MotoMatters.com | Kropotkin Thinks

The MotoGP Court of Appeal has finally rendered judgment on the revised penalty issued against Marc Marquez for causing the crash with Miguel Oliveira at the opening round of the 2023 MotoGP season at Portimão. The change to the original penalty notification, which stated that Marquez would have to serve a Double Long Lap Penalty at the Argentina grand prix at Termas de Rio Hondo, was found to be irregularly and wrongly amended.

As a result, the penalty is deemed to have been served, and Marquez will not have to serve a Double Long Lap Penalty at the next race in which he participates. Marquez is free to race, without facing a penalty.

The reasoning given by the court was simple. On March 26th, the FIM Stewards issued a penalty against Marc Marquez for the crash he caused which injured Miguel Oliveira. When the Stewards gave Marquez the penalty, he asked them to confirm that the penalty only applied for the race in Argentina.

Two days later, the FIM Stewards issued an amended penalty, which changed the wording from stating that the penalty must be served in Argentina, to stating that it must be served in Argentina, or if Marquez was not present in Argentina, then at the next race in which he participated.

Wrongful change

The court ruled that this was change was not valid for several reasons. Firstly, the FIM Stewards changed the penalty without having a sound basis for doing so. The penalty could only be changed if there was an error in the original penalty notification, and there was no grounds to expand the scope of the penalty. The court argues that once a penalty has been issued, it cannot be changed afterward.

Secondly, the court says that Marquez decided not to participate in the race in Argentina based on the information given to him by the FIM Stewards, that the penalty would be considered served in that case. Marquez had the right to make a fully informed decision, and by changing the penalty afterward, that decision was no longer fully informed.

Thirdly, the FIM Stewards changed the penalty without a hearing with Marquez, to which he was entitled. The court considered this such a fundamental violation of Marquez' rights to due process that the penalty should be annulled on those grounds alone.

The court then ordered that the penalty be considered as served, that Marquez and the Repsol Honda Team have the security deposit placed during the appeal returned, and that the FIM should bear the administrative costs of the proceedings. The FIM would not have to cover the legal costs of the Repsol Honda Team and Marc Marquez, however.

Clarification

Earlier today, I wrote an article setting out the argument that the penalty should have expired as the appeal by the Repsol Honda Team had not been heard within the time limit set out in the FIM regulations. That article proved to be incorrect, though the argument made remains valid.

The FIM did not respond directly to explicit requests for the date of the hearing in front of the MotoGP Court of Appeal, or the date the brief of appeal was filed by Repsol Honda. Therefore, there was no basis, other than a vague assurance that the period of four weeks after the brief of appeal was filed had not yet elapsed, on which to assess whether the appeal had been heard in a timely manner.

The decision issued by the MotoGP Court of Appeal addresses all of these questions, and more. The reason the FIM could not provide me with a date for the hearing is because the court made its ruling without holding one. The decision, issued on May 9th – the same day as the article I wrote, and the day I made inquiries about the case with the FIM – was taken by three judges based on the information already in their possession. This was in line with the submission of the Repsol Honda Team, who indicated to the court that they did not believe it was necessary to hold a hearing before the court.

The decision issued by the MotoGP Court of Appeal also falls within the four week time limit set out section 3.4.4 in the FIM Grand Prix World Championship Regulations. According to the decision of the court, the brief of appeal – the documents submitted by the Repsol Honda Team to support their appeal – were submitted to the court on April 17th. That gave the MotoGP Court of Appeal until May 16th to issue a judgment. This is in line with the information provided to me by the FIM, that the time limit for a decision had not elapsed.

Lack of transparency

It is worthy of note that the MotoGP Court of Appeal issued its judgment on the same day that I asked the FIM about it. There is a very good chance this is mere coincidence, the result of a pre-planned meeting about the case among the three judges involved. But the fact that I could not get a straight answer about the progress of the case, and received very little information beyond reassurances that everything was proceeding in good order illustrates one of the biggest problems around the FIM penalties process: a complete lack of transparency.

The fact that the FIM Stewards offer no explanation for their penalties has been discussed at length throughout the MotoGP media. This was highlighted even further at Jerez, when the Stewards handed out several inexplicable penalties, such as the Long Lap Penalty for Fabio Quartararo and forcing Pecco Bagnaia to drop a place for a pass on Jack Miller, while letting identical or worse incidents – such as Miller's pass on Jorge Martin – go unpunished. With no information from the FIM Stewards, or anyone else at the FIM, the fans, the media, the teams and the riders were all left to try to divine the intentions of the Stewards.

