FIA

Ecco senza censure la trscrizione delle prove contro la McLaren

Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 1
Extraordinary Meeting of
the World Motor Sport Council
I. Hearing
1. Preliminary Points
Max MOSLEY
At my request, Sebastian has gone to each of the two teams – McLaren and Ferrari – and explained
that, because the dossier arrived very late last night, the World Motor Sport Council needed to take
a bit more time to read it before we open the hearing. I am not sure that everyone has read it.
There is a great deal in it that may not be directly relevant, and it is not as bulky as it looks.
Nevertheless, I feel you should be given more time. If you wish to take this time to have a quiet
look at your dossier, this would be a good opportunity to do so.
President of the World Karting Federation
I wished to point out a possible error in the first dossier, page 134. Regarding the telephone
discussion, Jonathan Neale is the name that is listed for each of the witness responses on that page.
If I recall correctly, it was Paddy Lowe who stated all of this, not Jonathan Neale.
Max MOSLEY
Thank you very much; we will take that on board.
Are there any other points that people wish to raise on the dossiers?
[After 20 minutes time, Max Mosley asks whether there are questions or requests for additional
time. As none are put forward, the teams are called in.].
For clarity’s sake, we ask that any teams other than McLaren and Ferrari please sit at the end,
where they will be comfortable. Witnesses, other than the expert witnesses, will be asked to sit
outside, as we do not have room to seat them all. In any case, it is preferable that witnesses not be
present during the proceedings. Three seats have been provided for McLaren and three for Ferrari.
We are trying to accommodate everyone as best possible.
[It is ascertained that all of the witnesses other than expert witnesses are outside. Paddy Lowe
being deemed by Max Mosley a witness of fact in this circumstance, he is also asked to wait
outside.]
I apologise that it was rather difficult to accommodate all those requiring seating in this room.
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 2
We sent out a note in an attempt to limit the amount of time spent in an actual hearing today,
particularly in view of the large quantity of documents being circulated. I hope that we will be able
to abide by that schedule.
We thought that the best way of proceeding was to allow to Ferrari to present its case, as we were
criticised last time for allegedly failing to allow Ferrari the proper opportunity to do so. Thus, after
preliminary matter, we will allow Ferrari to present its case for a maximum of 45 minutes.
McLaren will then have 1 hour and 30 minutes to present its position. It would be most efficient if
the actual submissions were very short so that more time could be dedicated to asking questions
and listening to witnesses. However, it is up to each party how it wishes to allot time for questions
and, perhaps, other people’s witnesses.
I should also say that it is our intention – because it has been suggested in the press that these
proceedings are less than fair or that we are in some way published – a full transcript of both
hearings, (26 July and 13 September) having first given the parties the opportunity to redact from
those transcripts anything that they feel is confidential, or for which they can give genuine reason
for not publishing them. It is in the interest of motor sport and Formula 1 that people can
understand what took place and form their own opinion as to what happened. We hope to circulate
a transcript within 24 hours, then leave you 48 hours to make whatever redactions are deemed
appropriate.
I should add that, if there is any question of imposing any sort of penalty at the close of the hearing,
we will invite the parties back to make submissions on that, particularly the affected party. This is
fundamental. We will also invite Lewis Hamilton’s counsel, should there be any decision that
might affect him, so that we can hear submissions on his behalf. That concludes the preliminary
points, on my part.
Ian MILL
I have two points.
The first is a matter that we did raise in our skeleton submissions: it concerns the Italian documents,
if I may refer to them as such, which you have received and which form part of the evidence
against us. You will have read in our submissions that we have concerns that those documents may
have obtained improperly. We have present, in the room, if deemed helpful and relevant, our
Italian lawyer, Professor Amodio, who can explain the issues to you. He has been responsible for
drafting the Italian proceedings which are in our dossier papers. It may be that this is all a
misunderstanding, but as the President wrote to us when we received these documents, he had
understood that the reason for their arrival, at the time of their arrival, was that Ferrari had to obtain
a court order to allow them to be disclosed. Please understand what these are: these are documents
from the confidential files of the police, in relation to the potential prosecution of Mr Coughlan and
Mr Stepney. If they are used today, they will be so for a purpose entirely unconnected from that.
