E' inglese, intraducibile con i moderni traduttori. Sorry.
FEDERATION INTERNATIONALE DE L' AUTOMOBILE
World Motor Sport Council
Decision
Re: Article 151(c) International Sporting Code – Vodafone McLaren
Mercedes
13 September 2007
The World Motor Sport Council (“WMSC”) met on 13th September 2007 to consider a
charge that Vodafone McLaren Mercedes (“McLaren”) had breached Article 151(c) of
the International Sporting Code.
1 Background
1.1 Scuderia Ferrari Marlboro ("Ferrari") has submitted that it received information
on 24 June 2007 suggesting that unauthorised use may have been made of certain
of its confidential information. Ferrari has submitted that it subsequently learned
that certain of its confidential information had come into possession of Mr.
Michael Coughlan (“Coughlan”), the then Chief Designer of McLaren.
1.2 On 3 July 2007, in the context of litigation in the High Court of England and
Wales ("High Court Proceedings") between Ferrari and Coughlan, a search was
undertaken at the private residence of Coughlan under the authority of that Court.
According to the evidence before the WMSC, during that search, a dossier of
some 780 pages of confidential information belonging to Ferrari was recovered.
1.3 In light of the results of the search, Ferrari wrote to the FIA late on 3 July 2007
inviting it to consider whether the FIA should launch an investigation into the
matter.
1.4 After preliminary investigations, on 12 July 2007 the FIA wrote to McLaren
requesting it to appear at an extraordinary meeting of the WMSC in Paris on 26
July 2007 (“the 26 July WMSC meeting”). McLaren was informed that, at the 26
July WMSC meeting, it would be asked to answer the charge that between March
and July 2007, in breach of Article 151(c) of the International Sporting Code, it
had unauthorised possession of documents and confidential information belonging
to Ferrari. In particular, McLaren was charged with the unauthorised possession
of one or more of the following technical documents that could be used for one or
more of the following purposes: designing, engineering, building, checking,
testing, developing and running a 2007 Ferrari Formula One car, including
drawings, lay-out and digital mock-up schemes, technical documents and reports
and procedures relating, amongst other things, to weight distribution,
aerodynamics, component designs, suspension, gearbox, hydraulic, water, oil and
fuel system designs, assembly and building technology designs.
1.5 In response to the charge, McLaren made extensive written submissions in
advance of the 26 July WMSC meeting and made detailed oral argument at the
meeting itself. McLaren did not dispute that Coughlan had come into possession
of Ferrari confidential information but argued, inter alia:
(i) that the Ferrari confidential information in question had not been circulated
within McLaren;
(ii) that McLaren had neither used nor benefited from the receipt by Coughlan of
the Ferrari confidential information; and
(iii) that the actions of Coughlan in receiving and dealing with the Ferrari
confidential information were those of a "rogue employee" for which McLaren
should not be held responsible.
1.6 The WMSC considered the arguments and evidence presented by McLaren at the
26 July WMSC meeting and came to the conclusion that McLaren had been in
possession of Ferrari confidential information and was therefore in breach of
Article 151(c) of the International Sporting Code.
1.7 Although a number of unsatisfactory elements were noted during the
deliberations, in assessing the gravity of the breach, the WMSC concluded that
there was insufficient evidence that the information was used in such a way as to
interfere with the running of the FIA Formula One World Championship ("the
Championship").
1.8 However, conscious of, inter alia, the fact that several related procedures were
ongoing (including, notably, the High Court Proceedings, a criminal investigation
in Italy and various internal forensic investigations at McLaren and Ferrari), the
WMSC explicitly reserved the right to revisit its conclusions if further
information came to light, in particular information showing that Ferrari
confidential information had been used by McLaren to the detriment of the
Championship.
1.9 The following Decision was therefore reached:
“The WMSC is satisfied that Vodafone McLaren Mercedes was in possession of
confidential Ferrari information and is therefore in breach of article 151c of the
International Sporting Code. However, there is insufficient evidence that this
information was used in such a way as to interfere improperly with the FIA
Formula One World Championship. 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.
