America's Cup- Oracle crew mate lodges ISAF complaint against Tienpont

by Richard Gladwell, Sail-World.com on 28 Jan 2015 Last Friday, former Oracle Team USA team member, Matthew Mitchell issued a media release stating that he has lodged a complaint with the International Sailing Federation over the actions of a fellow crew member, Simeon Tienpont, and inaction by the International Jury for the 34th America's Cup, in San Francisco.

A Dutch sailor, Tienpont is now with the Challenger Luna Rossa (ITA).

The complaint to the International Sailing Federation centres around both a report from an investigation by Yachting New Zealand and an internal report from an allegedly incomplete investigation by Oracle Team USA.

The Yachting New Zealand report expressed surprise that action was not taken by the International Jury against Tienpont.

In a report commissioned by the New Zealand national sailing body, two Commissioners appointed by YNZ wrote: 'we are troubled by the fact that the ACIJ (America's Cup International Jury) failed to include an allegation of gross misconduct against Simeon Tienpont. He was called as a witness by the ACIJ ..... he stated that he put resin in the dolphin striker of Boat BAR, alleging that he had assisted Matthew Mitchell in this and had been asked by Matthew Mitchell and Kyle Langford to do that work. We struggle to understand how a senior sailing member of OTUSA who admitted in an interview with ACIJ (Jury) Members filling a kingpost on Boat BAR with resin should not have faced an allegation of serious misconduct under (ACRRS) Rule 69 as did Bryce Ruthenberg, Andrew Walker, Kyle Langford and Matthew Mitchell did.'

In the statement, Mitchell says that he is looking forward to the ISAF investigating his claims. Mitchell's statement accompanying the media release also embraces the controversial foil adjustment system used by Oracle Team USA, on the basis that Tienpont was one of those on board who was able to adjust the foils.

Oracle internal investigation
Mitchell alleges that 'Oracle's internal investigator expressed surprise that Simeon was not charged at the time of the revelations - this from a secret memo that surfaced at the recent CAS (Court for Arbitration for Sport) re-examination of a related case.' The statement makes other claims that require further substantiation.

In its report the ISAF Disciplinary Commission made reference to the Oracle Team USA internal investigation by Ms Anne Le France, and notes that a report on an interview with Ms Le France was on the Jury's records that was not made available to the accused parties for comment. 'According to the CAS decision, that note on one hand finds Mr de Ridder (Dirk de Ridder, suspended for 18 months by CAS) a credible witness (contrary to the conclusion that the AC Jury came to), but on the other hand corroborates the evidence of Mr Ruthenberg (Bryce Ruthenberg, OTUSA Shore team), and demonstrates that of Mr Walker as inconsistent.'

No further action
Mitchell's media release has also advised that the ISAF have decided to take no further action against him and that his case is considered closed. He was suspended from participation in the next four races in the 34th America's Cup by the International Jury.

The Int Jury made a report to both Yachting New Zealand, being Mitchell's own national authority and also the ISAF. The New Zealand body proceeded according to its rules and regulations and appointed two Commissioners, lawyers Roydon Hindle and Richard Brabant, to investigate and report. They recommended no further action and made comments critical of the International Jury and its processes.

The matter was also investigated by the ISAF in accordance with its processes and regulations.

In the conclusion to its report the ISAF Disciplinary Commission concluded that 'not withstanding Mr Mitchell's request for the panel to exonerate him, it would be inappropriate to commence a fresh hearing into this unfortunate episode so long after the event.'

'Consequently.... the panel orders that there shall be no further proceedings in this matter, the case is considered closed, and there is no finding by the panel as to the truth or otherwise of the AC Jury Report or of any breach by Mr Mitchell of the RRSAC'.

For the full Yachting New Zealand report referred to above click here

Earlier claim for legal costs
Matthew Mitchell also lodged a claim in a Californian court on December 20, 2014 against Oracle Team USA claiming recompense for legal fees involved in his defence during various Hearings and processes click here for the full story

Mitchell claimed he had to pay out $68,000 in legal fees, interest and other costs, to defend himself in the now concluded case with the International Sailing Federation over changes made to the one design AC45 catamarans used in preliminary regattas in 2012 and 2013.

Below is the note sent to the International Jury by Oracle Team USA undertaking to hold an internal investigation and share the Report with the Jury. This did not happen and the Jury were forced to just interview the investigator Ms Anne la France.

It is this interview which came to light at CAS, and the subsequent non-disclosure, around which Mitchell's complaint is based.

In the Jury Decision penalising Oracle Team USA $250,000, under Article 60 of the Protocol (Protecting the Reputation of the America's Cup) the Jury made the comment:

'94. During the course of the hearing OTUSA acknowledged that they had not found the answers to the questions that arise out of the five incidents. They believed they had taken the required action to identify the relevant people. OTUSA?s Counsel submitted that the team had tried to get answers but there was one person who should know the answer. He submitted the person was „not cooperative? and they did not think they were going to get any more answers and the person was „currently suspended and will go?. OTUSA has no plans to continue their internal investigation as they do not believe they can take the matter further.'

The person who was claimed to have been suspended by the Team was not named in any of the subsequent Reports. Whether that person was revealed informally by the OTUSA internal investigator to Graham McKenzie is not known. The contents of the notes from McKenzie's interview were known to the Jury, but their existence was not revealed to the individuals until the CAS Hearing - which is the point of Matthew Mitchell's complaint.