While Mosley was understandably diplomatic in his language, Ron Dennis of McLaren was disappointed at this reversal of fortune and the intellectual basis for it, finding his team snookered first on the track and then in the courtroom.

"I believe, along with probably every technical director in Formula One, that the manufacturing tolerance referred to under article 3.12.6 of the Technical Regulations has no bearing on any other aspect of the car other than the vertical flatness of the horizontal surfaces that form the underside of the vehicle," Dennis stated after the appeal's decision was made. "We think the push for our sport has inevitably become quite commercial. Everybody wants to have an exciting race in Japan, but I think that the price we have paid for that one race is too great."

Based upon the evidence, the Court of Appeal decided to cancel the Stewards' decision and to ask the FIA to issue a classification of the 1999 Grand Prix of Malaysia confirming the original results, a Ferrari 1-2.

As indicated, Ferrari's success in reversing the Stewards' disqualification was the first successful appeal of a decision of the Stewards since the Brazilian Grand Prix at Interlagos on March 26th 1995, when Michael Schumacher had won the race in his Benetton-Renault and David Coulthard had come second in his Williams-Renault, but both cars were provisionally disqualified because of fuel irregularities in the Elf fuel both teams were using. In the end, constructor points were taken away from the manufacturers and a $200,000 fine was imposed on both Benetton and Williams but significantly, the drivers kept their positions and points.

This Elf fuel case was somewhat unusual, in that the Court of Appeal made a distinction between the teams and the drivers and also took into account that although the fuel was out of spec "no advantage was given to the drivers or the cars in terms of performance."

Mosley explains the rationale for making the distinction: "The point was the fuel was legal in the sense that had it been submitted for inspection before the race, it would have been perfectly all right. The offence was to run the fuel without first submitting it. As the fuel was legal in itself, it did not seem right to penalise the drivers."

These days, "no performance advantage" is no defense. Article 58 of the International Sporting Code makes it explicit that "if a car is found not to comply with the technical regulations, it shall be no defense to claim that no performance advantage was obtained." It was to be four more years before the Stewards would be successfully called to account again.

As it happened, when the 1999 season moved from calipers in the courtroom in Paris to the racetrack at Suzuka, Mika Hakkinen led all but three laps of the Japanese Grand Prix and won the race and his last World Championship so, in a sporting sense, it worked out for McLaren Mercedes as well that time around.

Right off the bat, the curious phenomenon of being permitted to race while a matter is under appeal should be eliminated. As indicated in Part III of this series, at a critical point in the 1997 season when Jacques Villeneuve and Michael Schumacher were locked in a head-to-head struggle for the World Championship, Villeneuve was penalized for ignoring a yellow flag during Saturday practice for the Japanese Grand Prix, the next to last race.

Villeneuve appealed the penalty but since the matter was not disposed of prior to the race itself, Villeneuve raced on Sunday under a cloud and could conceivably have created a lot of mischief during a race for which he knew he was unlikely to earn points. Summary appeals of each penalty, except for extraordinary circumstances, would eliminate the possibility of racing under appeal.

On the positive side of things, there is much evidence that the FIA is determined to render justice in arbitrating sporting disputes, even if it has the inevitable side effect of calling into question the competence of its scrutineers and Stewards as occurred in Indy 2001, Malaysia 1999 and Silverstone 1998.

To begin with, the FIA's settlement of the antitrust case with the European Commission has freed Max Mosley and his minions from the shackles of the commercial side of the sport, allowing the FIA to focus fully on running safe races and running them professionally. And the Ron Dennis feature of the settlement that seems to permit a competitor to challenge a ruling in national courts outside the FIA judicial system cannot help but keep the FIA on its toes.

In addition, the drumbeat from the manufacturers as to the creation of a rival open-wheel series to Formula One once the Concorde Agreement expires on December 31st 2007, puts the FIA's stewardship of Formula One under the magnifying glass, giving the FIA bureaucracy even greater reason to conduct themselves in a fair, even-handed and rational way that will not make the FIA the object of contempt and ridicule.

Moreover, a very new era of transparency has been introduced as to the operations of the International Court of Appeal. In the Jarno Trulli case, for example, pool reporters were permitted to be present and future sessions will be open to observation by reporters.

The one feature of Racing Justice that has been lacking thus far, is any attempt by the International Court of Appeal to act as a body guided by precedent or other supporting authorities, which would be a step forward and would be consistent with the European Commission's declaration that the decisions of the International Court of Appeals be reasoned opinions. The decisions of the Court of Appeal are often bare bones and conclusory. Part of the strength of an effective judicial system is predictability and continuity, regardless of who the judges or the competitors are, a quality even more essential in a sport like Formula One where the suspicion that commercial interest, not justice, drives the decision-making process, is ever present.

Finally, in a system that is as technical and rigid as Formula One, it is difficult to develop a Rule of Reason that will permit the Stewards or at least the Court of Appeal to take into account exceptional circumstances so that their rulings don't look foolish. Dickens once said that "the law is an ass, an idiot," and there have been a handful of rulings over the years that were most Dickensian in that sense.

This season, the penalty imposed on Ralf Schumacher for marginally crossing the white line exiting the pits in the 2001 European Grand Prix seemed harsh and must have totally deflated Ralf. Also questionable was the FIA's decision to disqualify David Coulthard's McLaren for a drooping front wing after the Brazilian Grand Prix in 2000, thus depriving Coulthard of his second place finish.

