America's Cup - Jury Chairman speaks up on AC45 controversy - Part 1

by Richard Gladwell, Sail-World.com NZL on 10 Aug 2015 Claims leveled over the past two years at the International Jury for the 2013 America’s Cup, and repeated in papers lodged in a Californian court on July 24, have prompted the Chairman of the Int Jury, David Tillett to open up on the still simmering controversy..

Tillett's move is very unusual in Jury circles, where little is discussed outside the Jury Room.

Since it suspended several members of the Oracle Team USA crew, and fined the team $250,000 as well as deducting two race points, the extremely well credentialed International Jury has come under attack from many at the top levels of the sport, while it has been quietly applauded by others.

The world body of sailing, the International Sailing Federation has swatted away several complaints lodged against the America's Cup Jury. Some of those complaints have also been taken to the Court for Arbitration for Sport.

“The Jury can only act on the information it has. It is as simple as that, and if people don’t fully co-operate in giving it the information it becomes very difficult”, he told Sail-World.com in response to the criticism that has been leveled at the five-member International Jury for the event.

Tillett takes a sideswipe at Oracle Team USA crewman, Matt Mitchell, who received a four-race suspension from the AC Jury of which Tillett was the Chairman. Mitchell is one of those who will not let the 2013 controversy die.

Many cases
The former Oracle Team USA crew member has cases running against his former team for $68,000 of legal expenses involved in defending his actions and reputation.

In a second case also against Oracle Team USA, Mitchell claims the team should have terminated or suspended a team member, Simeon Tienpont (NED) after the team learned he was involved in filling a kingpost with resin in a team managed AC45. Tienpont had no action taken against him by the International Jury despite admitting his actions.

In February 2015, Mitchell also laid a complaint with the world body for the sport, the International Sailing Federation, alleging misconduct by the International Jury for the 34th America's Cup. That claim came two weeks after a further claim to the world body over the actions of fellow crew member Simeon Tienpont, who Mitchell claimed had lied to the International Jury.

“Mitchell had the opportunity in the Jury case to say what he knew, first of all in his interview, to disclose what he thought. Then in the Hearing, he or his lawyer had the ability to ask questions of (fellow crew member) Simeon Tienpont and also give evidence himself on all matters. Then, leading up to the CAS case – why didn’t he come forward with what he now claims to know?”

“The Jury simply believed that the full facts should be disclosed by persons with knowledge of them,” Tillett explains.

Calls have also been made by others for Simeon Tienpont (NED) also to be charged with a Rule 69 Hearing - two years after the event.

Tienpont admitted filling a kingpost with resin, but not adding, or having knowledge of who placed small bags of metallic material, described as lead tailings, to increase the weight of kingpost, which would have reduced the amount of official corrector weights carried in the AC45 to equalize all boats.

No action was taken against Tienpont by the International Jury.

“We didn’t take action under Rule 69 because the information from the investigation and subsequent hearing is that we were not convinced he had knowledge of the metal substances being in the kingpost.

“He knew about the resin being poured in, but that wasn’t the real issue – which was the added metallic weight that was already in there.”

Tillett concedes that adding resin is adding some weight into a hollow kingpost, or strut, which is part of the structural support system underneath the main spine in the one design AC45 catamaran.

“But you could be adding resin in for a variety of reasons. It is not the same as adding metallic weight.”

“From the evidence we were able to gather from the investigation, and Hearing, Tienpont’s involvement was very incidental,” he told Sail-World.com

Time was tight
Tillett says that another factor in not proceeding against Tienpont was because the Jury received additional information during the Hearing, and after the Investigation process had been completed.

“We didn’t have the time to stop the case at that point, charge Tienpont, and allow him a proper time to prepare for a hearing.”

“We would have lost a week and that would have caused all sorts of issues.”

The Decisions to suspend two of the Oracle Team USA crew were given less than a week before the start of the match for the 34th America’s Cup, and stopping the Hearing process to embrace Tienpont could have meant that the Jury Decision might not have been made until after the America’s Cup had started.

“The other option was to finish the first set of cases and then charge him after that, but that wouldn’t have worked either, as the racing in the America’s Cup would have been well underway. The Jury was also not convinced there was sufficient evidence for Tienpont to have a case to answer.”

