By Jonathan Noble, England
Autosport-Atlas GP Editor
In the middle of the Paris courtroom, once the scene of Gestapo interrogations in WWII, stood the bone of contention between the FIA and BAR, awaiting to be exposed like a Pandora Box that will change the future of F1. As Technical Director Geoff Willis bickered with Technical Delegate Charlie Whiting, and while BAR's lawyer David Pannick cross-examined Jo Bauer, a model of the now famous BAR007 fuel tank remained untouched and under covers. In the end, it turns out, Exhibit A was never really the issue. Jonathan Noble returned from Paris with the arguments and contentions made by both sides, in the matter of the FIA versus BAR
They walked, Reservoir Dogs style, into the FIA Headquarters at 8 Place de la Concorde with their heads held high and a confident swagger to their step. Yet behind the bullish smiles and declarations of confidence of what lay ahead, it was clear for every one of the dark-suited members of BAR present in Paris on Wednesday that this was a big deal.
For a team that has yet to win a Formula One Grand Prix, there was no hiding away from the fact that they simply cannot afford to lose this week's FIA Court of Appeal hearing into the legality of Jenson Button's BAR at the San Marino Grand Prix. Hence the nervous shuffling, the last-minute checking of documents and the hushed conversations as they waited to enter the court room.
And if the team had been under any illusions about the severity with which the FIA were taking this case, it was delivered a major wake-up call in the final paragraph of the dossier the team were sent in the week after the San Marino event.
After putting out their case, the FIA had simply said: "The FIA (Sport) asks the Court to exclude the Lucky Strike BAR Honda team from the 2005 Formula One World Championship and to fine the team at least one million Euros."
No wonder, then, that BAR's chief executives had not wished to take any risks in putting their legal case across. A call went out to leading barrister David Pannick, one of the top legal men in England and a man referred to by one of the team's big wigs as: "The Mount Olympus of Sports Lawyers."
Pannick is no stranger to high profile cases. He worked on the 'Spycatcher' trial, has represented the Queen and tennis player Greg Rusedski - and was clearly not a budget option for the team. But with millions at stake, no price was too much for BAR.
After what must have been a crash-course in Formula One fuel and weight regulations for BAR's legal team, the battle lines were clearly drawn as the two sides shuffled quietly into the courtroom - apparently the scene of SS and Gestapo interrogations in World War II to flush out French collaborators.
In front of the judges, three rectangular tables were laid out across the room. To their left, Pannick held court with his legal assistants, while on the right the FIA general secretary Pierre de Coninck sat with his legal assistant and F1's technical delegate and race director Charlie Whiting. Bang in the middle, in front of a row of chairs where witnesses from the BAR team and FIA sat, was an empty table that would be used for cross examination. The fight was drawn over the next two-and-a-half hours.
Those expecting a no-holds barred explanation of the much talked-about secondary fuel tank and full analysis of lap times, pit-stops and refuelling tactics to reveal BAR's innermost secrets were to be disappointed. Instead, much of the debate was turned over to legal arguments and niceties.
Some of the questioning was pretty obvious, friendly stuff - the favourite moment for many being when technical director Geoff Willis sat down and was asked by Pannick: "Are you Geoffrey Willis?"
Some of the legal talk was clearly designed to ease tensions. In his opening statement, Pannick went out of his way to make sure he would not bore the judges with repetitive statements. "I will only address you once sir, that is enough," he remarked. "There is a limit to your patience."
But there were times when the questioning had an edge to it too - most notably when F1 technical delegate Jo Bauer certainly appeared uncomfortable as Pannick nit-picked his way through the procedures and paperwork the FIA produced at Imola.
Ultimately, though, this wasn't about show - it was about either BAR or the FIA proving their case over Button's car.
And although the arguments did not answer all of the speculation that has been thrown about ever since it became clear that all was not right with the BAR007 after the San Marino Grand Prix, the session in Paris did allow us at least to get a grip on what the issues actually were.
