15/02/2017
NEWS STORY
The takeover of Formula One by Liberty Media could be at risk due to a vote yesterday by the European Parliament for an "immediate investigation" into the deal due to claims that it broke the law.
The European Parliament is essentially the government of Europe and it voted on whether to approve its annual Competition Report which lists areas that it recommends investigating. F1 is one of them as paragraph 144 "calls for an immediate investigation into competition concerns arising from the Formula One motorsport industry."
It was approved with an overwhelming majority of 476 in favour compared to 156 against and it seems the clock is now ticking down to a full-blown investigation by lawmakers at the European Commission (EC).
Much of the coverage of the implications of this has focused on the possibility of the EC tearing up F1's agreements with the teams which give more prize money and governance rights to the top performers. The need to do this was at the core of a complaint to the EC made by Sauber and Force India in 2015 but it is far from the most serious consequence that an investigation could have. The ownership of the sport itself is at stake.
The investigation into F1 has been driven by British politician Anneliese Dodds who represents South East England in the European Parliament. Both Caterham and Manor were based in her region when they crashed into administration in 2014 and Dodds is adamant that their collapse was fuelled by F1's allegedly inequitable structure.
"I'm happy that today the European Parliament backed my call for a full and immediate investigation into anti-competitive practices in Formula 1," said Dodds yesterday. "A few weeks ago Manor Racing became the latest team in the south east of England to collapse after administrators failed to find a buyer.
"Smaller teams are unfairly punished by an uncompetitive allocation of prize money that will always give the biggest teams more money," she added, "even if they finish last in every race."
But that's not all.
"The problems in Formula 1 extend well beyond the allocation of prize money," she insisted. "As well as serious concerns being raised about an agreement with HM Revenue and Customs that allowed the sport to pay an effective 2 percent tax rate and also significant conflict of interest over the recent sale of the Sport to Liberty Media, after the regulator received a $79.5m profit from authorising the sale."
Dodds is referring to a 1% stake in F1's parent company Delta Topco which was granted to the FIA for just £300,000 ($458,197.34) on 22 July 2013. It was a cut-price deal as the FIA was informed at the time that the stake was worth £45.6m.
The FIA didn't acquire the 1% stake from one of the owners of Delta Topco but from the company itself which was controlled by the investment firm CVC. CVC owned a 38.1% stake in Delta Topco, worth around £2.4bn but in order to cash in its shares it needed the FIA's approval. CVC's chosen buyer was Liberty which paid £6.4bn for F1 and the FIA gave its approval to the sale last month. It has fuelled the claim that there was a conflict of interest at the heart of the sale.
Liberty's purchase price put a £64m ($80m) value on the FIA's 1% leaving it with a £63.7m ($79.5m) profit after deducting the £300,000 cost of buying the stake. However, the FIA couldn't cash it in whenever it wanted. Instead the stake came with the crucial condition that it could only be monetised in the event of a sale by CVC and this required the FIA's approval.
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.
The FIA knew that if it approved the sale it would make a net profit of £63.7m on its stake and the only way it could get it was by approving the sale. CVC on the other hand needed the FIA's approval in order to sell its stake and make £2.4bn on it. Liberty needed the approval to buy F1 and it paid a total of £64m to the FIA.
Liberty is listed on the Nasdaq stock exchange in New York and repeatedly disclosed in its filings that the FIA's approval was needed to close the deal. However, it didn't highlight the fact that the FIA has a stake in F1 and that Liberty would therefore be paying the regulator if it approved the deal.
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. There is nevertheless no doubt that Liberty was aware of the FIA's dual roles as a Delta Topco shareholder and the regulator which needed to approve the takeover.
Liberty needed to know the identities of all of the shareholders to pay them and it needed to know the hurdles standing in the way of the takeover to know when it had the green light. Speaking with analysts in November Liberty's CEO Greg Maffei made it very clear that he and F1's new chairman Chase Carey directly negotiated with the FIA.
"Chase Carey and I have met with the FIA, in particular, Jean Todt, the head of the FIA, several times and had good conversations with him. We're proceeding forward with the necessary processes they have for change of control, and I have every reason to believe we'll have a favourable outcome," said Maffei.
As Pitpass has reported, Carey came across as being comically flustered last month when ITV's News at Ten questioned him on whether he thought the 1% was a conflict of interest. He denied that it was but provided no justification for this. Others disagree.
Tim Owen QC, a public and criminal lawyer at London's Matrix Chambers said 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."
Last month, another British politician, Damian Collins added his name to the list when he told News at Ten that he believes it is a "severe conflict of interest." If they are all right it could raise questions about the FIA's decision to approve the sale as Clause 2.2.2 of its ethics code states that "FIA Parties and Third Parties may not perform their duties in situations involving an existing or potential conflict of interest."
