America's Cup - Jury Chairman speaks up on AC45 controversy - Part 2

by Richard Gladwell, Sail-World.com NZL on 11 Aug 2015 International Jury Chairman, David Tillett continues with Part 2 of the ongoing kingpost and measurement hangover from 34AC

To read Part 1 of this story click here

Held in June 2012, Newport RI, was the first of four America's Cup World Series regattas at which the five alterations to the three AC45's took place. The other regattas took place in San Francisco (2) and the final one in Naples in April 2013.

'Richard Slater is the long-standing rules adviser to Oracle Team USA and its predecessor. The Australian is also an ISAF certified Int Umpire and Int Judge being first certified in 2003 and 2004 respectively. He is qualified to the same level as the International Jury members.

“Richard Slater was supposed to be the go-to guy for rules advice. He would also walk around in the compound and talk to team members. He had a close connection with the sailing and shore crew. He says he knew nothing about it, and we had no reason to doubt him. ”

One of the memos produced in the Tienpont allegations case from Richard Slater to Matthew Mitchell is a suggested text to be emailed to Measurer Nick Nicholson. It lists four modifications to the BAR AC45 – the adding of weight to the kingpost and other changes picked up by the Jury are not listed.

“Others in the team claimed they had assumed that the illegal changes were OK because in their view they must have been cleared by Richard,” Tillett explains. “Some of these crew are very experienced sailors - and one would have thought that if you put weight into a one design and labeled part that you would personally be asking some very direct questions.”

“I would not have expected anyone to ask Richard if they could put metallic weight into a kingpost – his answer would have been obvious.”

“It also seems that some the OTUSA team did not take the trouble to read the Rules of the AC45 class, which only run to a handful of pages,' Tillett told Sail-World.com

Optimisation of Correctors
The purpose of the boat tampering becomes apparent from documents lodged in the San Francisco Courts.

Corrector weights were carried in the AC45’s to equalize the boats. It seems that the intention was to get these as low as possible, and the hollow kingposts were an obvious, if illegal place.

One of the kingposts was also lengthened on the Oracle Team USA boat that it was claimed made the structure stiffer. There were modifications made to the spigots on the ends of the kingposts, but Tillett believes the latter change was of little consequence – even though it broke the strict one design rules that governed the AC 45 class.

Many commentators find it hard to believe that knowledge of the changes was confined to just the two OTUSA sailing crew suspended, and the shore crew.

As well as preparing the two Oracle Team USA boats they did the same for Ben Ainslie Racing (BAR), which was supported by Oracle Team USA. (Five-time Olympic medalist, Ainslie later became a key crew member aboard Oracle Team USA – and is widely credited with the team’s comeback 9-8 win despite being docked two points ahead of the start of the 34th America’s Cup.)

“The AC45 is a one design boat and they should all look and measure the same, within the parameters of the Rule,” says Tillett who has been the Olympic Jury Chairman at the 2004, 2008 and 2012 Sailing Olympics.

He is well versed in the regime of very tight one design rules, where even a small measurement transgression would most likely see expulsion from the Olympic regatta. Four of the five 34th America’s Cup Jury members are from a similar background and are widely recognized as being the top officials in the sport.

“Small adjustments in one design boats can give significant advantages,” he notes, stating the obvious for all Olympic and one design class sailors.

“We got certain information from the team. But it would appear from what Mitchell is now saying that there was information he had which he didn’t pass onto the Jury”, says Tillett.

In the notes taken by the Investigators, Matthew Mitchell’s record notes in response to the first question – “did you take part in adding weight to a King post(s) and when?”

Investigator Graham Mckenzie noted Mitchell replied “Aware was on the job list, did not see who did it. I thought the dolphin striker was heavier and could see resin and lead-shot in it.”

Tienpont responding to the same question said: “Not to adding weight” And then “if no do you know who did,” he replied I only poured in resin to dolphin striker”. In a note later in the interview Tienpont says he was asked by Mitchell to pour resin into the dolphin striker, and that he was assisted by Mitchell.

Mitchell denies this assertion.

Definitely no deals done
One of the claims floating around after the teams had left San Francisco was that some deal was done between the Jury and Oracle Team USA to allow Tienpont to sail, and for Mitchell to penalized.

“There was never any deal raised or discussed with OTUSA or anyone. Nor would we have entertained it,” says Tillett.

‘The thought that you could get the people on the Jury to individually go along with a deal like that, I just find offensive, and I am sure all the teams and fans would, too,” he adds.

“There was no suggestion of any deal, and no deal took place.”

The conundrum for many, with some understanding of how America’s Cup teams work, is that if we are to believe that just the shore crew were involved in the boat tampering, then one also has to accept that the shore team could alter a boat at will without reference or over-sight from the sailing or rules team.

“I think it would be surprising to many that at this level of sailing the shore crew would be making changes on boats of this nature without higher level involvement. There are significant systems issues if that is the case – but even so the Jury can only act on the evidence it had before it.”

