SEPTEMBER 11, 2007
Thoughts before the World Council
In the next 36 hours there needs to be a lot of thinking in FIA circles - at least one would hope that will be the case because the "trial" of McLaren is as much a trial of the FIA as it is of the team. The FIA World Council has already decided that McLaren breached Article 151c of the International Sporting Code and was involved in "fraudulent conduct or any act prejudicial to the interests of any competition or to the interests of motor sport". This was because a rogue employee Mike Coughlan was found to be in unauthorised possession of documents and confidential information belonging to Scuderia Ferrari Marlboro. The team is responsible for rogue employees.
In July the Council concluded that there was insufficient evidence to punish McLaren but added that if new evidence did emerge the decision would be reconsidered. The FIA move to recall the matter to the World Council is apparently based on new evidence that has been received. This includes messages that were sent between McLaren drivers Pedro de la Rosa and Fernando Alonso which, it seems, suggest that the development of the McLaren MP4-22 was influenced by information flowing from Ferrari's Nigel Stepney to Coughlan and from him to the drivers.
So let us assume that someone else in the team has been found to have known about the leaks from Stepney. What does that prove?
Rules are rules, some will say. True, but it is the sign of a healthy system of government that the law is applied in a sensible fashion and that the legislature is trusted to make the right decisions. The FIA rules and regulations are often open to interpretation because that provides the federation with flexibility to use the rules as they see fit. This is not a bad idea so long as there are no abuses. In ethics and in law there is a fundamental principle that the severity of a penalty should be proportional to the severity of the infraction. The concept is common to most cultures throughout the world. British law, for example, can trace its attempts to establish such a system can be traced back to 1275 and the principle is enshrined in the Habeas Corpus Act and the English Bill of Rights.
The Eighth Amendment of the US Constitution similarly forbids punishments which are "cruel and unusual".
The point of all this is that while the FIA operates in something of a legal vacuum, it will not be allowed to impose a punishment that does not fit the crime.
If McLaren is to be punished there needs to be quantitative evidence that a significant advantage was gained by the new evidence being presented. And how does one show that an SMS or e-mail message from one driver to another resulted directly in the team gaining a sufficient advantage to put McLaren ahead of Ferrari at some races? And how in the world can the FIA distinguish this from the development that has been going on at McLaren at the same time?
It sounds like a pretty impossible task.
But this is only a part of the problem.
Perception is what matters. It is widely perceived these days that President Max Mosley has too often made the mistake of making public his dislike of McLarens Ron Dennis. It is inevitable that a strong punishment against McLaren would be viewed by many as part of a vendetta against Dennis, particularly if the grounds for the punishment are not very solid. The FIA says there is no vendetta but it takes more than denials to change perceptions.
There is also a (very) strong perception in F1 circles that the FIA is always supportive of Ferrari.
If the World Council makes the wrong decisions the floodgates may open and the sport could face a meltdown of awful proportions. There may be dossiers that allege FIA abuses through the years. There may be dossiers that reveal regulatory problems with all the current cars on the grid. There will no doubt be questions that have long lurked dangerously in the shadows: Should Ferrari not be punished for running an illegal floor in Melbourne? Should Ferrari not be answering the same charge of bringing the sport into disrepute as a result of some of the allegations being made by apparent renegade Nigel Stepney? His supposed actions are bringing the sport into disrepute and he was a Ferrari employee when all this was going on. Similarly, should not Toyota be punished by the FIA for espionage which have been proven in a civil court? If the FIA left that case up to the civil courts, why was this matter not left in a similar way?
One cannot expect a company like McLaren - which has taken years to be built up - to allow itself to be damaged unless it accepts that the judgement is fair.
In a perfect world there would be a compromise but already Jean Todt is saying that Ferrari will continue legal action in Britain and Italy if he is not satisfied by the FIA decision. Todt, you may recall, sued the governing body back in 1986 after it cancelled the Group B rules in rallying when he was running Peugeot Talbot Sport. Peugeot lost in that action.
"This is an important legal victory," FIA President Jean-Marie Balestre said at the time. "I hope that from now on this will encourage manufacturers to respect the rules of the federation and dissuade them from seeking action in the courts. It establishes that the federation has an independence which allows it to make decisions with total autonomy."
However in the settlement between the FIA and the EU in 2001 the Europeans ruled that "FIA's submissions have confirmed the availability of legal challenge against FIA decisions both within the FIA structure and before national courts. Access to external independent appeals has been guaranteed in the FIA rules. As mentioned above, the FIA has agreed to insert a new clause clarifying that anyone who is subject to FIA decisions can challenge them before the national courts."
The use of external courts should only happen if there is a miscarriage of justice and the sport has shown itself to be incapable of sensibly ruling itself.
There are times when one wonders about that because some of those involved seem to forget that F1 exists within the real world. Not long ago, for example, while all the Stepneygate scandal was in full swing, Ferrari chairman Luca di Montezemolo made a speech to students at Rome's Libera Universita Internazionale saying that when he was at school he was "the world champion copier" and exhorting them to look at the ideas of others and use them to be successful.
In the past exposure to the real world has often proved to be embarrassing for F1 people. The rules of the F1 game do not necessarily work in the High Court and it is best that everyone remembers that.
The FIA likes to say that it is there to be the legislator and sometimes has to make unpopular decisions. That is fair enough but the World Council must also be aware of the commercial implications of its decisions, not just for McLaren but also for the sport itself. If the governance of the sport is seen to be lacking, confidence will be lost. Sponsors could flee. One needs only to look at cycling to see that scandal drives away money. The best solution if there have to be penalties would be intelligent penalties that add something to F1 rather than simply being seen as retribution. A ban would be far more destructive than a punishment which, for example, meant that McLaren had to overcome a points deficit in 2008.
And, perhaps most importantly, the FIA must see things from the point of view of the fans. The story this year has been the amazing achievements of Lewis Hamilton and his relationship with Fernando Alonso. This is what people are talking about. This is why F1 is growing. On the race tracks the McLarens and Ferraris have been close but there is no doubt about the results. Ferrari has been let down by reliability and by the fact that the maintenance of the wind tunnel was lacking and for three races (at least) the team did not perform as well as it should have done because the rolling road failed.
Remember that McLaren still has an appeal outstanding relating to the loss of Constructors' points in Hungary and if the 15 points won in Budapest were added to the current total of 166, the gap to Ferrari would be 38 points - which would mean that not even two consecutive 1-2 results with McLaren failing to score in both races would be enough to catch the Woking team.
Is this really the kind of advantage that one gets from some text messages and a few phone calls?
Or is it because a thousand people at McLaren work flat out, spending a million dollars a day, to try to beat Ferrari?