After BAR had successfully managed to convince the FIA's race stewards at the San Marino Grand Prix that their car had never run under the 600kg minimum weight limit during the race, much of the post-event speculation focused on whether the team had actually breached the regulations in this area.
The inference was clear: BAR could have gained an advantage at Imola by using up the fuel in the 'secondary tank' prior to the first and second stops, to allow the car the benefit of extra speed for being illegally light, before filling the car up at the second stop so it would pass any post-race inspection.
Although this matter was believed to be crux to much analysis, proceedings at the Court of Appeal's hearing hardly touched on this matter at all - and there was no specific investigation or suggestion that BAR had run under the 600kg at any point of the race.
Team boss Nick Fry was quick to point this out afterwards. "It was never challenged that the car was below the minimum weight limit," he told reporters straight after the hearing. "That wasn't even raised and I think that is a good point to start with - that we were above the 600kg, which of course we have always maintained."
Yet although both the FIA and BAR are happy to concur on the fact that the BAR weighed above 600kg during the entire San Marino Grand Prix, the hearing was not as clear cut as Button's BAR007 simply being above the legal weight. It went much, much deeper than that.
Defining the Minimum Weight Limit
FIA race director and technical delegate Charlie Whiting is no fool when it comes to uncovering teams trying to get around Formula One's regulations. His time as a team manager in F1 means he is in effect a 'poacher-turned-gamekeeper' - and more than ready to close off potential loopholes in a sport where regulations change frequently.
The return of refuelling to Formula One at the start of 1994 obviously opened up the possibility of teams adopting the tactic of running their cars light prior to their final stop, to benefit from a lack of weight, before filling them up with extra fuel at the final stop to ensure that they came in above the minimum weight limit at the end of a race.
To close off the possibility of such an obvious advantage, the FIA made it clear in 1994 that cars would be weighed after the race without fuel on board. This action caught out the Footwork team at that year's Canadian Grand Prix when Christian Fittipaldi was disqualified from his sixth placed finish in that race for being underweight.
Several days after that race, F1 think tank, the Technical Working Group, held one of their regular meetings and one item up for discussion was the 'minimum weight issue'. According to Whiting, it was agreed that F1's minimum weight limit would be set without fuel on board. He said: "This was discussed, so the practice was well known."
BAR obviously did not exist in 1994, and Willis was not a technical director at that time, but it has been widely accepted in F1 since that the FIA ensures teams do not run underweight by weighing the cars at the end of races without fuel. In fact, Bauer said during witness questioning that BAR had been subject to that 'fuel drained' test five times during 2004 and three times in 2003 - and they had never previously fallen below the 600kg limit.
Whiting and the FIA's definition of a minimum weight limit is completely different to what BAR feel it is, however - and the Court of Appeal hearing went into great philosophical debate at the actual definition of 'minimum weight'.
The TWG's understanding of defining minimum weight was not followed through into an actual technical or sporting regulation that states clearly 'weight will be judged of the car with no fuel.'
Pannick openly pointed out that such strict wording exists in sportscars and production car racing, but does not exist anywhere in the Formula One regulations.
F1 regulations are notoriously vague, however, and often open to interpretation (as was well witnessed over the 'Michelin-gate' tyre controversy in 2003), and the FIA's response to the lack of a definitive regulation over the dry weight of cars comes from how the FIA have decided they get absolute proof teams do not run underweight.
It is no good, according to the FIA, that the team can prove with data and software that their car was above the 600kg minimum weight limit - because the sport's regulations demand that teams can prove only through 'physical' examination that they comply with the regulations. That means a dry weight check is the only way to guarantee teams did not run underweight.
Whiting said about BAR's proof that they did not run underweight: "They produced a lot of data but parts of that which we can substantiate without referring to the data produced by the team is the start weight, finish weight and the amount of fuel in the car. The team need to satisfy the [scrutineers] and technical delegate by physical inspection, which they are unable to do."
