FEDERATION INTERNATIONALE DE L' AUTOMOBILE World Motor Sport Council
Decision Re: Article 151(c) International Sporting Code – Vodafone McLaren Mercedes
13 September 2007
The World Motor Sport Council (“WMSC”) met on 13th September 2007 to consider acharge that Vodafone McLaren Mercedes (“McLaren”) had breached Article 151(c) ofthe International Sporting Code.
1 Background
1.1 Scuderia Ferrari Marlboro ("Ferrari") has submitted that it received informationon 24 June 2007 suggesting that unauthorised use may have been made of certainof its confidential information. Ferrari has submitted that it subsequently learnedthat certain of its confidential information had come into possession of Mr.Michael Coughlan (“Coughlan”), the then Chief Designer of McLaren.
1.2 On 3 July 2007, in the context of litigation in the High Court of England andWales ("High Court Proceedings") between Ferrari and Coughlan, a search wasundertaken at the private residence of Coughlan under the authority of that Court.According to the evidence before the WMSC, during that search, a dossier ofsome 780 pages of confidential information belonging to Ferrari was recovered.
1.3 In light of the results of the search, Ferrari wrote to the FIA late on 3 July 2007inviting it to consider whether the FIA should launch an investigation into thematter.
1.4 After preliminary investigations, on 12 July 2007 the FIA wrote to McLarenrequesting it to appear at an extraordinary meeting of the WMSC in Paris on 26July 2007 (“the 26 July WMSC meeting”). McLaren was informed that, at the 26July WMSC meeting, it would be asked to answer the charge that between Marchand July 2007, in breach of Article 151(c) of the International Sporting Code, ithad unauthorised possession of documents and confidential information belongingto Ferrari. In particular, McLaren was charged with the unauthorised possessionof one or more of the following technical documents that could be used for one ormore of the following purposes: designing, engineering, building, checking,testing, developing and running a 2007 Ferrari Formula One car, includingdrawings, lay-out and digital mock-up schemes, technical documents and reportsand procedures relating, amongst other things, to weight distribution,aerodynamics, component designs, suspension, gearbox, hydraulic, water, oil andfuel system designs, assembly and building technology designs.
1.5 In response to the charge, McLaren made extensive written submissions inadvance of the 26 July WMSC meeting and made detailed oral argument at themeeting itself. McLaren did not dispute that Coughlan had come into possessionof Ferrari confidential information but argued, inter alia:(i) that the Ferrari confidential information in question had not been circulatedwithin McLaren;(ii) that McLaren had neither used nor benefited from the receipt by Coughlan ofthe Ferrari confidential information; and(iii) that the actions of Coughlan in receiving and dealing with the Ferrariconfidential information were those of a "rogue employee" for which McLarenshould not be held responsible.
1.6 The WMSC considered the arguments and evidence presented by McLaren at the26 July WMSC meeting and came to the conclusion that McLaren had been inpossession of Ferrari confidential information and was therefore in breach ofArticle 151(c) of the International Sporting Code.
1.7 Although a number of unsatisfactory elements were noted during thedeliberations, in assessing the gravity of the breach, the WMSC concluded thatthere was insufficient evidence that the information was used in such a way as tointerfere with the running of the FIA Formula One World Championship ("theChampionship").
1.8 However, conscious of, inter alia, the fact that several related procedures wereongoing (including, notably, the High Court Proceedings, a criminal investigationin Italy and various internal forensic investigations at McLaren and Ferrari), theWMSC explicitly reserved the right to revisit its conclusions if furtherinformation came to light, in particular information showing that Ferrariconfidential information had been used by McLaren to the detriment of theChampionship.
1.9 The following Decision was therefore reached:“The WMSC is satisfied that Vodafone McLaren Mercedes was in possession ofconfidential Ferrari information and is therefore in breach of article 151c of theInternational Sporting Code. However, there is insufficient evidence that thisinformation was used in such a way as to interfere improperly with the FIAFormula One World Championship. We therefore impose no penalty.But if it is found in the future that the Ferrari information has been used to thedetriment of the championship, we reserve the right to invite Vodafone McLarenMercedes back in front of the WMSC where it will face the possibility of exclusionfrom not only the 2007 championship but also the 2008 championship.The WMSC will also invite Mr Stepney and Mr Coughlan to show reason whythey should not be banned from international motor sport for a lengthy periodand the WMSC has delegated authority to deal with this matter to the legaldepartment of the FIA.”
