By Dean AdamsPlease find below the statement from the FIM:
On 26 March 2023, in the MotoGP™ Race of the Grande Premio Tissot de Portugal, the FIM MotoGP™ Stewards Panel imposed a Double Long Lap Penalty on Mr Marc Marquez, Rider #93. On 28 March 2023, the same FIM MotoGP™ Stewards Panel notified the Application of the Sanction imposed on the rider to clarify the scope of its applicability.
Following the appeal from the rider and the HRC – Repsol Honda Team against the Application of the Sanction, the FIM Appeal Stewards decided to refer the case to the MotoGP Court of Appeal on 29 March 2023.
As a result, the MotoGP Court of Appeal ruled on the request to stay the execution of the Application of the Sanction submitted by the Appellants.
A decision granting the stay of execution of the Application of the Sanction was rendered on 12 April 2023 and notified the same day to the Appellants. A final decision on the appeal will be rendered in due course.
*************
DECISION OF THE MotoGP™ COURT OF APPEAL
Sitting in the following composition:
Mr Sakari VUORENSOLA (Chairman)
Mr Robert HOFSTETTER
Mr Marek MALECKI
in the case:
Championship: 2023 FIM Grand Prix World Championship – MotoGP
Event: First round of the 2023 season of the FIM Grand Prix
World Championship – MotoGP™, held on 24 – 26
March 2023 in Portugal (MotoGP™ Race of the Grande
Premio Tissot de Portugal)
Appellants: Mr Marc Marquez, rider #93 of the MotoGP™ class, and
his team HRC – Repsol Honda Team
Case concerns: Appeal before the FIM Appeal Stewards against the
Notice of Application of the Sanction issued by the FIM
MotoGP Stewards Panel on 28 March 2023 in
connection with the previous Notification of Sanction
issued by the same FIM MotoGP Stewards Panel on 26
March 2023
The Notice of Application of the Sanction clarified the
application of the Notification of Sanction which
imposed a Double Long Lap Penalty on Mr Marc
Marquez
The appeal was referred by the FIM Appeal Stewards
on 29 March 2023 to the MotoGP Court of Appeal
pursuant to Article 3.3.3.2 of the FIM Grand Prix World
Championship Regulations
DECISION OF
THE MOTOGP COURT OF APPEAL
2
1. Pursuant to Article 3.3.5.3 of the FIM Grand Prix World Championship
Regulations (hereinafter referred to as “the Regulations”; all references to
Articles in this Decision are references to the Regulations unless otherwise
indicated), the MotoGP Court of Appeal adjudicates upon request of the FIM
Appeal Stewards.
2. This case was referred to the MotoGP Court of Appeal on 29 March 2023 by
decision of the FIM Appeal Stewards in accordance with Article 3.3.3.2.
3. On 29 March 2023, by virtue of Article 3.3.5.1, the FIM Legal Director appointed
the judges constituting the MotoGP Court of Appeal for this case. No objections
were raised with regard to the composition of the MotoGP Court of Appeal
(hereinafter also referred to as “the Court”) pursuant to Article 3.3.5.2.
4. On 26 March 2023, the FIM MotoGP Stewards Panel decided to impose a
Double Long Lap Penalty (hereinafter also referred to as “the Original
Sanction”) on Mr Marc Marquez, rider # 93 (hereinafter also referred to as “the
Rider”) for the infringement of Article 1.21.2 (irresponsible riding causing
danger).
5. On the same date, the Original Sanction was notified to the Rider at 15:13
directly at the event venue by the Notification of sanction (hereinafter “the
Notification of Sanction”). The wording of the Notification of Sanction indicated
that the Original Sanction was to be executed at the next MotoGP Race, i.e. the
“Gran Premio Michelin® de la República Argentina” (hereinafter referred to as
“the MotoGP race in Argentina”).
6. The Rider did not lodge an appeal against the Original Sanction.
7. On 26 March 2023, the Rider underwent surgery and ultimately decided not to
participate and compete in the MotoGP Race in Argentina.
