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Further Reflections on the International Tribunal Hearing
TJ13 gave a preliminary conclusion last night on the key points of argument presented to the tribunal in the Daily F1 News and Comment if you missed it. The biggest potential consequence is that the day to day running of F1 may well now fundamentally change forever (click here).
The FIA were ferocious today in their pursuit of Mercedes over the alleged breach of article 151c. This clause prohibits “any fraudulent conduct or any act prejudicial to the interests of any competition to the interests of motorsport generally”. This is the clause that cost Honda a 3 race ban and McLaren a $100m fine.
This persistent line of attack over ‘bringing the sport into disrepute’ appeared to greatly surprise a number of those attending the tribunal when it was believed the focus of the attention would be on breaches of article 22. “Track testing shall be considered any track running time not part of an Event undertaken by a competitor entered in the Championship, using cars which conform substantially with the current Formula One Technical Regulations in addition to those from the previous or subsequent year.”
The question has to be asked, why were the FIA so determined to press for a big penalty for Mercedes. It is common knowledge that Mercedes and Ecclestone are not comfortable bedfellows, and that Todt and Ecclestone have had bitter disputes over the amount FOM pay to the FIA. Yet the principle “my enemy’s enemy is my friend” was clearly not in play in Paris.
Interestingly we learned that the FIA disciplinary committee had offered Mercedes a ‘deal’ – the terms of which we do not know – should they have pleaded guilty to article 22. Mercedes declined the offer and it may be that this refusal was the reason the FIA attempted to throw the book at them – nailing them under the far bigger charge of 151c.
Christian Horner attended the Tribunal, Ferrari just sent a team of lawyers and Dominicali was conspicuous by his absence back in Maranello. Horner appeared particularly subdued when interviewed. The contrast was stark in comparison to other occasions when he has spoken on Mercedes alleged crime.
When asked whether Mercedes should receive a sporting penalty if guilty, he replied “That’s down for the tribunal to decide, it’s not for us to comment on what the penalty should be”. This is a clear shift in rhetoric from the demands for a sporting penalty both he and Helmut Marko have demanded on numerous occasions.
Further, when asked whether he now felt Mercedes had been mislead by the FIA, Horner responded, “I think there’s perhaps a degree of ambiguity” then added, “but the rules are very clear and the teams know what the rules are”.
Maybe hearing the detail of how opinion was sought and given on the regulations, Horner is coming to the realisation he pressed his thermonuclear red button in haste by making a formal protest before the race in Monaco.
This option has been available to other teams on a number of occasions in recent years when they wished to question whether Red Bull were in breach of regulations relating to the legitimacy of their car.
Of course under the ‘gentleman’s agreement’ other teams chose to make ‘informal’ requests for clarification and then allowed Charlie Whiting to resolve the matter. It must be remembered some of those enquires led to a Red Bull having FIA tape covering what were obviously illegal holes. No tribunal was enforced.
Horner could be concerned his warhead launch will see many more coming in his and Red Bull’s direction over the coming days.
Yet most of the focus from the media has been on Mercedes. What of Pirelli? Why were they charged and what with?
We know Pirelli have a contract that allows them to test 1000km with any of the teams during the season, and did so last year and this with Ferrari.
Yet they are charged with a breach of the sporting regulations, though the FIA note posted on a wall in Monaco stated clearly they could perform one of these tests with a 2013 car subject to certain informally communicated and additional criteria to those stated within the contract.
Pirelli opened with a startling defence which shocked a number of those present. Their QC began by stating, “Pirelli do not come under the jurisdiction or authority of the FIA”.
The FIA counsel later refuted this, but cited no supporting articles or clauses. The FIA lawyer is Mark Howard QC, who has been described as having the ability to “destroy opposing counsel with little more than a look”. You would then think this legal beast would have a little more in his arsenal than merely accusing Pirelli of making submissions which were, “confused and have missed the point.”
This charge appears to be frivolous and TJ13 has learned Pirelli are serious about suing the FIA should they be found guilty or are hit with a heavy penalty.
The FIA must surely realise that should Pirelli bring a $100m lawsuit against them, any hope they have of awarding the 2014 contract to anyone else will be long gone. This may explain the kid gloves approach to the prosecuting of the Italian tyre manufacturer in the Place de Concorde yesterday.
