Disqualified For Technical Breach Despite No Advantage: The Cautionary Tale Of A Rally Driver

This article was written for and first published by LawInSport.

While nearly all of the column inches relating to recent FIA stewarding decisions have (unsurprisingly) focused on the fall out of the ‘Hamilton v Verstappen’ F1 2021 season finale, an interesting recent decision1 in the FIA World Rally Championship (WRC3)2 underlines just how impactful decisions in the fast-paced world of motorsports can be.

In November 2021, the International Court of Appeal (ICA) of the Federation Internationale de L’Automobile (FIA) handed down its judgment in the appeal brought by Mr Yohan Rossel (Driver) against the decision of the Stewards of the EKO Acropolis Rally (Greek Rally)3. The Driver had been disqualified by the Stewards from the rally as the front subframe of his car during the rally weighed more than the authorized maximum weight. The ICA rejected the Driver’s appeal in favour of the decision of the Stewards.

This is an interesting decision as it highlights that performance advantage is not a necessity to be sanctioned if found in breach of the applicable regulations. It also showcases the limited scope that exceptional circumstances in relation to technical irregularities can be admitted in.

This article examines the factual background of the case in point, as well as the various key takeaways that drivers and teams would do well to heed going forwards.

Factual Background

During the Rally Italia Sardinia (Sardinian Rally) held in June 2021, a stage of the 2021 FIA World Rally Championship (WRC3) (Championship), the Driver’s car was found to be non-compliant with the Championship’s Technical Regulations (Regulations) by virtue of having an overweight front subframe. A fine of EUR 30,000 was imposed upon Citroen Racing (“Citroen”, the manufacturer of the Driver’s car), with half of the fine suspended subject to Citroen committing no further quality control errors until the end of the WRC season.

In light of this, Citroen supplied a new front subframe to the Driver’s team (New Subframe). The New Subframe was unofficially4 weighed during the Sardinian Rally and found to weigh 12,708g (149.25g under the maximum weight tolerance) and so was compliant with the Regulations. The New Subframe was used at the subsequent Ypres Rally without incident.

During the Greek Rally on 12 September 2021, the Stewards received a report from the FIA Deputy Technical Delegate that post-race scrutineering had found the New Subframe to be non-compliant with the Regulations as it weighed 12,950g (92.75g over the maximum weight tolerance of 12,857.5g). The New Subframe was initially weighed and found to be overweight, at which point the Driver’s team was requested to clean it before being reweighed. The New Subframe was weighed a further three times in the presence of the Driver’s representatives using two sets of scales, one provided by the FIA and a further set provided by the local motorsports authority5 (ASN), yielding identical results from the two sets of scales (subject to rounding differences). The Stewards therefore convened a hearing that same day.

At the hearing (Stewards Hearing), Citroen’s representative demonstrated to the satisfaction of the Stewards that they had “taken all reasonable measures to resolve the issue that had occurred at the Rally Italia Sardinia” (by instructing their supplier to carefully weigh all products before sending them to customers) and so had “not repeated a further breach of poor quality control”6. The Stewards held that it was “the responsibility of the [Driver] alone to make sure that the part (front subframe) installed in their car complied”7. The Stewards further stated that the mere fact that the Driver could offer no explanation as to why the New Subframe was overweight did not relieve him from responsibility for the breach.

The Stewards were not able to definitively establish why the New Subframe was compliant in Sardinia, but then non-compliant in Greece. One explanation offered by the Driver’s team manager is that it may have been cleaned after the Ypres Rally and then possibly painted in order to protect it. Nevertheless, the Stewards held that the Driver’s car was in breach of the Regulations and therefore in breach of the 2021 FIA International Sporting Code8 (the “Code”). The Driver was consequently disqualified from the Rally (which he won), with all Championship points he won at the Rally forfeited.

The Driver subsequently appealed the decision of the Stewards to the ICA (Appeal) pursuant to the FIA’s Judicial and Disciplinary Rules (JDR) and on the basis of the Code and the WRC Sporting Regulations in force at the time of the Rally on 12 September 2021.

