Courts Wars Episode C: The Revenge of Giedo vd Garde
While other teams have their minds completely focussed on the season opener, Sauber looks to have more then just a simple distraction in court. Giedo van der Garde, ex- (or not ex-) driver for Sauber, has a succesful run of court cases in a bid to regain his race seat at Sauber.
Before we continue on in the present, let us first reconstruct the timeline that has led up until this moment.
First a minor note on this timeline, but could become much more significant in the future: On December the 31th 2013, Adrian Sutil was signed as a racing driver for a 2 year deal (so when he was fired his contract was not yet to expire).
On January the 21st 2014, Sauber and Mr. vd Garde announced that the latter will be a test/reserve driver for Sauber. The contract itself was signed on January the 20th. It will later be revealed that his contract contains an option to be promoted to be one of the two race drivers for 2015. The race drivers in 2014 were Adrian Sutil and Esteban Guitierez. The contract was not made with Giedo vd Garde the person, but with his company "GIEDO VAN DER GARDE BV". Since these contracts are very confidential, it's difficult to find more specific elements of it outside what we found out in the court rooms. We can however assume that Giedo paid a significant sum for the test/reserve seat, and a payment in advance for the option.
On June the 28th, Sauber excercised the option on vd Garde's contract. Meaning as of that moment, both parties would be legally binded for vd Garde being a racing driver for the 2015 season.
October the 21st: Caterham goes into administration and confirmed to miss the United States Grand Prix. This effectively is a breach in Marcus Ericsonn's contract and the latter could do whatever he wishes from that point forward.
November the 1st: Marcus Ericsonn signs for a racing seat at Sauber for the 2015 season.
On November the 5th, Filipe Nasr signed for a racing seat at Sauber for the 2015 season. At this point neither Esteban Guitierez nor Adrian Sutil were told of their futures. Depending or not if Guitierez had a contract for a race seat in 2015, Sauber had between 4 and 5 drivers signed at that point for 2 racing seats!
The next day, November the 6th, Guitierez and Sutil were informed Sauber would not continue with them. Guiterez would later on sign a testing contract with Ferrari. Giedo vd Garde meanwhile still remained contracted to Sauber. Although they had used the option in his contract, he was informed they would not give him a racing seat.
On November the 24th, Giedo vd Garde went to the Swiss Chambers Arbitration Institution (SCAI), demanding Sauber puts him in the race seat for 2015.
On February the 6th, Giedo vd Garde's contract was terminated, allegedly due breaches to contract's confidentiality.
On March the 2nd, that court in Geneva made a verdict in favour of Giedo vd Garde, stating Sauber must not make any attempt to deny Mr. van der Garde racing for the team. Sauber subsequently denied any and all attempts to help Giedo.
On March the 4th, Sauber informed the Contract Recognition Board (CRB) that his contract was terminated on 06/02/2015. The CRB is an organ of the FIA, which task is to check driver contracts to see if they are legal. We don't know if this is a passive rather an active role. It also settles disputes over such contracts, although it seems to only concern disputes between teams and not between driver and team.
So far the timeline leading up to the events in Australia. Before we continue on, it's important to note that the whole case is still ongoing and the situations evolves at a rapid pace due the shortage on time. Qualification is less then 20 hours away at the moment of writing, and the court in Australia tries to make verdicts along this.
Since Sauber further denied Giedo's requests, like for instance seat fitting and race overalls, despite the Swiss verdict, Giedo launched on March the 5th a what is called an "Application to Enforce Foreign Award", in front of the Supreme Court of Victoria (SCV). So this is basically not another trial like the one in front of the SCAI, but one to enforce the latter's decision in a country abroad. Strictly speaking, the SCV's job was not to rule whether or not Giedo was entitled to the seat, but if the SCAI's had legal grounds in Australia and could be reasonably enforced. Note that if Sauber does not bent, it'll mean that Giedo will need to go to every court in every country that is visited along the F1 tour. The court effectively seated at March the 9th (the date was actually an exception due said Monday being a holiday).
The premises of the case effectively took out any reasonable defence from Sauber, since they now could not argue why Giedo vd Garde could not make any contractual claims on the seat. Sauber tried to defend by exaggerating the safety hazards, dramatically it could lead to physical harm and death, that a seat could not be made in time and that his super license could not be arranged in time.
