Oracle Team USA face an unprecedented Hearing under discipline provisions of the America's Cup and Racing Rules.
The minor incident which has escalated into the the most serious form of Hearing in the sport, relates to the finding on July 26, that a builder supplied part of three AC45's managed by America's Cup Defenders Oracle Team USA, had been tampered with, and had over 2kgs of ballast added to it.
The discovery was made by boatbuilders working for America's Cup Regatta Management (ACRM).
The amount of additional weight added was miniscule, and it is equally hard to understand why it would be located outside of the prescribed corrector weight area, however the point is that it was a breech of the class rules for the AC45 - which is a one design manufacturer supplied class.
It should have been a relatively simple matter of the team identifying the people involved, the circumstances, and providing the Measurer with an explanation - all within 24 hours. Had they done so, they could maybe have avoided the ignominy of withdrawing from the last four events of the America's Cup World Series, of which Oracle team USA had won three and finished second in the other.
The situation has dragged on for over three weeks and now the investigatory phase of a Rule 69 Hearing has concluded which involved a substantial number of the team members, at a time when they should be preparing for the Defence of the America's Cup.
If found to have committed a serious offense the Defender's Team and Principals could face very serious consequences, with just 20 days remaining to the 34th America's Cup.
The Hearing is expected to focus on the incident itself, but more significantly on the Team's actions once it became aware of the situation and whether it has been fully co-operative with the Measurement Committee and International Jury.
The timelines involved in the various steps in what should have been a relatively simple case, would tend to indicated that has not been the case - providing fuel for the latest, and very serious moves which were announced around 11.00am local time.
The International Jury have resolved to hold a Hearing under both Rule 69 of the International sailing Federation racing Rules, and Article 60 of the Protocol governing the America's Cup, against the Defender, Oracle Team USA.
The move is unprecedented against a team in the history of the America's cup and follows investigations that have taken place since July 26, when illegal weights were found in two, or three, of AC45 class yachts managed by Oracle Team USA in the America's Cup World Series.
The Jury began an investigation process on August 4, and that has escalated until today's announcement.
Sixteen members of the Oracle Team USA team have been interviewed and five members of the America's Cup Race Management team.
After considering the information from those interviews, plus various other reports and submitted material, the decision was taken that there was a case to answer under Rule 69 and Article 60.
That formal Hearing will take place on August 26, 2013 in San Francisco.
The issues to be covered in the Hearing are described in the Jury Notice: (i) whether OTUSA has engaged in ‘conduct or any activity... on or off the water, that is prejudicial or detrimental to or against the welfare or the best interests of the America’s Cup, or the sport of sailing, or that may impair public confidence in the honest and orderly conduct of the America’s Cup, any Event, or in the integrity and good character of any Competitor, Official, selected venue, sponsor or other commercial partner of the America’s Cup’;
and (ii) whether OTUSA failed to ‘use its best efforts to ensure that no team member, owner, officer, employee, contractor, affiliate, agent or representative of the Competitor engaged in such conduct referred to above.
Such Hearings are largely a fait accompli, given the level of investigation that has already taken place, as there can be little dispute over the facts already uncovered by the Jury. Indeed Oracle Team USA's own investigation reported that one member of the sailing team and three members of the shore crew were involved.
Under Rule 69 of the ISAF's Racing Rules action can only be taken against a competitor or boat. neither is a defined term in the rules, which means that the normal dictionary meaning applies it would seem that it would apply only to a team as a whole or penalising a boat in a series. It is more difficult, but not impossible to get the rule to stretch to cover actions by a shore crew member or a coach.
Further when Rule 2 of the Racing Rules is considered it states that 'A boat and her owner shall compete in compliance with recognized principles of sportsmanship and fair play.' That sets the background as to who is ultimately responsible under Rule 69 - meaning that the team as a whole and its principals, and ultimately owner, Larry Ellison are directly accountable for the actions that have taken place.
Article 60 is more wide-ranging. Originally introduced, largely at the behest of the organisers of the America's cup Regatta at a time when Emirates Team New Zealand's managing Director Grant Dalton was being particularly outspoken about aspects of the regatta and its organisation over which he had concerns.
Article 60 was prompted dubbed the 'Dalton Amendment', and ironically it is now being used for the first time in the America's Cup against one of its key proponents, who some would say are being hoist by their own petard.
That provision of the Protocol is an escape clause for the team owners, as it allows the Jury to go down to the individuals in the team take any action prescribed. At its worst that could include exclusion from the Regatta, points penalty against the team and a whole manner of other options.
In a rider to the Notice posted in the official Notice Board the Jury tellingly note: 'If OTUSA is found to have breached Protocol Article 60.1, the Jury may impose such penalties or orders as it believes to be just and equitable, including but not limited to those penalties set forth in Protocol Article 15.4(d)'
Oracle Team USA were previously found to have breached the surveillance provisions of the Protocol, by navigating to with 200 metres of the challenger, Luna Rossa in Auckland, and taking photos - contrary to the provisions of the Protocol. For this infringement they were suspended from five days of sailing in late April 2013, at the end of the second restricted sailing period.