“Fit and Proper Test” Under Spotlight as Cellino Bids for Leeds – by Rob Atkinson


Cellino - fit and proper?

Cellino – fit and proper?

Rumours have been gathering pace all day that Cagliari owner Massimo Cellino is on the brink of securing a majority holding in Leeds United AFC. The implications of such a development are manifold, not least the effect on manager Brian McDermott and his backroom team. One quote attributed to Cellino when asked about McDermott’s future was “I need a coach, not a manager”. It’s fair to say the things look bleak for Brian, should the Italian Job be completed.

One vital stage in any such completion would the Football League’s decision as to whether or not Cellino’s ownership of Leeds United should be sanctioned. This involves scrutiny of any potential new owner under what is known as the “Fit and Proper Person Test” (FAPP). On the face of it, Cellino would seem to face difficulties with this. He allegedly has a couple of fraud convictions and is awaiting trial on embezzlement charges. Not on this account alone could he be considered more of a villain than Ken Bates – but you’d have thought that the Football League, even in the rather dodgy guise of ex-United CEO Shaun Harvey, might not look kindly on a man with a rap sheet like Cellino’s. It may well be that this will be the most stringent test yet of the efficacy of the FAPP Test.

There is the merest suggestion that the club might be acquired by Cellino in the name of his son – a guy who is much given to Instagram sharing and who is not, presumably, saddled with a record for dodgy deal like Papa’s.

Whether or not the FAPP test can be satisfied, or perhaps merely circumvented, this looks like being a crucial decision in the context of the whole history of Leeds United. We’re looking at a man who changes managers, or coaches, considerably more frequently that Ken Bates changes his underwear. Cellino is not a man to be swayed by fan opinion either – it tends to be “my way or the highway”. Fan engagement has been a buzz-phrase around LS11 since GFH moved in – but those days might be ending for the foreseeable future.

It looks as though the ownership issue is coming to a head just as the transfer window slams shut on us yet again – so the question of whether or not Cellino is likely to be a heavy investor will probably – subject to any promises he might wish to make in the wake of sealing a deal for United – have to wait for another day. But it would appear that the Italian is very much “hands on” in terms of transfer deals, so it’s highly unlikely that we would see Brian wheeling and dealing as he did so successfully and to such devastating effect at Reading.

Whatever happens, we’re all going to feel as if we’ve sat through some combination of gothic horror, low farce, and pantomime. It has been a deeply unsettling time to be Leeds. We shall obviously have to do our best to keep Marching On Together, but it looks like it might not be easy. The Cellino regime would be terra incognita for Leeds United – we’d just have to wait and see how things pan out. For once, even with a derby in prospect – always a Cup Final for the opposition – football is the last thing on the minds of most United fans. McDermott won’t be drawn on whether this Huddersfield home match could be his last as Leeds manager, saying only that he plans “to enjoy it”. Valedictory words? Sadly, they may well be just that.

These are dark and troubling times at Elland Road – and whatever happens in the next day or so, it seems certain that we’re not out of the woods yet – not by a long chalk.

Addendum – the Fit & Proper Test as it applies to Cellino. Grateful thanks to Max for his research and interpretation – much appreciated.

Rob, I had a look at the rules here:
http://www.football-league.co.uk/regulations/20130704/appendix-3_2293633_2128209

And also key is the Rehabilitation of Offenders Act 1974 (http://www.legislation.gov.uk/ukpga/1974/53/enacted), which the rules use to decide whether a conviction is “spent” or “unspent” (even if outside the UK). “Spent” means they come off your criminal record (if you have one) for most purposes.

Cellino’s convictions are banned by the rules, if unspent, so you then look at the act to decide whether or not they are spent. Sentences of >2.5 years (including, obviously, life sentences) are never spent. It’s not clear what happens with suspended sentences, I would assume they are treated the same.

Cellino had a 14 month suspended sentence in 1996 and a 15 month one in 2001. For a sentence of 6 to 30 months, the time for rehabilitation, or for the convictions to be “spent”, is 10 years. So by my reading he is in the clear.

