Findings of the WMSC in Paris
1.5 In response to the charge, McLaren made extensive written submissions in advance of the 26 July WMSC meeting and made detailed oral argument at the meeting itself. McLaren did not dispute that Coughlan had come into possession of Ferrari
confidential information but argued, inter alia:
(i) that the Ferrari confidential information in question had not been circulatedm within McLaren;
(ii) that McLaren had neither used nor benefited from the receipt by Coughlan of the Ferrari confidential information; and
(iii) that the actions of Coughlan in receiving and dealing with the Ferrari confidential information were those of a "rogue employee" for which McLaren should not be held responsible.
1.6 The WMSC considered the arguments and evidence presented by McLaren at the 26 July WMSC meeting and came to the conclusion that McLaren had been in possession of Ferrari confidential information and was therefore in breach of Article 151(c) of the International Sporting Code.
1.7 Although a number of unsatisfactory elements were noted during the deliberations, in assessing the gravity of the breach, the WMSC concluded that there was insufficient evidence that the information was used in such a way as to interfere with the running of the FIA Formula One World Championship ("the Championship").
1.8 However, conscious of, inter alia, the fact that several related procedures were ongoing (including, notably, the High Court Proceedings, a criminal investigation in Italy and various internal forensic investigations at McLaren and Ferrari), the WMSC explicitly reserved the right to revisit its conclusions if further information came to light, in particular information showing that Ferrari confidential information had been used by McLaren to the detriment of the Championship.
1.9 The following Decision was therefore reached: “The WMSC is satisfied that Vodafone McLaren Mercedes was in possession of confidential Ferrari information and is therefore in breach of article 151c of the International Sporting Code. However, there is insufficient evidence that this information was used in such a way as to interfere improperly with the FIA Formula One World Championship. We therefore impose no penalty.
But if it is found in the future that the Ferrari information has been used to the detriment of the championship, we reserve the right to invite Vodafone McLaren Mercedes back in front of the WMSC where it will face the possibility of exclusion from not only the 2007 championship but also the 2008 championship.
The WMSC will also invite Mr Stepney and Mr Coughlan to show reason why they should not be banned from international motor sport for a lengthy period and the WMSC has delegated authority to deal with this matter to the legal department of the FIA.”
2 Re-convening of WMSC
2.1 Subsequent to the WMSC Decision of 26 July 2007 (the “26 July Decision”), new evidence came to light which, in the FIA’s assessment merited consideration by the 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 new meeting and were given copies of the new evidence put before the WMSC (in some limited cases, after redaction of confidential information). McLaren and Ferrari were invited to make written submissions which have been duly received by the WMSC.
2.4 Oral submissions and explanations have also been made on behalf of McLaren and Ferrari and at the 13 September WMSC meeting, the WMSC has put questions to those concerned. Opportunities were also offered and taken up for McLaren and Ferrari to cross-examine each others’ witnesses.
2.5 Some of the key elements that the WMSC has considered are set out below. In light 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 nor does 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 specific allegation that e-mails relevant to the FIA’s investigation had been exchanged between certain McLaren drivers.
3.2 The FIA therefore wrote to three McLaren drivers (Mr. Alonso, Mr. Hamilton and Mr. de la Rosa) to establish whether or not this allegation had any basis in fact and requested that they produce copies of any relevant documents, including any electronic communications (howsoever conveyed or stored) which may be relevant to this case and which make reference to Ferrari, Ferrari’s employee Nigel Stepney (“Stepney”) or any technical or other information coming from or connected with either Ferrari or Stepney.
3.3 The McLaren drivers were reminded of their duty as competitors and Super Licence holders to ensure the fairness and legitimacy of the Formula One World Championship. Given the importance of establishing the facts and that the information might not come out any other way, the FIA offered the assurance that any information made available in response to the letter would not result in any proceedings against the drivers personally under the International Sporting Code or the Formula One Regulations. However, the drivers were notified that if it later 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 information responsive to the FIA’s request. Mr. Alonso and Mr. de la Rosa both submitted emails to the FIA which the WMSC finds highly relevant. Subsequently (at McLaren’s request) both Mr. Alonso and Mr. de la Rosa made written statements to the WMSC verifying that these e-mails were sent and received and offering context and explanations regarding the e-mails. The e-mails show unequivocally that both Mr. Alonso and Mr. de la Rosa received confidential Ferrari information via Coughlan; that both drivers knew that this information was confidential Ferrari information and that both knew that the information was being received by Coughlan from Stepney.
