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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, rule 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 &

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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 dishonest”. 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

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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 that 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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12. The charge was brought on 4 March 2013. It accused Mr Cellino under article

70 of Presidential Decree of 1972, and under article 292 of Presidential Decree

43 of 1973 (“PD 43/1973”). The former deals with (among other things)

importations made without paying VAT, and in particular with false

declarations enabling receipt of an unjustified exemption from VAT, and

prescribes penalties which are applicable unless “the fact constitutes an offence

under the customs law”.1

13. The latter, article 292 of PD 43/1973, provides that a person who “subtracts”

(sottrae) goods from payment of customs duties, is punishable with a fine not

less than twice nor more than ten times the amount of duty payable. I would

expect, therefore, that in the present case the range of possible fines was from

€770,000 to €3.885 million, being respectively twice and ten times the amount

of VAT due, stated by the prosecutor to have been €388,500.

14. The PD 43/1973 is also, I understand, known as the “TUIR” or Italian

Consolidated Tax Law (Testo Unico delle Imposte sui Redditi). I understand it

is now common ground that, while in Italy some instances of non-payment of

tax are visited by financial penalties which are in the nature of administrative

sanctions, offences charged under article 292 of PD 43/1973 are criminal in

nature and not merely civil or administrative offences. This is consistent with

the high maximum fine, of up to ten times the tax due.

15. According to Professor Maffei, the likely criminal conduct of which Mr Cellino

was accused was either submitting false statements about the boat to obtain an

unlawful tax benefit, or failing to report relevant circumstances about the boat

to obtain an unlawful tax benefit. The detailed facts alleged against Mr Cellino

are not known but I infer that he was accused of obtaining an unlawful tax

benefit either by falsely stating that the presence of the Nélie in Italian waters

1 Translations from Italian in this decision are my own responsibility but owe much to the invaluable

assistance of some helpful informal translations provided to me.

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was temporary, or by failing to report, at some point, that it had ceased to be

temporary.

16. The hearing date was initially set for 9am on 13 June 2013 before the judge, Dr

Sandra Lepore, at the Palace of Justice in Cagliari. The case must have not

been disposed of on that date. I have no evidence of further relevant events

until March 2014. As already noted, although the evidence is not clear it is

likely that the Nélie had been impounded by the Italian authorities and I

understand she is still in Italian waters.

17. On 13 March 2014, the Board of the League met to consider a proposed change

in the ownership of Leeds United Football Club, a project in which Mr Cellino

was intended to have a significant role. The League was aware that the

proceedings against Mr Cellino were due to conclude the following week, on 18

March 2014. The League’s lawyer, Mr Craig, was in correspondence with Mr

Cellino’s lawyer in England, Mr Morallee, about the nature of the proceedings

and any impact their outcome might have under the League’s rules.

18. Mr Craig alerted Mr Morallee to a possible issue under the rules if Mr Cellino

should be convicted under article 292 of PD 43/1973 which, he pointed out, is

of a criminal and not merely administrative nature. He noted that the League

needed to see the judgment of the Italian court before the League could decide

whether there could be a conviction for an offence that could reasonably be

regarded as dishonest.

19. A public hearing of the charge took place before the judge, Dr Lepore, in

Cagliari on 18 March 2014. I was told that Mr Cellino was represented by an

Italian lawyer, Professor Cocco, who had been assisting Mr Cellino and Mr

Morallee in the latter’s correspondence with the League. I do not know

whether Mr Cellino was present at the hearing and, if so, whether he gave

evidence. I was told by Mr Owen QC, for Mr Cellino, that he denied the

charge, but it was unclear what the nature of his defence was.

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20. As it happened, the Italian Supreme Court issued a reasoned judgment in a

criminal matter the same day, to which I shall return (Cass. pen. Sez. III, Sent.,

(ud. 22-01-14) 14-3-2014, n. 12248). In that case, the Supreme Court

considered the nature and content of certain criminal conduct of a fiscal nature,

including the required mental element for the criminal conduct under

consideration. A copy of this Sentenza and a translation of parts of it were

provided to me after the oral hearing.

21. Dr Lepore issued her written summary decision dated 18 March 2014. In

accordance with the relevant provisions of the Criminal Procedure Code, she

declared Mr Cellino guilty of the offence charged and “given the generic

mitigating circumstances” (concesse le attenuanti generiche), imposed a fine of

€600,000 and ordered him to pay the costs of the proceedings.

22. She further ordered that the impounded vessel (i.e. the Nélie) be confiscated.

She stated that the reasoned judgment would follow within 90 days. This was

in accordance with article 111, paragraph 6 of the Constitution of the Italian

Republic which requires that all judicial decisions shall include a statement of

reasons. The 90 day period is due to expire in June 2014. The reasoned

judgment is not yet available.

23. It was common ground that, under Italian law, the fine and costs were not

immediately payable and would not become payable until expiry of the time

limit for an appeal or, if an appeal was brought, until the disposal of the appeal.

I shall return to this point when considering the parties’ arguments. The

essential reason for this is found in article 27 of the Constitution, which

includes: “[a] defendant shall be considered not guilty until a final sentence has

been passed.”

24. Correspondence and debate then ensued between lawyers (English and Italian)

acting for the League and for Mr Cellino. Lawyers acting for the company

which owns Leeds United Football Club were also consulted. Reference was

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made to the “Owners’ and Directors’ Test”, known as the OAD test, provided

for in Appendix 3 to the rules. On 22 March 2014 Mr Morallee, for Mr Cellino,

informed Mr Taylor, for the League, that an appeal “against the decision of the

[S]ardinian court in relation to Nelie is on foot”.

25. I do not have details of that appeal. I do not know the scope of the appeal, if it

has yet been formally filed, and on what grounds the appeal is brought or is

intended to be brought. Mr Owen did not have instructions on these points and

no documents evidencing the appeal were before me. There was no dispute that

an appeal does not have to be brought in advance of the reasoned judgment and

can be brought after it is received.

26. The League was not willing to accept the contentions of Mr Cellino’s lawyers

that he had not been convicted of an offence of dishonesty, or indeed of any

criminal act, and that he was therefore not disqualified in accordance with the

OAD test. The League proceeded to issue its written decision dated 24 March

2014, against which Mr Cellino now appeals. The decision was to disqualify

Mr Cellino from acting as a director of a club, applying the OAD test.

27. The particular grounds of the decision were, firstly, that Mr Cellino had been

convicted of a criminal offence before the court in Sardinia, despite the effect of

article 27 of the Constitution; and secondly, that the summary decision of the

judge showed that the offence “involves findings of conduct that a reasonable

person would consider dishonest”. On the latter point, the League noted that

the offence was criminal in nature, not administrative, and that negligence

(colpa) was not enough to sustain the offence charged; a finding of “intent”

(dolo) was required.

