After Abu Dhabi: Restoring Integrity and Accountability in Formula 1

The 2021 Abu Dhabi Grand Prix ended the 2021 Formula One World Championship in a dramatic and controversial fashion. Mercedes’ Lewis Hamilton and Red Bull’s Max Verstappen went into the final round with an equal number of points scored for the World Drivers’ Championship. The race was decided in the final few laps after Williams’ Nicholas Latifi crashed into the barriers with five laps remaining. After the safety car was deployed, Verstappen pitted for a fresh set of soft tyres, while Hamilton stayed out to maintain track position. On the second-to-last lap, Race Director Michael Masi directed only the five lapped cars between Verstappen and Hamilton to unlap themselves, in direct contravention of established Fédération Internationale de l'Automobile (FIA) rules. On the final lap, the green flag was deployed and the race resumed; Verstappen overtook Hamilton on his fresher tyres and maintained the lead, going on to win the Grand Prix and consequently the World Drivers’ Championship. Mercedes initially filed protests for breach of sporting regulations, but eventually withdrew them, citing a loss of faith in racing and that what happened in Abu Dhabi was "not right."


INTRODUCTION
By any metric, Sir Lewis Hamilton is one of the greatest drivers in Formula 1 history.With seven World Championship titles, 103 race victories, 1 104 pole positions, and 197 podiums 2 under his belt to date, he continues to perform after nearly two decades at the pinnacle of motorsport. 3For many fans, the exciting aspect of a sport comes from the spectacle of competition, where regular people can watch an elite group of athletes fight for the title under a set of strict guidelines that are designed to promote fairness and offer a chance for any competitor to win. 4 This veneer of a level playing field is shattered, however, when the very people put in charge to ensure accountability are Grand Prix race, held at street circuits and racetracks around the world. 29The driver who accrues the most points at the end of the season is crowned the World Driver Champion (WDC), 30 and the team which accrues the most points wins the World Constructor's Champion (WCC). 31During each Grand Prix, only the top ten drivers receive points: 1st (25), 2nd (18), 3rd (15), 4th (12), 5th (10), 6th (8), 7th (6), 8th (4), 9th (2), and 10th (1), with an additional point given to the driver setting the fastest lap of the race, as long as that driver finishes within the top ten. 32The 2021 championship season consisted of twenty-two Grands Prix in total. 33With this in mind, we now turn to discuss the event that precipitated the need for this update to the FIA rules.

C. ABU DHABI 2021 1. On-Track Events
Going into the Abu Dhabi Grand Prix on December 12, 2021, the last scheduled race of the season, both Hamilton and Verstappen had 369.5 points, which meant this final race would decide both the WDC and WCC. 34Verstappen started on pole position, but Hamilton led most of the fifty-eight-lap race. 35With five laps to go, Williams' Nicholas Latifi crashed into the barriers, which brought out the safety car while the track was cleared of debris by race marshals. 36Under the safety car, the speed of cars on the track is limited so that the marshals can work safely, resulting in the cars bunching up behind COLUMBIA JOURNAL OF LAW & THE ARTS [47:1 the safety car in a line in the order they are out on track, regardless of whether they have been lapped or not. 37Drivers are not permitted to overtake the safety car until the signal is given for the lapped cars to overtake. 38amilton stayed out to not lose track position, since he was worried that he would not be able to reclaim his lead position if the race ended under the safety car, 39 while Verstappen pitted for a fresh set of soft tyres. 40After pitting, Verstappen retained second place with five lapped cars remaining between him and Hamilton, and three additional lapped cars behind Verstappen. 41Race control initially issued a message that lapped cars would not be permitted to overtake the safety car. 42With two laps to go, Race Director Michael Masi permitted only the five cars between Verstappen and Hamilton to unlap themselves, meaning they would move past Hamilton and clear the way for Verstappen to attempt to catch up to Hamilton once the safety car period was finished. 43On the last lap, green flag racing conditions were permitted, and Verstappen overtook Hamilton for the lead, which he maintained until the end, ensuring that Verstappen came away with the WDC. 44

Post-Race Protests
Immediately after the conclusion of the race, Mercedes filed two notices of protest pursuant to Article 17 (Protest and Appeals) of the 2021 F1 Sporting Regulations, which governs the fees associated with protests and what types of appeals are allowed, 45 and Articles 13.1 (Right to Protest) and 13.5 (To Whom Addressed) of the 2021 ISC, which further clarifies the procedures for filing a protest. 46The first protest alleged a breach of Article 48.8 of the F1 Sporting Regulations, which lay out the exceptions to prohibitions on overtaking when the safety car is present. 47Mercedes alleged that Verstappen overtook Hamilton during the safety car period, which is not permitted.The second protest alleged a breach of Article 48.12 of the F1 Sporting Regulations and sought an amendment to the Race Classification. 48Per the regulations, once the message that "LAPPED CARS MAY NOW OVERTAKE" has been sent, all lapped cars must pass the cars on the lead lap and safety cars, not just the cars between the race leaders. 49eam representatives for Mercedes and Red Bull were summoned for a hearing.In answer to the first protest, the stewards issued Document 57, determining that while Verstappen did move ahead of Hamilton under the safety car for a short period of time, Verstappen moved back behind Hamilton before the safety car period ended and dismissed the complaint. 50For the second protest, the stewards issued Document 58, claiming that Article 48.13, which allows the Race Director to control the use of the safety car, overrides Article 48.12-and further, it is "highly desirable" for races to end under green racing conditions rather than under a safety car. 51The stewards then dismissed the second complaint.After the hearings, Mercedes retained a right of appeal for both complaints in accordance with Article 15 of the FIA International Sporting Code and Article 10 of the FIA Judicial and Disciplinary Rules, and the team notified the stewards in writing of its intention to appeal to the FIA International Court of Appeal. 52 few days after the race on December 15, 2021, FIA released a statement regarding the events of the race, claiming that the fallout is "currently tarnishing the image" of the Formula 1 Championship, and that the events have "generated significant misunderstanding and reactions from Formula 1 teams, drivers and fans," but that FIA would be producing a "detailed analysis and clarification exercise for the future."53 Notably, the statement did not include any admissions of wrongdoing or even mention Race Director Michael Masi by name.
On December 16, 2021, the last day to file an appeal, Mercedes publicly confirmed that it was withdrawing the appeal, and welcomed the commission that FIA created to analyze what happened during the race and work to ensure that a similar situation would not happen in the future. 54Fan reaction to the withdrawal of the appeal was mixed, 55 with some feeling that Mercedes did not fight hard enough for what they perceived to be a robbery of Hamilton's eighth Championship title.But in interviews after the fact, Mercedes team principal Toto Wolff addressed why the team made the decision to withdraw, stating [W]e believe we had a very strong case, and if you look at it from the legal side, if it would have been judged in a regular court you could almost guarantee that we would have won.But the problem with the ICA is the way it is structured.The FIA can't really mark their own homework.And there is a difference between being right, and obtaining justice. 56 reiterated his distrust of the remedial abilities of the FIA, stating "at the moment, we are set up in terms of our governance to end up in a situation that would have given us remedy, that would have reinstalled the result that was taken away from Lewis before the last lap of the race." 57It is precisely these concerns that strike at the heart of what made the situation at Abu Dhabi possible, and why external accountability is needed at FIA.

