Several of Oracle Team USA's top management have been named as witnesses in a Hearing to be conducted on Friday, August 30, 2013 in San Francisco.
Those named include Russell Coutts (OTUSA CEO), Grant Simmer (OTUSA General Manger), Jimmy Spithill (OTUSA Skipper), Mark Turner (OTUSA Shore Team Manager), Richard Slater (OTUSA Rules Advisor) and Andrew Henderson (Rig Team Manager).
Also called as a witness is Chief Measurer, Nick Nicholson. The team and International Jury may call other witnesses as required.
The date of the Hearing under Article 60 of the Protocol governing the 34th America's Cup has been twice moved, originally to accommodate the unavailability or Oracle Team USA's legal counsel, Phil Bowman. The team will also be represented by Golden Gate Yacht Club Vice Commodore, Tom Ehman an acknowledged rules expert and with an America's Cup Jury and Rules experience stemming back to 1980.
The Article 60 Hearing, to determine whether the team has bought the event into disrepute, is being conducted under the provision of the so-called Dalton Amendment - implemented after event organisers took exception to some comments being made about the conduct of the regatta by Emirates Team NZ Managing Director and grinder, Grant Dalton.
The Hearing on Friday, follows a separate Hearing under Rule 69.1 of the International Sailing Federation Rules governing Allegations of Gross Misconduct. The details, and indeed date of that Hearing has been kept confidential. It is possible that it has already been held. A transcript from that Hearing will be included in the evidence in Friday's Hearing.
Generally Rule 69.1 can only be be used against a boat (meaning the crew collectively), and/or its owner - who is deemed to be responsible event though he or she may not be directly involved. But under the America's Cup version of the Racing Rules it is extended to include any person 'associated with a competitor', meaning that non-sailing crew are embraced.
The fact that the principals have been called as witnesses should not be taken as an indication that they were directly involved.
Also included will be various reports from the Measurement Committee, reports from Oracle Team USA as to its own investigations into boat tampering, after measurement, on two of its AC45's used in the America's Cup World Series. A third boat was involved, sailed by multiple Olympic Gold medalist Ben Ainslie (his boat was supplied and managed by Oracle Team USA), and significantly Ainslie has not been named in the witness list, indicating that he has been exonerated of wrong-doing.
The initial report from Oracle Team USA stated that three members of its shore crew and one member of their sailing crew were involved. It did not name the individuals, or say if the sailing crew member was an 'A-Lister'.
Molehill turns into a Mountain
The Hearings bring to a close what should have been a minor measurement incident that has escalated into the most serious form of disciplinary Hearing in the sport.
It relates to the finding on July 26, that a builder supplied part, a kingpost, of three AC45's managed by America's Cup Defenders Oracle Team USA, had been tampered with, by having additional weight added to them.
Oracle Racing Coutts competing in the the fleet race of the AC World Series - Day 4 - Chris Schmid- Eyemage
The kingposts, also known as dolphin strikers, are struts that are located under the wingsail and sprit, through which support rigging is run and tensioned to spread structural loads in the AC45's and indeed most multihulls. The AC45's have two kingposts.
The weight discrepancy was discovered by boatbuilders working for America's Cup Regatta Management (ACRM), not members of Oracle Team USA.
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 breach of the Class Rules for the AC45 - which is a one design manufacturer supplied class.
A second report from the Measurement Committee highlighted the fact that the length and end fittings on some of the kingposts used in the Oracle Team USA 45's were of a different length and internal construction than the factory supplied kingposts. And further that while other kingposts had been removed and repaired by other teams they were all identical to the factory supplied items. While two of those from the Oracle boats had a measurable variance.
This issue should have been a relatively simple matter of the team identifying the people involved, the circumstances, and providing the Measurer with a full 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, together with the two Hearings.
One of the reports to be considered by the International Jury will be from America's Cup Events Authority commenting on its views as to what they consider to be the impact of Oracle Team USA's actions on the sport and America's Cup. That report was to be filed on August 28.
The Jury has indicated that penalties which may be imposed will not be limited to those prescribed in the Protocol. Penalties imposed under Article 60 are restricted to just the America's Cup. The International Jury cannot impose an all-of-sport penalty which may only be done by the International Sailing Federation after receiving and considering a report from an International Jury, after a Hearing conducted under Rule 69 of the ISAF's Racing Rules, or the national sports body of the host country, in this case US Sailing.
Suspensions from the sport are moderately common in Code of Conduct style cases, whether or not they are also criminal offenses.
by Richard Gladwell
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2:59 AM Thu 29 Aug 2013GMT
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