Clause 5.2
Binds the teams to not participate in any other race, competition, exhibition or championship for open wheel single seat
cars other than formula one, or a race for cars complying with a current FIA Formula (for instance, Formula 3000).
Clause 5.3
The teams undertake to participate each year for the duration of the agreement.
Clause 5.3.1 refers to obligations that teams have.
I suspect this is the place for reference to competing in all events in the previous year except by 'force majeure'.
Clause 5.3.2 states that the signatories agree to provide a third car if the number of cars entered for a race
falls below a certain point.
Clause 5.4 refers to the obligations of the FOA, including:
- must administer all the activities of F1 on a season-long basis.
- It must take all reasonable steps to maintain the value and prestige of F1 as a global sporting spectacle.
Clause 5.4(c)
FOA also undertakes to each team that it will enter into Grand Prix contracts with the promoters who are to host a formula
one Grand Prix during the term of the 1998 Concorde Agreement.
Clause 5.4(d)(ii)
FIA and FOA undertake to the formula one teams that the championship will be shown free to air where there are suitable
broadcasters prepared to do this.
Clause 5.5
FIA warrants that all FIA rights will be granted to FOA for exploitation in order to make payments to the teams as
provided by schedule 5 of the agreement.
Clause 5.6
The FIA is to ensure that the clauses of the agreement are respected.
[1, 3, 4, 27]
By letter dated 28 July 2000 from FIA to the signatory teams to the Concorde Agreement and to FOM (formerly
named FOA), FIA unilaterally waived its right to enforce the provision in clause 5.2.
FOA did the same by a letter dated 1 September 2000 to the signatory teams to the Concorde Agreement and FIA.
[1, 2]
The bankruptcy of the Arrows team brought to light that in Clause 5 of the agreement there are a number of
mutual undertakings including the commitment by teams to compete until the end of the deal, unless prevented from
doing so by force majeure. Financial problems are not considered to be force majeure.
[5, 15]
There are further undertakings in Clause 5 in which teams accept that they must fulfil certain criteria,
one of which requires the team to have participated in each event in the previous year unless prevented by force
majeure. Arrows clearly did not do this although it has argued that it was restrained from doing so by force majeure.
The legal definition of force majeure is accepted to be unforseeable circumstances which prevent someone from
fulfilling a contract. This includes fires, floods, earthquakes, wars but does not include financial difficulties.
[13]
Clause 5 also contains a "Don King" clause:
The "Don King" clause gives the FIA the power, among many other things, to terminate even SLEC's existing
lease on F1's broadcasting and other commercial rights - which formally expires in 2010 - in the event of a
change of control which it deems not in the best interest of F1.
[23]
Max Mosely also refers to it in an interview:
Question: If the Kirch Group goes broke, this could mean that the Formula One rights are hawked around like a packet of chips?
Max Mosley: Yes, that could happen. Up to a point, we have a right of veto, we still have the ‘Don King clause’ in there.
It’s not that simple. They can’t just go off and sell it.
[24]
Judging by other text in [23], I'm assuming this right to terminate the lessee (currently SLEC) comes under Clause 5.4