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Giedo van der Garde’s case against Sauber



and why it matters.

Anyone who held tentative, naïve, hope that the 2015 F1 season would compared with what we’ve got used to in recent years be more about the racing on the track and less about rancour away from it may well have had it dashed even before a wheel had been turned in anger.

Indeed the matter in question had been coming for a while. Back to the Brazilian Grand Prix late last year and when Sauber announced that its drivers for this season would be Felipe Nasr and Marcus Ericsson. It was a surprise to plenty; not least two other drivers, one of whom was Giedo van der Garde, who believed that they had contracts for the race seats themselves. Four into two doesn’t go, of course.

And van der Garde didn’t let the matter rest there. In December of the off-season he brought a complaint to the Swiss Chambers’ Arbitration Institution, which agreed with the Dutchman’s case and as a result ordered Sauber to not deprive van der Garde of his entitlement to participate in the 2015 championship as one of its two race drivers.

Sauber didn’t show outward sign of complying however, and thus van der Garde and his lawyers cranked the matter up a notch by mere days before the start of practice for Melbourne’s season-opener travelling to Australia and getting a hearing in the Victorian Supreme Court, to get the Swiss decision upheld. And it was – van der Garde won the initial case and subsequent appeal, then on the day of opening practice his lawyers launched a contempt of court action against Sauber, intended to force the team to comply with the order.

Come the day of Friday running no one seemed sure what would happen. Who would be taking the Saubers out? That’s if anyone would? Van der Garde had to drive said the law, but the team had no desire to let him, plus apparently he didn’t have a superlicence required to compete. It looked an impasse. Many eyes burned holes in the Swiss team’s pit and team area. Various reporters tried chasing team principal Monisha Kaltenborn, and then when he appeared himself van der Garde, around the place Benny Hill style expect with Dictaphones, cameras and microphones.

And it got yet more intense, as on that Friday too van der Garde’s lawyers had argued that Kaltenborn should be arrested for the contempt of court if the Dutchman didn’t get to drive. The prospect of Sauber’s assets being impounded was real too, to the point that bailiffs lingered outside the track’s front gate. F1’s ability to enter territory you’d never thought it would never can be underestimated.
Next day, the day of qualifying, van der Garde apparently conceded.

But the devil in the detail is that van der Garde’s ceding of ground was for the Australian weekend only, when it seemed in any case his not yet having a superlicence (a process which normally requires 14 days) forced everyone’s hand. His original Swiss judgement on the matter from December stands, and there seems no reason to think yet that exactly the same thing cannot happen in future rounds. It is impossible to conclude that we’ve heard the last of this.

In sports as we know strange practices can develop within their peculiar existences, that later and suddenly fizzle to nothing once tested in a court in the real world. So it was in football for decades in many parts of Europe wherein players even after their contracts expired could be retained by their clubs, and not allowed to move unless the club agreed to a transfer fee. This was so until a little-known Belgian footballer called Jean-Marc Bosman took it to court; and as a result of that football never was the same again. In baseball a similar system was quashed largely by the Seitz decision in 1975.

But as we know even among other sports few do strange practices quite like F1. And one of its own strange practices has been often to willingly enter into contracts then later act like they didn’t exist. Admittedly it happened in all directions, including drivers doing the dirty on teams – there have been high profile cases such as Alain Prost walking out on McLaren in 1980 and Ayrton Senna on Toleman in 1984 despite inked contracts being in place for either. Eventually such cases totalling up and then Benetton ditching the signed up Roberto Moreno to make way for Michael Schumacher in late 1991 led to the Contracts Recognition Board (CRB) being established to arbitrate on such disputes. It’s made itself felt too, such as when it required David Coulthard to stay at Williams for 1995 rather than move to McLaren, as well as Jenson Button to stay at BAR for 2005 rather than move to Williams.

Yet even so there remained something of the Wild West about F1, particularly it its handling of drivers. Routinely they have been dropped despite having contracts in place. Often the matter has been settled on the quiet, with a payoff presumably. But sometimes too the wronged driver simply hasn’t pursed the matter, in part because they concluded that there was no point trying to force your way into a team that didn’t want you. In part too perhaps that they didn’t want to establish the reputation with potential employers that they were a ‘trouble-maker’. Thus the strange practice chuntered on.

