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Written submissions by six Michelin teams

June 29, 2005

BEFORE THE FIA WORLD MOTOR SPORT COUNCIL

____________________________________________
SUBMISSIONS ON BEHALF OF 6 FORMULA ONE TEAMS
PARIS - 29 JUNE 2005
____________________________________________

Introduction
1 These submissions are made on behalf of the following Formula One Teams :
(1) BAR Honda GP Limited
(2) McLaren Racing Limited
(3) Renault F1 Team Ltd
(4) Sauber Motorsport AG
(5) Toyota Motorsport GMBH
(6) Williams Grand Prix Engineering Ltd

2 The Teams deny the charges brought against them by the FIA in relation to their decisions not to race at the Indianapolis Grand Prix on Sunday 19 June 2005.

3 The Teams have had a limited amount of time for the preparation of this document, so what follows is based on our preliminary analysis to date.

4 The Teams are confident of the strength of their Defense to the charges as set out below. But they respectfully suggest to the Council that the Council should today institute a comprehensive review of what happened in Indianapolis and why. That would be the most effective method of investigating the facts. It would also promote the interests of Formula One that motor sport be seen to institute a full inquiry into the events. It is especially important to avoid a rush to judgment given that all relevant persons face class action litigation. A partial or hasty judgment would damage the interests of Formula One and all those involved in it, and simply give ammunition to the plaintiffs in the US litigation.

The relevant rules
5 Article 151 of the International Sporting Code states :
"Breach of rules
Any of the following offences in addition to any offences specifically referred to previously shall be deemed to be a breach of these rules :
...
c) Any fraudulent conduct or any act prejudicial to the interests of any competition or to the interests of motor sport generally".

6 Article 131 of the FIA Formula One Sporting Regulations states:
"The starting grid will be published two hours before the race. Any competitor whose car(s) is (are) unable to start for any reason whatsoever (or who has good reason to believe that their car(s) will not be ready to start) must inform the stewards accordingly at the earliest opportunity and, in any event, no later than 45 minutes before the start of the race. If one or more cars are withdrawn the grid will be closed up accordingly. The final starting grid will be published 45 minutes before the start of the race".

The charges
7 The FIA contends that in breach of Article 151c), each Team
"committed one or more acts prejudicial to the interests of a competition, namely the 2005 United States Grand Prix and/or to the interests of motor sport generally in that you
- failed to ensure that you had a supply of suitable tires for the race and/or
- wrongfully refused to allow your cars to start the race and/or
- wrongfully refused to allow your cars to race, subject to a speed restriction in one corner which was safe for such tires as you had available and/or
- combined with other teams to make a demonstration damaging to the image of Formula One by pulling into the pits immediately before the start of the race".

8 The FIA further contends that in breach of Article 131, each Team
"failed to notify the stewards of your intention not to race".

The Teams' answer to the charges
9 The first charge is that the Teams failed to ensure that they had a supply of suitable tires for the race. The Teams respond:
(1) The Teams were supplied with tires by Michelin, an approved tire company recognized under Regulation 73 of the Sporting Regulations.

(2) The Teams rely on the expertise of Michelin in relation to the quality, durability and safety of their tires. As Mr. Max Mosley (the President of the FIA) wrote to Michelin on 1 June 2005 :
"Formula One is therefore totally dependent on the tire suppliers to ensure that no risks are taken in the pursuit of performance".

(3) It is reasonable for the Teams to rely on the expertise of Michelin, a reputable company with a long-established and excellent record.

(4) The Teams had no way of knowing in advance that a safety problem would occur with the Michelin tires. Indeed, if they had so known, they would (of course) have acted appropriately.

(5) There is nothing in any of the relevant Regulations which imposes a strict liability on the Teams to ensure that their chosen tire supplier in fact supplies safe tires, or tires with guaranteed reliability. Any such provision would be unworkable. None of the Teams instructed Michelin to do other than produce tires suitable for the track. Therefore none of the Teams committed "any act prejudicial to the interests of any competition or to the interests of motor sport generally".

