Extra: Analysis on the Upcoming FIA Hearing

Monday August 18th, 2003

Extra: Analysis on the Upcoming FIA Hearing

Monday August 18th, 2003

By Thomas O'Keefe, Senior Writer

One brother will weep over what the other brother has sown. The Schuey Chop stops here.

On Tuesday, August 19, 2003, the FIA's International Court of Appeal (the "Court of Appeal") will meet in Paris at its spanking new "courtroom" at 8, Place de la Concorde, to consider whether Ralf Schumacher will be punished for moving over on Rubens Barrichello just after the start of the German Grand Prix at Hockenheim on August 3, 2003. The Stewards of the Meeting have already announced their view of the appropriate punishment: Ralf is to be dropped 10 grid positions at the Hungarian Grand Prix on August 25, 2003. The BMW-Williams Team has appealed the decision of the Stewards which has prompted this Court of Appeal Hearing. The Court of Appeal usually acts outside public view, but consistent with the concept of transparency so much in vogue in Europe these days, the television cameras of German network RTL will be allowed inside the hearing room to film the proceedings for the very first time.

There have been other public executions in the Place de la Concorde going back to the French Revolution and the excesses of the Revolutionary Council in the 1790's; Ralf Schumacher will, I fear, be the latest lamb to be sacrificed at the Place de la Concorde.

The Courtroom

There won't be a scaffold or guillotine as the instrument of execution but instead a three-judge court. What will we see? Unless the BMW-Williams team withdraws its protest before the hearing, you will see on TV a large and remarkably modern conference room in the FIA's newly-renovated quarters at the posh Place de la Concorde, fitted out with microphones for all the speakers and plasma TV's on the wall for showing the "evidence." When you see the courtroom, it will remind you of the United Nations. Ron Dennis would be proud to call this courtroom his own so spiffy and functional is it.

Outside the courtroom there are facilities for the accredited F1 press, though they too will be watching the proceedings on their own Media Centre TV, just as they do at the races.

The Legal Issues

Did Ralf Schumacher violate Articles 53 and 55c of the FIA Formula One Sporting Regulations when, as the field was getting underway at Hockenheim, Ralf moved his Williams to the left towards the Ferrari of Rubens Barrichello to protect Ralf's position, making a change of direction that set in motion an accident that ultimately put five cars out of the race before Turn 1, lap 1. It was not the first time Ralf has been involved in a first corner affair involving Rubens, having started off the 2002 season at Australia by running up the back of Barrichello and getting his Williams airborne.

According to the Stewards, Ralf's change of direction at Hockenheim "caused an avoidable collision" in violation of Article 53 which empowers the Stewards to punish a driver for a number of misdeeds, including if the driver "causes a collision", "forces a driver off the track", or for "illegitimately preventing an overtaking manoeuvre by a driver" or "illegitimately impeding another driver during overtaking." In a statement announcing the Court of Appeal hearing, the FIA said:

"Having heard the explanation of each driver and having seen the different camera views of the incident, the stewards conclude that R. Schumacher began to move to his left to obtain a better racing line for the corner. R. Schumacher admitted to paying no attention to the position of the other cars during this manoeuvre.

"The stewards note that it is absolutely clear that R. Schumacher's car made contact with car number 2 (Barrichello), which in turn made contact with car number 6 (Raikkonen). Both drivers of cars number 2 and 6 were caught in a set of circumstances over which they had no control."

Once an incident involving one or more of the listed actions occurs, the Stewards have the power to impose "any one" of three penalties: A drive-through penalty; a ten-second penalty or "a drop of ten positions at the following Event". The Stewards chose the last option for Ralf, the most stringent penalty, "a drop of 10 grid positions at the driver's next race." (Emphasis added.)

Although not specifically referred to by the Stewards, another principle that may come into play here that Ralf may have breached is the so-called "One Move" Rule. As described in great detail in Part II of the Final Answer: series on the FIA's International Court of Appeal, the "One Move Rule" goes back to 1995 and is embodied in Appendix L to the FIA's International Sporting Code, Chapter IV (Code of Driving Conduct on Circuits), Article 2, which states as follows:

"OVERTAKING

a) during a race, a car along on the track may use the full width of the said track. However, as soon as it is caught up on a straight by a car which is either temporarily or constantly faster, the driver shall give the other vehicle the right of way by pulling over to one side in order to allow for passing on the other side. However, manoeuvres liable to hinder other drivers such as premature changes of direction, more than one change of direction, deliberate crowding of cars towards the inside or the outside of the curve or any other abnormal change of direction, are strictly prohibited and shall be penalized, according to the importance and repetition of the offences, by penalties ranging from a fine to the exclusion from the race. The repetition of dangerous driving, even involuntary, may result in the exclusion from the race." (Emphasis added.)

