The predicted penalty of a five year suspension from the sport, for Oracle Team USA wingsail trimmer, Dirk de Ridder, would appear to be extreme by international standards.
The case is due to go before the International Sailing Federation's Review Board in late April. They will consider the report from the Disciplinary Commission, which is the body believed to have recommended a five year penalty on the Dutch America's Cup and Round the World sailor.
The ban would apply to participation in yacht races, but would not exclude de Ridder from private coaching or consulting to a yachting team.
Even so five years, is quite an extreme penalty by international standards for drug and doping offences in sport, where the penalties have only in 2014 been increased from two to four years for a first offence. Against that backdrop five years for a first offence on a measurement issue seems to be extreme.
de Ridder has also lost an America's Cup win as part of his penalty imposed by the Int. Jury, as matter stand he also looks set to lose the upcoming Volvo Ocean Race, which starts in five months. If the rumoured five year suspension were to stand he would also lose the opportunity to compete in the 35th America's Cup.
Most ISAF suspensions are for 12-24 months, with one five year penalty being currently listed.
An additional factor is that not only does the penalty on de Ridder mean an exclusion from yacht racing, but as a professional sailor it represents a very substantial financial penalty - running into hundreds of thousands of dollars of lost income - which is clearly excessive for the measurement infringement.
Had de Ridder been an amateur sailor any ban would have involved just an exclusion from the sport, and his professional livelihood would have been unaffected. The suspension of eligibility only covers competing in yacht races.
The inequity of de Ridder's situation was typified by the two New Zealanders caught up in the affair. Andrew Walker, a shore crew member and boat builder, who if subjected to a suspension penalty, would only be barred from competing in yacht racing, but he would still able to retain his income earning ability within the sport. On the other hand his compatriot Mattie Mitchell, if further penalized, would not only have lost his ability to compete in yacht racing, but as a professional sailor would have lost his professional income as well. Court option
Should the ISAF Review Board uphold the Disciplinary Commission penalty, then it would also seem that under the ISAF’s own Constitution, de Ridder has the ability to take his case to the Court for Arbitration in Sport
Article 82 of the ISAF Constitution says '...there shall be a right of appeal by any of the parties from any decision of the Review Board ....in any other case in which a competitor consents to the jurisdiction of the Court of Arbitration for Sport (CAS) in respect of the appeal. '
In other words it would seem that de Ridder could request ISAF that his case be heard by CAS, and obviously he would consent to that course of action being taken.
At that point, the options for CAS would be to decide whether it would rehear the case in its entirety, or if it would accept the evidence and findings, and merely adjudicate on the question of a penalty - which based would be leveled on the basis of previous decisions in other sports.
The situation places the event organizers, Golden Gate Yacht Club, in an interesting position. Under the 18th century Deed of Gift for the America's Cup, which governs its conduct, GGYC as Defender of the America’s Cup, is responsible for the organization of the Match.
Given that GGYC was one of the parties to the negotiation and establishment of the Protocol, it essentially now faces a claim against the processes set out in that Protocol by one member of its own team - Oracle Team USA. The International Jury, while appointed by the ISAF, has process prescribed by the Protocol.
It is expected that the Jury will be claimed to have not followed those processes, and in effect have been a rogue Jury. That view was given voice by Oracle Team USA CEO, Russell Coutts who late last week claimed on his Facebook page that: 'The ISAF Jury appeared to be on a crusade to 'save the America’s Cup' and I believe they may have allowed that belief to cloud their judgment.'
But this was a vastly experienced five person Jury, counting participation at a Jury level in 21 America’s Cups and 17 Olympic Games. Coutts later jibes at senior members of the ISAF were not helpful to his valued wingsail trimmer’s cause. Ironically it was members of the same Jury which made of the Expert Panel to advise the New York Supreme Court, who found for GGYC (Oracle Racing), in their two year battle with Society Nautique de Genève (Alinghi).
A normal part of any Hearing is that at the outset the process to be followed, is outlined to the parties and their representatives, and the opportunity is provided at that point for objection to be made. No objection was apparently made at that juncture, when there was an opportunity for an alteration in the Hearing procedure.
Jury Chairman, David Tillett second from right, with the other members of the 34th America’s Cup Jury (from left John Doerr, Graham McKenzie, Josje Hofland, and Bryan Willis) - © ACEA /Gilles Martin-Raget Click Here to view large photo
While the ISAF action is taking place under the Racing Rules which govern all sailors, on and off the water while a regatta is taking place. The Hearings also embraced Article 60 of the America's Cup Protocol, shepherded into the Protocol by the Defender and Challenger of Record, against the wishes of the other two Challengers. That Article covered bringing the America's Cup event into disrepute, which it was alleged that the boat tampering had done. At least six implicated
The boat tampering incident blew up several weeks before the start of the 34th America's Cup where several members of America's Cup Defender Oracle Team USA were questioned by the International Jury after measurement irregularities were found. Several members of the team were accused of cheating and adverse findings were made against five of those. Six team members were found by the International Jury to be actually implicated in the issue, but one had no further action taken against him.
Dirk de Ridder and Justin Ferris repairing the spinnaker in the heat below deck onboard Pirates of the Caribbean. Volvo Ocean Race Leg 5 from Rio to Baltimore. - http://www.volvooceanrace.com
A total of five instances of boat tampering were identified by the International Jury, in three boats of the AC45 class which was supposed to be one design. Before the America's Cup Jury Hearings started, Oracle Team USA withdrew both its boats from the four regattas in question, and handed back the trophies. The third boat, Ben Ainslie Racing did the same.
Dirk de Ridder had no further action taken against him after a hearing, by his national authority Koninklijk Nederlands Watersport Verbond (the Netherlands national sailing authority or KNWV). Last week Yachting New Zealand released a report of an investigation by two Commissioners which also recommended no further action against two OTUSA team members who were New Zealanders. The ISAF has not announced whether it intends to proceed further against the Kiwis.
It was the Yachting New Zealand commissioned Report which raised questions as to the process adopted by the International Jury in conducting the Hearings, running over a six week period. The Int Jury’s decision was announced just four days before the start of the 34th America's Cup, which Oracle Team USA won by a 9-8 pts margin after being penalised two points by the Int Jury. The team was also fined USD250,000 - donated to two charities.
The YNZ Commissioners also raised the issue of why at least others named in the Jury Decision did not have action against them, even when they had admitted participation. It is believed that their involvement only became apparent well into the Hearings, and it was not practical to restart the Hearings and reach a conclusion before the start of the 34th America's Cup.
A Decision from the ISAF Review Board, on de Ridder's penalty, is not expected until late May.