Professor Amodio, who is a witness of fact for these purposes, states that he spoke to the
prosecutor. The prosecutor told him that Ferrari had indeed applied to him for permission, and that
he refused it. We have written to Ferrari for a copy of the court order, for it is entirely possible that
we have misunderstood the position or that the prosecutor had misremembered events. As I far as
we know, we have yet to receive a response from Ferrari on that. It is very important that, before
hearing Ferrari’s case, insofar as they are going to rely on those documents, that a substantive
response be given: if they have obtained a court order, they should assure us of that and, if they
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 3
have, preferably produce it. In that case, we can forget about this and move forward. Otherwise,
the World Motor Sport Council needs to understand that that there may be issues on which my
clients have to reserve their rights, insofar as they regard and are based upon documents improperly
obtained.
Max MOSLEY
In front of us is a list of 323 text messages and telephone calls – a combination of the two – over a
3.5 month period. The World Council’s only concern is whether that list is accurate and truthful.
We are not concerned with whether there are issues over how that is obtained. Unless there is
evidence that it is forged or inaccurate, we will take it on its face value. We do not enter a debate
about Italian law; we have neither the time nor the skills for that. We have a list, we will look at it
and you can make whatever points you wish to make about it.
Ian MILL
I understand that that is the position that the World Motor Sport Council has taken. It has to
understand that the fact that it is looking at the list, and being invited by Ferrari to draw inferences
from that list may create serious problems. However, if that is how the World Motor Sport Council
wishes to deal with this, then that is fine. You simply need to know that we reserve our rights with
regard to that.
Max MOSLEY
Absolutely; that is understood. What was your second point?
Ian MILL
The second was raised just now by Mr Dennis, who was concerned, upon coming into the room, a
gentleman whom he believes is or has been a director of Ferrari: Mr Piccinini. He was concerned
as to whether that gentleman intended to play any substantive part in the proceedings and have an
impingement on the result.
Max MOSLEY
You are quite right to make the point. He is indeed a director and was, many years ago, the Ferrari
Team Manager. He will not play a part in the proceedings and will not vote. However, as he is the
Deputy President of Motor Sport for the FIA, it seemed entirely appropriate that he should be here.
Ian MILL
That seems entirely appropriate. I had thought that would be the answer.
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 4
Max MOSLEY
If you are ready, the floor is Ferrari’s.
2. Counsel Statements
Henry PETER
Mr President, Ferrari will be represented today by Nigel Tozzi, an English QC and myself.
Ferrari’s case has been presented in detail in a submission filed on Tuesday, with 64 documents.
Two of these documents are highly confidential and are thus only with the World Motor Sport
Council: the three exhibit to Mr Procogenta’s affidavit; as well as two binders containing the 780
pages of material founded at Mr Coughlan’s domicile. It is only by seeing and weighing it that one
fully realises what is in question.
Max MOSLEY
Might I interrupt you. We are happy to have these documents shown quickly to the members of the
World Council, but it is up to you to decide when that will happen.
Henry PETER
Thank you. As requested by the FIA, Ferrari also filed, before noon, a six-page skeleton in both
French and English. We assume that this has been read and the case will therefore be presented
quite briefly, at this stage.
I will do this and Nigel Tozzi will then carry on, developing some of our points.
Relying on the facts known at that time, on 26 July 2007, the World Motor Sport Council found
that McLaren had breached Article 151c of the International Sporting Code. The WMSC, however,
decided that evidence of any use of the material found in possession of McLaren was insufficient to
impose a penalty. The Council, however, reserved the right to invite McLaren back in front of it in
case new evidence emerged.
Since July 26th, new facts have indeed emerged. First, they show that McLaren has not told the
full story, thus the WC was misled when it issued its first decision. Secondly, new and impressive
evidence has now been collected, which shows that a substantial amount of additional confidential
Ferrari information penetrated McLaren at advanced levels and was used in various manners.
These facts results from documents collected by the FIA. We refer to the e-mails exchanged by
Alonso, De la Rosa, Coughlan, Lowe and Stepney and by Ferrari. I am referring here to reports
obtained – legally – by Ferrari, collected and prepared by the Italian police, with evidence that
hundreds of SMS –
Max MOSLEY
Can I interrupt you? We know all of this. We need to hear information that is not contained in the
documents, or hear the witnesses. There is very little new evidence and we are familiar with it.