28. As to the mental element of the offence, the League reasoned (at paragraph

3.1.2-3 of the written decision) that the guilty verdict necessarily meant Mr

Cellino must either have “failed to file the necessary tax declaration or filed [it]

but with the facts in it misstated”, and must have done so “knowingly and with

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intent to avoid complying with his tax duties, i.e., with intent to avoid paying

tax that was properly due from him”; and that “any reasonable person would

consider such conduct to be dishonest”.

The Proceedings

29. Mr Cellino indicated that he wished to appeal to the Professional Conduct

Committee (“PCC”). The next day, 25 March 2014, it was agreed in a

telephone conference attended by myself, Mr Taylor and Mr Morallee, that I

would act as the PCC and hear the appeal on Monday 31 March 2014.

Professor Maffei had been identified as an independent Italian law expert

acceptable to both parties.

30. It was also agreed during the telephone conference that an agreed list of written

questions would be put to Professor Maffei and that he would be asked to

answer them in writing, and to assist me on any other matters of Italian law that

might arise. He helpfully did so, producing a written report dated Friday 28

March 2014, consisting of answers to the questions asked of him. During the

oral hearing on Monday 31 March 2014, he answered additional questions from

the parties and myself, by telephone from Parma.

31. Professor Maffei’s report and subsequent oral and written contributions were

detailed and fully reasoned. In briefest summary, his main conclusions were as

follows. He considered that the offence charged was criminal, not

administrative. He noted that there had been a finding of guilt and that it was

not a nullity: it would stand unless appealed, and it allowed procedural

measures such as confiscation of the boat, or (in other cases) preventive

detention or even compensation, to be made or continued.

32. He agreed that the finding of guilt brought the first instance proceedings to an

end. However, he noted that under the Italian constitution (article 27,

mentioned above), the presumption of innocence survives a first instance

conviction and that the status of the person convicted remains that of a person

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accused (imputato) rather than a person convicted (condannato) until the final

disposal of the case. Consequently, the person found guilty is not required to

undergo the punishment directed by the court unless and until the finding of the

court becomes final.

33. He disagreed with the League’s proposition that procedural consequences such

as confiscation of the boat flowed from the finding of guilt, pointing out that the

boat would have been confiscated before the court hearing and the confiscation

merely continued after the hearing. He expressed the view that, in general,

contrary to the League’s analysis, the court’s procedural powers over the

accused, including that of imprisonment before trial in appropriate cases, and

confiscation of the boat in this case, result not from conviction but from the

prior bringing of the charge.

34. On the question of the mental element required to commit the crime of which

Mr Cellino was found guilty, he drew a distinction between dolo diretto, where

“the person is fully aware of the elements of the crime and is reasonably certain

that the actus reus will cause the offence to occur”; and dolo eventuale, where

“the person, albeit not specifically directing his conduct to commit the actus

reus, willingly takes action while accepting the risk that the offence may

occur”.

35. He noted that dolo eventuale was first developed by the Supreme Court in 1982

and is now well established. He noted that it is contrasted with mere colpa or

gross negligence, which is not punishable where some form of wrongful intent

is required. He said that the line between the two mental states (colpa and dolo

eventuale) had proved difficult to draw on the facts of some cases and had been

debated in the jurisprudence. He gave two examples of dolo eventuale: a drunk

driver who decides to drive, accepting the risk of injury to pedestrians; and a

person who indiscriminately throws a bottle into a crowd, again accepting the

risk of injury to others.

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36. In oral evidence, he explained that dolo eventuale is not a phrase that appears in

the Italian Penal Code, while dolo generico does, the latter being a residual

category of wrongful intent (falling within the compass of dolo diretto),

contrasted with dolo specifico (also within the scope of dolo diretto) where a

particular state of mind forms part of the definition of the crime in question. He

further explained that while there was some disagreement among academic and

other lawyers about the existence and scope of dolo eventuale, it had developed

in order to prevent defendants from being acquitted too easily in cases where

dolo diretto could not be proved.

37. In his report and in oral evidence, he said he believed dolo eventuale would be

sufficient in Mr Cellino’s case for a finding of guilt and would prevent his

acquittal on the basis that he lacked sufficient knowledge of the circumstances

in which the non-payment of VAT occurred and relied on the advice and

actions of others in his entourage. He reasoned that dolo eventuale was a likely

possibility here because of the reference in the summary decision to mitigating

circumstances (attenuanti generiche), the relatively low amount of the fine and

the complexity and sophistication of the mechanisms of VAT and customs

duty.

38. Finally, in oral evidence he explained that in some reasoned judgments the

analysis of the mental element is weak and superficial, and leaves unclear the

precise mental state found in the accused, and the precise mental state that

suffices to establish the particular crime. He said that this can quite often lead

to appeals and is a source of uncertainty in the criminal law.

39. After the hearing, at my request Professor Maffei produced a small number of

additional documents relevant to the Italian law issues, including the Supreme

Court decision of 18 March 2014, referred to above, which makes specific

reference to dolo eventuale in the context of the tax offence of non-payment of

VAT. The parties were given permission to make further brief written

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submissions confined to comments on those additional materials (although not

all of them were so confined).

40. The League then complained that after the hearing Professor Maffei had

engaged in inappropriate online social media conversations about the case,

including one which included the words “Ciao, & forza Leeds”. I allowed the

parties to include written argument about Professor Maffei’s role. The League

submitted that he had demonstrated an absence of impartiality and asked me to

place no further weight on his opinion. Mr Cellino submitted that the remark

was merely indiscreet and did not demonstrate a bias in favour of Mr Cellino,

who should not be equated with Leeds United.

The Tribunal’s Conclusions, With Reasons

41. The following matters were either formally agreed or not contested and were

uncontroversial:

(1) that the League’s rules apply to this case, including in particular the

“Owners’ and Directors’ Test” in Appendix 3; and that the burden is on

Mr Cellino under rule 6.2 of Appendix 3 to the Rules to satisfy me that

the appeal should succeed on one or more of the grounds there set out;

(2) that the court in Cagliari which decided on 18 March 2014 that Mr

Cellino had committed an offence was a “competent court having

jurisdiction outside England and Wales” (within the definition of

“Disqualifying Condition” at e) ix), Appendix 3, rule 1.1);

(3) that the Professional Conduct Committee’s role in this appeal is not to

consider whether it was open to the League on the evidence before it to

reach the conclusion it reached, but to decide the issues on the evidence

before me, including evidence not before the League when it made its

decision.