As the World Council explained on October 19, 1995, this Overtaking rule "will be enforced by the Stewards in Formula One on the basis that drivers are free to drive as they wish provided they do not deliberately endanger another driver or repeatedly obstruct him on a straight." (Emphasis added.)

The word "repeatedly" is apparently the source of the One Move Rule. In commenting on this rule, the President of the FIA, Max Mosley, said at the time: "Racing is different to the road in one sense - when competing you drive to the limit of your abilities. We held a meeting earlier this month with leading Formula One drivers and they agreed that no driver should endanger another driver but otherwise should be allowed to compete freely. The World Council has accepted this view. The drivers are top professionals so we will let them get on with it."

Interestingly, these FIA principles, vague as they are, constitute the full body of "law" applicable to Ralf's conduct. By way of contrast, the CART series has had its own struggles with what the 2003 CART Rule Book simply calls "blocking," and have come up with more vivid ways to describe driver misbehavior and the unjustifiable risk it creates that goes beyond a "racin' deal": CART Rule 8-12 "Blocking" states as follows:

"8.12 BLOCKING.

The failure of a driver to use mirrors to acknowledge the presence of other competitors, yield to lapping competitors, alter the racing line based on the actions of pursuing competitors, or use an abnormal racing line to inhibit or prevent passing will be considered blocking. In the opinion of the officials, any driver found blocking will be presented with a waved blue flag and a furled back flag as a warning. Failure by that driver to immediately heed the warning will result in a black flag or other penalty pursuant to Chapter 10 of the CART Rule Book. Judgmental decisions in this regard are not subject to protest or appeal." (Emphasis added.)

Rule 8.13 entitled "Unjustifiable Risk" is a companion rule:

8.13 UNJUSTIFIABLE RISK

"Any action that represents a unjustifiable risk or reckless endangerment, in the opinion of the stewards, will result in the assessment of penalty(ies) pursuant to Chapter 10 of this Rule Book. Decisions by the stewards and penalties assessed for unsafe acts are not subject to protest or appeal."

The Evidence

While Ralf's brother Michael Schumacher has perfected the art of changing direction, One Time Only to discourage competitors from overtaking him as the cars leave the grid - the Schuey Chop as it has come to be known - little brother Ralf has not been as clever as Michael in imitating that move. To set the scene, Ralf's teammate, Juan Pablo Montoya, was on pole at Hockenheimring on the left side of the grid and Ralf was next to him on the front row, beaten to pole position before the home crowd by only 18 thousands of a second. Rubens Barrichello's Ferrari was in the third position and lined up behind Montoya; Jarno Trulli's Renault was behind Ralf in fourth place. Rubens had been faster than Michael Schumacher all weekend; Michael had qualified sixth, next to Kimi Raikkonen's McLaren which was in fifth place, lined up behind Barrichello.

The tale of the videotape shows that three drivers got jackrabbit starts but Ralf was not amongst them: Montoya quickly got out ahead when the red lights went out, Fernando Alonso in the second Renault (who had qualified in eighth but who benefitted from Renault's world class launch control) and Kimi Raikkonen, who exploded off the grid and headed to the left side of the track to squeeze by Barrichello on the left by placing his McLaren between the edge of the track and the Ferrari of Barrichello. Jarno Trulli also had a good start and headed out on his own for the inside of Turn 1.

Michael Schumacher was no threat to the frontrunners since he had gotten off to a poor start and was being passed by Alonso and others. Brother Ralf, however, was in the thick of it because he also got a poor start and Barrichello and Raikkonen were both coming up on him to his left from the second row. Importantly, it is not clear that Ralf knew that all this was going on to his left and it is surely unlikely that he was aware of the extraordinarily optimistic banzai move of Raikkonen which was taking place to the far side of Barrichello and presumably out of Ralf's line of sight.

Indeed, Ralf's own candid testimony right after the race reveals how little he was aware of as he launched his Williams off the grid: Said Ralf:

"You cannot think about what people around you are doing and sometimes these incidents do happen. I was just trying to defend my position and I didn't make any sudden move or anything so there was all the time in the world for other cars to move away from me."

But unfortunately for Ralf, the replays that will be shown to the Court of Appeals show at least one clear change of direction followed by a second change of direction that was a jink if not a "sudden move". In Ralf's defense, he had positioned his car while it was stationary on the grid aiming to the left and the version of the replays from the frontal view show Ralf veering to the left to discourage Rubens from the very outset. Apparently, because he set up that move from the beginning Ralf does not count that as one move.