Yet BAR's view of the minimum weight limit itself is completely different. Willis himself was at pains to point out that the definition of minimum weight was not the same as its 'dry weight'.
"If you want to determine the dry weight of the car, then you need to pump out the fuel - but that is not stated in the regulations," he said. "We only have to ensure that the car is above 600kg during the race and 605kg in qualifying."
BAR are convinced their philosophical view of the minimum weight limit stands - and from the outside it certainly appears to be just the kind of 'clever' interpretation of the regulations that allows teams to try and bend rules in their favour. Is the argument good enough to convince the judges, though?
The 'Secret' Fuel Tank
When rumours about the so-called 'secret compartment' in the BAR fuel tank first surfaced, it seemed like something out of a science fiction movie.
No-one other than the parties involved could be completely sure about whether this extra tank actually existed, but the court hearing confirmed its existence - and made it evident that the tank itself was not actually illegal.
Although there was no official word on rumours that the FIA got a tip-off from ex-BAR employees about the fuel tank, Bauer confirmed that he had first become aware of this extra compartment at the Malaysian Grand Prix after all teams' fuel tanks were checked for materials and size after a request from the Technical Working Group.
So what was the tank for? The FIA's assertion was that it existed to hide fuel from the scrutineers so it could be used as ballast to help the car come in above the 600kg weight limit at the end of the race.
The 9kg capacity of the tank, with that weight not counted by BAR as any form of ballast, would in effect mean the team had no penalty from the need to have quite a lot of fuel on board for their engine to run faultlessly. It could give the team a couple of kilos' weight advantage over their rivals in races, as well as the possibility of using extra fuel to stay out on the track longer.
BAR's view of it is completely different. They claimed that the tank was so big simply because that is the minimum amount of fuel the BAR007 needed for the engine to run perfectly - which is vitally important with the switch to two-race engines this year. Most teams run similar collector tanks to ensure efficient pumping of the fuel into the engine - although not all of these are as big as 9kg.
Bauer said the existence of the tank itself in Malaysia was not grounds for any specific concern in itself, which is why he somewhat crucially said he did not believe the tank to be 'secret' when questioned by Pannick. "It is not a secret mechanism," he said. "It is an additional tank and we are aware of it."
The FIA decided to keep an eye on potential use of the second compartment as a place for fuel storage - but that check could only happen when BAR finished a race. The early race disasters in Malaysia and the late retirements in Bahrain, meant Imola was the first opportunity for a closer post-race look.
As Bauer said: "The thought was that if we had to drain the fuel then we would have to have a closer look to see if there was fuel in it or not."
Have Other Teams Got the Same Thing?
One of the more interesting aspects of the BAR defence is that they believe their fuel system is not unique. Bauer himself refused to expand on whether that was the case when questioned by Pannick. He said: "I won't answer this question because of commercial [confidentiality]."
The inference from Pannick was that BAR are not alone in using a separate collector tank - and the team's readiness to bring a typical example of the tank to the court showed how willing they were to prove it - even if the tank stayed in its cover.
But the argument about BAR being alone reaches a dead end amid the realisation that it is the team's use of the tank that is the issue here, not necessarily the existence of the secondary tank.
A rival team, or even BAR themselves, could quite legally use their secondary collector tank to store that minimum amount of fuel needed to keep the car functioning, providing that that fuel was not included in the 'dry weight' calculation at the end of the race.
As Bauer himself said in court, when asked by one of the judges whether the system itself was illegal: "The system as a system is fine."
Fuel as Ballast
So although the second fuel tank itself was not illegal in the eyes of either BAR or the FIA, there were ways of using the secondary fuel tank that would be in breach of the regulations.
Bauer's knowledge of the compartment from Malaysia guaranteed a closer examination in BAR's post-race check at Imola - and meant the team would be required to empty their main tank and this secondary tank of fuel to ensure that there was no extra fuel in it after the race.
Usually most post-race checks of the fuel tank involve merely what is called a 'lifted pump drain' - where the front of the car is lifted to tip up the remaining petrol in the tank to allow it to be easily removed.