The WMSC will also invite Mr Stepney and Mr Coughlan to show reason why
they should not be banned from international motor sport for a lengthy period
and the WMSC has delegated authority to deal with this matter to the legal
department of the FIA.”
2 Re-convening of WMSC
2.1 Subsequent to the WMSC Decision of 26 July 2007 (the “26 July Decision”), new
evidence came to light which, in the FIA’s assessment merited consideration by
the WMSC.
2.2 A new meeting of the WMSC was therefore convened for 13 September 2007
(“the 13 September WMSC meeting”).
2.3 All relevant parties (including McLaren and Ferrari) were informed of the new
meeting and were given copies of the new evidence put before the WMSC (in
some limited cases, after redaction of confidential information). McLaren and
Ferrari were invited to make written submissions which have been duly received
by the WMSC.
2.4 Oral submissions and explanations have also been made on behalf of McLaren
and Ferrari and at the 13 September WMSC meeting, the WMSC has put
questions to those concerned. Opportunities were also offered and taken up for
McLaren and Ferrari to cross-examine each others’ witnesses.
2.5 Some of the key elements that the WMSC has considered are set out below. In
light of the strong imperative in the interests of the sport to issue a swift ruling,
the following does not constitute an exhaustive list of the elements considered nor
does it purport to be a summary of all of the evidence put before the WMSC.
3 New Evidence – E-mails between McLaren Drivers
3.1 In the period after the 26 July Decision, the FIA was made aware of a specific
allegation that e-mails relevant to the FIA’s investigation had been exchanged
between certain McLaren drivers.
3.2 The FIA therefore wrote to three McLaren drivers (Mr. Alonso, Mr. Hamilton and
Mr. de la Rosa) to establish whether or not this allegation had any basis in fact
and requested that they produce copies of any relevant documents, including any
electronic communications (howsoever conveyed or stored) which may be
relevant to this case and which make reference to Ferrari, Ferrari’s employee
Nigel Stepney (“Stepney”) or any technical or other information coming from or
connected with either Ferrari or Stepney.
3.3 The McLaren drivers were reminded of their duty as competitors and Super
Licence holders to ensure the fairness and legitimacy of the Formula One World
Championship. Given the importance of establishing the facts and that the
information might not come out any other way, the FIA offered the assurance that
any information made available in response to the letter would not result in any
proceedings against the drivers personally under the International Sporting Code
or the Formula One Regulations. However, the drivers were notified that if it
later came to light that they had withheld any potentially relevant information,
serious consequences could follow.
3.4 All three drivers responded. Mr. Hamilton responded that he had no information
responsive to the FIA’s request. Mr. Alonso and Mr. de la Rosa both submitted emails
to the FIA which the WMSC finds highly relevant. Subsequently (at
McLaren’s request) both Mr. Alonso and Mr. de la Rosa made written statements
to the WMSC verifying that these e-mails were sent and received and offering
context and explanations regarding the e-mails. The e-mails show unequivocally
that both Mr. Alonso and Mr. de la Rosa received confidential Ferrari information
via Coughlan; that both drivers knew that this information was confidential
Ferrari information and that both knew that the information was being received by
Coughlan from Stepney.
weight distribution
3.5 On 21 March 2007 at 09.57 Mr. de la Rosa wrote to Coughlan in the following
terms:
“Hi Mike, do you know the Red Car’s Weight Distribution? It would be
important for us to know so that we could try it in the simulator. Thanks in
advance, Pedro.
p.s. I will be in the simulator tomorrow.”
3.6 In his evidence given to the WMSC, Mr. de la Rosa confirmed that Coughlan
replied by text message with precise details of Ferrari’s weight distribution.
3.7 On 25 March 2007 at 01.43 Mr. de la Rosa sent an e-mail to Fernando Alonso
which sets out Ferrari’s weight distribution to two decimal places on each of
Ferrari’s two cars as set up for the Australian Grand Prix.
