Please select your home edition
Edition
Barton Marine Pipe Glands

America's Cup- Oracle found guilty as charged on Italian spy incident

by Richard Gladwell, Sail-World on 22 Dec 2012
Luna Rossa and Emirates Team New Zealand, racing on the Hauraki Gulf, December 2012 Luna Rossa Challenge 2013 http://www.lunarossachallenge.com/

The International Jury for the 34th America's Cup, has just posted its Decision in Case 19, which was initiated by the Italian Challenger, Luna Rossa, over an incident where a surveillance boat from Oracle Team USA was within half the distance allowed for viewing competitors while training.

The International Jury found that Oracle broke the rules on surveillance because of a novel interpretation of the word 'navigating' and compounded their transgression by continuing to take pictures from closer than the permitted range.

Luna Rossa protested Oracle Team USA in early November, alleging that Oracle Team USA’s Matt Mason had been within a distance of 200 meters and taking pictures of the Italian AC72. Luna Rossa alleged that Mason’s actions violated Article 37.2(g) of the 34th America’s Cup Protocol, which prohibits competitors from navigating within 200 meters of each other.

In its discussion and conclusions, the International Jury determined that the 'pivotal question is whether Oracle Team USA’s vessel was ‘navigating’ within 200m.' The International Jury referred to the Oxford English Dictionary (as stipulated by Protocol Article 1.3) to determine the definition of 'navigating.'

It concluded that 'the word ‘navigate’ as it is used in Protocol Article 37.2(g) is to be interpreted such that a vessel is still being ‘navigated’ while it is stationary if there is someone in command of it with the ability to manoeuvre the vessel.'

Oracle Team USA submitted that 'to breach Article 37.2(g) OTUSA had to ‘…manage, steer, control or direct the course…’ of the OTUSA Protector to within 200m of the yacht(italics ours)', suggesting that their vessel needed to be moving towards something in order for the driver to be 'navigating a vessel.' The Jury disagreed with that view.

The Jury was satisfied that the taking of photographs during the incident was 'an attempt to gain information about another Competitor' and that there was no prior consent by Luna Rossa.

The International Jury has invited parties to make submissions on the appropriate penalty, if any. It has also instructed Oracle Team USA to hand over to Luna Rossa and the International Jury all photographic material taken while the Oracle Team USA vessel was within 200 meters.

Eight options for a penalty
A decision on the penalty is yet to be determined.

Had the usual Racing Rules of Sailing applied, Oracle Team USA could have been disqualified - the standard penalty for any boat which infringes a Rules (unless another type/range of penalties are prescribed). However a modified set of Racing Rules and Penalty options applies to the America's Cup Regatta.

The Int Jury have eight options set out in section 15.4 (d) of the Protocol, which range from Expulsion from the 34th America's Cup to Censure. Neither of these extremes look to be a likely option. In fact, none of the other six look realistic look practical except for a Fine.

In its deliberations, the International Jury will have to chose a penalty, which recognizes the gravity of the infringement. The usual options are a monetary penalty, loss of points, action against the individuals involved. A second issue is that the Defender will clearly have gained some knowledge from the images - even it was to confirm their own thinking.

In terms of a monetary penalty, the Int Jury will be aware that Oracle Team USA are backed by a billionaire, and on a previous occasion when a $100,000 fine was levied, it was dismissed by another billionaire backer as 'ice-cream'. It is difficult to imagine what level of financial penalty would actually have an impact of such a team.

Loss of points is a possibility, and as a Challenger would have been a option in the Qualifying Rounds, and a deterrent to a team and others. But as Defender Oracle go straight into the America's Cup Match and such a penalty might be considered too detached from the incident. But if it were applied, then certainly it would be a deterrent - and there would be no repeat offence.

Prohibiting Oracle from further surveillance in Auckland is certainly an option - both afloat and ashore. But this in not one of the eight penalties which may be imposed under the Protocol.

It is relatively easy for teams who are being photographed to take a photograph in return. Emirates Team NZ have previously commented on the number of cameras with big lenses which are in apartments adjacent to their bases, and trained into the work areas and sheds. Whether the Italians suffer from the same level of supervision in their Westhaven location is not known.

Because Emirates Team NZ did not protest, they are unlikely to be a direct beneficiary of a protest lodged by another team - except to have additional impact on Oracle Team USA. Possibly relevant, is the fact that Emirates Team NZ claimed that this was not an isolated incident, but again as no protest was lodged, the Int Jury could not act.

Action against the individuals involved is unlikely, as it seems to be reasonably clear they were acting on team orders, and team principals have not dissociated themselves from the illegal surveillance.

