Gladwell's Line- Hurry up and wait for the America's Cup Jury

by Richard Gladwell on 1 Sep 2013
A ruling is not expected until Monday or Tuesday (local time) in San Francisco from the International Jury in to various claims of boat tampering and gross misconduct.

The five person Jury are believed to have concluded their two Hearings bought under Rule 69.1 of the America's Cup edition of the International Sailing Federation's Racing Rules, and Article 60 of the Protocol governing the 34th America's Cup.

That timing will leave Oracle Team USA with just three or four clear days before the start of the regatta on Saturday September 7.

To some extent Oracle Team USA are responsible for the final Hearing being delayed by two days, to allow their legal counsel Philip Bowman of top New York law firm Boies, Schiller & Flexner, to accommodate the Hearing in his schedule.

The fact that the legal heavies are being allowed into the Hearing indicates that the matter is serious, and Bowman is believed to have been injected after the conclusion of the Rule 69.1 phase, leading into the Article 60 Hearing set down for August 29, in San Francisco.

As speculation turn to the outcomes from the Hearings it must be realised that three of the many planets in the America's Cup Universe need to have aligned, before the situation could be possible in which Oracle Team USA now find themselves in immersed with the International Jury.

As a backdrop to the current situation, it should be noted that the options for any form of disciplinary hearing under ISAF Racing Rules are very limited once a regattas has concluded. Generally the gate will close on complaints about conduct when the racing has concluded, maybe stretching to the prizegiving, and in one exceptional case over an incident that happened in the airport on the way home. Measurement issues may be an exception.

Beyond that cut-off time, matters of ill-discipline usually become a matter of Code of Conduct Hearings in the country involved.

The final race in the series in which Oracle Team USA sailed with their illegal and altered kingposts, was in May 2013, some two months prior to the first report being lodged.

But those aren't the co-incidences.

The Protocol
The first came back in September 2010, when Russell Coutts CEO of Oracle Team USA and Vicento Onerato, Principal of then Challenger of Record, announced in Valencia, Spain that the 34th America's Cup would be sailed in AC72 catamarans. At the same time they announced the creation of the America's Cup World Series event. Initially to be sailed in the AC45 class. The initial plan was to switch to the AC72 class in 2012, and sail out the final rounds using the AC72's. That move was later dropped because of costs and lack of entries.

It is for that reason as to why the Protocol was, quite properly written, to cover all of the America's Cup World Series, and the two events that comprise the America's Cup Regatta - the Louis Vuitton Cup and the Match itself. There was also the probability that the ACWS would in some way carry qualification points into the Louis Vuitton Cup to add some needle into the preliminary series - thus making it essential that there was an all-embracing Protocol covering a two year period of racing.

Under a shorter sighted approach, the Protocol would have covered the America's Cup Match only, and the measurement issues that occurred in the America's Cup World Series would not have been able to be carried forward as they have, in the Oracle case.

Dalton Amendment
The second came in January 2012 with the introduction of Article 60, the Code of Conduct, into the Protocol, the so-called Dalton Clause, designed to curb comments being made by teams that were interpreted as being negative to the event. Emirates Team NZ's Managing Director Grant Dalton was particularly critical, mainly over campaign costs and claims by Oracle Team USA's CEO Russell Coutts (when the AC72 move was announced) that campaign costs would be reduced by 20% over the previous Cup campaigns. There were other issues such as Challenger numbers which were also being aired, and the introduction of Article 60 was designed to bring an end to the Blame Game.

It is that Dalton Amendment which is now being used by the International Jury to investigate Oracle Team USA. The extent of the Code of Conduct is such that it drills deep in to the teams and events and encompasses everyone associated with the teams and event organisers.

Without the Dalton Amendment, the International Jury would have been limited to just Rule 69.1 - in its amended form for the America's s Cup which extends beyond just a boat (meaning crew) and her owner and extends down into associated individuals.

Red Bull Youth America's Cup Series
The third came with the Red Bull Youth America's Cup, and the checking of the combined fleet of AC45's by an independent team. Only by this process were the slightly heavier kingposts picked up which triggered the report to the Regatta Director, who in turn protested Oracle Team USA.

Without the Red Bull Youth America's Cup, and the access to the checking of the Oracle boats by people outside the team, the illegal AC45's would have remained in Oracle Team USA's possession and the tampering with the kingposts would have gone undetected.

Penalty Options not easy
The question then turns to Penalties - given that Oracle Team USA have admitted in an internal report that three members of their shore team and one member of the sailing team were involved.

The International Jury in this case have said they will not be bound by the options contained in Article 15(d) of the Protocol - however in reality there are not too many other choices.

These include: (i) Censure; (ii) Fine; (iii) order a partial or full forfeiture of a Challenger’s performance bond (since written out of the Protocol); (iv) order loss of existing or future points, scores or races; (v) award points or races to another Competitor; (vi) disqualify a Competitor from any race, series or the Event; (vii) order a reduction in the number of sails permitted; and/or (viii) to order the suspension or expulsion of any individual from the Event.

Looking at these options, only a deduction of points in the Match would seem to have any real impact on the Team. While some would see a big fine as an option, the reality is that it has to be commensurate with what has been levied in previous Cups. Also coming to close to the start of the Match it would have little real impact on the team's development. Bear in mind, too, that substantial costs will be levied against Oracle Team USA. In past cases these have gone up to EUR250,000.

The loss of points in the Match seem to be the most likely option. It would also hit the Team as a whole.

Suspension of individuals will have little effect in a two boat campaign - where substitutions can be easily made, and probably have been worked into the team's sailing equation already to cover for injury or similar.

But what ever the outcome of this case, the point remains that at least two and maybe all three of these planets in the vast America's Cup Universe had to align, for this matter to have come to the International Jury's attention.