FIA WMSC McLaren decision in full The World Motor Sport Council ("WMSC") met on 29th April 2009 to consider a charge that Vodafone McLaren Mercedes ("McLaren"), a competitor in the FIA Formula One World Championship, had breached Article 151(c) of the International Sporting Code ("ISC"), which prohibits "any fraudulent conduct or any act prejudicial to the interests of any competition or to the interests of motor sport generally".
1.1 During the closing laps of the 2009 Australian Grand Prix, an incident occurred which required that the safety car be deployed. At the time of deployment, driver No. 1 Lewis Hamilton (for McLaren) was placed fourth and driver No. 9 Jarno Trulli (for Panasonic Toyota Racing ("Toyota")) was placed third.
1.2 While running behind the safety car, Trulli left the track and Hamilton passed to take third place. Hamilton subsequently moved off the racing line to the right of the track and Trulli repassed, taking back third place.
1.3 Article 40.7 of the 2009 Formula One Sporting Regulations sets out the rules governing overtaking while running behind the safety car. Article 40.7 reads, in relevant part, as follows: "All competing cars must [...] reduce speed and form up in line behind the safety car no more than ten car lengths apart and overtaking, with the following exceptions, is forbidden until the cars reach the Line after the safety car has returned to the pits. Overtaking will be permitted under the following circumstances: [...] - .
1.4 In light of Article 40.7 and the fact that Hamilton and Trulli had passed each other while running behind the safety car, the matter was referred to the Stewards of the Meeting ("Stewards") by the FIA Race Director. As part of their investigation of the incident, the Stewards summoned Trulli and Hamilton and their respective team managers to a hearing on 29th March 2009 at which the FIA Race Director was also present ("29th March Hearing").
1.5 At the 29th March Hearing, the Stewards and the Race Director asked questions regarding Trulli's passing of Hamilton. Trulli stated that Hamilton had moved off the racing line to the right of the track and had begun to travel very slowly. As a result, Trulli pulled up alongside Hamilton to see whether Hamilton would wave him through. There being no response, Trulli proceeded to pass Hamilton.
1.6 Hamilton was asked by the Stewards why he had moved off his line and whether there was a problem with his car. He informed the Stewards that there were no problems with his car and that he had drifted right because he was checking his lap time and was concerned that his tires were cold. Hamilton was then asked whether he had consciously let Trulli pass. He said "no". He was asked if he had been told to let Trulli through, at which point his Team Manager, Dave Ryan, interjected and answered "no". There were further exchanges, with the Stewards posing similar questions but Hamilton and his Team Manager were clear in their insistence that Hamilton had not slowed down and had not let Trulli through.
1.7 The Stewards considered the evidence, including the McLaren representatives' statements, and issued a decision, penalizing Trulli for overtaking while behind the safety car in breach of Article 40.7 and imposing a drive-through penalty. Since the race was already finished, the drive-through penalty was converted into a penalty of 25 seconds to be added to Trulli's elapsed race time. As a result of the penalty, Trulli was demoted from third place to twelfth place and Hamilton was moved from fourth place to third place.
1.8 From the release of the aforementioned decision until the reconvening of the Stewards in Malaysia on 2nd April 2009, no McLaren representative contacted the FIA, its Race Director or the Stewards in relation to that decision. During this time, the official result of the Australian Grand Prix was understood to be that Hamilton had been placed third and that Trulli had been placed twelfth.
1.9 Late on Sunday evening, after the official result had been published, it came to the attention of the Chairman of the Stewards and the FIA Race Director that there existed a press interview given by Hamilton in which he stated that he had been told by McLaren to let Trulli pass. Based on this information, a recording of the pit-to-car radio exchanges between Hamilton and McLaren was retrieved and examined by the Stewards and the FIA Race Director. Having been informed by Hamilton that Trulli had left the track and that Hamilton had passed to take third position, the team instructed Hamilton as follows:
"Lewis, you need to allow the Toyota through. Allow the Toyota through now."
1.10 Hamilton responded: "OK."
1.11 Having listened to the press interview and the pit-to-car radio exchanges, the Stewards reconvened on Thursday 2nd April 2009 in Malaysia ("2nd April Hearing") where Hamilton and Trulli and their respective team managers were interviewed again. Trulli confirmed his statement from the 29th March Hearing (see section 1.5).
