America's Cup- New Protocol represents a substantial shift in rules

by Richard Gladwell, Sail-World.com/nz on 4 Jun 2014 While the official release notes many of the high level features of the Protocol for the 35th America's Cup, a quick reading of the lengthy document which will govern the 2017 regatta reveals substantial change from the preceding event.

The entry fee has been set at $2 million, payable in two installments, as well an additional Performance Bond of $1 million is required. Entry fees were initially substantial for the last America's Cup and were slashed, when the numbers of Challengers did not eventuate. The new levels seem to be set to encourage only well-funded teams

Only the top four Teams will proceed to sail in the America's Cup Finals at the event venue. The Challengers will have to sail a series elsewhere, which has been previously condemned as unworkable by many due to the difficulties that creates for sponsor exposure. The venue and dates for the 35th Match will be announced by December 31, 2014.

The Defender appointed and controlled America's Cup Event Authority will conduct the selection process for the Challenger Play-Off's round. It is not clear how far in advance of the Finals this will be scheduled. Of course, Challengers will have to launch their boat well in advance of the play-off's, work it up, and then take the same boat to the match venue, sail a further series of races, and then one will go on to compete in the Match - all sailing just the one boat.

The timing of the Play-off stage of the America's Cup has not been announced. The teams will not be able to launch their AC62 until 150 days before the start of the Play-offs.

The selection of the Play-off venue will be handled by ACEA and will no doubt attract a Venue Fee. ACEA in conjunction with the Challenger of Record and Competitors Forum shall decide the Play-off venue.

An America's Cup Qualification series will be held which will bring forward points into the play-offs depending on the number of entries. It would seem that entry into the ACQ series will be restricted only to bonafide America's Cup Challengers and Defender, however other teams may be allowed to compete as last time in the ACWS when the Challenger numbers were insufficient to make an event.

The Nationality rule requires only a minimum of two crew on aboard an AC62 and only requires the crew to have a passport in the country of their club, on this basis with many competitors carrying dual passports or being entitled to do so, this is not a significant change.

Jury gone
The International Jury has gone and been replaced by a three person Arbitration Panel chosen from Court of Arbitration of Sport. The powers of the Arbitration Panel are limited. The America's Cup organisers have yet to conclude an arrangement with the world sailing body. It is not clear who will actually adjudicate on Racing Rule infringements, in the Protocol the Umpires are expected to adjudicate on racing rule decisions. The proposed system is the same as that used in the 2000 and 2003 America's Cups. The rationale then was to set up an arbitration body to keep issues out of the Courts, and the cut-off between the Arbitration Panel and the Int Jury was that the former handled Protocol related issues and the latter handled racing rule issues, but there were issues when both the Protocol and Racing Rules applied to a case.

For later Cups the dual body concept was dropped in favour of a single International Jury selected and appointed by the International Sailing Federation. That independence of the Jury was the only defence the Challengers had against the Defenders - who for the first time lost two significant Hearings and had five of their team named for cheating, The Int Jury also levied a $250,000 fine against the Defenders and docked them two points in the Match.

The Panel has been set up legally as an Arbitration body and has its seat in the State of New York legal system, which is also the home of the 18th century Deed of Gift that governs the America's Cup. However that terminology also surrounded the International Jury in the 2013 America's Cup.

ISAF Rules provide for the appointment of an Intentional Jury for the America's Cup with its members to be appointed by the ISAF. It would seem that America's Cup organisers are on a collision course with ISAF, unless there are substantial changes. The Protocol says that the racing rules will be agreed between the Challenger or Record and Defender and published by November 1, 2014. It is not clear if these will be the ISAF Rules, or the the ISAF AC Rules (used in AC43) or some other concoction.

A new function, the Commercial Commissioner has been created to make commercial decisions on all aspects of the four series.

The Measurement Committee will not be subject to review by the Arbitration Panel and its decision will be final. It is not clear if there would still be recourse to the Arbitration Panel in a situation where in AC34 the Measurement Committee, supported by Oracle and Artemis, ruled that foilers were effectively illegal. It was only Emirates Team NZ and Luna Rossa, supported by the Regatta Director who took the Measurement Committee to the Int Jury who held that the Measurement Committee had exceeded its authority and had effectively written a new class rule, which they were not entitled to do. No such automatic recourse is available under this latest Protocol, save for a claim that the Measurement Committee had exceeded its jurisdiction or authority.