FIA Commission Analysis
In March 2022, just prior to the start of the 2022 season, FIA released an executive summary report to the World Motor Sport Council for the purposes of drawing lessons from the events at Abu Dhabi and providing clarity moving forward. 58In the report, FIA emphasized four areas-(1) the "multiple roles and responsibilities of the Race Director"; (2) the propriety of publicized radio communications between teams and the Race Director; (3) safety car unlapping procedures; and (4) the structure of the FIA race management team-for clarification and analysis and issued recommendations to address each of these concerns. 59First, the creation of a Virtual Race Control Room, similar to the Virtual Assistant Referee used in football, to assist the Race Director in making decisions during the race. 60Second, to no longer broadcast direct radio communications during the race. 61Third, to reassess safety car unlapping procedures prior to the start of the 2022 season. 62And finally, to implement a new race management team, where two individuals will act alternatively as the Race Director, assisted by a senior advisor. 63n addition to the specific recommendations, FIA stated that a new F1 Sporting Director and additional senior regulatory legal counsel would be recruited. 64Of particular note in the analysis was the finding that "human error" was a factor in the controversy, but that Race Director Michael Masi acted in "good faith and to the best of his knowledge" and that the results are "valid, final and cannot now be changed." 65hile the results of Abu Dhabi 2021 and the World Drivers' Championship are set in stone, improvements can be made to FIA's judicial system to minimize the chances for a similar controversy to occur in the future.

II. THE ISSUE
Like many sports governing bodies around the world, FIA essentially enjoys a monopoly when it comes to the governance and regulation of all aspects of Formula 1 and its feeder series. 66Outside of Formula 1, FIA is also the umbrella organization that oversees Formula 4, Formula 3, Formula 2, Formula E, and various regional Formula championships. 67Outside the aegis of FIA, the main alternate open-wheel racing series is IndyCar, often called the "American Formula 1," 68 but the IndyCar series is seen as less prestigious and less popular, especially to those outside American circles.