1.12 Hamilton and his Team Manager were played recordings of the press interview and the pit-to-car radio exchanges evidencing that Hamilton had been instructed to let Trulli pass and had done so. Notwithstanding the clear content of the recordings, Hamilton and his Team Manager reconfirmed their statements that Hamilton had not consciously let Trulli pass and that McLaren had not instructed Hamilton to let Trulli pass. The Race Director and the Stewards then gave Hamilton and his Team Manager a further opportunity to correct the statements they had made at the 29th March Hearing. They declined to do so.
1.13 The Stewards found McLaren's explanations inadequate and concluded that – at the 29th March Hearing – there had been a deliberate and successful attempt to mislead the Stewards. This had led to Hamilton being moved incorrectly from fourth to third and to Trulli being unfairly penalized.
1.14 The Stewards therefore issued new decisions – Decisions Nos. 76 and 77 – respectively excluding Hamilton and McLaren from the race classification for the Australian Grand Prix and reinstating Trulli and Toyota in third place.
1.15 In comments to the press immediately after the release of Decisions Nos. 76 and 77, the McLaren Team Principal stated that McLaren stood by the representations made to the Stewards by Hamilton and his Team Manager.
1.16 Hamilton held a press conference on 3rd April 2009 at the Malaysia Grand Prix. In that press conference, Hamilton reversed the position he had taken at the 29th March Hearing and the 2nd April Hearing, apologized to the Stewards, the FIA and the public for having provided misleading information to the Stewards on both occasions, but pointed out that, during both hearings, he had been acting under instructions from his team. Subsequently, the McLaren Team Principal also apologized and announced the suspension of the McLaren Team Manager.
1.17 The FIA Observer presented to the FIA President on 7th April 2009 a report titled: "Report of the Hamilton/Trulli incident during the 2009 Australian Formula One Grand Prix and subsequent issues" ("FIA Observer's Report"), outlining the above facts.
1.18 In response, the FIA decided to summon McLaren before the WMSC to answer charges that, in breach of Article 151(c) ISC, it:
(a) on 29th March 2009, told the Stewards of the Australian Grand Prix that no instructions were given to Hamilton to allow Trulli to pass when both cars were behind the safety car, knowing this statement to be untrue;
(b) procured its driver Hamilton, the current World Champion, to support and confirm this untrue statement to the Stewards;
(c) although knowing that as a direct result of its untrue statement to the Stewards, another driver and a rival team had been unfairly penalized, made no attempt to rectify the situation either by contacting the FIA or otherwise;
(d) on 2nd April 2009, before the Stewards of the Australian Grand Prix (meeting in Malaysia), made no attempt to correct the untrue statement of 29th March but, on the contrary, continued to maintain that the statement was true, despite being allowed to listen to a recording of the team instructing Hamilton to let Trulli pass and despite being given more than one opportunity to correct its false statement; and
(e) on 2nd April 2009, before the Stewards, procured its driver Hamilton to continue to assert the truth of the false statement given to the Stewards on 29th March, while knowing that what he was saying to the Stewards was not true.
1.19 In its written response to these charges, McLaren accepted that, both at and between the 29th March Hearing and the 2nd April Hearing, McLaren had acted in breach of Article 151(c) ISC. McLaren's Team Principal expressed McLaren's, and his personal, unreserved apology to the WMSC, the Stewards, the FIA and Formula One competitors and fans. In addition, in a separate letter to WMSC members, the McLaren Team Principal admitted that McLaren's conduct regarding these matters was "wholly unacceptable" and expressed his sincere apologies.
1.20 At the WMSC meeting on 29th April 2009, the McLaren Team Principal again admitted that McLaren had been in breach of Article 151(c) ISC and offered representations for the purposes of mitigation (see section 2.7).
2 WMSC's Assessment
2.1 The WMSC has carefully considered the FIA Observer's Report, McLaren's written submissions of 14th April 2009 and its representations in mitigation at the WMSC meeting on 29th April 2009. The material facts of the case, being the deliberate and successful attempt to mislead the Stewards at the 29th March Hearing and the failure, when confronted with incontrovertible evidence at the 2nd April Hearing, to correct the position adopted, are not in dispute. In addition, McLaren has admitted that its conduct amounted to a breach of Article 151(c) ISC.
2.2 Under Article 152 ISC, seventh paragraph, the WMSC: "may, upon the proposal and report of the FIA observer [...] directly inflict a penalty which will take the place of any penalty which the stewards of the meeting may have pronounced".