3.8 Mr. Alonso replied to this e-mail on 25 March 2007 at 12.31 (they were in
different time zones). His e-mail includes a section headed “Ferrari” in which he
says “its weight distribution surprises me; I don’t know either if it’s 100%
reliable, but at least it draws attention”. The e-mail continues with a discussion
of how McLaren’s weight distribution compares with Ferrari’s.
3.9 Mr. de la Rosa replied on 25 March 2007 13.02 stating the following:
“All the information from Ferrari is very reliable. It comes from Nigel Stepney,
their former chief mechanic – I don’t know what post he holds now. He’s the
same person who told us in Australia that Kimi was stopping in lap 18. He’s very
friendly with Mike Coughlan, our Chief Designer, and he told him that.”
3.10 Mr. de la Rosa’s e-mail to Coughlan specifically stated that he wished to receive
Ferrari’s weight distribution for the purposes of testing it in the simulator the
following day (“It would be important for us to know so that we could try it in the
simulator”). Mr. de la Rosa explained to the WMSC at the meeting of 13
September 2007 that when Coughlan responded with the precise details in
question, he (de la Rosa) decided that the weight distribution was so different to
the McLaren car set up that it would not, in fact, be tested in the simulator. Mr de
la Rosa says that thereafter he regarded the information as unimportant. It seems
highly unlikely to the WMSC that a test driver would take a decision of this sort
on his own. It also is not clear why, if Mr. de la Rosa regarded this information as
unimportant, he would still convey and discuss it with Mr. Alonso some days later
in his e-mail exchange of 25th March. Mr. de la Rosa’s evidence also makes clear
that there was no reluctance or hesitation about testing the Ferrari information for
potential benefit, but only that on this occasion he says that there was a technical
reason not to do so.
3.11 McLaren's Chief Engineer Mr. Lowe gave clear evidence that decisions relating
to simulator testing would normally involve a number of engineering and other
staff (as would running the tests themselves). It seems highly unlikely that
decisions about what would be run in the simulator would by taken by a test
driver on his own.
flexible wing and aero balance
3.12 In the same e-mail exchange of 25 March 2007, Mr. de la Rosa states that tests
had been carried out on a flexible rear wing which Mr. de la Rosa says is “a copy
of the system we think Ferrari uses”. The Ferrari car’s precise aero balance at 250
kph is also identified. While it is conceivable that the former item could have
been copied from observation of the Ferrari car, it is clear from the context of the
exchange (it being part of the information that Mr. de la Rosa describes as being
“very reliable” because it comes from Stepney) that the latter item is confidential
to Ferrari and that it was passed to Mr. de la Rosa by Coughlan, who got it from
Stepney.
tyre gas
3.13 Mr de la Rosa’s e-mail to Mr. Alonso on 25 March 2007 at 01.43 identified a gas
that Ferrari uses to inflate its tyres to reduce the internal temperature and
blistering. The e-mail concludes with a statement (in relation to the gas) that
“we’ll have to try it, it’s easy!”.
3.14 Mr Alonso replied at 12.31 that it is “very important” that McLaren test the gas
that Ferrari uses in its tyres as “they have something different from the rest”, and
“not only this year. there is something else and this may be the key; let’s hope
we can test it during this test, and that we can make it a priority!”.
3.15 Mr. de la Rosa replied on 25 March 2007 13.02 stating the following: I agree
100% that we must test the [tyre gas] thing very soon.
3.16 Although the e-mail exchange between Mr. Alonso and Mr. de la Rosa makes
clear that they both were enthusiastic about trying the gas apparently used by
Ferrari in its tyres, Mr de la Rosa's evidence to the WMSC was that he, on his
own, decided to explore with a Bridgestone engineer whether the McLaren team
should try this gas. He states that he had no other conversations with any other
specialist staff within McLaren. His evidence is that the Bridgestone engineer in
question doubted whether the gas would confer an advantage upon McLaren.
According to Mr de la Rosa, without further consultation with anyone else at
McLaren, and despite the fact that this had apparently been successfully used at
Ferrari, the idea was dropped and no actual attempt was made to test the gas in the
tyres used by McLaren.
