Friday 01 August 2014
sail-world.com -- America's Cup: War of Words erupts over changed Race Schedule
America's Cup: War of Words erupts over changed Race Schedule
Tue, 11 Jun 2013
Artemis Racing's skipper Paul Cayard has hit back at Emirates Team NZ's MD Grant Dalton's comments made after the Teams Meeting in San Francisco, late last week: In response to comments by Emirates Team New Zealand's Managing Director Grant Dalton in a June 8, 2013 article in the New Zealand Herald, we would like to set the record straight. Dalton's proposals to change the race (start direct elimination on July 19, rather than August 6, and alter the format to eliminate the semi-finals) would certainly not help Artemis Racing, as suggested, but make it even harder for us to compete. To shorten an already tight timeline is clearly not acceptable to us, as to any team in the same position. Dalton's proposals benefit no team but his own, and his public insults are out of line and unsportsmanlike. Artemis Racing's May 9 accident set us back immensely - on a human level and a campaign level. As competitors, though, we may be down, but we are not out. Our passion for the America's Cup remains strong. We are committed again to competing. Anyone who knows our sailors knows that our team will not shy away from a tough challenge. We are doing our best to recover and our target is to be ready for racing in the Louis Vuitton Cup's semi-finals on August 6, if not earlier. In the meantime, the race schedule should remain unchanged and the derogatory analogies should be left on the dock.
The original Louis Vuitton Cup race schedule had the three teams sailing a Round Robin consisting of seven rounds (21 races) in total with the winner having the option to advance through to the Finals, or participating in the Semi-Finals, presumably with the third placed boat. After the capsize and death of Artemis Racing crew man, Andrew Simpson (GBR), the recommendation was made to reduce the Round Robin phase of the Challenger Selection series to five rounds, or 15 races. Luna Rossa and Emirates Team NZ, in a concession to Artemis Racing's dilemma, offered to delay the start of the Round Robin Series to July 19. This was not acceptable to Artemis Racing, who would only agree to a full series (Round Robin and Semi-Final) being run, with one extra reserve day being added, bringing the series down to the agreed 15 races (five rounds). Then Artemis Racing then announced that they would default most of the races in the Round Robin, and would instead seriously race only in the Semi-Finals phase of the CSS or Louis Vuitton Cup. Soon after Artemis Racing issues their statement, Emirates Team New Zealand responded as follows: The joint proposal put forth by Luna Rossa and Emirates Team New Zealand of starting the Louis Vuitton Cup later in July was done so in the hope of enhancing the event with a full muster of boats from the beginning, and therefore, placing more importance on the racing from the first race, something for which fans and sponsors are craving right now. 'The weighting of points (more points later in July) was also suggested, with the idea being to get racing underway but not determine the results too early in the racing. Both these proposals were rejected by Artemis Racing, the Challenger of Record. 'Normally the challenger series of an America’s Cup is run on terms that meet the wishes of the majority of challengers,' Dalton said. 'This is not the case here with Artemis rejecting the proposal and wanting to continue running an event schedule in which, by under their own admission, they will not compete in in the early stages. 'Obviously it was assumed that 10 weeks after the Artemis tragedy, that having previously taken delivery of their second AC72 they would be ready to race. This is not the case.' Authority for Schedule Changes unclear
After an examination by Sail-World, and questioning of America's Cup Rules experts, it does not appear that Artemis Racing, or their club, Royal Yacht Club of Sweden, have the ability to over-rule a majority decision of the Challengers as appears to have been done. To recap, the question of the revised racing schedule was discussed at various Team Meetings, late last week. Given that the Review Committee convened by America's Cup Regatta Director, Iain Murray had recommended that the number of rounds in the Round Robin of the Louis Vuitton Cup, due to begin in the first week of July, be reduced from seven rounds to five (or a reduction from 21 races to 15, with an additional Reserve Day each week of racing). This was done as a safety measure, following the fatal Artemis capsize on May 9th, and was agreed by all the teams. The three Challengers then met (without the Defender Team USA). Luna Rossa (ITA), supported by Emirates Team NZ, proposed that the start of the Louis Vuitton Round Robin be delayed by two weeks until July 19, and that the event then be sailed as originally envisaged. This would allow Artemis Racing time to get their second AC72 launched and tested and ready to race. Artemis rejected this arrangement, saying in a later release, that they would not be ready and would in fact sit-out most of the Round Robin phase. That phase, with just three competitors, carried little real significance except to find the first Finalist to sail against the winner of the Semi-Finals, a best of seven series, starting in early August. Artemis Racing's intention was clear, in that they had flagged away being the first finalist, but would have a serious crack at the Semi-Final and reaching the final and maybe beyond via that route. But more of the Rules implications of that announcement later. Power of Veto?
