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7 Nature of the information held by McLaren

7.1 The WMSC believes that the nature of the information illicitly held by McLaren was information of a nature which, if used or in any way taken into account, could confer a significant sporting advantage upon McLaren.

7.2 Evidence was submitted at the 13 September WMSC meeting by McLaren's Engineering Director, Mr. Lowe, that the dossier of Ferrari information found in Coughlan's possession did not contain information of particular use or interest to McLaren on the basis that the McLaren car was significantly different to the Ferrari car. This submission was apparently made on the basis of the review of the index to the dossier of Ferrari documents (Mr. Lowe having stated that he had not seen the dossier itself).

7.3 The WMSC does not accept this account. In both WMSC hearings and in written submissions, and from the direct knowledge of the WMSC Members, Formula One teams have great interest in each others' technology and go to considerable lengths (within the rules) to study each other's designs and innovations through direct observation, photographic evidence and other means. In addition the technical information in Coughlan's possession was, in the WMSC's appreciation, highly significant and could certainly confer a sporting advantage, if used or taken into account.

8 WMSC's Assessment

8.1 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) has occurred.

8.3 In the 26 July Decision, the WMSC found a breach of Article 151(c). In assessing the gravity of that breach, it took account of a number of factors including any evidence (or, at the time, lack of it) to suggest that the Ferrari information improperly held had actually been used and actually conferred a sporting advantage. Other factors that it took into account included the argument that there was little evidence of the information in question being disseminated to others at McLaren, what the WMSC then understood to be Coughlan's more limited role and the argument that Coughlan was a single rogue employee.

8.4 McLaren has made detailed submissions indicating that none of the information received enhanced the McLaren car. McLaren has suggested to the WMSC that unless "actual use" and a demonstrated and itemised performance advantage can be proven beyond a reasonable doubt (i.e. to a criminal law standard of proof), the WMSC is not permitted at law to impose a penalty.

8.5 The WMSC rejects this suggestion. The WMSC has full jurisdiction to apply Article 151(c) and stresses that it is not necessary for it to demonstrate that any confidential Ferrari information was directly copied by McLaren or put to direct use in the McLaren car to justify a finding that Article 151(c) was breached and/or that a penalty is merited. Nor does the WMSC need to show that any information improperly held led to any specifically identified sporting advantage, or indeed any advantage at all. Rather, the WMSC is entitled to treat possession of another team'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 Council had a different appreciation of the gravity of McLaren's breach does not lead to the creation of a legal test regarding the WMSC's burden of proof. The WMSC could have imposed a penalty with the 26 July Decision based on the evidence therein, but chose not to (based in part on McLaren's submissions that there had been no dissemination of Ferrari information beyond Mr Coughlan).

8.7 The WMSC has taken note of McLaren's position that an injustice would occur if a penalty were imposed without the FIA having accepted McLaren's offer to inspect the McLaren premises and designs for evidence of Ferrari technology having been copied. However, as noted above, neither the finding of a breach nor the imposition of a penalty require evidence of McLaren having directly incorporated Ferrari technology. Nonetheless, the WMSC have noted and taken account of the open and co-operative nature of this offer and taken this into account in reaching this Decision.

8.8 In light of the evidence now before it, the WMSC does not accept that the only actions of McLaren deserving censure were those of Coughlan. While this situation might have originated with the actions of a single rogue McLaren employee 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 was receiving information in a systematic manner over a period of months;
- the information has been disseminated, at least to some degree (e.g. to Mr. de la Rosa and Mr. Alonso), within the McLaren team;
- the information being disseminated within the McLaren team included not only highly sensitive technical information but also secret information regarding Ferrari's sporting strategy;
- Mr de la Rosa, in the performance of his functions at McLaren, requested and received secret Ferrari information from a source which he knew to be illegitimate and expressly stated that the purpose of his request was to run tests 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 to use some of the Ferrari confidential information in its own testing. If this was not in fact carried into effect it was only because there were technical reasons not to do so;
- Coughlan's role within McLaren (as now understood by the WMSC) put him in a position in which his knowledge of the secret Ferrari information would have 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 give McLaren a sporting advantage. He fed information about Ferrari's stopping strategy, braking system, weight distribution and other matters to McLaren's test driver. Furthermore, in light of Coughlan's undoubted experience, he is likely to have known a great deal about how to confer an advantage and the roles of different personnel within the team. It seems most unlikely that he confined his activities to sharing Ferrari's information with Mr. de la Rosa. It also seems most unlikely that his own work was not influenced in some way by the knowledge regarding the Ferrari car that he is known to have possessed.

8.10 Furthermore, it seems entirely unlikely to the WMSC that any Formula One driver would bear the sole responsibility for handling or processing sensitive Ferrari 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 of his experience, Coughlan would have known this and if he intended to reveal this information 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 were in unauthorised possession of, or knew or should have known that other McLaren employees or agents were in unauthorised possession of, highly confidential Ferrari technical information. In addition, the WMSC finds that there was an intention on the part of a number of McLaren personnel to use some of the Ferrari confidential information in its own testing.

8.12 The evidence leads the WMSC to conclude that some degree of sporting advantage was obtained, though it may forever be impossible to quantify that advantage in concrete terms.

8.13 These factors lead the WMSC to an appreciation of the gravity of McLaren's breach 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 WMSC heard submissions regarding the appropriateness of penalties from McLaren and from counsel for Mr. Hamilton. The WMSC has reached its decision having taken 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 International Sporting Code, imposes the following sanctions relation to the 2007 FIA Formula One World Championship:
- a penalty consisting of exclusion from and withdrawal of all points awarded to McLaren in all rounds of the 2007 Constructors' Championship. For the avoidance of doubt, McLaren will be permitted to race in the remaining rounds of the 2007 Championship but will not be permitted to score points in the Constructors Championship or attend the podium in the event of a top three finish in any of the remaining races in the 2007 season. Points scored by other competitors in the Championship to date will not be affected further to the withdrawal of McLaren's points;
- a fine of USD100 million (less any sum that would have been payable by Formula One Management Limited on account of McLaren's results in the 2007 Constructors Championship had it not been excluded). This fine shall be payable within three months from the date of this Decision.

9.3 Exceptionally, because primary responsibility must rest with McLaren, in the interests of the sport and also because McLaren's drivers were offered immunity from individual sanction by the President of the FIA in his letter dated 30 August 2007, the WMSC does not consider that it is appropriate to impose any sanction on them individually or impose sanctions on McLaren which would affect these drivers' individual Championship standings. As such, both McLaren drivers will retain all the drivers' Championship points they have won so far in the 2007 season and will be permitted to win drivers' Championship points and attend the podium in the remaining races of the 2007 season.

9.4 In addition, in the interest of ensuring that McLaren is not unfairly advantaged as against any of its competitors in the 2008 Championship, the WMSC instructs the FIA technical department to conduct an investigation of McLaren's preparatory work on its 2008 car with a view to determining whether that car incorporates any Ferrari confidential information and report back before the WMSC meeting of December 2007. Once the WMSC has considered this report, a separate Decision will be taken regarding McLaren's participation in the 2008 Championship, including whether any penalty should be imposed. This present Decision does not in any way affect McLaren's entitlement to participate in the 2008 Championship if the entry conditions are fulfilled.

9.5 McLaren is reminded of its right of appeal. In the event that an appeal is lodged with the FIA International Court of Appeal, the effect of this Decision will not be suspended pending the outcome of that appeal.

Signed:
Max Mosley
FIA President

Paris, 13 September 2007

 

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