The embezzlement charges don’t count unless he’s convicted. If convicted, even if the sentence is under 6 months, he’d be disqualified for 3 years (by applying the table in the 1974 Act) from being a football director and would have to resign.

But right now – and I may have missed something, of course – by my reading he would pass the test. In 2010, when he tried to take over WHU, the convictions wouldn’t have spent, assuming the rules applied (the PL rules may be different in this respect, I don’t know)

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37 responses to ““Fit and Proper Test” Under Spotlight as Cellino Bids for Leeds – by Rob Atkinson

  1. Well at least this Italian guy seems to be a “pro-active” kind of fellow.
    He’s got a bit of a “Duncan Mckenzie” attitude about him which is probably what Leeds need right now. We need a risk taker to get us back where we belong.

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    • This guy is scum, worse than Bates. He’s here to get the stadium and sell it on, or something. I wouldn’t be at all surprised if what’s left of the club – I’d say, nothing now – is disbanded for corruption in the next few years, or at least kicked out of the League.

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  2. Barry Firth

    Baz Filey,if this Italian buys our club it would be tragic.
    And if he then sacks B.Mac. I for one would never watch
    Them again,after 58 years support.

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    • Only 44 years for me, but I too won’t watch them again. Not a real club any more. No doubt he’s done this because he knows he can get round the fit and proper person test, but there is still one hope everyone’s forgotten, sitting right there in plain sight. I’ll probably elaborate in a further comment.

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  3. Looks like we’ll have TWO Festas in the dugout now.

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  4. I can’t say I’ll never watch Leeds again , and I doubt very much if the Italian dictator cares if I do or don’t , all I will do is walk away for a while to see what happens next , I think he’s a tyrant and there will be a revolving door on the managers ( sorry coaches) office , you only have to look at his record at calgari to know what awaits us at Leeds , calgari have done nothing with this man in control and after sacking 35 coaches he’s wanting to run away and start again at Elland rd

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  5. I’ve been reading ANY news I can get my paws on all day and it does seem that the Italian is about to take over, it also looks like BMacD is going to be out on his ear very soon.
    Probably be emotional at ER tomorrow as fans sing BMacs name, I wonder if the players will respond and see off Hudds? Probably not! Another cup final methinks.
    It will be sad for Brian, never given a chance and uncertain times ahead, (nothing new there then). BUT whatever happens, we are Leeds, stick together, March on and hope, it’s all we can do, anything else is pointless cos the Italian won’t give a F@#K just like Ken.
    MOT

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  6. Rob, I had a look at the rules here:
    http://www.football-league.co.uk/regulations/20130704/appendix-3_2293633_2128209

    And also key is the Rehabilitation of Offenders Act 1974 (http://www.legislation.gov.uk/ukpga/1974/53/enacted), which the rules use to decide whether a conviction is “spent” or “unspent” (even if outside the UK). “Spent” means they come off your criminal record (if you have one) for most purposes.

    Cellino’s convictions are banned by the rules, if unspent, so you then look at the act to decide whether or not they are spent. Sentences of >2.5 years (including, obviously, life sentences) are never spent. It’s not clear what happens with suspended sentences, I would assume they are treated the same.

    Cellino had a 14 month suspended sentence in 1996 and a 15 month one in 2001. For a sentence of 6 to 30 months, the time for rehabilitation, or for the convictions to be “spent”, is 10 years. So by my reading he is in the clear.

    The embezzlement charges don’t count unless he’s convicted. If convicted, even if the sentence is under 6 months, he’d be disqualified for 3 years (by applying the table in the 1974 Act) from being a football director and would have to resign.

    But right now – and I may have missed something, of course – by my reading he would pass the test. In 2010, when he tried to take over WHU, the convictions wouldn’t have spent, assuming the rules applied (the PL rules may be different in this respect, I don’t know)

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    • That’s brilliant research and much appreciated. Not sure it’s what we want to hear, but better by far to have some reliable knowledge than sit here in the dark just wondering. Cheers Max – great work. I’ll append it to the article, hope you don’t mind!