(6) Michelin (as they have properly acknowledged) made a mistake in bringing to Indianapolis two sets of tires (see Article 73b) of the Sporting Regulations) each of which was unsuitable for the circuit. There is no question of this being because any of the Teams was seeking to obtain a competitive advantage. Michelin simply made a mistake. The Teams had no reason to anticipate that such a mistake would be made.

10 The second charge is that the Teams wrongfully refused to allow their cars to start the race. The Teams respond:
(1) The Teams were unable to compete because of the safety risk.

(2) The FIA and the Teams were advised by Michelin on Saturday 18 June that
"in the sole interest of safety ... we do not have total assurance that all tires that qualified the cars can be used unless the vehicle speed in turn 13 can be reduced.

Michelin very much regrets the situation, but has taken this decision after very careful consideration and in the best interests of safety at the event".

(3) On 19 June, Michelin advised the FIA and the Teams that
"having collected the results of our in depth analysis from France and the USA, we confirmed that with the tires on which we have qualified we are not able to sufficiently guarantee the total safety of the drivers.

As a result we reached the conclusion that we will not compete with these tires in the current configuration of the circuit.

We therefore reiterate our request to have a significant reduction of vehicle speed in turn 12/13".
Michelin also issued a Press Release on 19 June stating :
"Given the combination of oval exit speed of the F1 cars and the subsequent down forces experienced by the tires Michelin is not able to guarantee that such incidents would not reoccur during race conditions, and therefore Michelin is not able to guarantee the total safety of the drivers.

As a result Michelin, in total agreement with our partner teams, has asked the FIA that a chicane, allowing the reduction of car speed, be installed at the entrance to the oval".

(4) Particularly in the light of the second paragraph of the Michelin letter at (3) above, refusing Michelin's consent to the use of their tires on safety grounds without a change "in the current configuration of the circuit", the position is as follows. If the Teams had raced, and a tire had burst, with fatal consequences to a driver or a member of the public or others at the event, there would have been criminal charges of the utmost gravity, as well as substantial civil litigation, brought against the Teams and their Principals, as well as against the FIA and others. The Teams believe that it would have been irresponsible for them to race in these circumstances.

(5) It cannot be a breach of Article 151c) for the Teams to treat safety (and compliance with criminal and civil obligations) as their priority. This was a case, under Article 68 of the International Sporting Code, of force majeure (that is, an irresistible and unforeseeable course of events excusing what would otherwise be non-compliance with an obligation).

11 The third charge is that the Teams wrongfully refused to allow their cars to race, subject to a speed restriction at one corner which was safe for such tires as they had available. The Teams respond:
(1) The Teams and their drivers considered that it would be very dangerous to have different cars driving at radically different speeds through Turn 13, where there is one good racing line. There would have been a very high risk of a serious accident.

(2) There would also have been a very high risk of a serious accident because of the need for some drivers radically to slow down before Turn 13, and then radically accelerate immediately afterwards. The risk of an accident would have been exacerbated by the inevitable differences of approach between those drivers as to when they should brake and to what extent, and when they should accelerate.

(3) In any event, it was not technically possible for all of the Teams to fit and use a speed limiter in the time available. The Teams could not guarantee to a sufficient degree of certainty to satisfy legal obligations that their drivers (who are, by definition, competitive) would fully comply with artificial speed restrictions at a defined point during a race.

(4) Michelin objected on safety grounds to the race proceeding with a voluntary speed limit at Turn 13. They confirmed that they did not consider the tires safe to race on the circuit. See paragraph 10(3) above.

