America's Cup- Emirates Team NZ has a partial victory on Voting Rights

by Richard Gladwell on 9 Jan 2012
Emirates Team NZ's question put to the International Jury has been answered with a favourable response from the adjudication body for the America's Cup and its sister event the America's Cup World Series.

On 20th December the New Zealand based team which has been competing in the America's Cup for the past 25 years, questioned whether all nine teams that had entered in the America's Cup World Series, sailed in AC45's could also vote on matters governing the America's Cup Series itself.

The team argued that only four of the teams entered had paid the USD$200,000 fee for the America's Cup Regatta (includes the Louis Vuitton Cup or Challenger Selection Series) and therefore they should only be allowed to vote on matters affecting that Regatta. Those who had not physically entered and paid their fees, even though they may have had the intention of entering, were not eligible to vote.

Although it didn't accept the whole of Emirates Team NZ's argument, the Jury, in a decision just published, substantially agreed with the position proffered by the New Zealand team.

In other words, a team has to be a properly paid up entry before it can vote on matters affecting the America's Cup or AC72 class issues.

At the heart of the matter is the so-called 'Dalton Amendment', or the introduction of a Code of Conduct governing the 34th America's Cup sailed in AC72's (and America's Cup World Series sailed in smaller AC45's). While still in the draft process, the Code is believed to give what seems like quite draconian powers of complaint and penalty if a competitor or individual associated with the team makes public comment, that is interpreted as being a negative comment about the regatta, or event structure. An exception is made about genuinely held opinion.

The head of Team New Zealand, Grant Dalton, has always been a very straight shooter in terms of public comment, and has made frequent references to the cost of the America's Cup which are at variance with those views put out by Event Organisers, who claim costs have been reduced.

Dalton interviewed
Before Christmas, in an interview with leading international yachting commentator, Peter Montgomery, Dalton traversed his thoughts on the situation where so-called 'second tier' teams, who really would be competing only in the America's Cup World Series in AC45's, were allowed to have a vote on the America's Cup Regatta itself - even though they weren't entered.

'What has happened is that there is nine team racing AC45’s ultimately, when we get to the big boats (AC72's) there will be a lot less than nine teams,' Dalton said.

'The process of voting things is being more influenced by the small teams than the big teams. You have the big two, Oracle and Artemis who will tend to vote aligned because of the relationship between Coutts and Cayard. You have us and Prada who are aligned – so we will lock up the vote 2-2 on any issue. By design or necessity most of those teams, I believe, are in the event by virtue of a sweetheart deal, and they are unable to vote against something that the Defender of Challenger put up.

'I’m all for a Code of Conduct, as most sports have it. But I am against a mechanism that can be swayed by vote numbers, because of an influence that can be exerted on small teams who ultimately probably won’t be there.

'We will be questioning the mechanism of voting within the next week (since lodged on 20 December, 2011) or so that allows something to be put in place which is voted by teams that won’t even be there at the end of the day.

'The sport has to decide whether it survives for the competitors. Or, are the competitors the reason why the sport survives? Some organisations get to the point where they start to believe that the competitors are lucky to have it.

'I go from completely the opposite direction and believe that they are lucky to have us. It sounds subtle, but it completely changes the total way you run something. And I think the competitors need to be running the event or having more say in how this event is structured, for the benefit of the event, not the other way around.

'This is not so much as to whether the deal is valid or not, because there is no doubt it is. But they are asking questions of the Jury as to how it should be interpreted. That is a separate issue

'There is definitely a nervousness that with Prada together we form a strong bond, and if we disagree with the way the Defender and Challenger might vote, and we can lock it up at 2-all, and therefore nothing would pass.

'We question whether they have the right to use the other teams (to support changes to the way the America’s Cup Match will be sailed by teams that would not be competing), under the Protocol and we will put that to a formal inquiry very soon, because it just doesn’t feel right.

'This is the America’s Cup. This is a serious game. This is going to cost a lot. We’re working towards San Francisco in boats that we are building now and they are expensive.

We have these little teams who in most cases are sailing AC45s, and that is great. But why should they be able to influence things when they no longer even exist, when they have gone? Why should they be influencing things? Unless it is convenient?'

Costs main point of difference

The principal complaint, oft voiced by Emirates Team NZ, relates to the costs of the competition - which is contrary to the view espoused by America's cup event organisers, namely that costs for the 34th America's Cup have been reduced, while Dalton, along with skipper Dean Barker, maintain they have in fact increased over previous editions of the America's Cup.

Matters came to a head at the last Competitors Forum, where by a margin reported elsewhere of just one vote, all nine competitors had voted to go ahead with the institution of a yet to be published Code of Conduct for the America's Cup (and the ACWS).

Emirates Team NZ's claim is that five of those nine competitors had not properly entered the America's Cup, yet were voting on matters involving the AC72's.

The fate of the so-called Dalton Amendment now hangs in balance. As Emirates Team NZ's question to the International Jury was not filed as Protest, but as a matter if Protocol Interpretation, then the Jury have decided that their Decision cannot be applied retrospectively. So that 5-4 vote in favour of instituting a Code of Conduct must stand.

However in future Competitor Forums only teams who have properly entered for the 34th America's Cup will be entitled to vote - and on that basis, formal adoption of a Code of Conduct, or other matters relating to the teams sailing AC72's would only be subject to a vote by the AC72 teams.

For a full copy of the Decision http://noticeboard.americascup.com/wp-content/uploads/2011/08/JN025.pdf!click_here

No announcement has yet been made, on the Jury Decision or its implications, by America's Cup event organisers, or the teams involved.

On a roll with the Jury

The Decision is the third to have gone Emirates Team NZ's way since Christmas. On 28 December, 2011, the International Jury gave an interpretation of the Protocol in response to a series of questions posed by the Defender Oracle Racing, which will allow the proposed Luna Rossa/Emirates Team NZ partnership to proceed, providing they tread carefully in the boat construction area, and sharing of performance information.

In a second Decision, the Jury, unsurprisingly, ruled that Emirates Team NZ's two SL33 catamarans, used for training and development, were not Surrogate Boats (ie catamarans of 10 metres or greater hull length). The declaration by the Jury was somewhat essential, under the current Protocol, to allow Emirates Team NZ to continue sailing their SL33's past 1 January 2012. The boats measured just 1mm under the permitted length.

The team is expected to start training in AC45's, out of Auckland, against Luna Rossa before heading to the next event in the America's Cup World series in Naples, Italy in three months time.

Meanwhile construction of the team's first AC72 is underway at the Cookson yard in Auckland, with the wingsail being constructed at Southern Spars new construction facility in West Auckland. Launch date is expected to be in five months time in July 2012.