Briatore versus the FIA explained

The post-season in Formula 1 is turning out to be as interesting as the season itself. And it's showing no signs of slowing down, with Flavio Briatore ready to appear in a Paris courtroom to continue the 2008 Singapore GP controversy.

The day after October's Brazilian Grand Prix, Briatore filed a lawsuit in the Tribunal de Grande Instance de Paris, challenging the lifetime ban he had received from the FIA's World Motor Sport Council (WMSC) on September 22 2009 for his alleged role in the race-fixing Singapore case, and seeking a million euros in damages. The case will be heard on Tuesday.

The French courts are notorious for their adherence to secrecy and confidentiality, so there is no way or knowing whatever pleadings or other court documents have been filed in Paris by Briatore against the FIA. But leaks to Richard Williams of The Guardian quote Briatore's complaint as stating that the WMSC hearing breached "the most basic rules of procedures and the rights to a fair trial." Briatore also claims that he was victim of personal animus, stating that the WMSC was "clearly blinded by an excessive desire for personal revenge" against him.

The objective of Briatore in bringing his lawsuit is to have the French court dissolve his lifetime ban from the sport - including his driver-management contracts - on the grounds that the WMSC denied him due process. Piggy-backing on Flavio's complaint, Pat Symonds, Renault F1's director of engineering, has joined Briatore's case in an attempt to have lifted his own five-year ban from F1.

It should be said that Briatore did give evidence to the WMSC. Indeed, the only words we actually have from Flavio himself - unfiltered by lawyers - is his testimony to the FIA's lawyer charged with investigating Singapore on the weekend of the Spa 2009 race, before the WMSC met and before the lifetime ban was imposed.

In a memorable bit of Flaviospeak, he said: "I never talk with Nelsinho, I never talk about to crashing the car, he's never coming to me to tell me 'Flavio, Jesus Christ I crash the car, you won the race, can you renew my contract?' You know if somebody do you a favour like that I just you renew the contract." And when Nelsinho crashed on lap 14, Turn 17, Briatore's first radio transmission - we would call that an "excited utterance" under the Rules of Evidence - was even more blunt: "F***ing, he is not a driver."

Trial in Absentia

Does Briatore have a case?

Max Mosley speaks after the Renault verdict © LAT

At first blush, you would think that his chances to prevail would be undermined by his (and Symonds's) failure to appear at the WMSC hearing to make their case. But, in the dossier of evidence submitted to the WMSC, Briatore had given his evidence to the FIA pre-hearing and Symonds did send a long letter to the WMSC that was also incorporated into the record of the September 21 2009 hearing.

So, in a limited way, Briatore had done his part and did not totally thumb his nose at the FIA's judicial system.

And the FIA has its own problems in defending its Trial in Absentia. How can you have a trial when most of the material witnesses are not present? Piquet Jr appeared of course, but a further material witness - known in the hearing as Witness X, a Renault F1 engineer privy to discussions on the weekend of Singapore 2008 - was not presented by the FIA in making its case, another failure of due process since the defendants could not cross-examine Witness X.

That was the procedural quandary facing the FIA when it gaveled into session a hearing on September 21 2009, at its Place de la Concorde Headquarters in Paris, to review what happened that night in Singapore. You can hear it all yourself - all 84 minutes of it - as the FIA has published the hearing and all the written evidence presented on its website.

At the very end of the Renault F1 WMSC hearing, Max Mosley, in his role as presiding officer of the WMSC, announced that Flavio Briatore was to be given a lifetime ban from the sport - "forever ... for life" as Max dramatically put it. If Briatore wanted to take an appeal from the sanctions imposed by the WMSC, he had the right to appeal to the FIA's International Court of Appeal (ICA).

Conflict of Interest

The main point Briatore will probably make in the French Court is that the FIA's hearing procedures were riddled with conflicts of interest. He is likely to say that, between the two FIA bodies that could conceivably have heard the Singapore case - the WMSC or the FIA's International Court of Appeal - the FIA chose the exact wrong forum, the WMSC, when the ICA should have been the preferred option.

The WMSC is the FIA's policy-making body with responsibility for setting the rules in all aspects of international motorsport and is only incidentally a judicial body; Article 16 of the FIA's statutes barely hints at a judicial role for the WMSC.

And you could say that the membership of the WMSC argues against its involvement as judge and jury because of inherent conflicts of interest. The WMSC has 26 members, and the make-up of the WMSC at the time of the Renault F1/Piquet hearing - which was pre-Jean Todt's election as the new President of the FIA - was arguably a potential minefield of conflicts for all concerned.

Max Mosley chaired the WMSC hearing and he had been going toe-to-toe with Flavio in the FOTA controversy all through the summer of 2009.

Bernie Ecclestone is also a member of the WMSC and, as a co-owner with Briatore of the Queens Park Rangers football team, he also should probably have excused himself from voting.

Bernie Ecclestone © LAT

Other members of the WMSC have or have had commercial interests in the sport or were politically active either in supporting Mosley when he was in the midst of his troubles and/or were involved in the Todt/Ari Vatanen presidential race. Many members of the WMSC changed when Todt was elected, so the Singapore hearing was being held at a very politically-charged time in F1 - another argument for not using the WMSC as a venue for the hearing.

Some potential conflicts of interest were more obvious than others. Lars Osterlind and Vassilis Despotopoulos, members of the WMSC, were the stewards who filed a report on the Renault F1/Piquet case, introduced as part of the evidence at the hearing, so they surely should not have participated in the hearing. To the contrary, Osterlind actively participated, asking Piquet a question or two.