Surely the judgement will involve some rapping of the knuckles, because it appears anything other than this will cause seismic ructions emanating from Germany or Italy which will fundamentally damage Formula One.
There may be those wondering what course of action is open to those wishing to prosecute the Sport’s governing body for incompetence and being in breach of their fiduciary duty to run F1 in a proper manner.
Mercedes divisions emerge
A rather startling story is emerging from Germany suggesting there have been fundamental disagreements between Brawn, Lauda and Wolff over how they should handle the charges brought by the FIA as a result of Red Bull’s protests.
Lauda said before the tribunal he knew nothing of the test until ‘the wheels were turning’ and now he reveals there is a split in the senior management in Brackley.
Niki is now claiming he never wanted matters to get as far as the International Tribunal. He tells Bilde, “I tried the whole weekend in Montreal to avoid the process. Red Bull lodged the protest against us with Ferrari, agreed an out-of-court deal with Bernie Ecclestone and to make it happen it needed a letter from Mercedes to FIA boss [Jean] Todt. But our bosses Toto Wolff and Ross Brawn refused. Now they have to live with it.”
That somebody may disagree with Lauda is no surprise to anyone who realises that night follows day. However when Brawn – unprompted – in Canada informed the press it was his call alone to go testing and almost demanded to be held responsibility for the outcome – TJ13’s eyebrow was raised in an instant.
To stay with the analogy of the Alice in Wonderland world Mercedes accused the FIA of inhabiting – it is even more fantastic that the double act of the new Mercedes shareholders…Tweedledum and Tweedledee… have parted company and Wolff is aligning himself with Brawn.
It’s as though regardless of the outcome at the International Tribunal, Brawn knows something big is afoot. It couldn’t be that he is thinking of re-investing his millions Mercedes paid him for Brawn GP to acquire a significant stake once again in the Brackley based team.
Maybe we should have 3 week breaks between races more often.
Testgate Verdict #1
The minions who oil the wheels of bureaucracy are informing us we will hear the verdict sometime between 10:30-11:00pm GMT (Yeah right in time, on time???). Watch this space.
3 headed monster
Much of the chaos and disorganisation in F1 is becuase of what TJ13 describes as the ‘3 headed monster’. We have the FIA, Mr. E/FOM and the teams all who need to be contractually bound to each other to ensure the smooth running of the sport….. (excuse me I had to pick myself up from the floor – laughing too hard).
That’s the theory anyway, most of the problems occur when one party refuses to play ball. If there were just 2 parties, the opportunity for 1 to hold the other to ransom is diminished.
However, even then matters would not be so simple, because each of the heads can and does often go to war with itself. Yesterday we saw the FIA claim Whiting has no say in matters regarding the sporting regulations – when clearly in practice he IS Mr. sporting regulations. Teams fail to band together regularly against Mr. E and are divided over self-interest.
So, a new day and another head is battling the others. Bernie Ecclestone has revealed he and FOM have a long-term contract in place with Pirelli for 2014 and beyond. The problem as we suspected is that, “Pirelli haven’t got an agreement with the FIA (for 2014),” Ecclestone tells Sylt.
TJ13 reported 2 weeks ago that Pirelli have been lobbying the FIA hard to change their stance over in season testing, and Todt et al have refused – not wishing to be seen to raise the costs to F1 teams. This has taken the sport to the brink, and as yet we may see ‘Flintstone-esque’ rocks bolted onto the wheel rims of the new turbo era vehicles.
Michelin could yet step in, but they would have to create bullet proof tyres which would last for ever. The reason for this is the fine tuning required to deliver tyres with a targeted and specific degradation for the new turbo era has run out. Yet Bernie never reveals his hand unless he feels he should.
Ecclestone has revealed this to the world today because he is sending a message to the FIA ahead of the IT verdict. F1 now knows that the 2014 tyre deal is done and so do the F1 fans… ‘it’s you boys in France who are dilly-dallying’.
If yesterday failed to remind us that the FIA is a shambles, then Bernie is making sure we remember today and heaping ignominy on the Place de Concorde.