It surprised a few that van der Garde didn’t use the CRB avenue in his case, though one thing that emerged from the court proceedings in Australia was that Sauber had told the CRB in February that van der Garde’s contract had been terminated. After the Swiss arbitration case in other words. That the CRB apparently had such a lack of curiosity as to why it had been (supposedly) terminated – and presumably didn’t check out van der Garde’s side of things - doesn’t reflect well on them. Especially given that there were known reasons to suspect Sauber of, um, a vested interest. Unlike the previous CRB cases mentioned this wasn’t two teams having a tug of live, it was a driver versus a team and the driver’s view mysteriously was missed altogether. It suggests a body more minded to protect teams’ rights than those of drivers.

And whatever has gone on with this it should be remembered that ultimately this is Sauber’s own doing. This is a team that entered a contract with a driver and then decided to ignore it, thus breaking a fundamental of justice, that of doing what you solemnly agree to do. As well as that van der Garde in the sense of justice at least is absolutely in the right. And Sauber is the villain.

As for exactly how Sauber got into this predicament, well you won’t be surprised to hear that it all can be traced back to money. And that teams in the F1 midfield and back are desperate for it in order to survive. As is often the case for teams of its type, Sauber’s driver selection owed much to how it would help balance the books. The Plan A for 2015 apparently was to go with van der Garde and Jules Bianchi – the Ferrari protégée coming with cheap Ferrari power units. But sadly of course Bianchi’s Suzuka crash rendered him unavailable, and the situation was made more critical by Russian investment and attempts to get finance via Simona de Silvestro falling through too. Reportedly this created a cash flow crisis in the team.

Marcus Ericsson and Felipe Nasr offered more money than van der Garde, and critically offered it up front. For Sauber a desperate time brought desperate measures and in order to create space for them it seems it took its chances of ditching two contracted drivers for 2015 (the other being Adrian Sutil, who has been conspicuously quiet while all of this is going on) in its attempts to survive. Perhaps gambling that the pair would do the common thing of deciding to let the thing lie, however grudgingly. There was no money around to pay them off.

But while we can sympathise simply ignoring contacts willingly entered into surely cannot be part of any solution. It amounts to anarchy. It feels a real pity too as for most of its existence Sauber has been a byword for honour and fastidiousness in F1, or at least by far the closest as this sport gets to them. That it is playing so fast and loose, going against very basic principles of fairness and then seeking to blag their way out of it with lines of defence that insult the intelligence, is galling. This from a squad which its founder and former team principal Peter Sauber once emptied his own pockets in order to keep the team going and therefore save jobs after BMW pulled out.

Sauber’s lines of defence offered in the Australian courtroom were risible, claiming among other things that it would take two weeks to get a moulded seat for van der Garde plus that running him without testing would be a safety risk. Yeah right. We’ve seen plenty of times before – including from Sauber – drivers being replaced within hours if necessary; I’d venture that had Nasr or Ericsson fallen over getting out of the bath in the week and been ruled out Sauber would have had no qualms at all in running someone else. Then to top it off the team’s lawyer off started to argue that van der Garde lacked a superlicence, when it seems his not having one was down to lack of action on the team’s part.

Given that this matter continues we can infer this last point is indeed so; as Joe Saward pointed out if his not having a superlicence was down to an oversight by van der Garde himself then Sauber could resolved the whole nasty situation by pointing out that he had breached his contract by not ensuring he was ready for every round.
Among the current F1 drivers in Melbourne Nico Hulkenberg was the most frank about the situation: “Giedo wants what he was promised and what he was signed for and paid for and that is his right” he said. And in a statement that heavily hinted at his own not being paid for his 2013 employ there, he added “I am not surprised because I know the people, I know how it has been there in the past.
“They were desperate for some money to survive, which is maybe a general problem of F1. But still that is not a way to do business and to screw people like this.”

The vast majority of current and former drivers who’ve commented have also done so to express solidarity with van der Garde. Some former drivers such as Martin Brundle and Allan McNish have hinted they’d have done the same in that situation. But perhaps history shows us that it’s easier said than done. If van der Garde’s case legally and morally is watertight, pragmatically it is a lot less so. It doesn’t seem that he had nothing to lose, as with his financial backing he’d still have been of interest to team towards the back. He had been loosely linked with Manor. Such is the sport’s warped ways you’d imagine that team bosses that had been considering him will now be reconsidering.

Part of it too is that, as Adam Cooper noted: “It’s common knowledge that his sponsors paid €8m for him to be a third driver last year as a lead in to a race seat in 2015”. You’d have thought that at least he’s looking to recoup that.