The Appeal

As the recent ‘Hamilton v Verstappen’ affair highlighted, final appeals against certain decisions of the Stewards are heard by the ICA, rather than the Court of Arbitration for Sport (CAS), pursuant to the JDR9.

Main Grounds of Appeal By The Driver10

1. Irrespective of any admissions made by his representatives either during the post-race scrutineering process or during the Stewards Hearing, he must be allowed to challenge the legality of the weighing procedure.

2. As the FIA has its headquarters in France, the FIA’s use of weighing instruments must comply with the regulatory arrangements under French law, including in respect of homologation and calibration. These requirements were not complied with in various respects by the FIA, which rendered the measurements null and void.

3. The New Subframe was weighed in Sardinia and found to be compliant, which calls into question the measurements taken in Greece.

4. The sanction of disqualification was inappropriate and/or disproportionate given the nature of the facts. A symbolic time penalty or symbolic fine would be fairer, on the basis that:

1. • the magnitude of the breach was tiny (92.75g) in the context of 13,000g subframe and a 1.5 ton vehicle;

   • the overweight subframe did not provide the Driver with any sporting advantage;

   • the Driver’s vehicle was compliant with the total weight requirements for a Rally2 category car;

   • the Driver had no practical or technical means to verify compliance of the New Subframe with the Regulations,

   • the Driver acted in good faith at all times11;

   • similar ICA cases did not impose the sanction of disqualification:

1. • • FFSA/Hexis Racing AMR12 – this case concerned errors transcribing technical figures onto a homologation form caused by a third party supplier. The appellant accepted responsibility, but claimed that it was not culpable or at fault. The ICA annulled the Steward’s sanction of exclusion and substituted it with a financial penalty on the basis of “exceptional circumstances”.

     • Pekaracing NV13 – this case concerned clerical errors with a homologation form caused by a third party supplier. The ICA annulled the Steward’s sanction of exclusion and substituted it with a financial penalty, in reliance on the Hexis Racing AMR case.

     • Prospeed Competition ASBL14 – this case concerned errors transcribing technical figures onto a homologation form caused by a third party supplier. The ICA annulled the Steward’s sanction of exclusion and substituted it with a financial penalty, in reliance on the Hexis Racing AMR and Pekaracing NV cases.

Main submissions of the FIA15

1. The Driver’s representatives agreed during the Stewards Hearing that the weight of the New Subframe was non-compliant and the inspection and weighing procedure had been carried out properly. The Driver’s arguments on the weighing procedure were therefore inadmissible.

2. The scope of French regulations on non-automatic weighting instruments excludes private and sporting practices. Furthermore, use of the relevant ASN’s scales is expressly envisaged in the Chief Scrutineer Manual.

3. Compliance with the Regulations is absolute and objective and no fault on the part of the Driver needs to be demonstrated16.

4. Adding weight to a subframe could cause additional reliability which would may have resulted in the Driver having a sporting advantage at the Greek Rally, which is known to be very hard and demanding on the mechanical parts of a car.

5. The Driver was aware of the potential issues with his subframes in light of the prior incident in Sardinia and so should have taken a more cautious approach.

6. The New Subframe was not officially checked by the FIA in Sardinia, but even if it had been, the was still ample scope for it to be modified during the three-month period between the Sardianian Rally and the Greek Rally.

7. Longstanding jurisprudence of the ICA17 confirms that it is appropriate to impose the sanction of disqualification in cases where a driver’s car has breached the technical regulations.

8. No exceptional circumstances applied in the Driver’s case. The breach was not due to a clerical error or a mistake in the transcription of technical figures onto the homologation form.

Findings Of The ICA

In light of the submissions of the parties, and following deliberations, the ICA held as follows:

• The FIA’s submission that the admissions of the Driver’s representatives during the Stewards Hearing prevented him from challenging the post-race scrutineering in his Appeal was rejected. Such admissions could only bind the Driver to the extent that elements of the checking procedure required his formal approval in order to proceed with the checks (e.g. confirmation that it was his subframe), but not issues relating to technical elements and legal arguments that did not require his confirmation beforehand. The Driver was therefore at liberty to challenge the post-race scrutineering, including those steps that neither the Driver nor his representatives witnessed.

