Design knowledge is a cumulative acquisition and as easy to transport as the labour market. One has only to look at Benetton's launch software engineer, BMW's senior engine designer and a leading Ferrari aerodynamcist all changing uniforms amongst Formula 1's top teams in recent weeks.
Whether or not the Panel finds OneWorld guilty of illegally acquiring and putting to use data from Team New Zealand and Prada, this issue will remain part of the Cup because the Protocol tries to police practices that will be always be tough to enforce.
However you slice it, it is fraught with problems. On a simple human level, you can't expect designers either to erase their memories or destroy records. On a broader commercial level some America's Cup teams might not even own the copyright to the design of their boats, so putting the Protocol can be at odds with real world contract law.
It pays to remember why the Panel came into being in the first place. It was a response to Sir Michael Fay's Big Boat challenge of 1988 when Fay's lawyer Andrew Johns took the narrow legalistic view that the Deed of Gift enshrined the right of a challenger to request the right to sail the match in boats defined by limits set in the 19th century.
The Protocol was born for the 1992 Cup to try and tie the Deed of Gift, class rule and match conditions into one coherent code and to require participants to forfeit recourse to civil law for disputes (save matters such as negligence). For the Protocol to work, the Cup needed it's own 'Supreme Court' as a final dispenser of justice beyond the jury.
One of the reasons the OneWorld saga has cropped up a second time is because not only did the Seattle team make its own application to be sanctioned for admitted Protocol breaches but because, rather like, Andrew Johns, it too took a narrow legalistic stance.
It ring fenced the issue and made its August ruling accordingly. In the past the Panel has launched its own investigations ( in 1995 it considered if Syd Fischer's Sydney '95 was really the first of John Bertrand's OneAustralias, thereby in breach of the two boat limit).
Had the current Panel done this a year ago, the OneWorld saga might not have still been running half way through the Louis Vuitton challenger trials, fuelled by Sean Reeves continuing to claim that there was much more wrong-doing than OneWorld ever owned -up to.
The Panel terms of reference needs to be expanded and defined so that is required to right to the heart of disputes. . It needs to be given a nose to sniff out wrong doing and the clout to do something about it. For that, it probably needs to be hived off from the Cup itself - remember the five man panel is appointed and funded by the contestants of each Cup cycle.
That's why outright disqualification is unimaginable.
No one questions the Panel's competence or partiality, merely a willingness to launch a no-holds barred investigation. It would have sparred some reputations, finished others and replaced allegations with established fact.
In short, what's needed is a proper separation of powers and the power to separate wrong from right. And punish accordingly.
Tim Jeffery, 7 December 2002
