05/02/2017
NEWS STORY
Last month American investment fund Liberty Media completed its historic takeover of Formula One but according to an article in the Daily Mail by Christian Sylt that may not be the end of the story.
This is because a British politician has written to the European Commission (EC) demanding an investigation as she believes it was "extremely likely" that the £6bn ($8bn) deal broke EU law.
As any seasoned follower of Formula One knows, deals aren't really done and dusted even when the ink is dry on the contract. Four years ago London's High Court was home to a case which focused on the claim that the sale of F1 to the investment firm CVC seven years earlier was in fact illegitimate as a bribe had been paid to steer the sport to its new owner. The judge made international news by claiming that a bribe had indeed been paid and it triggered years of lawsuits, the most recent of which was only settled a matter of weeks ago.
The episode served to show that something which may seem to be cut and dry in F1 could actually be subject to scrutiny years later. It wasn't the first time it had happened.
Over the years we have seen press releases issued about the sale of teams which in fact hadn't been sold at all, announcements by teams of new drivers who didn't end up joining and even statements about the launch of a rival series which never happened… and then there was New Jersey. So, against this backdrop perhaps it shouldn't come as a surprise to hear that the latest big development in F1 may not be set in stone.
The question mark comes from Anneliese Dodds, Member of the European Parliament for South East England. She claims that motor sport's regulator, the FIA, had a conflict of interest when it approved the sale of F1 to Liberty. Dodds has written to Margrethe Vestager, the EC's head of competition, demanding a probe into the sport and before anyone cries 'Brexit', it's worth remembering that the FIA is based in France so an investigation would be unaffected by Britain's decision to leave the EU.
The letter from Dodds refers to a 1% stake that the FIA owned in F1's parent company Delta Topco. In 2013 the FIA paid just £293,096 ($458,197.34) to buy the stake from Delta Topco, which was controlled by CVC. At the time of the purchase the FIA was informed that its stake had a market value of £46.4m (€54m) but it couldn't sell up whenever it wanted.
Instead, the 1% stake came with the crucial condition that it could only be cashed in when CVC sold its own shares in Delta Topco and in order for this to happen the FIA had to give its approval. That is exactly what it did last month and when Liberty Media offered £6bn to buy Delta Topco. CVC pocketed £2.3bn ($3bn), in line with its 38.1% stake, whilst the FIA made a £59.7m profit after deducting the cost of buying the 1%.
The terms accompanying the stake clearly state that it may only be monetised in the event of a sale by CVC so the only way the FIA could get the £59.7m was if the sale went ahead and that required its approval. As Pitpass has previously reported it left lawyers in shock.
Charles Braithwaite, the highly respected sports lawyer at City firm Collyer Bristow, said that "if the FIA approves the sale, people may question whether the approval was driven by the desire to get the multi-million sale proceeds from the sale of its share; despite the fact that the FIA is the governing body and regulator of Formula One and so one would expect it to be independent and to act in the interests of the sport rather than its own interests."
Tim Owen QC, a public and criminal lawyer at London's Matrix Chambers added that "no regulator exercising quasi-judicial powers can have a financial interest in the very subject matter it is supposed to be regulating as an independent, unbiased body...Once a financial or proprietary interest is established, the risk of bias is presumed."
Another sports lawyer, Kevin Carpenter, added that "taking that stake in the first place in September 2013 was a prima facie breach of the 2001 settlement made with the EU." He was referring to the conclusion of an investigation by the EC which began in 1999 and focused on claims that the FIA favoured F1. The commercial rights to F1 are ultimately owned by the FIA but in 2001 to distance itself from the series it sold them for £218m ($313.6m) for a period of 100 years beginning in 2011.
This pacified the EC which released a statement in October 2001 saying that "the FIA agreed to modify its rules to bring them into line with EU law...The modifications introduced by FIA will ensure that the role of FIA will be limited to that of a sports regulator, with no commercial conflicts of interest...To prevent conflicts of interest, FIA has sold all its rights in the FIA Formula One World Championship."
Max Mosley, the president of the FIA who made the agreement with the EC, has said that he believes the 1% "is a breach of the agreement with the European Commission." Dodds shares Mosley's view as she makes clear in her letter to Vestager. Its says that the FIA's "ownership of shares in the sport it regulates conflicts with the 2001 agreement between the FIA and European Commission; a view shared by the president of the FIA at the time."
