Suspending the Renault Ban Was Spot On, and a Legally Correct Decision by the WMSC


What Happens When What is Legal is Often Unpopular

5:30pm EST — There has been much outrage over the WMSC’s decision to suspend Renault’s indefinite ban for two years, with much of the Formula1 community, those involved, formerly involved, and those merely fans, angry and unhappy with the decision, saying that it is far too lenient for Nelson Piquet, Jr.’s purposeful crash and the subsequent fixed result of the Singapore GP in 2008.  Many are comparing the situation to the $100 million fine McLaren had to pay in 2007, when found guilty of possessing illegal information from Ferrari, having broken the same rule.   Unfortunately for the naysayers, this decision was entirely commensurate with that previous decision, and was the best decision to be made under the legal and economic circumstances, even if not the best decision regarding public opinion.

The decision itself recounts the facts that have been circulating in the media.  Yes, the crash was decided upon by Nelson Piquet, Jr. and Pat Symonds.  Yes, Flavio Briatore was there and contributed his approval.  Yes, someone else knew what was going on (the mysterious Witness X), and did not think the crash would happen, nor did he (presumably not she) have anyone else to talk to, seeing as how the two top members of the team were in on the conspiracy.  Yes, Nelson Piquet, Sr. quietly admitted that the crash was fixed to a FIA official a few days after it happened, but there was no proof then.  No, no one else (including Fernando Alonso) at Renault knew of the race-fixing plan.  It also gives a detailed timeline as to the investigation, which was not fully available until now.

The WMSC stated in the decision that there was no doubt a conspiracy took place, and Renault was responsible for the actions of its then-employees, Briatore, Symonds, and Piquet, Jr.  The WMSC stated, “offenses of this severity merit permanent disqualification.”  However, the WMSC took into account various mitigating factors when determining the punishment for the team.  One of those were the policies Renault had in place to prevent such conspiracies (including the whistleblower policies that had brought forth Witness X), and that it was “difficult to conclude that other members of the Renault F1 team ought to have known and acted differently.”  Essentially, Renault was guilty of the charges, but the fact that they had “reacted responsibly” in accepting responsibility, cooperating fully with the FIA, confirming their involvement, and removing the offending parties, apologizing, and showing their commitment to pay the costs incurred by the FIA.  These “steps taken by Renault F1 to identify and address the failings within its team and condemn the action of the individuals involved” allowed the WMSC to suspend the permanent ban for two years, only to be activated “if Renault F1 is found guilty of a comparable breach.”

This suspension of punishment has been infavorably compared ad nauseum to the 2007 decision of the WMSC to fine McLaren $100 million after being in possession of Ferrari documents, a much less potentially harmful breaking of the rules.  That decision is different from this one in a few ways.  Firstly, the McLaren investigation first came from police and civil investigations of wrongdoing by Ferrari.  Secondly, McLaren representatives lied to the WMSC when first brought before them.  Thirdly, a second hearing had to be convened because of new, more damning evidence of wrongdoing.  Finally, there was no indication that the McLaren team admitted wrongdoing, nor did they originally attempt to remove those wrongdoers from the team and fix the culture of rule-breaking that seemed to exist.

McLaren’s possession of the Ferrari data first came before the WMSC during a hearing on July 26, 2007, where McLaren was found to have not circulated the illegal information, nor benefited from it in the world championship.  The WMSC stated “We therefore impose no penalty.  But if it is found in the future that the Ferrari information has been used to the detriment of the championship, we reserve the right to invite Vodafone McLaren Mercedes back in front of the WMSC where it will face the possibility of exclusion from not only the 2007 championship but also the 2008 championship.”  Unfortunately for the McLaren team, new evidence came to the FIA that forced a re-convention of the WMSC.

The subsequent decision detailed just how McLaren team members (namely drivers Pedro de la Rosa and Fernando Alonso as well as engineers) received confidential Ferrari information, including that regarding car weight, tire inflation gas, flexible wings, braking systems, and stopping strategy, from Mike Coughlan, information that was able to help them test and that the WMSC determined had affected the world championship.  Similarly, the WMSC had found, through infomation given to them by the Italian police, that the previously thought minimal information exchanged between Coughlan and Nigel Stepney (a Ferrari employee) was extensive and regularly exchanged.  At the hearing and in its written submissions, McLaren regularly downplayed Coughlan’s role within the team and generally tried to exculpate itself from punishment without any acknowledgment of wrongdoing.  For example, after the July 26 hearing, Coughlan’s supervisor at McLaren, a Mr. Neale, set up a firewall “to prevent further contacts from Stepney and Coughlan was directed to cease contact with Stepney…[soon] thereafter, Coughlan attempted to show some photographs to Mr. Neale which…suggested…that they should not have been in Coughlan’s possession. Rather than establish the facts and take appropriate action as his superior at McLaren, Mr. Neale advised Coughlan to destroy the photographs.”

The WMSC then found “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.”  McLaren made no effective arguments as to change of team functions nor mitigating factors as to the penalties imposed for the rule-breaking.  The removal of team points for 2007 and subsequent fine of $100 million (“less any sum that would have been payable by Formula One Management Limited on account of McLaren’s results in the 2007 Constructors Championship had it not been excluded”) was a reaction to the blatant attempt by McLaren to hide its rule-breaking and the ineffective and unseen attempts to change the culture of the team.

McLaren learned its lesson early this season, when caught lying to the stewards at the Australian GP.  As written at On Any Sunday, These Days when discussing the apparent Renault legal strategy September 16, “at the Australian GP, Dave Ryan and Lewis Hamilton were found to have lied to race stewards following the race regarding a passing under yellow incident between Hamilton and Jarno Trulli.  Before the WMSC hearing, McLaren suspended, then fired Sporting Director Dave Ryan, as the senior member of the team (and only other team member present before the stewards other than Hamilton) for the responsibility of misleading the stewards.  Subsequently, the three-race ban imposed on the team as punishment was suspended for “the open and honest way” then team principal Ron Dennis approached the hearing and the ‘change in culture which he made clear has taken place in his organization‘ (i.e. sacking Ryan), so long as they kept their noses clean in the future.”

Renault learned McLaren’s lesson and ensured that it removed the offending parties from the team and did not dispute the charges when before the WMSC, while reminding the Council of various mitigating factors.  Of course, the team also benefited from the current economic climate in that it is clear that Formula1 cannot stand for the withdrawal of yet another manufacturer with Honda and BMW already gone for 2010, and possibly Toyota to follow.

Still, from a legal standpoint the recent WMSC decision was spot on, and perfectly correct.  There are few comparisons to be made between this decision and the (admittedly outrageous) $100 million fine for McLaren two years ago.  Also rarely mentioned is the “significant contribution” to FIA safety works that will essentially be a fine for the car company Renault.  The Briatore and Symonds punishments are, however, another story.  Technically not license holders of the FIA, they cannot be punished by the WMSC, and their sentences are particularly worded so that the punishment falls on any team or entrant that might hire either man.  Whether their indefinite and five year bans, respectively, are fair is a matter for public opinion.  The suspension of the indefinite Renault F1 ban is legally correct, even if the F1 world is out for blood.

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