Following a request from Emirates Team New Zealand, the AC36 Arbitration Panel has issued an interpretation of Article 15.1 of the Protocol.
In substance, the Panel was requested to give an interpretation of the key issue which is what “sailing or testing […] in a coordinated manner” means.
This request wwas made by ETNZ because there was currently a difference of opinion amongst the Competitors on what is permitted under the rule which clearly needs to be clarified to provide the teams with certainty for their ongoing training activities.
Following submissions from the teams the Panel issued Case No. ACAP36/15 Decision:
What is relevant is that coordination happens at any point in time;
the fact that it has been pre-arranged is not necessary in order for coordination to exist. The question is not whether there is a benefit for any Competitor; it is only whether behaviours are coordinated.
For a manner to be coordinated it requires both parties to act in concert, i.e. for both of them to have the intention to do so.
In other words it does not suffice to have two boats sailing on the same course for the coordination condition to be met, a subjective element has to be found on both sides.
What is not prohibited, thus permitted
The Protocol does not prohibit competitors being on the same courses and in the same area, or observing the performance of each other’s boats, so long as it is not done in a “coordinated manner”. Proximity does not in itself mean coordination.
It can however be said that the longer the boats sail close to each other, the greater the likelihood it could be found that they act in a coordinated manner.
The Panel does not consider that it is proper to set any authorised maximum time period with that regard. The same applies to distances: the Panel is not in favour of setting rigid parameters such as not sailing closer than 100 meters from each other.
Panel’s answers to the Applicant’s specific questions:
Teams can use the same marks when training, so long as they are not doing that in a coordinated manner.
The teams can cross tacks or gybes in close proximity.
The Panel cannot define a set distance or time. But the longer one so sailed, the more likelihood the Competitors would be considered to have sailed or tested in a coordinated manner.