June 20, 2013

The Tribunal

Ross Brawn and Mercedes contacted Charlie Whiting at the FIA for permission to use its current car © Getty Images

The FIA International Tribunal was certainly an interesting way to spend a day, even if a lot of the deliberations sounded like re-rehashing of the same old points.

First, the FIA took to the stage – so to speak – outlining their case against Mercedes and Pirelli. Then lawyers for both defendants had their chance to put their cases forward, arguing that the ‘secret Barcelona test’ had – as far as they were aware at the time – complied fully with the FIA rulebook.

At the time of typing, no decision has yet been made public, and no decision is expected until Friday.

But from where I’m sitting (the Salle de Commissaires at the FIA headquarters, if you’re wondering), it looks like it will be very difficult for the Tribunal to issue either Pirelli or Mercedes with more than slaps on the wrist.

Whatever the official procedure for establishing whether or not something is legal in the Sporting Regulations, the accepted procedure has long been that the questioning party check with Charlie Whiting, who then refers the question to the FIA’s legal department should he think it necessary to do so.

According to the Mercedes lawyers – and not denied by anyone from the FIA – the Brackley-based team not only asked Whiting for permission to test with a 2013 car, but that when the race director gave his approval, they then asked for him to confirm the decision with the FIA legal department, which he did.

Both Whiting and Sebastien Bernard gave Mercedes explicit permission to test with a current car. Neither Whiting nor Bernard gave Mercedes any indication that their approval was not good enough, that they needed to put the matter to the World Motor Sport Council before official permission could be presumed.

Given that, how can Mercedes be punished for breaking a rule when it is patently clear that they took every step they thought necessary to ensure legality? As Paul Harris QC said in his closing statement to the Tribunal, Mercedes would not have gone ahead with the test had they been given the slightest indication from the FIA that to do so would get them in any sort of trouble.

It’s a pretty convincing argument…


Posted by Tee on 22/06/2013

This is truly silly. The question I would like to know is why did Merc ask for something so obviously and explicitly against the rules, and then also ask for a second approval from legal? If I ask the management at my bank if its okay to steal some money, just because I can get someone to approve it, doesn't absolve me of the responsibility that its still stealing. The FIA and Charlie should never have approved it, but Mercedes should also not asked for it. The rules are clear as they can be. Has it simply come down to F1 rules all being merely circumstantial? As for those trying to blame Ferrari for FOLLOWING THE RULES by running a two year old car, you are simply trying to villainize them out of a bias. The rules here are also clear, and Ferrari followed them. The truth is, it doesn't really matter if Merc gained an advantage or not. We can never really know for sure something so ambiguous. What we DO know are the written rules, and who did and did not follow them.

Posted by Ahmed Ginnah on 21/06/2013

The Tribunal did not discuss the issue of Ferrari using its 2011 car. In a nutshell, the Rules allow one to test a 2 year old car, and not to be driven by its regular driver and NOT at a circuit used in the current year. If one reads the judgment laid down by the Tribunal, it rotates around the main issue, which was the fact that Mercedes used their 2013 car, the W04, at the wheel of their present drivers, Hamilton and Rosberg, for the three day test, thus breaching the regulations. Ross Brawn, can u believe it, says that no information of VALUE was received by its drivers and the team, in, during and after the 3 day test. What a farce. Notably Mercedes admitted being the guilty party of the said test, and penned its own penalty. WOW, what a disgrace. Now Hamilton may be able to win a race.

Posted by Mark on 21/06/2013

You are absolutely CLUELESS!

Whiting NEVER gave any permission for Mercedes to test. He told them it "might" be permissible, but he never AUTHORIZED the test.

Posted by George on 21/06/2013

Let the teams who have not sinned cast the first stone!!!

Posted by Maurice on 21/06/2013

Well the FIA have successfully undermined Charlie Whitings position, which is terrible in my opinion.

Posted by Hal on 21/06/2013

If the content of this article is true, I don't see how Mercedes could decently be charged.