2 Re-convening of WMSC
2.1 Subsequent to the WMSC Decision of 26 July 2007 (the “26 July Decision”), newevidence came to light which, in the FIA’s assessment merited consideration bythe WMSC.
2.2 A new meeting of the WMSC was therefore convened for 13 September 2007(“the 13 September WMSC meeting”).
2.3 All relevant parties (including McLaren and Ferrari) were informed of the newmeeting and were given copies of the new evidence put before the WMSC (insome limited cases, after redaction of confidential information). McLaren andFerrari were invited to make written submissions which have been duly receivedby the WMSC.
2.4 Oral submissions and explanations have also been made on behalf of McLarenand Ferrari and at the 13 September WMSC meeting, the WMSC has putquestions to those concerned. Opportunities were also offered and taken up forMcLaren and Ferrari to cross-examine each others’ witnesses.
2.5 Some of the key elements that the WMSC has considered are set out below. Inlight of the strong imperative in the interests of the sport to issue a swift ruling,the following does not constitute an exhaustive list of the elements considered nordoes it purport to be a summary of all of the evidence put before the WMSC.
3 New Evidence – E-mails between McLaren Drivers
3.1 In the period after the 26 July Decision, the FIA was made aware of a specificallegation that e-mails relevant to the FIA’s investigation had been exchangedbetween certain McLaren drivers.
3.2 The FIA therefore wrote to three McLaren drivers (Mr. Alonso, Mr. Hamilton andMr. de la Rosa) to establish whether or not this allegation had any basis in factand requested that they produce copies of any relevant documents, including anyelectronic communications (howsoever conveyed or stored) which may berelevant to this case and which make reference to Ferrari, Ferrari’s employeeNigel Stepney (“Stepney”) or any technical or other information coming from orconnected with either Ferrari or Stepney.
3.3 The McLaren drivers were reminded of their duty as competitors and SuperLicence holders to ensure the fairness and legitimacy of the Formula One WorldChampionship. Given the importance of establishing the facts and that theinformation might not come out any other way, the FIA offered the assurance thatany information made available in response to the letter would not result in anyproceedings against the drivers personally under the International Sporting Codeor the Formula One Regulations. However, the drivers were notified that if itlater came to light that they had withheld any potentially relevant information,serious consequences could follow.
3.4 All three drivers responded. Mr. Hamilton responded that he had no informationresponsive to the FIA’s request. Mr. Alonso and Mr. de la Rosa both submitted emailsto the FIA which the WMSC finds highly relevant. Subsequently (atMcLaren’s request) both Mr. Alonso and Mr. de la Rosa made written statementsto the WMSC verifying that these e-mails were sent and received and offeringcontext and explanations regarding the e-mails. The e-mails show unequivocallythat both Mr. Alonso and Mr. de la Rosa received confidential Ferrari informationvia Coughlan; that both drivers knew that this information was confidentialFerrari information and that both knew that the information was being received byCoughlan from Stepney.
weight distribution
3.5 On 21 March 2007 at 09.57 Mr. de la Rosa wrote to Coughlan in the followingterms:“Hi Mike, do you know the Red Car’s Weight Distribution? It would beimportant for us to know so that we could try it in the simulator. Thanks inadvance, Pedro. p.s. I will be in the simulator tomorrow.”
3.6 In his evidence given to the WMSC, Mr. de la Rosa confirmed that Coughlanreplied by text message with precise details of Ferrari’s weight distribution.
3.7 On 25 March 2007 at 01.43 Mr. de la Rosa sent an e-mail to Fernando Alonsowhich sets out Ferrari’s weight distribution to two decimal places on each ofFerrari’s two cars as set up for the Australian Grand Prix.