3.17 It seems unlikely to the WMSC that a test driver would engage in such
consultations on his own without discussing it any further with anyone else at the
team. It also seems unlikely that a decision on whether to pursue the matter
further would be taken by a test driver on his own. Finally, Mr de la Rosa’s
evidence makes clear that there was no reluctance or hesitation about using the
Ferrari information, but only that on this occasion it was concluded that there
would be no advantage in doing so.
braking system
3.18 On 12 April 2007 at 12.25 Mr. de la Rosa wrote to Mr. Coughlan and asked “ can
you explain me as much as you can, Ferrari’s braking system with the [reference
to detailed technical information]? Are they adjusting from inside the cockpit…?”
3.19 After a number of exchanges about whether a description would be too
complicated to articulate by e-mail, Mr. Coughlan replies on 14 April 2007 at
14.40 with a technical description which purports to be a description of the
principles underpinning the Ferrari braking system. Ferrari have confirmed that
the description given is an accurate (though incomplete) description of the
principles of its braking system. Coughlan concludes with a statement that “we
are looking at something similar”. This latter statement strongly suggests that the
McLaren system was being worked on from a position of knowledge of the details
of the Ferrari system, which, even if the Ferrari system not being directly copied,
must be more advantageous to McLaren than designing a system without such
knowledge.
3.20 The e-mail exchange between Mr. de la Rosa and Mr. Alonso dated 25 March
2007 at 01.43 also describes some aspects of the McLaren braking system and
states that “with the information that we have, we believe Ferrari has a similar
system” and goes on to describe highly specific elements of the Ferrari system
(which cannot be set out here for confidentiality reasons but which clearly
demonstrate knowledge of Ferrari’s confidential information).
stopping strategy
3.21 As mentioned above, Mr. de la Rosa’s e-mail on 25 March 2007 13.02 stated “all
the information from Ferrari is very reliable. It comes from Nigel Stepney, their
former chief mechanic – I don’t know what post he holds now. He’s the same
person who told us in Australia that Kimi was stopping in lap 18. He’s very
friendly with Mike Coughlan, our Chief Designer, and he told him that.
3.22 The evidence before the WMSC is that Mr. Räikkönen (Kimi) actually stopped at
lap 19 at the Australian GP. However, the fact remains that Mr de la Rosa cited
this information as a reason to believe that Stepney was a reliable source of
information. This strongly suggests that McLaren had at least taken account of
this information in determining its own strategy.
3.23 The evidence before the WMSC also demonstrates that Stepney had fed
information through Coughlan regarding which lap one or more of the Ferrari
drivers would stop at during the Bahrain Grand Prix. McLaren has sought to
discredit the significance of this information as it proved in the end to be
inaccurate. However, the evidence before the WMSC was that the safety car had
been deployed early in the race making it likely that stopping strategies would be
adjusted. This deployment of the safety car could not have been known in
advance of the race and the fact that the stoppage predictions proved inaccurate
does not mean that McLaren had not considered and taken account of the
information that had been received in determining its own strategy before the
race.
3.24 In any case, as there is no legitimate context in which another teams’ stopping
strategy would be revealed to McLaren in advance, there is very clear evidence
that both drivers knew that they were receiving unauthorised and confidential
Ferrari information. To the WMSC’s knowledge, no effort was taken to report or
stem this flow.
4 New Evidence – Communications between Coughlan and Stepney
4.1 The evidence put before the 26 July WMSC meeting indicated that a limited
number of contacts had occurred between Coughlan and Stepney. Coughlan’s
affidavit (submitted in the context of the High Court Proceedings) identified a
number of such contacts and described incidents where specific Ferrari
confidential information was transferred to him. The WMSC considered these
contacts but had no specific evidence of further or other contacts. The focus at
the 26 July WMSC meeting was on the circumstances surrounding the
transmission of the 780 page Ferrari dossier discovered at Coughlan’s home.