A. ROLE OF THE RACE DIRECTOR AND STEWARDS
The role of the Race Director is at the center of the conflict around Abu Dhabi.Under the Formula 1 Sporting Regulations, 70 and ISC, 71 the Race Director works in permanent consultation with the clerk of the course and has overriding authority in several areas: a) The control of practice, sprint qualifying session and the race, adherence to the timetable and, if he deems it necessary, the making of any proposal to the stewards to modify the timetable in accordance with the Code or Sporting Regulations.
b) The stopping of any car in accordance with the Code or Sporting Regulations.
c) The stopping of practice, suspension of a sprint qualifying session or suspension of the race in accordance with the Sporting Regulations if he deems it unsafe to continue and ensuring that the correct restart procedure is carried out.
d) The starting procedure.
e) The use of the safety car. 72bsection e makes clear that the Race Director has wide latitude to decide every aspect of how the safety car is deployed and used.During the race, the Sporting Regulations Section 47.1 provides further clarifications to what the Race Director can do in the event of an incident: The Race Director may report any on-track incident or suspected breach of these Sporting Regulations or the Code (an "Incident") to the stewards.After review it shall be at the discretion of the stewards to decide whether or not to proceed with an investigation.The stewards may also investigate an Incident noted by themselves. 73e decision to investigate, and subsequent punishments, are handed out by the stewards rather than by the Race Director, but the Race Director still has a duty to notify the stewards of an incident for investigation.Michael Masi served as Race Director from 2019 to 2022. 74Abu Dhabi 2021 was not the first time his decisions as Race Director had been questioned.During the 2020 Turkish Grand Prix (GP), 2020 Emilia Romagna GP, 2021 Azerbaijan GP, and 2021 Belgian GP, his actions were criticized by drivers, teams, and the press. 75The 2021 season was the first and last time where team radio messages between the pit wall and race control were publicly broadcast. 76While the increased transparency in this manner was enormously popular with fans by providing them an inside view into the sometimes insightful but always entertaining radio messages, 77 such a wide open line of communication-especially between teams and the stewards of the race-can easily become a recipe for disaster, as showcased in Abu Dhabi. 78fter the FIA Commission analysis of the events at Abu Dhabi, FIA removed Masi from his post in February 2022, and offered him a new position within the organization.FIA then designated two individuals with previous motorsport experience-Niels Wittich and Eduardo Freitas-to serve as Race Director on a rotating basis for the 2022 season. 79In July 2022, Masi left FIA entirely. 80The Race Director rotation system was ended in October 2022 following an incident with a crane on track during the Japanese Grand Prix, and Niels Wittich served out the rest of the season as the sole Race Director. 81While it is likely that the public will never know what truly happened internally in FIA that led to Masi's ousting, since he signed an NDA, it is clear that he left his mark on the world of motorsport.FIA's judicial system consists of two main courts: the International Tribunal and the International Court of Appeal.They are independent bodies with their own administration detached from the FIA structure, and which serve appellate and disciplinary functions within FIA. 83 This structure was adopted by the FIA General Assembly in 2010. 84The Courts comprise eighteen to thirty-six Judges elected by the FIA General Assembly, with each country represented by not more than four Judges. 85hose selected "must be and remain independent of the FIA and of the parties involved," 86 and Judges must "respect the integrity and independence of the FIA Courts and to honour their duties of confidentiality with regard to the deliberations of the FIA Courts." 87T "exercises the FIA's disciplinary powers in the first instance (for cases not dealt with by the Stewards of the Meeting)," and "[d]ecisions taken by the IT can be appealed before the International Court of Appeal (ICA)."88 Its jurisdiction covers matters outlined in Article 5.2 of the Judicial and Disciplinary Rules, including sections of most relevance to the Abu Dhabi controversy: Section 5.2.1.a,"contraven[tion] of the Statutes and Regulations of the FIA, including the International Sporting Code and the Code of Ethics but excluding the FIA Anti-Doping Regulations"; Section 5.2.1.c,"[pursuit of] an objective contrary or opposed to those of the FIA"; and Section 5.2.1.d.2, "by words, actions or writings [,] . . .damage to the standing and/or reputation of, or loss to, the FIA, its bodies, its members or its executive officers."89 Each case in front of the IT is decided strictly on its own merits, where the Tribunal can consider previous rulings but is not legally bound to follow them.90 Hearings are held before a judging panel and presided over by the President of the Hearing, and each party outlines its case "in accordance with adversarial principles."91 Decisions are based on simple majority, with the President of the Hearing as a tiebreaker when necessary.92 Once a decision is made, "[o]nly the FIA, under the authority of its President, and the Respondent may appeal against a decision to the ICA." 93 While Section 6.7.2 claims that IT decisions are made public, an examination of the website shows only three published prior rulings.94 This lack of transparency adds to the deeply insular nature of FIA as an organization and the difficulties of ensuring that the processes are fair.
The ICA is the final appeals tribunal for international motorsport, established under the FIA Statutes and FIA International Sporting Code, and resolves disputes brought by any National Sporting Authority or President of the FIA, or non-sporting disputes brought by national motoring organizations affiliated with FIA. 95The ICA hears four types of appeal cases: "(1) appeals concerning sporting decisions; (2) appeals concerning decisions taken by the IT; (3) appeals concerning decisions taken by the CCAP [(Cost Cap Adjudication Panel)]; and (4) appeals concerning the interpretation or application of the FIA's statutes." 96In terms of the Abu Dhabi controversy, the most relevant types of possible appeals are appeals concerning sporting decisions and appeals concerning the interpretation or application of the FIA's statutes.Outside of hearings, the ICA can "definitely settle by arbitration disputes of a sporting, contractual or regulatory nature." 97To bring an appeal for a hearing, parties need to pay a deposit ranging from 3,000 to 6,000, depending on who the appeal is against. 98Similar to the procedures of the IT, hearings before the ICA are conducted by the judging panel and presided over by the President of the Hearing, and the hearing plays out in accordance with adversarial principles. 99Once a decision is made, it is "binding with immediate effect as soon as [it is] issued." 100 And there is a right of review if new evidence is discovered, or the ICA can choose to reexamine a case "on its own initiative or following a petition for review by either one of the parties concerned and/or a party that is directly affected by any decision handed down, or by the President of the FIA" within twelve months of the decision. 101ince 2001, the ICA has heard around two dozen cases pertaining to Formula 1.Recent examples of ICA cases include a 2021 withdrawn appeal by Aston Martin regarding a breach of the technical regulations; 102 the 2020 withdrawn appeals by Renault, BWT Racing Point (now Aston Martin), and Ferrari over similarities in car design; 103 a 2019 appeal by Alfa Romeo over the ability to appeal a time penalty; 104 a 2018 appeal by Haas over a technical regulation; 105 and a 2014 appeal by Red Bull over technical regulations. 106Of these cases, a third ended up being withdrawn, and approximately half concerned interpretations of the technical regulations.Only a few notable cases, such as the "pink Mercedes" controversy, 107 Spygate, 108 the PK Racing prejudicial statements, 109 and the 2005 decision of the World Motor Sport Council, 110 are not related to technical regulations or on-track driver actions.In no published cases did the ICA hear an appeal that would have had a direct and immediate impact on the World Driver's Championship standings, as would have happened had Mercedes chosen to move forward with an appeal after Abu Dhabi.
Had Mercedes gone ahead with its appeal, the case would have fallen under the first type of ICA appeal, "in the context of a competition forming part of a FIA Championship, Cup, Trophy, Challenge or Series, appeals against decisions of the Stewards of an event brought by organisers, competitors, drivers or other licenceholders that are addressees of such decisions or that are individually affected by such decisions," 111 or the fourth type, an "appeals brought by FIA Members in relation to the interpretation or application of the FIA Statutes by the FIA." 112 Specifically, Mercedes could have brought the first type of appeal against the stewards' decisions outlined in Document 58, in which the stewards interpreted the Race Director's powers under Article 15.3 and Article 48.13 of the Sporting Regulations to essentially "override" Article 48.12. 113The team could have also brought the fourth type of appeal to challenge how Masi's safety car unlapping procedure to ensure a final lap of racing contravened the International Sporting Code Article 1.1.1,which charges FIA with "enforc[ing] regulations based on the fundamental principles of safety and sporting fairness." 114he team could have pointed to Masi's failure to consistently apply the sporting regulations.During the 2020 Eifel Grand Prix, the safety car was deployed during the final third of the race to give the marshals time to safely remove a retired car that was stopped by the side of the track, and remained out for five laps despite the cold conditions, making a slowdown for that period of time potentially dangerous for tyre conditions. 115When asked why the safety car was deployed for so long, Masi stated that since all the cars up to the fifth place car had been lapped, that length of time was required for the other cars to unlap themselves, noting that "there's a requirement in the sporting regulations, to wave all lapped cars past.So 10, 11 cars, that had to unlap themselves, and therefore the safety car period was a bit longer than what we would have normally expected." 116After the race, some drivers criticized the decision to leave the safety car out that long, including Verstappen who opined that "I think they just wanted to make it more exciting again because of the gaps." 117Masi had interpreted the safety car rules differently during the 2020 season, reading Sporting Regulation Section 48.12 "any cars that have been lapped" to mean "all cars that have been lapped," 118 than during Abu Dhabi 2021, where the clause was interpreted as removing only those lapped cars that "interfere" in racing. 119This lack of consistent application of the sporting regulations is especially problematic in a sport where every point gained in the constructor's standings translates to millions of dollars of additional prize money at the end of the season, and consequently millions of dollars more that can be put towards research and development of a faster car. 120The already high-stakes nature of every race, coupled with the season-long head-to-head dramatics of the 2021 season and the need to provide an entertaining product for fans, are two of the reasons why external accountability measures are needed.
In even the most dramatic of championship showdowns in previous seasons-the 1990 Japanese Grand Prix battle between Ayrton Senna and Alain Prost, the 1997 European Grand Prix title fight between Michael Schumacher and Giles Villeneuve, and the 1994 Australian Grand Prix fight between Michael Schumacher and Damon Hill come to mind-none of these previous title fights' results hinged on the actions of the Race Director or stewards. 121Mercedes' desire not to pursue its appeal and win Lewis Hamilton's historic eighth Championship in the courts-rather than on the track-is understandable in this regard.Even had the team gone forward with the appeal, it is unlikely that the team would have gotten the result it wanted, and there is no way to know what would have happened during the race had it not been for Masi's meddling.

