America's Cup nationality- People in glass houses?

by nzeditor@sail-world.com on 15 Jun 2007
In the no-mans land leading up to the 32nd Match for the America’s Cup, the Generals have been skirmishing over the vexed issue of nationality.

Or in other words, who has the fastest team of Kiwis?

Sail-World did some quick research on the various Cup Protocols going back to 1980 to see how this issue has evolved.

In terms of the Deed of Gift for the America’s Cup, which it is oft-stated to provide a competition between friendly nations, the basis of the competition is that the Defending Yacht Club accepts Challenges from yacht clubs of other countries.

So, the America’s Cup is an event between yacht clubs, not nations, not racing teams.

The reality of the modern America’s Cup is that no yacht club has the resources to mount a challenge or defence, and this role is delegated to a Patron, racing team, syndicate of backers, company or whatever. However the common touchpoint is that that it is the club that lodges the Challenge to the Defending club.

Another cornerstone of the Deed of Gift is that the boats and various specified equipment must be designed and built in the country of origin of the club of the Challenger/Defender.

This concept worked for a while, but in the modern competition the rules were eased to allow the use of sail-cloth and tank testing facilities as Challengers had to overcome a major technological disadvantage compared to the US Defender. This gap was effectively going to mean the end of the competition and with the growing internationalism of the marine industry, the lines became increasingly blurred.

In the case of tank-testing, while the runs could be undertaken in another country, provided the Defender could be assured that there was no suitable facility in the country of the challenging club. It was clear that the nationality of the designer still had to be that of the challenging club and no others could participate.

This was at the heart of the 1983 America’s Cup, where New York yacht Club believed that Australia II had some design input from the Dr Peter Van Oossanen of the Netherlands as that was where the towing tank and test facilities were located. As Van Oossanen did not meet with the nationality test specified in the Interpretations to the Deed of Gift which required that the 'designers of the hull, rig and sails should be nationals of that country' (meaning country of the challenging/defending club).

Ironically while the US complained about the involvement of one Dutchman on the Challenger side, the US Defender was designed by Johan Valentijn, also a Dutchman, but who had US nationality.

In the same Interpretation it was stated that in 'any year subsequent to 1980, every member of the candidate’s crew must be national of the country in which the club represented by the candidate is located'

This was the first instance of crew nationality being a part of the America’s Cup, and generally to claim nationality you had to hold a passport in the country of the Challenging/Defending club you wished to represent.

This rather tight state of affairs lasted until 1984 (when Royal Perth YC held the Cup) and a softer nationality interpretation was introduced which required that the nationality requirement 'will be satisfied if the person has been domiciled in, or has had a principal place of residence in, or has a valid passport of that country for a period of two years before the date of the first race of the applicable America’s Cup Match'

So in the 1986 Louis Vuitton Cup/1987 America’s Cup in Fremantle the way was open for nationals of one country to sail for a challenging/defending club of another country provided they satisfied the two year residence rule.

(For the purposes of this rule it was agreed that staying in the venue of the Cup base in another country ie Australia counted as time in the country of the challenging/defending club.)

The nationality of crew situation remained largely unchanged and at the time of the 'defections' of the key Team New Zealand crew to the newly formed Alinghi in May 2003, the only requirement for the non-Swiss crew was that they took up residence in Switzerland before the 1st March 2001(given that the date for the first race of the Match was 14th February 2003, and there was a specific date inserted in the Protocol for the 31st America’s Cup to clarify the matter)

Those joining Alinghi had the problem that unless they sailed on a Swiss lake, they could not be deemed to be domiciled in Switzerland, and most had to purchase/lease property in Switzerland to comply with the Interpretation.

The consequences of a breach of this rule were severe, and their yacht would face mandatory disqualification from each race sailed.

There was a marked contrast in crew composition in the 31st Match in Auckland. Alingi, representing Swiss club had a total of seven nationalities represented on their boat in Race 4, for instance, where Team New Zealand had just three) all New Zealand except for Adam Beashel (AUS) and Bertrand Pace (FRA) who had replaced Hamish Pepper (NZL).

There were only three Swiss nationals aboard Alinghi in that race, with seven Kiwis in the sailing crew of sixteen, compared to 14 aboard the Royal New Zealand Yacht Squadron entry.

The first edition of the Protocol for the 32nd America’s Cup had no mention of crew nationality, but was angled to stop crew switching teams.

Article 13 of the first edition of the Protocol for the 32nd Match read:

13.12 Crew restricted to work for only one Competitor: A Competitor shall not engage a person in any capacity who has sailed on another Competitor’s yacht as a race or training crewmember within a period commencing eighteen months prior to the first race of the Match, except with the consent of all Competitors still competing in the Regatta. A 17th person referred to in the ACC Rules shall not constitute a crew member for the purposes of this Article 13.12.
This created an 18 month window, or no-transfer period for crew leading into the 32nd America’s Cup and obviated the need for passports, residency etc which had been in place for the past 20 years.

However coincidentally with the issues between Alinghi and Russell Coutts the final edition of the Protocol was amended to read:

13.12 Crew restricted to work for only one Competitor :

(a) Except with the consent of all Competitors still competing in the Event:

(i) at any time after 2 March 2003, a person who has been contracted, employed, paid or otherwise engaged (paid or unpaid) by a Competitor as a race or training crewmember for a total of 180 or more days may not be engaged (paid or unpaid) by another Competitor in any capacity; and

(ii) at any time after 1 January 2006, a person who sails on a Competitor’s yacht as a race or training crewmember may not be engaged (paid or unpaid) by another Competitor in any capacity.

So Russell Coutts, who had remained with Alinghi after the 2003 America’s Cup, but left after more than 180 days, even though he had not sailed on an Alinghi yacht in that time, was excluded from sailing for any other competitor in the 2007 America’s Cup.

Effectively there is no nationality rule for crew in the America’s Cup. What does exist is a no-transfer rule.

The issues to be addressed are:

(a) whether a return to the Newport Rules (1983) should be put in place, requiring all to be nationals of the club they represent.

(b) Whether the Fremantle Rules (1987) should be applied setting a two year residency window.

(c) whether the Valencia No-transfer Rules should apply which can clearly be manipulated to prevent sailors from competing in the America’s Cup if they have a falling out with their existing team, even though the next America’s Cup