4.2 New evidence has come to light which strongly indicates that the transmission of
confidential Ferrari information from Stepney to Coughlan was not limited to the
780 page dossier. This evidence demonstrates that a far greater level of
communication existed between Coughlan and Stepney than was appreciated at
the 26 July WMSC meeting. This evidence was submitted by Ferrari and is
deemed credible as it originates from the Italian police and is the result of an
official analysis of records of telephone, SMS and e-mail contacts between
Coughlan and Stepney. The evidence included the following.
4.3 In its report “Allegato 18”, the Italian Police demonstrated that in the period 21
March to 3 July 2007, Coughlan received 23 calls from Stepney’s personal mobile
phone and made four calls to that phone. In the same period, Coughlan received
124 SMS messages from Stepney and sent 66 SMS messages to Stepney.
4.4 In its report “Allegato 9” the Italian Police have identified logs which show 23 emails
passed between Coughlan and Stepney between 1 March and 14 April
2007.
4.5 In its report “Allegato 10” the Italian police have identified a further 98 SMS
messages and a further eight telephone calls (on different phones) between
Coughlan and Stepney between 11 March and 14 April 2007.
4.6 In total, at least 288 SMS messages and 35 telephone calls appear to have passed
between Coughlan and Stepney between 11 March 2007 and 3 July 2007.
4.7 The number of contacts increased considerably during private tests carried out by
Ferrari in Malaysia at the end of March 2007 and in the run up to and during the
days of the Grands Prix in Australia on 18 March 2007, Malaysia on 8 April
2007, Bahrain on 15 April 2007 and Spain on 13 May 2007.
4.8 The evidence of the Italian police that has been produced also states that Stepney
sought technical details from Ferrari’s chief mechanic, Mr Uguzzoni, about tests
carried out by Ferrari in Malaysia in a way that drew attention within Ferrari at
the time.
4.9 In addition, e-mails between McLaren drivers were produced to the 13 September
WMSC meeting (see above) stating clearly that Coughlan had received
information from Stepney regarding the Ferrari car and had passed this
information to others within the McLaren team.
4.10 Neither Ferrari nor McLaren have ever disputed (whether at the 26 July WMSC
meeting or since) that confidential Ferrari information was passed from Stepney
to Coughlan during the period in question. However, the new evidence regarding
the number and timing of the contacts makes it far more likely that there was a
systematic flow of Ferrari confidential information to Coughlan leading to the
conclusion that the illicit communication of information was very likely not
limited to the transmission of the Ferrari dossier discovered at Coughlan’s home
on 3 July 2007. This conclusion is corroborated in the e-mails exchanged
between McLaren’s drivers (see above).
4.11 McLaren stated in its submissions for the 13 September WMSC meeting that this
new evidence on the number and timing of the communications merely confirmed
what was already known: that Coughlan and Stepney were illicitly sharing Ferrari
confidential information. It has also been suggested by McLaren that Coughlan
and Stepney were acting on their own account and that possibly they were
planning to seek new employment together elsewhere.
4.12 Without drawing a definitive conclusion on this point, the WMSC considered that
it was difficult to reconcile this version of events with the number and timing of
the contacts described above as if Coughlan and Stepney had simply been sharing
information to facilitate a plan to search for new employment there would appear
to be no particular reason for the contacts to have intensified around the tests and
the Grands Prix and no reason for Coughlan to share information with McLaren’s
drivers. Rather, it appeared more likely that the information being exchanged
related to those tests and the Grands Prix.
4.13 Further, in light of Coughlan’s role within the McLaren team, it had seemed
unlikely to the WMSC at the meeting on 26 July 2007 that Coughlan himself
would have been able to make any direct or immediate use (whether personal or
within his role at McLaren) of up to date information relating to the Ferrari car at
the site of different Grands Prix. However, as detailed above, at the 13 September
WMSC meeting, the WMSC heard new evidence to suggest that this was not the
case and that Coughlan had, in fact, communicated to at least one McLaren driver
statements from Stepney of which lap the Ferrari drivers would stop at during
both the Australian Grand Prix and the Bahrain Grand Prix. These
communications between Coughlan and at least one of the McLaren drivers
coincided exactly in time with some of the most intense period of contact between
Coughlan and Stepney described above.
