Analysing the WMSC's decision

On Thursday evening the FIA issued a nine-page report into the previous day's World Motor Sport Council proceedings, some 24 hours after the initial result was issued. Bearing in mind that the WMSC members had a 260-page dossier (and oral submissions) to consider, it's really just a snapshot of what went on, but it does at least give us some idea of how things panned out.

It's easy to lose sight of what it's all about, but to recap the German GP stewards found Ferrari guilty of breaching Article 39.1 of the sporting regulations, which reads as follows: "Team orders which interfere with a race result are prohibited."

In other words, there were two things to consider - there had to be some proof that team orders were involved, and there had to be proof that they did indeed interfere with the result. That might sound blatantly obvious, but once team lawyers get involved, the FIA has to be prepared to be told what its rules really mean...

The other part of the German GP decision was that the team breached Article 151c of the International Sporting Code, which says "any fraudulent conduct or any act prejudicial to the interests of any competition or to the interests of the Championship and to the interests of motor sport generally."

The stewards decided to issue a $100,000 fine, which they believed was the maximum they could levy on the day. In fact they made a mistake. While that number has been agreed, it won't formally be ratified until October, so theoretically they should have struck with the previous highest amount of $50,000.

There's no doubt that the stewards took what happened very, very seriously, which is why they picked up on it. But they seemingly didn't want to take the major step of changing the result on the day, which they could have done by the simple application of a five-second penalty for Alonso, which would have dropped him to second. That would obviously then have been appealed by Ferrari, and a legal process - albeit a Court of Appeal, very different to what we saw this week - would have kicked into motion.

FIA headquarters © Sutton

Did the German GP stewards bottle out of making such a momentous decision? Or did they rightly recognise that depriving a driver of a victory - however contentious - was too serious a matter to be decided on the day and ought to be considered at a higher level? Perhaps it was a bit of both.

What they decided to do was refer the matter to the World Motor Sport Council. Giving a penalty and then doing that - in effect suggesting that perhaps there should be a bigger punishment - is without precedent. And it created a problem later on for the simple reason that some WMSC members were bound to be a little wary of the 'double jeopardy' implications. Ferrari was deemed guilty, and had a penalty on the day - nearly seven weeks have passed, so why should we now increase it?

Again it could be argued that the German GP stewards misfired. They tried to do the right thing in drawing the WMSC's attention to the matter. But one top FIA source says that a more effective procedure would have been to just issue the fine. That would have left the FIA with the option to appeal against the stewards' decision - on the basis of the public outcry reflecting 151c - and again that would have set in motion a Court of Appeal process.

The FIA appealing may sound like a convoluted procedure, but it's what happened for example after Imola 2005, when BAR was found to have a dodgy fuel tank. On that occasion the stewards took no action, essentially because they didn't fully understand the implications. Charlie Whiting and Max Mosley saw it differently, and the outcome was of course a Court of Appeal hearing and a two-race ban for the team.

This time we got this slightly unusual case whereby the matter was referred to the WMSC.

The heart of the matter was the report prepared by veteran Swedish WMSC member and race steward Lars Osterlind. He interviewed Stefano Domenicali, Ferrari team manager Massimo Rivola, engineer Rob Smedley and Felipe Massa.

The case against Ferrari

We've only seen a brief outline of it, but clearly Osterlind did a thorough job. Indeed he even discovered that while both drivers had turned their engines down, Alonso was asked to turn his back up before the contentious overtaking move - something that Massa had apparently not been told about.

The FIA's account summarised Osterlind's findings: "The Reporter considers that the fierce battle between the two team drivers a few laps prior to the contentious overtaking, corroborated by the content of the communications between the drivers and the race engineers, as well as the use of the term 'sorry,' are revealing of the fact that Mr Felipe Massa allowed Mr Fernando Alonso to overtake him following a team order."