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42. The written and oral submissions of the parties made it clear that the issues I

have to decide, or may have to decide, are:

(1) the status and standing of Professor Maffei’s evidence; in particular

whether and to what extent it should be accepted or rejected either on the

ground of lack of impartiality and acting as advocate for Mr Cellino’s

cause, or for other reasons;

(2) whether the decision of the Cagliari court on 18 March 2014 was a

“conviction” within e) ix) of the definition of “Disqualifying Condition”

in rule 1.1, Appendix 3 to the rules;

(3) if so, whether it was a conviction for “an offence involving a Dishonest

Act”, within e) i) of the same definition, i.e. “any act which would

reasonably be considered to be dishonest” (ibid., rule 1.1);

(4) if so, whether there are “compelling reasons” (see rule 6.2, Appendix 3)

why Mr Cellino should not (under rule 2.1 of Appendix 3) be

“disqualified from holding office or acting as a Club Director at a Club”.

43. There is also a subsidiary issue about the costs of these proceedings, but I

propose to deal with these at a later stage after hearing further argument from

the parties, if and to the extent that those matters cannot be agreed between the

parties in the light of this decision on Mr Cellino’s substantive appeal.

The first issue: the status of Professor Maffei’s evidence

44. Mr Taylor, for the ITF, submitted that Professor Maffei’s evidence was

unreliable: he had cited no authority for his concept of dolo eventuale until the

hearing itself and had omitted in his report to include the point that it was

controversial. The authorities he subsequently cited, said Mr Taylor, related to

tax offences not customs offences, and did not support his proposition that dolo

eventuale was sufficient mens rea for the offence committed by Mr Cellino.

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45. More fundamentally, Mr Taylor submitted that Professor Maffei had departed

from the required standard of independence and impartiality and had acted as an

advocate in Mr Cellino’s cause, by engaging in online social media

conversations which included an expression of support for Leeds United and

thereby, necessarily, for Mr Cellino who was the preferred incumbent to

become owner of the club. In consequence, the League invited me to place no

weight on his evidence.

46. Mr Owen, for Mr Cellino, submitted that I should be very slow to reject the

evidence of an eminent expert appointed on a proposal from both parties to

assist the tribunal, who had signed a statement of truth and independence; that I

could only do so for compelling reasons; that none existed here; that Professor

Maffei had given evidence favourable to the League’s case as well as against it;

and that the League had not hesitated to rely on his evidence where it supported

the League’s case.

47. Mr Owen further submitted that the League’s subsequent attack on his

impartiality was unfair and attributable to the inconvenient content of his

evidence where it did not support the League’s case; and that while the

Professor had committed an indiscretion by unwisely engaging in social media

conversations, he had carefully declined to comment on the substance of the

case, had correctly pointed to his limited role, and in using the expression “Ciao

& forza Leeds” had merely expressed good wishes to the club which is not a

party, and that this cannot not be equated with support for Mr Cellino.

48. In my judgment, the League’s attack on the impartiality of Professor Maffei is

considerably overstated. It was certainly inappropriate, unwise and

undiplomatic for the Professor to engage in social media conversations about

the case. It may seem impolite to leave legitimate enquiries unanswered but

that is what an expert should do, just as a judge or arbitrator must. But I do not

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think the content of his replies is such as to call into question his impartiality or

independence; nor the fact that he sent them at all.

49. The League had not questioned his integrity or impartiality on the basis of his

written report or subsequent oral evidence. It was not until it discovered the

social media conversations that it did so. Until then, it had challenged the

content of his evidence but not the propriety of his conduct. Yet, the

information he gave about the case and his involvement in it was circumspect

and accurate. It was not intemperate or one-sided.

50. The remark “Ciao & forza Leeds” represents the high point of the League’s

argument against his impartiality. Read in the context of his other replies, and

the manner in which he prepared his report and gave his oral evidence by

telephone, I do not think the remark provides a sufficient basis for impugning

his impartiality. As Mr Owen points out, all concerned in this process,

including the League, would be expected in general terms to support the

attempts of the club, with its illustrious history, to overcome its current

financial difficulties, with or without Mr Cellino as a director.

51. Professor Maffei’s expression of support for the club and its future at this

difficult time for it, was unfortunate while acting in the role of impartial and

independent expert, but in my judgment cannot be treated as if it were an

expression of support for Mr Cellino becoming a director of the club, still less

of a willingness to tailor his expert evidence to achieve that end. His written

and oral evidence was in my view given objectively and was worthy of respect.

52. Moreover, the main point of difference between Professor Maffei and the

League is over the concept of dolo eventuale. It appears from the League’s

decision, which does not distinguish between different types of dolo, only

between dolo and colpa, that the League was taken by surprise at the inclusion

of reference to dolo eventuale in Professor Maffei’s report. Yet it is plainly not

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an invention of Professor Maffei’s. It is an expression used by the Supreme

Court the day Mr Cellino was found guility, as we shall see.

53. The concept of dolo eventuale is described in Professor Maffei’s report as

having been “first developed by the Italian Supreme Court in 1982 and … now

extensively and systematically referenced in both case-law and academic

jurisprudence”. So it is not accurate to say he cited no authority in support of

its existence. He gave examples of its nature. He had no reason to cite more

detailed and referenced authority until confronted, probably against his

expectation, with critical cross-examination by Mr Taylor at the hearing. He

then cited further materials, at my request, to which I shall return below.

54. For those reasons, I reject the invitation of the League to place no weight on

Professor Maffei’s evidence. That does not, of course, mean that I accept his

evidence uncritically, without evaluation. It means only that I treat it as

admissible evidence properly given and worthy of respect. I shall return below

to the substance of Professor Maffei’s evidence and its relevance to the issues

before me.

The second issue: was the Cagliari court’s decision a “conviction”?

55. For Mr Cellino, Mr Owen submitted as follows. Sub-paragraph ix) of the

relevant rule, dealing with foreign convictions, required the League to look at

the substance of the proceedings abroad to see whether the person had been

convicted according to that country’s legal norms. It cannot be right to adopt a

“parochial” English understanding of what a “conviction” is when one is

considering the nature of proceedings brought under a different system of law

in a different country.

56. Mr Owen denied that his interpretation was technical, as the League suggested.

In Italy, he said, it was obvious that a person found guilty by a first instance

court is not considered to have been convicted and therefore is not required to

serve the sentence imposed by the court and does not (or not normally) acquire

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a formal criminal record. Such a person is considered to be an imputato

(accused), not a condannato (convicted person), as confirmed by Professor

Maffei in his report and indeed not disputed by the League.