3.5 On 21 March 2007 at 09.57 Mr. de la Rosa wrote to Coughlan in the following terms: “Hi Mike, do you know the Red Car’s Weight Distribution? It would be important for us to know so that we could try it in the simulator. Thanks in advance, 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 Coughlan replied 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 Alonso
which sets out Ferrari’s weight distribution to two decimal places on each of Ferrari’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 in different time zones). His e-mail includes a section headed “Ferrari” in which he says “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 discussion of 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 the same person who told us in Australia that Kimi was stopping in lap 18. He’s very friendly 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 receive Ferrari’s weight distribution for the purposes of testing it in the simulator the following day (“It would be important for us to know so that we could try it in the simulator”). Mr. de la Rosa explained to the WMSC at the meeting of 13 September 2007 that when Coughlan responded with the precise details in question, he (de la Rosa) decided that the weight distribution was so different to the McLaren car set up that it would not, in fact, be tested in the simulator. Mr de la Rosa says that thereafter he regarded the information as unimportant. It seems highly unlikely to the WMSC that a test driver would take a decision of this sort on his own. It also is not clear why, if Mr. de la Rosa regarded this information as unimportant, he would still convey and discuss it with Mr. Alonso some days later in his e-mail exchange of 25th March. Mr. de la Rosa’s evidence also makes clear that there was no reluctance or hesitation about testing the Ferrari information for potential benefit, but only that on this occasion he says that there was a technical reason not to do so.
3.11 McLaren's Chief Engineer Mr. Lowe gave clear evidence that decisions relating to simulator testing would normally involve a number of engineering and other staff (as would running the tests themselves). It seems highly unlikely that decisions about what would be run in the simulator would by taken by a test driver 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 tests had been carried out on a flexible rear wing which Mr. de la Rosa says is “a copy of the system we think Ferrari uses”. The Ferrari car’s precise aero balance at 250 kph is also identified. While it is conceivable that the former item could have been copied from observation of the Ferrari car, it is clear from the context of the exchange (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 confidential to Ferrari and that it was passed to Mr. de la Rosa by Coughlan, who got it from Stepney.
3.13 Mr de la Rosa’s e-mail to Mr. Alonso on 25 March 2007 at 01.43 identified a gas that Ferrari uses to inflate its tyres to reduce the internal temperature and blistering. 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 gas that 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 hope we 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 agree 100% 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 makes clear that they both were enthusiastic about trying the gas apparently used by Ferrari in its tyres, Mr de la Rosa's evidence to the WMSC was that he, on his own, decided to explore with a Bridgestone engineer whether the McLaren team should try this gas. He states that he had no other conversations with any other specialist staff within McLaren. His evidence is that the Bridgestone engineer in question doubted whether the gas would confer an advantage upon McLaren. According to Mr de la Rosa, without further consultation with anyone else at McLaren, and despite the fact that this had apparently been successfully used at Ferrari, the idea was dropped and no actual attempt was made to test the gas in the tyres used by McLaren.
3.17 It seems unlikely to the WMSC that a test driver would engage in such consultations on his own without discussing it any further with anyone else at the team. It also seems unlikely that a decision on whether to pursue the matter further would be taken by a test driver on his own. Finally, Mr de la Rosa’s evidence makes clear that there was no reluctance or hesitation about using the Ferrari information, but only that on this occasion it was concluded that there would be no advantage in doing so.
3.18 On 12 April 2007 at 12.25 Mr. de la Rosa wrote to Mr. Coughlan and asked “ can you explain me as much as you can, Ferrari’s braking system with the [reference to detailed technical information]? Are they adjusting from inside the cockpit…?”
3.19 After a number of exchanges about whether a description would be too complicated to articulate by e-mail, Mr. Coughlan replies on 14 April 2007 at 14.40 with a technical description which purports to be a description of the principles underpinning the Ferrari braking system. Ferrari have confirmed that the description given is an accurate (though incomplete) description of the principles of its braking system. Coughlan concludes with a statement that “we are looking at something similar”. This latter statement strongly suggests that the McLaren system was being worked on from a position of knowledge of the details of the Ferrari system, which, even if the Ferrari system not being directly copied, must be more advantageous to McLaren than designing a system without such knowledge.
3.20 The e-mail exchange between Mr. de la Rosa and Mr. Alonso dated 25 March 2007 at 01.43 also describes some aspects of the McLaren braking system and states that “with the information that we have, we believe Ferrari has a similar system” and goes on to describe highly specific elements of the Ferrari system (which cannot be set out here for confidentiality reasons but which clearly demonstrate 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 “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 the same person who told us in Australia that Kimi was stopping in lap 18. He’s very friendly 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 at lap 19 at the Australian GP. However, the fact remains that Mr de la Rosa cited this information as a reason to believe that Stepney was a reliable source of information. This strongly suggests that McLaren had at least taken account of this information in determining its own strategy.
3.23 The evidence before the WMSC also demonstrates that Stepney had fed information through Coughlan regarding which lap one or more of the Ferrari drivers would stop at during the Bahrain Grand Prix. McLaren has sought to discredit the significance of this information as it proved in the end to be inaccurate. However, the evidence before the WMSC was that the safety car had been deployed early in the race making it likely that stopping strategies would be adjusted. This deployment of the safety car could not have been known in advance of the race and the fact that the stoppage predictions proved inaccurate does not mean that McLaren had not considered and taken account of the information that had been received in determining its own strategy before the race.
3.24 In any case, as there is no legitimate context in which another teams’ stopping strategy would be revealed to McLaren in advance, there is very clear evidence that both drivers knew that they were receiving unauthorised and confidential Ferrari information. To the WMSC’s knowledge, no effort was taken to report or stem this flow.