Burden of Proof

In this season that never ends, Formula One's next venue is the Supreme Court of Racing, the FIA's International Court of Appeal (ICA), located not in Paris this time, its usual courthouse, but on this occasion in the city of London given the transport strike in France.

The ICA has been asked by McLaren to reverse the decision of the Stewards at Interlagos on October 21, 2007 not to disqualify the BMW-Sauber and Williams-Toyota teams despite the findings of the FIA's Technical Delegate that the "temperature of the fuel going into the car during the race refueling ... was more than 10 degrees below the ambient temperature," which is beyond the tolerances permitted by Rule 6.5.5 of the Formula One Technical Regulations.

Procedural Posture of McLaren Appeal

Of course, before we get to substance of the fuel temperature controversy, the procedural posture of the case is still critical.

In effect, McLaren has to endure a form of knock-out legal qualifying in order to make it to the ICA hearing room in London.

As outlined in Motion to Dismiss [October 24th, Autosport.com Journal], there is a serious legal question as to whether or not McLaren has standing to bring on this appeal as a matter of right.

Although the FIA's ICA has noticed the appeal for November 15th, there is precedent for the FIA to dismiss an appeal on technical grounds for matters not properly before it.

It happened in 2005, during the first year of the then new FIA World Touring Car Championship (WTCC). Alfa Romeo and BMW were having a feverish WTCC Manufacturers' Championship battle all season long, and at the Spa races in July 2005, weather and accidents contributed to circumstances that worked against the Alfa Romeo entries.

Alfa Romeo's savvy team manager, Madame Monica Sipsz, lodged three appeals against certain of the BMW entries in an effort to improve Alfa Romeo's position in the Manufacturer's standings.

In time, one appeal was withdrawn, but two were pursued to the ICA by Alfa Romeo. One appeal concerned Stefano D'Aste, driving a BMW for the privateer Proteam Motorsport team who had a miraculous come-from-behind victory in Race 2 at Spa, but was given a three-second penalty for cutting the chicane to avoid an accident.

The basis for the appeal of Alfa Romeo was that three-second penalty imposed by the Stewards' was insufficient; Alfa Romeo wanted a heavier sanction imposed on D'Aste to push that particular BMW further down in the rankings.

Alfa Romeo also argued that the Stewards had been too lenient in failing to punish BMW drivers Dirk Muller and Antonio Garcia for a pile-up at the end of Race 2 which ruined the race for Gabriele Tarquini's Alfa Romeo. The Stewards' decision had ruled that it was a normal race incident, and no punishment was imposed on the BMW drivers.

In both cases, the ICA thwarted Alfa Romeo's attempt to challenge the Stewards' Decisions and move up in the Manufacturers' standings.

On September 15, 2005, as the WTCC season was drawing to a close, the ICA ruled as follows in the case of whether the three-second penalty on Stefano D'Aste was insufficient punishment for cutting the chicane:

"Having heard the explanations of both parties and having examined the various documents and other evidence, the Court decided that the appeal was not admissible."

In the French version of the ICA's decision, the ICA noted that Alfa Romeo's appeal was simply too late, citing Article 174d of the International Sporting Code, which provides that the lodging of protests against the results of classification shall be made 30 minutes after posting the results on the official notice board.

The other Alfa Romeo appeal was dismissed for the same reason: timeliness.

In the above case of McLaren's appeal, it is not clear that McLaren met that protest deadline, opening the door for the ICA to politely hear McLaren out, as they did Madame Monica Sipsz of Alfa Romeo, but then slam the courthouse door shut after the evidence was in.

As recently as this week, the ICA disposed of two appeals in a summary fashion, on technical grounds, which could be viewed as "fair warning" by the ICA to McLaren.

On November 9, 2007, an appeal was taken in the context of the 2007 World Series by Renault Championship, to the effect that the flat bottom and bodyshell of the Prema Power Car was not in conformity with the rules.

The appeal was considered by the ICA but then dismissed because the Italian Sporting Authority did not confirm its "intention to appeal within the time limit of 7 days as specifically required by Article 17 of the ICA Rules."

Also on November 9, 2007, in the context of the 2007 International GT Open Championship, an appeal was brought by the Spanish Sporting Authority against a Stewards' decision at the Magny-Cours race that imposed a penalty of one lap on the Autorlando Sport car for having changed its driver while the Safety Car was on the track.

