ABU DHABI – F1 Grand Prix

On the morning of 16 December 2021, the Mercedes-AMG Petronas Formula One team (“Mercedes”) publicly announced that it would not lodge any further legal proceedings against the world-famous events which transpired on the previous Sunday at the last race of the 2021 Formula One World Championship in Abu Dhabi.

However, despite the enormous amount of attention for Max Verstappen’s last-gasp victory and the events leading up to it, the legal and procedural aspects of the situation have, until now, been left mostly unexplored.

First off, it is important to keep in mind that the Formula One World Championship is only one of the many different sports and competitions organised under the authority of the Fédération Internationale de l’Automobile (“FIA”), such as go-karting and rallies. These are governed by the FIA International Sporting Code (“ISC”), as well as a multitude of sport-specific regulations, such as the Formula One Sporting Regulations (“F1SR”). The F1SR provide that protests and appeals shall be conducted in accordance with the ISC. In turn, the ISC provides that protests against “Any alleged error, irregularity or breach of the regulations occurring during a Competition” or “Classification established at the end of the Competition” must be lodged “No later than thirty minutes after the publication of the Provisional Classification”.

Indeed, Mercedes timely lodged two protests:

• the first protest requested the Stewards to punish Max Verstappen (“Car 33”) for allegedly overtaking Lewis Hamilton (“Car 44”) before the green flag was raised to signal the return to normal racing conditions after the presence of the Safety Car (therefore an “irregularity”), which is forbidden by art. 48.8 F1SR;
• the second protest was aimed directly at the classification of the event on account of FIA’s management of the Safety Car and the “unlapping” procedure, allegedly breaching art. 48.12 F1SR, which states that “…any cars that have been lapped by the leader will be required to pass the cars on the lead lap and the safety car” and “…once the last lapped car has passed the leader the safety car will return to the pits at the end of the following lap.”

Both protests were rejected by the Stewards’ Panel.

• As regards the first protest, art. 48.8 F1SR was deemed not to have been breached by Max Verstappen whereas “although Car 33 did at one stage, for a very short period of time, move slightly in front of Car 44, at a time when both cars where accelerating and braking, it moved back behind Car 44 and it was not in front when the Safety Car period ended (i.e. at the line).”
• Regarding the second protest, the Stewards decided the following:
  

“That Article 15.3 allows the Race Director to control the use of the safety car, which in our determination includes its deployment and withdrawal. That although Article 48.12 may not have been applied fully, in relation to the safety car returning to the pits at the end of the following lap, Article 48.13 overrides that and once the message “Safety Car in this lap” has been displayed, it is mandatory to withdraw the safety car at the end of that lap. That notwithstanding Mercedes’ request that the Stewards remediate the matter by amending the classification to reflect the positions at the end of the penultimate lap, this is a step that the Stewards believe is effectively shortening the race retrospectively, and hence not appropriate.”

The Stewards’ decisions can themselves be appealed before the FIA International Court of Appeal (“ICA”), within 96 hours of the notification of the appellant’s intention to do so, which must in turn be notified to the Stewards within 1 hour of the publication of the decision, pursuant to the FIA Judicial and Disciplinary Rules (“JDR”), which set out the main legal framework of the Federation, and the ISC. On 12 December, Mercedes had already decided not to appeal the decision concerning Max Verstappen’s driving under the Safety Car regime, but it had at the same time notified its intention of appealing the decision regarding FIA’s management of the “unlapping” procedure pursuant to art. 48.12 F1SR. This happened within the strict time limit mentioned above, however, after talks with FIA and Formula One, though formally still on time to do so at the moment of writing, has ultimately decided not to carry through with its appeal.

The ICA is the last stage of appeal proceedings within the FIA. Though many believe the Court of Arbitration for Sports (“CAS”) in Lausanne, Switzerland, to be automatically the highest and last instance of appeal in international sports, things are not quite so simple in FIA’s case. Unlike many other world sports governing bodies, such as FIFA, FIA does not grant CAS, jurisdiction over its internal decisions through a statutory arbitration clause as per R27 and R47 of the CAS Code, nor does it exclude the jurisdiction of any national courts.

On the contrary, the JDR are particularly clear on the legal remedies available against a decision taken within the scope of its activities, stating that “nothing in these rules shall prevent any party from pursuing any right of action which it may have before any court or tribunal, subject at all times to such party having first exhausted all mechanisms of dispute resolution set out in the Statutes and regulations of the FIA.” This is further reinforced by the ISC, stating that “The Court of Arbitration for Sport is exclusively competent to resolve definitively appeals against the decisions of the FIA Anti‐Doping Disciplinary Committee.”

Other than through statutory provisions, CAS can only be granted jurisdiction through a specific arbitration agreement between the parties to a dispute, as per R27 and R47 CAS Code. Therefore, FIA decisions may potentially be subject to any number of national jurisdictions, in addition to FIA’s own Swiss law, but necessitate a specific arbitration agreement between the parties before being submitted to CAS.

Indeed, when asked to judge on its own jurisdiction to hear appeals against a decision of a FIA organ in CAS 2015/A/3872 (Al Qassimi & ADRT v. FIA, QMMF & Nassr Al-Attiyah) 9 June 2015, a panel of leading CAS arbitrators denied itself the same on the basis of art. 13 JDR, stating in par. 33 that “To say that there can be no interference with a right is self-evidently not the same thing as establishing that the right exists in the first place. Article 20 [now art. 13 JDR] of the Rules would allow the Appellants an option to go to either a court or to an arbitral tribunal, but only provided its right to do so exists (the words are “which it may have”, not “which it is hereby granted”).

However, although CAS jurisdiction over appeals against FIA decisions is not granted in general, it should also not be forgotten that, in case of an appeal against an ICA decision, the parties may have an interest in submitting themselves to the jurisdiction of CAS (or other arbitration tribunals) through an arbitration agreement. This is due to among others the specialised knowledge of CAS arbitrators and its speed -which make it ideal for sports disputes, as opposed to national courts-, as well as the potentially unlimited number of different national courts which could deem themselves competent to deal with the dispute.

In conclusion, although Mercedes did not see its legal actions through until the end, exhausting the internal remedies of FIA through an appeal against the Stewards’ decisions before the ICA, we can say that the legal follow-up of the 2021 Formula One World Championship has been almost as exciting as the championship itself.