Following on from our article, "Victory breakdown - Was it sabotage?" LINK the UIM Executive Committee have now issued their findings and penalties following the complaint made by the Victory Team against Luca Formilli Fendi (Fendi Racing Team Owner) Claudio Baglioni (Fendi Racing engineer).
The grounds for the complaint;
On 18th October 2014 on the occasion of the UIM Class 1 event in Terracina / Italy the Plaintiff filed a complaint with the UIM Commissioner.
The Plaintiff had detected an intruder by a surveillance camera who manipulated the drop boxes (transmissions) of the plaintiffs boat no 3. The plaintiff identified the intruder as the Defendant #1 who was the crew chief of the Defendant #2. Upon inspection of the drop boxes the plaintive detected a considerable amount of a substance that seemed to be abrasive paste. He incurred costs of about 20.000,00 EUR for the disassembly cleaning, exchange of bearings and other parts and the reassembly of the drop boxes said the plaintiff.
In the hearing the video footage of the surveillance camera was inspected.
The Defendant #1 admitted to have poured material in to the drop boxes of boat no 3 of the Plaintiff. He explained that he wanted to destroy the Plaintiff's drop boxes in order to search for revenge for a Plaintiff's behaviour that was unfair according to his perception.
On the occasion of the previous race in Ibiza the Defendant's #2 boat suffered an engine damage that could be fixed and a damage of one drop box that could not be fixed due to missing spare parts. The Plaintiff rejected a request of the Defendant #2 to lease the spare part to him and thus the Defendant #2 could not race on Sunday.
Since the Defendant #2 found that the Defendant #1 would be responsible for the damages, he downgraded him from crew chief to mechanic.
The Defendant #1 said that all this motivated him to commit the act of sabotage.
He confirmed that he acted autonomously and that the Defendant #2 was not informed about this.
The Defendant #1 declared that he regrets what happened and asked the Plaintiff to excuse the damage of the drop boxes. The Defendant #1 furthermore agreed to pay a lump sum of 20.000,00 EUR to the Plaintiff as compensation for their losses.
The Defendant #2 agreed to guarantee this payment upon request of the UIM Executive Committee and a respective agreement was signed with the Plaintiff. He did this without prejudice and without acknowledging any legal obligation but with regard to rule 36.05 paragraph 8 of the UIM C1rules (pg. 431).
The Defendant #2 declared that he was neither involved in any way nor informed about the Defendant's #1 plans. He became only aware about the sabotage when the UIM Commissioner showed him the surveillance video.
By pouring a harmful substance into the Plaintiffs drop boxes the Defendant #1 committed a deliberate act and is thus subject to a penalty according to rule 406.03of the UIM Offshore rules and articles 1.2, 1.4, 2. a) and 3. c) of the UIM Code of Ethics.
The act of sabotage committed by the Defendant #1 is to be characterized as unfair and dangerous to an extremely high degree. Thus the highest penalty as foreseen by the rulebook would be justified in case of the absence of mitigating circumstances. The most severe penalty is the exclusion according to rule 406.09, a lifetime ban from all UIM activities.
By admitting the offence, apologizing and in particular by accepting to pay a lump sum of 20.000,00 EUR to the Plaintiff in order to compensate him from his losses the Defendant #1 created mitigating circumstances that need to be considered. Thus the Hearing Panel finds a prolonged suspension of 5 Years according to rule 406.08 of the UIM Offshore rules adequate.
With regard to the Defendant #2 the initial suspicion that he was involved into the act of sabotage could not be established. The Defendant #1 clearly stated that he acted autonomous and without any involvement of the Defendant #2 and that he did not inform the Defendant #2 of his plan to damage the Plaintiff´s boat. Further to the fact that the Defendant #1was a member of the Defendants #2 team there is no evidence for any involvement of the Defendant #2. Thus any involvement of the Defendant #2 could not be established and therefore he bears no personal fault for the infringement.
Nevertheless he is not free of any responsibility.
The responsibility of the team owner for their team's conduct at an event is laid down in paragraph 8 of rule 36.05 part 3 of the UIM C1 rules (pg.431). Rule 36.05 concerns mainly post race technical scrutineering and the responsibility for the technical compliance of a boat. But the last sentence of paragraph 8 concerns the general conduct of the team members. This clause is not limited to the technical compliance of a race boat but intends to put the burden being responsible for the general behaviour of the team members upon the team owner. This becomes clear by the wording which is as follows: “The Owner is also responsible for their teams conduct at an event.”
By using the term “also” the rule makes clear, that a responsibility additional to the responsibility for technical compliance shall be created for the team owner. The addition is the conduct of the team and is to be understood as general behaviour.
This is backed by the spirit of the rules and general legal principles.
This principle can be found even clearer in rule 36.05 of the UIM X Cat rules since the relevant paragraph has an own headline named “Team responsibility. Likewise rule 1300 S 6 c) of the UIM Stock rules determines the responsibility of the team for acts of their members.
It is a general principle of law that an entity is in general responsible for its members. This is justified by the fact that the entity and likewise the team owner select the persons of their members and direct them how to act and what to do. Furthermore the members act for the benefit and often on behalf of their entity. All other teams in involved persons can be affected by a wrong selection or instruction as this case shows.
As a penalty is not specified for the respective infringement the hearing panel shall choose among possible penalties the most proportional and adequate penaltly (1.2,3.c) of the UIM Code of Ethics, 406.01 Offshore rules).
Of course and since the personal fault of the defendant could not be established, a milder penalty than against Defendant #1 was to be issued against the Defendant #2.
His willingness to guarantee for the payment of 20,000.00 EUR in order to compensate the Plaintiff for his loss is to be taken into account considerably as mitigating circumstance.
On the other hand and further to the loss suffered by the Plaintiff the UIM incurred costs for the hearing as a result of the offence for which Defendant #2 is responsible according to the rules.
Taking into account that the Defendant #2 did not benefit in any way from the act and that he bears no personal fault for the Defendant's #1 offence the imposition of a penalty that affects his chances in the championship seems to be inadequate.
Finding a penalty that compensates the losses suffered by the UIM due to the respective procedure seems to be most fair after all.
Thus a fine of 6,000.00 EUR relative to UIM's cost for the hearing seems to be the fairest penalty against Defendant #2.
In addition it had to be clarified that any reoccurence of similar offences by the Defendant's #2 team will lead to a heavier penalty.
On the basis of the documents, the video received and of the hearing the UIM Executive Committee decided:
1. A prolonged suspension of five years according to article 406.08 of the UIM Offshore rules is imposed against Mr Claudio Baglioni. He is banned from all activities in connection with UIM governed events during this period. He may participate or be a team member in UIM governed activities only after 02nd December 2019.
2. Mr. Luca Formilli Fendi is convicted to pay a fine of 6.000,00 EUR to the UIM.
3. Mr. Luca Formilli Fendi is noticed that UIM will issue a heavier penalty against him if any further offence by a member of his team will occur again.