Van der Garde on legal route to force Sauber Aus GP drive

[John S]

He won Swiss tribunal now seeks 1st race enforcement.

The reprinted Judge13.com podcast article, below, suggests however it turns out Sauber may end up losing a lot of cash.   

It appears the chickens are coming home to roost for Monisha Kaltenborn. In a moment of frustration following negotiations with Bernie Ecclestone over finance, Monisha retorted to a journalist’s question, “contracts in F1 are worth nothing”. Kaltenborn later recanted, however it became apparent that both Adrian Sutil and Giedo van der Garde were about to discover the truth spoken by Kaltenborn as their signed contracts were torn up and they were replaced by Felipe Nasr and Marcus Ericsson.

Giedo van der Garde took legal action in Switzerland and won his case as Sauber were ordered to “refrain from taking any action the effect of which would be to deprive Mr van der Garde of his entitlement to participate in the 2015 Formula One Season as one of Sauber’s two nominated race drivers.”

As yet Sauber have refused to acknowledge this judgement and so van der Garde has applied to the Supreme Court in Victoria, Australia for what is in effect an enforcement order.

Documents lodged with the court state that by failing t name Van der Garde as their race driver for the upcoming race, Sauber have demonstrated “an intention to breach, if not an actual breach, of the Award by the Respondent.”

There will be a hearing in Victoria on Monday where Giedo van der Garde will press to be given a drive in one of the Sauber cars 4 days later in Melbourne. In itself, this is an occasion of note, because the Supreme Court does not open on public holidays, such as Labour Day.




It’s interesting that Giedo van der Garde is not requesting damages, but asking for reinstatement. As a pay driver, van der Garde should easily be able to demonstrate substantive damages from a breach of contract, due to the highly exclusive nature of racing in Formula One.

Assessing those damages is more tricky, though if it is ruled that a breach of contract has occurred, the Respondent can be forced to fulfil the original contract and prohibited Sauber from replacing the Dutchman with another driver.

This would see Van der Garde driving for Sauber next weekend – against the wishes of the team’s hierarchy – which is bizarre – but this is F1.

Leagle Beagle Kaltenborn has got herself into a bit of a pickle, because the worse case scenario for van der Garde is that he is paid substantial damages – which may be worth more than the incremental cash either Nasr or Ericsson brought to Sauber when replacing GvD.

copy of podcast courtesy Judge13.com, Today. 

[Alianora La Canta]

Under Australian law, it generally has to be possible for a company to buy out any reinstatement clause. So unless Sauber's stone broke, expect precisely this to occur. Reinstating Giedo would put Sauber in breach of contract with whichever driver he replaced, which would likely be no cheaper than paying off Giedo, even before sponsorship was considered!

(If Giedo does race, Sauber has bigger problems than a disappointed driver with less class than Adrian Sutil).

[Jericoke]

I know that F1 teams are only allowed a specific number of drivers per season, but as far as I know, they're allowed to put any contracted driver in the cockpit.  So even if the contract is 'in force', unless it explicitly states 'Races in Australia No Matter What, Suckers', the team still gets final say about who is in the car and who is watching from the garage.

[cosworth151]

Looks Like Sutil is also suing Sauber:

http://autoweek.com/article/formula-one/formula-one-driver-adrian-sutil-also-suing-sauber-formula-one-team

Gentlemen, start you lawyers!

[Scott]

Can't get blood from a stone...good luck boys. 

And really, do either of them think they will ever get another F1 drive after they sue a team that already gave them one? 

'...ahem, so...just a couple more questions.  First, have you ever begun legal action against a former employer?  Oh you have...well, thanks for coming.'

[Jericoke]

Can't get blood from a stone...good luck boys. 

And really, do either of them think they will ever get another F1 drive after they sue a team that already gave them one? 

'...ahem, so...just a couple more questions.  First, have you ever begun legal action against a former employer?  Oh you have...well, thanks for coming.'

They're between a rock and a hard place.  How many non winners take a season off from competitive racing and then come back to F1.

They're already too late to secure rides in other high profile teams/series.  If they want to race in 2015, they're going to have to slum, and if they can't adjust to racing with the locals, I don't think finishing fifth in Japanese F3000 is impressing anyone.

I doubt they'll win, but this is the only shot they have in being F1 drivers in the future.

At the very least, they'll help set a precedent once and for all, and all future contracts will have to be adjusted.

[Scott]

Sutil is only looking for cash, not reinstatement.  His case will be easier to deal with, but I imagine Sutil knows he is done in F1 anyway.

[F1fanaticBD]

Sauber is going through one of the toughest time of its history and such cases will only hamper any passage to a bit of comfortable zone. Though I am not blaming the drivers for taking it to the court, I just feel sorry for both parties.

