or effect, of simulating; or fiction. The Italian verb

    simulareis defined in the dizionarioas: manifestare sentimenti insinceri;

    mostrare le cose diverse da come sono. In English, this means: to manifest

    insincere feelings; to show things differently from how they are.

    93. The parties disagreed in their written arguments about whether the words

    intento elusivoshould be understood in English as denoting a legitimate intent

    to avoid paying tax (elusione fiscale), or an intent to evade payment of tax

    (evasione fiscale). Read in their context, it is plain that the bear they latter

    meaning and not the former. If the judges comments about Mr Cellinos

    http://www.dizionario-italiano.it/http://www.dizionario-italiano.it/http://www.dizionario-italiano.it/http://www.dizionario-italiano.it/
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    mental state were superfluous moral condemnation not legal reasoning, this

    would not matter. But we do not accept that interpretation of the judgment.

    94. It is true that the judges remark to the effect that Mr Cellinos criminal

    responsibility is established precedes her account of mens rea. But we do not

    accept that this leads to the conclusion that her account of mens reawas

    unnecessary. On the contrary, the judges account of mens reawas necessary

    to address the defences argument that an innocent belief formed in good faith

    negates guilt, which would have succeeded if it had not failed on the facts.

    95. We can see no good reason why a judge such as Dr Lepore would indulge in

    lengthy unnecessary and superfluous criticism, nor why the defence lawyer

    would devote time and trouble to raising a defence of lack of mens reawhich,

    according to Mr Cellinos present argument, is not a defence in law at all. We

    are clear in our minds that the judges attribution to Mr Cellino of a cunning

    plan to evade payment of the tax due was integral to her conclusion that he was

    guilty of the offence charged.

    96. In the light of the above, we consider that the judges findings of fact and her

    description of Mr Cellinos state of mind based on them, is of conduct which

    would reasonably be considered to be dishonest. We therefore conclude that

    Mr Cellino has been convicted of an offence involving a Dishonest Act

    within the meaning of the rules, and that he is accordingly subject to a

    Disqualifying Condition.

    The fourth issue: are there compelling reasons why this particular conviction should not

    lead to disqualification?

    97. Lord Macdonald submitted that as the presumption of innocence in Italian law

    outlasts a first instance conviction, this particular conviction (if it was one,

    contrary to his primary case) was not one that entailed guilt in the legal system

    in which it occurred; and that, moreover, it would not now lead to

    disqualification or even precautionary suspension under the relevant amended

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    domestic rules governing football in Italy, for the reasons already advanced in

    support of his (unsuccessful) submission that Mr Cellino had not been

    convicted at all.

    98.

    In those circumstances, Lord Macdonald submitted, it was right and proper to

    have regard to the likely consequences for the Club of Mr Cellinos

    disqualification, even though normally the adverse consequences of a

    disqualification would not amount to a compelling reason because they flow

    naturally from the disqualification. He invited us to assess the potential or

    likely adverse impact of disqualification on the Club in the light of the

    consideration that disqualification would not ensue in Italy.

    99.

    Lord Macdonald relied on the evidence of Mr Umbers, while accepting that it

    was necessarily speculative, as demonstrating a likelihood of severe adverse

    consequences for the Club, to the point where there would be a significant risk

    of insolvency. Towards the end of the hearing, and in a dialogue continued by

    email after it ended, the parties debated the precise steps that would have to be

    taken to comply with the Leagues decision of 27 November 2014, if the appeal

    against it failed.

    100. This issue could in principle be relevant to the compelling reasons issue

    because the more draconian the steps required to comply with the decision, the

    more force there may be in the contention that compliance would have drastic

    adverse consequences for the Club. Consequently, Mr Cellino argued that

    under the rules, it would be necessary for Mr Cellinos family members as well

    as Mr Cellino himself, to divest themselves of their stakes in the Club.

    101.

    For the League, Mr Taylor argued that there is no good reason for treating a

    first instance conviction in Italy more favourably than one occurring in a

    common law country such as Canada, where the conviction normally brings

    with it an immediate obligation to serve the sentence consequent on the

    conviction. As the Committee had observed in the April 2014 decision, those

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    convicted in Italy should not enjoy a windfall advantage over those convicted in

    a common law country such as Canada.

    102. As for the potential damage to the Club if Mr Cellino were disqualified, Mr

    Taylor emphasised that the length of the disqualification would be only 79 days

    because of, among other reasons, the delay between the judges decision and

    the availability of her reasons. He said that in the Leagues view, Mr Cellinos

    family members would not necessarily have to divest themselves of their stakes

    in the Club; there is a presumptionthat Mr Cellino would continue to exert

    control over the Club through members of his family, but it could be rebutted.

