Oracle Team USA - San Francisco - 10 June 2011
With Louis Vuitton Cup in abeyance for a week, the investigation by the International Jury is expected to continue into the measurement issue relating to three AC45's serviced by Oracle Team USA.
The accusation of cheating has been widely bandied around in the media. It is a easy shot, and those who have sat on an International Jury will know that all is often not quite what it seems, and often there is an explanation which is accepted by the Jury.
People are entitled to be stupid (provided they don't affect others), and often exercise this right in sailing and in life.
Sometimes they get pinged for that stupidity - just being picked up is often punishment enough, and their embarrassment is palpable. Sometimes a more tangible penalty is required to be consistent with what has gone before with others for their misdemeanor.
The issue here is not what was done with fitting weight outside the specified correction weight location, but what happened next.
What did the Shore Crew's masters do, when the error was picked up? Were they completely open with the Measurement Committee and the other authorities involved? Or was some attempt at a cover-up attempted?
The actions by the International Jury would tend to indicate that they have some concerns, and the report by the Measurement Committee on Oracle Team USA would indicate that there is more to this than a stupid error by the shore crew.
The difficulty for Oracle Team USA is that the Protocol for this America's Cup Regatta embraces the completed America's Cup World Series events, as well as the America's Cup Regatta, currently underway. Therefore infringements in the ACWS can be carried onto the current Regatta, and into the Cup itself.
The other issue is that sailing, as a sport, is hinged on the principles of Integrity, Honesty and Trust.
Competitors must have the Integrity to ensure that their boat complies with the class rules at all times.
Inadvertently shifting something out of position is one thing. But in Single Manufacturer One Designs, as the AC45's are, altering a labeled part that is assumed by the presence of that label to be in compliance, which would not be checked by the measurers, is a serious matter.
Competitors have to have the Honesty, that if they do infringe a Measurement rule to be completely open - even if that is to their significant disadvantage.
It is not the competitor's place to determine or manipulate the outcome. That is the Jury's function. Be anything less than honest and transparent, the Jury will find out, and then those involved are seriously for the high-jump.
Finally other competitors have to Trust their fellow competitors not to cheat measurement and rules, particularly in areas that cannot be seen.
That is why open dinghy parks are so effective in a self-policing sport in the dinghy classes at World Championship and Olympic level.
There is nothing quite like the disinfectant of transparency.
That openness of venue is not the case with the America's Cup, where team bases are secure, closed areas. The scope for doing something illegal is much higher. But even so the other teams and measurers have to be able to Trust that their Competitor will not do something illegal, as the chances of being caught are very slim indeed, and the penalties are aimed at deterrence.
Without these three principles being in place, we simply don't have a sport, or an America's Cup.
Where to from here?
The approach from this point is expected to be a reasonably wide investigation. The significant fact is that the matter has been progressed relating to a regatta which concluded last April, and involved the addition of miniscule amount of weight into three boats.
Normally the admission of the inadvertent error, and being completely honest and transparent with the Measurers and Jury, coupled with an offer to withdraw from the Regattas would have sufficed and been accepted.
The Jury must have glimpsed fire through the swirling smoke, and realised that there were issues relating to the fairness of the present competition, that needed to be investigated further. And that is what is happening.
The difficulty for the competitors when Rule 69 investigations are commenced, even at the preliminary stage is that it is not a case of innocent until proven guilty.
The Jury must have to hand some reasonably damning evidence, in this case contained in the report from the Measurer, and the competitor has to come up with some fairly solid explanations as to why the Report is either incorrect, or does not apply to them, to escape the Jury's further interest.
As well as the explanations, the Jury will also need to be convinced that there is no coaching of competitors as to their story, no deceit by omission, and that the parties all co-operate fully with the Jury.
The way a Jury can drill down and satisfy itself as to the veracity of the information given is to interview the individual alone, and without support lawyers or others present. The investigation is largely inquisitorial, the competitors don't know the questions or track the Jury is taking, or what has been said before them, or subsequent.
With two lawyers, and a former magistrate on the Jury, there is little chance of being able to maintain a prescribed story line. Additionally the Jury are all experienced at America's Cup level, most at Olympic Games and World Championship level. They will have sat on hundreds, if not thousands of protests, many of which will have had Rule 69 implications. In Protest Hearings, the Rule 69 topic is often raised but seldom proceeded further - which again is why this case is so unusual.
Only a fool would attempt to take the Jury on in this situation, but it is amazing how many do.
One of the first things the individual Jury members will do is to inform an impression, as to whether the team member being questioned, is a credible witness, or not.
If the latter, and that is the impression of them all, then that member will be marked for further attention, often resulting in a more severe penalty.
For Oracle Team USA, the investigation in itself could be highly disruptive, particularly if the Jury elect to interview all Shore and Sailing Crew.
Given the circumstances, it is not the team's prerogative to decide when and whether it is convenient for them to attend, remembering again that this is an investigation which in normal circumstances would not have gone ahead.
This is a serious matter, but one that is capable of being quickly resolved if approached with complete honesty and transparency.
And if you are guilty as charged, then a voluntary confession goes a long way.