Post-2022 Season Analysis
With a full 2022 season of Formula 1 racing since Abu Dhabi 2021 wrapped up, the issues that the race forced into the spotlight remain more relevant than ever.Following the first recommended course of action after FIA conducted the Abu Dhabi investigation, the Remote Operations Center (ROC) in Geneva has been up and running. 122The ROC was used most notably during the 2022 season to review the Japanese Grand Prix after a recovery crane was deployed on track to retrieve a crashed car during torrential rain conditions, causing drivers to fear for their safety during the low visibility conditions. 123Data collected by the ROC was used to create a timeline of the incidents and monitoring tasks are to be delegated to the ROC for future races.While the inspiration for the ROC came from the Video Assistant Referee (VAR) system used in football, "those working at the ROC do not make definitive rulings, and instead are providing extra information and working as spare pairs of eyes." 124Team members can communicate with race control, technical teams, and other regulatory teams on the ground to provide data and connect experts with those at the track. 125here may be drawbacks to the ROC's limited supplementary functions, but its data collection and analysis have already been helpful to race control.Moreover, in the future, its role as a training tool for race directors, stewards, and other leadership, by simulating a race weekend with challenging conditions, is certainly promising to reduce the human error that marred Masi's tenure. 126ollowing the second recommendation, team principal radio interventions are no longer allowed. 127FIA President Mohammed Ben Sulayem stated that I think it was used as entertainment for the fans, but actually it has its downside . . .[a]nd then the race director and the whole race control was just bombarded by unnecessary [messages] and everybody was complaining.That was putting, I don't think, pressure, but I think stress on the race director there. 128om the 2022 season onwards, only team managers will have a direct line to race control to ask questions, while routine calls will be handled by another individual in race control. 129In the balance between transparency and effectiveness, the barring of team principals is likely going to be beneficial, especially in situations such as Abu Dhabi where the Race Director needed to make important decisions and did not have the time to deal with lobbying by the teams involved.
Under the third recommendation, the safety car rules have been clarified for the 2022 season and beyond. 130The updated Article 55.13 of the 2022 Sporting Regulations now reads "If the clerk of the course considers it safe to do so, and the message 'LAPPED CARS MAY NOW OVERTAKE' has been sent to all Competitors using the official messaging system, all cars that have been lapped by the leader will be required to pass the cars on the lead lap and the safety car." 131The change from "any" to "all" makes it unequivocally clear that the Race Director cannot choose for only some of the lapped cars to overtake, but not others, and brings the regulations more in line with common practice prior to Abu Dhabi.
Following the final recommendation, the rotating Race Director system was implemented for the 2022 season until the Japanese Grand Prix, after which only one of the Race Directors served out the remainder of the season. 132FIA President Ben Sulayem had decided on the rotating system because he felt that "[w]e can't trust each other because what if something happens?We have to be prepared for any contingency if we want to strengthen our sport." 133The issue is that there needs to be some baseline level of trust between other FIA officials and the Race Director to make decisions in real time.Mercedes' driver, Grand Prix Drivers' Association director George Russell, and other drivers have raised concerns about the rotation system.Russell stated that drivers "believe that having the rotation isn't the best thing for a sport, for that consistency." 134Further, he spoke about how "[i]t was frustrating sometimes when we were talking about a certain incident on track and the stewards who actually made that decision weren't there to give their views on this." 135 In most other sports and organizations, leadership and final decision-making are typically in the hands of one individual supported by others, rather than two people on rotation.While the concerns of concentrating duties and responsibilities in the Race Director are legitimate, the lack of consistency, especially with decision-making around the Japanese Grand Prix and the United States Grand Prix during the 2022 season, suggests that a sole experienced Race Director is the better method. 136

