What next after Briatore’s explosive McLaren rant?

In the months since the Formula 1 Monaco Grand Prix, the argument over Alpine driver Pierre Gasly’s penalty for pitlane speeding has taken on the aspect of Jarndyce vs Jarndyce, the infamously torturous probate case in the background of the Charles Dickens novel Bleak House. In the book, the proceedings last so long that the legal costs consume the value of the estate.

Likewise with the Monaco question. Did anyone really care anymore by this point? Vanishing few apart from those with an agenda to gain points (at Alpine’s expense) or make a point (at the expense of those responsible for the pitlane speed limit farrago).

The long and the short of this case is that Gasly, one of several drivers handed penalties for speeding in the pitlane in Monaco, did not serve his two separate penalties during the race because the team felt they had been incorrectly applied. As a result, he gained track position and finished third on the road, but then was demoted to seventh when the two five-second penalties were added to his race time.

On appeal Gasly was reinstated on the podium when Alpine appeared to have successfully built a case around the measurements for the pitlane timing loops being found to be incorrect. Friday’s FIA International Court of Appeal hearing reversed that, on account of it being unfair to apply one set of measurements to all the other competitors but a different (later) one to the competitor appealing the result.

At the time, Alpine released a statement acknowledging the finding, but expressing its disappointment. It’s understood that nobody within the team was expecting what happened next: ‘executive adviser’ Flavio Briatore launching into a furious and often barely coherent rant in the Friday FIA press conference, accusing one of the four ICA judges of being biased towards McLaren on account of previous connections with the business.

McLaren team principal Andrea Stella, also present, was palpably furious. For a few seconds the normally sedate proceedings threatened to descend into something akin to one of those 1990s TV ‘chat’ shows with screen captions such as "I Know You’re Cheating – Stop Blaming The Dog!"  and security has to intervene to prevent the guests tearing each other’s hair out.

“What is unfair is that the judge was linked with McLaren,” continued Briatore. “This is unfair. The judge normally being completely independent and this judge, the name is Filippo Marchino.

“Filippo Marchino is a judge, he was very nasty during the hearing, was acting as a prosecutor. And after we found out what is the reason why so nasty, this guy. He is very linked with McLaren.”

What are the McLaren ‘links’?

Andrea Stella was palpably furious in the press conference

Photo by: Mark Sutton / Getty Images

While it is impossible to preside over whether Marchino’s conduct was “nasty” without access to a transcript of proceedings, it is fair to say that his links with McLaren appear to be tenuous. Marchino is an Italian-American lawyer and rally competitor who since 2018 has served as CEO of the One Drop Foundation, a charity founded by Cirque du Soleil impresario Guy Laliberte.

Briatore says McLaren gave the charity “two, three McLaren cars”. It’s understood that this is the case, but that the cars were gifts from the late Mansour Ojjeh, a key McLaren Group shareholder, to Laliberte for the purposes of raising money for the charity via auction. Ojjeh died in 2021.

Briatore also spoke of a photograph in which Marchino spoke at a McLaren Special Operations event in Beverley Hills in 2018. This is available on Getty Images. But MSO is a division of McLaren Automotive, a separate entity from the racing team – so, as with the car gifts, the connection is somewhat tenuous.

What happens next?

In the immediate aftermath of the press conference a curious game of pass-the-parcel ensued: FIA insiders suggested this was really a matter for McLaren and Alpine to sort out with one another; McLaren insiders said it was nothing to do with them; and the mood music from Alpine was that it had nothing to add to the statement it issued immediately after the ICA judgement was announced.

The FIA statutes outline the eligibilty criteria for membership of the international tribunal and ICA. An eligibility assessment committee vets potential candidates. The president of the ICA is then responsible for appointing judges – of which there must be at least three – for each case put before the court.

The judges for Pierre Gasly's case were selected six weeks before the hearing

Photo by: Alastair Staley / LAT Images via Getty Images

It is understood that the judging panel was chosen six weeks before the hearing, at which point the parties to the case could have lodged objections to the appointees.

The FIA may yet adjust its position on Briatore, given president Mohammed Ben Sulayem’s history of being highly protective of volunteers and officials. His predecessor Max Mosley was wont to punish those he deemed in violation of article 151[C] of the international sporting code, a catch-all clause pertaining to bringing the sport into disrepute.

The ICA itself issued a statement on Saturday morning clarifying its position:

"The FIA Courts wish to make clear that the appointment and participation of the judges in that case, like for any other case, were conducted in accordance with the applicable FIA judicial procedures and usual practice, which are inspired by the highest standards like the IBA Guidelines on Conflicts of Interest in International Arbitration.

"All judges are elected by the FIA General Assemblies, some of them upon proposition of a group of at least five F1 teams in accordance with the FIA Statutes. They are all subject to the independence and confidentiality requirements contained in the FIA Judicial and Disciplinary Rules, make annual disclosures of interests to the FIA Compliance Officer, and sign a specific declaration of independence for each particular case in consideration of the issue at stake and the parties involved, which is served to the parties.

"At both the beginning and conclusion of the hearing, the parties were invited to raise any issue concerning the proceedings or the composition of the Court. None did so. No objection was raised during the hearing concerning the manner in which the Court questioned the witness or conducted the proceedings.

"The ICA emphasises the importance of constituting panels with judges from different cultural and geographical backgrounds. This helps ensure that the deliberations and discussions reflect a diversity of legal traditions, perspectives and approaches, further strengthening the fairness, independence, credibility of the process and access to a fair trial.

"A Court's decision can leave room for various interpretations and comments as for its legal merits; that is fair and accepted by all the judges. The Court is confident in the soundness of the proceedings and the integrity of the judges. The FIA Courts remain committed to the independence and impartiality of their judges and to the integrity of the judicial process."

Should a case proceed to court,
the burden of proof falls on the
person who has made the
defamatory statement

Against this background, Marchino may also choose to act.

Defamation is a much-misunderstood area of the law; there are still those who believe that appending the word “allegedly” to a defamatory statement provides full immunity from potential claims. It does not.

In most Western nations, libel is a matter of civil rather than criminal law, the latter having been abolished since it represented a tool for the state to clamp down on dissent. Civil laws vary from country to country but generally try to strike a balance between enabling free speech and protecting individuals or entities from financial or reputational damage.

In the UK, for instance, once a magnet for so-called “libel tourism”, the 2013 Defamation Act enshrined a clear ‘public interest’ defence in certain circumstances, and requires litigants to establish that a claim has caused serious reputational or financial harm.

One factor common to civil defamation laws is that when the bar of reputational and/or financial harm has been cleared, and the case can proceed to court, the burden of proof falls on the person who has made the defamatory statement. It is not up to the accused to prove themselves innocent of the claims made against them.

As such, Briatore may have bitten off more than he can chew.