Scamdal 4

 How we are played, in five easy lessons

4. BALLS

 The Irish parasite class no longer fears scandal. It may even be willing to create scandal for the sake of scandal, given the opportunities for gain which often follow the infamy. Whatever its motivations or none, it knows it will be looked after and that is all it ever needs to know. Being an Irish parasite is a no-brainer.

 And nobody does no-braining quite like the FAI. The 2019 FAI scandal took a while to explain itself, and the central issue of its St. Patrick's Day introduction is still not fully understood. That was a E100,000 bridging loan from its CEO John Delaney to (he and it claimed) keep the association afloat. It was small change for a rich man who would soon get the money back, but it gave him a nice coating of sincerity to weather the yet to be revealed meat of the scandal. 

That would happen properly on 6 December 2019, when honest accounts revealed undeniably criminal misrepresentations of its financial position in 2016 and 2017. 2016's profit had been overstated by around E2.24 and 2017's loss of cE2.9 million declared as a profit of cE2.8 million (2018's stated profit would later be reduced by E6,992,500).Payments to its directors had been understated by E730,000 in 2016, by more than half a million euro in 2017. According to its then 'executive lead' Paul Cooke, E3.6 million was spent on ''professional fees'' in 2019 alone. 'Tis no wonder the law gang loves them.

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It was hardly a complicated matter for our law enforcement authorities. The crimes were clear cut, so it was only ever a matter of establishing who was responsible. Whoever prepared and signed off on the accounts would be first in the firing line. If those people could credibly explain who duped them and how they were duped, then the dupers would be in for a long interrogation. But none of this happened. Instead, things headed into the Oireachtas and the Four Courts - one to keep the public's hopes up, one to wear them down.

We got The Conflict, of course. In April, the FAI's auditors Deloitte reported the association to the CRO (but not to the Gardai) for breaking company law. The FAI would go on to take cosmetic legal action against three Deloitte companies for ... God only knows. Other holy houses of the management class, like Grant Thornton and Mazars, did their wildly expensive financial oversight thing and we got to pay for it. The likes of Sport Ireland did its own audit, as did Revenue. It was a gold rush of taxpayer-funded auditry, with a nice side order of righteous indignation. 

The Minister for Sport Shane Ross threw more shapes than a Portuguese winger (''We don't trust the FAI, we don't trust them with the money, we've withdrawn from them and we're not going to give them any government money or taxpayer's money''). The Taoiseach Leo Varadkar arrived early into the box (''We don't want to be in a position where we are somehow asking the taxpayer to bail out the FAI'') and was clearly offside. Meanwhile, the FAI was sitting on the match ball, smiling contentedly.

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                                                                Masters of Suspense

How did we get here? To a place where, five years later, not one member of the FAI (or Deloitte) has been charged with anything? How do we always end up in this place?

The barristers made their move, as always. There has been one of those long High Court sagas which are too boring to interest the public, and that may be their point. It is almost impossible to see this one as anything but a four year misdirection, because the FAI's pitch for funding required them to identify the crimes and admit their part in them. This High Court saga was one of evidence being removed, a tactic which would be unlikely to help in a criminal trial where the FAI and its officers might need to be finding new evidence to help plead diminished responsibility.

Delaney took the lead in the case. He was represented by Paul McGarry SC, a man who previously represented Igors Labuts and Dragos Sfrijan in their cases against the FAI (see Scandal 3). There have been multiple court hearings, arguing back and forth about legal professional privilege and privacy concerns. McGarry may have experienced deja vu about this, as the central point of the Labuts/Sfrijan case was the suppression of evidence which might be successfully used against them. What this evidence might be or if it even exists ... who knows?

A MacGuffin was a device which Alfred Hitchcock regularly used to drive the plot along. It could be something or nothing. As long as the audience recognised it as something which motivated the bad guys to chase down the good guy, that was enough. Its significance didn't have to be explained. Not being understood made it all the more tantalising. 

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It is a struggle to make sense of the Delaney case from the point of view of predator and prey. Among the court directions has been a direction that Delaney's solicitor should attend the offices of the investigator for what turned out to be several months, sorting through emails and other documents. It all seems so cosy, though it is surely a strange way of keeping damning evidence out of a aggressor's reach. In the end, 675,240 email files have been reduced to 3,818 files (and that number includes other records) without any real public scrutiny over what was removed and why. And the process hasn't stopped there; two barristers have been appointed by the court to go through the 3,818 items and make recommendations on whether or not any of them are privileged - without saying if there was any dispute about their remaining between the investigator and Delaney's representative.  [My company obviously has concerns that this exercise might be used in passing to disappear potentially incriminating documents relating to other actions by the FAI, especially in regard to Pre Season but also including the 2015 impersonation, the 2017 memorandum etc.]

Delaney racked up some nice legal costs for effectively acting on behalf of an organisation of which he is no longer a member. E2 million is claimed. But this is just a number on paper unless it is called in. One thing is for sure; whenever a case ambles along pointlessly in the fashion of this one, somebody is about to get screwed. And it is usually us. Without a specific target in mind - such as Conor McGregor or me - the barristers always default to having their plots underwritten by the taxpayer, because nobody ever speaks up for the taxpayer. I don't see Delaney as fitting the part of a specific target in any way, but it is possible that I am wrong in that. 

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So, who have we got in our corner? Who is going all out to put the guilty blazers in handcuffs? 