The German GP stewards statement © Sutton

He also made the obvious point that it did indeed interfere with the race result, and went into a lengthy discussion on sporting ethics and in effect how the affair impacted upon Article 151c - more of that anon.

Crucially, Osterlind's conclusion was that the $100,000 fine should stand, but in addition he recommended that five seconds be added to Alonso's time, handing the win to Massa.

He also said that both drivers and the team should lose the points gained in the race, but on a suspended basis - in other words, that would only happen if there was "no incident of comparable nature occurs."

On Wednesday, the FIA's case was expanded by lawyer Jean-Pierre Martel.

He said: "Whilst teams are free to adopt a strategy, there are a number of indications here this was prohibited team orders, and when there is pressure on a driver this is equivalent to team orders. The indications included the fight to lap 21 and letting Mr Fernando Alonso past on lap 49, the radio communications, the mood of the drivers on the podium, their answers in the post-race press conference where it was made clear that the interest of the team took precedence over the individual drivers, and the fact that Ferrari did not appeal the stewards' decision."

That was all sensible stuff, but he then sat firmly on the fence. Regarding the rule, he said: "...that there were issues over its interpretation and policing and it might sensibly be referred to the F1 Sporting Working Group."

He then added: "...team orders are a matter for the team. The drivers should not suffer a penalty. As for the team, the fine of $100,000 should be confirmed, but the issue was, is this enough? If points were deducted this should be suspended until the end of the 2010 season."

This is important stuff. Osterlind had, after all his research, all his digging, recommended that the result of the German GP be changed. And yet after digesting his report whoever briefed Martel had made it pretty clear that, even before the matter went to the WMSC, such an outcome would not be considered. The suspended loss of points was, however, still on the table.

Ferrari's defence

There are two elements of Ferrari's defence that we now know a bit more about. The first is the team's initial written response to the original charges, before Osterlind made his report, and which the FIA has outlined as follows:

Fernando Alonso © Sutton

"Mr Felipe Massa was not ordered to allow Mr Fernando Alonso to pass. Rather he was given relevant information, based on which he decided, for the benefit of the team, to allow Mr Fernando Alonso to pass. The relevant information was that Mr Fernando Alonso was faster than him, and Mr Sebastian Vettel was closing the gap on both of them.

"Mr Felipe Massa realised that the best interests of the team and the drivers' safety were going to be served by allowing Mr Fernando Alonso to pass, and acted accordingly.

"In the view of Ferrari, there is a clear distinction between 'team orders' on the one hand, and 'team strategy and tactics' on the other hand. The disputed communication should be considered as 'team strategy and tactics.'"

Looking at the specific legal aspects of 39.1, "Ferrari argues that the 'team orders' alleged by the FIA are that Ferrari ordered [that word was underlined by the FIA] Mr Felipe Massa to let Mr Fernando Alonso pass. According to Ferrari a team order in the context of Article 39.1 has to mean an instruction to a driver from the team which he is required to follow. If the driver has discretion as to what to do then that cannot amount to an 'order.' Thus in order to establish a breach, the FIA has to point to an order which Mr Felipe Mass was required to follow. This was not the same as giving the driver information, or even an indication of what the team would like him to do. In the view of Ferrari, the contentious communication does not amount to an order and the decision to let past Mr Fernando Alonso was Mr Felipe Massa's entirely."

This is interesting stuff, and you can certainly see that Ferrari's legal team had a field day with it. What team orders? It was Felipe's decision, we just gave him some information...

We all know that Massa had to do what he did. Had he decided to stay in front, he would have faced some serious consequences. As one Ferrari insider said after the race in Germany, if he doesn't like the rules here, he can leave like the last guy did - in other words, Rubens Barrichello.

But finding any evidence that Massa was coerced - in his contract or anywhere else - is pretty much impossible.

Successfully as it turned out, Ferrari muddied the waters on how the team orders rule has been applied (or not) in the past. The team brought up Germany 2008, when Heikki Kovalainen made it pretty easy for Lewis Hamilton to get past during his chase of Felipe Massa and Nelson Piquet Jr.

