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published on 2 April 2019 | reading time approx. 3 minutes
The Ducati's alleged rear swingarm aerodynamic device case, arose during the MotoGP Race of the VisitQatar Grand Prix, has brought the attention of the public on the function of the FIM (Fédération Internationale de Motocyclisme) Disciplinary and Arbitration Bodies; namely the subjects entitled in various capacities to decide on the case.
Following the MotoGP Race of the VisitQatar Grand Prix, won by Andrea Dovizioso, four factories – Aprilia, Honda, KTM, and Suzuki – filed a protest with the FIM MotoGP Stewards Panel, meaningfully the body of first instance competent to adjudicate upon a protest related to infringements of the FIM World Championship Grand Prix Regulations (“Regulations”).
The protest concerned the aerodynamic device in mention, mounted on the rear swingarm of Ducati motorcycles driven by Andrea Dovizioso (using this device for the first time in this race), Danilo Petrucci and Jack Miller.
The FIM MotoGP Stewards Panel rejected the claim, considering that the aerodynamic device used did not contravene the regulations. Therefore, the protestants, within the time limit of 30 minutes set forth in article 3.4.6 of the Regulations, lodged an appeal with the FIM Appeal Stewards, the body of second instance competent to hear any appeal against decisions taken by the FIM MotoGP Stewards Panel.
FIM Appeal Stewards, in accordance with article 3.3.3.2 of the Regulations, considering impossible to deal with the case (absent any further detail), referred the case to the MotoGP Court of Appeal.
The MotoGP Court of Appeal consists of three FIM judges, chosen from the governing body's international commission of judges in accordance with article 3.4.7.3 of the Regulations; it has to pronounce a decision within 4 (four) weeks after the brief of appeal is received.
Both the appellant/s and the respondent/s are by right parties of the proceeding, they have to be represented by one defense counsel of their own choice and at their own expense. The appellant/s must be present, or duly represented, otherwise the protest will not be admissible and the costs of the proceeding shall be borne by the appellant/s (article 3.5.2 of the Regulations). The intervention of the FIM is, instead, optional and the decision left to the appreciation of its executive board (article 3.3.6.3 of the Regulations).
The structure of the hearing before the Court is governed by article 3.5.2 of the Regulations: the hearing is public unless the Court decides otherwise in exceptional circumstances (it could be indeed the case of the proceeding in mention), and is conducted in one of the official languages of the FIM. The hearing is basically divided into two parts. Firstly, the parties involved are invited to state their respective cases, the witnesses being absent. Following, the Court hears the various witnesses and experts (the Court has the right under article 3.5.3 to summon experts) in order to complete the evidence. The parties as well as the Court have the right to question all witnesses and experts on their evidence.
Once completed the evidence and after the hearing, in any case within the mentioned 4-weeks term after the brief of appeal is received, the Court decides in camera by a simple majority of votes of its three members; all members have equal voting rights and abstention is not permitted (articles 3.5.4 of the Regulations).
The judgement has to be notified in writing, by registered letter with acknowledgement of receipt or by electronic mail, to all the parties concerned. From this time and date of receipt of the decision, the time limit of 5 days runs to lodge the appeal before the Court of Arbitration for Sports (“CAS”) which is the body of third instance entitled to judge any appeal, according to the Regulations, against the decisions of the MotoGP Court of Appeal.
Without prejudice to the possible appeal to the CAS, the MotoGP Court of Appel has basically to decide whether the device is a tyre cooler, for which the use was approved by the FIM, or an aerodynamic device; in this second case, the device would not be permitted by the guidelines (and not the Regulations) which were provided to all the teams on 2nd March by Technical Director Danny Aldridge. In the second scenario, the three riders subject to the proceeding could be disqualified and lose the points scored in the Qatari GP. Perhaps, the MotoGP Court of Appel could even decide in a “Solomonic” way stating, for instance, that the devices would be banned from the next races.
In this contest, what it is noteworthy that the three appointed members of the MotoGP Court of Appel are not technicians; therefore, presumably, they could have little knowledge about the aerodynamic principles and devices. In order to avoid similar cases in the future, where the race final standing is decided in the following weeks in a courtroom rather than at the track, the FIM should find a way to deal with the anodyne situations inevitably inherent to technical regulations, given the highly competitive environment the FIM World Championship is. In this regard a good example could be provided by Formula One system currently in place, by means of which the borderline technological innovations – adopted by the teams and not expressly banned and/or contrary to the letter of the regulations in force – are allowed to be used for the remainder of the ongoing season; being it understood that, at the end of the season, where required, these borderline technological innovations will be double checked by the competent subjects in order to decide whether to allow their use in the next season or to ban them by mean of specific integration to the regulations.
Giovanni Fonte
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