The following was just posted over at the-race.com
For all those who believe Masi has Cart Blanche to act in the way he did, you may want to read this lawyers take ion the regulations and what happened.
Warning - you’re not going to like it.
Analysing the FIA Rulebook after the Abu Dhabi Grand Prix — A Lawyers Perspective
So it’s finally over. Or is it? Whilst we are in limbo over whether Mercedes will actually appeal the decision of the stewards, it is worth having a look at how regulations are interpreted from a legal standpoint.
Many may not know that the people writing the rulebook are lawyers themselves. There is an amount of precision that is required over every word of every sentence to ensure certainty in the rules, as that certainty is what is required for teams to make decisions in the design of their car and the strategies they use.
Just like in football, some regulations lay guidelines for interpreting an event to decide whether or not a penalty is warranted (and what that penalty should be), others are prescriptive over what should happen in certain situations.
So how should the FIA regulations relating to this incident be legally interpreted?
Rules of Legal Interpretation
It may seem odd to compare FIA regulations to a law passed by lawmakers in a legislature, but the principles are exactly the same. There are four ways that statute can be interpreted. They are:
The literal rule,
The golden rule,
The mischief rule, and
The purposive approach.
The Literal Rule
The Literal Rule does exactly what it says on the tin. You look at the words of a regulation and you interpret them based on what it actually says rather than what it may mean. This is summed up in this quote by a senior UK judge in 1980:
“Where the meaning of the statutory words is plain and unambiguous it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences for doing so would be inexpedient, or even unjust or immoral.”
The Golden Rule
The golden rule modifies the literal rule where reading the words literally produces a result that is absurd — that is something that would be inconsistent with the purpose of the rule. What an absurdity is is up for debate, which is why this rule is used a little less often.
The Mischief Rule
This rule allows judges wider latitude in deciding what a regulation means. It asks the question of why the regulation was formulated in the first place, or to put it a different way, what mischief was it meant to stop? This rule is of little use in the context of this article.
The Purposive Approach
This is a more modern approach in which judges look to find what the gap in older regulations was and what the legislature (in this case the FIA) hoped to achieve by adopting the legislation. This method is particularly useful when public statements have been made indicating why a regulations has been adopted in the first place. Broadly speaking, we ask ourselves ‘what is the purpose of this regulation?’
It is usually wise to analyse a regulation in the order above. Where a regulation is clear on the face of it, there is no need to start digging in to search for another meaning.
Breaking down Abu Dhabi
Now that we know how regulations should be interpreted, we can apply these rules to the Abu Dhabi controversy.
The basis of Mercedes protest
Mercedes protested the result on two grounds. I won’t be covering the protest on overtaking under the safety car as this was a very weak ground of protest and has been widely acknowledged as such by more educated commentators than I.
Mercedes main ground of protest was to do with the procedure dictated by regulation 48.12 of the International Sporting Code which covers how the safety car is to be withdrawn in the event that lapped cars are allowed to pass the lead competitor.
What does Regulation 48.12 say?
For brevity, I will paraphrase.
If a message is sent that lapped cars may overtake, any cars that have been lapped by the leader will be required to pass the cars on the lead lap and the safety car
Once the last lapped car has passed the leader, the safety car will return to the pits at the end of the following lap (unless it is unsafe to do so).
When interpreting the regulation, we must ask ourselves first and foremost, can the regulation be interpreted literally?
Given that this regulation is prescriptive, the answer is yes. The person who has drawn up the regulation has left no room for ambiguity in its application.
In the context of the quote at the beginning of this article, that a judge should not abandon the literal meaning of a statement to avoid an unjust consequence, Mercedes should win their appeal as the regulation was not followed, specifically the text about the safety car will return to the pits at the end of the following lap.
Why did the stewards reject the appeal?
Given the regulation is clear, the stewards looked to other articles to see if there was further context that may aid them in interpreting what had happened.
In rejecting the protest they pointed to two articles:
15.13 — The stewards suggest this allows the race director to control the use of the safety car, and
48.13 — The stewards assert that this regulation governing the withdrawal of the safety car overrides the regulation in 48.12, how the safety car is withdrawn if lapped runners are allowed to pass.
Let’s take a look at whether or not their reasoning holds water.
Regulation 15.13
The title of Chapter 15 is “Officials.” 15.13 states that the clerk of the course shall work in permanent consultation with the Race director.
It goes on to say that the Race Director has overriding authority over a number of areas of which one is “The use of the safety car.”
Taken literally, the result would mean that the Race Director can do what he wants with regard to the safety car. Arguably, this produces an absurdity.
Can the Race Director decide that the safety car can stop at the side of the track and the race continue before the safety car line? Can the race director decide to deploy the safety car even though there has been no accident?
The answer is no. We know this to be the case because the rules around the Safety Car are clearly laid out in Chapter 48 titled Safety Car. Using the purposive approach, Chapter 15 exists to define the roles and responsibilities of officials, not how they should act.
Regulation 48.13
The stewards asserted that regulation 48.13 overrides regulation 48.12. The regulation starts by saying:
“When the clerk of the course decides it is safe to call in the safety car the message “SAFETY CAR IN THIS LAP” will be sent to all Competitors via the official messaging system and the car’s orange lights will be extinguished. This will be the signal to the Competitors and drivers that it will be entering the pit lane at the end of that lap.”
Interpreted literally, we can see that this is a procedure that should be followed to withdraw the safety car. But does this regulation act to override 48.12?
When looking at a regulation to see if it designed to override another, you will often find clear language that indicates this. Again we need to look at the purpose of the regulation, and, helpfully, regulation 48.10 provides ample context of how the regulations deal with exceptions.
Regulation 48.10 states:
Except under Article 48.12 below, the safety car shall be used at least until the leader is behind it and all remaining cars a lined up behind him.
Once behind the safety car, the leader must keep within ten car lengths of it (except under Article 48.13 below).
This is one example of many within the sporting regulations that demonstrate how exclusion clauses work.
As no such language exists in 48.13, it cannot be said that it overrides 48.12. Its purpose is purely prescriptive to how a procedure is to be carried out.
Where does this leave us?
Mercedes has a very strong case based on the normal legalistic interpretation of the regulations. There has to be certainty in regulations to ensure that competitors know where the goalposts are.
In the sporting context, stewards are able to make judgement calls over whether a move is illegal or not, but they aren’t able to apply a 7 second penalty, it is not provided for in the regulations and would lead to uncertainty.
If we circle back to the beginning of this article, we can see that the stewards may have decided that they needed to interpret the rules in a way that resulted in a outcome that was not unjust toward Verstappen given the error was one made by race control.
The big question is what the remedy is. This is where it gets potentially unfortunate if you are Max Verstappen or an F1 fan. Given the regulation is clear on the safety car continuing on for a lap after lapped runners have passed it, and there was just one lap left of the race, a predictable result is achievable.
The race would end with the cars in the order they were in when the lapped runners passed.
The question now is whether or not Mercedes follow through with their appeal. I would imagine that there is intense lobbying by the FIA that Mercedes do not do so. It is more likely than not that a legally qualified independent tribunal, which the FIA Court of Appeal is given every single member is a lawyer, will find that the regulations were misapplied and there is the potential that they will see an remedy available to them. Verstappen could be stripped of the title and Hamilton would be declared champion.
What is to come will be very interesting but also potentially disastrous for the sport.
) will perhaps paint them and Lewis in a positive light as the Good Guys for next season, whereas the dislike of Lewis potentially just fine being the incumbent may be lessened due to how this ended up being decided and his handling of it? 