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 5
Henry PETER
Fine. I would like to recall that, if this illegal possession used by McLaren had not been discovered
by chance, McLaren would probably still be using it today. Furthermore, if the FIA had not written
to McLaren’s drivers, we would not be here today. In all of this process, McLaren never
contributed to discovering the truth, at least not spontaneously.
We believe that McLaren derived substantial advantage from the knowledge and use of the
material. We know that, with so little between McLaren and Ferrari, the slightest adjustments can
make a major difference in terms of results. In view of these facts and this new evidence, we trust
that the World Motor Sport Council will be able to make the appropriate decision today.
Nigel TOZZI
We started receiving McLaren’s documents at 4 PM yesterday; we did not receive the detailed
submissions until after 6 PM. We are thus unable to respond in detail. We are very conscious of
the time constraints for today’s hearing. It is important to understand, then, that any failure to deal
with a point in McLaren’s submissions as an acceptance of its truth, but simply a reflection of the
time available to us.
The McLaren submissions and witness statements a number of completely unfounded criticisms of
Ferrari, presumably in an attempt to deflect attention from their own conduct. We urge you to bear
in mind that we are here to consider McLaren’s conduct, not that of Ferrari, and indeed not that of
Renault, which also seemed to bear the brunt of some criticism from McLaren. We are here to
consider McLaren’s conduct. That is the ambit of this enquiry.
The third point is to remind you of the language of Article 151c itself, and the fact that you have
already found McLaren, and rightly so, to be in breach of that Article. Article 151c makes it an
offence where there is any fraudulent conduct or any act prejudicial to the outcome of a
competition, or to the interest of motor sport in general. There is no requirement in Article 151 that
it must be shown that a party needs to have gained advantage or that documents have actually been
used, as in this case. If I may provide analogies from another sporting arenas. In athletics, if a
runner takes a banned substance, that runner is disqualified; it is not necessary to show that the
runner has gained an advantage. It is enough that he has taken a banned substance. If a football
team fields a player who has been banned, it will be disqualified or lose points. It is not necessary
to show that the said player had any influence on the outcome of the match.
Max MOSLEY
Mr Tozzi, may I interrupt you for one second. I do not wish to keep interrupting. The point you
are making is fundamental to motor sport. Someone can be 1mm over with their wing, or half a
kilo over or under with their weight, and thereby be disqualified. We have exactly that principle.
Last time, the World Motor Council was motivated last time by the fact that all of the information
was reported to us to be in the hands of a rogue employee. We were told that none of the
information had reached anyone in McLaren. Under those circumstances, it seemed to us unfair to
impose the same sort of penalties as those that would have been imposed had .in McLaren. It was a
question of fairness, not a rigid application of the rule. The principle you are explaining is one that
we fully understand and follow. However, the particular circumstances on the 26th were that we did
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 6
not have sufficient evidence to rebut the assurance that none of the information has found its way
into McLaren.
The real issue is as follows: were the 780 pages disseminated into McLaren, to any degree?
Secondly, does the new evidence add anything in arriving at that answer?
Nigel TOZZI
I understand and will not belabour the point I was making. I understand the boundaries, but that
does not indicate that I accept that you are so prescribed.
The key facts for you to consider are, in light of the new evidence:
- The degree of contact which we now know to have taken place between Coughlan and
Stepney. I will not respond in any detail when my learned friend raised his objection to the
manner in which the information was used in the Italian prosecution. We say that objection
is extraordinary from a party that has come before this body on several occasions, claiming
a desire to be helpful, cooperative, and open. It is extraordinary that they are trying to
suppress that information’s being in front of you, even to the extent of taking materials from
proceedings in Italy and having that withdrawn.
- We completely reject the suggestion that we have, in any way, behaved improperly in using
that material. Our Italian lawyer, Mr Deluca, is here to provide counsel on that. It may be
taken to say that we have a complete answer to all of the points made by McLaren, which
are misconceived, quite possibly because they do not understand the full position.
- Thirdly, I would pick up on the suggestion of cherry-picking. If the FIA wants us to give all
of the material to McLaren which we are allowed to give, then we are perfectly happy to do
so. It was not a question of cherry-picking, choosing material that was advantageous to our
case, whilst keeping that material that might have assisted theirs. Simply, a lot of material
that is quite irrelevant. We are happy for them to see any additional material that we are
allowed to show them.