• The Driver’s submission that the weighing scales must be calibrated and homologated according to the relevant procedures under French law was rejected. Both sets of scales used were property calibrated and used in accordance with applicable Greek laws and the relevant FIA regulations.

• The Driver’s submission that the discrepancy between the weight of the New Subframe as measured at the Sardinian Rally and subsequently at the Greek Rally called into question the accuracy of the measurements taken in Greece was rejected. The fact that the New Subframe was unofficially found to be compliant in Sardinia did not preclude the possibility that it was subsequently modified by the Driver’s team so as to render it non-compliant in Greece.

• Under Article 1.1.1 of the WRC’s Sporting Regulations, drivers are responsible for ensuring compliance with the applicable technical regulations. In line with the ICA’s longstanding jurisprudence “a [Driver]’s responsibility for any breach of technical regulations… is of an absolute and objective nature”. The intention or negligence of the [Driver] is irrelevant…which means that the [Driver] must face the sanction linked to violation of the technical regulations even if his good faith or that of his team is not questioned”.

• ICA jurisprudence has established that the relevant sanction for a breach of the Regulations is disqualification, unless the driver can prove that the breach took place under exceptional circumstances. The Driver’s claims that the breach was due either to the inaccuracy of the weighing scales (which the ICA rejected) or failings of the manufacturer (which the unofficial measurement taken in Sardinia excludes) did not amount to exceptional circumstances.

• The ICA rejected the Driver’s submission that the sanction was disproportionate because the breach conferred no or minimal sporting advantage. This finding was on the basis of the clear wording in Article 1.3.3 of the Code which states that “if an automobile is found not to comply with the applicable technical regulations, it shall be no defence to claim that no performance advantage was gained”.

Talking Points

Mr Rossel’s disqualification from the Greek rally handed victory to his nearest Championship-title rival, Kajetan Kajetanowic and in doing so narrowed his 51-point lead in the Championship to 22 points. Mirroring the F1 nail-biting F1 2021 season finale, Mr Rossel’s Championship lead further evaporated so that by the time of the final rally of the season in Italy he was level on points with Mr Kajetanowic. Mr Rossel ultimately prevailed in Italy to clinch the Championship title by three points. However, most pundits agree that the Championship would effectively have been over but for Mr Rossel’s disqualification in Greece, so it did have a significant bearing on the Championship as a whole.

Disqualification may seem rather harsh in circumstances where the breach was just 92.75g18 and where Mr Rossel had no knowledge of the breach, had no intention to commit the breach, took no active steps to cause the breach, otherwise acted in good faith and arguably gained no sporting advantage. However, the relevant ICA jurisprudence19 is clear that strict liability and disqualification in cases involving a technical breach is appropriate in order to preserve sporting equity, save only in exceptional circumstances.

Whether or not exceptional circumstances exist to justify a lighter sanction than disqualification being imposed will ultimately be a question of fact and degree in a given case. However, the following observations can be drawn from the relevant ICA jurisprudence:

1. Exceptional circumstances in relation to technical irregularities are admitted only under very limited criteria20.

2. A competitor’s responsibility for a breach of technical regulations is of an absolute and objective nature and they should bear all of the sporting consequences that arise from such breach. Intent, negligence, ignorance and fault on the part of the competitor are not relevant to the question of whether a breach has been committed21 (but culpability may be relevant to the assessment of ‘exceptional circumstances’, see below), which is a purely factual matter22.

3. The absence of a sporting advantage will not absolve a competitor of responsibility for a breach.

4. The existence of a number of the following circumstances may make it more likely (but by no means definite) that exceptional circumstances could be established:

1. 1. The breach is solely the fault of a third party (as confirmed unequivocally by that relevant third party) and beyond the control of the competitor and their associated team23;

   2. The breach is caused by a clerical error or a mistake on the homologation documents24;

   3. The lack of any intent, negligence or fault on the part of the competitor;

   4. The competitor expressly requests mitigation of the disqualification sanction, rather than merely requesting cancellation of the appealed decision25;