Having veered left, by the time Ralf gets to the middle of the track, he pauses briefly and then, perhaps recognizing that Rubens is by now up to Ralf's left rear wheel, Ralf make the critical jink to the left and as he does that, Rubens, feeling the heat from Kimi passing him on the left nudges his Ferrari slightly to the right, catching Ralf's left rear and then, turning back from that touch in the next split second hits Raikkonen's right rear, setting off the chain reaction which propels Raikkonen first into Ralf's left sidepod and then into the tire barriers in a violent crash. Until Ralf jinked left, Rubens was holding his line so Kimi would have made the pass had Rubens not reacted to Ralf's move and touched wheels.

Consequences of the Appeal

With the evidence so compelling, both the videotape replays and Ralf's admissions, the question is what has compelled Frank Williams and Patrick Head to protest the penalty imposed by the Stewards? Although the FIA's rules are not as explicit as CART's explicit statement on blocking as to "the failure of a driver to use mirrors," surely Ralf's own statement tending to support his position that he was not aware of Rubens and Kimi is simultaneously damning as an indica of negligence since he was apparently not looking in his mirrors. Not as glib and sophisticated as his older brother with the above rules applicable here, what can Ralf possibly say to the Court of Appeal to explain away his behavior since the more he argues he did not mean it the more he falls into the negligence trap.

One feature of Ralf's testimony before the Court of Appeal that you can count on is a showing of remorse, part of the bag of tricks of any defendant in any court anywhere. Back in 1997, it worked for brother Michael when the FIA's World Motor Sports Council summoned Michael Schumacher to explain why he had turned into Villeneuve at Dry Sack Corner in Jerez, Spain when the 1997 World Championship was on the line. By the time the matter was heard it was post-season and the World Council apparently accepted Schumacher's expression of remorse. Said Michael:

"I am human like everyone else and unfortunately I made a mistake. I don't make many but I did this time: . . [M]y reaction for sure in the future would be different. You are so determined to fight and do your best. I took a wrong judgment. I will have to live with the consequences of this."

Max Mosley elaborated on the thinking of the World Council in making its decision on Michael Schumacher, commenting as follows:

"It was an instinctive reaction. If we though it was premeditated then we would have to take a very serious view. It is still a very serious matter and it is a major penalty we have imposed [exclusion from the results of the 1997 Drivers' Championship.]

"In this particular instance, both Villeneuve and Schumacher were under enormous pressure. They had one point between them, they had people shouting in their car 'he is just one second behind you' and the pressure, in those circumstances, is enormous.

"Schumacher did the wrong thing, obviously, but all the evidence points to him reacting instinctively. Had he thought about it, for one second, he would have allowed Villeneuve through. Schumacher is a human being and every now and then he will make a mistake. He admitted he did it deliberately, but instinctively, and it was the wrong thing to do."

Turning to Ralf's situation, however, it is not obvious what latitude the Court of Appeal would have in fashioning a remedy presuming they wanted to go easy on Ralf since the penalty imposed by the Stewards was clearly one of the three authorized under the FIA's rules and the other two penalties are intended to be imposed during the race when the incident occurred, opportunities which have now passed.

Chapter XIII of the International Sporting Code, Article 189, does state that the Court of Appeals may decide that the penalty or other decision appealed against should be waived and, if necessary the penalty mitigated or increased. The Court of Appeals can also award costs to the FIA as to the amount of expenses incurred by the FIA in preparing the case. To make matters worse, if the Court of Appeal considers the appeal of the BMW-Williams Team to be "frivolous," the "appellant may be sentenced to a fine of 153,000 [Euros] in addition to any other fee." (Article 185)

A final intriguing feature of this case is how and when Ralf's punishment is to be served since the penalty is intended to punish the driver for his misconduct, not the team. In the only other case where the penalty of dropping 10 places was imposed, last year when the Steward's punished Felipe Massa for rough driving against Pedro de la Rosa at Monza, the Sauber team avoided feeling the effect of the penalty by simply sitting Massa down for a race and putting Heinz-Harald Frentzen in his place.

In Ralf's case, Williams, above all teams, cherishes winning the World Constructors' Championship, which means having both drivers available to contribute to finishing in the points. The points currently stand at Ferrari 120, Williams 118. If the current penalty stands, Ralf's best grid position will be 11th place, not a promising place from which to score points. Is it conceivable that Williams will abandon Ralf or request a one-race suspension for him in lieu of dropping Ralf down 10 positions on the grid, so that the Williams team can run the Hungarian Grand Prix with another driver to help Montoya score constructor points? It is said that the Williams team has a policy of not coddling its drivers but hanging Ralf out to dry in this way is probably something that is too Machiavellian even for Formula One.

Or is it?

Thomas O'Keefe is a lawyer in the U.S. Virgin Islands and a senior writer for Atlas F1

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