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Cellino v Fl Ltd Pcc Decision

Cellino v Fl Ltd Pcc Decision

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Published by: Irreconcilable_Sickpot on Apr 05, 2014
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02/27/2015

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 1
THE FOOTBALL LEAGUE LIMITED PROFESSIONAL CONDUCT COMMITTEE DECISION ON THE APPEAL OF MR MASSIMO CELLINO Tim Kerr QC, Chairman (sitting alone) Introduction
 1.
 
This is the appeal of Mr Massimo Cellino against the written decision of the
Football League Limited (“the League”) dated 24 March 2014
, that Mr Cellino is disqualified from acting as a director of a League club. Mr Cellino is entitled
under the League’s Regulations (“the rules”), Appendix 3, r 
ule 6.1, to appeal to the Professional Conduct Committee. The parties have agreed that the appeal should be determined by me in that capacity. 2.
 
The League decided that Mr Cellino was subject to a “Disqualifying Condition”
under its rules on the ground that he had been convicted on 18 March 2014 by a court in Cagliari, Sardinia, of an offence relating to non-payment of import tax in respect of a boat, the
 Nélie
,
and that the conviction was for a “Dishonest Act”
since a reasonable person would consider the conduct for which he was convicted to be dishonest. 3.
 
The appeal was heard in London on Monday 31 March 2014. Mr Cellino was represented by Mischcon de Reya, solicitors in London, through Mr Adam Morallee, partner, and Ms Sarah Infante, trainee solicitor; and by Mr Tim Owen QC and Mr Aaron Watkins of counsel. The League was represented by Bird &
 
 2 Bird, solicitors in London, through Mr Jonathan Taylor, partner; and by Mr
 Nick Craig, the League’
s Director of Legal Affairs; assisted by Mr Antonio Carino, a senior associate in the Milan office of DLA Piper, solicitors. 4.
 
The representatives contributed with skill and professionalism to secure an early hearing of the appeal, and provided written and oral submissions of high quality for which I was very grateful. Written evidence and oral argument was  presented. I also heard oral evidence by telephone from Professor Stefano Maffei, Professor of Criminal Procedure at the University of Parma. By agreement between the parties, Professor Maffei also provided a written report dated 28 March 2014. 5.
 
The appeal is governed by English law (rule 6.8 of Appendix 3 to the rules, incorporating rule 83.1). The two main issues of substance I have to determine are, first, whether the decision of the court in Cagliari on 18 March 2014 was a
“conviction”
; and second, if so, whether it was a conviction for an offence which can reasonably be considered to fall within the category of a
“an offence involving a Dishonest Act”, i.e. “any act which would reasonably be considered
to be dishone
st”.
 Those words are the relevant parts of the definitions of
“Disqualifying Condition” and “Dishonest Act”
 in Appendix 3, rule 1.1. 6.
 
If the answer to both questions is yes, then the League’s decision is correct, Mr Cellino is subject to a “Disqualifying Condition” and by rule 2.1 of Appendix 3 he is “disqualified from holding office or acting as a Club Director at a Club”
 
unless there are “compelling reasons” (see rule 6.2) why that should not be so.
 If the answer to either question is no, then he
is not subject a “Disqualifying Condition” and is not disqualified from acting as a director of a League club.
 7.
 
By rule 6.2 of Appendix 3, Mr Cellino’s appeal can only succeed if he satisfies
me (a) that he is not subject to a Disqualifying Condition, and/or (b) that if he
is, there are “compelling reasons” why his conviction in Cagliari on 18 March
2014 should not lead to his disqualification from holding office or acting as a
 
 3
director of a League club. At the hearing, Mr Cellino’s counsel made it clear
that he relies on both arguments, the second as an alternative to the first.
The Facts
 8.
 
Mr Cellino did not give evidence and his lawyers did not have instructions on the background facts. The following account is inferred from later documents and later known events. Mr Taylor, for the League, invited me to draw
inferences adverse to Mr Cellino’s honesty from his omission to give evidence
and explain his conduct. I shall return to this when considering the issues. At  present I confine myself to setting out the known facts. 9.
 
It appears that Mr Cellino, or someone for whose conduct he was later considered responsible, must have brought the boat
 Nélie
 to Italy; it is not clear when but probably before 10 June 2012 (a date appearing on the subsequent charge sheet). The
 Nélie
 is a single masted 20 metre white fibre glass sailing  boat with an auxiliary diesel engine, flying the flag of the USA and registered on 6 October 2011 in Florida under the ownership of a limited liability company called Freetime Miami LLC. 10.
 
I infer that Mr Cellino probably has or had some association with that company,  but I do not know the details. It is likely that some indication was given by or on behalf of Mr Cellino that the
 Nélie
s presence in Italian waters was temporary. This meant tha
t VAT (“IVA” in Italian) would not be payable in
respect of her importation into Italy. If she had been permanently imported, the
amount of VAT payable would be €388,500. That amount was not paid.
 11.
 
There must have come a time when the Italian tax authorities came to regard the  presence of the
 Nélie
 in Italy as permanent and not merely temporary, and the VAT in respect of her importation consequently due. The public prosecutor in Cagliari, Sardinia, decided to bring a charge against Mr Cellino. It appears likely that the
 Nélie
 was seized at some point before the subsequent determination of the charge, but the evidence on this point is not clear.

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