Tillett also notes that the evidence of team management was they “had no knowledge of it, had no involvement, were shocked by it, etc,” he says with a note of resignation in his voice.

“Some suggested that the sailing team would just step on the boat, race it and step off without noticing the changes,” adds Tillett with the same air of disbelief. “But that was the evidence we had.”

In one of the papers lodged by Matthew Mitchell in his claim in the San Francisco Court he says that Oracle Team USA “held a full team meeting when Russell Coutts threatened the entire team with immediate termination of employment if he heard of anyone discussing the cheating allegations. The shore and sailing team were told that even if they told their wives or girlfriends they would be immediately terminated.”

“That seems to be consistent with the sort of approach we were getting with a lack of full co-operation,” Tillett told Sail-World.com

“Did we get full co-operation? All we can say to that is if Mitchell is correct there is information there that wasn’t given to us, and clearly we didn’t get full co-operation.”

“If the top sailors knew who was the architect of all this, why didn’t they say?

“We were supposed to have received a full written report from Oracle Team USA, but we never did. I understand the evidence in the CAS Hearing was that a written report was never done,” he adds.

Oracle Team USA internal investigation
Amongst the documents filed by Matthew Mitchell on July 24 are a set of notes taken by Jury member Graham Mckenzie of a conversation with Lee Ann La France (OTUSA appointed internal investigator) and Grant Simmer (General Manager OTUSA).

The meeting covered La France’s interim views only, with the comment that “she advised her written report will be weeks away,” says McKenzie’s notes. She also noted that most of the evidence she had received to date had been anecdotal only “and there were important credibility determinations to be required.”

The last sentence of the Mckenzie Notes state that her report is to go to senior Oracle Team members, it would remain confidential and would not be published.

“The existence of the notes only came up at the last minute in the CAS hearing,” Tillett recalls. “We hadn’t regarded them as being of any significance. We hadn’t used them as evidence. The investigators kept notes of various meetings they had. When it was claimed in the CAS hearing that the jury had never met with the senior Oracle team management the notes were produced to show that meeting had in fact taken place. Then there was a suggestion of having made up the notes!”

“A computer analysis will show they were written up on the day of the meeting with OTUSA,” he adds.

Tillett says they had just overlooked the existence of those notes that were part of many compiled over the course of the six-week investigation.

“The meeting with OTUSA was simply to update the guys on the investigation and to see if there were others we should interview.”

“We did not see any report that La France might have prepared,' says Tillett. ‘We paid no attention to the contents of those notes of that meeting,” he adds. “The statement that there were credibility issues to be determined was correct, and a Jury Hearing was needed to determine that. ”

“We were also asked why we didn’t call Grant Simmer as part of the Hearing. The reason is simple, Simmer had no direct evidence in respect of the matter. He only came into the team at the Newport ACWS Regatta – his evidence could be speculative and clearly hearsay and not admissible as the facts had to be proven.”

“Any party could have called any witness they felt could assist. OTUSA called in general manager, Grant Simmer in the Article 60 Hearing.” But even with the input from the 1983 America's Cup winner, OTUSA were fined $250,000 and penalised two race points, by the International Jury for an action which was deemed prejudicial to the best interests of the America's Cup.

“We have been criticized for taking Hearsay evidence. There was no objection in the Hearings we conducted about any such issues. Sometimes you need Hearsay comment to understand the background to an issue. But that doesn’t mean you then rely on it as Fact,’ he explains.

“The lawyers all attended a pre-Hearing meeting to discuss the process to be followed and mutually agree the format.

What internal penalties?
On the issue raised in the Mitchell papers that Oracle Team USA would be imposing its own internal penalties on members involved, Tillett says the Jury knew nothing of those.

“At one point we would have liked to have impounded the boats and had them all gone over – but that would have had a significant effect on the Red Bull Series.”

The Jury got picked up in the CAS Hearing for being Investigator and Jury and didn’t adopt procedural fairness.

Tillett’s response to that charge is “all we did was to follow the rules and long established principles - who else was going to do the investigation? There are other sports who adopt a similar approach. ”

“We welcome the CAS input,” he adds, and the improvements to the rules and procedures that will assist the sport. But it must be remembered that the sailing rules are made for the whole of the sport and not just the America’s Cup.”

“What staggers me is why hasn’t Mitchell come out before if he has further information. Why didn’t he comment in front of the Jury? Why didn’t he comment in the interviews and Hearings? Why didn’t he comment as to what he really knew in his own disciplinary matter?

“Why didn’t he fully open up to CAS?”

“Now his own disciplinary matter is finished – he opens up. Why?”

Tillett points out that in Mitchell’s case the America’s Cup Jury recommended to ISAF that no further action be taken against him. A pair of commissioners appointed by Yachting New Zealand to investigate the matter as required by ISAF and America's Cup rules also recommended that no further action be taken against Mitchell by the NZ national sailing body.

“We welcome people coming forward, even now if there is further information on this matter. Otherwise, it is time to move on”, is Tillett’s final comment.

To read Part 1 of this storyclick here