Analysing the French court's Briatore verdict

On January 5, 2010, the Tribunal de Grande Instance de Paris, handed its crosstown neighbour, the FIA from #8 Place de la Concorde, a stunning defeat. In a scathing nine-page ruling, the Paris court declared illegal the lifetime ban from motorsport imposed on Flavio Briatore by the FIA's top policy-making body, the World Motor Sport Council (WMSC).

The WMSC imposed the sanction because of Briatore's alleged involvement in fixing the 2008 Singapore Grand Prix in favour of Renault, the French team. Is this a French farce or is there something important going on here?

According to ex-barrister and ex-president of the FIA, Max Mosley, who chaired the September WMSC hearing and is still a formidable lawyer and adversary, the judgment of the Paris court is "seriously flawed" and "preliminary". "They just didn't like the procedure we used," he argues.

As lawyers often say, borrowing a thought from Dr Samuel Johnson, procedure is the last refuge of a scoundrel. Nevertheless, it is procedure that has turned the FIA's world upside down and to the current winners in this legal brawl - Briatore and his chief engineer at Renault, Pat Symonds - the results seem substantive.

What did the FIA do wrong? According to the unofficial English translation of the ruling, obtained from sources within F1, everything.

Flavio Briatore and Pat Symonds on the pit wall © LAT

To begin, the FIA lacked what lawyers would call subject matter jurisdiction over Briatore and Symonds since, unlike drivers who have FIA-issued superlicences or teams which are also approved by the FIA, employees of the teams are not "licencees" of the FIA. Both Briatore and Symonds had resigned from Renault pre-hearing. The only people in the dock who were licencees subject to the WMSC were Renault the team and Nelson Piquet Jr, as a driver.

In a clever turnabout, the Paris court even dragged poor Nigel Stepney into its deliberations to support its conclusions that the FIA lacked authority to sanction Briatore and Symonds, noting that:

"The FIA expressly admitted in a press release published in 2008 at the time of another case implicating Mr Nigel Stepney, with regard to whom it [the FIA] recognised having no formal action over him, limiting itself to a recommendation to its licencees [the F1 teams] to verify his abilities before working with him;

"It is quite different for Mr Briatore and Mr Symonds, insofar as it cannot be seriously disputed that the decision of September 21, 2009 prohibiting them, for life for the first and for five years for the second, from any participation, in any form, in motor sport competition, adversely affects them;

"They are consequently admissible in complaining...

"In this instance, under cover of an order given to its members, the WMSC has indisputably inflicted, be it indirectly, a sanction on two people over which it did not have any authority."

Moving beyond the jurisdictional hurdle, the Paris court declared "illegal" the decision of the WMSC concerning Briatore and Symonds, saying quite bluntly that "these sanctions were delivered at the end of a procedure which did not respect the rights of the plaintiffs".

The court summarised the arguments made by plaintiffs Briatore and Symonds in detailing why the FIA's hearing lacked the fundamentals of due process:

"The decision is illegal [according to Briatore and Symonds] because it is a misuse of the power of French and international legal standards:
1) the almost penal measure taken against [Briatore] characterises an ongoing infringement of his right to freely exercise a professional activity, which is a principle of French law;
2) the rules of fair trial have been breached: absence of guarantee of impartiality and separation of the investigation, instruction and procedure functions not respected, as all decisions were made by Max Mosley who, during the year 2009, had violent disputes with Mr Briatore...
3) the principle of a level playing field, applicable in disciplinary matters, was not respected: late notice of convening, absence of indication of charges existing against him, absence of communication of documents or submissions, absence of mention of the existence of an alleged anonymous witness, the only one to accuse him of having known about the planned accident,
4) use of an anonymous witness statement under conditions that did not justify it, in the absence of risk of reprisals, possibility of access to this witness or other evidence that could prove his knowledge of a sporting misdeed,
5) the trial was contrived, as the judges had negotiated the decision in advance, as declared by one of the two, the representative of the United Arab Emirates."

To be sure, Mosley is correct that this is a procedural ruling. Indeed the Paris court itself concedes in its ruling that "it is not down to this court to rule on the responsibility of plaintiffs in the deliberate accident of Nelson Piquet Jr in the 2008 Singapore Grand Prix, but only to assess the legality of the decision..." Having recited that caveat, however, the Paris court noted that Briatore "has consistently disputed any involvement in the deliberately-caused accident, with the investigations not having resulted in a definitive conclusion on this point..." And the court did state in its ruling that the FIA's due process procedures "did not respect the rights of the plaintiffs".

Max Mosley speaks to the press after the Renault hearing © LAT

Procedural or substantive, the court's ruling has dealt a serious blow to the FIA. Reflecting its usually aggressive posture, the FIA's press release states that "the court's decision is not enforceable until the FIA's appeal options have been exhausted". Briatore, too, has talked of taking further legal proceedings against a certain three-time world champion and his son.

In my judgment as a lawyer and a Formula 1 fan, any further legal proceeding by either side would be a mistake for the following reasons: for Flavio Briatore, this ruling from the Paris court has to be regarded as the high-water mark - he has had his day in the sun, he has his respect back, as he put it, and he never even had to testify. And for the FIA, as an association formed under French law in 1901, the French court is the arbiter of French law and the court gave the FIA guidance as to how and in what context the FIA, via its authorised bodies, has grounds to issue "general safety standards or [make] management decisions..." Like Briatore, the FIA should not be relishing further litigation after this drubbing.

I have another recommendation. In Mosley's statement after the Paris ruling he gave us an insight into how Formula 1 really works outside the courts. As evidence that no personal animus exists between himself and Briatore (contrary to Briatore's allegations in the Paris court), Mosley disclosed that in the summer of 2009, after the FIA/FOTA dispute had settled down, "[Flavio] and I had a very friendly lunch in Monaco at Rampoldi's", a fashionable sidewalk cafe around the corner from the Hotel de Paris and Casino Square.

In addition to a shared affinity for trendy restaurants, it is astonishing to report that Mosley and Briatore agreed on one other thing that is relevant here. When they had personal cases to be brought in the Paris courts, they both hired the same French barrister, Philippe Ouakrat. A man who will go to his grave with pretty interesting client confidences I would think. Ouakrat won Mosley's privacy case and Ouakrat brought Briatore's lifetime ban case in the same French court.

My suggestion to Max and Flavio is to go back to Rampoldi's, take a larger table, invite the new FIA president, Jean Todt, and lawyer-for-all-seasons Philippe Ouakrat, and before lunch is over Avocat Ouakrat would probably be able to outline the settlement on the back of a Rampoldi's napkin without any further resort to the courts.

Somerset Maugham wrote famously that Monaco was a sunny place for shady people. It is in the interests of all parties and the sport to put this episode behind us and prove him wrong.