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America's Cup - ISAF and Cup Jury summonsed by California Court

by Richard Gladwell, Sail-World .com on 9 Sep 2015
David Tillett second from right, with the other members of the 34th America’s Cup Jury (from left John Doerr, Graham McKenzie, Josje Hofland, and Bryan Willis) ACEA /Gilles Martin-Raget
The International Sailing Federation, the controlling body for world sailing, and the five individuals who made up the International Jury for the 34th America's Cup have been served with a Summons by a San Francisco Court.

The action has been brought by Matthew Mitchell (NZL) a former Oracle Team USA crewman who was one of five to be penalised by the International Jury after conducting an investigation and Hearings into allegations of boat tampering in the America's Cup World Series.

The papers were filed with the San Francisco Court last Friday.

The taking of civil court legal action against the ISAF and a Jury, is unprecedented, and could have deep ramifications in the sport - where ISAF certified and approved officials are involved in all forms of adjudication, on a voluntary basis, and usually without any insurance.

While disputes are common-place over Jury decisions, they have not been previously subject to civil court litigation of this nature.

The Summons lodged on September 4, with the US District Court for the Northern District of California based in San Francisco, names the International Sailing Federation, and five International Jury members, chairman David Tillett (AUS), Graham McKenzie (NZL), Josje Hofland (NED), John Doerr (GBR) and Bryan Willis (GBR/MAS). Four of the Jurors are the most experienced in the ISAF stable, having served at Olympic Games and America's Cup level going back into the late 1980's. All but McKenzie (a former partner of a leading NZ legal firm) are International Judges certified by the ISAF.

The claim centres around the premise that the Jury is a panel of five Arbitrators and seeks to have the Arbitration Award vacated.

It is also claimed that the Jury had ignored the law of scienter, which requires that an offending party must have knowledge of the 'wrongness' of an act or event prior to committing it.

Mitchell claims that he did not know that the changes to Kingposts and other modifications were illegal. He assumed because they were on a support team work-list, that they had been approved by the team's rules adviser and were, therefore, legal. The boats involved were AC45 wingsailed catamarans and were strict one-designs, and could not deviate from the class rules in any way.

The Jury decision in the measurement tampering, across four regattas, was announced only a few days before the start of the Match for the 34th America's Cup between Oracle Team USA and Emirates Team New Zealand.

Hearings were conducted, after an investigation by two Jury members, under the provisions of Racing Rule 69 Allegations of Gross Misconduct.

Two Oracle Team USA crew were suspended from racing. Wingsail trimmer Dirk de Ridder (NED) was excluded for the entire match. Mitchell (NZL)received a four-race exclusion. However, he was on the water in a chase boat. Oracle Team USA were fined $250,000 by the Int Jury.

De Ridder received an 18-month suspension from the sport after an Appeal to the Court for Arbitration for Sport. No further action was taken against Mitchell or any of the other crew by their national authorities who have post-event jurisdiction in such cases.

In February 2015, Mitchell issued a media release saying that he had filed complaints with the ISAF because the International Jury had not taken action against another former OTUSA crew member, Simeon Tienpont (NED) for his part in the boat tampering incidents.

A second OTUSA team member Joe Spooner has also taken action in the same Court over a claim relating to his termination from the team, when he claimed he had a signed contract running through to the 35th America's Cup in Bermuda.

Several sets of exhibits were filed with the Summons - several have previously been in the Court domain. However, a confidential contract between the International Sailing Federation and America's Cup Regatta Management was also included.

The contract reveals that the ISAF charged ACRM 800,000Euros for Jury services covering the America's Cup Match and its preliminaries, including the nine regattas that made up the America's Cup World Series.

In addition to their payment from the ISAF, the Jurors received a premium economy airfare to each regatta, accommodation and 30Euro as a per diem allowance - the travel and accommodation expenses are similar to the standard for all ISAF Jury members working on regattas from Optimists upwards. They were required to be available for eight days for each ACWS regatta (plus travel time) - anticipated to be 16 in number, and then be based in San Francisco from July to September 2013. The time requirements are such that it would be highly disruptive to most business/regular income and the Jurors were compensated for this loss of income, over the three year period.

Air travel costs were estimated at 145,000Euro over the three-year period.

America's Cup Regatta Management, a company, registered in St Helier, Jersey in the Channel Islands was also required to provide Professional Indemnity Insurance Cover of 10,000,000Euro for the International Jury.

There is no mention in the Summons of Matthew Mitchell seeking to make a claim under this policy if his case were successful, however if this were the outcome it would be expected that some financial compensation would be paid.

The ISAF and individual Jury members have 21 days to respond to the Summons.

A Hearing is scheduled for early December 2015, but may be settled with some form of Mediation beforehand.

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