3.8 Mr. Alonso replied to this e-mail on 25 March 2007 at 12.31 (they were indifferent time zones). His e-mail includes a section headed “Ferrari” in which hesays “its weight distribution surprises me; I don’t know either if it’s 100%reliable, but at least it draws attention”. The e-mail continues with a discussionof how McLaren’s weight distribution compares with Ferrari’s.
3.9 Mr. de la Rosa replied on 25 March 2007 13.02 stating the following:“All the information from Ferrari is very reliable. It comes from Nigel Stepney,their former chief mechanic – I don’t know what post he holds now. He’s thesame person who told us in Australia that Kimi was stopping in lap 18. He’s veryfriendly with Mike Coughlan, our Chief Designer, and he told him that.”
3.10 Mr. de la Rosa’s e-mail to Coughlan specifically stated that he wished to receiveFerrari’s weight distribution for the purposes of testing it in the simulator thefollowing day (“It would be important for us to know so that we could try it in thesimulator”). Mr. de la Rosa explained to the WMSC at the meeting of 13September 2007 that when Coughlan responded with the precise details inquestion, he (de la Rosa) decided that the weight distribution was so different tothe McLaren car set up that it would not, in fact, be tested in the simulator. Mr dela Rosa says that thereafter he regarded the information as unimportant. It seemshighly unlikely to the WMSC that a test driver would take a decision of this sorton his own. It also is not clear why, if Mr. de la Rosa regarded this information asunimportant, he would still convey and discuss it with Mr. Alonso some days laterin his e-mail exchange of 25th March. Mr. de la Rosa’s evidence also makes clearthat there was no reluctance or hesitation about testing the Ferrari information forpotential benefit, but only that on this occasion he says that there was a technicalreason not to do so.
3.11 McLaren's Chief Engineer Mr. Lowe gave clear evidence that decisions relatingto simulator testing would normally involve a number of engineering and otherstaff (as would running the tests themselves). It seems highly unlikely thatdecisions about what would be run in the simulator would by taken by a testdriver on his own.
flexible wing and aero balance
3.12 In the same e-mail exchange of 25 March 2007, Mr. de la Rosa states that testshad been carried out on a flexible rear wing which Mr. de la Rosa says is “a copyof the system we think Ferrari uses”. The Ferrari car’s precise aero balance at 250kph is also identified. While it is conceivable that the former item could havebeen copied from observation of the Ferrari car, it is clear from the context of theexchange (it being part of the information that Mr. de la Rosa describes as being“very reliable” because it comes from Stepney) that the latter item is confidentialto Ferrari and that it was passed to Mr. de la Rosa by Coughlan, who got it fromStepney.
tyre gas
3.13 Mr de la Rosa’s e-mail to Mr. Alonso on 25 March 2007 at 01.43 identified a gasthat Ferrari uses to inflate its tyres to reduce the internal temperature andblistering. The e-mail concludes with a statement (in relation to the gas) that“we’ll have to try it, it’s easy!”.
3.14 Mr Alonso replied at 12.31 that it is “very important” that McLaren test the gasthat Ferrari uses in its tyres as “they have something different from the rest”, and“not only this year. there is something else and this may be the key; let’s hopewe can test it during this test, and that we can make it a priority!”.
3.15 Mr. de la Rosa replied on 25 March 2007 13.02 stating the following: I agree100% that we must test the [tyre gas] thing very soon.
3.16 Although the e-mail exchange between Mr. Alonso and Mr. de la Rosa makesclear that they both were enthusiastic about trying the gas apparently used byFerrari in its tyres, Mr de la Rosa's evidence to the WMSC was that he, on hisown, decided to explore with a Bridgestone engineer whether the McLaren teamshould try this gas. He states that he had no other conversations with any otherspecialist staff within McLaren. His evidence is that the Bridgestone engineer inquestion doubted whether the gas would confer an advantage upon McLaren.According to Mr de la Rosa, without further consultation with anyone else atMcLaren, and despite the fact that this had apparently been successfully used atFerrari, the idea was dropped and no actual attempt was made to test the gas in thetyres used by McLaren.
