A chequered race

“No Mikey! That was so not right!” At the end of a tumultuous Formula 1 season, the words of Mercedes team principal Toto Wolff to race director Michael Masi during the last lap of the final Grand Prix will echo for years, one suspects.

The Abu Dhabi Grand Prix was to be a winner-takes-all clash between seven-time champion Lewis Hamilton (Mercedes) and Dutch Wunderkind Max Verstappen (Red Bull).

After a year of crashes and controversy, the two were level on points going into the race. With six laps to go, and Hamilton leading by 11 seconds, Canadian driver Nicolas Latifi crashed and the safety car was brought out to clear the track. With one lap remaining, Masi allowed some (but, crucially, not all) of the lapped cars in the race to pass the safety car prior to a restart, in order to set up a one lap shootout between Verstappen and Hamilton. This eliminated Hamilton’s hard-earned lead and enabled Verstappen, on newer and sharper tyres, to pass Hamilton and win the race, and with it the championship.

Mercedes launched two protests under the Fédération Internationale de l’Automobile (FIA) articles (the Formula 1 rulebook). The principal one related to article 48.12, which states: “any cars that have been lapped by the leader will be required to pass the cars on the lead lap and the safety car”. Rejecting both protests, the FIA argued that “any” in article 48.12 does not mean “all” lapped cars (i.e., they were not strictly required to let all cars pass). Further, Masi had “overriding authority” in relation to the safety car and his decision was accordingly valid.

It was widely reported that Mercedes intended to challenge the FIA’s decision, first in the FIA Court of Appeal and, if unsuccessful, at the Court of Arbitration for Sport (CAS). However, it was later announced that Mercedes would not pursue the appeal but had instead entered into “constructive dialogue” with the FIA with a view to creating “clarity for the future”.

While it is difficult to provide a definitive view as to the likelihood of success had Mercedes pursued their appeal, any challenge would form part of a wider discussion on the decision-making processes of governing bodies.

Impartial tribunal?

Under the FIA articles, the FIA Court of Appeal is the sole arbiter for settling disputes. It is important to note that the arbiters on this court are appointed by the FIA itself. One can easily see an argument that the arbiters would not wish to find against their appointers, for fear of tarnishing the governing body’s reputation.

For comparison, one only needs to look back to 2020, and Manchester City’s challenge of their financial fair play sanctions on being banned from UEFA competition for two years. Manchester City appealed initially to a decision making body of UEFA itself. When this failed, they further appealed to CAS, claiming (among other grounds) that UEFA’s process was prejudicial as the decision-making body had an interest in upholding UEFA’s decision.

While CAS ultimately found in City’s favour on time-barring and evidential issues, City’s ability to appeal to CAS arose due to the (perceived) prejudicial nature of UEFA’s decision-making process.

Also in 2020, the International Skating Union (“ISU”) case saw ISU sanctions against certain skaters (for competing in unauthorised competition) overturned by, first, the European Commission (“EC”) and latterly the EU General Court (“GCEU”). Under ISU rules, the skaters were required to raise their challenge initially through the ISU arbitration process and accept the exclusive jurisdiction of CAS. When the arbitration found in favour of the ISU, the skaters appealed to the EC, claiming (among other grounds) that CAS’s exclusive jurisdiction was a restriction of commercial freedom.

This exclusive jurisdiction was found to be a foreclosure of the ISU’s potential competitors under the eligibility rules. The ISU appealed to the GCEU, which upheld the EC’s decision. While this case was ultimately decided on breaches of competition law, an important consideration for the EC and GCEU was the ISU decision-making and appeals process.

Serious questions

Accordingly, there is precedent for courts taking a dim view of sporting bodies marking their own homework, so to speak. While the circumstances of each case are very different, it is certainly food for thought in the context of the Formula 1 controversy. Although we will not see this dispute carry through the courts, it is interesting to consider Mercedes’ prospects of success in convincing the FIA’s own arbiters to find against the FIA, as well as whether they would have had success appealing any unfavourable finding to CAS. These are matters to consider independently of the dispute itself.

Regardless of Mercedes’ decision not to appeal, many will still ask the question: did Masi truly have overriding authority in relation to the safety car? Or were the FIA articles misapplied?  Racing fans will also have to consider what impact this will have on the perception of Verstappen’s championship in years to come.

The race and its aftermath have raised serious questions about the FIA’s decision-making process, and it will be interesting to see the impacts of the “constructive dialogue”. Sports lawyers will be closely monitoring any developments.