America's Cup - No action against Kiwi sailor, but rule changes made

by Richard Gladwell, Sail-World.com NZL on 19 Nov 2015 One of the Oracle Team USA crew members found by the International Jury to have been involved in boat tampering activities with the America's Cup World Series regattas ahead of the 34th America's Cup has not been further penalised by the International Sailing Federation.

At the end of a lengthy decision, the ISAF's Disciplinary Committee and Review Board have concluded that a new Hearing would be required to exonerate Mitchell as he requested.

49. In the light of all of the above factors the Panel concludes that, notwithstanding Mr Mitchell’s request for the Panel to exonerate him, it would be inappropriate to recommence a fresh hearing into this unfortunate episode so long after the event.

50. Consequently, pursuant to the Rules of Procedure Rule 2.6, and under RRSAC Rule 69.2(a), 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.

They also noted that the practical maximum penalty/suspension that could be applied is 18months, based on the penalty imposed on Dirk de Ridder by the Court for Arbitration for Sport after they conducted a 'de novo' or fresh Hearing, without relying on the evidence gathered by the International Jury for the 34th America's Cup.

In de Ridder's case it is significant that two separate judicial bodies came to the same conclusion working independently of each other, but differed on the process and penalty.

However the Court for Arbitration for Sport did impose a significantly reduced penalty than that of the ISAF. CAS also criticised the process used by the ISAF in the conduct of its case saying that the role of evidence gathering should be separate from the Jury function.

The ISAF have taken on board this recommendation and in the latest rules have allowed a 'prosecutor' to be appointed from the Jury to gather evidence and make the case against sailors and others involved. The prosecutor cannot participate in the decision making process.

It is not clear how the ISAF intends to protect its judiciary from legal challenge in the civil court systems, as has happened with the America's Cup International Jury where its members were pursued in the Californian legal system by Matthew Mitchell.

Also not addressed is who is liable for the individual costs of responding to various legal costs associated with both the civil and responding to the Court for Arbitration for Sport actions - which are substantial and are not reimbursed by the ISAF.

The ISAF have also stated that the maximum financial penalty that can be imposed for an infringement of RRS69 is EUR50,000. In addition to the suspensions of its crew members, Oracle Team USA were penalised $250,000 by the International Jury. Interestingly the maximum penalty for misconduct offences under the Protocol for the 35th America's Cup is still set at USD250,000 more than the new ISAF limitation.

The full ISAF decision can be read by clicking here