If was a potential, let alone an actual, conflict of interest, for the regulator to approve the sale of a sport in which it had a stake then according to the FIA's own ethics code, its representatives "may not perform their duties." However, they most certainly did perform their duties by approving the sale. If they shouldn't have done this then it could call into question whether the takeover was valid.
What's more, as News at Ten reported, if the FIA broke its ethics code then in turn it may have broken a warranty it gave to Liberty Media stating that entering into the deal would not cause it to break "any deed, agreement or arrangement to which it is a party, under which it enjoys rights or by which it is bound." All it takes is for the EC to confirm that the FIA did indeed have a conflict of interest and the legality of the sale to Liberty could be thrown into doubt.
Remarkably this isn't the only threat that an EC investigation poses to Liberty's ownership of F1. A recent article by Christian Sylt in the Daily Mail quotes Dodds saying "it looks extremely likely that the FIA have broken an agreement struck with the European Commission in 2001 regarding commercial conflict of interest."
She was referring to the conclusion of a previous EC investigation 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 £217.5m for a period of 100 years beginning in 2011. This is why the FIA had no shares in F1 when it bought the 1% stake.
Selling the rights 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."
Perhaps ironically, Liberty doesn't just acknowledge the need to abide by this key change but says that F1 would be at the mercy of the EC if it didn't. Its filings state that "following these modifications and changes, the EC issued two comfort letters to Formula 1 in October 2001 stating that Formula 1 was no longer under investigation. Comfort letters are not binding on the EC and if it believes there has been a material change in circumstances, it could take further enforcement action." It now appears to be at risk of this as 12 years after the FIA sold the rights to F1 it acquired a 1% stake in the rights holder.
Max Mosley, who was president of the FIA when it signed the settlement with the EC, has said that he believes the 1% stake "is a breach of the agreement with the European Commission." Echoing this, Dodds wrote last month to the EC's Competition Commissioner Margrethe Vestager to say 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."
A spokesperson for the FIA 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 £63.7m was revenue for it so it is unclear how its corporate status could be relevant to this. The issue at the heart of the matter is that if the FIA hadn't approved the sale it wouldn't have got the £63.7m. Liberty needed its approval to buy and CVC needed it to sell. Nothing in the statement from the FIA seems to justify this.
In fact, the key justification which has been given for this is that CVC was originally planning to sell up through a flotation of F1 and this would not have needed the FIA's approval which is entirely true.
However, the flotation effectively got the red light just five days before the deal with the FIA was signed as this is when F1 supremo Bernie Ecclestone was charged with paying part of a £26.6m bribe to German banker Gerhard Gribkowsky to steer the sale of F1 to CVC in 2006.
On 27 June 2012 Gribkowsky was found guilty of receiving a bribe and newspapers reported that in light of the outcome "German police were considering whether to prosecute" Ecclestone. On 17 July 2013 CVC issued a press release confirming that Mr Ecclestone had received a bill of indictment, in English, from the Munich Regional Court and this effectively put the brakes on the Initial Public Offering (IPO). It would be almost inconceivable to successfully float a company which has a boss who is facing the possibility of jail time as a result of criminal charges for bribery.
Renowned business magazine The Economist put this to Delta Topco in a report last month and a spokesperson replied to say "there can be no inference" that the transfer of the 1% was an inducement to the FIA to approve a sale. It said "no such transaction was contemplated" at the time because Delta Topco was still "contemplating and preparing for an IPO." The spokesperson added that the timing of the July 2013 deal with the FIA was not connected to the indictment of Ecclestone but was "the result of a 12-month negotiation."
The case against Ecclestone was settled in 2014 with the judge in Munich saying that "prosecution of the defendant due to bribery is not probable." By then CVC had changed its direction. Its co-chairman Donald Mackenzie told Reuters in November 2013 that the company had "no plans" to float F1 in the imminent future. Instead CVC was considering exiting through a sale which is exactly what ended up happening.
So if the defence of owning the 1% hinges on F1 floating then surely the FIA should have returned the shares, not cashed them in, when it became clear that the sport would be sold instead. That is one of the many issues which the FIA, Liberty and CVC must now wrestle with as the future of F1 is now in the hands of the authorities.
This is just the start as, despite the claims of some, it simply isn't possible for the issue to disappear. None of the parties can travel back in time to stop the deal happening. It was done in 2013 when the FIA accepted the shares fully in the knowledge that it had to approve the sale. This was then embedded last month when the FIA gave the green light and it is what could now force the EC into launching a full-blown probe. They have made their bed and now they have to lie in it.