C. INADEQUACIES OF CURRENT REMEDIES
The main shortcoming of the current remedies available to drivers and teams in Formula 1 is that there is little recourse outside the FIA system when it comes to decisions made by FIA leadership.The Judicial and Disciplinary Rules state that "nothing in these rules shall prevent any party from pursuing any right of action which it may have before any court or tribunal," but this latitude is "subject at all times to such party having first exhausted all mechanisms of dispute resolution set out in the Statutes and regulations of the FIA." 137 The requirement of first having to go through the FIA dispute resolution system means added expense, time, and the possibility of selfselecting out of fighting a protracted battle in the FIA court systems that the party feels that it has little chance of winning, which was the path chosen by Mercedes after Abu Dhabi.Additionally, by agreeing to participate in any capacity whatsoever . . . in any competition or event organised, directly or indirectly, by the FIA or subject to the regulations and decisions of the FIA, all persons concerned . . .accept and acknowledge the obligation first to use the procedures established by the Statutes, the FIA International Sporting Code, the present Rules and any other regulations of the FIA. 138rther, CAS, the typical international body to settle sporting disputes, is "exclusively competent to resolve definitively appeals against the decisions of the FIA Anti Doping Disciplinary Committee" and thus cannot be an avenue to settle appeals not related to doping. 139espite this, FIA and Formula 1 are no stranger to lawsuits.Due to the highly technical nature of the sport, and the lucrative revenue generated by sponsorships, licensing for merchandise, and ticketing, it is no surprise that there has been legal action over nearly every aspect of Formula 1 racing in a wide range of jurisdictions, including within the American legal system. 140At the start of 2023, AlphaTauri's rookie Nyck de Vries faced a lawsuit in Dutch court over allegedly withholding information and breach of agreement over a loan he received when he was still in Formula 2. 141 In the 2021 case Ferguson v. Dolphins, a Florida district court dismissed a case brought by residents of Miami-Dade county against FIA over alleged equal protection violations and noise ordinance disruptions caused by the Miami Grand Prix, which held its inaugural race during the 2022 season. 142In the 2020 case Nygaard v. Federation Internationale de l'Automobile et al., inventor Jens Nygaard settled a case with FIA in a Texas district court over alleged patent infringement surrounding the Halo, 143 a curved titanium bar that surrounds the cockpit and serves as a protection system for drivers, and which has been credited with saving the lives of at least three drivers since its introduction in 2018. 144In the 2015 case Giedo van der Garde BV v Sauber Motorsport AG, Sauber driver Giedo van der Garde successfully won in Swiss Arbitration and later in the Victorian Supreme Court in Australia to enforce van der Garde's contract and allow him to drive for Sauber that season, though he eventually settled with the team and left Formula 1. 145 In the 2007 case Bowers v. Fédération Internationale De L'Automobile, disgruntled fans sued the organizers of the 2005 United States Grand Prix alleging breach of contract, promissory estoppel, and negligence after fourteen of twenty cars did not participate in the race due to dangerous tyres, though the Seventh Circuit affirmed the dismissal of all claims. 146And in 1984, a superior court jury in Rhode Island awarded $9.6 million to the estate of American driver Mark Donohue, who was killed when his Goodyear-manufactured tyre blew out during practice, causing him to fatally crash into the barriers at the 1975 Austrian Grand Prix. 147 Notably, many of the above cases filed in civil courts were brought by fans, residents near a Grand Prix track, a sponsor, or other entities not as directly involved with the Formula 1 universe as a team or a driver.Indeed, even the van der Garde arbitration case which involved a driver was brought to settle a contract dispute, which is dealt with by the Contract Recognition Board, a separate entity dealing specifically with contracts within FIA which is not covered by the scope of this Note. 148None of these cases concerned the actions of FIA leadership nor directly impacted the awarding of that season's World Driver's Championship.

Structural Similarities and Differences
While there are several key differences between Formula 1, MLB, and FIFA, a comparison with one major American sports league and one major international federation can offer valuable insight on ways to improve accountability and transparency in FIA's own governing structure.One of the most notable differences between these three organizations is the number of participants.There are only twenty drivers on the Formula 1 grid, 149 whereas there are a little over a thousand active players in MLB 150 and over 100,000 professional association football players worldwide. 151his may be partly due to cost.To even make it through the ranks of motorsport before reaching Formula 1 is prohibitively expensive.By some calculations, it can cost around $10 million to graduate from karting to Formula 1, with karting alone costing over $60,000 per year. 152In addition, most drivers just starting out do not have the benefit of sponsorships or outside funding, which means they and their families must foot the bill until they are able to join a talent scheme under one of the major teams to help with costs. 153In comparison, the cost to become a football or baseball player is closer to $30,000 to $50,000. 154While still a significant investment in aspiring young athletes, most of whom will not make it to the big leagues, this is significantly more attainable than the millions of dollars required for young drivers to have a shot at becoming one of twenty on the Formula 1 starting grid.
In terms of governing structure, MLB governs just one sport-baseball-while the FIA also oversees rally, hill climb, cross country, and other motorsport events, 155 and FIFA also oversees beach soccer and futsal.Because of the single sport structure in MLB, there is no similar opportunity for a Race Director type of individual to affect the outcome of a championship with a single decision that contravenes the rules.Even the Commissioner, who is given a broad range of powers to act in the "best interest" of the sport, 156 does not enjoy such wide-ranging latitude.In terms of day-to-day operations, MLB, FIA, and FIFA essentially operate as monopolies in their respective fields.And all three organizations have their own internal systems of justice, outlined below.