“We may have been wrong in that assessment. But that is the view that the Jury came to. We discussed the situation as a Jury, looked at the evidence we had involving each person and then made a decision individual by individual as to whether there was a case to answer. And where there was such a case, named them in the RRS69 proceedings. It is as simple as that.”

Oracle Team USA boat captain Dirk de Ridder (NED) received the heaviest penalty from the Int. Jury – exclusion from the 34th America’s Cup Match and later received an 18-month suspension from the sport after a Court for Arbitration for Sport Hearing. Evidence was also given at CAS that the suspensions had cost him a $500,000 contract to sail in the 2014/15 Volvo Ocean Race.

Dirk de Ridder has always maintained that he is completely innocent of all charges that were brought against him by the International Jury, and that he should not have been penalized at all for the boat tampering.

Matthew Mitchell received a four-race suspension from the Jury, however after crew changes after Race 3, did not get to sail in the 34th America’s Cup.

Even following the hearing of the evidence, the Jury dismissed one matter as it was not comfortably satisfied as to that person’s involvement. The person became known as Sailor X and had his name suppressed, at his request, by the International Jury.

ACRM shore crew picked up issue
In fact it was not the measurers who picked up the Oracle discrepancies, but a member of the America’s Cup Regatta Management team, who was preparing all the AC45’s for the Red Bull Youth America’s Cup that noticed that the kingposts in the Oracle maintained boats were heavier than the others and reported the fact to Regatta Director Iain Murray, who in turn reported to the Int Jury and the measurers became involved at that point. Oracle Team USA and BAR immediately and voluntarily withdrew from four ACWS regattas and forfeited all prizes and trophies.

According to the Hearing Transcripts, it was the forward kingpost, or dolphin striker, from Ben Ainslie Racing which triggered the six-week investigation and Hearing. Glyn Davies the ACRM boatbuilder charged with assembling the AC45’s for the Red Bull America’s Cup mentioned to the measurer that the Oracle Team USA boats were different in some ways, and that their kingposts were heavy (later confirmed to be 2.5 times heavier than the standard version).

The boat sailed by BAR and maintained by Oracle Team USA was handy, “and he had the forward kingpost off the boat. And we picked it up and weighed it, and it was dramatically heavier than a normal forward kingpost.’ said Nick Nicholson. The chief measurer added that they had never had the opportunity previously to dissemble the boats into their constituent components.

“We always see them when they are assembled for a regatta, and weigh the all-up platform as well as the wing,” he told the Jury.

From there, the Measurer reported the discrepancy to the Regatta Director, who in turn filed a report with the Jury.

“A report was given to us by ACRM – it was up to the Jury to decide whether to act on it – and we decided to investigate,” says Tillett.

The Jury had to identify who, in a very large OTUSA team, they should interview. The two Jury investigators came up with a standard interview template of questions which all selected OTUSA team members were asked.

Mckenzie, a former senior partner in a top New Zealand law firm, then wrote their answers on the form.

The team member being interviewed signed that form – which is why Mckenzie's handwriting appears on each form. Present at every interview was a lawyer for Oracle Team USA and occasionally another representative from the team. “We had no control over who was present. The sailors were given the right as to who was present.”

Oracle Team USA team management claimed that the responsibility for the boat changes and maintenance were the responsibility of the shore crew alone.

“I would not have expected that senior sailing team members would have been present when the work was being done. There may have been a discussion with them as to whether weight should be placed forward and down. It was all to do with improving the boats and making them go a little bit faster.”

“In a one design boat every edge you can get, the better. These guys like to win.”

It is believed that the resin was poured in to make the metallic weight difficult to find, rather than to just stop it rattling around within the king post.

Tillett says that the Jury did not look at other team boats. “That is the measurer’s job.”

When asked if he thinks other boats were altered outside the rules, Tillett says, “we have no evidence to indicate that they were. The measurers would say they would be asked from time to time by people wanting to push the performance envelope if something was permitted – but we have no evidence to suggest that anything done was illegal.”


To read Part 2 of this story click here .