There is going to be a lot of disappointment out there for anyone who expects Formula One's boss Bernie Ecclestone will be locked up at the end of the trial, which begins today, of the sport's former chairman Gerhard Gribkowsky.
Ecclestone has been accused of paying a $44m bribe to the German whose former employers, state-owned bank BayernLB, claim that he cost them $66.4m in damages. But, as Pitpass' business editor Christian Sylt reveals in a report in the Independent today, not only is there no chance of the prosecutors reclaiming all the damages in the trial but there is no chance of Ecclestone being forced to pay a penny of it let alone get locked up. As Sylt explains, if, and only if, Gribkowsky is found guilty of receiving a bribe will the prosecutors be able to go after Ecclestone and the chances of them succeeding in that are slim to say the least.
Gribkowsky's position as F1's chairman came through the fact that BayernLB held a 47.2% stake in the sport's holding company SLEC. Prosecutors allege that when BayernLB was in the process of selling its shares to current owner, the private equity firm CVC, Gribkowsky informed the bank's board about two deal-breakers. The first was paying $25m to Ecclestone's family trust to settle a loan it had given to SLEC in 1998.
The second was paying Ecclestone 5% commission on the sale which came to a total of $41.4m. Ecclestone says he was paid this for facilitating the sale and for giving BayernLB "an indemnity for an awful lot of money that all the accounts were in good order because the bank would not give it." At the time of the sale to CVC F1 was in a state of disarray with teams threatening to leave the sport but Ecclestone says he vouched for its health.
Unbeknownst to BayernLB, following the sale, Gribkowsky received a total of $44m from the trust and Ecclestone who says the banker was paid the money because he threatened that he would otherwise report false allegations about his financial affairs to the Inland Revenue. It gave Gribkowsky a big boost to his €500,000 salary and bonus capped at €80,000.
The prosecutors claim that, in fact, Ecclestone and the trust requested the payments from BayernLB to compensate for giving $44m to Gribkowsky and if the bank had known about this it would not have paid them. "They are saying that if they hadn't paid me a commission that money would have been in their hands. But if they hadn't have paid me a commission they would still have the company. It wouldn't have been sold," says Ecclestone.
As a result of the payments to Ecclestone and the trust, the prosecutors say that BayernLB incurred damages of $66.4m. They add that if Gribkowsky is found guilty, the $44m he received must be paid to the bank since it came from the sale of its shares. Gribkowsky allegedly only agreed to sell to CVC if he was paid the money yet he should have done this regardless since the private equity firm was the highest bidder. This is the driving force behind the prosecutors' allegation of bribery.
A spokesman for BayernLB says that internal and external investigations have found that the sale process followed correct procedure, the amount received met the bank's expectations and the fee paid to Ecclestone was not abnormal. However, he adds that "if the prosecutor finds out that Gribkowsky got money connected to this deal then this money has to go to BayernLB."
Gribkowsky's assets have been frozen and if he is found guilty he will lose the $44m. However, this would leave a $22.4m shortfall from the $66.4m allegedly lost by BayernLB. Ecclestone and his family trust received the $66.4m but prosecutors would have no power to take it even if it is ruled that Gribkowsky was paid a bribe.
This is because Ecclestone and representatives of the trust have simply been called as witnesses in the trial but have not been charged. So if Gribkowsky is found guilty of receiving a bribe, the prosecutors would have to sue Ecclestone and the trust to recover the remaining $22.4m. It is hard to see how this could succeed if the trust has evidence that SLEC owed it money and if Ecclestone can prove he did what was required to earn the commission.
In a nutshell, if Ecclestone can prove that he really did broker the sale to CVC and act as a guarantor then it would seem that the prosecutors have no valid argument to get the money he was paid by BayernLB. This is because the bank agreed to pay Ecclestone the money for doing this and its spokesman adds that "the fee to Ecclestone was agreed [by BayernLB] and Gribkowsky showed this to the other board members when he paid it." It doesn't matter that Ecclestone paid the money to Gribkowsky so long as he received it for a legitimate reason. Complaining about what Ecclestone did with the money would be like saying someone who receives state benefits for being paralysed shouldn't spend them on gambling.
The very fact that Ecclestone has not been charged speaks volumes about whether the prosecutors really have any valid claim against him. Likewise, BayernLB's investigators presumably checked that Ecclestone did what was required to receive the payment and they have confirmed nothing untoward went on.
CVC will be watching with interest from the sidelines because the case poses an obstacle to it selling its asset. As Pitpass has reported, it has until 2018 to do it so there is no rush. Likewise, the trial will involve around 40 witnesses over 26 days. It finishes in January so there are still many laps to go before this one comes to a conclusion.