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    • Max thats amazing reporting information there, so now everyone must have read that their are fresh tax fraud charges

      http://www.bbc.com/sport/0/football/26466112 (as follows below), sounds like the Italian Govt wants their share of Cellino’s money, maybe a bribe would be in order lol.

      “Massimo Cellino’s proposed takeover of Leeds United could collapse if the Italian is found guilty of tax evasion at a Sardinian court later this month.
      Cellino denies illegally evading paying €400,000 import duty on a yacht.
      The case is due to be heard on 18 March, five days after the next meeting of the Football League, which is currently considering whether he passes the “fit and proper person” test.”

      My question Max is can he put Leeds in both of his son’s names to basically circumvent him doing the test they do the test and pass?, there has been some suggestion he already has, and correct me if I’m wrong but if so the signatures and names on the transactions for the sale 75% to Cellino also has to be in the son’s names, and would they have to show proof that they have the money not their dad? would he set up his wealth in bank accounts under their name?? Or would this all be clear to the FL office that Massimo is behind all this, and can they prove it, could they subpoena all the records and testimony, wouldn’t the conversations and instructions to Cellino’s lawyers be protected by client attorney privileges? PS I use to watch a lot of Law and Order and don’t make any claims to know actually what the laws are. i would really love your take on all this, if his bid fails, the earth might open up and swallow Leeds into the abyss….

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  7. David Smith

    Rob – ‘terra incognita’ indeed. I think it is fair to say that most right thinking Leeds supporters are currently shell shocked by events – I certainly am and that is despite reading your informative blogs on recent matters. The more you hear about Cellino the greater I worry and it would appear on the face of it that Mr Bates has a greater chance of entering the ‘Pearly Gates’ than this Italian guy! As you intimated, we can’t rely on the Football League to object to the Cellino takeover, as he could easily place some puppet in charge. Desperate times – but let’s keep the faith.MOT

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    • I share your bewilderment, David. Incidentally, I’ve now updated the article to include the very useful information researched and applied to Cellino’s situation by Max, to whom I’m very grateful. I think it clarifies the issue of “fit & proper” – not necessarily in a good way. But clarity is always welcome. I’d be grateful for any other informed opinions as regards the legal position and the FAPP test.

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  8. I hate to be the harbinger of doom and all that but if a convicted rapist can own Blackpool fc then Cellino will breeze any fapp test.

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  9. Phil Hay thinks that Farnan has been given the nod that Cellino won’t pass. But I suppose he will.

    That other hope I mentioned is Nooruddin. Am I the only person who remembers that Nooruddin actually owns part of the club in his own right? Obviously not a majority stake, but he could cause trouble. Arsenal had to accommodate Stan Kroenke in the end, and will eventually have to accommodate Ushmanov too. Nooruddin and Haigh, who does seem to have put some of his own money in, could cause a lot of trouble for Cellino-LU. I’d like them to actually – with the aid of transfer windows we may even be able to get in and out of administration without selling players. I don’t care even if we do, I don’t care if we’re relegated. I want a fan-owned club or a Yorkshire business people club, or a London venture capitalist owned club (remember the Redbus bid, all those miserable years ago?).

    That’s my only hope. I’ll go watch the Huddersfield game – unless Brian’s been sacked by then – and that will be my last, unless we go into admin and come out with proper owners, and I come sidling back with egg all over my smiling face.

    I suggest everyone else takes the same attitude. It will be like bereavement, but having had a few and having had to raise my daughter by myself I can tell you that people are more important than Leeds United, and that after a year or two you’ll stop feeling like you’ve lost a limb and the club will become a pleasant memory – which it is now. Leeds were the best of the best in football’s golden age and entertained us until Bates took over. Attempts at revival of the car crash victim failed. The end.

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  10. And for what it’s worth now, this:
    Bryan Swanson ‏@skysports_bryan 8m
    Just spoken to Ross McCormack: “I am really happy at Leeds and look forward to staying at the club & playing under Brian McDermott.”
    Retweeted by Phil Hay

    Told you Ross wouldn’t go. One in the eye for you, Clarkeonenil, and a hollow victory for me over those who said he’d go.