More importantly, what does the new material show? You will have received with your papers, as
Exhibit 61bis, showing exactly what the nature, timing and extent of these calls were, at different
periods. I invite you, if you have not already done so, to look at that graph. There are a series of
graphs.
Max MOSLEY
Apparently, the document is confidential and has not been circulated.
Henry PETER
It is not confidential, it is has been circulated and is our document, Exhibit 61bis.
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 7
Nigel TOZZI
This combines the material from Aligarto 9 with that in Aligarto 18.
Max MOSLEY
We all have it.
Nigel TOZZI
The graph seeks to show, in pictorial and colour format, detail from the SMS messages, from Mr
Stepney to Mr Coughlan, and the replies from Mr Coughlan to Mr Stepney, as well as the telephone
calls. We know that, from 11 March to 3 July, 288 text messages were exchanged, and 35
telephone calls took place. The graph shows that the contact increased in: the period leading up to
the Australian Grand Prix; during private tests carried out by Ferrari in Malaysia, leading up to and
during the Malaysian Grand Prix; leading up to and during the Bahrain Grand Prix; and leading up
to and during the Spanish Grand Prix.
This is not the whole picture. These simply reflect the details that the Italian police have obtained,
by looking at two of Stepney’s phones. One covers only the period 21 March to 3 July, hence ten
days are missing in this graph; the other covers only 11 March to 14 April. Anything on the latter
phone is not reflected in this graph. This is still only a part of the overall picture, then.
Regrettably, we do not have the texts of the SMS messages, despite our very best efforts to do so.
As far as I am aware, the police does not either.
What conclusion can we draw from this? Mr Mill, speaking before you on 26 July, stated that:
“inferences are always open to be drawn in appropriate circumstances”. This is such a
circumstance. The obvious inference was that Stepney was feeding confidential information about
Ferrari and the Ferrari car to Coughlan. It demonstrates that the story that Coughlan told, of only
limited contact with Stepney, was completely untrue.
What was the content of that contact? Unfortunately, it is unknown and we must draw inferences.
However, we are assisted by a document not before you at the previous occasion: an e-mail that
Coughlan has disclosed in a further affidavit, in the English proceedings. That document is found
in Exhibit 57 of our bundle.
Max MOSLEY
Would it be possible for you to read it?
Nigel TOZZI
This is an e-mail dated 14 March, from Stepney to Coughlan. The subject is “drag”.
“Mike, apart from the rear wing, I don’t think this is the whole story. Once the front floor
compresses, when it makes contact with the ground, which is around the 200km per hour to full
compression,, the drag reduces quite considerably, due to reduction of air beneath the car. At the
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 8
same time, the turning vanes also move. The front floor is about 100 cm long, so it is quite an
effective device, also as mentioned in my previous e-mail, as a mass damper, because it helps in
this mode to control the arrow and keep the front tyre contact patch. Other areas we look at are
rear stall, but this is difficult to control. Another solution has been found, which I’ll talk to you
some other time. Regards, Nigel.”
What does that e-mail tell you that you did not know before? It is quite clearly part of a sequence
of information exchange. He refers to an earlier e-mail in which he has passed information. He
refers, at the end, to the intention to tell him further details about another solution, presumably
another solution that Ferrari has found. Secondly, it plainly has nothing to do with so-called
whistleblowing. The utterly discredited argument that McLaren ran before you on the last occasion
to justify the admitted use of Ferrari confidential information, in order to make a complaint to the
FIA. This demonstrates, quite clearly, that the flow of information from Stepney to Coughlan was
a revelation of Ferrari’s confidential secrets. In that this is part of a flow, one going on at the dates
we saw, you can and should draw your own conclusions as to why Stepney should be funnelling
this information to Coughlan, and whether it is realistic that he should have kept that information to
himself.
As to the information being used, I have already mentioned whistleblowing, though I suggest that it
was no such thing and, rather, part of a stream of information. In any case, one does not whistleblow
to the employer’s major competitor. If any whistle-blowing was to be done, Mr Stepney
should have been sending details to the FIA. So far as we are aware, he did not provide the sort of
detailed information to the FIA which he chose to give Coughlan and, thereby, McLaren.
