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America's Cup- New shots fired in the Case that won't go away

by Richard Gladwell/ on 13 Jan 2015
A Jury Hearing in progress at the 34th America's Cup - July 8 ACEA - Photo Gilles Martin-Raget
Bernie Wilson of the Associated Press has reported that the former head of sailing's governing body has filed complaints of gross misconduct against the five members of an international jury that imposed penalties on several sailors and Oracle Team USA just prior to the 34th America's Cup.

The reports were confirmed by Sail-World with other parties, who were advised last night of the complaints.

Paul Henderson of Toronto has requested hearings by the International Sailing Federation (ISAF), says AAP The action comes weeks after the Court of Arbitration for Sport reduced sailor Dirk de Ridder's suspension from sanctioned events from three years to 18 months. De Ridder was banned from the 34th America's Cup in September 2013 and Oracle Team USA was docked two points in a scandal involving manipulation of the weight distribution of boats that Oracle sailed in warmup regattas.

Henderson filed individual complaints against jury members Bryan Willis of Great Britain and Graham McKenzie of New Zealand, based on depositions they gave during hearings before CAS, and a single complaint against the other three jury members, David Tillett of Australia, Josje Hofland of the Netherlands and John Doerr of Britain.

'All members of the AC 34 jury failed and violated the principles of ISAF by not providing an equitable and fair hearing to all sailors,' Henderson wrote in his complaint against Tillett, Hofland and Doerr.

ISAF competitions manager Jon Napier says executives will review Henderson's complaints. They can refer them to a disciplinary commission for investigation and possible hearing, or, if they decide there's no case to pursue, Henderson can appeal that decision.

Henderson said Willis stated in a deposition to CAS that jurors were an 'independent tribunal working outside ISAF management,' and therefore were operating outside the personal agreement they had all individually made with ISAF. That agreement states that jurors can be suspended or terminated if they do not adhere to ISAF rules and regulations.

Henderson said McKenzie should have recused himself due to conflict of interest, either 'real or perceived.' McKenzie is a member of the Royal New Zealand Yacht Squadron, which backed Emirates Team New Zealand, and a delegate to ISAF from the New Zealand Yachting Association.

Henderson also contends the jury violated ISAF rules that forbid using hearsay evidence.

Henderson said in an email to The Associated Press on Monday that protection for sailors 'has eroded as the judges became professional and are very influential. If they do not adhere to the commitments made to honor ISAF Regs then ISAF is in chaos and the sailors are racing under an undefined set of ISAF Regs.'

It is a normal part of a Jury Hearing for the parties to be offered the opportunity to object if they have any question about the partiality of a Juror. It is understood that this offer was made at each Hearing, and no Jurors were challenged.

Additionally Graeme McKenzie is not an ISAF certified official or International Judge. He was part of the Jury at the 2007 America's Cup in Valencia, and again for the 2010 America's Cup and was part of the Expert Panel formed in the latter stages of the New York Supreme Court hearings in the 2007-2009 period.

The Protocol governing the 34th America's Cup specifically stated that a Jury member could be 'a resident or citizen of any country, including a country of a yacht club participating in the Event and/or a member of a yacht club participating in the Event.' Although he was the only Jury member from a country of a competing team (USA, ITA, SWE, NZL) his inclusion was more of a continuation of using the same Jury from the 2007 and 2010 America's Cups. Normally a juror would not stand aside in a Hearing even if either the protestor or protestee were from the same country or club. Although that fact would be declared if it were not obvious. In this case the Italian, New Zealand or Italian Challengers were not directly involved, as the case was based on a Report from the Measurement Committee against OTUSA, and then specific members of the team as well.

All other members of the ISAF appointed Jury have extensive records at America's Cup, Olympic Games and World Championship level. At America's Cup regattas they are paid an allowance to compensate for loss of earnings over the six month period or longer. At all other regattas they serve in a voluntary or living expenses (food and accommodation basis only).

The case of Dirk de Ridder was heard by both the International Jury and the Court for Arbitration for Sport. While the latter body noted several issues of process adopted by the International Jury, both bodies came to the same conclusion as to de Ridder's involvement.

The main issue raised by CAS was lack of an independent prosecutor in the case - which is not provided for the Racing Rules or Protocol that governs the conduct of an America's Cup. It is understood that the Int Jury asked for such a person to be appointed to separate the functions, but this was declined by organisers on the grounds of cost. The Jury then appointed two of its members, Bryan Willis a former Magistrate, and Graeme McKenzie, a former senior partner in a prominent Auckland law firm to investigate in a prosecution role. They did not give testimony to the Jury, but provided copies of notes taken that were signed by those interviewed at the conclusion of the interview process.

An independent internal inquiry commissioned by Oracle Team USA was not completed, and the Int Jury had the option of proceeding as best they were able or delay the start of the Match until they were able to fully investigate.

Although some penalties were imposed on other Oracle Team USA team members, it is believed to be unlikely that further action will be taken against them by the World body.

In the end the outcome of the Hearing was announced just a week short of the start of the Match - having taken six weeks to be conducted.

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