It’s up to Webber
TJ13 reported 6 days ago that the ‘Kimi to Red Bull’ rumour had run it’s course and that Mark Webber was to be offered a contract for 2014. The trigger for this appeared to be the surprise timing of Vettel’s decision to renew his contract which came hot on the heels of the strong indication from Dominicali that Massa would be in a Maranello red machine in 2014.
A source close to Red Bull confirmed to TJ13 that Webber would indeed be offered a contract. It was around this time last year when he signed for a further 12 months with the Milton Keynes team.
Webber has been speaking to Australia’s Sky Radio and claimed of his future, “The ball is pretty firmly in my court, which is nice. I have to of course continue to keep driving well, otherwise that ball will go out of your court and other people will roll into that seat because they’ll probably be more attractive to a team like Red Bull.”
Webber has always dealt direct with Red Bull supremo Dietrich Mateschitz – not Marko – on matters relating to his contract and he confirmed that relationship remains “very good”. He adds, “I’ll continue to be in touch with him on where my thinking is at, where my energy levels are, and where my motivation is for still operating at this level.”
Interestingly, from Webber’s perspective he is in no hurry to sign a contract saying, “I still need to have a bit more time, and we can leave it reasonably late I think.”
TestGate: The Verdict
(This section will be continually updated live as the verdict comes through)
Ross Brawn fears the worst – a 2 month sentence of community service to be served working for the FIA 🙂 Some humour while we wait…
Apparently there was gridlock outside the Red Bull factory in Milton Keynes this morning as a convoy of Royal Mail trucks delivered the days post. Mercedes have apparently formally protested all 10,000 components of the RB9.
Whatever happens Pirelli and Mercedes both have the right along with the FIA appeal the verdict and take the matter to the International Court of Appeal. Therefore even were Mercedes to receive a race ban they would race at Silverstone under appeal until the appeal is heard.
FINALLY…. Here it is.
Pirelli reprimanded. Mercedes reprimanded and banned from young driver test. NO FINES – NO POINTS DEDUCTIONS
So the International Tribunal has clearly upheld both Pirelli and Mercedes claims that they acted in good faith. The FIA assertions that the caution which Brawn took by following the normative protocols and checking with Charlie Whiting must have been deemed acceptable. Hence Mercedes accusations that the FIA do not understand how F1 works and live in ‘An Alice in Wonderland world’ are given some credence.
The tribunal states it made consideration for “bona fide, but misconceived ‘qualified approval’ which was given on behalf of the FIA”. It rules Mercedes and Pirelli were in breach of article 22 but states this would not have taken place had, “qualified approval had not been expressed by the representatives of the FIA.”
The tribunal criticises the Ferrari tests in 2012 and 2013 as ‘equally unsatisfactory’ and de facto upholds Mercedes assertions that if they were guilty under 151c then Ferrari should be too, found sympathy with the judges.
Amusingly the tribunal notes that knowledge may have been gained by Mercedes and the was a ‘material advantage’. However, it cannot ascertain what that would be other than knowledge “by way of confirmation of what had not gone wrong”.
Pirelli appear to have been found guilty of failing to communicate to the FIA that all the teams had been offered similar testing opportunities. Hembery has maintained all along, each team received the same opportunity and notification in March 2012. Ferrari and Mercedes took advantage of this, the others did not.
Mercedes and Pirelli are ordered to “pay one third of the costs of the investigation and procedure – excluding FIA’s own legal costs”. The FIA are ordered to “pay one third of the costs of the investigation and procedure – and all of its own legal costs”.
In verdicts where there is no clear winner, cost orders are an interesting indication as to what the Judge actually thinks. The FIA have been gently reprimanded here because they act as the ‘prosecuting party’, yet they must pay their own costs. It could be more usual in a ‘guilty verdict’ following a ‘not guilty plea’ for the defendants to bear the costs (in part or in full) of the proceedings which would include costs for the prosecution.
TJ13 wrote on evening after the Monaco GP this was a storm in a tea-cup in “Pirelli & Mercedes development test leads to F1 Hysteria & FIA headless chicken impersonations”. I’m no soothsayer, just been around F1 a long time.
This is a sensible result for Formula 1 regardless of partisan views. The last thing we need is a return to the times where the business of the day cannot be managed informally via very experienced members and officers of the FIA.
Here is the tribunal’s decision in full.