8. On 28 March 2023, the same FIM MotoGP Stewards Panel issued a notification
called “Application of the sanction imposed on Marc Marquez, Rider #93,
by the FIM Stewards Panel” (hereinafter referred to as “the Application of the
Sanction”).
I. JURISDICTION
II. FACTUAL BACKGROUND
III.
3
9. The wording of the Application of the Sanction pronounced on 28 March by the
FIM MotoGPTM Stewards Panel following its above-mentioned decision of 26
March 2023, read as follows: “The FIM MotoGPTM Stewards Panel hereby
clarifies its decision as regards applicability. Considering the injury and
non-participation of Marc Marquez, Rider #93, at the GRAN PREMIO
MICHELIN® DE LA REPÚBLICA DE ARGENTINA, and with a view to comply
with the intention underlying the decision taken by the FIM MotoGPTM Stewards
Panel, the Double Long Lap Penalty shall be served by the Rider at the next
MotoGPTM Race in which he will be able to participate.”
10. On 29 March 2023 the Rider and his team (HRC – Repsol Honda Team)
(hereinafter referred to as “the Appellants”) filed an appeal against the
Application of the Sanction before the FIM Appeal Stewards and submitted a
statement of appeal along with four (4) Annexes (hereinafter altogether referred
to as “the Statement of Appeal”).
11. In the Statement of Appeal, the Appellants requested, in addition to the appeal
on the merits of the case, a provisional stay of the execution of the Application
of the Sanction until a final and definitive decision on the appeal is issued.
12. The FIM Appeal Stewards, on the same day (i.e. 29 March 2023), considering
the circumstances of the case and the legal issues raised in the Statement of
Appeal, decided, pursuant to Article 3.3.3.2, to refer the case to the MotoGP
Court of Appeal to rule on the case.
13. The Court issued its Procedural Order Nº 1 on 4 April 2023 and requested, inter
alia, the Appellants to submit justifications for the request for the stay of
execution by 6 April 2023. The Appellants submitted such justifications within
the deadline prescribed.
14. The Appellants request, in accordance with Article 3.4.5, that the Court
provisionally stay the execution of the Application of the Sanction until a final
and definitive determination on the Appeal is issued.
15. In support of the request for the provisional stay, the Appellants submit that a
prima facie analysis of the merits of the case shows that there is a reasonable
chance of success for the appeal (‘likelihood of success test’). Furthermore, the
Appellants submit that the stay of execution is useful and indispensable for
protecting the rights of the Rider from irreparable harm in the 2023 Grand Prix
World Championship, and finally that the interest of the Rider as to the
irreparable harm outweighs the interest of the FIM in this case.
16. As regards the chance of success, the Appellants argue that by the Application
of the Sanction the FIM MotoGP Stewards Panel unilaterally and ex post facto
amends the Original Sanction imposed on 26 March 2023. This infringes the
III. SUBMISSIONS OF THE APPELLANTS
4
right of the Rider to a due process as well as the principle of legal certainty,
since the Original Sanction was not appealed and, therefore, became final.
17. As regards the irreparable harm for the Rider, the Appellants argue that if the
Rider had to complete the two Long Lap Penalties in the following MotoGP
Race in which he will be able to compete, this would inevitably and irremediably
have a direct impact on the Rider’s timing and championship standing in said
race as well as the Team’s and Rider’s position in the 2023 Grand Prix World
Championship.
18. In accordance with the Appellants’ reasoning, such irreparable harm for the
Rider and the Team outweighs the interest of the FIM in maintaining the statu
quo.
19. This Court considers that it may, in accordance with Article 3.4.5, decide by
injunction on the provisional stay of the execution of the Application of the
Sanction, if it is established that such stay is justified, prima facie, in fact and in
law (fumus boni juris) and that the interests of the Rider and those of the Team,
in order to avoid irreparable harm, outweighs the interest of maintaining the
statu quo.
