Pushing the (tyre) limits in F1Charles Maurice
The decision, on Thursday 20 June 2013, of the International Tribunal of the FIA in the hearing relating to the Mercedes/Pirelli tyre test is certainly worthy of comment. In his latest blog Charlie Maurice reviews the decision of the Tribunal.
Friday’s decision by the International Tribunal of the FIA in the hearing relating to the Mercedes/Pirelli tyre test is certainly worthy of comment and I would be very interested to hear your views in the discussion forum below. From my perspective, whilst somewhat expected in nature, the decision of the Tribunal introduces some awkward concepts which do not sit terribly well with the underlying principles which the Tribunal was attempting to protect.
In brief, Mercedes has been found to have been in breach of Article 22.4 (h) of the 2013 Formula One Sporting Regulations (SR) which prevents in-season track testing save in certain very limited circumstances. Following the Barcelona Grand Prix in May, and having asked the Formula One Race Director of the FIA, Charlie Whiting, whether such testing was allowed, The Mercedes Formula One Team took part in a three day test organised by Pirelli (to the tune of approximately 1,000 km). Whiting had indicated that such testing would be allowed, provided that it was clear that the test was for Pirelli to test its tyres and was subject to Pirelli treating all competitors fairly, as it was contractually bound to do in its agreement with the FIA. Neither Pirelli nor Mercedes properly followed up on what amounted to a conditional approval from the FIA (irrespective of whether Whiting was properly able to give it), and none of the other teams were informed of the test or invited to participate before the test went ahead. Unsurprisingly, this led to formal protests from both the Red Bull team and the Ferrari team and was ultimately referred to the Tribunal.
The Tribunal found that:
- the track testing was not carried out by Pirelli and/or Mercedes with the intention that Mercedes should obtain any unfair sporting advantage, but in doing so neither Pirelli nor Mercedes took adequate steps to ensure that the qualifications to the FIA consent given by Charlie Whiting were satisfied;
- neither Pirelli nor Mercedes acted in bad faith in this episode;
- both Pirelli and Mercedes had disclosed to the FIA at least the essence of the purpose behind the test;
- the testing would not have gone ahead had either Pirelli or Mercedes thought that consent had not been given; and
- the actions taken on behalf of the 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. However, notwithstanding all of this, Mercedes did derive some material advantage from the testing which gave it an unfair sporting advantage and as well as being in breach of Article 22.4 (h) of the SR, both parties were also in breach of Articles 1 and 151 of the International Sporting Code (ISC) on the basis that their actions were a breach of sporting fairness and constituted an act prejudicial to the interests of motor sport more generally.
The Tribunal dealt Mercedes and Pirelli a reprimand, suspended Mercedes from the upcoming 2013 young drivers’ training test and awarded each of Mercedes, Pirelli and the FIA to bear a third each of the costs of the investigation and the procedure, with the FIA to bear all of its own legal costs. The Tribunal dished out some fairly harsh words for Pirelli as part of its decision, noting that it was, “very properly, not submitted on behalf of Pirelli, nor was there any evidence that, the assurance which … Mr Paul Hembery, Pirelli Motorsport Director, had given to Charlie Whiting had in fact been acted on at any material time.”
Some fairly grave findings here then, despite the apparent absence of bad faith in the parties’ dealings. Articles 1 and 151 of the ISC are aimed at maintaining a level playing field in motorsport generally (just don’t use the word “cheating”) and were infamously invoked in the McLaren “spygate” scandal in 2007. Acknowledging that the facts here are different, it seems awkward that a breach of such a fundamental sporting principle would attract a simple slap on the wrist, rather than one of the stronger punishments available to the Tribunal under Article 153 ISC such as a fine or some form of racing penalty (points or time for example). The Tribunal were at pains to note that neither Mercedes nor Pirelli acted with bad faith in this episode, however the secret nature of the testing and the fact that Pirelli shared its data with Mercedes on a confidential basis points to the behaviour of both parties being of an exclusive nature at the very least. Bernie Ecclestone’s comments leave the reader in no doubt as to where he stands on this:
“If you offer me stolen goods, it is up to me to decide whether I want to accept them or not. It is not up to anyone to tell me what I should do. I should know what to do.”
The punishment itself is also slightly peculiar. Readers of the full decision will note that a suspension from the young drivers test was actually a punishment proposed by Mercedes itself and one which it claims will be keenly felt. I expect that the other teams have a different view of this though, and one wonders whether the real losers in this are those young drivers who will now miss out on an opportunity to impress. With Hamilton and Rosberg on their books though, I’m sure Mercedes will continue to see this as (in Ross Brawn’s words) a “proportionate” response, particularly as the punishment was their own idea – certainly a novel approach for the Tribunal to follow.
Whichever way you look at it though, the fact remains that Formula One continues to act like the archetypal dysfunctional family off the track. Part of Mercedes’ argument to the Tribunal focused on the legality of Ferrari’s controversial in-season track tests in 2012 and 2013 (and had relied on verbal assurances from Pirelli in doing so), and whilst the Tribunal declined to comment on this point specifically, it did note that the procedure behind the permission for this testing was far from ideal. The fact that the FIA was ordered to pay its own costs suggest at least partial culpability in this affair and there is a real suggestion that the process could and should have been managed better from the top down – Formula One is, after all, hugely competitive, and we have seen countless times that teams are prepared to push the limits in the pursuit of success on and off the track. Effective management of this and response is, and will remain, key.
And this really the crux of this whole episode – the SR and ISC wording is actually rather clear and whilst the protagonists in this episode will point to a need to clarify or redraft the rules, the fact remains that it is within their own gift to operate within the sport’s governing rules and not hide behind a lack of understanding of process (a quick look at the Tribunal decision for example will tell you that neither entity is short of legal representation). The interests of the team and the supplier diverge at this point – the Tribunal noted (which was rather meekly argued against by Pirelli) that Pirelli was subject to the same overriding principles governing the sport as applied to Mercedes. This certainly makes sense in principal, but there must be a difference between the impact of a breach of those principles by Pirelli as sole tyre supplier versus Mercedes as a racing team. Ultimately, Pirelli is under pressure to resolve its on-going tyre issues and one can certainly sympathise with them wanting to test in a real-time environment using cars vulnerable to the delamination issues that have been a feature of recent races. This is especially relevant if reports are true that Michelin are waiting in the wings to step into their shoes.
Stakeholders need to protect their IP, of course (and preserving a sporting advantage within the rules is clearly at the essence of sporting success), but this ought to be balanced with a level of accountability and transparency that enables the sport to maintain some level of integrity and fairness – key concepts in this post-Lance Armstrong world. Whether this is done through the imposition of greater transparency (increased reporting requirements or similar), or (preferably and more easily) via sanction and precedent, still remains to be seen despite the Tribunal having an excellent opportunity to grapple with this here. The other big teams will have been watching closely here and there is a suggestion that if the punishment handed out is as light as was applied here, then some teams might be tempted to take a chance and risk a valuable in-season track test. Whatever the conclusion, this episode smacks of fundamental errors on the part of all those involved, with potentially damaging reputational consequences.
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About the Author
Charlie is a senior associate at Stevens & Bolton LLP and specialises in the sports, media and entertainment sectors. Charlie advises on a wide range of sporting issues and has particular experience in the motor racing and football industries.