4.14 In the absence of another explanation, in light of the number and timing of the
communications between Coughlan and Stepney and the e-mail exchanges
between the McLaren drivers (see above), the WMSC regards it as reasonable to
infer that Coughlan was in receipt of a flow of confidential Ferrari information
from Stepney and that at least some of that information was communicated to
others within McLaren (e.g. Mr. de la Rosa and Mr. Alonso).
4.15 In sum, the new information on the number and timing of the contacts between
Coughlan and Stepney inevitably had an impact on the WMSC’s appreciation of
the nature of the contacts between Coughlan and Stepney, on its appreciation of
the emails between the drivers and on the likelihood of Ferrari confidential
information received by Coughlan having an influence on his work with
McLaren.
5 Coughlan’s Role at McLaren
5.1 McLaren’s submission made for and at the 26 July WMSC meeting indicated that
Coughlan had a relatively limited managerial role and that it would not be
possible for him to propose ideas without having to explain their provenance. In
McLaren’s submission, this demonstrated that, despite having detailed Ferrari
technical information, Coughlan could not have used any of this information to
benefit McLaren without a significant number of people at McLaren knowing.
McLaren submitted statements from a number of its engineers that those
engineers were not aware of changes made to the McLaren car using confidential
Ferrari information.
5.2 The submissions made for the 13 September WMSC meeting show that that
Coughlan may have had a more active role in the design of the McLaren car than
previously appreciated by the WMSC.
5.3 The WMSC does not have evidence that any complete Ferrari design was copied
and subsequently wholly incorporated into the McLaren car as a result of
Coughlan passing confidential from Stepney to McLaren. However, it is difficult
to accept that the secret Ferrari information that was within Coughlan’s
knowledge never influenced his judgement in the performance of his duties. It is
not necessary for McLaren to have copied a complete Ferrari design for it to have
benefited from Coughlan’s knowledge. For example, the secret Ferrari
information cannot but have informed the views Coughlan expressed to others in
the McLaren design department, for example regarding which design projects to
prioritise or which research to pursue. The advantage gained may have been as
subtle as Coughlan being in a position to suggest alternative ways of approaching
different design challenges.
6 Evidence of Mr. Neale
6.1 At the 26 July WMSC meeting (and the evidence was repeated at the hearing of
13 September) it was noted that Coughlan had revealed to his superior at
McLaren, Mr. Neale, that Stepney had attempted to pass secret Ferrari
information to Coughlan. A firewall was set up at the instigation of Mr. Neale to
prevent further contacts from Stepney and Coughlan was directed to cease contact
with Stepney. Within a matter of weeks thereafter, Coughlan attempted to show
some photographs to Mr. Neale which, according to Mr. Neale himself, because
of the manner in which they were produced, suggested to Mr. Neale 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. Coming as soon as it did after McLaren
had been required to install a firewall and had directed this same employee to
cease contact with a known source of Ferrari confidential information, the WMSC
notes that it is very unsatisfactory that no further action was taken to investigate
this matter further and make appropriate disclosures to the FIA as regulator.
7 Nature of the information held by McLaren
7.1 The WMSC believes that the nature of the information illicitly held by McLaren
was information of a nature which, if used or in any way taken into account, could
confer a significant sporting advantage upon McLaren.
7.2 Evidence was submitted at the 13 September WMSC meeting by McLaren’s
Engineering Director, Mr. Lowe, that the dossier of Ferrari information found in
Coughlan’s possession did not contain information of particular use or interest to
McLaren on the basis that the McLaren car was significantly different to the
Ferrari car. This submission was apparently made on the basis of the review of
the index to the dossier of Ferrari documents (Mr. Lowe having stated that he had
not seen the dossier itself).