Reasonable chance of success (prima facie)
20. As regards the condition relating to the establishment of a prima facie case, the
Court is satisfied if at least one of the justifications relied on by the Appellants
in support of the claims on the merits of the case does not appear, prime facie,
unfounded. This is the case, inter alia, where one of the justifications reveals
the existence of complex legal issues for which a solution is not immediately
obvious.
21. In the present case, the Court notes that already the FIM Appeal Stewards, in
their decision dated 29 March 2023, have considered the circumstances of the
case as well as the legal issues raised by the Appellants as valid reasons
justifying their decision to refer the case to the MotoGP Court of Appeal. This
is an indication revealing the complexity of the legal issues for which no
immediate and obvious solution was available for the resolution of the case at
hand.
22. To establish the existence of a prima facie chance of success, the Appellants
rely on the fact that the Original Sanction was not appealed and, therefore,
became final (res judicata). Thereafter, the Original Sanction shall no longer be
challenged by the Rider nor revised or modified by the FIM MotoGP Stewards
Panel. Therefore, the “clarification” of the Original Sanction (i.e. the Application
of the Sanction) infringes the principle of legal certainty because it modifies the
Original Sanction.
IV. ASSESSMENTS BY THE COURT
V.
VI.
5
23. In the light of the foregoing considerations, it must be concluded that the
requirement that a prima facie case be established has been satisfied in this
case.
Irreparable harm
24. As regards the condition relating to the establishment of the interests of the
Appellants to avoid irreparable harm, the Court considers that it is for the
Appellants to prove that they cannot wait for the outcome of the main
proceedings without suffering damage of serious and irreparable nature. To
establish the existence of serious and irreparable damage, it is not necessary
for the occurrence of the damage to be demonstrated with absolute certainty.
It is sufficient that it be foreseeable with a sufficient degree of probability.
25. In the present case the Court notes the Appellants’ assertion that the
consequence of completing the Double Long Lap Penalty in the next MotoGP
Race would impact the Rider’s ability, for example, to outrun other riders and
thus his position in the race standings. Such consequences cannot be undone
if the Court subsequently rules on the merits of the case in favour of the
Appellants.
26. Therefore, it must be concluded that the requirement that a serious and
irreparable harm be established has been satisfied in the present case.
Balance of interests
27. As regards the weighing up of the interests and risks attached to each of the
possible solutions, the Court considers that this involves examining whether the
interests of the Appellants in the stay of execution of the Application of the
Sanction outweighs the interest of maintaining the statu quo.
28. In the present case, the Court notes that should it, later in the main proceedings
on the merits of the case, decide to reject the appeal of the Appellants, it still
has an option to order the Rider to serve the Double Long Lap Penalty in any
of the forthcoming MotoGP Races throughout the 2023 season.
29. Furthermore, the Court is also aware of the fact that Article 1.19.2 foresees an
alternative solution for cases where a Long Lap Penalty cannot be carried out
before the end of the race or where the race is interrupted prior to the
completion of the Long Lap Penalty. In such cases, an equivalent time penalty
will be inflicted to the rider concerned. The Court could use this provision of the
Regulations by analogy and, thereby, provide an alternative solution for this
case.
30. In those circumstances, it must be concluded that the balance of interests leans
in favour of granting the stay of execution as requested by the Appellants.
6
On these grounds,
The MotoGP Court of Appeal rules that:
The execution of the FIM MotoGP Stewards Panel Notification of
28 March 2023 related to the Application of the Sanction imposed on
Mr Marc Marquez issued in connection with the previous Notification of
Sanction by the same FIM MotoGP Stewards Panel of 26 March 2023 is
ordered to stay until the appeal submitted by Mr Marc Marquez and the
HRC – Repsol Honda Team is finally resolved.
Pronounced on 12 April 2023
On behalf of
MotoGP Court of Appeal
[Signed]
Saka
