C'mon Sevco,pay up.
As promised an update on the Rangers Charity Foundation.
Sources include Rangers FC, Sevco, the Foundation itself and the Office of the Scottish Charity Regulator (OSCR).
FIRSTLY, A QUICK RECAP
The Rangers Charity Foundation is a registered charitable trust (SC033287). It is a separate legal entity from RFC plc and has never been in administration. Nor has it ever been under the control of Duff & Phelps.
All charities must apply funds charitably and only according to their governing instrument which sets out what they can and cannot do and how they can do this. Principally this is set out in the clauses dealing with Objects, Purposes and Powers:
The OBJECTS of Rangers Charity Foundation are: The Trustees shall hold the Trust Fund and the income of it to pay and apply the same to or for the benefit of or in furtherance of such purposes, objects or institutions charitable in law and in such proportions and manner as the Trustees shall think fit. In exercising their discretion in terms of this Clause the Trustees shall give primary consideration to the wishes of those persons who gift or lend funds to the Foundation but this proviso shall impose no binding obligation on the Trustees.
The PURPOSES of Rangers Charity Foundation are: Prevention or Relief of Poverty; Advancement of Education; Advancement of Health; Advancement of Citizenship or Community Development; Promotion of Equality and Diversity; Relief of Those in Need By Reason of Age, Ill Health, Disability, Financial Hardship or Other Disadvantage.
In January 2012, the Foundation announced plans to hold a glamour friendly at Ibrox between a team of Rangers Legends and a team of AC Milan legends on 30 March 2012. Tickets were to be priced at £10 for adults and £5 for concessions and children. All funds raised would be split between the Rangers Charity Foundation and the AC Milan Foundation.
Following the Rangers FCs plunge into administration, it was announced by Rangers FC (NB: not the Foundation) that the friendly would still go ahead but at a higher price of £12 and £6 and crucially revenue from the match being split between the Club, the Rangers Charity Foundation and the AC Milan Foundation. This latest announcement even went so far as to say that Rangers Charity Foundation has offered to forego the majority of its share of the proceedsand funds raised will help secure the future of the Rangers, which is vital at this time.
A number of people raised concerns with OSCR which then opened an investigation on 1 March 2012. To date that investigation is still running despite the submission, I am informed, of a damning, independent report. It is worth noting at this juncture that OSCR has a contractual public sector KPI which is to complete at least 75% of all investigations within 9 months and that no other investigation has lasted this long.
1. Trustees & Governance
The Foundations constitution clearly states that it must have a minimum of three trustees at any time and that three trustees are required for a meeting to be quorate.
In addition, the Trust must have a subsidiary trading company since it cannot undertake trading activities yet clearly does in order to raise funds (this is not at all unusual). If it has a trading company then that must have a minimum of three directors and one shareholder; the Foundation. I can find no trace of a subsidiary company although I note that the Foundations online store is actually owned and operated under licence from The Rangers Charity Foundation by The Business Incentives Group Limited.
There is currently only one trustee; Jacqueline Gourlay, an employee of The Rangers International Football Club. The Foundation claims current trustees are Ms Gourlay and John Greig (10 April 2013). However, it is worth noting that there does not appear to be any record of John Greig ever being appointed as a trustee and he is not recorded as a trustee with OSCR. Honorary President is exactly that; an honorary position with no legal standing whatsoever.
In February 2012, both Craig Whyte and Martin Bain were also trustees alongside Ms Gourlay and (seemingly) Mr Greig. Readers will know that Mr Whyte and Mr Bain were, at that time, locked in a rather acrimonious legal battle and were therefore unlikely to have met or spoken since Mr Bain was dismissed from his post as Chief Executive of Rangers Football Club in May 2011. (I should point out that Messrs Whyte and Bain were only publicly removed as trustees in September 2012).
So right now, the Foundation is in breach of charitable law and its own governing document. It is also highly likely that the Trust was in breach of charitable law from at least September 2012, if not May 2011.
The Trustees have complete responsibility for running the charity and are personally liable for any maladministration both financially and under criminal law. They may delegate day-to-day management to an executive team but they cannot delegate or abrogate responsibility to anyone and they must ensure that:
all the activities of the charity fall within the objects, aims or purposes as stated in the constitution or governing document of the charity;
the charity adheres to the terms of its constitution or governing document;
the charitys assets are only used for the charitable purposes set out in the constitution or governing document.
It is very pertinent to ask how a charity can be effectively and legally administered if it does not have enough trustees or, indeed, has not actually held any properly constituted trustee meetings in almost 2 years. I will return to this question in considering the Legends match.
As I understand it, OSCR has focussed its investigation here on three key questions:
Were there any proper/quorate trustee meetings from May 2011 onwards and even before with a very real concern that there had been no proper governance at the Foundation with only two trustees in effective control of the Foundation?
Who appointed and terminated Trustees and were adequate and accurate records kept with a very real concern that this was controlled exclusively by the Club?
Has the Foundation set up a wholly-owned subsidiary company through which it may legally trade and, if so, who controls this company?