According to Max Mosley, what seemed a harsh penalty was a self-created hardship by McLaren: "The reason Coulthard was disqualified from Brazil in 2000 was it became evident that the team, instead of setting the wing at the correct height, for which there is a tolerance, set it at the extreme limit of the tolerance. When it then moved, the car became illegal. They had only themselves to blame. The tolerance is there to avoid such problems."

It will be remembered that this was the race where advertising boards fell down and the Interlagos track pre-race repaving job was even more bumpy than usual. Notwithstanding McLaren going for the edge of the tolerances, for the Stewards to find a violation of that kind in that setting exposed the FIA to the kind of charge of unfairness and foolishness that perpetuates the Ron Dennis and Dickensian view of FIA Jurisprudence that persists in many quarters.

Although carving out a Rule of Reason principle for exceptional circumstances would itself be difficult because of the subjective element inevitably being introduced by such a provision, having a Rule of Reason available as a part of the panoply of doctrines the Stewards can apply could conceivably save the sport from shooting itself in the foot any more often than absolutely necessary.

As indicated above, the FIA's way is not to take into account exceptional circumstances. But could not some kind of flexibility be introduced under the current rules to avoid draconian outcomes that undermine what we all came to see: good racing? The answer is that the latitude to come up with proportionate penalties is already embedded the FIA's own rules.

Rule 54(a) of the F1 Sporting Regulations provides that "it shall be at the discretion of the stewards to decide, upon a report or a request by the race director, if a driver or drivers involved in an incident shall be penalised." We have come to understand that the Stewards' usual reaction to an incident on the track is the 10-second stop and go penalty, which really works out to cost the driver 30 plus seconds - almost a quarter of a lap on most circuits. And yet Rule 54(a) of the Code gives the Stewards a whole laundry list of powers that could and should be drawn upon:

• They shall decide what penalty to enforce in the event of a breach of the regulations.
  
• In exceptional circumstances, they may amend the Supplementary Regulations (see Article 66) [including force majeure situations as arguably happened to Coulthard at Interlagos 2000 and to Trulli at Indianapolis 2001]
  
• They may accept or refuse any correction proposed by a judge of fact (see Article 149g).
  
• They may inflict penalties or fines (see Article 154).

Note that the omnipresent "stop and go" penalty is not even listed in this catalogue of powers, although it is listed among the "time penalty" sanctions under Rule 53 of the F1 Sporting Regulations. In fact, as we have seen over and over again, the stop and go is not a very "sporting penalty" and must take the heart away from all but the stoutest of drivers who, after all, are risking their lives out there for every tenth of a second.

To be sure, it is a penalty that is administratively easy for the Stewards to impose as a catch-all but may be disproportionate to the conduct being punished and certainly compromises the quality of the racing on the track. With two-way radio communications an integral part of today's races surely a broader menu of graduated punishment, fines and other time penalties could be developed and imposed without taking the car off the track for a race-killing amount of time.

In addition, the prohibition that "whilst a car is stationary in the pits as a result of incurring a time penalty it may not be worked on," seems to add insult to injury and could conceivably be dangerous if a car that needed repairs because of the incident that drew a penalty was not able to be fixed before it went back on the track. The FIA should be urging the Stewards to recognize their responsibility to come up with Punishments that Fit the Crime in the interests of keeping racing fair but not sacrificing competition altogether on the altar of administrative clarity.

While this series on Racing Justice has been running on Atlas F1, Max Mosley has publicly commented on the role of the FIA's International Court of Appeal. It should be noted that Mosley was gracious enough to review the series in draft form months ago and, while he did not agree with all that was written, he provided his insights on portions of the text.

On February 7th and 8th 2002, Mosley met with the Formula One press in London and elaborated on ways to handle disputes between the teams and race officials in a timely way, reserving the elaborate appeals we have chronicled for the rarest of occasions. In his view, the fact that Formula One has become big business has led to the kind of appeals we saw at Indy 2001, where the result, as explained in Part I of this series, meant a lot of cash to Jordan but little of significance as precedent to the sport itself.

Mosley's approach would be to strip away a lot of the layers of due process now embodied in the FIA's International Sporting Code and to emphasize getting most disputes resolved by Sunday Night, race day:

"What I would like to do is change the way we do things. Let's take Formula One . . . . You have the local clerk of the course, you have our race director, Charlie Whiting. I would like him to impose the penalty and then the team to appeal to the stewards if they are not [happy] with the penalty, and then there's a proper hearing with both sides and then only appeal to the Court of Appeal with leave, either leave of the stewards, or leave of the Court of Appeal [itself] if the stewards refuse. That would cut down the number of appeals, there are too many appeals now.

[…]

"If you did what I've just said, the thing would all be over on Sunday and that would be the end of it, and if the stewards refuse leave to appeal, [the competitor's] chance of getting it from the Court of Appeal, under that system, they would have to show that they have an arguable point of interpretation of the regulations. The chance of it not being all over the Sunday night would be minimal.

[…]

"In Formula One the teams don't like the idea. They are so conservative, it's very difficult to get them to move. So it needs development, but the principle is getting it all done on Sunday night except when there's something really unusual. And also [perhaps here Max was thinking of the Missing Steward at Indy] we're going to be a little bit careful about the stewards and how they work."

In truth, the Final Answer.