In BAR's case, however, a 'lifted pump drain' was not enough to get the fuel out of the second tank. That required a special 'hoover' device - and BAR were at pains to suggest that the use of such a device to remove fuel not in the main tank was not normal.
Willis said: "We are aware of, from time-to-time, fuel tanks being pumped out of competitors' cars. I am not aware of pumping out of the entire fuel system of the car.
"It is normally my experience that when you pump out the main fuel tank you leave fuel in the collector. The only time we pump out the full tank and collector is when we want to remove the bag from the car itself."
One source close to a major team has suggested that collector tanks are not normally drained of fuel because the amount of petrol in them is negligible when it comes to cars getting over that 600kg weight limit.
This prompts the suggestion that BAR may have been aware of the secondary tank not getting inspected and somehow decided to push a possible 'loophole' in the rules by making it excessively large.
One of the key clashes from the Court of Appeal hearing came between Willis and Whiting - separated by just a few feet and, barely making eye contact.
Charlie Whiting: "Can you confirm the FIA relies on the team to drain fuel?"
Geoff Willis: "The request we had to do was a lifted pump out."
Whiting: "So did you feel duty bound to take all fuel out?"
Willis: "The instruction was for a lifted pump-out..."
Then came one of the key arguments from BAR - that the extra fuel in the collector tank should not count as 'fuel ballast' as such and should count as actual weight on the car.
Whiting: "Do you believe fuel in the collector should be left in the car (after the tank is emptied)?"
Willis: "The car required fuel in the collector to work; that is the position we use for our own weight calculations."
Whiting: "Do you consider the weight of the fuel in the collector to be part of the car?"
Whiting: "So why did you not object to it being drained?"
Willis: "We had no objections - if the FIA is asking us to drain the fuel from all systems, then we are duty bound to follow the request of the FIA."
Whiting then pushed Willis on one of the big arguments against teams being allowed to count fuel in their collectors tanks as weight of the car. If BAR could count the 9kg of fuel in their collector at Imola, is there a limit to how much fuel could be stored in one? Would teams then be able to build collector tanks with 50kg of fuel?
Whiting: "How big can a collector be if you say it shouldn't be drained?"
Willis: "Our collector is 9kg, because it was designed in response to the introduction of our high pressure fuel system. Track testing has suggested we need a minimum of 6kg in the tank, those tests conducted pre-season there may be circuits in the calendar that require more than that so we needed more than that."
Deliberate or Accidental?
The single incident that lays central to moving the BAR case from that of a simple breach of the regulations to an act of 'fraudulent conduct' as the FIA claim, is of the allegation that the team declared the BAR007 was empty of fuel at its inspection, prior to the extra fuel being found in the secondary tank.
The FIA's submissions state: "Car No 3 was drained of fuel after the San Marino Grand Prix. About 160g of fuel was recovered. The BAR representatives were asked if that was all the fuel in the car. They replied that it was."
This conversation had been rumoured since the San Marino Grand Prix but it was not completely clear as to which member of the FIA spoke to which member of the BAR team.
The Court of Appeal hearing cleared up the fact that FIA technical team member Kris de Groot asked BAR truckie and fuel filler Chris Fry about the fuel - although the exact specifics of the conversation differ between the two parties.
The team claim that they were not asked to remove all the fuel from the car - only to do a 'lifted pump out'.
BAR team truck driver Chris Fry, who also acts as their fuel man, took the witness stand and disputed the FIA's version of events.
"He (de Groot) asked me to do a lifted drain, which we did. He asked 'Is that all?' So I said 'Yes'."
But de Groot, who submitted his report after the San Marino Grand Prix, is insistent that he requested a complete drain of fuel from the car. Here is how the conversation between Pannick and de Groot clashed over what was said:
David Pannick: "I would like to ask some questions about when car was drained of fuel. You specifically asked for a lifted pump out?"
Kris de Groot: "No, I asked for a full drain."