57. Mr Owen submitted that English law recognises this difference between those

found guilty at first instance in England, and their counterparts in Italy, relying

on Caldarelli v. Court of Naples [2008] UKHL 51, in which the House of Lords

upheld an extradition warrant which sought extradition of a person in the

category of an accused person and not a convicted person even though he had

already been found guilty in absentia in Italy, and sentenced at first instance,

not being required under Italian law to serve his sentence pending appeal.

58. In oral submissions, Mr Owen submitted that the League could have chosen to,

but had not chosen to, adopt rules similar to those of the Comitato Olimpico

Nazionale Italiano (“CONI”, the Italian Olympic Committee), and the Italian

equivalent of the FA, the Federazione Italiana Giuoco Calcio (“FIGC”), which

make express provision for suspension or disqualification on the strength of a

first instance finding of guilt in Italy, despite the constitutional presumption of

innocence and the continuing status of such persons as imputati (accused).

59. Mr Owen supported the evidence of Professor Maffei, that procedural

consequences such as preliminary detention or confiscation of goods do not

flow automatically from a first instance finding of guilt, but generally arise

from the bringing of the charge and can be imposed before a first instance

finding of guilt. He submitted that there was no escaping the need to examine

the substance of the matter under the law of the country where the proceedings

take place, as the League had, unlike CONI and the FIGC, chosen to draft its

rules in that way.

60. Mr Taylor, for the League, emphasised that the purpose of the OAD test was to

protect the League’s clubs from unsuitable people and thereby protect the

integrity of football, but that it did so by adopting objectively verifiable criteria

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which were fair and proportionate rather than by a subjective judgment that a

person was “dodgy” and should be excluded on that dubious ground without

objective evidence to support the person’s unsuitability.

61. Mr Taylor emphasised that, while sub-paragraph ix) was dealing with foreign

convictions, it was a provision governed by English law like the rest of the

League’s rules. He referred me to well known authorities for the

uncontroversial proposition that a sports body’s rules should be interpreted in a

manner that accords with the purpose of the rules and with common sense, and

not in a technical way.

62. He contended that Mr Cellino’s invocation of his status under Italian law was

technical and that the Cagliari court’s finding of guilt fell squarely within the

plain English meaning of the word “conviction” according to its definition in

ordinary dictionaries and in the Oxford Dictionary of Law (7th

edition, 2013).

He submitted that the Caldarelli case had nothing to do with sports law and was

an extradition case which ought not to deflect the tribunal from interpreting the

rules in a manner that accorded with their purpose and with common sense.

63. Mr Taylor pointed out that the League’s interpretation did no violence to Italian

law, since CONI and the FIGC had adopted rules expressly making provision in

similar terms (albeit for different offences), preventing participation in the sport

concerned while an appeal is pending. In oral argument he submitted that the

League ought not to have to employ experts in foreign legal systems to consider

the differing qualities of legal processes in numerous countries and the status of

persons found guilty in those countries.

64. He said that Mr Cellino was seeking to read in the word “final” before the word

“conviction” and there was no warrant for adding this gloss. He said it was

difficult to understand how a person could be treated as innocent and yet have

been found guilty, and (in answer to questions from me) that if cases of extreme

procedural unfairness were to arise – for example, under a legal system where

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the accused’s right to be heard arose for the first time on appeal, or where a

fatwa was pronounced in the absence of a fugitive – the defendant would be

rescued by the “compelling reasons” provision in rule 6.2(b).

65. Mr Taylor disputed the proposition that Professor Maffei’s evidence was

inconsistent with his submissions. He relied on the Professor’s confirmation in

his report that the Cagliari court’s decision was a formal finding by a court of

competent jurisdiction, following due process, that Mr Cellino is guilty beyond

reasonable doubt of the offence charged, and that the finding brought to an end

the proceedings before that court. That, submitted Mr Taylor, was easily

enough to constitute a “conviction” under sub-paragraph ix).

66. He added that in an English law governed document such as the League’s rules,

express words would be needed to prevent the finding of guilt here from being

a conviction and to treat it as merely provisional. He noted that in article 3.2.3

of the World Anti-Doping Code that course had been adopted: it was a

provision that findings of fact by a court of competent jurisdiction are

irrebuttable evidence unless they are “the subject of a pending appeal”.

67. I turn to consider these opposing arguments. In my view they are finely

balanced. First, I do not accept the League’s argument that Mr Cellino’s

construction is technical. A presumption of innocence guaranteed by the

Constitution itself would better be described as fundamental. Nor do I accept

that is it difficult to understand why the presumption of innocence should

outlast a first instance finding of guilt. This conclusion flows from the nature

of criminal justice in Italy, where the first instance trial is part of a continuing

process and is not an event.

68. To an English criminal lawyer, it may be difficult to understand why a

defendant should not be treated as convicted and serve the sentence properly

pronounced by the court, merely because there is a right of appeal. But to an

Italian criminal lawyer, it may be equally difficult to understand why in

19

England we routinely incarcerate defendants who on appeal may turn out to be

innocent. Neither legal system has more inherent merit than the other; they are

simply different.

69. Italians and others in Italy can be expected to regulate their conduct according

to the legal norms and culture prevailing there, and would expect to be treated

accordingly when going about their business in Italy. On the other hand,

English and other people in England, and in particular sports regulators such as

the League, can be expected, at least up to a point, to adopt rules and

procedures derived from the legal culture in which they operate, i.e. that of

England.

70. I do not find the decision of the House in Caldarelli to be of much assistance.

True, it confirms the status of Mr Cellino as imputato (and therefore not

“unlawfully at large after conviction” under certain statutory provisions related

to extradition) notwithstanding the Cagliari court’s finding of guilt. But the

League does not deny him that status; what it denies is that his status as such

under Italian law means he has not been convicted.

71. Nor do I find it surprising that in the rules of Italian sports bodies clear words

are needed to alter the prevailing constitutional position, by rendering ineligible

for office those who have only been convicted at first instance, and remain

imputati who are presumed innocent and not required to serve the sentence

decided upon by the court. The presence of such provisions shows merely that

it is acceptable within Italian sports law to ban such persons from office. It

leaves open whether the provisions in Appendix 3 to the League’s rules do so,

on their true construction.

72. I accept Mr Owen’s point that in rules which do not expressly provide for a

foreign conviction to be a conviction in the English sense, it is inevitable that

the nature and substance of the foreign proceedings must be examined. Indeed,

the League examined them in this case. Nevertheless, after careful thought, I

20

have come to the conclusion that the League’s construction of the provisions is

correct on this issue, and that the finding of the Cagliari court made on 18

March 2014 is a “conviction” within sub-paragraph e)ix) of rule 1.1, within

Appendix 3.

