What we learnt from the International Tribunal hearing into Testgate
Analysing the details to emerge from Thursday's fascinating hearing and the final decision into the tyre test saga
By James Galloway
Last Updated: 24/06/13 9:46am
So taken from both the course of the seven-hours worth of submissions, and the subsequent 20-page document released by the Tribunal detailing its findings and decisions, here are six things the process shed light on...
Letters underlined tyre concerns
One of the central pillars of Mercedes' defence was that they had only participated in the Barcelona tyre test following a request from Pirelli to help them work on safety issues with their 2013 rubber, essentially in regards to the spate of delaminations seen up to and including the Spanish GP.
Their stance that they were effectively participating 'for the greater good' was supported by the emergence during the hearing of details of two letters which highlighted the general concerns about the 2013 tyres throughout F1. The first was a letter sent from the Grand Prix Drivers' Association to FIA Race Director Charlie Whiting at the Monaco GP outlining the drivers' concerns. The letter was signed by the Chairman of the drivers' body, Ferrari development driver Pedro de la Rosa, along with Directors Sebastian Vettel and Jenson Button of Red Bull and McLaren respectively.
The second was an email from Whiting to Pirelli asking for written guarantees that the tyres they were bringing to the Canadian GP would be safe.
Ferrari also tested in 2012
While the fact that Ferrari - albeit with a permissible 2011 car and test driver de la Rosa - had completed their own tyre test at Barcelona after the Bahrain GP was already known, and declared legal by an FIA's initial inquiry, it emerged during the course of Mercedes' evidence that the Scuderia had also conducted a similar session during 2012 with what was then also a two-year-old machine.
The Tribunal's full published decision detailed that Pirelli confirmed, when the matter was first officially brought to the attention of the FIA by Red Bull and Ferrari at Monaco, that "during 2012 it was only Ferrari" who they tested with.
Another previously unknown element, as outlined by Mercedes' QC, was that Felipe Massa had also been behind the wheel during one of the two Ferrari tyre tests.
Charlie Whiting's word isn't final
While Mercedes' lawyer Paul Harris argued during the team's submissions that an email between Whiting and the FIA's legal director Sebastien Bernard in which the latter stated "we could take this position that it is Pirelli's initiative to carry out testing sessions, and not an undertaking from the competitors" had given them the belief that the test was permissible, the Tribunal confirmed in its ruling that this "qualified approval...could not, and did not, vary the express prohibition stipulated by Article 22 SR and neither Mercedes nor Pirelli took adequate steps to ensure that the qualification was satisfied".
Indeed, during the course of the hearing it was made clear by the FIA that authorisation to make a change to the stipulated regulations such as the one governing the restrictions on in-season testing can only be granted by the World Motor Sport Council and the FIA's little-known Secretary General Pierre de Coninck, with Whiting's views only an 'opinion'.
The FIA Race Director is traditionally the go-to-man for clarifications on technical matters for the teams during the course of a season, but speaking to Sky Sports F1 in wake of the verdict being delivered, Ross Brawn suggested the tribunal had highlighted that the process for clarifying sporting matters needed to be made clearer: "We are in a slightly different arena with the Sporting Regulations in my view, and the views we expressed at the tribunal, is there is often decisions that Charlie, as Race Director, has to make over a race weekend for instance where we can't challenge his opinion, we have to get on with it.
"Technical regulations are a little bit different, they're more measured and there's an established procedure for how those regulations are clarified and what we have to do get clarification. That doesn't exist in the Sporting Regulations.
"But I think there's a lesson learned for all of us that obviously what in the end became the issue was a judgement of the interpretation of the regulation, the law of the regulation, and both ourselves and Charlie with the FIA and with the head of the FIA's legal department had a view on that regulation that didn't prove to be correct, or at least in the eyes of the tribunal it didn't appear to be correct."
Indeed, even in regards to Ferrari's 2012 and 2013 tests, the tribunal noted that "it would appear to be equally unsatisfactory that this consent was also given by Charlie Whiting". The FIA itself has since accepted that that it needs to strengthen the control of testing procedures.
Mercedes gained 'some material advantage'
Although the tribunal agreed with Mercedes that the test hadn't been carried out the aim of achieving any sporting advantage, the judging panel's final report nonetheless stated that they "did obtain some material advantage (even if only by way of confirmation of what had not gone wrong) as a result of the testing, which, at least potentially, gave it an unfair sporting advantage, to the knowledge and with the intention of Pirelli".
Brawn himself admitted during the course of his cross-examination that it was "unavoidable" that some benefit is invariably drawn anytime a car is run on track, even if as he later insisted to Sky F1 that in this case it was was of "unintentional and a low-level consequence".
Pirelli are governed by the sporting regulations
Amid the understanding that F1's tyre supplier were far from happy at being summoned to Paris, Pirelli's counsel Dominique Dumas immediately insisted that the procedure was "not admissible" to rule on a third-party supplier and the tribunal didn't have the jurisdiction to impose a sanction on them. Indeed it argued that, under the terms of their contract, only the civil Tribunal de Grande in Paris had the power to settle any contractual dispute with the FIA. The governing body countered by arguing their contract with Pirelli did bind them to the championship's "governing rules" - which include the Sporting Code and International Sporting Code, something the tribunal agreed with in its final decision:
'...we are satisfied that FIA's argument on this ground is correct and would add that in our view this is not merely a technical and legalistic matter but one of fundamental importance to the sport...It would in our view be remarkable and regrettable if the exclusive supplier of any product which is of such obvious and basic importance to, among other things, the safety of all concerned in the sport, including the public, were not to be bound by the rules and regulations which are expressly intended to control the way in which that product is specified and tested.'
The fact that the tribunal felt it was within its rights to reprimand Pirelli would appear to underline that belief, although it remains to be seen whether the tyre supplier themselves now share this interpretation.
New process gets the thumbs-up
One of the most intriguing aspects of the whole event in Paris was how the International Tribunal hearing itself would work given it was the first time the independent body had sat since it was established by the FIA General Assembly over two years ago. With the prosecution and judging processes on disciplinary issues now separate, and the FIA President removed from the latter completely - indeed Jean Todt wasn't present in the court - the hearing was led by the vastly experienced QC Edwin Glasgow alongside a four-man judging panel.
"I've been to these things before and I must say this is an occasion when I've felt the independence of the Tribunal was clear to see," said Brawn afterwards, with veiled criticism of the previous process. "I think that's a very good step in terms of the way the FIA are moving, to set up this independent tribunal.
"Edwin Glasgow is a man of impeccable reputation and character and I think having him as President of the tribunal gave us confidence it would be fair. It doesn't mean it would come out in our favour, but at least it would be fair. I think Formula 1 in particular, and anyone who's involved in those sort of things, can look towards that tribunal and say it is independent and it will seek the facts and give an independent conclusion as to what happened. And if that involves some criticism of the FIA as well as other parties then that's what will happen."
Pirelli's Paul Hembery, meanwhile, said Glasgow "ran a very fair, independent hearing. That was very important for everybody to know."
Indeed, appearing to underline its independence and apparent view that the FIA had also made mistakes in the matter, the tribunal ordered the costs of the hearing and investigation to be split three ways between Pirelli, Mercedes and the governing body.