If the WMSC had been a real court, chairman Mosley and other members of the WMSC would have been subject to the motion for recusal by a party in the position of Briatore. But the issue was never raised by Briatore's lawyers, which it probably should have been in order to "make a record" for an appeal, or to be used in this current French litigation being brought by Briatore.

In the end, 20 members of the WMSC voted on the Renault F1/Piquet matter, with Bernie as the lone dissenter voting against the Briatore lifetime ban. It is not clear if any WMSC members disqualified themselves from voting on conflict-of-interest grounds.

The ICA

The make-up of the FIA's International Court of Appeal, and its very explicit conflict-of-interest rules, in my opinion, clearly make the ICA the better forum to have heard the Singapore 2008 case.

Who is on the ICA? In truth, it is a much less interesting and colourful group than the WMSC, predominantly lawyers, with the occasional judge and former head-of-state included in the mix.

Anthony Scrivener - fabulous name for a lawyer - is a distinguished counsel in the UK. The United States representative, John Cassidy, has a similar legal background, being the founding partner in a big American law firm, Baker Botts. Another member of the ICA is Guido de Marco, the former president of Malta and minister of justice for that country. Other members are Swiss, German or Dutch lawyers, so that is the typical background of the members of the ICA.

Which is not surprising given that the ICA's rules were revamped and announced with great pride by the FIA a few years ago. The restructuring of the ICA was intended to reflect the "Good Governance Principles", adhered to by the FIA and the European Olympic Committee, which emphasise that there should be a separation between the roles of making and amending of sporting rules [ie the WMSC]... and resolving disputes between members, sporting participants and other relevant third parties [ie the ICA]."

On the FIA website, it is pointed out that the ICA "is an independent body with its own administration detached from the main structure of the FIA."

Significantly, unlike the WMSC, the ICA's strict conflict-of-interest rules go out of the way to guarantee independence and objectivity as to the matters that come before it, and its members are encouraged to act upon those rules. Here is Article 5, the conflict-of-interest rule:

FIA headquarters in Paris © LAT

"Members must undertake to act with full independence and objectivity... and to preserve the independence of the ICA. Each Member must be and remain independent of the parties. All members are obliged to reveal immediately any circumstance likely to compromise their independence in respect of one or more of the parties... Members and Deputy Members shall sign a formal undertaking to respect the integrity and independence of the ICA both during and after their respective terms of office. Members and Deputy Members are bound by a confidentiality obligation with regard to the deliberations of the ICA." (Emphasis added.)

If an ICA member cannot meet these rules, he must "spontaneously disqualify himself/herself".

Applying the facts of the Renault F1/Piquet case to these ICA rules, if the 26-member WMSC applied those rules to themselves, that would surely eliminate some voting members.

And in the ICA's Article 4, a further interesting rule:

"No Member of the World Motor Sport Council or of the Sporting Commissions of the FIA may be a Member of the ICA and vice versa."

To me, this rule is the most revealing as to what constitutes 'Good Governance' in our sport since it reflects the FIA's institutional recognition that the character of the WMSC is more political in nature - not intended as a pejorative term here, just a fact of life - and the ICA has been designed to be just the opposite: politically defanged, impartial, as clean as the driven snow, and staffed and run by legal professionals, not the movers and shakers of the FIA.

At the WMSC hearing, instead of a full and complete search for truth of the kind you would see in a real court, including the ICA, neither Witness X nor Pat Symonds ever appeared, so they were not subject to cross-examination.

Briatore voluntarily chose not to appear. In his FIA interview he recommended witnesses to be contacted by the FIA investigators, but they were not called in as witnesses.

And Piquet himself, who was the star witness, was not vigorously cross-examined, but fielded some softball questions from the WMSC and was released from the dock with full immunity in exchange for his cooperation with the FIA.

Had the Renault F1 matter been tried before a group of professional lawyers, unafraid of whatever facts would come out, we would probably not be left after all this still wondering: whose idea was the Singapore Sling?

Pat Symonds © LAT

Symonds says in his letter of apology that it was Nelsinho's idea; Piquet Jr says it was broached to him by Symonds an hour before the race on Sunday in a pre-race meeting, with Briatore present in the room. Witness X, a Renault team member, remains at an undisclosed location near Chipping Norton, his status as whistleblower being offered as the excuse for his non-appearance as a witness at the WMSC hearing.

The members of the WMSC might be satisfied with the incomplete state of the record, but that doesn't mean we need to be, and the Tribunal de Grande Instance de Paris just might end up feeling the same way. One way for a court to deal with a situation like this when being asked to look over the shoulder of a sports supervisory group is to refer the matter back to the regulatory body for new findings, perhaps to the ICA instead of the WMSC this time around.

In the end, for all the purple prose in the complaint filed by Flavio Briatore in the French court, one allegation on the fairness of the hearing held before the WMSC rings true: "The decisions to carry out an investigation and to submit it to the [WMSC] were taken by the same person, Max Mosley, the FIA President [who] assumed the roles of complainant, investigator, prosecutor and judge."

Back in 2008, it was this very same French court in Paris that ruled in Max Mosley's favour in his privacy case against the News of the World; it will be interesting to see if his luck holds or if the French court rebuffs Mosley this time around and refers the case back to the FIA, where he no longer reigns. And if the French court does that, it will be interesting to see how the new French president of the FIA, Jean Todt, a fellow principal with Briatore in the paddock not so long ago, decides to handle the case.