The Stewards received two protests from Haas F1 Team ("Haas"), one against Car 31 (Driver Esteban Ocon) and one against Car 11 (Driver Sergio Perez) of the Racing Point Force India F1 Team.
2. The identical protests alleged that "Force India Mercedes" ("FIM") (Racing Point Force India F1 Team or "RPFI") is not a "constructor" within the meaning of such terms as set out in Article 6.3 and Appendix 6 of the 2018 Formula One Sporting Regulations and accordingly asserted that FIM is not eligible to enter such cars in the 2018 FIA Formula One World Championship.
3. Haas and FIM representatives were summoned to a hearing of the Stewards which commenced at 1100 hrs (UAE time) Friday November 23. The FIA was also invited to be represented.
4. Haas and FIM representatives included their respective legal counsel. Due to the significance of the matters to be discussed, the stewards gave their advance approval for such representation and extended the same courtesy to the FIA, which accepted the offer to also be represented by counsel.
5. Present at the hearing were
Mr Peter Crolla (Team Manager Haas F1 Team)
Mr Gunther Steiner (Team Principal Haas F1 Team)
Mr Jeremy Courtenay-Stamp (Legal Representative Haas F1 Team) - via teleconference
Ms Leslie Ross (General Counsel FIM)
Mr Andy Stevenson (Sporting Director FIM)
Mr Mark Gay (Legal Representative FIM)
Mr Charlie Whiting (FIA Formula One Director)
Mr Pierre Ketterer (FIA Head of Governance, Integrity and Regulatory Affairs) – via teleconference
6. The Stewards declared that the protests had been lodged within the applicable time limit as specified in the International Sporting Code ("the Code"), accompanied by the required fee, and hence decided to proceed to hear the two protests concurrently.
7. The parties were advised that the Stewards wished to make an audio recording of the proceedings and were asked if there were any objections. No objections were raised.
8. In advance of the hearing, and during it, the parties submitted numerous documents. These are listed in Appendix A to this Decision.
Background
9. On July 28, 2018, Sahara Force India Formula One Team went into Administration.
10. On August 16, 2018, Racing Point UK Limited entered into a sale agreement with Force India Formula One Limited (in Administration) and Geoff Rowley and Jason Baker as administrators of Force India, for the acquisition by Racing Point of the business and assets of Force India. (This was evidenced by reference to the Deed of Novation and Amendment and was not disputed by any of the represented parties).
11. On August 21, 2018 Mr Otmar Szafnauer signed an entry form on behalf of Racing Point UK Limited for RPFI to enter two cars with a "Force India" chassis in the 2018 FIA Formula One World Championship.
12. On August 23, 2018 the FIA issued a Super License for Racing Point Force India F1 Team
13. During the period prior to August 23, numerous agreements were entered into and these are included in the documents listed in Appendix A.
14. The "new" team RPFI competed at its first Formula One Grand Prix in Spa, Belgium, commencing with scrutineering on August 23.
The Hearing
15. The hearing commenced at 1100hrs (UAE time) and was suspended at 1204hrs to allow Haas and the FIA representatives time to examine documents that were tabled during the hearing. The hearing reconvened at 1545hrs and concluded at 1651hrs.
16. Mr Courtenay-Stamp (for Haas) submitted that the Championship is only for eligible "constructors" and that the cars presented by RPFI do not comply with the definition of "constructor" in Article 6.3 and Appendix 6 of the 2018 F1 Sporting Regulations.
17. Art 1 of Appendix 6 of the 2018 F1 Sporting Regulations states that a competitor "shall in respect of the Listed Parts to be used in its cars in Formula One, only use Listed Parts which are designed by it.
18. He noted also that Art 2 of Appendix 6 allowed for the "outsourcing" of the "design and/or manufacture" of any Listed Part to a "third party".
19. However, such outsourcing has several provisos including (b) which states that the third party shall not be a "competitor".
20. Mr Courtenay-Stamp argued that RPFI did not design the Listed Parts and alternatively did not outsource them.
21. The protest also asserted that the definition of "competitor" should be construed to include previous, existing or excluded competitors.
22. Mr Courtenay-Stamp asserted that the FIA cannot exercise its sole discretion to accept an entry in the championship (under Art 8.5 of the 2018 F1 Sporting Regulations) if that party is not a "constructor" in accordance with the definition in Art 6.3 and Appendix 6 of those regulations.
23. Mr Gay (for RPFI) summarised the chronology of events from the date when Sahara Force India went into Administration. He explained that normally in these situations a new potential owner of an F1 team would purchase the shares in the company from the Administrators; however, in this case because of the situation of the two major shareholders this was not possible.
24. Mr Gay noted that the Bilateral Settlement Agreement of August 23 acknowledged that the sale of assets of the Sahara Force India team in Administration, was effective August 16, 2018.
25. He also noted Clause 2.5 of the Bilateral Settlement Agreement which acknowledged that the (new) Force India team was a constructor and that Clause 2.8 prescribed a significant penalty if the team ceased to be a constructor during the Term of the agreement.
26. Mr Gay questioned under what provision Haas had any right to protest. He argued that the FIA had "absolute discretion" (as noted under 22 above) to accept RPFI as a constructor. He suggested that the matter should in any case not be heard by the Stewards but by the International Court (sic).
27. Mr Gay also questioned the validity of the protest on a "timely" basis, stating that there had been eight events conducted since RPFI obtained its Super Licence and that any protest should have been lodged before the first event in which RPFI participated.
28. He further argued that the so-called "Budapest Agreement" to which Haas is a party, was, in effect, a waiver to any right to object to or protest the new arrangement.
29. In response, Mr Courtenay-Stamp submitted that it had taken a long time for all the information to be available to Haas; indeed some was only made available on November 1 and more was made available during the hearing, so Haas did not have a full understanding of the arrangements in place until the time of this hearing.
30. He further argued Haas had the right to protest against decisions and, in particular, if it believed the regulations had not been complied with, including by the FIA, in taking the decision to admit a team to the Championship.
31. In response Mr Gay argued that Article 1.2.3 of the Code gave the FIA the right to determine what was "safe, fair or orderly" and that this was not the responsibility of the Stewards.
32. The Stewards Chairman referred Mr Gay to Articles 11.9.1 and 11.9.2a of the Code which the Stewards believed gave them the right and responsibility to hear the protest and make a determination on the matter.
33. For the FIA, Mr Ketterer firstly declared the FIA had no objection to the disclosure of the documents referred to herein, for the purposes of this hearing only.
34. He stated the FIA was concerned with regulatory matters and not commercial ones in relation to this matter.
35. He noted that the Sahara Force India F1 Team had been excluded from the championship and that the FIA's position was that RPFI is a new and different Team. He noted it held a new Super Licence dated 23 August 2018.
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