73. It seems to me that whereas in an Italian law instrument such as the rules of

CONI or the FIGC, the default position is the constitutional position and

express words are needed to displace it, in an English law instrument such as

the League’s rules, the default position is the other way round, which is also the

constitutional position, but the English one not the Italian one. Here, there are

no relevant added words to qualify or expand the meaning of the word

“conviction” in sub-paragraph ix).

74. I do not think I should read in any such words. I consider that even though the

word “conviction” in sub-paragraph ix) necessarily refers to a finding of guilt

made outside England and Wales, the better view is that it refers to a conviction

in the same sense of the word as that used earlier in the rule 1.1 e), where the

word is clearly used in an English law sense. If use of Latin is permissible, the

eiusdem generis canon of construction is not ousted by the nature of the penal

system in the lex fori.

75. I would not accept Mr Taylor’s suggestion that any foreign “conviction”

amounting to such under local law, however repugnant to our sense of justice,

would necessarily amount to a “conviction” under paragraph ix). It seems to

me that the process leading to a finding of guilt outside England and Wales

must satisfy certain minimum standards of procedural fairness. It would have

to be a conviction worth the name by English standards of justice.

76. The finding of guilt against Mr Cellino met those standards. As Mr Taylor

correctly pointed out (at paragraph 21 of his main skeleton argument),

Professor Maffei has confirmed that the court’s decision was a formal finding

by a court of competent jurisdiction, following due process, that Mr Cellino is

21

guilty beyond reasonable doubt of the crime with which he is charged, and that

finding brings to an end the proceedings before that court. That is sufficient.

The third issue: can Mr Cellino’s conviction reasonably be considered to fall within the

category of an offence involving a “Dishonest Act”?

77. I have to determine this issue on the evidence before me, which does not

include the forthcoming reasoned decision of the judge, Dr Lepore.

Understandably in view of the background to this case, the parties require a

decision as soon as reasonably possible and I therefore do not have the luxury

of adjourning the appeal to await Dr Lepore’s reasoned decision.

78. For Mr Cellino, Mr Owen submitted that there is no or insufficient evidence to

support the conclusion that the conviction (as I shall now call it) was for an

offence involving a “Dishonest Act”, i.e. one that “would reasonably be

considered to be dishonest”. He developed that argument by making the

following further points.

79. He submitted that the judge has made no finding about Mr Cellino’s mental

state. There is sufficient mens rea, according to Professor Maffei, if the

defendant’s state of mind is that of dolo eventuale, i.e. in the Professor’s words,

if “the person, albeit not specifically directing his conduct to commit the actus

reus, willingly takes action while accepting the risk that the offence may

occur”.

80. Mr Owen submitted that the judge may well have convicted Mr Cellino on that

basis and, if she did, his conduct would not reasonably be considered to be

dishonest. The League’s contrary conclusion did not address the quality and

degree of the defendant’s dolo, wrongly equating dolo in general with

dishonesty and contrasting it with colpa (fault) which everyone agrees is not

enough to amount to dishonesty.

22

81. Mr Owen relied upon Professor Maffei’s support for that view and argued that I

had no good reason to reject his expert evidence. Professor Maffei had actually

gone further and (as explained above) reasoned that dolo eventuale was the

most likely form of mens rea here, given the reference in the summary decision

to mitigating circumstances (attenuanti generiche), the relatively low amount of

the fine and the complexity and sophistication of the mechanisms of VAT and

customs duty.

82. The League’s challenge to Professor Maffei’s view in oral cross-examination,

said Mr Owen, did not lead him either to alter his view, nor succeed in

undermining the cogency of his reasoning. It was not proved wrong merely

because no case prosecuted under article 292 of PD 43/1973 with identical facts

could be found; nor by the fact that two other learned academic lawyers,

Professors di Amato and Padovani, whose publications were put to Professor

Maffei, had referred to dolo generico and not mentioned dolo eventuale as

sufficient for crimes charged under article 292.

83. Mr Owen submitted that the Supreme Court decision of 18 March 2014,

referred to above and sent to me by Professor Maffei after the hearing, is clear

authority that dolo eventuale is sufficient mens rea for the crime of non-

payment of VAT at least in some cases, and that Professor Maffei had also cited

good authority for the same mental element in other comparable offences such

as false invoicing (Galasso on fatture per operazioni inesistenti (false

invoicing)), citing a passage from a Supreme Court decision of 27 April 2000,

(third session, number 6228).

84. That, said Mr Owen, was a sufficient basis to support Professor Maffei’s view

that dolo eventuale was sufficient here. Mr Owen and Mr Watkins put their

point thus in their written reply to the League’s skeleton argument (emphasis in

original): “[t]here are no available findings of fact from the Italian court at all.

Either relying upon the ingredients of the offence as conduct or speculating

about findings the judge may have made is obviously insufficient.” They

23

submitted that a reasonable person would not regard Mr Cellino’s conduct as

dishonest without knowing what it was.

85. The League, for its part, mounted a sustained attack on the quality and

credibility of Professor Maffei’s expert evidence, in addition to the attack on his

impartiality which I have rejected for reasons already given. Mr Taylor

challenged his authority to speak to questions of substantive criminal law, given

that his specialist field was criminal procedure. He submitted that the judge’s

finding of guilt necessarily entailed a finding of dishonesty. He invited me to

reject the Professor’s contrary view. In support of the League’s position, he

made the following main points.

86. He agreed with Professor Maffei’s opinion that the charge was criminal in

nature and that negligence (colpa) was not enough to establish the offence

charged. However, he criticised the absence from his report of any mention of

dolo generico and dolo specifico and submitted (at paragraph 32 of his main

skeleton argument, emphasis in original) that the League’s Italian lawyers had

advised the authorities “tend[ed] to suggest that dolo eventuale would not be

sufficient to convict a person of a tax crime, rather dolo generico is required”.

87. Mr Taylor noted that in answering one of the questions asked of him (“… has

there been a finding in the [S]ardinian court that Mr Cellino has been

dishonest?”), Professor Maffei had answered by noting that “[d]ishonesty is a

concept alien to Italian criminal law” and had gone on to consider the concept

of dishonesty in English law and clearly expressed the view that a finding of

dolo diretto, but not one of dolo eventuale, would satisfy that English law test.

88. Mr Taylor criticised the Professor’s foray into English law, which is outside his

expertise; but the Professor had no Italian law standard by which to answer the

question and was therefore driven to answer it by reference to the English law

concept of dishonesty (see R. v. Ghosh [1982] QB 1053, per Lord Lane CJ at

1064), which he approached with circumspection and did not misstate. I do not

24

think Professor Maffei can be criticised for straying beyond his brief. He was

merely doing his best to interpret a question infused with English law.