A Regatta Director will be appointed to handle race management of all events. While the Protocol is long on commercial rights, there is no mention of distribution of any surplus revenue to the Teams. Additionally the teams are restricted to the use of social media and websites etc that are not part of the Event media, and are controlled by ACEA.

One of the most disturbing aspects of the Protocol is that all officials are appointed by the Defender, and can be removed at any time by the Defender, the exception being members of the Arbitration Panel who can only be removed by the Defender and Challenger of Record. The costs of officials are now to be shared amongst the competitors, yet the right of hire and fire rest solely with the Defender.

The appointment of key officials in the International Jury and Umpiring team by the International Sailing Federation, independently of organisers, gave considerable protection to the independence of key officials, and that has now been removed.

ISAF has long stood for independence of adjudication and fairness, with competitors operating within the sidelines of a level playing field. That basic tenet appears to have been removed, and there is far less mention of the world body in the current Protocol than that which applied for the 34th Cup.

Erasure of ISAF from any major sailing event is a very serious issue, particularly when this flies in the face of ISAF's own Regulations. Sanctions on the event, and those involved, would be an expected consequence. In the first instance it would probably fall to the US body, US Sailing to pull their member club, Golden Gate Yacht Club into line. Teams with 2016 Olympic sailors in them, who have entered the 35th America's Cup, could also find themselves in hot-water with the world sailing body.

Boat rules:
The Defender will be allowed two boats and the Challengers only one. Both Defenders and Challenger boats shall be subject to a hull alteration rule of 20%. (Presumably both Defender boats could have different alterations and stay within the 20% - they do have to initially come from the one mould). In the event of the Defender's first boat being damaged and not being able to be repaired, they can use their second boat. The Challengers have no such rights in the event of major damage in the Match or preceding events.

The wind limits have been changed to 25kts True Wind Speed instead of the ridiculous system of an Apparent Wind Speed Limit used in the last America's Cup. The lower limit is 5kts.

There are no limits on observation of competitors - the Defender can get as close as it likes to Challengers on the water and vice versa.

The Surrogate Boat rule remains as it was for AC34 - i.e., less than 33ft, or an AC45. It is not known if the AC45's can be modified to include foiling versions. There is provision for the AC45's to be adapted to become foilers in the last round of the Qualifiers.

The Protocol can be changed with the consent of the Defender, the Challenger of record and the majority of the Competitor Forum.

The early reaction from Team New Zealand is that they accepted that the America's Cup might be moving outside the reach of the commercially funded teams with requisites for USD$3million in Entry Fees and Performance Bonds before the venue is announced.

New Zealand responses and comment:

For Peter Montgomery's comments click here

Team New Zealand's Grant Dalton is flying back from Europe to New Zealand but spoke with NewstalkZB this morning, click here to listen

Team New Zealand indicated they may make a statement later today, but would prefer to leave the question of their participation until the senior members of the team had met face to face and discussed the issues.

And for the last word from TVNZ's Mike Hosking as he closed the Seven Sharp prime time news tonight:

'If the America's Cup ever wants to be taken seriously, why when they launch the new Protocol, as they did today do they insist on bringing in rules that can cause nothing but derision?

'Oracle get to have two boats - everybody else gets one. How can you possibly dream up a rule as dumb as that, and keep a straight face?

'Having been in San Francisco and seen first hand what is possible in the sport. Having seen this country gripped by the magic of the Cup and having listened to Russell Coutts promise a more open and fair contest, this rule makes a joke of all that.

'Sort the venue, Get the cost down, get a bunch of entries, let everybody compete on a level playing field, and stop being a bunch of dicks.'

On the other channel in the same time slot, the Protocol was described as 'bizzare' by John Campbell, the show host.

The Protocol was a prime time news item on both NZ channels, and was lead item in the primetime evening news on Click here for 3News sports item on the America's Cup Protocol and click here for the report from OneNews.