2.3 The WMSC considers that McLaren's course of conduct as set out in section 1 of this Decision amounted to a serious breach of Article 151(c). By making deliberately misleading representations to the Stewards, and then failing to correct those misleading representations, McLaren gained illegitimate advantage and caused the unfair imposition of a penalty upon a fellow competitor. The WMSC wishes to emphasize that it finds this latter element particularly reprehensible.
2.4 In addition, by its course of conduct, McLaren has brought the sport into disrepute. The WMSC considers – and McLaren has accepted – that sole responsibility cannot lie with the Team Manager who misled the Stewards and who procured Hamilton to do likewise. Rather, the course of conduct occurred over such a period of time that the WMSC finds that McLaren's management either were aware or should have been aware that the Stewards had been misled.
2.5 In light of the foregoing, the WMSC considers that pursuant to Article 151(c) and 152 ISC, seventh paragraph, the Stewards' Decision No. 76, which excluded Hamilton and McLaren from the race classification for the 2009 Australian Grand Prix, should be replaced with this Decision, which imposes a more severe penalty.
2.6 In short, the WMSC considers that the penalty must be of a magnitude that reflects accurately the severity of the offence and effectively deters McLaren – and other competitors in the FIA Formula One World Championship – from deliberately misleading the Stewards in the future. However, the penalty imposed must also take into account other relevant factors.
2.7 In determining the sanction to be imposed on McLaren, the WMSC considered a number of factors presented by McLaren in mitigation. These factors (together, "Mitigating Factors") included the following:
(a) that the McLaren Team Principal admitted all material facts, including the making of deliberately misleading statements to the Stewards and the subsequent failure to correct such misleading representations;
(b) that the McLaren Team Principal accepted in written submissions that McLaren's course of conduct in the matter had been unacceptable and offered an unreserved apology both personally, and on behalf of McLaren, to all affected parties;
(c) that the McLaren Team Principal has assured members of the WMSC that there has been a change in culture within McLaren and that the course of conduct – or similar – will not be repeated;
(d) that, on realizing his mistakes, Hamilton held a press conference at which he apologized for his actions; and
(e) that McLaren promptly suspended, and subsequently terminated the employment of, its Team Manager, who misled the Stewards and who procured that Hamilton did likewise.
2.8 However, in addition to considering the existence of Mitigating Factors, the WMSC also considered whether there were aggravating factors suggesting that the level of any penalty should be increased. In this instance, the WMSC recalls that McLaren has recently breached Article 151(c) of the International Sporting Code (see Decision of the WMSC 13 September 2007).
2.9 Recidivism is a strong indicator that the sanction previously imposed was not sufficiently deterrent and recidivism is thus a circumstance which may justify an increase in the severity of the penalty which might otherwise be imposed. The purpose of taking recidivism into account in setting a penalty is to induce teams which have demonstrated a tendency towards infringing the rules in the past to change their conduct in the future. The WMSC therefore also takes into account, as an aggravating factor, McLaren's 2007 breach of Article 151(c) ISC.
3.1 The WMSC finds Vodafone McLaren Mercedes in breach of Article 151(c) ISC in relation to each of the five counts identified in the FIA's summons to Vodafone McLaren Mercedes, reproduced at 1.18 (a) to (e) above.
3.2 Pursuant to Article 151(c) ISC and 152 ISC, seventh paragraph, the WMSC therefore replaces the sanction imposed by Decision No. 76 of the Stewards with the following:
(a) the exclusion of the driver Lewis Hamilton and the competitor Vodafone McLaren Mercedes from the race classification for the 2009 Australian Grand Prix; and
(b) the suspension of the competitor Vodafone McLaren Mercedes from three rounds of the FIA Formula One World Championship.
Exceptionally, and in light in part of the Mitigating Factors (including the open and honest way in which the Vodafone McLaren Mercedes Team Principal addressed the WMSC and the change in culture which he made clear had taken place), penalty (b) shall be suspended for twelve months from the date of this Decision. In the event that, during the period of suspension of penalty (b), either: (i) further facts emerge that are relevant to the WMSC's assessment of the gravity of Vodafone McLaren Mercedes' breach; or (ii) Vodafone McLaren Mercedes commits a further breach of Article 151(c), the WMSC may implement penalty (b) in relation to the breach set out in this Decision.
3.3 Vodafone McLaren Mercedes is reminded of its right of appeal. In the event that an appeal is lodged with the FIA International Court of Appeal, the effect of this Decision will not be suspended pending the outcome of that appeal.