3.17 It seems unlikely to the WMSC that a test driver would engage in suchconsultations on his own without discussing it any further with anyone else at theteam. It also seems unlikely that a decision on whether to pursue the matterfurther would be taken by a test driver on his own. Finally, Mr de la Rosa’sevidence makes clear that there was no reluctance or hesitation about using theFerrari information, but only that on this occasion it was concluded that therewould be no advantage in doing so.
braking system
3.18 On 12 April 2007 at 12.25 Mr. de la Rosa wrote to Mr. Coughlan and asked “ canyou explain me as much as you can, Ferrari’s braking system with the [referenceto detailed technical information]? Are they adjusting from inside the cockpit…?”
3.19 After a number of exchanges about whether a description would be toocomplicated to articulate by e-mail, Mr. Coughlan replies on 14 April 2007 at14.40 with a technical description which purports to be a description of theprinciples underpinning the Ferrari braking system. Ferrari have confirmed thatthe description given is an accurate (though incomplete) description of theprinciples of its braking system. Coughlan concludes with a statement that “weare looking at something similar”. This latter statement strongly suggests that theMcLaren system was being worked on from a position of knowledge of the detailsof the Ferrari system, which, even if the Ferrari system not being directly copied,must be more advantageous to McLaren than designing a system without suchknowledge.
3.20 The e-mail exchange between Mr. de la Rosa and Mr. Alonso dated 25 March2007 at 01.43 also describes some aspects of the McLaren braking system andstates that “with the information that we have, we believe Ferrari has a similarsystem” and goes on to describe highly specific elements of the Ferrari system(which cannot be set out here for confidentiality reasons but which clearlydemonstrate knowledge of Ferrari’s confidential information).
stopping strategy
3.21 As mentioned above, Mr. de la Rosa’s e-mail on 25 March 2007 13.02 stated “allthe information from Ferrari is very reliable. It comes from Nigel Stepney, theirformer chief mechanic – I don’t know what post he holds now. He’s the sameperson who told us in Australia that Kimi was stopping in lap 18. He’s veryfriendly with Mike Coughlan, our Chief Designer, and he told him that.
3.22 The evidence before the WMSC is that Mr. Räikkönen (Kimi) actually stopped atlap 19 at the Australian GP. However, the fact remains that Mr de la Rosa citedthis information as a reason to believe that Stepney was a reliable source ofinformation. This strongly suggests that McLaren had at least taken account ofthis information in determining its own strategy.
3.23 The evidence before the WMSC also demonstrates that Stepney had fedinformation through Coughlan regarding which lap one or more of the Ferraridrivers would stop at during the Bahrain Grand Prix. McLaren has sought todiscredit the significance of this information as it proved in the end to beinaccurate. However, the evidence before the WMSC was that the safety car hadbeen deployed early in the race making it likely that stopping strategies would beadjusted. This deployment of the safety car could not have been known inadvance of the race and the fact that the stoppage predictions proved inaccuratedoes not mean that McLaren had not considered and taken account of theinformation that had been received in determining its own strategy before therace.
3.24 In any case, as there is no legitimate context in which another teams’ stoppingstrategy would be revealed to McLaren in advance, there is very clear evidencethat both drivers knew that they were receiving unauthorised and confidentialFerrari information. To the WMSC’s knowledge, no effort was taken to report orstem this flow.
4 New Evidence – Communications between Coughlan and Stepney
4.1 The evidence put before the 26 July WMSC meeting indicated that a limitednumber of contacts had occurred between Coughlan and Stepney. Coughlan’saffidavit (submitted in the context of the High Court Proceedings) identified anumber of such contacts and described incidents where specific Ferrariconfidential information was transferred to him. The WMSC considered thesecontacts but had no specific evidence of further or other contacts. The focus atthe 26 July WMSC meeting was on the circumstances surrounding thetransmission of the 780 page Ferrari dossier discovered at Coughlan’s home.
4.2 New evidence has come to light which strongly indicates that the transmission ofconfidential Ferrari information from Stepney to Coughlan was not limited to the780 page dossier. This evidence demonstrates that a far greater level ofcommunication existed between Coughlan and Stepney than was appreciated atthe 26 July WMSC meeting. This evidence was submitted by Ferrari and isdeemed credible as it originates from the Italian police and is the result of anofficial analysis of records of telephone, SMS and e-mail contacts betweenCoughlan and Stepney. The evidence included the following.
