A Motion to Dismiss

Should McLaren have appealed to the FIA's International Court of Appeal (ICA) the stewards' decision, post-race at Interlagos, that BMW Sauber and Williams had breached the FIA's fuel temperature regulation? That is a matter for sportsmen and, to some extent, for chemists.

Whether McLaren can appeal the stewards' decision is, unfortunately, a matter for lawyers, with whom Formula One is increasingly populated these days.

According to McLaren F1 CEO Martin Whitmarsh, the rationale for the appeal is as follows: "We were surprised at and don't really understand the stewards' decision ... Therefore, we feel that if we hadn't lodged our intention to appeal we would surely have been criticized by fans and Formula One insiders alike for not supporting our drivers' best interests."

However, much intellectual curiosity McLaren may have in understanding the stewards' decision, do they have grounds for an appeal under the ICA Rules and, if so, have they followed the proper procedural route to perfect an appeal?

Jurisdiction

The ICA is the Supreme Court of racing, but like every court it has its rules about how a case comes before the ICA.

Article 1 of the ICA's Rules is entitled "Competence with Regard to Disputes" and states which parties can bring on an appeal and on what grounds.

Article 1 makes it clear that appeals mostly come not from the teams themselves but from the motorsports authority that represents them in their home country.

Here is the provision that was applicable in the McLaren/Ferrari Stepneygate case when the Italian motorsports federation brought on the matter. "From National Sporting Authorities [the ICA] will hear ... Appeals brought by National Sporting Authorities on behalf of ... competitors ... or any person or organisation which has been the subject of a sanctioned pronounced by the World Motor Sport Council."

The FIA headquarters in Paris, France © LAT

Has McLaren "been the subject of a sanction" within the meaning of the ICA's Rule? Ron Dennis probably thinks so, but will the ICA agree?

Another conceivable ground under Article 11 of the ICA's Rules is an "appeal from decisions of the stewards of the meeting, lodged by at least one of the parties concerned."

Note the word "lodged" - the same term used by the careful Whitmarsh. Again, McLaren may feel very much affected by the "Cool Fuel" imbroglio but are they one of the "parties concerned" within the meaning of the ICA Rules?

Still another ground of appeal respecting stewards are "appeals from decisions of the stewards of the meeting where the parties concerned have jointly decided to submit the appeal, not to the National Court of Appeal of the country of the event [in this case, the Supreme Federal Tribunal in Brazil] but directly to the ICA with the assistance and agreement of their respective National Sporting Authorities."

I suppose if BMW Sauber and Williams felt strongly about it and wanted to jointly submit the matter to the ICA for a direct appeal to clear their names of cheating, then this provision might provide a ground for appeal, but surely McLaren cannot find solace here as a ground for its appeal.

Advisory Opinions

In the Supreme Court of the United States, there are rules that prohibit the issuance of Advisory Opinions; the Court limits its jurisdiction to cases where the parties have "standing", where there are actual cases and controversies as opposed to theoretical issues at stake, and where the matters are ripe for adjudication.

In the main, the ICA follows the same principles, limiting the grounds for appeal to actual cases brought by parties with legal standing to do so, or to cases brought by the FIA itself or from National Sporting Authorities.

But there is one route for appeal by McLaren to bring on Martin Whitmarsh's query even if McLaren has no "standing" under the ICA's traditional grounds for appeal: through FIA president Max Mosley's front door - perhaps of all of the doors in the world, the one that Ron Dennis least wants to knock on just now, having come out $100 million poorer the last time he knocked.

Article 2 of the ICA Rules is the conceivable source of McLaren's right of appeal. Article 2 is entitled "Consultative Competence" and states as follows:

FIA president Max Mosley and McLaren CEO Ron Dennis at Spa, September 2007 © LAT

"The President of the FIA may also refer a matter to the ICA in order to obtain a non-binding interpretation regarding the application of the sporting or statutory rules enacted by the FIA. In order to reach an informed interpretation, the ICA may call upon any expert, witness, or person showing proof of relevant and recognised experience."

In the "Missions" portion of the ICA Rules there is another reference to the FIA President's power, as follows:

"The ICA shall judge definitively any dispute or conflict ... [and] consider any matter of a sporting nature which may be submitted to it by the President of the FIA."

So unlike the Supreme Court of the United States and many other jurisdictions, the Supreme Court of Racing can be in the business of giving Advisory Opinions, but only if the President of the FIA puts it in that business.

In recent times, we've seen Mosley refer a few cases to the Court of Appeal - for example, the debate over the legality of Prodrive's entry to the 2008 Formula One World Championship, which the president submitted to the ICA following complaints from Williams. That case has yet to be heard.

Another example, all too familiar to McLaren, is of course the spygate affair which, after the July 26th hearing at the World Motor Sport Council - where McLaren escaped unpunished - Mosley referred to the ICA following complaints from the head of the Italian motorsport authority. Of course, that case never made it to the ICA room: shortly before the hearing, Mosley withdrew the appeal and referred the matter back to the WMSC due to new evidence in that case...

Motions to Dismiss

The ICA has a reputation for acting swiftly, as befits a Supreme Court of racing. In light of the posture of McLaren's appeal, the ICA could very easily dismiss the appeal on its own, sua sponte as the lawyers say.

Or conceivably, a competitor like Ferrari could intervene in the proceedings and move to dismiss McLaren's appeal due to the absence of standing or other grounds of appeal.

Either way, it is to Mosley, as President of the FIA, and not directly the ICA itself, that McLaren will have to turn if they want a non-binding but informed interpretation of how fuel temperature readings in a hot day in Brazil may have won back a world drivers' championship that was lost on the race track.