We can always look at the whole regulation book, and debate each point of it. Some will put forward one rule to prove they were right, others another rule to prove their are guilty. That's typical F1 game, every team seek for the limits of regulation.

But if Merc specifically asked CW for the approval and on top of that asked a second time for the approval of the FIA legal department... Man, they did try for real !

Posted by Darren on 21/06/2013

Your take on this issue is the calmest, most balanced and sensible sounding report on this issue I have read to date.

Posted by Prakhar on 21/06/2013

If this is true and they don't get any sanctions then Ferrari and Red Bull will be lining up to do their own tests with Pirelli.

Posted by redhead on 21/06/2013

if mercedes circumvented the rules, its safe to say ferrari broke them as well. their car falls within the specification of the 2013 car. so its ok for ferrari to break rules and everyone else should be punished. those of you who are aware, ferrari is the only team in f1 who can veto changes.... hmmmm

Posted by Richard on 21/06/2013

They have no case against MERC. Merc did not test. Pirelli tested. Merc should not even have a slap on the wrist but with Christian Whiner and the boys in Red crying, they expect the FIA has to do something. FIA needs to slap itself on the wrist and clarify its rules and ban all in season testing to include the tire manufacturer, because we all know this in and of itself will make it a better sport.

Posted by Hammy Fan-Boy on 21/06/2013

Brawn's an evil genius! Mercedes shall prevail!

Posted by Don Woodrow on 20/06/2013

The chain of contact for the teams is through Charlie Whiting, it is his job to (if he feels it is necessary) to refer the matter to the FIA's legal council, then the W.M.S.C if further clarification is needed. As he did not refer to the W.M.S.C. the buck stops with him.
Mercedes did exactly what they were required to do under the sporting regulations.

Posted by Erion on 20/06/2013

I think Ferrari is more guilty than Mercedes, even though they used a 2011 car.
Ferrari deliberately tested the 2011 car to gain knowledge on tyres, they even paid for the circuit..
In the case of Mercedes, Pirreli asked Mercedes to run tests, so this was Pirreli test.
I am not aware that you are allowed to run private tests with a 2011 car, if that's allowed, then everybody will start running private test, this is an oportunity that teams like Redbull will never miss.
If Mercedes comes out guilty, then ferrari is as gulty as Mercedes, you can't separate these 2 cases.

Posted by Flavio Parigi on 20/06/2013

Today we know that: a)Whithing and the legal dep of Fia gave the ok to Merc but apparently are not in title to give the permission. Who is in title?
b) Merc has the permission from these 2 person and reveal this only at the moment that the tribunal is on and why not before? c) They say that Ferrari was in default because use 2011 and there is no difference between the 2 car and why Merc don't use the 2011 car, d) Then they say that also Ferrari in 2012 made a secret test and they reveal only now in the middle of June 2013 I'm the only person that think that all this story doesn't make any sense at all?

Posted by Viraj Ambetkar on 20/06/2013

If the regulations clearly state that a 2013 or 2012 spec car cannot be used for in-season tests, and Mercedes willfully used a 2013 car with current racing drivers, it's a breach of regulations - irresp. of whether Charlie Whiting or the FIA legal dept. approved it or not. There is no convincing argument there. With Mercedes' resources, it could have done due diligence in the matter, followed up with WMSC, and convinced FOTA. But it deliberately chose not to do any of the above - which is extremely unfair to the other teams. Ferrari did conform to regulations in a similar scenario.

Mercedes is squarely at fault here. FIA should also be blamed for this fiasco.

Posted by Derek Aylward on 20/06/2013

And all this is because Ferrari and Red bull are in fear of Mercedes. Ferrari are falling behind with their car expectation, and spoilt brat Horner is no longer getting it easy. They know they are going to fail this season so this is their underhand method of removing Mercedes from the equation. I am sure that somewhere down the line they will find something with the Lotus-Renault, and then they will have scored their hat-trick. Formula 1 is already turning into a political joke, why make it worse ?