MLB Judicial System
The majority of disputes in Major League Baseball concern labor, 157 and much of the responsibility for labor relations and the power of investigation in MLB is vested in the Commissioner.Under the Major League Constitution Article II, the function of the Commissioner includes: (b) To investigate, either upon complaint or upon the Commissioner's own initiative, any act, transaction or practice charged, alleged or suspected to be not in the best interests of the national game of Baseball . . . .(c) To determine, after investigation, what preventive, remedial or punitive action is appropriate in the premises, and to take such action either against Major League Clubs or individuals, as the case may be. 158rther, Article VI Section 1 of the Constitution gives the Commissioner the power to hear all disputes and controversies related in any way to professional baseball . . .other than those whose resolution is expressly provided for by another means . . .shall be submitted to the Commissioner, as arbitrator, who, after hearing, shall have the sole and exclusive right to decide such disputes and controversies and whose decision shall be final and unappealable. 159his power is separate from and does not alter the "Commissioner's powers to act in the best interests of Baseball under Article II." 160 Under Section 2, the Clubs recognize that "it is in the best interests of Baseball that all actions taken by the Commissioner under the authority of this Constitution . . .be accepted and complied with . . .and that the Clubs not otherwise engage in any form of litigation between or among themselves or with any Major League Baseball entity." 161Further, the Clubs "agree to be finally and unappealably bound by actions of the Commissioner and all other actions, decisions or interpretations taken or reached pursuant to the provisions of this Constitution and severally waive such right of recourse to the courts as would otherwise have existed in their favor." 162hile the Commissioner does enjoy significant powers, he is not all-powerful, and MLB is no stranger to litigation.Throughout history, the "best interest of baseball" clause has been interpreted widely: in 1978 when Commissioner Bowie Kuhn invoked the clause to prevent Oakland Athletics owner Charlie Finely from selling his best players to rival teams in Finley v. Kuhn, 163 and in 1990 when Commissioner Fay Vincent cited the clause when banning Yankees owner George Steinbrenner after Steinbrenner paid a gambler to investigate his own team's right fielder Dave Winfield. 164ince 1968, a new Collective Bargaining Agreement (CBA) between the league and the Major League Baseball Players Association (MLBPA) has been hammered out every few years. 165The CBA concerns the rules of employment and financial structure of the game, including the salary structure, free agency, salary arbitration, amateur draft rules, drug testing, on-field rules, and the injured list. 166Most recently, the start of the 2022 season was delayed after a ninety-nine-day lockout, with the new CBA eventually signed and in effect until the end of the 2026 season. 167Under the terms of the CBA, notices of investigations are sent to the player and the Association who provide reasonable cooperation.The player and Association reserve the right to assert that the investigatory request does not require cooperation, and disputes over whether reasonable cooperation has been provided are resolved by the Arbitration Panel. 168urther requirements are listed when it comes to investigations for violation of the drug policy, which will not be covered in the scope of this Note.
The CBA also discusses eligibility requirements for salary arbitration, which is typically only an option for players with three or more but less than six years of Major League service. 169In certain cases, "Super Two" players-those who rank in the top twenty-two percent of service time amongst those who have spent between two to three years in the Majors-are also eligible for salary arbitration. 170For salary arbitration, the Major League Baseball Players' Association and the Major League Baseball Labor Relations Department "annually select the arbitrators," and if they cannot agree on a list of names, the "American Arbitration Association [will] furnish them lists of prominent, professional arbitrators.Upon receipt of such lists, the arbitrators shall be selected by alternately striking names from the lists." 171Cases are heard before a panel of three arbitrators. 172n addition, the CBA details the grievance process.A grievance is "a complaint which involves the existence or interpretation of, or compliance with, any agreement, or any provision of any agreement, between the Association and the Clubs or any of them, or between a Player and a Club" aside from the Benefit Plan and agreement regarding dues check-off. 173With the grievance system, players are able to challenge the Commissioner's disapproval of their contract, 174 or disputes regarding a contract, 175 but it excludes complaints "which involve[] action taken with respect to a Player or Players by the Commissioner involving the preservation of the integrity of, or the maintenance of public confidence in, the game of baseball." 176nother aspect of the MLB judicial system is the Department of Investigations (DOI), which was established in response to Senator George Mitchell's 2007 independent investigative report into use of performance enhancing substances amongst MLB players in the early 2000s "steroid era." 177 While the department operates independently from MLB's labor department, it still answers to the Commissioner, again highlighting the internal nature of this branch of MLB's judiciary. 178Former Senior Vice President of Investigations Dan Mullin described his department's duties broadly: "to protect the integrity of the game, and we do everything from investigations involving performance enhancing drugs, corruption, gambling, we do corporate due diligence, we do age and identity fraud in Latin America, we do internal issues involving players." 179The DOI led an investigation into the 2017 Astros sign stealing scandal, in which the team used a camera pointed at home plate and players banging on trash cans to let their hitters know what pitch was coming; ultimately, the team won the World Series that year. 180In the Commissioner's report, he ruled that some members of Club leadership, but no players, were to be disciplined over their role in the scheme. 181Thus, even though the DOI is the department charged with a wide range of investigative powers, it is still the Commissioner who has the final say in handing out punishments.

