The FIA Decision in full

FIA World Motor Sport Council

Decision

8 WMSC's Assessment

8.1 The WMSC has carefully considered the evidence and submissions of all parties.

8.2 It has concluded (and intends to re-affirm) that a breach of Article 151(c) has occurred.

8.3 In the 26 July Decision, the WMSC found a breach of Article 151(c). In assessing the gravity of that breach, it took account of a number of factors including any evidence (or, at the time, lack of it) to suggest that the Ferrari information improperly held had actually been used and actually conferred a sporting advantage. Other factors that it took into account included the argument that there was little evidence of the information in question being disseminated to others at McLaren, what the WMSC then understood to be Coughlan's more limited role and the argument that Coughlan was a single rogue employee.

8.4 McLaren has made detailed submissions indicating that none of the information received enhanced the McLaren car. McLaren has suggested to the WMSC that unless "actual use" and a demonstrated and itemised performance advantage can be proven beyond a reasonable doubt (i.e. to a criminal law standard of proof), the WMSC is not permitted at law to impose a penalty.

8.5 The WMSC rejects this suggestion. The WMSC has full jurisdiction to apply Article 151(c) and stresses that it is not necessary for it to demonstrate that any confidential Ferrari information was directly copied by McLaren or put to direct use in the McLaren car to justify a finding that Article 151(c) was breached and/or that a penalty is merited. Nor does the WMSC need to show that any information improperly held led to any specifically identified sporting advantage, or indeed any advantage at all. Rather, the WMSC is entitled to treat possession of another team's information as an offence meriting a penalty on its own if it so chooses.

8.6 The fact that in its 26 July Decision, based on more limited evidence, the Council had a different appreciation of the gravity of McLaren's breach does not lead to the creation of a legal test regarding the WMSC's burden of proof. The WMSC could have imposed a penalty with the 26 July Decision based on the evidence therein, but chose not to (based in part on McLaren's submissions that there had been no dissemination of Ferrari information beyond Mr Coughlan).

8.7 The WMSC has taken note of McLaren's position that an injustice would occur if a penalty were imposed without the FIA having accepted McLaren's offer to inspect the McLaren premises and designs for evidence of Ferrari technology having been copied. However, as noted above, neither the finding of a breach nor the imposition of a penalty require evidence of McLaren having directly incorporated Ferrari technology. Nonetheless, the WMSC have noted and taken account of the open and co-operative nature of this offer and taken this into account in reaching this Decision.

8.8 In light of the evidence now before it, the WMSC does not accept that the only actions of McLaren deserving censure were those of Coughlan. While this situation might have originated with the actions of a single rogue McLaren employee acting on his own and without McLaren's knowledge or consent, evidence is now available which, when taken in its full context, makes clear that:

- Coughlan had more information than previously appreciated and was receiving information in a systematic manner over a period of months;

- the information has been disseminated, at least to some degree (e.g. to Mr. de la Rosa and Mr. Alonso), within the McLaren team;

- the information being disseminated within the McLaren team included not only highly sensitive technical information but also secret information regarding Ferrari's sporting strategy;

- Mr de la Rosa, in the performance of his functions at McLaren, requested and received secret Ferrari information from a source which he knew to be illegitimate and expressly stated that the purpose of his request was to run tests in the simulator;

- the secret information in question was shared with Mr. Alonso;

- there was a clear intention on the part of a number of McLaren personnel to use some of the Ferrari confidential information in its own testing. If this was not in fact carried into effect it was only because there were technical reasons not to do so;

- Coughlan's role within McLaren (as now understood by the WMSC) put him in a position in which his knowledge of the secret Ferrari information would have influenced him in the performance of his duties.

8.9 It seems to the WMSC clear that Coughlan's actions were intended by him to give McLaren a sporting advantage. He fed information about Ferrari's stopping strategy, braking system, weight distribution and other matters to McLaren's test driver. Furthermore, in light of Coughlan's undoubted experience, he is likely to have known a great deal about how to confer an advantage and the roles of different personnel within the team. It seems most unlikely that he confined his activities to sharing Ferrari's information with Mr. de la Rosa. It also seems most unlikely that his own work was not influenced in some way by the knowledge regarding the Ferrari car that he is known to have possessed.

8.10 Furthermore, it seems entirely unlikely to the WMSC that any Formula One driver would bear the sole responsibility for handling or processing sensitive Ferrari information (e.g. on substances used to inflate tyres or weight distribution) or deciding how or whether such information would be used or tested. In light of his experience, Coughlan would have known this and if he intended to reveal this information to McLaren, he is unlikely to have done so only to Mr. de la Rosa .

8.11 The WMSC therefore finds that a number of McLaren employees or agents were in unauthorised possession of, or knew or should have known that other McLaren employees or agents were in unauthorised possession of, highly confidential Ferrari technical information. In addition, the WMSC finds that there was an intention on the part of a number of McLaren personnel to use some of the Ferrari confidential information in its own testing.

8.12 The evidence leads the WMSC to conclude that some degree of sporting advantage was obtained, though it may forever be impossible to quantify that advantage in concrete terms.

8.13 These factors lead the WMSC to an appreciation of the gravity of McLaren's breach which is materially different to the appreciation in the 26 July Decision. On this occasion the WMSC believes that a penalty is merited.

8.14 Having indicated to McLaren that a penalty was likely to be imposed, the WMSC heard submissions regarding the appropriateness of penalties from McLaren and from counsel for Mr. Hamilton. The WMSC has reached its decision having taken due account of those submissions.

> Continued - Part 8

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