Race-against-time

A race against time: Sauber’s battle against Giedeo Van der Garde

Formula 1 has found itself once again in a high-profile court case. The High Court oversaw the Hamilton Management Group v Paul di Resta case in 2013 which gained notable publicity throughout the sporting world and afar. This week saw constructors Sauber embroiled in a legal battle with their driver Giedo Van der Garde. Van der Garde took his team to the courts citing that a contract had been agreed on which meant he was one of two drivers for Sauber for the upcoming Formula 1 season. Sauber meanwhile were adamant that Van der Garde would not be driving for them as they already had chosen their two drivers – Felipe Nasr and Marcus Eriksson. Naturally someone has to lose out and after a Australian court ruled that Van der Garde had the legal right to drive, it might be more than just Nasr or Eriksson.

The details

During the 2014 season Giedo Van der Garde was Sauber’s reserve driver and prior to that he drove for the now defunct Caterham team during the 2013 season. In early November 2014 van der Garde was informed by Sauber management that Felipe Nasr and Marcus Eriksson would be given the two driver spots and as such he’d have no place as a driver in the team. Van der Garde claimed that Sauber had backed out on an agreed term in his contract to give him a race seat for the upcoming 2015 season.

Van der Garde’s contract would likely have had a term inserted in it which allowed for parties to take a dispute to the Swiss Arbitration Institution in order to find a solution. The two parties utilised this and the dispute was presented in Switzerland where it was ruled that Sauber could not prevent Van der Garde from taking part in the upcoming season as one of Sauber’s two drivers. The decision meant Sauber had no choice but to either install Van der Garde as a driver or take the dispute to the courts in Australia.

The timing of this legal dispute is what makes it most interesting. While Van der Garde was informed in November 2014 that he would not be chosen to drive for the team it wasn’t until February 2015 that his contract was cancelled by Sauber and legal action was taken in early March. The new Formula 1 season starts on 15th March. Time is certainly a considerable limitation in this particular case.

Sauber took the Arbitration decision to the Victoria Supreme Court in Australia on 10th March, less than a week before the start of the new season. The judge however sided with Van der Garde and ordered the team to ensure the driver has a race seat ahead of Sunday’s Australian Grand Prix. This meant Sauber’s final option was to challenge the decision in the Court of Appeal for Victoria.

The Court of Appeal ruled, once again, in favour of Van der Garde and he, by law, is entitled to one of the race seats at the Australian Grand Prix. This decision means there are a number of issues that Sauber must now deal with. Should they choose to prevent Van der Garde from racing then the team will be in contempt of court and they risk further punishment. There is every possibility that, should the judgement not be adhered to, the Sauber team principal Monisha Kaltenborn could be imprisoned. The team also run the risk of having key assets being removed by ballifs, who were on stand-by at the team’s compound on Friday.

Sauber’s legal arguments against Van der Garde

Sauber’s legal argument against installing Van der Garde as a driver was on the basis of safety. Lawyers maintained that he had no experience in driving the new model of car that Sauber were using. The timing of this case meant putting him in a car at such short noticed would be impractical and could potentially end injury or death not just to Van der Garde but to spectators also. Further arguments were made on the topic of safety as lawyers highlighted that there was a substantial risk due to Van der Garde not having a fitted seat or an appropriately designed safety harness for his body.

The Court of Appeal however felt that there was no error in the reasons of the trial judge for ruling against Sauber. Both courts expressly stated that all Formula 1 races are highly regulated and were certain that all safety requirements would be complied with.

Additionally, Sauber cited an administrative issue with Van der Gerde. He does not currently possess an FIA Super License which is required by all drivers who wish to take part in a Formula 1 race. Van der Gerde has raced in the Formula 1 before and so it would seem that the basis for him acquiring a license does not rest of technical ability but rather the competition of paperwork in time for the deadline of the third practice race. This causes further issues however as it is unlikely a license would since Van der Gerde’s contract may be considered terminated by the FIA. Furthermore an application for renewal of his license may not be done in time. This aspect of the case is very much up in the air.

Why have Sauber put up such of a fight?

It may seem a curiosity as to why Sauber have fought this legal battle until the bitter end on the face of it but the underlying reason for their challenge comes solely down to finances. Sauber have been burdened by financial trouble for a long period of time and had to borrow £6.5million from Formula 1’s chief executive Bernie Ecclestone. Their decision to install Felipe Nasr and Marcus Eriksson as their drivers for the 2015 season is predominantly a financial based one. Both drivers bring in a considerable amount of sponsorship money, much more than Van der Gerde would. Sauber arguably aren’t fighting this on the basis they believe that Eriksson and Nasr are better drivers than Van der Gerde.

Sauber now find themselves in an intolerable position. With money scarce they will not want to throw away extra sponsorship money by replacing Nasr or Eriksson with Van der Gerde. They may also struggle to pay-off Nasr or Eriksson should one of those drivers be replaced. Finally, of course, there are legal fees which will need to be paid. There is every possibility now that Sauber will struggle to even finish the Formula 1 season.

Conclusion

It seems that Sauber have looked to use the lack of time to their advantage. In the knowledge that these legal disputes were happening in such close proximity to the start of the season they were hoping that timing and administrative limitations would mean they wouldn’t have to deal with these issues until at least after the Australian Grand Prix. This tactic has backfired in quite spectacular fashion and should act as a lesson to lawyers in all sectors.

The Australian court’s decision may seem like one which is influencing team orders and tactics and therefore a very imposing one. In actual fact the issue boils down to contract law. If terms have been agreed in the contract then parties must adhere to them. It is only in rare situations like this that the courts can reach into the garages of teams and dictate what must happen and as such do not expect to see any lingering effects on Formula 1 or sport in general following this case.

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