89. In any case, it turned out to be common ground that the test of dishonesty in the

League’s rules could be approximately equated with the first, objective, limb of

Lord Lane’s test in Ghosh, but not the second, subjective, limb; and that a

finding of dolo diretto would satisfy the requirement of dishonesty in the

League’s rules. Mr Owen, rightly, did not contend that dolo diretto was less

than dishonesty in the objective sense set out in the League’s rules (“any act

which would reasonably be considered to be dishonest”).

90. Mr Taylor’s main submission was that dolo eventuale (an expression not

appearing in the Italian penal code) was not sufficient mens rea for the offence

charged against Mr Cellino, despite Professor Maffei’s view that it was. His

alternative, fallback submission (at paragraph 37.3 of his main skeleton) was

that if dolo eventuale was enough to sustain a finding of guilt:

“a reasonable person would consider that it was dishonest for Mr Cellino to

submit a false statement that his boat was only entering Italian waters temporarily

(or to make it false by failing to update it when that entry stopped being

temporary and became permanent for tax purposes) in order to claim a tax

exemption to which he was not in fact entitled, where (even if he did not know

with certainty) he was aware of the clear risk that what he was doing amounted to

unlawful evasion of tax properly due, and accepted that risk and went ahead

anyway”.

91. Mr Taylor submitted in the further alternative that if that was reading too much

into the summary decision, Mr Cellino should “not be considered to have

passed the OAD Test until he can demonstrate that the Judgment only involves

a finding of dolo eventuale and no finding of dolo diretto. Otherwise, he might

be installed as a director only to be forced to stand down two months later”

(main skeleton, paragraph 37).

92. He relied on the point that neither Professor di Amato nor Professor Padovani

in their publications - respectively, Diritto Penale dell’ Impresa (5th

edition,

2003) dealing with criminal law in the field of business enterprise, and Leggi

25

Penali Complementari, dating from 2007 - mention dolo eventuale in their

description of the mental element required for crimes charged under article 292.

93. In a brief passage in the 2003 edition of his book, dealing with the mental

element (elemento soggettivo) required for article 292 offences, Professor di

Amato described the required mental element as dolo generico, citing a passage

from a Supreme Court decision in November 1974 to the effect that the

required mental element can be inferred from the fact of “subtracting” the

goods from payment of the tax due, committed voluntarily and with awareness

of not performing the tax obligation.

94. Professor Padovani wrote in his book that the dolo is that of (as approximately

translated) intending consciously and willingly to import goods into the

national territory, evading the customs duty owed to the state, which (according

to a Supreme Court decision in 1983) in the context of imports of cars

manufactured abroad, can be inferred from a false declaration of foreign

residence made for the purpose of obtaining the exemption for temporary

imports enjoyed by foreign residents but not Italian residents, and achieving the

purpose using such fraudulent means.

95. At the oral hearing, when that passage was put to Professor Maffei, he said that

in Italian legal parlance, the notion of consciousness and willingness referred

to, can include or embrace the notion of acceptance of risk forming part of the

concept of dolo eventuale. He did not therefore accept that he necessarily had a

profound disagreement with Professor Padovani. He said that if Professor di

Amato intended to exclude dolo eventuale in the passage cited, which he does

not expressly state, then Professor Maffei disagreed with him.

96. In written submissions after the hearing, Mr Taylor produced (at my request)

the relevant extract from the most recent edition of Professor di Amato’s

“seminal work”, as Mr Taylor described it. This was the 7th

edition of 2011,

rather than the 5th

edition of 2003 produced at the hearing. The brief passage

26

referred to at the hearing had not been updated and the 1974 authority (cited in

slightly different format) remained the same, eight years later.

97. As to the Supreme Court’s decision of 18 March 2014, Mr Taylor submitted in

writing after the hearing that a distinction was to be drawn between the mental

element required for tax offences and that required in the case of customs

offences. He produced the index to Professor di Amato’s book to show that it

treated tax offences (reati tributari) separately from customs offences (reati

dogonali). He submitted that the Supreme Court decision could not be relied

on as authority in respect of the mental element required for an article 292

offence.

98. In his supplemental written submissions Mr Taylor sought to isolate article 292

offences from tax offences and cited general provisions of Italian law, the penal

code and even the Constitution to support his thesis that it was impermissible to

apply the mental element for a tax offence to that required for a customs

offence such as enacted by article 292. He pointed out that there is no case law

later than the 1974 Supreme Court decision (dealing with the materially

identical predecessor to article 292) directly addressing the mental element

required for article 292 offences.

99. In answer to Mr Owen’s point that the League should have awaited the

reasoned judgment before concluding that Mr Cellino failed the OAD test, Mr

Taylor submitted that Mr Cellino had not even told the League or myself what

his defence was, nor what evidence, if any, was called on his behalf at the

hearing in Cagliari; and that if necessary I should be prepared to draw an

inference against Mr Cellino’s honesty as a result. Mr Owen said in response

that I would be wrong to do so as Mr Cellino is not obliged to help the League

by filling the gap in its knowledge which invalidates its conclusion.

100. I turn to my reasoning and conclusions on this issue. First, I accept the

evidence of Professor Maffei that the concept of dolo eventuale, while not

27

appearing in the penal code, forms part of Italian law and has done since 1982.

The very words were used by its highest criminal court only last month and are

found in learned commentaries and case law. I do not think there is room for

any argument that the concept is unrecognised in Italian law.

101. Secondly, I accept that the scope of dolo eventuale and its applicability or

otherwise to various kinds of offence is a matter of debate in Italian legal

circles, both in its relation to colpa at one end of the spectrum, and in its

relation to dolo generico and dolo diretto at the other. It is not surprising that

the calibration of mens rea should generate debate about where the boundaries

lie between more and less blameworthy states of mind. This is also a familiar

feature of English law and probably of all developed legal systems.

102. Next, I derive from the Supreme Court judgment of 18 March 2014 the

proposition that, for the offence of non-payment of VAT, dolo generico is

enough and dolo specifico is not required. This is clear from the passage

which, in a translation helpfully provided by the League’s Italian lawyers,

states:

For the crime to have occurred, it is also necessary to find in the active subject

the existence of intent, which needs not be specific, as dolo generico is enough

(see, in particular, what has been convincingly stated by Joint Sessions,

judgement no. 37424 of 28/03/2013, filed on 12/09/2013, Romano, in the reasons

for the decision). The law therefore requires no other aims, as it is instead the

case with many other offences referred to in Legislative Decree No. 74 of 2000,

in which an evasion purpose for oneself or others is required.

