America's Cup - Kiwi lodges Appeal against Jury in San Francisco Cup

by Richard Gladwell, Sail-World.com NZ on 2 Dec 2016 Former Oracle Team USA crew member, Matthew Mitchell (NZL) has lodged an Appeal against a Decision to dismiss his case taken against the International Jury for the 34th America's Cup in San Francisco.

On October 28, 2016, US District Judge Vince Chhabria dismissed Mitchell's claim against the five-person International Jury on the basis that it was lodged too late.

The three-page Decision traverses various legal grounds raised by Mitchell regarding law applicable in San Francisco where Mitchell was employed by Oracle Team USA, and the law of New York State, the legal seat of arbitration for the America's Cup.

However whatever the outcome of those legal arguments the Decision to dismiss was based on the premise that Mitchell's claim was lodged two years after the award against him by the International Jury. The maximum time allowed by New York law is 90 days, and Californian law the period is 100 days.

'Under every conceivable approach, Mitchell's petition to vacate - filed two years after the award against him - is barred. This is incurable on amendment, and the petition is therefore dismissed without prejudice.'

Judgment against Mitchell was entered.

Mitchell's lawyer, Patricia Barlow, a New Zealander based in San Francisco filed the Appeal on November 22, 2016, without stating the grounds.

The claim arises from the International Jury's decision issued on September 3, 2013, that the Jury were 'comfortably satisfied' that Mitchell committed a 'gross breach of a rule and of good sportsmanship' over a series of incidents relating to boat tampering on three AC45's managed by Oracle Team USA's shore crew. Mitchell was a sailor and rigger with the team.

Mitchell was suspended by the International Jury from sailing four of what proved to be 19 races in the 34th America's Cup sailing in San Francisco.

His case was reviewed by two Commissioners appointed by his national authority, Yachting New Zealand, they said they were not convinced that Mitchell was involved, they were critical of the Jury and did not recommend the imposition of any further penalty on Mitchell by Yachting New Zealand. In its decision the International Jury had recommended that no further action be taken by YNZ.

Mitchell originally took his claim to have the 'award' set aside against the then International Sailing Federation (now World Sailing) and the five jurors - David Tillett, Bryan Willis, Josje Hofland, John Doerr and Graeme McKenzie.

By agreement the ISAF was dismissed from the action on September 26, 2016, leaving the International Jury to stand alone.

Mitchell also took an action against Oracle Team USA, claiming they should have dismissed Simeon Tienpont who had apparently admitted to some boat tampering but had no action taken against him the International Jury, and Oracle Team USA retained him in the sailing crew.

That action was also dismissed by the same US District Judge Vince Chhabria on April 26, 2016.

A date has not yet been set for the Hearing of Mitchell's latest Appeal