06/07/2008
NEWS STORY
Just when you thought it was safe to go back in the water 'spygate' is back... with a vengeance. An article in today's Independent on Sunday reveals that the FIA's decision to give McLaren a $100m fine last year may be void due to what appears to be a very public breach of the governing body's own rules.
The article was co-authored by Pitpass' own roving business reporter Chris Sylt but this one was so big that even Sylt needed to call in specialists to write the piece with him. And it is the specialists co-authoring the piece who give it quite a punch since they are some of the most respected motorsport lawyers Avnish Shah and Jonathan Lux with the latter having worked with some of motorsport's most senior figures.
The argument they raise not only turns last year's spy saga decision on its head but also casts doubt on pretty much any decision made in recent years by the FIA's World Motor Sport Council (WMSC), the body which decides on sporting disputes. As can often be the case with these type of legal matters, the devil is in the detail and in this case we have to look to the FIA statutes - the rules which govern the federation itself. The breach seems to be so public that it is sitting there for all the world to see.
According to Article 14 of the Statutes, the WMSC "shall consist of... a total of 26 Members who, with the exception of the President of the FIA, must represent an ASN having at least one event entered on the International Sporting Calendar of the current year." Yet it doesn't seem that this has been followed.
ASN stands for Association Sportif Nationale, or National Motorsport Association. It is the national organisation which governs motorsport - in the UK for example, the ASN is the Motor Sports Association. However not all the WMSC members represent an ASN despite the FIA Statutes demanding that they should.
Both F1 boss, Bernie Ecclestone and former Ferrari team principal Jean Todt, sit on the WMSC but do not represent an ASN. Ecclestone voted on the spy saga hearings and in fact was one of those who pressed for McLaren to be hit with the financial penalty as he told the BBC after the verdict: "a few of us sort of battled on and campaigned for the fine." And although Todt didn't vote on the McLaren case, his authority to vote on other matters that the WMSC hears remains open to question given that he doesn't represent an ASN. The upshot of this could be extremely serious.
There is a legal principal, known as ultra vires, which states that a decision-making authority may not act outside its powers. If any members of the WMSC fail to meet the requirements of Article 14, it has no jurisdictional basis to act since the statutes are the source of its power. Any such decisions by the WMSC would be ultra vires and possibly void.
So how on earth could this have happened? Perhaps the FIA may say that Ecclestone is a WMSC member by right and so doesn't have to represent an ASN but the way that the statutes are written doesn't even contemplate that. In fact, quite the opposite seems to be the case as the crucial clause in Article 14 states in full that:
"A total of 26 Members who, with the exception of the President of the FIA, must represent an ASN having at least one event entered on the International Sporting Calendar of the current year, of whom 21, with the exception of the President, the Deputy President and the 3 Members by right, shall be of different nationalities."
So, in the same part of the statutes which mentions the need to represent an ASN, there is an exemption made for the members by right from having to be of different nationalities. However, there is no reference made the members by right being exempt from having to represent an ASN.
Perhaps the FIA may say that the clause in the Statutes has a typing error in it. That could hardly be believed given how specifically-worded it is. More to the point, the Statutes were previously worded in a different way which did not include the requirement to represent an ASN as the following quote from the set of Statutes adopted in 2002 shows:
"The World Motor Sport Council shall consist of... a total of 24 Members who must be nationals of a country having at least one event entered on the International Sporting Calendar of the current year, of whom 20, with the exception of the President and the 3 Members by right, shall be of different nationalities."
The alteration to the current wording of the Statutes clearly seems to have been deliberate and far from a typing error.
However, regardless of any such suggestion of a typing error, the Statutes are worded as they are and the bottom line is they clearly state that only the president is exempt from the requirement to represent an ASN. Nevertheless, Ecclestone does not.
In fact, it would be a conflict of interest for Ecclestone himself to represent an ASN since he often deals with them in negotiations over new Grand Prix contracts. Following an EC anti-competition investigation in 2001 Ecclestone resigned from many similar positions on the FIA "in order to achieve a more complete separation between sporting and commercial matters." And although his position on the WMSC was allowed under the EC's modifications, the wording of the statutes does not permit this.
This reveals a good reason why WMSC members may be required to represent an ASN which is to minimise conflicts of interest. By being involved in the governance of the sport, ASN representatives naturally have limited commercial involvement.
It should be stressed that both Lux and Sylt raised with the FIA the matter of Ecclestone's WMSC appointment seeming to breach the statutes. Neither party received a reply to their enquiry.
It would be quite understandable if McLaren had not noticed this matter when preparing for its WMSC case. After all, when you're in court defending yourself you concentrate your efforts on demonstrating why you are innocent. You don't expect the jury to be invalid as it is up to the court to ensure that it is not.
So how does this affect the man down the pub? McLaren paid the first $50m of its fine by the due date of 13 December 2007 with the rest being paid earlier this year. In the aftermath of the fine the team said it wouldn't appeal the decision but how it will handle this staggering new development is anyone's guess.
Failure to challenge at the time leaves those possibly flawed decisions in place but the question mark over them remains. Given the fact that this doesn't only apply to the McLaren decision but also any others made whilst the Statutes were being breached, carrying out a redrafting of the statutes should certainly now be at the top of the FIA's agenda.