103. Next, I derive from the same Supreme Court decision the proposition that, for

the offence of non-payment of VAT, the person presenting the VAT declaration

and the person who omits to pay the VAT must do so with what is called by the

Supreme Court coscienza e volontà, which the League’s Italian lawyers

translate as “awareness and will”, in the (translated) passage immediately

following in the judgment:

Therefore, it is necessary and, at the same time, enough that the active subject

submits with “awareness and will” a VAT declaration and omits to remit within

the set term, i.e., within 27 December of the following fiscal period, the amounts

28

indicated in it in favour of the revenue agency. Moreover, the active subject must

be aware that such amounts exceed the threshold of Euro fifty thousand, the

exceeding of which has been considered by the abovementioned Joint Sessions as

a constitutive element of the crime, which calls for a demonstration of intent also

on this element.

104. It seems to me that this description of the mens rea for this particular crime is

similar to the description of Professor di Amato in the 5th

and 7th

editions of his

book of the dolo generico required for an offence under article 292. It is also

similar to Professor Padovani’s description of the mental element required for

an article 292 offence, supported by a case law example where import duty was

evaded by obtaining an unjustified exemption for temporary imports by means

of a false declaration of foreign residence. Both learned commentators refer to

the concepts of consciousness and will in their expositions.

105. Next, I accept the evidence of Professor Maffei founded on the same Supreme

Court decision, that it supports the proposition that dolo eventuale is sufficient

mens rea for the tax offence of non-payment of VAT, although this could only

be, as the court held, in cases where the person who makes the relevant VAT

declaration is the same person as the one who fails to pay the VAT due.

106. This is clear from the words of the decision itself. The Supreme Court clearly

contemplated that such a person who fails to pay VAT would be guilty on the

basis of dolo eventuale, in the following circumstances (again in the same

translation):

… cases in which, for example, the non-payment is in order to overcome

temporary liquidity crisis of the company or to create undue financial resources

for the commission of other offenses.

…

Article 10 ter (Non-payment of VAT), is punishable at the presence of dolo

eventuale in the case of sameness between the subject which submits the VAT

declaration and the subject which fails to pay the declared VAT within the terms.

Consequently, the criminal liability shall be excluded in the event that the person

obliged to the fiscal fulfillment (ie, to pay declared VAT) is an entity different

from which has submitted the VAT declaration, except that the Public

Prosecution did not prove either the existence of an unequivocal subjective

foreknowledge of criminally relevant conduct in relation to the omission

provided by the Article 10 ter of the Legislative Decree n. 74 of 2000…. .

29

107. Although Professor Maffei’s evidence was to the effect that dolo generico is

normally understood to fall within the concept of dolo diretto rather than dolo

generico, it appears from the translated passages just quoted from the Supreme

Court’s decision that the “residual category” of dolo generico, as Professor

Maffei described it, would co-exist with dolo eventuale in such a case. This

tends to support the Professor’s assertion that the notion of “consciousness and

will” is understood to embrace, in appropriate cases, the acceptance of risk and

willingness to run it which is the hallmark of dolo eventuale.

108. In the light of the above, I conclude that the extent of disagreement between

Professor Maffei and other commentators is probably overstated by the League.

I do not think Professor Maffei’s view can properly be characterised as

eccentric or maverick. It seems to me to fall within the mainstream of Italian

legal discourse. However, as Mr Taylor rightly pointed out, the fact remains

that there is no case law directly supporting a conviction under article 292 on

the basis of dolo eventuale.

109. I accept Professor Maffei’s evidence that case law on mens rea is relatively

common in tax offence cases and rare in article 292 cases. Professor Maffei

told me that prosecutions under article 292 are rare. This is supported by the

fact that Professor di Amato’s cited authority on the point dates back as far as

1974. That was before 1982 when (according to Professor Maffei’s evidence

which I accept) dolo eventuale emerged from the Supreme Court. It is also

supported by the fact that the passage in Professor di Amato’s book citing the

1974 authority remains unchanged through eight years from 2003 to 2011, and

two editions of his book.

110. I ask myself whether there is a satisfactory basis for Mr Taylor’s submission

that the Supreme Court’s decision last month does not assist Mr Cellino

because it deals with a tax offence and lacks all authority in the case of a

customs offence. I accept that the index to Professor di Amato’s book shows

30

that he treats the two categories of offence in different chapters. However, it

seems to me that absent a crime-specific requirement of dolo specifico, the

notion of dolo generico is a feature common to both tax offences and customs

offences.

111. This is demonstrated by a comparison between the Supreme Court decision of

March 2014 and the commentary of Professor di Amato on article 292 offences.

As I have said, they are similar; both refer to consciousness and will; and both

refer to dolo generico. Yet one is about tax offences and the other is about a

customs offence.

112. This tends to undermine Mr Taylor’s constitutional argument founded on the

right of the defendant not to be fixed with the transposition of the mental

element of one crime, to the mental element of a different crime with which the

defendant is charged. I cannot see any reason in principle why some tax

offences should not share the same mental element with some customs

offences. If it be the law already that they do, no constitutional right of a

defendant is violated by so holding, merely because no previous case has so

decided.

113. Further, despite access to expert Italian law advice, the League did not rely on

this argument until confronted with the March 2014 Supreme Court decision.

Mr Taylor’s questions to Professor Maffei did differentiate between tax

offences and customs offences, but he did not suggest to the Professor there

was a qualitative or principled difference between tax offences and customs

offences rendering only the former and not the latter suitable for dolo eventuale.

Nor did he put to Professor Maffei that Mr Cellino had a right under the

provisions subsequently cited not to be punished on the basis of dolo eventuale.

114. In the light of the jurisprudence discussed above, there was surely scope for

legal argument before the Cagliari judge about the nature of the mens rea which

the public prosecutor must prove beyond reasonable doubt. I think it unlikely

31

that Mr Cellino was in a strong position before the Cagliari court to secure an

acquittal on the basis that his dolo was only eventuale and not diretto. His

interest before that court was, presumably, to argue for that proposition, which

is the opposite of what he is arguing now.

115. But I venture to doubt whether the argument would impress Dr Lepore. If

widely accepted, (as Professor Maffei pointed out) acquittals could be too

easily secured. As to the facts, much would also depend on the case put by the

prosecution and the defence, the evidence called by both sides, and the extent to

which the judge believed that evidence. Of these matters, I know next to

nothing.

116. I see force in Mr Taylor’s forensically attractive proposition that I should draw

an adverse inference against Mr Cellino’s honesty because of his omission to

tell me what happened in the Sardinian court proceedings. But after careful

thought I have concluded that I should not do so; firstly, because Mr Cellino is

entitled to bring his appeal on the basis of the same factual information about

the case as that which was before the League when it made the decision

appealed against; and secondly, because it is not for me to retry the issues in the

Cagliari proceedings and second guess the judge’s decision.