Pannick: "There is a conflict of evidence here, what is said by BAR is that you asked for a lifted pump out."
de Groot: "No, I asked for a full drain."
Pannik: "Would you say that on no other occasions you have asked for a lifted pump out?"
de Groot: "No, I asked for a full drain."
Pannick kept pushing on the specifics of de Groot's demand - and in a deadpan response to further probing he cheekily hit back: "most of the teams understand the term 'full drain'."
De Groot also appears to have been non-plussed by alleged delays in getting to the bottom of the contents of that secondary tank after the Imola race. In his report he states there was 'head scratching', and in his testimony he even remarks at one point: "I wanted it out to get weighed. I said, 'If need be we will get a syringe and a measuring jug'."
The step from a breach of the regulations to the act of deliberate cheating is one that BAR most strongly refuted.
As Pannick emphasised: "My concern is what BAR-Honda faces in this case is not simply an allegation that we acted in breach of the rules. I want my witnesses to assure you that whatever view you take on the meaning of the regulations, there is no question of fraud, bad faith or deception because that is the matter of highest importance to them as men of integrity."
Willis equally insisted that there was no act of bad faith from the team - even though their interpretation of the weight rules is clearly in contradiction to the FIA's.
"We have a culture of safety and integrity," he said. "At no point would I allow the team to do anything illegal and I have made this clear in several meetings with the team."
But BAR's stance of acting in completely good faith is questioned by the fact that they never asked for clarification from the FIA over the use of the tank - even though it is common practice in F1 for teams to get approval from Whiting before pressing ahead with possible items of contention.
"It is normal for teams to ask whether things would comply," said Whiting. "BAR asked 14 questions last year about relatively minor points but this is something of great significance. I think it is unusual for them not to have asked. I think that is important to note."
Whatever the ruling of the judges from the Court of Appeal, there are widespread implications from this case that will have an effect on Formula One - and perhaps change the sport from this weekend's Spanish Grand Prix.
Obviously BAR's very future as a successful F1 team is at stake here. A ban from the Championship will affect staff and reputations, and could have long-lasting implications for team sponsors and engine partner Honda, who have just bought a stake in the team. There would also be the possibility of civil court action, racing under appeal, and a lengthy summer of legal arguments.
Such a harsh outcome is unlikely, indeed, but even the more likely disqualification from Imola and multi-race ban will cause a major shake-up at the team. The lack of points - potentially leaving it with zero from the first half of the year - would severely damage their Constructors' Championship hopes, leaving them down the ranks, which will hurt them financially.
BAR's possible absence from races would then open up the possibility of the grid falling to just 18 cars temporarily - which could then require some teams to run third cars, despite commercial rights holder Bernie Ecclestone stating it won't be necessary. Should a ban start this weekend, then Marc Gene and Pedro de la Rosa would almost certainly put pressure on their bosses at Ferrari and McLaren to allow them to race at their home Grand Prix.
Longer term for BAR, any punishment that results in a loss of points will likely cost them Jenson Button. The Briton has the option to join Williams in 2006 if he has not achieved 75 percent of the World Championship leader's points by the Turkish Grand Prix - a feat that looks difficult now and would be impossible if the team miss races.
A simple disqualification from Imola, or even a slap over the wrist and a 'don't do it again' verdict would still lead to the team facing a performance handicap for the rest of the year. If, as Willis claims, the BAR cannot operate without less than 6kg of fuel in the collector tank, then it will never be able to run a car that is anywhere near the 600kg limit during races because they cannot count that fuel as car weight.
Victory for BAR on Thursday, however, would cause a major shake-up in F1 garages. Those teams that do count all fuel as ballast will be forced to change their stance and start playing around with the use of 'collector' tanks to get their weight down. Those teams who are forced to currently race with the penalty of extra fuel weight, because of their engine's needs, will no longer face a handicap.
BAR clearly are not going to be alone on Thursday in waiting by the fax machine for the judges' verdict.