4.3 In its report “Allegato 18”, the Italian Police demonstrated that in the period 21March to 3 July 2007, Coughlan received 23 calls from Stepney’s personal mobilephone and made four calls to that phone. In the same period, Coughlan received124 SMS messages from Stepney and sent 66 SMS messages to Stepney.
4.4 In its report “Allegato 9” the Italian Police have identified logs which show 23 emailspassed between Coughlan and Stepney between 1 March and 14 April2007.
4.5 In its report “Allegato 10” the Italian police have identified a further 98 SMSmessages and a further eight telephone calls (on different phones) betweenCoughlan and Stepney between 11 March and 14 April 2007.
4.6 In total, at least 288 SMS messages and 35 telephone calls appear to have passedbetween Coughlan and Stepney between 11 March 2007 and 3 July 2007.
4.7 The number of contacts increased considerably during private tests carried out byFerrari in Malaysia at the end of March 2007 and in the run up to and during thedays of the Grands Prix in Australia on 18 March 2007, Malaysia on 8 April2007, Bahrain on 15 April 2007 and Spain on 13 May 2007.
4.8 The evidence of the Italian police that has been produced also states that Stepneysought technical details from Ferrari’s chief mechanic, Mr Uguzzoni, about testscarried out by Ferrari in Malaysia in a way that drew attention within Ferrari atthe time.
4.9 In addition, e-mails between McLaren drivers were produced to the 13 SeptemberWMSC meeting (see above) stating clearly that Coughlan had receivedinformation from Stepney regarding the Ferrari car and had passed thisinformation to others within the McLaren team.
4.10 Neither Ferrari nor McLaren have ever disputed (whether at the 26 July WMSCmeeting or since) that confidential Ferrari information was passed from Stepneyto Coughlan during the period in question. However, the new evidence regardingthe number and timing of the contacts makes it far more likely that there was asystematic flow of Ferrari confidential information to Coughlan leading to theconclusion that the illicit communication of information was very likely notlimited to the transmission of the Ferrari dossier discovered at Coughlan’s homeon 3 July 2007. This conclusion is corroborated in the e-mails exchangedbetween McLaren’s drivers (see above).
4.11 McLaren stated in its submissions for the 13 September WMSC meeting that thisnew evidence on the number and timing of the communications merely confirmedwhat was already known: that Coughlan and Stepney were illicitly sharing Ferrariconfidential information. It has also been suggested by McLaren that Coughlanand Stepney were acting on their own account and that possibly they wereplanning to seek new employment together elsewhere.
4.12 Without drawing a definitive conclusion on this point, the WMSC considered thatit was difficult to reconcile this version of events with the number and timing ofthe contacts described above as if Coughlan and Stepney had simply been sharinginformation to facilitate a plan to search for new employment there would appearto be no particular reason for the contacts to have intensified around the tests andthe Grands Prix and no reason for Coughlan to share information with McLaren’sdrivers. Rather, it appeared more likely that the information being exchangedrelated to those tests and the Grands Prix.
4.13 Further, in light of Coughlan’s role within the McLaren team, it had seemedunlikely to the WMSC at the meeting on 26 July 2007 that Coughlan himselfwould have been able to make any direct or immediate use (whether personal orwithin his role at McLaren) of up to date information relating to the Ferrari car atthe site of different Grands Prix. However, as detailed above, at the 13 SeptemberWMSC meeting, the WMSC heard new evidence to suggest that this was not thecase and that Coughlan had, in fact, communicated to at least one McLaren driverstatements from Stepney of which lap the Ferrari drivers would stop at duringboth the Australian Grand Prix and the Bahrain Grand Prix. Thesecommunications between Coughlan and at least one of the McLaren driverscoincided exactly in time with some of the most intense period of contact betweenCoughlan and Stepney described above.