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  11. Hi all, This is a very tricky situation for the FL on a number of counts, if they do allow Cellino to take us over and say something goes wrong in the future then they will have egg on their face as they would have approved the takeover, it may even lead to a legal case against them.

    If we want to oppose this takeover then we need to petition the FL FA and the managers association, I am sure the latter will have concerns about level of turnover of managers at Cagalari

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    • I don’t think the criteria in the FAPP test include considerations like manager turnover – though they should IMHO. Maybe the LMA might bring some pressure to bear??

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  12. The situation about Festa, trying to get onto the bench at the Ipswich game just beggars belief, but If Cellino does take over and pushes out McDermott in favour of Festa, surely Leeds fans won’t tolerate that?
    The fans will definitely get behind McDermott and the team tomorrow, but will McDermott and his low-in-confidence players use this “them against us” situation, for motivation, to get a much needed win in Huddersfield’s cup final?
    McDermott has to pick the right players tomorrow, with Poleon, Mowatt and Murphy all given starts and even Hunt must be considered for a place on the bench.

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  13. Everyone wants his son to marry the girl next door – comfortable and familiar although not without creeping contempt Sounds like all of the most basic sociocultural fears.
    Take a look at a couple of Massimo’s bio briefs: http://managerbiography.altervista.org/biography-of-massimo-cellino/
    http://www.goal.com/en/news/1717/editorial/2013/02/22/3764143/stadium-chaos-at-cagliari-the-story-of-how-president-massimo

    Out in the real world it is a tough place especially in Italy where corruption reigns in municipal politics. Look what this guy has done with a nothing team in a small city without facilities and cut off from the mainland. Try to remember that charges get trumped up all the time and many many in the frontlines are pushing buttons and stressing the limits of the law . This is what happens Only mega money can afford to sanitize its business dealings. The man obviously has passion He will bring life to Leeds

    Mr. Haigh was walking that very tightrope of having one foot in different beds. He may well find himself in trouble with GFHC. This scenario is played out everyday in the world with those trying to squeak in the door by bridging the gap with minimal funds and a lot of wishful thinking. Mr. Farnan’s group made the fatal mistake of low balling in the first instance and that, together with Haigh controlling the entry, lost them credibility.

    This is what was starting to leak out in mid december This is what undermined the players and management.

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    • That nothing team with no facilities had them before he took over. They were like Ipswich. Now they’re a mess. If he’s so good, why have Cagliari fans wanted him out for 20 years?

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  14. Word is they’ve sacked him rob ,,, fucking disgsting

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  15. john palmer

    I’ve heard Cellino is in & BMD is out. The horses head on pillow gave it away

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  16. john palmer

    Just think! If the Mafia moves in we will have real headless chickens running around

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  17. Sniffers shorts

    We are imploding rob what the hell is going on ?????

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  18. Oops,may have spoke too soon. The game has changed since BM has left.

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  19. john palmer

    I’LL STAY for ever BMD SACKED I’M OFF

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  20. Minor (or maybe not) addition. From Phil Hay’s tweets this morning, GFH have given Cellino control as of yesterday (maybe earlier). Cellino seems to have fired McDermott without board approval.

    Quite apart from the technical point as to whether Brian has actually been fired, this puts Leeds (not necessarily Cellino) in breach of the same set of FL rules referenced above (notification of potential directors) and Leeds could be subject to a fine and other sanctions, without right to appeal. I’m assuming here that, GFH being an incompetent bunch of crooks, they didn’t kick off the notification period 10 working days ago per the rules (but it may be the case that Cellino ran his own personal process here as statements in the Italian press have been saying that the approval process was underway).

    If I had to bet on this, Cellino will pass the FAPP and Leeds will get a fine or points docked for the chaotic handover.

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  21. Well, you’ve got my email. I’m not a lawyer, to repeat.