   5. The breach relates to a part of the vehicle that is not vital for sporting performance26, for example not the fuel tank27, subframe28, or front splitter29;

   6. The competitor is not on notice that their vehicle has committed a similar breach previously (unlike Mr Rossel);

   7. There is no possibility that the non-conformity resulted in a sporting advantage30.

5. The highly technical nature of motorsport and the sensitivity of information that may be disclosed during a given case, does provide some justification as to why motorsport has its own private method of dispute resolution that, unlike many other sports, does not include a right of final appeal to the CAS. That said, this justification holds up to scrutiny far better in championships such as Formula One, where parts are highly bespoke and intellectual property is closely guarded, than more junior championships where key parts are homogenized across all competitors with strict rules on the scope to which they may be modified31.

References

1† Decision accessible here: ica-2021-03-2021-11-16-ica_decision_en-web.pdf (fia.com)

2† https://www.wrc.com/en/championship/wrc-3/

3† Case ICA-2021-03 dated 16 November 2021

4† “Unofficially” in this context means that the Driver’s team requested to weigh the subframe on the scales used by the FIA, which was carried out in the presence of the Assistant to the FIA Technical Delegate, but it was not an official measurement and therefore was not recorded officially by the FIA.

5† Hellenic Motorsport Federation (OMAE)

6† Decision No. 3 dated 12 September 0212 of the Stewards of the EKO Acropolis Rally

7† Ibid.

8† Article 10.3.3 of the Code

9† Article 9.1 of the JDR

10† Pages 7 – 10 of Case ICA-2021-03 dated 16 November 2021

11† Citing ICA 03/2010 dated 30 November 2010 Prospeed Competition ASBL, ICA 21/2009 dated 6 October 2009 Hexis Racing AMR and ICA 26/2009 dated 23 February 2010 Pekaracing NV

12† ICA 21/2009 dated 6 October 2009

13† ICA 26/2009 dated 23 February 2010

14† ICA 03/2010 dated 30 November 2010

15† Pages 10-12 of Case ICA-2021-03 dated 16 November 2021

16† Citing ICA-2013-03 dated 10 September 2013 G-Drive Racing

17† Citing ICA-2014-03 dated 26 September 2014 Campos Racing, and ICA-2013- 03 dated 10 September 2013 G-Drive Racing

18† Equating to approximately 0.7% of the weight of the subframe and approximately 0.006% of the weight of the car. To put this into further context, during the proceedings the Driver unsuccessfully sought to rely upon an experiment he carried out in which he soaked the New Subframe in water and found that it had increased in weight by 192g even after draining.

19† ICA-2014-03 dated 26 September 2014 Campos Racing, and ICA-2013- 03 dated 10 September 2013 G-Drive Racing

20† Case ICA 21/2009 dated 10 September 2013; Case ICA 21/2009 dated 14 October 2009; Case ICA 26/2009 dated 23 February 2010; Case ICA 1/2010 dated 18 May 2010; Case ICA-2014-03 dated 26 September 2014; Case ICA-2013-03 dated 10 September 2013

21† Paragraph 20 of Case ICA 2/2021 dated 30 November 2010; paragraph 27 of Case ICA-2013-03 dated 10 September 2013; paragraph 41 of Case ICA-2014-03 dated 26 September 2014

22† Paragraph 23 of Case ICA 26/2009 dated 23 February 2010

23† Case 03/2010 dated 30 November 2019; Case ICA 26/2009 dated 23 February 2010; Case ICA 21/2009 dated 14 October 2009

24† CaseCase ICA 21/2009 dated 14 October 2009; Case ICA 26/2009 dated 23 February 2010; Case ICA 1/2010 dated 18 May 2010

25† Para 50 of Case ICA-2014-03 dated 26 September 2014

26† Para 32 of Case ICA-2013-03 dated 10 September 2013

27† Case ICA-2013-03 dated 10 September 2013

28† Case ICA-2021-03 dated 16 November 2021

29† Case ICA-2014-03 dated 26 September 2014

30† Para 31 of Case ICA-2013-03 dated 10 September 2013

31† A Summary Of Regulatory Issues In Motorsport – LawInSport