4.14 In the absence of another explanation, in light of the number and timing of thecommunications between Coughlan and Stepney and the e-mail exchangesbetween the McLaren drivers (see above), the WMSC regards it as reasonable toinfer that Coughlan was in receipt of a flow of confidential Ferrari informationfrom Stepney and that at least some of that information was communicated toothers within McLaren (e.g. Mr. de la Rosa and Mr. Alonso).4.15 In sum, the new information on the number and timing of the contacts betweenCoughlan and Stepney inevitably had an impact on the WMSC’s appreciation ofthe nature of the contacts between Coughlan and Stepney, on its appreciation ofthe emails between the drivers and on the likelihood of Ferrari confidentialinformation received by Coughlan having an influence on his work with McLaren.
5 Coughlan’s Role at McLaren
5.1 McLaren’s submission made for and at the 26 July WMSC meeting indicated thatCoughlan had a relatively limited managerial role and that it would not bepossible for him to propose ideas without having to explain their provenance. InMcLaren’s submission, this demonstrated that, despite having detailed Ferraritechnical information, Coughlan could not have used any of this information tobenefit McLaren without a significant number of people at McLaren knowing.McLaren submitted statements from a number of its engineers that thoseengineers were not aware of changes made to the McLaren car using confidentialFerrari information.
5.2 The submissions made for the 13 September WMSC meeting show that thatCoughlan may have had a more active role in the design of the McLaren car thanpreviously appreciated by the WMSC.
5.3 The WMSC does not have evidence that any complete Ferrari design was copiedand subsequently wholly incorporated into the McLaren car as a result ofCoughlan passing confidential from Stepney to McLaren. However, it is difficultto accept that the secret Ferrari information that was within Coughlan’sknowledge never influenced his judgement in the performance of his duties. It isnot necessary for McLaren to have copied a complete Ferrari design for it to havebenefited from Coughlan’s knowledge. For example, the secret Ferrariinformation cannot but have informed the views Coughlan expressed to others inthe McLaren design department, for example regarding which design projects toprioritise or which research to pursue. The advantage gained may have been assubtle as Coughlan being in a position to suggest alternative ways of approachingdifferent design challenges.
6 Evidence of Mr. Neale
6.1 At the 26 July WMSC meeting (and the evidence was repeated at the hearing of13 September) it was noted that Coughlan had revealed to his superior atMcLaren, Mr. Neale, that Stepney had attempted to pass secret Ferrariinformation to Coughlan. A firewall was set up at the instigation of Mr. Neale toprevent further contacts from Stepney and Coughlan was directed to cease contactwith Stepney. Within a matter of weeks thereafter, Coughlan attempted to showsome photographs to Mr. Neale which, according to Mr. Neale himself, becauseof the manner in which they were produced, suggested to Mr. Neale that theyshould not have been in Coughlan’s possession. Rather than establish the factsand take appropriate action as his superior at McLaren, Mr. Neale advisedCoughlan to destroy the photographs. Coming as soon as it did after McLarenhad been required to install a firewall and had directed this same employee tocease contact with a known source of Ferrari confidential information, the WMSCnotes that it is very unsatisfactory that no further action was taken to investigatethis matter further and make appropriate disclosures to the FIA as regulator.
7 Nature of the information held by McLaren
7.1 The WMSC believes that the nature of the information illicitly held by McLarenwas information of a nature which, if used or in any way taken into account, couldconfer a significant sporting advantage upon McLaren.
7.2 Evidence was submitted at the 13 September WMSC meeting by McLaren’sEngineering Director, Mr. Lowe, that the dossier of Ferrari information found inCoughlan’s possession did not contain information of particular use or interest toMcLaren on the basis that the McLaren car was significantly different to theFerrari car. This submission was apparently made on the basis of the review ofthe index to the dossier of Ferrari documents (Mr. Lowe having stated that he hadnot seen the dossier itself).
7.3 The WMSC does not accept this account. In both WMSC hearings and in writtensubmissions, and from the direct knowledge of the WMSC Members, FormulaOne teams have great interest in each others’ technology and go to considerablelengths (within the rules) to study each other’s designs and innovations throughdirect observation, photographic evidence and other means. In addition thetechnical information in Coughlan’s possession was, in the WMSC’sappreciation, highly significant and could certainly confer a sporting advantage, ifused or taken into account.
