A great deal has been written in recent days about Giedo Van der Garde and Sauber, with considerable emphasis being on what the courts in Australia were saying. The matter has now been resolved out of court with, as expected, Van der Garde saying that he has been paid “significant compensation”.There is speculation about how much money is involved but nothing official. It was inevitable from the start that this was going to be the outcome. A court cannot force a company to employ someone it does not want to employ if a settlement can be found. If no solution is possible then there can be contempt of court questions, but the reality is that legal action is really only part of a negotiation process to find a settlement.
Given that we knew this back in the autumn one has to ask about the motivations behind the various cases. Sauber might have settled earlier but perhaps Van der Garde wanted more than Sauber was willing to give. What has been achieved in all of this is that Sauber has taken a lot of flak for deciding to change its drivers, but the team has said virtually nothing. In the PR battle, Sauber is the loser, because Van der Garde has been talking a great deal and the reporting has reflected that. Facts have been rather thin on the ground, but this has not stopped a lot of people having opinions. The facts are as follows. Van der Garde’s management company Giedo Van Der Garde BV signed a services agreement with Sauber on January 20 2014. Van der Garde says that “my sponsors paid the sponsorship fee related to the 2015 season in its entirety to Sauber in the first half of 2014. This was simply in good faith and to help the team deal with its cash problems at the time”. Speculation suggests that this was a sum of $8 million. More may have been paid when the option in the agreement was taken up to allow Van der Garde to race for the team in 2015. That was done on June 28, although it was not admitted at the time because of confidentiality agreements. These normally state that parties shall not make any oral, written or other statement to anyone (and in particular to the press, television, radio or any other media) liable to harm in any way the reputation, renown or brand image the other party.
Sauber’s plans changed after Jules Bianchi’s accident in Japan last year. And it became clear that he would not be able to drive for the team in 2015. As a result additional financial support was required and Marcus Ericsson and Felipe Nasr were offering large sums of money. Sauber was pragmatic, figuring that one package was better than the other. The team said in court that it informed Van der Garde that it was going to terminate the agreement and contracts were signed with Ericsson and Nasr. Van der Garde chose to challenge the decision to terminate.
Most modern F1 contracts allow for arbitration to take place if there are disputes. Arbitration got underway in December. According to court papers, Sauber did not legally terminate the contract until February 6. It informed the Contract Recognition Board of the change on March 4. The CRB exists to protect the teams, not the drivers, and it does not rule unless there are conflicts to be resolved between the teams regarding the contracts that it holds. Thus the CRB was not involved in this dispute. In the court in Australia, it was revealed that Sauber acted in February because it felt Van der Garde had breached confidentiality by talking to the media.
The arbitration hearing took place in London under the Swiss Rules of International Arbitration. This granted Van der Garde an injunction on March 2. As no settlement was found (it is not clear if it was even discussed) Van der Garde applied to the Victorian Supreme Court in Australia. Sauber argued that the Swiss decision should not be enforced for various reasons, none of them very convincing – and appealed the decision from Justice Croft. The legal actions escalated but as it was clear that Van der Garde did not have a Superlicence, it was largely irrelevant.
On Saturday morning a deal was done for an amicable settlement. Amicable is not really the word I would use, as both sides were clearly left aggrieved. Yesterday Van der Garde announced that his contract had been terminated but was critical of Sauber. Sauber said it was surprised by Van der Garde’s criticisms but would not respond because it was contractually bound to say nothing and that it was better to concentrate on the racing. Sauber said that it has very good answers to Van der Garde’s statements and accusations, but is not going to respond as it is not keen to get involved in mud-slinging.
Formula 1 has always been a tricky world when it comes to contracts. Some believe that all contracts should be respected, but there is a parallel argument that if things change, there needs to be pragmatic flexibility. That can mean some tough decisions. The conclusions one can draw from all this are largely subjective. Yes, Van der Garde feels hard done by. But Sauber did it because it felt it was in the best interests of the team.
As to the public mess, it could have been avoided.
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