Correspondence between Mosley and Macaluso

We have been informed about the outcome of the most recent meeting of the World Motor Sport Council held on July 26, 2007 in Paris. We have also exchanged views with our license holder, Scuderia Ferrari Marlboro (owned by Ferrari SpA).

We must confess that we find it quite difficult to justify how a team has not been penalised while it has been found in breach of clause 151c of the International Sporting Code. Indeed, this is probably the most fundamental provision of our sport.

In the present case the infringement is very serious since it has been assessed that the team Vodafone McLaren Mercedes has repeatedly breached such provision, over several months, through several top team representatives, to the detriment of its most direct competitor and therefore to its direct or indirect advantage and knowing that such infringement would still be ongoing would it had not been fortuitously discovered.

The very fact that the breach of clause 151c has been assessed by the World Motor Sport Council means that all conditions of such breach were fulfilled. We cannot see why additional conditions would have to be demonstrated in order for a penalty to be inflicted.

The recent history of Formula One offers several examples of cases in which a party was inflicted a severe penalty because of a breach of clause 151c, without the subject matter of such breach having been used by a team or having had any effect on the outcome of the competition.

We fear that the decision of the World Motor Sport Council could create a precedent which, at this level of the sport and stage of the competition, would be highly inappropriate and detrimental for the sport.

In any event, in view of the aforesaid, we respectfully suggest that you, in your capacity as President of the FIA, in accordance with the powers granted to you by clause 23 paragraph 1 of the FIA Statutes and article 1 of the CIA rules, submit the matter to the International Court of Appeal of the FIA.

This would also enable our license holder, Ferrari, on behalf of which we would take part to the proceedings, and perhaps other teams as well, to fully submit their position and protect their rights. In effect, Ferrari - as at least two other teams - attended the World Motor Sport Council in Paris as observers and not as a party.

Accordingly, they did not have a full right of audience. As, however, Ferrari in any event had been seriously and directly affected by McLaren's behaviour, we deem it appropriate that Ferrari (directly or through ourselves) enjoys full rights of due process which would be the case in accordance with the rules applicable in front of the International Court of Appeal.

Yours respectfully,

The President of ACI - CSAI
Luigi Macaluso

Thank you for your letter of 30 July

If, as you suggest, it were clear that several of McLaren's top team representatives were aware of the Ferrari information over a period of several months, the situation would indeed be very serious.

Apart from using Ferrari's technical knowledge to give the McLaren cars an illegitimate advantage over the entire field, detailed knowledge of Ferrari's technical strategies would give McLaren significant and unfair advantages over Ferrari at every race.

However McLaren's case was that, except for a tip-off in March and a drawing shown briefly to a colleague as a historical curiosity, no one at McLaren knew of or had access to any of that information.

According to McLaren, it was acquired privately by a disgruntled employee who intended to leave. They inferred he never used Ferrari's information to help McLaren because it was part of his private database as technical director for another team.

There are a number of suspicious elements, all of which the World Motor Sport Council took into account when reaching its decision.

For example: the claim that the tip-off was the only information that passed in March; the failure to inform Ferrari of a spy when negotiating an agreement based on mutual trust; the installation of a "firewall" at McLaren to stop Stepney communicating, with no attempt at a similar block on Coughlan's private computers; McLaren's agreement to Coughlan travelling to Barcelona "to ask Stepney to stop communicating" rather than simply phone him; the fact that, far from ceasing communication, Coughlan returned from Barcelona with a vast quantity of Ferrari data; the failure to make clear what Coughlan was working on at McLaren while in possession of the data; Jonathan Neale's advice to Coughlan to destroy the documents, without knowing or wanting to know what they were and so on.

However, these suspicions did not amount to proof to the standard the Council felt was necessary in order to reject the evidence of McLaren's Team Principal and Managing Director and convict the team of an offence so grave as in all probability to warrant the exclusion from the Championship.

In the absence of unambiguous evidence that McLaren as a team had received and used the Ferrari information, the Council was left with McLaren's responsibility for its employee. Exclusion or withdrawal of points did not seem appropriate if it was really just a case of a rogue employee illegitimately acquiring information for his own purposes.

Your letter suggests that the outcome may have been different if the Council had given Ferrari further opportunities to be heard beyond those that were in fact offered.

Yours sincerely,

Max Mosley.