8 WMSC’s Assessment8.1 The WMSC has carefully considered the evidence and submissions of all parties.
8.2 It has concluded (and intends to re-affirm) that a breach of Article 151(c) hasoccurred.
8.3 In the 26 July Decision, the WMSC found a breach of Article 151(c). Inassessing the gravity of that breach, it took account of a number of factorsincluding any evidence (or, at the time, lack of it) to suggest that the Ferrariinformation improperly held had actually been used and actually conferred asporting advantage. Other factors that it took into account included the argumentthat there was little evidence of the information in question being disseminated toothers at McLaren, what the WMSC then understood to be Coughlan’s morelimited role and the argument that Coughlan was a single rogue employee.
8.4 McLaren has made detailed submissions indicating that none of the informationreceived enhanced the McLaren car. McLaren has suggested to the WMSC thatunless “actual use” and a demonstrated and itemised performance advantage canbe proven beyond a reasonable doubt (i.e. to a criminal law standard of proof), theWMSC is not permitted at law to impose a penalty.
8.5 The WMSC rejects this suggestion. The WMSC has full jurisdiction to applyArticle 151(c) and stresses that it is not necessary for it to demonstrate that anyconfidential Ferrari information was directly copied by McLaren or put to directuse in the McLaren car to justify a finding that Article 151(c) was breached and/orthat a penalty is merited. Nor does the WMSC need to show that any informationimproperly held led to any specifically identified sporting advantage, or indeedany advantage at all. Rather, the WMSC is entitled to treat possession of anotherteam’s information as an offence meriting a penalty on its own if it so chooses.
8.6 The fact that in its 26 July Decision, based on more limited evidence, the Councilhad a different appreciation of the gravity of McLaren’s breach does not lead tothe creation of a legal test regarding the WMSC’s burden of proof. The WMSCcould have imposed a penalty with the 26 July Decision based on the evidencetherein, but chose not to (based in part on McLaren’s submissions that there hadbeen no dissemination of Ferrari information beyond Mr Coughlan).
8.7 The WMSC has taken note of McLaren’s position that an injustice would occur ifa penalty were imposed without the FIA having accepted McLaren’s offer toinspect the McLaren premises and designs for evidence of Ferrari technologyhaving been copied. However, as noted above, neither the finding of a breach northe imposition of a penalty require evidence of McLaren having directlyincorporated Ferrari technology. Nonetheless, the WMSC have noted and takenaccount of the open and co-operative nature of this offer and taken this intoaccount in reaching this Decision.
8.8 In light of the evidence now before it, the WMSC does not accept that the onlyactions of McLaren deserving censure were those of Coughlan. While thissituation might have originated with the actions of a single rogue McLarenemployee acting on his own and without McLaren’s knowledge or consent,evidence is now available which, when taken in its full context, makes clear that:
- Coughlan had more information than previously appreciated and wasreceiving information in a systematic manner over a period of months;
- the information has been disseminated, at least to some degree (e.g. to Mr. dela Rosa and Mr. Alonso), within the McLaren team;
- the information being disseminated within the McLaren team included notonly highly sensitive technical information but also secret informationregarding Ferrari’s sporting strategy;
- Mr de la Rosa, in the performance of his functions at McLaren, requested andreceived secret Ferrari information from a source which he knew to beillegitimate and expressly stated that the purpose of his request was to runtests in the simulator;
- the secret information in question was shared with Mr. Alonso;
- there was a clear intention on the part of a number of McLaren personnel touse some of the Ferrari confidential information in its own testing. If this wasnot in fact carried into effect it was only because there were technical reasonsnot to do so;
- Coughlan’s role within McLaren (as now understood by the WMSC) put himin a position in which his knowledge of the secret Ferrari information wouldhave influenced him in the performance of his duties.