7.3 The WMSC does not accept this account. In both WMSC hearings and in written
submissions, and from the direct knowledge of the WMSC Members, Formula
One teams have great interest in each others’ technology and go to considerable
lengths (within the rules) to study each other’s designs and innovations through
direct observation, photographic evidence and other means. In addition the
technical information in Coughlan’s possession was, in the WMSC’s
appreciation, highly significant and could certainly confer a sporting advantage, if
used or taken into account.
8 WMSC’s Assessment
8.1 The WMSC has carefully considered the evidence and submissions of all parties.
8.2 It has concluded (and intends to re-affirm) that a breach of Article 151(c) has
occurred.
8.3 In the 26 July Decision, the WMSC found a breach of Article 151(c). In
assessing the gravity of that breach, it took account of a number of factors
including any evidence (or, at the time, lack of it) to suggest that the Ferrari
information improperly held had actually been used and actually conferred a
sporting advantage. Other factors that it took into account included the argument
that there was little evidence of the information in question being disseminated to
others at McLaren, what the WMSC then understood to be Coughlan’s more
limited role and the argument that Coughlan was a single rogue employee.
8.4 McLaren has made detailed submissions indicating that none of the information
received enhanced the McLaren car. McLaren has suggested to the WMSC that
unless “actual use” and a demonstrated and itemised performance advantage can
be proven beyond a reasonable doubt (i.e. to a criminal law standard of proof), the
WMSC is not permitted at law to impose a penalty.
8.5 The WMSC rejects this suggestion. The WMSC has full jurisdiction to apply
Article 151(c) and stresses that it is not necessary for it to demonstrate that any
confidential Ferrari information was directly copied by McLaren or put to direct
use in the McLaren car to justify a finding that Article 151(c) was breached and/or
that a penalty is merited. Nor does the WMSC need to show that any information
improperly held led to any specifically identified sporting advantage, or indeed
any advantage at all. Rather, the WMSC is entitled to treat possession of another
team’s information as an offence meriting a penalty on its own if it so chooses.
8.6 The fact that in its 26 July Decision, based on more limited evidence, the Council
had a different appreciation of the gravity of McLaren’s breach does not lead to
the creation of a legal test regarding the WMSC’s burden of proof. The WMSC
could have imposed a penalty with the 26 July Decision based on the evidence
therein, but chose not to (based in part on McLaren’s submissions that there had
been no dissemination of Ferrari information beyond Mr Coughlan).
8.7 The WMSC has taken note of McLaren’s position that an injustice would occur if
a penalty were imposed without the FIA having accepted McLaren’s offer to
inspect the McLaren premises and designs for evidence of Ferrari technology
having been copied. However, as noted above, neither the finding of a breach nor
the imposition of a penalty require evidence of McLaren having directly
incorporated Ferrari technology. Nonetheless, the WMSC have noted and taken
account of the open and co-operative nature of this offer and taken this into
account in reaching this Decision.
8.8 In light of the evidence now before it, the WMSC does not accept that the only
actions of McLaren deserving censure were those of Coughlan. While this
situation might have originated with the actions of a single rogue McLaren
employee acting on his own and without McLaren’s knowledge or consent,
evidence is now available which, when taken in its full context, makes clear that:
- Coughlan had more information than previously appreciated and was
receiving information in a systematic manner over a period of months;
- the information has been disseminated, at least to some degree (e.g. to Mr. de
la Rosa and Mr. Alonso), within the McLaren team;
- the information being disseminated within the McLaren team included not
only highly sensitive technical information but also secret information
regarding Ferrari’s sporting strategy;
- Mr de la Rosa, in the performance of his functions at McLaren, requested and
received secret Ferrari information from a source which he knew to be
illegitimate and expressly stated that the purpose of his request was to run
tests in the simulator;
- the secret information in question was shared with Mr. Alonso;
- there was a clear intention on the part of a number of McLaren personnel to
use some of the Ferrari confidential information in its own testing. If this was
not in fact carried into effect it was only because there were technical reasons
not to do so;
- Coughlan’s role within McLaren (as now understood by the WMSC) put him
in a position in which his knowledge of the secret Ferrari information would
have influenced him in the performance of his duties.