Secondly – and this brings us to the major piece of evidence that has come to light since the last
hearing – the e-mails disclosed by Pedro de la Rosa and Fernando Alonso show that, contrary to
what you were told on the last occasion, the information which Coughlan was receiving from
Stepney was being shared within McLaren. McLaren has tried very hard to suggest that the
information being disclosed was limited to only the two drivers, that there was no wider
dissemination within McLaren, and that we have jumped to a series of inappropriate, unfounded
conclusions. We ask you to use your common sense, stand back, look at what the e-mails actually
say and compare them with what the McLaren witnesses try to say to explain them. Ask
yourselves, “Does that ring true?” We suggest that, when you ask yourselves those questions, you
will come to the only conclusion that you can: that you are being fed a line that is not the complete
story. Moreover, this puts into context what you were told on the last occasion about, for instance:
the installation of the firewall, Coughlan’s extraordinary trip to Barcelona to tell someone to stop
contacting him, and the incredible account of the meeting between Coughlan and Neale, when
Coughlan tried to give him a document and Neale, quite deliberately, turned a blind eye.
The further documents that have come to light are found in the FIA dossiers at Tab 5. First, could
you turn to Page 61? This shows a very short e-mail dated 21 March, from Pedro de la Rosa to
Mike Coughlan: “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.”
Why does de la Rosa ask Coughlan? We would suggest that it is because he knows that Coughlan
has a link into Ferrari via Stepney. Why does he want that information? You see what he has said
in his statement. But look at what he explains in his e-mail: “So that we can try it in the
simulator”. This is not curious interest, as he attempts to portray it in his witness statements. He
wants it in order to copy it in the simulator, in his own words.
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 9
I ask now that you turn to the next e-mail in the sequence. On page 52 of the English proceedings.
It is an e-mail dated 25 March 2007, sent at 01:43. De la Rosa reports to Alonso on results which
he has following the experiment in the simulator. In the versions we have, there has been a certain
amount of redaction, or blocking-out of text. Consequently, one must work out what is actually
said. Item 1 is about a variable brake balance system. This is important because, as you know –
and we have drawn this to your attention on several occasions – one of the aspects that interested
Coughlan in particular was the Ferrari brake balance system, an innovative and unique design. In
his own, discredited affidavit, Coughlan admitted asking Stepney about it on no less than four
occasions. We know also that he came back with a sketch, which he showed Taylor. Here, we see
an exchange of e-mails demonstrating that McLaren is very interested in the design of a similar
system. For those of you who are entitled to view the e-mail with all of the words left in, I invited
you do so. Regardless, in the e-mail, Mr de la Rosa is saying that, “with the information that we
have, we believe Ferrari has a similar system: they have three positions which they change from
the cockpit.” He also describes, saying: they have “A”. (In our version, the text has been blanked
out, but in de la Rosa’s version, he tells you what they are.) He says, “that was phrase which I did
not understand, something that Coughlan had told me three days earlier, which I had memorised.”
Please think about whether this sounds very credible. He says, “They have this system which
delays the rear-braking initially then proceeds to increase it gradually.” This is not an e-mail from
a man who has not understood what he has been told. “We get the same results using a valve.” In
other words, he clearly does understand what he has been told.
On Item 2, the flexible rear wing he says, “this is also a copy of the system we think Ferrari uses.
It is another two- to three-tenths of a second quicker”. Then Item 5: “information from Ferrari,
their weight distribution in Australia was ‘…’”, giving very precise details.
Max MOSLEY
Not to interrupt, but in the next paragraph of the e-mail, he states that, “it will take them a few
weeks or a month or two to have it”. That would suggest that, perhaps, the intention is to make the
same device.
Nigel TOZZI
Exactly. I agree with you.
Then there is reference to very detailed information, which De la Rosa admits having received from
Coughlan: the car’s aerobalance, and the use of an alternative to air to inflate the tyres. Here, he
comments, “We use nitrogen; we’ll have to try it, it’s easy!” They are clearly using that
information with a view toward copying it.
Alonso’s reply in relation to the brake balance is: “I hope you can try this out. I don’t know
whether it is ready". He is keen for it to be tried it. The next passage that has been blanked out,
allegedly on grounds of confidentiality. However, because we saw this before it was blanked out,
we know what it said, cannot erase it from our memories, and we have referred to it in our
submissions. I do not accept that this is in any way confidential. If you do see it, you will see what
I say that.

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