[John S]

I rather think that Guido's rich father-in-law Marcel Boekhoorn, backer of a few motorsport teams in other series with his McGregor brand, will have more than a passing interest in this legal action.

Sauber seem to have handled this rather badly, Monisha can claim all she likes that the very survival of the team was at stake without the new well funded drivers, but she would also have known this half way through last season. Why commit to a contract for Van der Garde to drive when the financial situation was clear to see months earlier? 

When you have served up a three legged dog of a car, like the 2014 Sauber, expecting it to become a greyhound on a severely stretched budget is something other than optimism or a gamble - it's plain lunacy. 

We have been discussing how back end teams might get more sponsorship in another thread, well for a start they can stop pissing off brands like McGregor.

Part of me wants Sauber to get off lightly since the teams survival may well be at stake, however the other part of me wants the court to do the crazy thing and order Monisha to let Guido drive. It's about time some contracts get honoured in F1, there's too much rule bending already with the F1 regs without messing in other areas.   
 

[lkjohnson1950]

Do you think Guido will get the full support of the team if they are forced to use him and give up funding from an unused pay driver? "What's that Guido? A little more front wing? Here's a wrench."

[John S]

Do you think Guido will get the full support of the team if they are forced to use him and give up funding from an unused pay driver? "What's that Guido? A little more front wing? Here's a wrench."

That may be true for a race or two, however Sauber needs to score some serious championship points this year or face an even bigger hill to climb financially next year.

With Lotus looking reasonable with the Merc engine it may come down to close contest between Sauber, FIF1 and 'teens dream' Torro Rosso. Can Sauber survive again with lower pay day from a 9th place finish at season end? 

[Alianora La Canta]

I know that F1 teams are only allowed a specific number of drivers per season, but as far as I know, they're allowed to put any contracted driver in the cockpit.  So even if the contract is 'in force', unless it explicitly states 'Races in Australia No Matter What, Suckers', the team still gets final say about who is in the car and who is watching from the garage.

The driver count limit exists. However, there's also a restriction to the effect that only one contracted driver can drive for a team per car available. This is because every driver contract must be posted to the Contracts Recognitions Board (a branch of the FIA that is the first judgment point for contract disputes if the parties cannot mutually resolve the matter). Strictly speaking, they're allowed to judge on anything from incorrect bonus payments to whether a driver did the correct number of PR days for their team. However, the CRB never initiates cases (only a driver or their team may do so) and it costs quite a bit of money for the CRB to open the envelopes and start checking those documents. As a result, they generally only get to look at cases involving drivers being excluded from seats the driver thinks is theirs - or occasionally at drivers demanding seats their teams do not think they are entitled to have.

The CRB's position is that if a contract is lodged with them, team and driver must either respect it, or come to a compromise with the driver that is acceptable to both, that both must then sign and send to the CRB to update their records. (The team - never the driver - must also send a small update fee). Actions that contradict the contract situation as understood by CRB are forbidden.

It only forces a change in the parties' current actions if those actions contradict what is directly stated in the contract, so "A driver must be professional at all times" will not get a team the extraction it wants if they have a barefooted-whenever-not-driving James Hunt Mark II they wish to rid themselves of (assuming barefootedness at sponsor functions is the only demonstrable "crime", but "A driver must wear team uniform (and the attached uniform list includes shoes)" would.

The Swiss Court of Arbitration is the appeals court for the CRB, and strictly speaking, team and driver can skip the CRB entirely - provided they accept that there is no appeal possible to the Swiss Court's judgment. At least if the CRB messes up, comeback is available.

The CRB itself cannot demand a situation be resolved a particular way. It can, however, refuse to recognise anyone except the contracted driver in a particular seat. Enrico Bertaggia saw quite a bit of the CRB in 1992. He was going to race for Andrea Moda until he was rude about the team failing to field a car at the season-opening South African Grand Prix (this because said car was deemed Coloni's). Andrea Sassetti took exception to this and fired him on the spot. CRB ruled nothing could be done about it as Enrico could not prove Andrea could not do this. Then Perry McCarthy managed to upset Andrea by wanting a serious attempt to pre-qualify, so Enrico Bertaggia tried to get his seat back by bringing a million pounds with him. Enrico could have his seat back if Andrea forgave him for the rudeness (since that had been the only bar to the original contract). Andrea was happy to do this, which made the contract valid again. But back then the rule Jericoke referred to was based on driver changes rather than drivers, and Andrea Moda had by this point used up all its non-force majuere driver changes for the year. So Enrico still got nothing for his efforts...

As for Adrian, I don't think he actually wanted to drive for Sauber in 2015 anyway because something between him and the team went badly awry during last season. He was so happy to go there, but by the end it seemed to me that only professionalism was keeping him polite to the management. This would explain why he's happy to get the money the Australian court will probably demand be paid to both drivers. Giedo, having no beef with Sauber other than this contract, wants the drive...