    I’ll post a little more here since I really don’t have time to check whether there is something more recent to which I would add, but some more thoughts:

    – the recent GFH statement says takeover contingent on FL approval. I assume Cellino has not been named director of the relevant companies and has no legal right to go sacking someone, so technically any of the sackings were illegal (not criminal, but against companies law). If a lawyer delivered said sacking, as is alleged, he/she could also in turn find him/herself in a barrel of professional trouble. The directors had a duty to stop this from happening. Maybe Haigh found himself in a minority; at any rate it may not have been an act of principle but the advice of a lawyer to push the button on the ejector seat. Today’s chaos may be at the (probably through gritted teeth) advice of a lawyer to do whatever cleanup is possible.

    – Letting someone take control (the FL rules do not distinguish between formal directorships and those who are in control) without approval is in breach of the rules.

    – If said person authorised a transfer while in breach, I’m not sure that transfer is legit either. I don’t think anyone could technically have been bought or sold yesterday, veto or not. I don’t think the Tabanelli loan/transfer can be valid either (personal opinion).

    – despite efforts to restore Brian I would assume the deal is technically done (or Leeds have somehow ended up in breach; Brian could agree to a new contract in lieu of compensation). Today’s teamsheet names a caretaker manager so let’s assume he’s out of a job and in dispute on breach of contract, compounded with legality issues, from an employment law point of view. From an FL point of view, he should technically still be the manager, unless GFH fired him. Cellino is not allowed to exert influence on the club.

    – I think Cellino/GFH/Leeds are now technically in more breaches than the FL’s rules scope cater to, and it may come down to a subjective decision, which may be what is giving the Farnan team hope. They may have looked yesterday and seen the actions as basically grabbing victory for them from the jaws of defeat. I still bet that Cellino passes FAPP but it is slightly less likely than it was.

    A couple of other points:
    – isn’t Harvey the only member of the previous Leeds United set of directors who is not himself in legal dispute with Leeds United? Bates and Williams certainly are.
    – and I don’t know the requirement for coaching in the Championship. If you coach in the Premiership you either need a UEFA Pro license or a dispensation from the FA. What does Festa have?

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  22. A bit more … I was looking into this yesterday, still somewhat shell shocked (have taken to laughing manically) over the weekend’s events. Anyhow, this 1996 “conviction” is complicated further by the crazy daisy nature of Italian law.

    There was an original 1996 “sentence” which was then horse traded into the 14 month suspended sentence in 2000, through the Italian “plea bargaining” system. Couple of issues here:

    – The FL rules use the *original* sentence (or normally would, see next point). The archive of this (referenced on Cellino’s Wikipedia page) has disappeared from the L’Unione Sarda (Sardinian newspaper) page. If the original sentence is >30 months it could not be unspent. Finding out what the original sentence is, though, is probably a task for a professional journalist, or at least someone with better Italian than mine.

    – A strange feature of the Italian system is that you can plea bargain and accept a sentence (as here) without admitting guilt. So there is an open question as to whether this could be considered a conviction at all under English law.

    – (This is more of an observation) How can you get a suspended sentence in 2000 and then another in 2001? Were there any terms on the 2000 sentence at all, that he could have broken?

    Sigh.

    Unreported irony: Cagliari won 1-0 yesterday and the scorer dedicated his goal to Cellino.

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  23. Max referring to your comment – A strange feature of the Italian system is that you can plea bargain and accept a sentence (as here) without admitting guilt. So there is an open question as to whether this could be considered a conviction at all under English law.

    is it possible could Cellino plea bargain and accept a sentence on the new fraud charges on allegedly evading paying €400,000 import duty on a yacht basically pay them a large fine, with a bit extra wink wink, and therefore not be not be found unfit as a result of the “fit and proper persons test” http://www.bbc.com/sport/0/football/26466112 (as follows below)

    “Massimo Cellino’s proposed takeover of Leeds United could collapse if the Italian is found guilty of tax evasion at a Sardinian court later this month.
    Cellino denies illegally evading paying €400,000 import duty on a yacht.
    The case is due to be heard on 18 March, five days after the next meeting of the Football League, which is currently considering whether he passes the “fit and proper person” test.”

    Like

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