The case against the FAI was taken over by the Corporate Enforcement Authority in July 2022. The CEA's mission, at least according to Chartered Accountants Ireland, is to ''communicate publicly the benefits of compliance with the law and the consequences of non-compliance''. This is something which is learned by most people in childhood, the main benefit being that you won't be needing to pack your toothbrush for a trip to Mountjoy. A different understanding apparently applies in corporate circles.

The CEA was formed two years ago by the Minister for Enterprise, Trade and Employment Leo Varadkar, as a significant expansion of the bureaucracy and powers of the Celtic Tiger era's Office of the Director of Corporate Enforcement. Varadkar called it ''an Irish FBI'', which was fanciful to say the least (though some of its officers do sport cool black jackets with CEA writ large on the back). Part of the FBI's remit is public corruption, which it describes as affecting ''how well our borders are secured, how verdicts are handed down in courts, and how public infrastructure like roads and schools are built''. Is the CEA really going to be the first Irish organisation to go there?

The CEA does have FBI-like powers of arrest and of search and seizure. It can also initiate summary prosecutions in a District Court and refer more serious matters to the DPP. It is structured like the corporations it investigates, with a CEO and a team of executives overseeing different departments of activity. It doesn't come cheap, with last year bringing salaries of more than E3.4 million to its 31 staff, administration costing around E1.9 million and legal around E1.2 million. I can't see anything in its activities that was not already being done by the Fraud Squad and the Companies Registration Office.

Much is made of the CEA's independence, but three of its senior executive positions are currently filled by barristers. Its CEO Ian Drennan, an accountant, holds a qualification from King's Inns, as do all three of its other senior executives. Making the point with a sledgehammer, both of the CEA's annual conferences were held in the main dining hall of the King's Inns. The most recent one was addressed by Brian Murray, a judge who certainly went the extra mile for the FAI and/or its agents in our case. 

The inaugural conference was opened by a government minister who had been caught at least flirting with breaking the law by participating in Golfgate. The eight speakers at the event were a solicitor, a law professor, a barrister and five senior counsel. 

Even setting aside good old Irish corruption, it is difficult to see what skills barristers can offer to an investigative process that are not more naturally available in Gardai. The solicitor does the detective work in an honestly contested High Court case. The (junior) barrister then sifts through the available evidence to find what will be useful to his or her client; he or she (or a senior counsel) then advocates for the client in court based on the most beneficial interpretation of the evidence in accordance with the law. At all times, the barrister is an interpreter and proponent of the evidence, never a generator of evidence. 

It appears to have been the intention of government that the GNECB (Fraud Squad) is now meant only to handle errant individuals while all corporate investigation is put in the hands of the CEA. Unfortunately, apart from the FAI the CEA has only pursued individuals from small fry companies, making it more a competitor than alternative to the Gardai. None of the 17 case studies provided in its annual report included an offender being imprisoned. Only one case mentioned money laundering. 

Earlier in the report, the CEO strained to take some credit for the imprisonment of Ebeneezer Oduntan, a pastor who handed himself in to the Charities Regulator back in 2020 and got a harsh looking 7 years for his trouble (7 years more than anyone at the Peter McVerry Trust will ever spend in chokey). He also claimed credit for the charging of Christopher Goodey and Dr Andrew Jordan for alleged fraudulent activities while running the National Association of General Practitioners. Guilty or not, these men do not belong to what Official Ireland considers the criminal class. And it needs to be kept in mind the embarrassment caused by the now defunct NAGP's involvement with Leo Varadkar (the DPP decided in July 2022 that the then Tanaiste should not be prosecuted for leaking a confidential document to the NAGP's president).

The CEA's powers of arrest are held by a number of Fraud Squad detectives who are seconded to it and paid on the basis of Garda overtime. As the June 2022 Memorandum of Understanding between the CEA and the Gardai puts it, ''the officer shall be subject to the direction of the CEA only''. In other words, the detectives no longer exist in a policing environment and cannot act without executive authorisation. Taken in total, all of this means that barristers now hold an effective monopoly over the investigation, arrest, prosecution, defence and judgment of all serious corporate criminals in Ireland. This is not good.

Ian Kehoe writes in business magazine The Currency, ''... it is easy to imagine that Ian Drennan operates in a world of black and white. After all, laws are either broken or they are not. Legislation is either violated, or it is not. An offence has been committed, or not. Yet, Drennan, the chief executive of the state's newly minted Corporate Enforcement Authority (CEA), often looks for the grey''. Oh dear.

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Just about everyone was talking about the FAI scandal back in the day. It was a national event, as was last year's Tubridy scandal. It was fascinating to watch the effect it had on 'ordinary people'. It felt like a revolution, a revolution by the honest against the dishonest - an end to the everyday triumph of bullshit. The powerful doubtless told themselves that this positive energy was evidence of bitter envy and these ordinary people would need to be taught a lesson. 

We make it easy for them. We forget and move on. They never forget.

 The media's FAI windfall was banked five years ago, they're not interested in seeing the story to a conclusion. The FAI got bailed out by the taxpayer - E19.23 million - and only last year the media unsuccessfully propagandised an outrageous attempt by the FAI to take half a billion euro from the taxpayer (they will try again). Between emoluments and a severance package, E859,577 of the 2019 bailout effectively went to John Delaney.