Down and dirty
The America's Cup is as much about politics and intrigue as it is about sailing and the Thirty First edition looks like being a vintage event on both fronts. While the true sailing strengths of the challengers and defenders has yet to be tested, accusations, claims and counter claims are starting to run thick and fast.
The latest little piece of ugliness is a submission to the Arbitration Panel from the Oracle syndicate. The problem started in the same way as a thousand neighbourhood disputes, with claims that Oracle was peeking over the fence into Prada's compound (they are next door to one another). In practice it's not quite as simple as that, as Oracle could only see into the Prada compound from a barge moored at the end of their dock. The barge in turn had already been subject to dispute as Prada claimmed it blocked part of their dock. Prada claim to have reached an agreement with Oracle that the Americans would build a bigger fence so they could no longer look in. This, says Prada, Oracle have not done.
As it was Prada who were upset at being looked in on, it's hard to see way they did not build the bigger fence, but that perhaps is a story for another day. Suffice to say that things got testy and as angry neighbours are want to do, Prada resorted to the Courts to try and settle the matter. On 18 June Prada opened an action in the High Court of New Zealand. Never mind the rights and wrongs of the Court Action, the mere fact that it existed was enough to spark Oracle into action, not in the courts but with the America's Cup Arbitration Panel.
Oracle cited Article 10 of the Cup Protocol which says, "As a condition of entry as a Challenger in the Thirty First America's Cup and in addition to all other requirements under the Deed of Gift, all Challengers are required under Article 1 to agree that they accept and will be bound by all of the provisions of this Protocol. In particular such acceptance includes an acknowledgement that all decisions rendered by the Arbitration Panel will be binding on all Challengers and RNZYS and shall not be subject to appeal or be referred to any court or other tribunal for review in any manner."
Article 10 goes on to say, "Any Challenger who resorts to any court or tribunal, other than the Arbitration Panel or any other dispute resolution body agreed by RNZYS and the Challenger of Record will, except as permitted by Article 10.4, be in breach of this Protocol and will accordingly be ineligible to make the declaration provided in Article 6 and to be the Challenger for the Match."
Just to make the whole thing clear Article 6.4 says quite clearly, "No Challenger shall be accepted as Challenger under the Deed of Gift unless it shall first have declared in writing that it has until that time complied, and will thereafter until the conclusion of the Match comply, with the terms of the Conditions, this Protocol, the Deed of Gift..."
Oracle Racing has thus effectively filed a protest against the Prada that alleges they are ineligible to compete for the America's Cup.
In another twist to the long running OneWorld v Tea new Zealand saga e-mails have surfaced that suggest some of OneWorld's mast fittings design may look rather too similar to those of the last generation TNZ boats. Though interesting there is really nothing new in the claims.
Quite what the outcome to either case will be is anyone's guess. If the arbitration panel take the same general view as the Jury at the recent 49er World Championships, then even minor and inadvertent transgressions of the rules will be enough to see the Prada and OneWorld crews on the plane home without so much as sailing a single race. If on the other hand, they take the same view as the Jury in the Race Committee v illbruck case at the end of leg one of the Volvo Ocean Race then both cases could simply be brushed under the carpet.
The big question is simply this; does the Arbitration panel have any teeth at all? If it is found that transgressions have taken place and no action is taken (Volvo Style) what is the point of their the Protocol or the Arbitration Panel? Where Would ISAF President, Paul Henderson's much vaunted level Playing field be then?