Tag Archives: Italian law

Is Cellino Guilty? Possibly … Dishonest? No Chance – by Rob Atkinson

Cellino: trusting in providence

Cellino: trusting in providence

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.

Football League Need to be Wary of “Vendetta” Accusations – by Rob Atkinson

The collected intelligentsia of the Football League

The collected intelligentsia of the Football League

So, Massimo Cellino is in.  He has won the right to have ratified his 75% purchase of Leeds United and he is now effectively the owner of the club.  It’s been a long, long road and quite a twisty turny one to boot.  Along the way, matters have descended into low farce on frankly far too many occasions, with certain parties open to ridicule verging on laughing-stock territory.  But now it’s all over – we move on, right?

Well, maybe not.  The gentleman who decided in Cellino’s favour today, Tim Kerr QC, did so strictly on the evidence before him.  He resisted invitations to decide the instant matter against Cellino pending possible imputations of dishonesty when the fuller “reasoned” judgement of the Italian court is handed down within three months or so.  But he did acknowledge that, should such imputations be made, then at that time Cellino would fall within the scope of disqualification.  What we have today is, in effect, a verdict “as is”.  Things might change, and then the Football League would, in theory, have the option of acting anew against Cellino.

There are worrying signs within the judgement handed down by Mr Kerr today that the Football League acted with extraordinary zeal in an effort to preserve their decision to disqualify Cellino.  They went so far as to try and have the evidence of an independent Italian legal expert disregarded, on the grounds that his impartiality was in doubt because – wait for it – he’d ended one incautious social media exchange with “Ciao – Forza Leeds“.  The QC dismissed such prevarication, pointing out that the League were happy to rely on the witness where his evidence – as in part it did – counted in their favour.  Such selective pleading rightly fell on stony ground.  But the point is, this kind of eagerness and opportunism said a lot for how keen the League have been to exclude Cellino.  After that decision was overturned, they expressed their “disappointment”.  Some slight understatement there, we might now suspect.

The thing is, by June things might look different again – if the Italian judge finds in her reasoned judgement that Cellino has been guilty of dishonesty.  But by then, he will probably have the wheels moving of some sort of revolution at Elland Road.  Plans will have been laid, money committed.  Are they really going to disrupt all of that and plunge the club once again into crisis and uncertainty?  The answer to that might be indicated by their apparent readiness to throw Leeds United to the administrators in the process just concluded.  The implied duty of care that binds them to looking after the best interests of their member clubs did not seem to have persuaded them to act otherwise.

Another point is that the League – as I have frequently pointed out – have within several of their clubs owners with much nastier things than unpaid import duty on their shrivelled consciences.  Rape, money laundering – that kind of nasty.  Whatever the ins and outs of spent convictions, or offences committed before the Owners and Directors test was drafted – the de facto situation is that those people remain – and the League have not seemed all that fussed about acting against them.

The trouble with all of these legalistic shenanigans is that – to the humble fan in the street – the machinations behind them all can remain bafflingly obscure.  That’s made worse by the fact that nobody seems inclined to explain to us, in layman’s terms, precisely what is going on.  It is quite reasonable, then, for a fan of Leeds United to point to Blackpool FC and say – hang on.  They have a convicted rapist as majority shareholder.  Where’s the even-handedness, where’s the justice?  But no explanation is forthcoming; perhaps, we might suspect, no reasonable explanation exists.  Whatever the case, if the Football League persist in their arrogant attitude of airily dismissing such concerns whilst pursuing Cellino – who may well be the only feasible saviour of the biggest club outside the Premier League – with such slavering, predatory eagerness, determined, to all appearances to “get their man” – then they might very well end up shooting themselves in the foot.

This sort of thing could, after all, leave the League open to charges of bias, prejudice, vendettas – all sorts of things that a responsible and impartial governing body should be eager to shy away from.  Leeds fans will be quite justified in asking “why always us?”  They can call on plenty of history to illustrate the validity of that plaintive demand.  And at the end of the day, having gone through one high-profile and ultimately fruitless legal process – do they really want to embark on another, so soon?  If they haven’t already made themselves look foolish by the desperation evident in Tim Kerr’s written judgement, they’d certainly do so by launching themselves, pell-mell, back into the courtroom again, with barely a chance for anybody to draw breath.  A high-profile organisation like the Football League cannot afford that kind of all-too-apparent dopiness and pig-headedness.

Human nature being what it is, the gentlemen of the League are probably sulking tonight.  Their showpiece application of the much-vaunted “fit and proper” test has exploded in their faces, casting doubt on the fitness and propriety of those who drafted it.  Concerns have previously been expressed in other quarters about how prescriptive the test is, how little room there is for the application of some common-sense ad hoc judgement.  Now, the test itself has been tested – and found wanting.  The League mandarins are “disappointed”.  Hell hath no fury like an ego thwarted.

It may well be that the initial League reaction is – right; we’ll wait till June and then hit Cellino with whatever we can find in the reasoned judgement.  But, with time to cool off, perhaps that determination might mellow, eventually, into something more approximating pragmatism and common-sense.  It might be best, after all, to see how Cellino goes about his Leeds United revolution, or evolution – whichever it may be.  If he’s doing a good job and being a good lad, perhaps wiser counsel might prevail.  The League have an over-riding duty to act in the best interests of their member clubs.  If Cellino is putting things straight at Elland Road – and it’s an open secret that the place is in a parlous mess right now – then what good purpose would be served by interrupting that work?  It could fairly be argued: none.  Let Massimo have his chance, now that he’s had this disqualification over-turned, to work whatever improvement he can.  Let us see how he does.

Of course, that’s common sense – the kind of thing laymen deal in because they’re not used to manipulating legal niceties.  But – and here’s the thing – it sometimes works better than some of these administrative gentlemen might imagine.

And it may well be, in any event, that the Italian court’s reasoned judgement, when it is available, will not contain anything to harm Cellino’s prospects of remaining in control at Leeds.  That’s one construction to put upon the unusually low fine imposed – around half the prescribed minimum – and the mention of “generic mitigation”.  It may be that our Massimo has been guilty of oversight or ignorance, rather than anything criminal.  After all, as the man himself incredulously asks, why would somebody of his fabulous wealth make a point of dodging import duty of three hundred grand?  It’s chicken feed to the King of Corn.

So there may not be anything to worry about after all.  But nevertheless, some of us will worry.  Those of us who are aware of the fraught relationship between Leeds and the League over the last half-century.  Those of us who remember Hardaker, or Mawhinney and minus fifteen.  Those of us who could sense the frustration and malice in the League’s reaction to this latest decision which, for once in a very long while, has actually favoured Leeds United.

The worry won’t quite go away until finally we can be reassured that there is no stick for the League to beat Cellino and Leeds with.  Because, failing that, we’ll be relying on their capacity for rational thought, common sense and the preservation of a member club’s future.  And, for anyone who knows the Football League of old – that is not a very happy thought at all.