FIFA Judicial System
FIFA utilizes a three-part independent judicial body made up of the Disciplinary Committee, Ethics Committee, and Appeal Committee. 182The Disciplinary Committee, Appeal Committee, and both chambers of the Ethics Committee are comprised of a "chairperson, deputy chairperson, and a specific number of other members," 183 and the "composition of the judicial bodies should respect the fair distribution of positions and take account of the member associations." 184Members "together, have the knowledge, abilities and specialist experience that is necessary for the due completion of their tasks" and "fulfil the independence criteria as defined in the FIFA Governance Regulations." 185Members are elected by the Congress for four-year terms, for a maximum of three terms in total. 186he Disciplinary Committee is tasked with "pronounc[ing] the sanctions described in these Statutes and the FIFA Disciplinary Code on member associations, clubs, officials, players, football agents and match agents" and can propose amendments to the FIFA Disciplinary Code. 187Recent decisions by the Disciplinary Committee include a December 2022 case of the French Football Federation (FFF) over Article 46 of the Disciplinary Code, which covers protests. 188After a 2022 World Cup match between the Tunisian and French national teams, the FFF filed a protest challenging the referee's decision to refuse a goal scored by the French team. 189The Disciplinary Committee held that FFF failed to properly follow procedure when submitting the protest, and that under the FIFA Disciplinary Code the protest had no merit since decisions of referees are not able to be reviewed by FIFA judicial bodies. 190Another recent decision from November 2022 concerned the Turkish club Yeni Malatyaspor over a violation of Article 15 of the Disciplinary Code, which covers failure to respect decisions. 191The Disciplinary Committee found that Yeni Malatyaspor had failed to comply with an award ordered by the Court of Arbitration for Sport, and imposed a fine in addition to a requirement to pay the money owed; further bans or sanctions could be imposed if the club continues to fail to comply. 192he Ethics Committee is divided into an investigatory chamber and an adjudicatory chamber, and the Committee is tasked with "pronounc[ing] the sanctions described in these Statutes, the FIFA Code of Ethics and the FIFA Disciplinary Code on officials, players, football agents and match agents" and can propose amendments to the FIFA to be in violation of all three Code of Ethics articles, and the Committee banned him from football for five years and ordered him to pay a fine. 195Another recent decision includes the June 2021 case of Issa Hayatou, a former president of the Confédération Africaine de Football, member of the FIFA council, and Honorary Vice-President of FIFA, over alleged violations of Articles 13, 15, and 25 of the Code of Ethics. 196The Ethics Committee found that Hayatou breached the Article 15 duty of loyalty, and he was consequently banned from football for one year and required to pay a fine. 197he Appeal Committee hears "appeals against decisions from the Disciplinary Committee and the Ethics Committee that are not declared final by the relevant FIFA regulations," and its decisions are "irrevocable and binding on all the parties concerned . . .subject to appeals lodged with the Court of Arbitration for Sport (CAS)." 198Further, "[r]ecourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations." 199Recent decisions by the Appeal Committee include a September 2022 appeal by the Chilean Football Association and Peruvian Football Association over a decision by the Disciplinary Committee, where the Disciplinary Committee had dismissed all charges against the Ecuadorian Football Association over alleged forgery of documents establishing a player's Ecuadorian nationality. 200The Appeal Committee confirmed the decision of the Disciplinary Committee and dismissed the appeals. 201Another recent decision involves the case of Minhajul Islam Minhaj, who had a received a lifetime ban by the Bangladesh Football Federation over suspected betting activities; the ban was extended to worldwide effect by the Disciplinary Committee. 202The Appeal Committee declared the appeal inadmissible. 203ince 2002, FIFA has recognized the authority of CAS to resolve appeals of decisions by its internal judicial system. 204First established in 1984 by the International Olympic Committee, CAS is now an "institution independent of any sports organization which provides for services in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the specific needs of the sports world." 205It is staffed with nearly 300 arbitrators and tasked with "resolving legal disputes in the field of sport through arbitration" by "pronouncing arbitral awards that have the same enforceability as judgements of ordinary courts," and also provides avenues for parties to resolve disputes through mediation. 206CAS will only hear disputes if parties agree to submit to its authority in writing, and the recognition of its authority "may be on a one-off basis or appear in a contract or the statutes or regulations of a sports organization." 207Once pronounced, a CAS award is final and binding but "recourse to the Swiss Federal Tribunal is allowed on a very limited number of grounds, such as lack of jurisdiction, violation of elementary procedural rules (e.g.violation of the right to a fair hearing) or incompatibility with public policy." 208hile FIFA was originally resistant to the idea of CAS jurisdiction, as of 2020 approximately forty-five percent of cases heard at CAS are FIFA appeals, and the number grows each year. 209One of the first cases that tested CAS jurisdiction over FIFA appeals was the 2003 decision Fulham FC v. Olympique Lyonnais that involved a transfer contractual dispute between clubs. 210After Fulham refused to comply with the CAS decision that the club needed to complete the transfer payment, FIFA imposed a transfer ban on Fulham until it complied; this early case shows how even in the beginning, FIFA was serious about submitting to CAS jurisdiction.A recent CAS arbitral award that involved FIFA includes the 2022 decision Football Union of Russia v. Fédération Internationale de Football Association et al., an appeal against a decision by the Bureau of the FIFA Council which suspended national teams associated with the Football Union of Russia from participation in FIFA competitions following Russia's invasion of Ukraine. 211CAS confirmed the decision by the Bureau of the FIFA Council. 212As a fellow International Federation, FIA can examine FIFA's implementation of CAS jurisdiction to supplement its own internal judicial mechanisms.

A. CAS
One possible solution to the problem of FIA self-policing is to add a provision in the FIA governing documents that allows parties recourse to submit to CAS arbitration outside of doping-related incidents.Under this new system, FIA will still be able to maintain an internal mechanism for dispute resolution with the requirement that parties must first exhaust the resolution mechanisms of the International Tribunal and International Court of Appeal, but with the added provision that parties will be able to appeal the decision to CAS, which exists as a less biased third party.This method will go a long way to address the concern that FIA cannot adequately mark its own homework.
With this approach, FIA does not need to reinvent the wheel.The organization can simply model its CAS appeals procedure on the one outlined in the FIFA Statutes.Under Article 56 of the FIFA Statutes, "CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss law." 213However, "[r]ecourse may only be made to CAS after all other internal channels have been exhausted," and CAS does not deal with appeals concerning "(a) violations of the Laws of the Game; (b) suspensions of up to four matches or up to three months (with the exception of doping decisions); (c) decisions against which an appeal to an independent and duly constituted arbitration tribunal recognised under the rules of an association or confederation may be made." 214FIA can add similar provisions to its own Statutes to incorporate CAS arbitration.Instead of violations of laws of the game, FIA could have interpretations of the sporting regulations; instead of suspensions of matches, FIA could discuss suspension from participation in a Grand Prix or suspension of a driver's Super License; the final prong could be kept intact since FIA would still want to keep some aspects of its internal system.
Initially, FIFA wanted to establish its own independent Arbitration Tribunal for Football, but after it became apparent that financial and time constraints would not permit the organization to properly set up an independent arbitration tribunal, FIFA decided to recognize CAS jurisdiction. 215Similarly, FIA would likely find it difficult to set up its own tribunal, especially when the existing and trusted mechanisms of CAS exist.Notably, "CAS has developed its structure and jurisprudence to be the 'world's supreme court in sport' and contributes massively to the development of lex sportiva." 216dding FIA to the list of organizations which recognize CAS jurisdiction for cases outside of doping would contribute a great deal to lex sportiva, which translates to sports law.Other advantages to CAS arbitration include institutional legitimacy and uniformity of decisions.CAS tends to "engag[e] extensively in de facto precedent setting and precedent following." 217Further, CAS serves two review functions as an organization.It engages in a "vertical, constitution-like form of review" when it ensures that sports governing bodies "act within their competences and follow proper procedure; that they respect the principle of legality, fundamental rights, and the principle of proportionality; and that they interpret and apply applicable rules in a correct and consistent manner." 218And CAS engages in horizontal review when it "settles disputes where [sports governing bodies] disagree on the division of powers between them." 219In this way, FIA parties that choose to appeal to CAS can be sure that their appeal will be heard by a body that sets and follows its own precedent and enjoys worldwide legitimacy.
The solution of CAS arbitration is not without shortcomings.One problem is lack of expertise.Right now, there are no CAS arbitrators with requisite expertise in motorsports or Formula 1 matters to form diverse panels to adequately decide on Formula 1 cases. 220This was also a hurdle faced by FIFA when it began to permit CAS arbitration, and once again FIA can take a page out of its sister international federation's book.Because of the large amount of football-related disputes that come before CAS, CAS and FIFA have set up a specialist list of 168 arbitrators forming the "Football List," "[which] are appointed by ICAS as per the proposals submitted by the six confederations, clubs (ECA), leagues (WLF), players (FIFPro), ICAs and FIFA." 221 Similarly, FIA can work together with the constructors and drivers to come up with a "Formula 1 List" of specialist arbitrators to hear future appeals.
Had the FIA rules included an avenue to appeal decisions to CAS, it is possible that Mercedes would have gone ahead with its appeal after Abu Dhabi through the FIA judicial system, with the knowledge that it would be able to appeal to CAS if the decision did not fall the way the team wanted.While this is pure speculation, it is not a reach to believe that a potential to appeal to CAS would have factored into Mercedes' decision to withdraw the appeal.