Professional Foul
The difficulty the Int Jury will have is that while the images can be returned, the knowledge gained cannot be erased, and Oracle is therefore in the position of benefiting from a professional foul.

Additionally Oracle's capsize of October 16, limited their data gathering opportunities to just eight days from their own boat, so information on other teams could have an additional urgency.

Oracle did not seek the prior interpretation of the word 'navigate' - which is the normal action when there is doubt about the way a rule is interpretative. Instead Oracle took the course of applying their own interpretation and then argued their case in front of the Int Jury, after a complaint by a team and after having gained the information they sought. In other words, instead of asking permission Oracle begged forgiveness. The issue being that their actions cannot be undone.

Compounding their error, which could be dismissed as being inadvertent, is the fact that the Oracle Team USA members continued to film instead of leaving the area they had 'strayed' into.

The fact that the team have profited from their infringement, will probably be the single issue that will weigh most heavily on the minds of the Jury.

What is to be done, will require the Wisdom of Solomon.

The full Decision can be read by http://noticeboard.americascup.com/wp-content/uploads/2011/08/JN059.pdf!clicking_here

Sail-World's earlier story can be read by http://www.sail-world.com/index.cfm?nid=104867!clicking_here and http://www.sail-world.com/index.cfm?nid=104292!click_here for comment and links to the original protest by Luna Rossa.

X-Yachts X4.0Excess CatamaransPantaenius Sail 2025 AUS Footer

Related Articles

Sam Goodchild in the Course des Caps
The final phase is full of potential pitfalls Sam Goodchild, the British skipper of MACIF Santé Prévoyance who has been dominating the IMOCA round Britain and Ireland race since the start of the third day, says the goal now is to focus on the complex finishing section.
Posted on 4 Jul
29er Europeans at Lake Garda day 2
Light breeze, boat park buzz and big wins off the water >Day 2 brought lighter winds to Lake Garda, but the energy around the event stayed sky-high.
Posted on 4 Jul
Rolex TP52 Worlds in Cascais day 3
French tour de force gives Paprec world championship lead As the Rolex TP52 World Championship passed its midway point today in Cascais, Portugal it is the French underdogs on Paprec, led by ocean racing legend Loïck Peyron, which has taken the overall lead.
Posted on 4 Jul
Rolex Fastnet Race IRC One preview
Beyond the French legends there is plenty of international talent with podium potential With 17 editions of the Rolex Fastnet Race to his name, including five class victories along the way and an outright victory in 2015, could anyone bet against Géry Trentesaux doing it again?
Posted on 4 Jul
International Moth Worlds begin this weekend
Pre-Worlds are under way at Malcesine From 6 to 13 July 2025, the 2025 Moth World Championship officially gets under way, hosted by Fraglia Vela Malcesine and preceded by the Pre-Worlds on 4 and 5 July. The event marks the culmination of three weeks entirely dedicated to foiling.
Posted on 4 Jul
K-Challenge gives opinion on proposed Protocol
Why the 38th edition could usher in a new era for the America's Cup Stephan Kandler and Bruno Dubois, Co-CEOs of K-Challenge, jointly stated: “The provisional Protocol published on 23 May 2025 by Defender Emirates Team New Zealand is an important step forward for the America's Cup."
Posted on 4 Jul
PredictWind to show new race tracker in August
The Ocean Race joins with PredictWind as Official Tracking and Weather Services Supplier The Ocean Race, often described as the toughest test of a team in sport and widely recognised as a leader in impactful ocean health initiatives, and PredictWind, a global leader in marine weather forecasting, are collaborating on a new race tracker.
Posted on 4 Jul
ORCV Women's Helm Race changes everything
Rachel Mcguigan charged in—eyes up, hands on, no time to waste Some people drift into sailing. Rachel Mcguigan charged in—eyes up, hands on, no time to waste.
Posted on 4 Jul
2025 Transat Café L'OR is packed with surprises
73 boats sailed by 146 co-skippers will set sail on October 26th 73 boats sailed by 146 co-skippers will set sail on October 26th on the TRANSAT CAFÉ L'OR Le Havre Normandy.
Posted on 4 Jul
The Trimaran SVR-Lazartigue is back at sea
Peter Burling joining the team for the Rolex Fastnet Race After a refit that began in March, the Trimaran SVR-Lazartigue was relaunched this Thursday, July 3. Lined up for the months ahead is an exciting race programme, culminating this year with the Transat Café L'Or in October.
Posted on 4 Jul