Daily Archives: 08/04/2014

The Football League – still reeling from the impact of a mere QC having the brass bollocks to overturn their magisterial decision to reject Massimo Cellino as owner of Leeds United – plainly have all their hopes pinned on the “reasoned judgement” of the Italian judge in the “Nélie” case.  This judgement, a fuller statement of the reasons for the judge’s verdict of March 18th, is due within a 90 day period from the initial judgement – i.e. by sometime in June.  The League will be hoping, in their remorseless determination to get rid of Leeds United’s best hope, that there is a clear imputation of “dishonesty” within the judge’s reasoning; this would enable them to revisit the issue of Cellino’s “fit and proper” status, as covered in Tim Kerr’s appeal judgement which was released on Saturday.

Happily for Cellino, Leeds United and long-suffering fans everywhere, there must be a very good chance that the Italian judge – for sound, common sense reasons – will make no imputation of dishonesty.  Firstly, the fine imposed was some way beneath the normal minimum amount for the offence concerned, with a mention of “generic mitigation” about which we shall doubtless hear more in the detailed reasons.  But this may well be an indication that Dr Sandra Lepore has decided that duty was evaded for reasons other than dishonesty. This leads us onto the second point: the important, nay crucial, distinction between “guilt” and “dishonesty”, upon which depends the eventual outcome of this case – together with all the League’s hopes of saving face and getting their man.

The first thing that needs to be understood is that, for Cellino to be disqualified, he must be found to be guilty AND dishonest.  These two do always not go hand in hand, as some might assume.  “Guilt”, simply defined is “the state of having done wrong”.  Cellino would argue that, under the Italian constitution, his guilt is not established until the entire legal process including a couple more stages of appeal, is exhausted.  That argument failed before Kerr, but he somewhat unexpectedly took the view that, on the evidence before him, there was no reason to find that Cellino had acted dishonestly.

Guilt can arise knowingly or unknowingly.  You can be guilty by design, by omission, through ignorance or deception, by being misled or badly advised – many circumstances can lead to guilt, not just sheer badness.  As can be readily understood, guilt through ignorance or misunderstanding is a different thing from guilt with, as they used to call it, malice aforethought. It’s these different categories of guilt that will differ in the presence or absence of dishonesty. Somebody guilty through ignorance or misapprehension is not dishonest, and this is very important in Cellino’s case.

In effect, to avoid any imputation of dishonesty, all Cellino has to show is that he thought he was doing no wrong.  Dishonest guilt implies that the offender knows very well that what he is doing is wrong, but he chooses to do it anyway. It’s possible, of course, that import duty could be avoided in just this way.  But to what end?  You end up paying it anyway, and a fine which can be up to ten times the duty avoided – and, as in Cellino’s case, the item upon which duty should have been paid is confiscated.  That’s not a good result – so why would anybody willingly court such an outcome? Especially somebody of Cellino’s reputed wealth, to whom import duty of €300k or so is almost literally small change.

Cellino also makes the point that he could have spun out this case over the yacht “Nélie” over a maybe a couple of years, by which time he and Leeds United may well have been beyond the Football League’s jurisdiction anyway.  But instead, he opted to get it out of the way – because he thought he was right.  This is vitally important.  If Cellino really thought he was not guilty, then by the logic described above, he may well be guilty – but he can’t be dishonest.  Dishonesty would require a good understanding of his legal position, an acceptance that what he was doing was wrong – and a reckless determination to go ahead and do it anyway.  In those circumstances, the duty-evader could be expected to delay the evil hour of judgement for as long as possible, knowing he was bang to rights.  Not – as Cellino did – to expedite the process, seeking an early resolution – because of his firm belief that he was in the right.

To summarise the position – if we assume that Cellino is guilty, i.e. that he has done something wrong for whatever reason, then all depends upon whether that reason had some dishonesty attached.  But if he genuinely believed that he had a case for non-payment – based on the argument that he is a US resident, the yacht is a US craft and duty had been paid in the US – then he cannot be held to be dishonest.  Ignorant, maybe.  Misguided, possibly, or even badly advised. But not dishonest – and if that’s the case, then the Football League will not be able to apply their disqualification to him.

Given all of the above, if Dr Lepore has had regard to all of these circumstances, it’s difficult to see how she can impute dishonesty against Massimo Cellino in this case – and that may just be what is behind the rather low fine – significantly less than the normal minimum. Looking at it from the outside, it’s difficult to see how a finding of dishonesty can stick, given that all Cellino had to do was convince the judge that, if he has done anything wrong, it was through ignorance, not design. With so little to gain from acting dishonestly in such circumstances, and with the transparency of his actions in seeking to get the case disposed of quickly, there must be a very good chance that Cellino will emerge from this latest kerfuffle undamaged – much to the ongoing grief and rage of the Football League.

In Mishcon de Reya, Cellino has just about the finest legal team he could wish for – and they will certainly be on top of these arguments.  Here’s hoping, then, that justice and common-sense will shortly prevail over the League’s murky and Machiavellian motivations.