Posted by SoundGuy on 20/06/2013

Lets be honest, we all know that Mercedes testing a 2013 car with current drivers is illegal. They were hopeless in the Barcelona race and the change in form is no coincidence after the black helmet tests. If they get away with this F1 is more than broken.

Posted by Russ on 20/06/2013

Mercedes have argued a good case. All they have done is highlight a flaw in the system and procedures. FIA are as much to blame for this and the FIA know it, hence why this was only brought to tribunal after RBR and Ferrari (the teams most threatened) had a hissy fit. FIA were going to let this slide. As the article says, the most they can do is slapped wrists all round, including the FIA. And then we can get on with the 2013 season and another RBR steamroller.

Posted by brian atthews on 20/06/2013

This sounds like a cop out try all round, nothing in writing I take it ? The whole bunch of them should now be charged with 'bringing the sport into disrepute' What must the world be thinking of how this multi billion sport is run ? Cowboy outfit comes to mind !

Posted by Dave A on 20/06/2013

The fact is Mercedes knew or at the very least suspected their actions were outside the rules... why ask for confirmation? And just because you find somebody to say yes to your actions doesn't make it right. Rules are rules and they are there for a reason and getting anyone's approval short of the officals responsible for inforcing the rules is "breaking the rules" CW and SB probaly gave wrong or misleading information but Mercedes knew the rules and finding someone to give their blessing is not enough to expect a slap on the wrist... IMO!

Posted by YoYo on 20/06/2013

So using this logic, I hear that Red Bull will be testing a new beverage hydration system on behalf of their drink supplier.

And Force India will be testing new wings for their airline supplier.

And Ferrari will be testing a new delivery system for UPS.

All legit since it is not the team undertaking the test.

Posted by Ian Billings on 20/06/2013

You are the same person, who also claimed Ross Brawn was so clever and had something up his sleve.

How is that working out for you?

Btw, your defence of Ross Brawn and Mercedes is sickening. Vomit inducing.

Ask Ross Brawn about the FOTA statement from April 2012 and the Concord Agreement, he signed earlier this year.

Both clearly and explicitly closes that very loop hole, Ross Brawn now went after.

He signed a document saying, he would not use a tyre-test as an excuse for in-season testing.

And what did he then do? Ran out and did exactly that.

Not a man of this word nor signature, I conclude.

Posted by Rick on 20/06/2013

"According to the Mercedes lawyers – and not denied by anyone from the FIA – the Brackley-based team not only asked Whiting for permission to test with a 2013 car, but that when the race director gave his approval, they then asked for him to confirm the decision with the FIA legal department, which he did.
Both Whiting and Sebastien Bernard gave Mercedes explicit permission to test with a current car."

If this is the case then FIA and in particular Whiting and the FIA legal department screwed up. They should have referred them to the WMSC. If even Whiting and the legal department didn't think of that how could you expect Mercedes or Pirelli to think of that?

Maybe the bigger issue here is that the FIA has a very unclear structure and there should be something done about that.

Posted by Sal Rotella on 20/06/2013

Does this mean that Charlie and/or Sebastien will be brougth before the WMSC for their actions?

Posted by dpioe on 20/06/2013

its a nice story blog, but as the FIA have mentioned, they still broke the rules, and Mercedes should have checked with the World Motor Sport Council. but Mercedes deliberately avoided that and searched for the loophole (that only whitings word is needed). by the end of the hearing Mercedes pretty much admitted guilt by "suggesting" possible penalties for their part in this.

Posted by CELESTE on 20/06/2013

You can´t argue you don´t know the law, and you can´t argue you thought the good cop gave you permission to break the law. Mercedes defense is trying to take FIA and the fans for fools to say the least.

And Pirelli is totally missing the point, they helped another team, they have contract with FIA, FOM and all 11 teas so they break all those

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Kate Walker is the editor of GP Week magazine and a freelance contributor to ESPN. A member of the F1 travelling circus since 2010, her unique approach to Formula One coverage has been described as 'a collection of culinary reviews and food pictures from exotic locales that just happen to be playing host to a grand prix'. Kate Walker