2. The Legends game
We now know that the game proceeded on 30 March 2012 with an attendance of 47,000 and raised £450,000 which was split as follows:
£280,000 for the club
£170,000 split between the Rangers Charity Foundation and AC Milan Foundation.
The original arrangement had been that the Rangers Charity Foundation would receive 60% of funds and AC Milan Foundation 40%. I am speculating here but this is not an unusual arrangement as the host charity will normally pay a contribution (and 20% is the norm) to the host clubs costs and expenses such as catering, staff, security, utilities, insurance, etc. So the split should have been:
Rangers Charity Foundation = £180,000 (40%)
AC Milan Foundation = £180,000 (40%)
Rangers FC = £90,000 (20%)
Now we know that the Rangers Charity Foundation had agreed/offered to reduce its revenue down to 10% (ie. £45,000) but I am unclear why the AC Milan Foundation then only received £125,000 (28%). In other words, an event which should have raised £360,000 for charity ended up raising only £170,000 for charity because it was decided that a commercial football club which had driven itself to bankruptcy was a more deserving cause and should receive 62% of funds raised.
I should add at this point that I have requested accurate financial information from the Foundation on three separate occasions and been ignored on each occasion and that that, in itself, is a breach of charity law. I should also add that, in the absence of accurate financial data, I cannot say with any certainty that the funds which the Rangers Charity Foundation received were not further diminished by the imposition of administration charges and expenses by Duff & Phelps.
It is worth pointing out at this point that I understand that ticket prices were increased to take account of VAT as this had not originally been allowed for in the ticket pricing (the intricacies of VAT were obviously not a strong point in Ibrox at that time). I am not a VAT expert but there are ways and means by which charities can reclaim this or even avoid charging and paying it and I would have expected any charity to take detailed expert advice on this prior to the event.
A reasonable question to ask at this point would be: who was actually administering and organising the match? Was it the football club or the charity?
Statements by the charity suggested that the game had been organised by the charity itself, albeit they may have used RFC staff for practical purposes (indeed, all publicity stated that the RCF had organised the match in conjunction with Carl Dunn Sports Management Limited, who represent AC Milan Glorie within the UK). If so then it would be perfectly reasonable for the charity to deduct costs from income and pay these over to the football club BUT these costs would need to be legitimately incurred and could not be artificially inflated.
If the match had been organised by the Football Club, then there would normally have been little difference; the Club would have collected all proceeds, deducted its costs and paid the balance to the respective charities according to the agreed split.
However, the fact that the Club was in administration and under the control of the estimable Duff & Phelps creates a significant problem here: Rangers FC were legally prohibited from donating any funds to charity under the 1986 Insolvency Act (as amended by the 2002 Enterprise Act) which explicitly states:
A payment may not be made by way of distribution under this paragraph to a creditor of the company who is neither secured nor preferential unless the court gives permission.
[schedule B1, Paragraph 65(3)]
We have already established that the Foundation may only apply funds and assets for the charitable purposes set out in their governing document. So:
If Rangers FC ran the event and donated money to the Rangers Charity Foundation, it is in breach of insolvency law.
If the Rangers Charity Foundation ran the event and donated money to Rangers FC, it is in breach of charity law.
What an interesting conundrum!
I am led to believe that OSCR focussed its investigation here on another 3 key questions:
Who made the decision to donate charity funds to RFC plc (a commercial entity and not a body that was charitable in law) bearing in mind that neither the administrators of RFC plc, RFC plc staff or Foundation staff had the legal powers to do so? If it was the trustees then this would have had to have been a collective decision and could not be decided by a single trustee.
Did trustees take legal advice on the donation of funds to a commercial company since this is not charitable in law irrespective of the economic circumstances in which the company finds itself and is, in any case, completely against the Objects and Powers of the charity?
Did the charity seek specialist advice on taxation issues because of the potential VAT liability or, indeed, the potential to reclaim Gift Aid?
In the course of their investigation, I am also aware that OSCR sought to establish if there was a contractual agreement in place between the respective parties: RFC, RCF, AC Milan Glorie, and Carl Dunn Sports Management.
3. OSCR investigates
OSCR has consistently refused to provide details of the investigation or give updates on progress, instead referring enquiries to its rather banal policies and procedures on investigations. They do state, however, that the investigation is ongoingafter 13 months!
Forgive me my incredulity but 13 months for a prima facie case iswellabsolutely incredible and, having carried out lots of these types of investigations, I can confidently state that I would have wrapped this up within 3 months. Heres a clue how:
Request full copies of all trustee minutes since May 2011 (5 working days);
Read these minutes to established who made decisions, when and why (5 days);
Follow this up with written enquiries and face-to-face interviews (15 days);
Verify evidence and findings (5 days);
Write draft report with recommendations (15 days);
Send draft report to relevant parties for comment (10 days);
Finalise report (5 days).
I have spoken to OSCR who assure me that they will publish their findings when it is in the best interests of the public to do so. It will be interesting to see when that actually is and which public they mean.
As with other articles, a copy of this will be sent to OSCR for comment. Ill let you know the outcome but dont hold your breath.