The Marc Marquez appeal shows a similar lack of transparency. The FIM issues no information on the progress of cases, on developments in cases, or on the timeline involved. We hear about hearings after they are held, despite the fact that the hearings are meant to be public, as set out in section 3.5.2 of the FIM Regulations ("The hearing shall be public unless the disciplinary or arbitration body itself decides otherwise in exceptional circumstances."). How a hearing can be public when there is no public information on when a hearing is to be held is something of a paradox.

With no official information from the FIM, who run the disciplinary process, we are left to our own devices. Without confirmation of what is actually happening, or planned, we have only conjecture, speculation, rumor, and the information supplied by parties who may or may not have an ax to grind.

Read the ...ing source

Leaving that aside, I would once again recommend that people take the time to read the decision of the MotoGP Court of Appeal (PDF). The decision is relatively simply and clearly written, and lays out the facts of the case, and the basis for the court's decision. Legal jargon is kept to a minimum, and is mostly self-explanatory where used.

There are a few things in the decision worth picking out for further discussion. The first is the submission by Marc Marquez that he took the decision not to race in Argentina independent of and unrelated to the injuries he sustained in the crash.

Injury timeline

There are a few things that bear out this timeline. The official results of the race, drawn up by the official timekeeper, records that Marquez crashed out of the race at 14:07'51. The Falls Report, the Dorna report drawn up cataloging all of the crashes during an event, notes this as MEDICAL, which means he received medical attention and was referred to the circuit medical center.

The Notification of Sanction of the penalty, issued by the FIM Stewards, has Andres Somolinos, one of the Stewards, recording the time the notification was issued as 15:13 local time. That means that the hearing would have been held before that.

The official MotoGP Twitter account tweeted a medical update stating that Marquez had a possible fracture in his right thumb at 15:07 local time. They then followed it up at 15:13 with information that he had been declared unfit.

From this, it is unclear whether Marquez already knew whether he would be able to race in Argentina or not when he went into the Stewards hearing. Marquez must have known he was in pain and there was something wrong, but he did not decide to have surgery until later that evening. Without clear evidence, the MotoGP Court of Appeal had to assume good faith on the part of Marquez.

New protocol

Related to this is the distribution of an undated document titled "FIM MotoGP Stewards Information, Penalties Protocol Summary 2023 Season". This was sent to the teams on March 30th, two days after the FIM Stewards issued the revised penalty, which the Repsol Honda Team appealed.

This protocol set out clearly that the intention of the Stewards is that penalties must be served. If a rider is injured in a crash for which they receive a penalty, the rider will serve that penalty in the next race they participate in. However, if a rider misses a race due to an unrelated injury – a crash in a different session, or perhaps the result of a training crash – then the penalty will be deemed to have been served at the race the rider misses.

The MotoGP Court of Appeal expresses sympathy for the principles set out in that protocol, but states once again that this principle was stated after the penalty had been changed. Marquez had a right to make decisions based on all the information at hand, and this new protocol was only issued afterward.

The precedent set by this explicit statement could, however, have a bearing in cases to be brought in the future. The principle of serving a penalty issued, even if a rider misses a race through injury, has been established, making it harder to appeal against a change of the wording of a penalty notice if the Stewards get it wrong the first time. That is new.

The FIM press release issued today appears below, with a link to the full PDF of the decision:

The MotoGP Court of Appeal issued its final decision on the Application of the Sanction in Marquez’s case

Following the provisional decision of the MotoGP Court of Appeal pronounced on 12 April 2023 granting the stay of execution of the Application of the Sanction imposed on Marc Marquez, the Court still had to decide on the merits of the case considering inter alia the brief of appeal submitted by Marc Marquez and Team HRC – Repsol Honda Team on 17 April 2023.

The Court decided to annul the Application of the Sanction imposed on Marc Marquez, which was issued by the FIM MotoGP Stewards Panel in connection with the Original Sanction.

The Court considered that the Double Long Lap Penalty imposed on Marc Marquez by the FIM MotoGP Stewards Panel during the MotoGP Race of Portugal held on 26 March 2023 has been served by the non-participation of the Rider in the 2023 MotoGP Race of Argentina.

Marc Marquez is hence allowed to compete in the next race in which he will be able to participate, without any further sanction.

Read the full decision of the MotoGP Court of Appeal in attached file.