Somewhat unusually, in this case the Autorlando team had initially appealed to the French courts, which reduced the penalty from one lap to 40 seconds. As a response to that action in the courts, another GT team, RSV Motorsport, lodged an appeal at the ICA against the French National Court of Appeal.

As in the World Series by Renault case, the ICA dismissed RSV Motorsport's appeal on the following grounds: "the [ICA] decided that the appeal was inadmissible as the Spanish Sporting Authority did not confirm its intention to appeal by letter as is specifically required by Article 14 of the ICA Rules."

In the case of McLaren's appeal then, the team is in the hands of the English Sporting Authority, which, in effect, 'sponsors' the appeal of its license holder - in this case, McLaren - so the timing of whatever communication was had between the Sporting Authority and the ICA could be critical in order to determine whether or not McLaren's appeal was lodged in a timely fashion.

The Merits of the Appeal

Assuming McLaren dodges these procedural obstacles and qualifies to bring on its appeal, what will McLaren's arguments be in carrying its burden of proof before the ICA?

As with past ICA hearings, the party bringing the appeal is required to submit in advance its "dossier" as the ICA characterises it, which sets forth the grounds for appeal, including "each of the arguments which the relevant party intends to rely on (which may be presented in skeleton form), the remedy sought, a list of any material evidence which the party intends to make use of during the ICA hearing ..."

Over in Woking, they must be putting the finishing touches on that McLaren dossier right now, and the problems of proof the McLaren presenters will face are no doubt dawning on Martin Whitmarsh and his colleagues and counsel.

To begin with, some of the "material evidence" is in the hands of the teams the Stewards' decided not to punish - BMW Sauber and Williams-Toyota. Is McLaren going to subpoena Frank Williams and Mario Theissen and their fuel temperature boffins to produce testimony and documents?

Indeed, one of the most striking aspects of McLaren's appeal is that there has been deafening public silence from the two affected teams, Williams and BMW.

McLaren also seems to believe that minutes of Formula One's Technical Working Group (TWG) are evidence in support of the McLaren case since the TWG had reportedly confirmed that the Formula One Management (FOM) temperature readings that are part of the live timing information would be the standard used by the FIA Scrutineers in measuring ambient temperature to compare to the fuel temperature readings.

To this point, the TWG's minutes have been kept confidential.

Apart from reliance on subpoenaed evidence from its competitors or the TWG, McLaren is left with its own fuel temperature procedures and the data it logs internally, along with the data reported in Brazil by the Stewards' Decision and the report of the FIA Technical Delegate, Jo Bauer.

As for Jo Bauer's data, it would be legitimate for McLaren to bring in all the Technical Delegate Reports on fuel readings for the whole 2007 season to prove that there has been non-compliance with the FIA's regulations.

As McLaren put it in its press release, the nub of its appeal is that the Stewards had no justification for ignoring Jo Bauer's findings:

"The team believes that the FIA has, in written clarification of the Technical Regulations and in its minutes of two Formula One Team Manager meetings, made clear how it would interpret and manage the Regulations and Procedures associated with the control of fuel temperatures.

This process was followed in the normal manner by the FIA Technical Delegate following the Brazilian Grand Prix and the irregularities were reported by him to the Stewards of the meeting.

Consequently, the team does not understand the justification as described in the decision published late on Sunday evening."

The Evidence

We do not know yet what McLaren's own data shows as to fuel temperature readings, but the FIA Technical Delegate Reports are a random walk down pit lane and do not seem to reflect any consistent application of known procedures, either as to the whys and wherefores of taking fuel temperature readings, or the standards used as to the key parameters involved.

Rule 6.5.5 states in full: "No fuel on board the car may be more than ten degrees centigrade below ambient temperature." Interpreting what those 16 words mean - how to test the fuel "on board"; no mention of the refueling equipment; no reference point in the regulation for judging ambient temperature - is what the McLaren appeal will be about.

On the FIA website, the Scrutineer Reports are archived for the 2004, 2005, 2006 and 2007 seasons. Prior to the 2007 season, a spot check of these reports reveals that no fuel temperature readings appear to have been taken at all.

The typical entry appearing toward the end of each Scrutineer Report is as follows: "The data logger of the refueling rig of car numbers x and y have been checked."

