Is A Contract Really A Contract?

James Hinchcliffe

It’s a fabulous time to be a motor racing lawyer, not such a great time to be an IndyCar driver.

In the weeks and months following IndyCar’s September season finale, do you wonder just how many times the phone lines were burning up between drivers and their attorneys? In light of James Hinchcliffe getting demoted from his race seat at Arrow McLaren SP, went something like, “I know I have a contract with Team X, but does it explicitly state that Team X must put me in a car to drive at every race?”

Just prior to Thanksgiving, another flurry of calls surely were made as the same drivers, and more who had a new reason to be concerned, were shaken as they learned of Sebastien Bourdais’ ouster from Dale Coyne Racing.

Sebastien Bourdais

Imagine how many hours were invoiced, billed at $500 apiece, by those lawyers as their driver clients rang and posed variations on the same question: I know Bourdais had a contract to drive in 2020, but even that wasn’t enough to keep him in the car…so can my team do that to me?”

And imagine the helpless feeling when those drivers — even the champions and Indy 500 winners in the field — were told the ugly truth: Despite the services of amazing legal minds who craft iron-clad contracts, when a team owner wants to make a change in the cockpit, well, contracts be damned, it’s going to happen.

The power, as drivers have been reminded with each alarming press release, rests with the men and women who sign their paychecks. There’s no need for the owner of Team X to search for ways to wriggle out of a contract with a driver who’s fallen out of favor, or whose salary has become burdensome. In every instance, the owner’s vast bank account is the winning argument. It’s in the differing financial resources where drivers are destined to lose the employment dispute.

True, some drivers have done an amazing job of saving their salaries, made wise investments and stockpiled millions of dollars for retirement. And in almost every case, they’d be bled dry by legal fees if they elect to sue for lost compensation. When one side has 1000 bullets and the other is starting with 10, the white flag of surrender gets raised before the war begins. For those who choose to fight, prepare to sell the nice house, enroll the kids in public school and say goodbye to that comfortable lifestyle.

Ryan Hunter-Reay

In a prolonged court battle with those worth anywhere from tens of millions to billions, a driver’s ammunition runs dry at a startling rate. Still, some have refused to lay down and in the best-case scenarios, once lawyers have been paid and court fees were deducted, they may have broken even. The only true outlier is found with Ryan Hunter-Reay and the former Rocketsports Champ Car team, where more than a decade was spent in court and, despite receiving a sizable award by the judge, RHR lost a year and a half on the sidelines and bounced around between three teams until finding stability at Andretti Autosport.

Some 12 years after being replaced by a paying driver at Rocketsports, justice was delivered in Hunter-Reay’s favor. Ask him about the brutal span from late 2005 to mid-2007 when he was experiencing the depths of unemployment, and you might get the impression the money that appeared from Rocketsports in 2017 will never erase the emotional toll that came when his contract was ignored.

And that brings us back to the two men whose stories have scared the bejesus out of their fellow drivers. Other than polite words on social media wrapped in the rallying cry of “Challenge Accepted,” Hinchcliffe has gone quiet since his seat evaporated at AMSP.

Hinchcliffe’s situation has a rare twist to consider; with a valid contract, the team has offered to pay his salary which, for those who don’t understand the heart of an athlete, wasn’t received as a happy alternative to driving. Getting paid to watch others race isn’t a positive to a professional driver.

At least on the legal side, Hinchcliffe has imagined the nightmarish scenario and costs involved with fighting the decision in court and reached the conclusion that it would be wiser and easier to search for sponsorship and find a new home in the paddock. As his hunt continues, the kind Canadian has maintained something close to a vow of silence. It’s how the game is played.

Bourdais has followed the same script, using social media to make a single statement that said nothing negative about his former team while declaring his intent to continue in IndyCar.

Drivers have two realistic avenues to pursue when a Hinchcliffe- or Bourdais-like situation presents itself, and only one will work in their favor. There’s the nuclear option with trying to get one’s job back through blackmail, which involves chronicling all of the misdeeds, lies, and bad behavior they’ve endured, and threatening to expose the team owner through the media. Bringing shame and embarrassment to a team owner, and the team’s sponsors, by going public might sound like a sharp tactic to consider, but it’s a career killer.

Whatever sympathy might be curried among fans would pale in comparison to the reaction from the rest of the team owners, who’d have to wonder if they’d be on the receiving end of the same public humiliation if things went sour with the driver in question. Forget whether a driver has the right to reveal all the ways they’ve been wronged by a team owner; do it once, and you become a threat.

The second option, which has been taken many times, involves being muzzled for money. Air your grievances to the world, and you won’t receive a penny of what you’re owed. Keep your mouth shut, stay off of social media, and you might be able to negotiate a 50-percent buyout.