After the Challengers' meeting broke up with a split vote, Emirates Team NZ claimed that Artemis Racing had used their position as Challenger of Record (effectively the first club to Challenge the Defender, Golden Gate Yacht Club, represented by Oracle Team USA), to impose a solution that the majority of teams did not want. It is believed that Artemis Racing, as Challenger of Record, have the right of a veto as such, over changes to the racing format. (Protocol Article 14.1). Certainly that would be the case if the Regatta were a Deed of Gift Match (as was the 2010 America's Cup between the two 120ft giant multihulls of Alinghi and then Oracle Racing). Once the Defender and Challenger sign a Protocol to facilitate a Multi-Challenger event to chose the Challenger for the America's Cup Match, then all teams are bound by the provisions of the Protocol. At the heart of the Protocol for the 34th America's Cup is the concept of Neutral Management, set out in Clause 3 of the Protocol. This requires the various parties including the Challenger of Record (in its capacity as Challenger of Record) to 'act in the best interests of the Competitors collectively.... in organizing and managing the Event'. And 'shall not unreasonably favor the interests of any Competitor over another.' (Under this Protocol, Artemis Racing, or rather their club KSSS, has two roles - that of a Competitor or team, and that of Challenger of Record.) The point of Neutral Management is to eliminate any perception, or ability to indulge in self-dealing, which has been an historical criticism of the America's Cup since its inception. If any of the parties covered by the Neutral Management clause believe that that one competitor has been favoured over another, then they have the right to take their complaint to the Jury, who may revise, and make a binding decision. A majority decision binding?
Changes to the format of the America's Cup Challenger Series (Louis Vuitton Cup) are covered by Clause 25.3 which says 'The format of the ACCS agreed by the Challengers and the Regatta Director shall be revised by agreement of the majority of the Challengers and Regatta Director if the format of the Match is amended.
' It is clear from Clause 25.3 that if the format of the ACCS is to change, then the change is done on the basis of a majority decision, not unanimous decision, or unilaterally by the Challenger of Record, Regatta Director or any other Party to the Protocol The sting in the tail of the clause, of course is 'if the format of the Match is amended'. Some may claim that because this was not being done in response to a change in the format of the America's Cup Match, then it was not applicable. But the intention of the clause is clearly that a change in the ACSS is done by the majority vote of the Challengers and not arbitrarily, by a Challenger of Record, Defender, Regatta Director or another party. However first the Challenger of Record and Defender must agree that the Protocol can be amended. Artemis, as Challenger of Record, dug in their toes and refused, creating a stalemate, and claims from the other two teams that the Challenger of Record had been acting in its own team's interests, and not the best interests of all Competitors collectively as required under Article 3a(i) of the Protocol. At the teams meeting it was felt that for any changes to be made to the Protocol in terms of the Regatta format, that a Protocol Change would be required. This required the consent of both the Defender and Challenger of Record, as discussed above. Under the doctrines of Neutral Management, in this case, KSSS, as Challenger of Record, must be careful that they do not 'unreasonably favor the interests of any Competitor over another'. Given that they knew Emirates Team NZ and Luna Rossa were in favour of change, and that the changes were being done as a result of the catastrophic tragedy and consequences, that beset their team, it is difficult to see how the Challenger of Record could justify using their veto at this juncture, which is what Sail-World believes happened. It is hard to see how it could be claimed that exercising a Veto at this stage, and circumstances, was properly exercising the responsibilities of Challenger of Record, opening the gate on charges of self-dealing. It would also seem that the other changes, have been/will be made to the Protocol without this 'door to change' in 25.3 of the Protocol being first opened. Clearly there was agreement between two of the three Challengers as to the new ACCS format, to proposed to begin on July 19. While Artemis Racing, may not have been able to make that date, that is their issue not that of the other Competitors. Artemis Racing has one other issue to be addressed. That is their announcement that they were going to be a No-Show in any racing until late July, or the Semi-Finals in August. That issue is covered under Protocol Clause 21, Requirement to Race. These contained fines for being a No-Show, and also set out wind limits which are now judged to be extreme and have been amended with the consent of all Competitors. Clause 21.1 says 'Competitors are required to race in all regattas of the Event for which they are eligible.' And, then goes on to talk about wind limits and how they are measured. The point being that Competitors are 'required to race'. While some would claim that if Artemis sailed just one race they were in compliance, legally that view may be an arguable interpretation, but it is a sailing nonsense. The Clause 21.2 sets out the schedule of fines for not racing, since recommended to be removed by the Regatta Director. But the point remains that Clause 21.1, as it stood before the Artemis incident, and now stands, requires the Competitors to race, not announce in advance, they would default a race or series. The issue of the changes to the race schedule, as currently published, are the best achievable for Artemis Racing, short of deferring the regatta for 12 months. For a competitor with substantial sponsor obligations spread over the duration of the regatta, the changes to the race program are believed to be very significant, in terms of contractual and financial undertakings made. The matter is expected to be referred to the International Jury for Mediation or a full Hearing, unless the parties can resolve their issues internally. © This story is copyright to Richard Gladwell and Sail-World.com and may not be republished without permission
by Richard Gladwell