Dodds told the Mail that "the sale of Formula 1 appears to have returned its regulatory body a return of $79.5m profit on a $500,000 investment in less than four years. Given that this return was only payable if Formula 1 was sold to a new owner, and that they were the body that had to approve any sale, it looks extremely likely that the FIA have broken an agreement struck with the European Commission in 2001 regarding commercial conflict of interest."
If Dodds is right it could raise questions over the FIA's decision to approve the sale as Clause 2.2.2 of its ethics code (pdf) states that "FIA Parties may not perform their duties in cases with an existing or potential conflict of interest."
There is no suggestion that Liberty wasn't a suitable buyer but it didn't make its first approach to CVC until September 2013 so when the FIA acquired its 1% stake two months earlier it could not have known for certain who would buy F1. What the FIA did know is that if CVC decided to sell F1 it would need to give its approval and if it did it stood to pocket tens of millions of Pounds.
The exception was that if F1 was floated on a stock exchange the FIA didn't need to give its approval. CVC did indeed plan to float Delta Topco on the Singapore stock exchange in 2012 but this effectively got the red light due to the bribery trial in 2013. It put CVC on a course to exit F1 through a sale and Liberty ended up being the lucky buyer. It needed the FIA's consent to buy the business and that same consent was needed by CVC to sell.
A total of £60m in cash and shares from Liberty has been paid to the regulator which approved its takeover. Liberty is listed on America's Nasdaq stock exchange and repeatedly disclosed in its company filings that the regulator's approval was needed to close the deal. However, it didn't highlight the fact that the regulator has a stake in the sport and would therefore be paid by it as a result.
There is no suggestion that this was improper and it is not clear whether Liberty had to itemise in its filings all of the shareholders in the company it was buying. If the F1 takeover stays on track then Liberty's shareholders will have no reason to complain but if it skids off course they are likely to start asking more questions.
It all turns on whether it was a "potential conflict of interest" for the FIA to decide whether to approve the sale of a sport which gave it a £59.7m profit as a result of it proceeding. If was a potential, let alone an actual, conflict of interest, then according to the FIA's own ethics code, "FIA Parties may not perform their duties." It isn't possible for the FIA to travel back in time to undo its approval of the deal or the handing over of the 1% so this isn't a matter which can disappear, especially now that the government is involved. And not just one politician either.
Last month another politician claimed that this was a "severe conflict of interest" and also wrote to Vestager about it so the letters are coming thick and fast. As Pitpass reported ITV's News at Ten put it to F1's new boss Chase Carey that the FIA is "the regulator. They are meant to be at arm's length from the sport and they stand to gain from approving the deal. Isn't that a conflict of interest?" He replied with a no but the reason he gave can only be described as a non sequitur – something which doesn't logically follow.
Looking flustered Carey said "No. I think they have regulated the sport from what I have seen. My experience with them is a handful of months. They regulate the sport in a fair and even-handed way." That's as may be but it doesn't explain why it isn't a conflict of interest for a regulator to decide whether to approve the sale of a sport in which it has a stake.
The FIA concurs with Carey and says: "The FIA would like to make clear that there is no conflict of interest with regard to its decision to approve the change of control of the Formula 1 World Championship. The FIA is a not for profit organisation with the regulation of motor sports as our sole concern and we are confident the new owners will oversee an exciting new chapter for F1 [sic]"
The FIA is indeed not-for-profit but the £59.7m was revenue to the federation so it is unclear how its corporate status could be relevant to the matter. The issue at hand is that if the FIA had not given its approval to the takeover then the proceeds from the 1% stake would not have been received by the federation. This is the dilemma that is not going away and this is what has fuelled claims from lawyers of there being a conflict of interest.
To give an example, if the British Board of Film Classification (BBFC), which is another not-for-profit organisation, had a stake in the proceeds of a film it was assessing it could introduce the risk of bias. It could be accused of giving the film a lower rating in order to open it up to more viewers and boost sales.
It is therefore perhaps no coincidence that a spokesperson confirms that "the BBFC holds no stake in any of the content it classifies and receives no additional income from a film as a result of its box office performance. Consequently the success of a film at the box office has no impact on the classification decisions made by the BBFC."
Time will tell whether the EC or any other bodies decide that the FIA should have followed suit.