It also picked on McLaren in relation to Turkey this year, claiming that instructions to 'save fuel' were coded team orders.

And it referred to Turkey again in terms of the clash between Webber and Vettel, effectively saying this is what can go wrong if a team doesn't control its drivers, harking back to the earlier mention of safety.

Crucially, Ferrari claimed that "any additional penalty would be unjust. The decision of the stewards not to alter the race result no doubt reflects a degree of realism on their part regarding the ambiguous nature of the rule itself, and the difficulties of policing it and ensuring consistent treatment between teams."

Bernie Ecclestone arrives for the hearing © Sutton

This was an important point, and it harks back to the question of German GP stewards "bottling it." They didn't give the ultimate sanction of changing the result, because they felt it was a matter for the WMSC - and Ferrari turned that round and said that the lack of a more serious penalty meant that they weren't sure of themselves...

It continued: "In determining the correct approach Ferrari suggests that the WMSC should taken into account that there is a grey area between impermissible 'team orders' and legitimate strategy and tactics."

On the day, veteran Ferrari lawyer Nigel Trozzi restated the team's position, and once again pursued the orders vs strategy route, saying that there was "...no instruction here that Mr Felipe Massa was required to follow. This was the giving of information, and what the team wanted him to do. Pressure was not enough, and the information enabled the driver to choose. If this was not permitted then there was a risk of accidents and collisions between team mates as suffered by Red Bull at this year's Turkish GP."

It was an inevitable argument, but you could say that it implies a certain lack of faith in the abilities of Alonso and Massa to race each other without colliding - although having said that, they did touch on the first lap at Silverstone.

Remarkably, Trozzi contended that the change of places did not necessarily interfere with the result, given that it happened with 18 laps to go. He also pushed hard on the "ambiguities in the rule and inconsistencies in its application."

He then returned to the collision aspect, pointing out that Ferrari had letters of support from Peter Sauber (no surprise!) and Frank Williams (a little harder to understand) that underlined that aspect.

The World Council's decision

Sources suggest that the WMSC was far from united on what the final decision should be, and it would be interesting to know a bit more about how they weighed things up. Bernie Ecclestone was in the room, and he is known to be against the team order rule. It's also clearly in his interest as F1 ringmaster to have Alonso still in the title fight.

Crucially, the report said that, "The Judging Body of the WMSC was satisfied itself that team orders were issued."

In other words, Ferrari was guilty, despite all its arguments about using strategy and tactics, and the assertion that Massa had made his own choice was not believed.

FIA president Jean Todt © Sutton

Furthermore, it agreed that the incident "clearly interfered with the results of the race, and with Mr Fernando Alonso standing on the podium for first place, when his team mate had slowed to allow him to pass was in the Judging Body of the WMSC's view prejudicial to the interest of motor sport and contrary to Article 151c. It is important for the FIA to act to protect the sporting integrity of the FIA Formula One World Championship, and to ensure the podium finish has been achieved by genuine on-track racing."

So far, so good - the German stewards were right.

But then the WMSC took a step back, or at least sideways. Lawyer Martel had already hinted that the rule needed looking at, and the WMSC duly confirmed that: "...there were many examples of what could have been said to be team orders in Formula One in recent years, and therefore there has been inconsistency in its application. Also in its application to indirect team orders via messages where drivers raise no complaint is uncertain and difficult to detect and police. The Judging Body of the WMSC accepted that this may well have influenced Ferrari's approach, and Ferrari also had a legitimate concern to avoid collisions between team mates in close on track racing."

Those letters from Sauber and Williams were also taken into account when the WMSC confirmed Martel's assertion that the team order rule should be reviewed by the Sporting Working Group.

With regard to the penalty, it said that "...it became common ground during the hearing that the drivers should not be penalised and with the ambiguities in the rule recognised it would not be appropriate to increase the overall penalty."