B. MLB ARBITRATION
Another possible solution is to take notes from MLB's arbitration procedures, in which the Players' Association and the League's Labor Department each select arbitrators to comprise three-member panels to hear salary disputes.FIA could adopt a version where the Grand Prix Drivers' Association (GPDA), the union of Formula 1 drivers, 222 and Formula 1 leadership select arbitrators from a list provided by CAS, the American Arbitration Association-Internal Centre for Dispute Resolution (AAA-ICDR), 223 or another arbitration body.The selected arbitrators would then form threemember panels to hear disputes as an alternative mechanism to the IT and ICA, with the decisions appealable to CAS as the final instance.In this manner, the drivers have more oversight in the arbitration process and are not entirely at the whim of FIA leadership.
Some immediate issues arise with this proposal.One of the most notable differences between FIA and MLB is the different governance models of European versus American sports.In the European system, "[a]lmost all sporting activity takes place within a 'pyramid' structure where an international federation of national governing boards (NGBs) regulate a particular sport; each nation's NGB regulates both commercial professional leagues . . .and a scheme of regional and local governance of clubs . . .." 224 Within this system, "strong player unions are absent." 225In the American system, professional sports are organized as "highly successful commercial major leagues, operated as for-profit businesses, using the structure of a joint venture controlled by the owners of professional clubs." 226As such, "bona fide arms-length negotiation operates as a pre-condition to the applicability of the non-statutory labor exemption, which is a judicial creation designed to immunize collective bargains struck between both sides of industry from anti-trust law." 227While the GPDA exists, because not every driver is necessarily a member 228 and there are only twenty Formula 1 drivers total, the union does not enjoy bargaining power comparable to that of the MLBPA.All Major League players on each club's 40-man roster as well as those on the injured list are represented by the MLBPA, 229 and as of 2022, a majority of Minor League players have elected to join the union. 230nother potential issue that arises is that the Commissioner has the final say when it comes to salary arbitration.FIA certainly cannot follow this system and put the final decision of arbitration in the hands of the FIA President, the position most equivalent to Commissioner, since it would exacerbate the problem of FIA's ability to rubberstamp its own decisions.One potential remedy for this is to combine this solution with the CAS solution by permitting appeals to CAS after parties have gone through this internal arbitration.With this proposal, however, drivers would likely face steep opposition in their attempt to become more involved in the arbitrator selection process.

C. CIVIL JUSTICE
A third possible solution is an avenue for civil justice without first needing to exhaust internal FIA mechanisms.Parties could directly bring their cases to national courts and have their disputes heard before judges or juries depending on the legal system of the country in which they brought the complaint.
While this proposal would take the FIA dispute resolution system outside of the international federation entirely, thereby sidestepping the issue of FIA's selfgovernance, several difficulties of implementation exist.The autonomy of sport has long been recognized, including by the United Nations in 2014. 231While this autonomy "does not mean that [sports] are above the law or [sports] should not be expected to adhere to principles of good governance . . . the world of sport and sports administration should be free from direct political or government interference." 232The respect for sporting autonomy means that when it comes to sports cases, "[c]ourts generally are very deferential to the rule-making, dispute resolution, and enforcement authority of sport governing bodies at all levels of national . . .or state . . .athletic competition to protect the on-field and off-field integrity of sport." 233Indeed, "judges rarely invalidate or refuse to enforce arguably reasonable internal rules and decisions to protect the integrity of sport." 234ecause of the wide variety of nationalities of people involved in FIA, "if national courts adjudicate these disputes, there is an inherent tension between internationalism (i.e., the need for international sports to operate under a consistent, worldwide legal framework), and nationalism (i.e., the desire of each nation to preserve its sovereignty and ensure that its athlete citizens are protected by its laws)." 235Questions of jurisdiction would arise regarding where to hear complaints and which country's laws to follow, and whether a decision of the courts of one country is enforceable in another or against another country's citizens.Political differences would also come into play despite every sporting organization's ostensible commitment to political neutrality.
One solution would be to follow French law since FIA is headquartered in France. 236Or, Swiss law could be followed, modeled off the CAS mechanism which already allows limited recourse to the Swiss Federal Tribunal, 237 though both the "Swiss Federal Tribunal and EctHR [(European Court of Human Rights)] have mentioned that there is no other viable alternative to the CAS to resolve international sports-related disputes quickly and effectively." 238Regardless, "inconsistent and unpredictable jurisprudence and the application of general principles" 239 are likely to occur, making this proposal one that is unlikely to garner much support.

IV. CONCLUSION
While Formula 1 is a sport that has seen its fair share of controversy over the years, the decisions by FIA leadership made during the 2021 Abu Dhabi Grand Prix have had lasting consequences on the motorsport community and even on the sporting world at large.The concentration of decision-making power in the hands of one Race Director and the lack of external judicial mechanisms contributed to the contravention of the sporting rules during the race and ended the 2021 season shrouded with scandal.This COLUMBIA JOURNAL OF LAW & THE ARTS [47:1 Note compares the judicial and governance structure of FIA with that of MLB and FIFA, and proposes three solutions to bring external accountability to FIA to ensure that a situation like Abu Dhabi 2021 does not happen again.
In one solution, FIA would permit parties to submit to CAS arbitration for cases outside of those related to doping.A second solution would see FIA develop an arbitration system similar to that used by MLB.A third possible solution would see FIA allow parties to go directly to civil justice without first exhausting internal judicial mechanisms.To best address the issues brought to light by Abu Dhabi, allowing FIA judicial decisions to be appealed to CAS is the method that is most likely to achieve success and restore public faith in the sport of Formula 1.