That was it. There were lots of references to fuel samples being checked for density or fuel pressure and analysed for gas chromatography, but no fuel temperature readings were taken or noted.

Fuel Temperature was a black hole; there in the regulations but more honored in the breach than in practice.

The Scrutineer's Apprentice

In 2007, the pattern of lack of interest in fuel temperature readings continued, and in Melbourne for the first race, no fuel temperature readings at all were taken.

The Australian Grand Prix Scrutineer's Report for March 18, 2007 states simply: "After the race ... the data logger of the refueling rig of car numbers 03 [Fisichella's Renault] and 05 [Massa's Ferrari] have been checked."

Raikkonen had won the race, qualified on pole and set fastest lap but his Ferrari was not checked as to data logger or fuel temperature. Massa had a tough race, starting from dead last but scratched back to sixth, and Fisichella finishing just ahead of him in fifth place.

The choice of Massa and Fisichella as the cars to test as to the data logger seemed to be random.

The Technical Delegate did not report any checks of any cars at any other stage of the race weekend other than after the race, although "cool fuel" properties would presumably be of benefit to a car's performance during qualifying as well as during the race.

In Turkey, six months later in the season, similar language is used, Alonso's McLaren and Raikkonen's Ferrari were the only "data loggers" checked at Turkey; no fuel temperature readings were mentioned.

In all other races in the 2007 season, certain cars were checked as to whether data loggers were in order as well as for fuel temperature, but in the main, the statistics continue to reflect mostly a random procedure, with no apparent rhyme or reason and very short on specificity as to the data being relied on.

In Malaysia, data logger and fuel temperature readings were made for three cars, numbers 1 (Alonso's McLaren), 6 (Raikkonen's Ferrari) and 9 (Heidfeld's BMW). Alonso, Hamilton and Raikkonen were on the podium.

In Bahrain, fuel temperature was taken on three cars, numbers 2 (Hamilton's McLaren), 5 (Massa's Ferrari) and 9 (Heidfeld's BMW). The recurring phrase used throughout these reports is "The temperature of the fuel going into the car during the race refueling has been checked for car numbers ..."

Massa won in Bahrain and Hamilton was second, so there was a certain amount of sense in selecting those two cars. Heidfeld was in BMW's customary position: fourth place. Nothing further is said as to how the fuel temperature check was made, or where or against what standard.

In every case in these reports the data logger check is also mentioned, whether a fuel temperature reading is taken or not.

In Spain, fuel temperature was taken from four cars, numbers 3 (Fisichella's Renault), 4 (Kovalainen's Renault), 16 (Rosberg's Williams) and 22 (Sato's Super Aguri). Massa, Hamilton and Alonso were on the podium, so a totally random selection.

In Monaco, there were data logger and fuel temperature checks for three cars, numbers 1 (Alonso's McLaren), 3 (Fisichella's Renault), and 5 (Massa's Ferrari). The podium was Alonso, Hamilton and Massa with Fisichella in fourth place.

In Montreal, there were data logger and fuel temperature checks for four cars, numbers 2 (Hamilton's McLaren), 4 (Kovalainen's Renault), 8 (Barrichello's Honda) and 22 (Sato's Aguri). Hamilton, Heidfeld and Wurz were on the podium.

At Indy, there were data logger and fuel temperature checks for two cars, numbers 12 (Trulli's Toyota) and 15 (Webber's Red Bull). Hamilton, Alonso and Massa were on the podium.

In France, data logger and fuel temperature checks were made for two cars, numbers 3 (Fisichella's Renault) and 10 (Kubica's BMW). Raikkonen, Massa and Hamilton were on the podium.

In Britain, there were data logger and fuel temperature checks for three cars, numbers 5 (Massa's Ferrari), 6 (Raikkonen's Ferrari) and 9 (Heidfeld's BMW). Raikkonen, Alonso and Hamilton were on the podium.

At Nurburgring, there were data logger and fuel temperature checks as to the two Red Bull cars, numbers 14 and 15. Alonso, Massa and Webber were on the podium.

In Hungary, there were data logger and fuel temperature checks for two cars, numbers 1 (Alonso's McLaren) and 6 (Raikkonen's Ferrari). Alonso, Hamilton and Raikkonen were on the podium.

In Turkey, as with Melbourne, no fuel temperatures were taken, only a data logger check for two cars, numbers 1 (Alonso's McLaren) and 6 (Raikkonen's Ferrari). Massa, Raikkonen and Alonso were on the podium.