As noted earlier, there were two possible routes whereby the case could have ended up in the Court of Appeal, rather than in front of the WMSC. It will be interesting to know what three impartial judges, rather than the WMSC members, would have made it. Intriguingly future cases are likely to go a similar route, via a new disciplinary procedure.

What does it all mean?

The bottom line was that the WMSC decided that a rule that had been in the FIA's own Sporting Regulations for eight years, and which had caused little if no controversy during that time, now has to be looked at.

The next meeting of the SWG - essentially Charlie Whiting and the 12 team managers - takes place in Singapore. But what they discuss there is highly unlikely to have any impact on this season. Thus Article 39.1 still stands.

So what is the legal precedent that can be drawn from the Ferrari case? That is open to question. If it happens again, the stewards can do one of three things.

They can follow the general tenure of the WMSC conclusion, shrug their shoulders, say it's impossible to police, and do nothing. They can impose a charge of $100,000, a price that teams would be more than willing to pay. Or they could argue that the Hockenheim penalty was a warning shot and anyone silly enough to do it before any formal rule change for 2011 - especially if it's Ferrari again - should get a heavier punishment. All three of those outcomes are theoretically possible, and the problem is that we don't really know where things stand.

"In the light of this we were hoping to have clarity," said Martin Whitmarsh today. "And we don't yet have clarity, do we? If anything it's more muddy now than it was before."

Certainly teams will be even more careful than before to disguise what they are doing, and next time even Massa will be a lot more willing to comply without making it obvious. He might not be happy, but he now knows how serious the consequences could be for the team, and thus himself.

It remains to be seen what the SWG might decide for 2011 and beyond. One FIA source suggested the best thing would be to just drop it - and then rely on Article 151c if something happens again.

Felipe Massa, Fernando Alonso, German GP © Sutton

And if you think about, that does make some sense. The public was furious after Austria 2002, and the reaction was the same after Germany 2010. In between there were lots of examples of team orders that either we didn't know about, or didn't mind about.

The big connection between the two aforementioned races is that in both cases a driver was heading for a win that he wanted to keep, and was in effect forced by the team to hand it over. And in both cases it was the frustration of the driver concerned and the way he handed the place over that made it public, and really brought home how unjust it was.

Germany was arguably the first time since 2002 that a team order situation brought the sport into disrepute - Ferrari might have used it as an example, but nobody blinked an eye when Hamilton got by Kovalainen in Germany 2008.

But now we get into a difficult area. Should the FIA react to a public outcry over an unfavourable result or team manoeuvre that allegedly brings the sport into disrepute? And how can a team, in the heat of a race and with very little time to focus on the big picture, be expected to accurately pre-judge the strength of 'people power'?

It's a potential legal minefield, but it is at the very heart of this whole story. We all want to see racing, and racing between team-mates is the ultimate expression of that because a) they are in the same equipment and b) the fact that they have to tread carefully when dicing with each other adds an extra element. After all this season was always flagged as being about Vettel vs Webber, Hamilton vs Button, Rosberg vs Schumacher and, of course, Alonso vs Massa.

Many will argue that teams don't want to let their drivers compete - but that robs us of so much of what we all love about the sport.

Osterlind summed things up in his report: "Motor racing ought to be and remain unpredictable, as it has been to date. Part of that competitive element is to take equal interest in all competitors. Irrespective of their fitness, talent or position in the race and/or championship, competitors should be able to rely on themselves for purposes of winning the race without any form of external aid influencing their sporting performance.

"Sports ethics involves the elimination of cheating and bending the rules. In addition to the existing written rules, there can therefore be said to be a moral obligation on drivers to abide by the rules, in accordance with the principles of fair play."

The sad thing is that on whatever side of the fence you sit, this case hasn't done much good for the sport in the eyes of the public. Let's just hope that the season passes without 39.1 rearing its ugly head again...