    103. Mr Taylor suggested that Mr Umbers concerns were exaggerated, speculative

    and unsupported by any external evidence or, tellingly, by any evidence from

    Mr Cellino himself. He added that the League was willing to engage in

    reasonable discussions about what steps would be necessary for the purposes of

    compliance with the decision, if the appeal failed, and that it was for the League

    and not the Committee to concern itself with that issue.

    104. We do not find persuasive the suggestion that a conviction in Italy should be

    treated as qualitatively different from a conviction in a common law country.

    We consider that a compelling reasons argument should focus on the particular

    conviction (in the words of rule 6.2 b)). While that might include, at the

    margin, some consideration of the legal system in which the conviction occurs,

    the primary focus should be on the conduct of which the person is convicted.

    105. We were not persuaded that this was a case where the imminent demise of the

    Club would be likely to follow any disqualification. Mr Cellino has shown a

    strong desire to own and operate the Club and is plainly very attached to it. We

    see no evidence of any wish on his part to walk away from the Club, which an

    owner can always consider doing, whether or not disqualified. We appreciate

    that disqualification would bring with it adverse consequences but the severity

    of those consequences is a matter of speculation.

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    106. We agree with the League that it is not for the Committee to decide what steps

    would, or would not, constitute compliance with the Leagues decision in the

    event that disqualification ensues. We do not propose to analyse the detailed

    rules shown to us, dealing with the obligation of a disqualified person to divest

    himself of control of a club, on what transactions would fulfil the obligation,

    and dealing with the definition of Control in a case where family members

    also have an interest in the relevant club.

    107. While we cannot see in the rules any rebuttable presumption which enables Mr

    Cellino to defeat the proposition that his familys interests in the Club are to be

    attributed to him, the issue is one of compliance and is therefore for the parties

    and not this Committee to address. It is relevant that the League is prepared to

    interpret the rules as including such a rebuttable presumption, and we accept Mr

    Taylorspoint that the parties will need to engage in a constructive dialogue if

    the disqualification is upheld.

    108. For those reasons, and in the light of the brevity of the disqualification which

    will only last for 79 days, we do not find any compelling reasons why this

    particular conviction should not lead to disqualification, and we reject the

    contrary argument of Mr Cellino. It follows that the Leagues decision stands

    and that we must dismiss Mr Cellinos appeal.

    The fifth issue:Mr CellinosReview Application

    109. Finally, in his skeleton argument, Lord Macdonald made a Review

    Application under rule 6.3 of Appendix 3 to the Leagues rules, for an order

    that, in the event that Mr Cellinos appeal should fail, the length of the

    disqualification imposed upon should be reduced to nil. The application was

    made on the ground that the length of the ban would be disproportionate to

    the nature of the Disqualifying Condition, as provided for in rule 6.4 c), within

    Appendix 3.

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    110. The way the rules are drafted is such that, in a normal case, a Review

    Application would be made to the Professional Conduct Committee during the

    period of disqualification, rather than at the start of the period, and would be

    intended to shorten the length of the disqualification rather than eliminate it

    altogether which is the same practical result as obtained by winning an appeal.

    Nonetheless, the League did not suggest that the application was defective, and

    we agree that it can and should be addressed by us.

    111. Lord Macdonald confirmed at the hearing that he did not object to the presently

    constituted Committee determining Mr Cellinos Review Application, and was

    content with the Committees composition. The chairman raised this point

    because the application is made in this case on the premise that the Committee,with the same members sitting, must necessarily have rejected the appeal; and

    the arguments supporting the Review Application are the same as the grounds

    of the appeal (see paragraph 76 of Mr Cellinos skeleton argument).

    112.

    Mr Taylor submitted that rule 6.4c) of Appendix 3 is directed to the length of a

    period of disqualification, and that it is not relevant when considering that issue

    to have regard to the adverse consequences of the ban on the club concerned.

    Mr Taylor also pointed to the brevity of what remains of the period of

    disqualification, and the time that Mr Cellino has had to arrange his affairs so as

    to minimise disruption to the Club during the period of disqualification.

    113. It seems to us that the consequences for the club concerned might, in principle,

    be relevant to whether a ban is disproportionately long or not. We do not

    accept that the two issues can, without artificiality, be decoupled from each

    other. The more fundamental difficulty is that the Review Application travels

    the same ground as the arguments on the appeal which we have already

    rejected, and the remaining period of the ban, 79 days, is short when measured

    against the conduct of which Mr Cellino was convicted. Consequently, we see

    no good reason to accede to the Review Application.

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    The Tribunals Ruling

    114. Accordingly, for the reasons given above, we dismiss Mr Cellinos appealand

    we refuse his review application.

    Tim Kerr QC, Chairman

    Greg Clarke

    Richard Bowker CBE

    Dated: 19 January 2015