(1) The track testing, which is the subject of these proceedings, was not carried out by Pirelli and/or Mercedes with the intention that Mercedes should obtain any unfair sporting advantage.
(2) Neither Pirelli nor Mercedes acted in bad faith at any material time.
(3) Both Pirelli and Mercedes disclosed to FIA at least the essence of what they intended to do in relation to the test and attempted to obtain permission for it; and Mercedes had no reason to believe that approval had not been given .
(4) The actions taken on behalf of FIA by Charlie Whiting (having taken advice from the legal department of FIA) were taken in good faith and with the intention of assisting the parties and consistent with sporting fairness.
Notwithstanding the above findings:
(i) by running its car(s) in the course of the testing, Mercedes acted in breach of Article 22.4 h) SR;
(ii) insofar as FIA expressed its qualified approval for the testing to be carried out, that approval could not, and did not, vary the express prohibition stipulated by Article 22 SR and neither Mercedes nor Pirelli took adequate steps to ensure that the qualification was satisfied. In this regard the Tribunal takes particular note of the fact that it was, very properly, not submitted on behalf of Pirelli, nor was there any evidence that, the assurance which it was not disputed Mr Paul Hembery, Pirelli Motorsport Director, had given to Charlie Whiting (as set out in paragraph 5 above) had in fact been acted on at any material time;
(iii) the testing would, however, not have been carried out by either Mercedes or Pirelli if that qualified approval had not been expressed by the representatives of the FIA in the way in which it is admitted by FIA it was;
(iv) The Tribunal is unable to express any opinion as to whether or not the testing carried out by Ferrari in 2012 and 2013 was properly authorised but, it would appear to be equally unsatisfactory that this
consent was also given by Charlie Whiting, the Tribunal has no evidence before it which indicates that his opinion in that case had in fact been wrong.
(v) Mercedes did obtain some material advantage (even if only by way of confirmation of what had not gone wrong) as a result of the testing, which, at least potentially, gave it an unfair sporting advantage, to the knowledge and with the intention of Pirelli. In the light of the data which Pirelli did in fact pass to Mercedes by way of the confidential email referred to under paragraph 37.8 above, it is plain beyond sensible argument that Pirelli had intended confidentially to pass some data to Mercedes, which Pirelli expressly regarded as being of high importance even if, as we accept, it was in fact of limited value to Mercedes because it was unaware of the tyre(s) to which the report related.
(vi) No other team was aware of the fact that such advantage might be, or had been, obtained, notwithstanding the assurance which had been given by Paul Hembery to Charlie Whiting, as set out in paragraph 5 above; and the Tribunal notes that, when giving that assurance, Paul Hembery had not indicated to Charlie Whiting that the notification which Pirelli had already given to all teams in 2012 could satisfy the assurance which was being sought.
(vii) Both Mercedes and Pirelli, accordingly, did act in breach of articles 1 and 151 ISC.
SANCTIONS AND COSTS
41. Article 153 ISC provides for a scale of penalties, as set out under paragraph 12 above.
42. Based on all the circumstances of the case and: (i) with the specific objective that, insofar as it is reasonably practicable to do so, the other teams should be placed in a similar position to that in which Mercedes is in as a result of the breach of article 22 SR and articles 1 and 151 ISC and Pirelli of articles 1 and 151 ISC ; (ii) in recognition of the fact that the testing would not have taken place but for the bona fide, but misconceived “qualified approval” which was given on behalf of the FIA, the Tribunal decides that the most appropriate sanctions and orders are that :
• Mercedes be reprimanded in the terms of the findings set out above.
• Mercedes be suspended from participating in the forthcoming “three day young driver training test.
• Mercedes shall pay one third of the costs of the investigation and procedure, as provided for by Article 13.2 JDR, excluding FIA’s own legal costs.
• Pirelli be reprimanded in the terms of the findings set out above.
• Pirelli shall pay one third of the costs of the investigation and procedure, as provided for by Article 13.2 JDR, excluding FIA’s own legal costs.
• FIA shall bear one third of the costs of the investigation and procedure, as provided for by Article 13.2 JDR, and all of its own legal costs.
International Tribunal Conclusions (coming later…)
Lose-lose for Red Bull….
Ferrari save face….
Tyre supplier for 2014 still open to change….