8.9 It seems to the WMSC clear that Coughlan’s actions were intended by him to giveMcLaren a sporting advantage. He fed information about Ferrari’s stoppingstrategy, braking system, weight distribution and other matters to McLaren's testdriver. Furthermore, in light of Coughlan's undoubted experience, he is likely tohave known a great deal about how to confer an advantage and the roles ofdifferent personnel within the team. It seems most unlikely that he confined hisactivities to sharing Ferrari's information with Mr. de la Rosa. It also seems mostunlikely that his own work was not influenced in some way by the knowledgeregarding the Ferrari car that he is known to have possessed.
8.10 Furthermore, it seems entirely unlikely to the WMSC that any Formula Onedriver would bear the sole responsibility for handling or processing sensitiveFerrari information (e.g. on substances used to inflate tyres or weight distribution)or deciding how or whether such information would be used or tested. In light ofhis experience, Coughlan would have known this and if he intended to reveal thisinformation to McLaren, he is unlikely to have done so only to Mr. de la Rosa .
8.11 The WMSC therefore finds that a number of McLaren employees or agents werein unauthorised possession of, or knew or should have known that other McLarenemployees or agents were in unauthorised possession of, highly confidentialFerrari technical information. In addition, the WMSC finds that there was anintention on the part of a number of McLaren personnel to use some of the Ferrariconfidential information in its own testing.
8.12 The evidence leads the WMSC to conclude that some degree of sportingadvantage was obtained, though it may forever be impossible to quantify thatadvantage in concrete terms.
8.13 These factors lead the WMSC to an appreciation of the gravity of McLaren’sbreach which is materially different to the appreciation in the 26 July Decision.On this occasion the WMSC believes that a penalty is merited.
8.14 Having indicated to McLaren that a penalty was likely to be imposed, the WMSCheard submissions regarding the appropriateness of penalties from McLaren andfrom counsel for Mr. Hamilton. The WMSC has reached its decision havingtaken due account of those submissions.
9 Decision
9.1 For the foregoing reasons, the WMSC finds McLaren in breach of Article 151(c)of the International Sporting Code.
9.2 The WMSC therefore, in accordance with the provisions of the InternationalSporting Code, imposes the following sanctions relation to the 2007 FIA FormulaOne World Championship:
- a penalty consisting of exclusion from and withdrawal of all points awarded toMcLaren in all rounds of the 2007 Constructors’ Championship. For theavoidance of doubt, McLaren will be permitted to race in the remaining rounds ofthe 2007 Championship but will not be permitted to score points in theConstructors Championship or attend the podium in the event of a top three finishin any of the remaining races in the 2007 season. Points scored by othercompetitors in the Championship to date will not be affected further to thewithdrawal of McLaren’s points;
- a fine of USD100 million (less any sum that would have been payable byFormula One Management Limited on account of McLaren’s results in the 2007Constructors Championship had it not been excluded). This fine shall be payablewithin three months from the date of this Decision.
9.3 Exceptionally, because primary responsibility must rest with McLaren, in theinterests of the sport and also because McLaren’s drivers were offered immunityfrom individual sanction by the President of the FIA in his letter dated 30 August2007, the WMSC does not consider that it is appropriate to impose any sanctionon them individually or impose sanctions on McLaren which would affect thesedrivers’ individual Championship standings. As such, both McLaren drivers willretain all the drivers’ Championship points they have won so far in the 2007season and will be permitted to win drivers’ Championship points and attend thepodium in the remaining races of the 2007 season.
9.4 In addition, in the interest of ensuring that McLaren is not unfairly advantaged asagainst any of its competitors in the 2008 Championship, the WMSC instructs theFIA technical department to conduct an investigation of McLaren’s preparatorywork on its 2008 car with a view to determining whether that car incorporates anyFerrari confidential information and report back before the WMSC meeting ofDecember 2007. Once the WMSC has considered this report, a separate Decisionwill be taken regarding McLaren’s participation in the 2008 Championship,including whether any penalty should be imposed. This present Decision does notin any way affect McLaren’s entitlement to participate in the 2008 Championshipif the entry conditions are fulfilled.
9.5 McLaren is reminded of its right of appeal. In the event that an appeal is lodgedwith the FIA International Court of Appeal, the effect of this Decision will not besuspended pending the outcome of that appeal.Signed:__________________________________________Max MosleyFIA PresidentParis, 13 September 2007