Facing the need to pay mortgages, private schools, support parents or siblings and cover all the other monthly drains on a savings account, most drivers bend the knee and take whatever settlement they can get. The uncomfortable dance is the best outcome most drivers can hope for when they find themselves with a contract in hand and someone else’s name on the car they were meant to race.

The silence from Hinchcliffe and Bourdais reveals another uncomfortable reality with racing contracts. In a form of the sport that lacks a union for its athletes, there’s no leverage to apply when you’re benched in favor of a new prospect, or get cut to keep the budget from turning black to red.

As Formula 1 teams elevated the poaching of drivers and senior technical staff into an art during the early 1990s, the FIA created the Contracts Recognition Board, which proved useful when unruly behavior disrupted the paddock. Rather than pour untold millions into legal scrums between Team A and Team B, the CRB was employed to resolve the bad behavior and rule in a timely and cost-effective manner.

Whenever a stick-and-ball athlete is thrown into a contractual dispute, it’s not uncommon to hear the names of the National Football League Players Association, or the National Basketball League Players Association mentioned as the watchdog organizations who lead vigorous fights on their behalf. In IndyCar, IMSA and NASCAR, and every other series that comes to mind, there’s no union to call when things go sideways with an owner.

Without a powerful union to provide protection, drivers are left to choose between risking financial peril or accepting a token buyout that comes with a big piece of tape across their mouths.

It could be nothing more than a coincidence, but Hinchcliffe and Bourdais, the two who’ve pushed the hardest throughout the 2010s for the proper treatment of drivers and improvements in driver safety, are now on the outside looking in.

In an opinion piece filed to RACER in September of 2018, Hinchcliffe presented a compelling argument for the creation of the protective body that could have served him, Bourdais, and others in the future.

“The goal is not for us to be stomping our feet and screaming, ‘this is not right’ and talking about boycotting races,” he wrote.

“We don’t want to be officiating or writing the rules — letting drivers do that would be the worst thing you could go and do! The Grand Prix Drivers’ Association in Formula 1 is more geared toward allowing drivers to have a say in conversations about the sport itself, and it is certainly very effective for some things. But it doesn’t protect drivers in the sense that I would like to see, and the way that other players unions do. I do think it’s important that we have a voice, and that we make sure that the drivers are being looked after the way that athletes are in other pro sports.”

Drivers suffered from a lack of imagination before the contractual strife cropped up in October and November. For those who entertained the naive notion of, “There’s no way it could happen to me,” ask one of IndyCar’s most popular drivers and the series’ last remaining link to Canada whether it’s possible. Or ask the four-time champion who was sought by Chip Ganassi to pair with Scott Dixon in 2018, and again in 2019, and was pursued a few months ago by McLaren to replace Hinchcliffe, only to have his team owner shoot down all three opportunities for the Frenchman to close his IndyCar career in style.

“I’ve talked about this with some of the other drivers in IndyCar, and the feedback I’ve gotten has been mostly positive,” Hinchcliffe continued. “The issue is that drivers are terrified of angering team owners. They don’t want to lose their job. And that makes sense; nobody wants to lose their jobs. I’m no different.”

It’s no surprise to learn that in the 13 months between Hinchcliffe’s impassioned argument and his benching by AMSP, the concept of drivers banding together for their collective betterment went absolutely nowhere.

What’s happened to Hinchcliffe and Bourdais is done, and there’s no turning back. The support for both drivers from fans and rivals has been heartwarming, but goodwill isn’t a currency that holds value. Will they find full-time IndyCar drives in the future? It’s impossible to say at this point, but meetings continue to take place that offer glimpses of encouragement.

And will this happen again at the end of the upcoming season? That’s the lingering area of concern.

A worrying precedent has been set with Hinchcliffe and Bourdais. If you’re a driver whose appearances in victory lane have been far too infrequent, or your finishing position in the championship has been underwhelming, don’t look to that multi-year contract as your savior next September when Team X announces it has hired someone younger or wealthier as your replacement.

Most owners are never mentioned in these disputes, which deserves praise and respect. Coincidentally, those also tend to be the team owners who achieve the highest degree of success. But elsewhere, and until drivers form a coalition, or IndyCar steps in with a CRB of its own to restore the lost value of contracts, the same old story will continue be written.

“There needs to be some sort of mechanism that protects the people that are out there risking their lives to put on a show for the fans, and support the sponsors, and all the rest of it,” Hinchcliffe warned. “Drivers feel very disposable at the moment. And it’s heartbreaking.”

Editor’s Note:

It is quite unfortunate that even though the 14th Amendment declares equal protection under the law for all, it is not always the case. In this country we more or less live under “The Golden Rule”! There is just one small twist in that Golden Rule theory in this country.

The” Golden Rule”, in this country, means that those with the gold rule!


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