Paddock gossip has gone further and suggested that this is all in fact a grand prelude to van der Garde’s father-in-law Marcel Boekhoorn – he of the McGregor clothing company among many other things and not short of a bob or two – buying into the Sauber concern. For a while it’s been thought he’s been looking to claim a stake in an F1 team. But James Allen for one wondered that given the bitterness of this episode whether Sauber would deal with him, however desperate matters get.

With this about the only credible endgame is for van der Garde to get his money back, perhaps with damages and the like added, via a payoff. But as mentioned Sauber’s hardly big on spare cash right now. Really, as so often seems the case in F1 these days, no one wins. It’s hard to see where van der Garde can go now, other than getting sympathy. Sauber meanwhile comes out of the matter considerably tarnished. You wonder too what Ericsson and Nasr’s backers will have made of it all. And of course the manifestations of the sport’s ills as well as its apparently amoral ways are laid bare yet again.

But it also feels important. This almost certainly won’t be an F1 equivalent of the Bosman ruling, not in terms of its scope at any stretch. Yet as Allen noted it seems unprecedented. And therefore it will likely set a precedent. In future you suspect that F1 bosses, if minded to drop a driver, will be a lot more wary of how sits their contract. Their room to act improperly will be more limited.

This is because the prospect of impounded cars and the team principal being led away in handcuffs concentrates the mind beautifully. And as far as I am concerned, that is not at all a bad thing.




Author: Graham Keilloh

TWITTER: @TalkingaboutF1

Blog: talkingaboutf1.com

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The Journalist

Writer: Red5 Mail feedback, articles or suggestions

Date:Monday March 16 2015

Time: 9:34AM

Your Comments

With complex cases like this it's quite difficult to keep track on what happened when. You mention that Kaltenborn wrote to the CRB in February, but that's not true. She wrote on the 4th of March 2015 that GvdG's contract had been terminated on February 6th 2015. A small overview of what happened chronologically (as far as I know!): - June 28th, 2014: GvdG Sign contract which include a clause that he would become a 2015 driver for Sauber - November 1st, 2014: Sauber announces Marcus Ericsson as it's driver in 2015. - November 5th, 2014: Sauber announces Felipe Nasr as it's driver for 2015. - December 2014: GvdG seeks refuge at the Swiss Chambers’ Arbitration Institution (at this point I don't know exactly when this Institution actually delivered a first judgement/verdict/ruling) - January 2015: Sauber seemingly ignores the ruling of the Swiss Chambers’ Arbitration Institution - February 6th, 2015: Sauber allegedly terminates GvdG contract on the basis of a breach of confidentiality (ie. GvdG had allegedly talked to the media) - March 2nd, 2015: Mr Todd Wetmore of the Swiss Chambers’ Arbitration Institution makes (another?) judgement in the case between GvdG and Sauber (this is mentioned in the judgement document of the Supreme Court of Victoria) - March 4th, 2015: Mrs. Kaltenborn writes to the CRB informing them Sauber terminated the contract with GvdG on February 6th, 2015 (yes, after the -first- ruling of Swiss Chambers’ Arbitration Institution) - March 5th, 2015: GvdG lawyers file a Application to Enforce Foreign Award at the Supreme Court of Victoria - March 9th, 2015: First day of hearing of the GvdG vs Sauber case - March 11th, 2015: Judgement of the case GvdG vs Sauber, ruling that the Foreign Award (the judgement of the Swiss Chambers’ Arbitration Institution) will be enforced by the court) - March 11th, 2015: Sauber appeals the judgement of the Supreme Court of Victoria - March 11th, 2015: First hearing of the appeal case between Sauber vs GvdG - March 12th, 2015: Second hearing of the appeal case between Sauber vs GvdG - March 12th, 2015: Judgement on the appeal. Appeal is rejected and the ruling of the Supreme Court stands. - March 12th, 2015: GvdG lawyers file an Application for Contempt of Court against Sauber and Mrs. Kaltenborn in particular. - March 13th, 2015: Proceedings between GvdG and Sauber are discontinued before the Supreme Court of Victoria due to an agreement of parties. Now, as you rightly say, GvdG only conceded to his right to race at the Australian GP. This means he still has the (legal) right to participate in all other 19 races of the 2015 season (as ruled by judge Croft on March 11th, 2015). Of course, GvdG's team and Sauber are in discussions about how to proceed with the situation that has arisen after the ruling of the Supreme Court of Victoria. Personally I hope that he will driver for Sauber at some point this season.
Stephan Böhner
 

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