(5) For the Teams to decline to race was not a decision taken lightly. The Teams were of course anxious to race if this could be done safely. That is their raison d'etre, and it is very much in their commercial interests. Not to race is obviously damaging to the Teams' relationships with their sponsors, and to their prospects of attracting potential sponsors. On the morning of Sunday 19 June, after discussing possible solutions with Michelin, the Teams made a proposal for a safe way of reducing speed. They proposed the introduction of a chicane at Turn 13. The use of a chicane is a well-established method of reducing speed during a Grand Prix, familiar to drivers. A chicane (built out of tires) was added to the Barcelona Circuit in 1994 after the Teams arrived for practice and before the race commenced. (Other changes to race tracks have occurred very late in the day during other Grand Prix). The proposal to introduce a chicane on the morning of Sunday 19 June was agreed by 9 of the 10 Teams and their drivers (only Ferrari failed to give approval : Jean Todt has stated publicly that Ferrari were not consulted) and by Mr. Bernie Ecclestone (Chief Executive of Formula One Management, the commercial rights holder) and by Mr. Tony George (Chief Executive of the race track).

(6) The Report of the FIA Observer suggests that a chicane could not be introduced for reasons of "safety and fairness". Even if that is correct, it does not assist the FIA to establish the charges against the Teams. It would still have remained unsafe to race. Therefore, it would follow, the race should have been postponed. But in fact the objections to the use of a chicane are not well-founded :
(a) As to safety, this was not mentioned in the letter of 19 June to Michelin and to the Teams from the race director, Mr. Charlie Whiting. The letter stated:
"Finally, it has been suggested that a chicane should be laid out in Turn 13. I am sure you will appreciate that this is out of the question. To change the course in order to help some of the teams with a performance problem caused by their failure to bring suitable equipment to the race would be a breach of the rules and grossly unfair to those teams which have come to Indianapolis with the correct tires".
None of the 9 Teams (or their drivers) who expressed a view about the chicane considered that it posed a safety problem. Mr. Ecclestone and Mr. George were satisfied that a chicane could safely be added.

(b) As to fairness, the Teams made a number of proposals to protect the interests of the 3 teams who use Bridgestone tires. The proposals included that the Teams using Michelin tires could obtain no championship points, and/or that they would start at the back of the grid.

12 The fourth charge is that the Teams combined to make a demonstration damaging to the image of Formula One by pulling into the pits immediately before the start of the race. The Teams respond:
(1) There was no question of the Teams making any demonstration.

(2) In the confusion, uncertainty and negotiation immediately prior to the race, the Teams joined the grid because they hoped, until the very last moment, that a solution would be found. They were concerned that if they had remained in the garage when the pit lane closed, and had not proceeded to the grid, and were the race then to have been suspended so a chicane could be installed, or any other solution adopted satisfactory both to the FIA and to Michelin, they would not have been able to participate in the race. (A problem with tires was resolved on the grid during the 2003 Brazilian Grand Prix).

(3) The Teams were encouraged by Mr. Ecclestone to go to the grid in the hope that a solution would be found which enabled them to race safely.

(4) The Teams have each invested substantial amounts of money, and an important part of their image, in Formula One. They receive substantial revenues from sponsors because of their involvement in Formula One. They have no interest whatsoever in making a demonstration to undermine the competition. Until the last minute, the Teams hoped that they could race, and they did everything possible to ensure that the safety concerns were overcome.

13 The fifth charge is that each Team "failed to notify the stewards of your intention not to race".
The Teams respond that as explained in paragraph 12 above, the Teams very much hoped, until the last moment, that a solution would be found which enabled them to race safely. The FIA was fully informed during the morning of Sunday 19 June of the safety problems which, in the view of the Teams, needed to be overcome.

Conclusion
14 For the reasons set out above, the Teams respectfully submit
(1) The Council should institute a comprehensive review of what happened in Indianapolis.

(2) In the alternative, the charges against the Teams should be dismissed. As Mr. Ecclestone stated in a television interview on 19 June, just before the start of the race,
"The incident's not the fault of the teams". DAVID PANNICK QC

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