117. In my judgment, it is quite possible that the judge’s detailed reasons may

include a decision that dolo eventuale is enough to establish the mental element

of the offence. For the reasons given above, the prospect of such a decision is

far from fanciful and would not be obviously unsustainable in law.

118. As to the facts: the judge may find that Mr Cellino, or someone acting on his

behalf or on behalf of Freetime Miami LLC, failed to correct a statement that

importation of the Nélie was temporary; that Mr Cellino knew that tax could be

due depending on the circumstances; or that he knew it would be due but only

after a certain period; or that he knew it would become due but not when; or

that he knew it could be due but did not trouble to enquire about the scope of

32

the exemption in article 216 of PD 43/1973 (to which I was not referred, though

Professor Maffei mentioned it); or that he did not care whether it was due or

not, and so forth.

119. The €600,000 fine was, for some unexplained reason, less than the apparent

minimum of double the amount of tax avoided. The factual permutations are

numerous. Some of the possible factual scenarios would amount to conduct

which would reasonably be considered to be dishonest. Others would not. If

the facts were along the lines indicated above, I am far from persuaded that

Professors di Amato and Padovani would argue for an acquittal, or that the

Supreme Court, if seised of the matter, would allow an appeal against

conviction.

120. For those reasons, Mr Cellino has satisfied me that on the facts before me, what

he was convicted of was not conduct which would reasonably be considered to

be dishonest. There is not enough factual information to reach the conclusion

that what he was convicted of was conduct which would reasonably be

considered to be dishonest. I do not accept Mr Taylor’s submission that the

case against him, even put at its lowest, would be regarded by reasonable

people as a case of dishonest conduct.

121. Still less do I accept his alternative submission that he ought to be taken to have

failed the OAD test pending receipt of the judge’s full reasons, in order to avoid

him having to stand down in a short time once they become available. That is

not what the rules say. If the League had wanted to secure that outcome, it

could have asked for an adjournment of the appeal, but it did not do so.

122. I add by way of postscript that I do not reach my conclusion with particular

surprise or regret. The notion of criminal liability founded on dolo eventuale or

its common law equivalent, recklessness, is a very familiar one. The 2015

World Anti-Doping Code will, from 1 January next year, treat as a “cheat” any

athlete who “engage[s] in conduct which he or she knew constituted an anti-

33

doping rule violation or knew that there was a significant risk that the conduct

might constitute or result in an anti-doping rule violation and manifestly

disregarded that risk”.

123. Similarly, in England there is an offence where a person “dishonestly ... makes

a false statement or representation… with a view to obtaining any benefit or

other payment or advantage under … relevant social security legislation…”

(Social Security Administration Act 1992 section 111A, as amended); and a

similar but lesser offence, not requiring proof of dishonesty, under section 112,

as amended. Degrees of mens rea are commonplace in both common law and

civil law jurisdictions.

124. I conclude that it would not be reasonable on the evidence before me to

consider Mr Cellino’s conduct to be dishonest and that accordingly he is not

subject to a Disqualifying Condition. It follows from my reasoning above that

if the reasoned ruling of the court in Cagliari discloses that the conduct of Mr

Cellino was such that it would reasonably be considered to be dishonest, he

would become subject to a Disqualifying Condition. But that is not a matter

that is before me.

The fourth issue: if Mr Cellino is subject to a “Disqualifying Condition”, are there

compelling reasons why his conviction should not lead to disqualification?

125. This fourth and final issue does not arise, in view of the conclusion I have

reached, for the reasons already given, that Mr Cellino is not subject to a

“Disqualifying Condition” and is not disqualified under rule 2.1 of Appendix 3

from being a director of a League club. However, I propose to address this

final issue anyway, since it is a short point and was argued before me at the

hearing.

126. Mr Owen submitted that if, contrary to his main submissions, Mr Cellino is

subject to a Disqualifying Condition, there are “compelling reasons” within rule

6.2 b) of Appendix 3 why his conviction should not lead to disqualification.

34

Those reasons are, in Mr Owen’s submission, the same matters which he has

advanced in support of his main case: namely, that under Italian law he remains

innocent until the final disposal of his case and that therefore it would be unfair

for the League to treat him as a person who has been convicted of dishonesty.

127. Mr Taylor pointed out, however, that the constitutional status of a person found

guilty by a first instance court in Italy has not led sports governing bodies there

to treat such persons as necessarily fit to participate in the sports concerned, as

shown by the rules of CONI and the FIGC, mentioned above. It would be

wrong to permit Mr Cellino to act as a director in this country in circumstances

where Italian sports bodies think it appropriate to ban persons found guilty at

first instance of certain offences (albeit not this particular one) from taking part

in the sport, even pending final disposal of their case.

128. If this issue arose, I would have no hesitation in rejecting the submission of Mr

Cellino that there are compelling reasons why his conviction should not lead to

disqualification in the present case. The premise of his submission is that he

has been convicted of an offence (as I have found), and that the offence is one

involving conduct that would reasonably be considered to be dishonest

(contrary to what I have found).

129. I think it would be wrong to treat Mr Cellino’s constitutional status as an

innocent person as a compelling reason why he should not, despite the above,

be disqualified. It is unattractive to suggest that a person who has dishonestly

evaded payment of import duty should be allowed to act as a club director when

other persons convicted of similar offences of dishonesty are properly excluded

from doing so.

130. Moreover, Mr Cellino’s argument would, if accepted, in practice require more

favourable treatment of persons who happen to be convicted of dishonesty in

Italy (and possibly other civil law jurisdictions) than of those unfortunate

enough to be convicted of similar offences in the United Kingdom, the USA,

35

Canada or other common law jurisdictions where a person convicted at first

instance does not enjoy the benefit of a presumption of innocence.

The Tribunal’s Ruling

131. Accordingly, for the reasons given above, I determine Mr Cellino’s appeal as

follows:

(1) the decision of the Cagliari court dated 18 March 2014 is a “conviction”

within sub-paragraph e) ix) of the definition of “Disqualifying

Condition” in rule 1.1 of Appendix 3 to the rules; but

(2) I am satisfied on the evidence that the conviction was not for a

“Dishonest Act” as there defined, i.e. for “any act which would

reasonably be considered to be dishonest”.

(3) Mr Cellino’s appeal accordingly succeeds. He is not, at present, subject

to a Disqualifying Condition and is not disqualified from holding office

or acting as a Club Director at a Club.

Tim Kerr QC, Chairman

Dated: 5 April 2014