In Italy, there were data logger and fuel temperature checks for two cars, numbers 4 (Kovalainen's Renault) and 7 (Button's Honda). Alonso, Hamilton and Raikkonen were on the podium.

Supposedly somewhere in this part of the summer of 2007 we have the TWG brooding over this fuel temperature issue pre-Spa. At Spa though, nothing special; data logger and fuel temperature checks for two cars, numbers 4 (Kovalainen's Renault) and 14 (Coulthard's Red Bull). Raikkonen, Massa and Alonso were on the podium.

In Japan, data logger and fuel temperature checks for two cars, Nos. 4 (Kovalainen's Renault), 6 (Raikkonen's Ferrari) and 14 (Coulthard's Red Bull). Hamilton, Kovalainen and Raikkonen were on the podium.

In China, data logger and fuel temperature checks for four cars, numbers 1 ( Alonso's McLaren), 5 (Massa's Ferrari), 7 (Button's Honda), 8 (Barrichello's Honda). Raikkonen, Alonso, Massa and Vettel were the top four.

In Brazil, for the first time all season, eight cars are checked as to data logger and fuel temperature, numbers 1 (Alonso's McLaren), 2 (Hamilton's McLaren), 5 (Massa's Ferrari), 6 (Raikkonen's Ferrari), 9 (Heidfeld's BMW), 10 (Kubica's BMW), 16 (Rosberg's Williams), 17 (Nakajima's Williams); as now known, four were found out of spec, so 50 percent of those tested, after a year of no car failing the fuel temperature checks.

Interestingly, in accordance with what has been suggested in certain media accounts, there is some evidence on this data that BMW has been singled out or warned based upon prior readings of fuel temperature since they were checked at five races, but Renault was the most checked car and Williams was checked only two times.

The Scrutineers did not even waste their time with Spyker and Scuderia Toro Rosso.

What does the evidence show? We know the data loggers for certain cars have been being checked for years, judging from spot checks of the available scrutineering reports.

We know that fuel samples are taken regularly throughout each race weekend and that fuel pressure checks and density checks and gas chromatography tests are undertaken on a regular basis.

We know that whenever fuel temperatures are taken, they are taken at the refueling equipment, and those results are intended to constitute the fuel temperature "on board" in the words of the regulation.

What does it all mean? Admittedly, it is difficult to tease too much out of this data, but what strikes me is that for such a supposedly important issue that had been addressed and minuted in the TWG, it is given relatively short shrift and inconsistent treatment by the Scrutineers throughout the season (including no tests at all in Melbourne or Turkey).

Additionally, there were no tests at all during qualifying, when fuel and horsepower are critical (notice that the rules do not limit the fuel temperature readings to the race, but the scrutineers apparently read the rule that way).

And checking was done by the scrutineers in a random way - as befits scrutineering - and not to cars only in the points, until the very last race when, for whatever reason, the emphasis shifted completely and all eight cars from the top running teams were checked - a veritable Fuel Temperature Offensive unlike anything else conducted by Jo Bauer at any other point in the season, which is curious indeed.

Rules are rules to be sure, but where were the rules in this case: all over the place, a bit ambiguous and not particularly well enforced, such as they were, so plenty to discuss at the ICA hearing.

There is much we still do not know. McLaren seems to place emphasis on whatever consensus was developing at TWG as to how to take fuel temperature readings, using the FOM weather readings as a standard.

But will these TWG's minutes be admitted as evidence? And even if they are, if the World Motor Sports Council has not adopted TWG's recommendations, how is what the TWG had in mind controlling with the track officials on the ground at Interlagos, the Stewards and the FIA's Technical Delegate.

As with everything in Formula One, there will be surprises at the ICA hearing, but I doubt based upon the proof available to it that McLaren will be winning in the ICA's makeshift London courthouse what was lost on the racetrack in Brazil.

Raikkonen was forced to give up a victory he had achieved in Brazil 2003 to Giancarlo Fisichella after a fouled up Stewards' decision; it is doubtful, based upon the scattered proof available to McLaren to make its case to the ICA in the fuel temperature case, that Kimi will be handing the 2007 world drivers' championship trophy back to Hamilton at Melbourne in 2008.

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- The Autosport.com Team

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