Some information on the technicalities: a fitting seat can be moulded and constructed within a couple of hours. The Super License however is a more complex matter. We'll get back to that further down this article.
Judge Croft did not buy it and on Wednesday the 11th, ruled in favour of Giedo. Sauber promptly appealed the verdict. One definitely has to praise the efficiency of the Victorian Court since the appeal was handled in court that same day in the afternoon. This time 3 judges were present for the case. They had to delay the case since they needed first to collect information on the matter. They did however pointed out, crucially, that since the sport is governed by the FIA, a court verdict might, emphasis on might, become irrelevant if the FIA was not happy about it.
The case would continue the next day in the morning. The 3 judges came very prepared to the court room. Sauber tried again to bring safety arguments in front, but that argumentation was deemed a delay tactic.
A lawyer representing Nasr and Ericsson expressed fear that if his clients would drive and deprive vd Garde a seat, they could be sued. Both the judges and vd Garde's lawyer denied they could be held legally responsible for that. The judges also asked Sauber's lawyer that if the verdict again is in favour of Mr. vd Garde, if they wouid honour it, at which said lawyer said yes.
In the afternoon of that same day the 3 judges again ruled in favour of vd Garde. His lawyer's immediately filed a Contempt of Court Application, a court action that deals with the fact that Sauber has not yet honoured the first court verdict and if they continue to do so, could result in seizure of their equipment currently present at the grounds of Australia. Furthermore, legal action was taken against the team principal of Sauber in person: Monisha Kaltenborn. A new court meeting would come together on Friday before noon to rule if Sauber met by then its obligations.
However, one particular point was mentioned during the appeal that had complex consequences: Giedo is not in possession of a valid super license; At that moment it was Thursday afternoon/evening, and the next day free practice was set to commence. In the past, F1 Super Licenses were able to be handed out on such a short time frame. However, in Giedo's case there were 2 main issues:
- The autosport authority in the Netherlands, the KNAF, first needs to give the green light the FIA. The team itself needs to apply for this. The court ordered to give full cooperation on this.
- The driver needs to have an accepted contract. As said, Team Principle Monisha Kaltenborn told the CRB that the contract was terminated. Now it needs to be reinstated. Both the team and the driver need to file the necessary paperwork for this. The CRB might be reluctant to put urgency behind it since the complexity of the state of affairs.
Things did seem to go wrong there and vd Garde did not receive his super license in time, for which the team could be held responsible. At the court earlier today vd Garde's lawyer accused Kaltenborn of contempt of the court's ruling. If she gets convicted for this, she can have a punishment ranging from a fine to prison time.
Sauber did not drive during free practice 1 in fear of further contempt to court and having its equipment and cars seized.
A verdict was planned in the afternoon (all local time) but delayed due both vd Garde's and Sauber's lawyer's telling the judge that things are moving forward now, with vd Garde at least already having received access to the paddock and fitted for a seat and overalls. During free practice 2, both Nasr and Ericsson drove for the team.
What we now might forget is how this might affect Adrian Sutil. If we assume he had a valid contract at the moment and no breaches were made to it from Adrian's side, then he too might drag Sauber in front of the court. He'll be watching these events closely anyhow.
There have been a lot of discussion on our boards why the court judges did not place a verdict on simply financially compensating vd Garde. After all one can assume the relationship between Sauber and vd Garde has dropped so low that the contract can impossibly be for filled in a sensible way. First of, the Supreme Court of Victoria cannot decide on that. As previously mentioned, they only judge if the ruling from the SCAI can be reasonably applied. In order to fight the original ruling, Sauber needs to appeal the latter's decision, which takes us back to Geneva. Such a new ruling could take a long while.
The question then bears why the SCAI did not rule for such a compensation. One of the parties needs to apply for that. Giedo is only out on the seat and does not want financial compensation, so that's that, but then we could question why Sauber did not ask this. The answer could be simply down to a shortage of money, simply not able to compensate vd Garde. This might change when Sauber receives the price money of last year.
At this moment of writing, Giedo vd Garde still has no super license, and talks with the team are ongoing. A new court meeting is planned on Saturday morning. We'll keep this article updated for further developments!