8.9 It seems to the WMSC clear that Coughlan’s actions were intended by him to give
McLaren a sporting advantage. He fed information about Ferrari’s stopping
strategy, braking system, weight distribution and other matters to McLaren's test
driver. Furthermore, in light of Coughlan's undoubted experience, he is likely to
have known a great deal about how to confer an advantage and the roles of
different personnel within the team. It seems most unlikely that he confined his
activities to sharing Ferrari's information with Mr. de la Rosa. It also seems most
unlikely that his own work was not influenced in some way by the knowledge
regarding the Ferrari car that he is known to have possessed.
8.10 Furthermore, it seems entirely unlikely to the WMSC that any Formula One
driver would bear the sole responsibility for handling or processing sensitive
Ferrari information (e.g. on substances used to inflate tyres or weight distribution)
or deciding how or whether such information would be used or tested. In light of
his experience, Coughlan would have known this and if he intended to reveal this
information to McLaren, he is unlikely to have done so only to Mr. de la Rosa .
8.11 The WMSC therefore finds 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. In addition, the WMSC finds that there was an
intention on the part of a number of McLaren personnel to use some of the Ferrari
confidential information in its own testing.
8.12 The evidence leads the WMSC to conclude that some degree of sporting
advantage was obtained, though it may forever be impossible to quantify that
advantage in concrete terms.
8.13 These factors lead the WMSC to an appreciation of the gravity of McLaren’s
breach which is materially different to the appreciation in the 26 July Decision.
On this occasion the WMSC believes that a penalty is merited.
8.14 Having indicated to McLaren that a penalty was likely to be imposed, the WMSC
heard submissions regarding the appropriateness of penalties from McLaren and
from counsel for Mr. Hamilton. The WMSC has reached its decision having
taken due account of those submissions.
9 Decision
9.1 For the foregoing reasons, the WMSC finds McLaren in breach of Article 151(c)
of the International Sporting Code.
9.2 The WMSC therefore, in accordance with the provisions of the International
Sporting Code, imposes the following sanctions relation to the 2007 FIA Formula
One World Championship:
- a penalty consisting of exclusion from and withdrawal of all points awarded to
McLaren in all rounds of the 2007 Constructors’ Championship. For the
avoidance of doubt, McLaren will be permitted to race in the remaining rounds of
the 2007 Championship but will not be permitted to score points in the
Constructors Championship or attend the podium in the event of a top three finish
in any of the remaining races in the 2007 season. Points scored by other
competitors in the Championship to date will not be affected further to the
withdrawal of McLaren’s points;
- a fine of USD100 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). This fine shall be payable
within three months from the date of this Decision.
9.3 Exceptionally, because primary responsibility must rest with McLaren, in the
interests of the sport and also because McLaren’s drivers were offered immunity
from individual sanction by the President of the FIA in his letter dated 30 August
2007, the WMSC does not consider that it is appropriate to impose any sanction
on them individually or impose sanctions on McLaren which would affect these
drivers’ individual Championship standings. As such, both McLaren drivers will
retain all the drivers’ Championship points they have won so far in the 2007
season and will be permitted to win drivers’ Championship points and attend the
podium in the remaining races of the 2007 season.
9.4 In addition, in the interest of ensuring that McLaren is not unfairly advantaged as
against any of its competitors in the 2008 Championship, the WMSC instructs the
FIA technical department to conduct an investigation of McLaren’s preparatory
work on its 2008 car with a view to determining whether that car incorporates any
Ferrari confidential information and report back before the WMSC meeting of
December 2007. Once the WMSC has considered this report, a separate Decision
will be taken regarding McLaren’s participation in the 2008 Championship,
including whether any penalty should be imposed. This present Decision does not
in any way affect McLaren’s entitlement to participate in the 2008 Championship
if the entry conditions are fulfilled.
9.5 McLaren is reminded of its right of appeal. In the event that an appeal is lodged
with the FIA International Court of Appeal, the effect of this Decision will not be
suspended pending the outcome of that appeal.
Signed:
__________________________________________
Max Mosley
FIA President
Paris, 13 September 2007