Dirk de Ridder v. International Sailing Federation (ISAF)

II. PROCEEDINGS BEFORE THE COURT OF A RBITRATION FOR SPORT

27. On 12 June 2014, Mr de Ridder filed his statement of appeal at the Court of Arbitration for Sport (CAS) pursuant to Article R48 of the Code of Sports-related Arbitration (“CAS Code”). In his statement of appeal, Mr de Ridder requested the following relief:

Mr De Ridder requests the Court of Arbitration for Sport to proclaim that the decisions made b y the Disciplinary Commission were based on insufficient evidence and that the imposed sanction is disproportionate.

Furthermore, Mr De Ridder requests to promulgate that the Disciplinary Commission never had jurisdiction over the case of Mr De Ridder and to annul the decisions made by both the Disciplinary Commission and the Review Board of ISAF.

28. On 23 June 2014, pursuant to Article R51 of the CAS Code, Mr de Ridder filed his appeal brief. In his appeal brief, Mr de Ridder requested the following relief:

1. Primarily, the defence team of Mr De Ridder requests the Court to annul all the decisions of the Disciplinary Commission, and as the Decision of the Review Board draws on these decisions, to annul this decision as well.

2. Furthermore, the defence team of Mr De Ridder respectfully requests the Court to render a new decision in the case of Mr De Ridder instead, dismissing all charges against him and annulling the imposed penalty of ISAF, based on the fact that there is insufficient evidence to convict Mr Dr Ridd er of breach of sportsmanship and, therefore, of “ordering” Mr Ruthenberg to place illegal weight in OTUSA Boat 4 or otherwise being involved in the alleged incident.

3. Alternatively, the appellant respectfully requests the Court to rule that the imposed sanction is disproportionate and too grave. The imposed penalty is disproportional, especially considering the penalty already imposed on him by the America’s Cup jury, in combination with the permanent damage on Mr De Ridder’s reputation, private life and economic future and the already imposed sanction by excluding Mr De Ridder from the 34 th edition of the America’s Cup or to render any decision which is justified in light of the circumstances of the case.

29. On 26 June 2014, with the Respondent’s agreement, the Appellant filed a CD-ROM with all of the applicable Rules and Regulations applying to the case, as well as all the exhibits relied on by him.

30. On 17 July 2014, pursuant to Article R55 of the CAS Code, ISAF filed its answer. It requested that the CAS dismiss the appeal and uphold:

1. The findings of the International Jury of the 34 th America’s Cup (“the International Jury”), the International Sailing Federation (“ISAF”) Disciplinary Commission (“the Commission”) and the ISAF Review Board (“the Board”); and

2. To uphold the decision of the Board to suspend the Appellant’s ISAF Eligibility for a period of three years from 1 September 2016 [sic: ought to read 2013].

…

3. In the event that the appeal is dismissed the Respondent seeks a contribution towards its legal fees and other expenses incurred in connection with these proceedings.

31. By letter dated 23 July 2014, Mr de Ridder made a request to file additional witness statements and to add additional witnesses to his witness list. On 29 July 2014, ISAF objected to Mr de Ridder’s request. On 6 August 2014, Mr de Ridder filed additional correspondence. By letter dated 20 August 2014, the CAS Court Office issued procedural directions on behalf of the Panel, including directing the parties to clarify the status of potential witnesses and their role in the procedure; the Panel drew the parties’ attention to Article R57 of the CAS Code; and proposed hearing dates.

32. By letters dated 22 and 25 August 2014, ISAF and Mr de Ridder respectively, addressed the issues raised by the Panel. In his letter, Mr de Ridder also filed additional witness statements, to which the ISAF objected. By letter dated 28 August 2014, the CAS Court Office issued further directions on behalf of the Panel, including drawing the parties’ attention to the fact that the appeal involves a de novo hearing and therefore, any procedural irregularities during the first instance are curable on such appeal.

33. By letter dated 12 September 2014, the CAS Court Office issued procedural directions on behalf of the Panel including, after taking account of the representations made by the parties, the fixing of the hearing for 1 and 2 October 2014; asked the parties to provide contact details for two potential witnesses the Panel wished to hear from: Andrew Walker and Bryce

Ruthenberg; and reiterated that the CAS procedure is a de novo hearing by virtue of Article R57 of the CAS Code.

A. Constitution of the Panel

34. By letter dated 22 July 2014, the parties were advised that the Panel constituted to hear this appeal was constituted as follows: Mr Conny Jörneklint (President); Mrs Anita L. De Frantz and the Hon. Michael J. Beloff QC (Arbitrators). No party raised any objection to the constitution of the Panel.

35. Subsequently, and in the light of the hearing dates fixed, it was necessary for ISAF to instruct alternative external counsel. By letter dated 17 September 2014, ISAF advised the CAS Court Office that its replacement counsel was Mr Nick De Marco, barrister with Blackstone Chambers – the same chambers as Mr Beloff. By letter dated 23 September 2014, the parties were advised that Mr Beloff and Mr De Marco were practising in the same chambers and the Appellant was granted a time limit to advise the CAS Court Office whether he wished to challenge Mr Beloff. By letter dated 24 September 2014, the Appellant advised the CAS Court Office that he did not wish to challenge Mr Beloff and wanted the hearing to proceed as scheduled on 1 and 2 October 2014.

B. Hearing

36. By letter dated 17 September 2014, the parties and their witnesses were called to appear at the hearing which was held on 1 and 2 October 2014 in Lausanne. The Panel was assisted at the hearing by Mr Christopher Singer, CAS Legal Counsel, and Ms Louise Reilly, ad hoc clerk.

37. At the outset of the hearing, the Appellant’s counsel sought to introduce two additional exhibits and to have heard a new witness, Mr Matt Mitchell. After giving the Respondent an opportunity to comment, the Panel deliberated and ruled that the two exhibits were admissible. The Panel also directed the Appellant to produce a witness statement for Mr Mitchell and scheduled his evidence to be heard on the second day of the hearing. Later in the proceedings, the Respondent sought to introduce the La France Note. After giving the Appellant an opportunity to comment, the Panel deliberated and ruled that the La France Note could be admitted and Mr McKenzie could be cross-examined on its contents on the second morning of the hearing.

38. At the hearing, the following witnesses were heard:

1. Sir Russell Coutts, OTUSA CEO, AC45 Skipper (by telephone) 2. Mr Graham McKenzie, Jury member (in person) 3. Mr Paul Henderson, former ISAF President (in person) 4. Mr Mark Turner, OTUSA Shore Team Manager (by telephone) 5. Mr Matt Mitchell, OTUSA Sailor (by telephone) 6. Mr Bryce Ruthenberg, OTUSA Yacht rigger (by telephone) 7. Mr Andrew Walker, OTUSA Yacht builder (by telephone)

8. Mr Jack Caldwell, former Chairman of Review Board (by telephone)

Mr Dirk de Ridder, OTUSA Sailor, a party, was also heard (in person).

39. ISAF also called Prof. Jan Stage, Mr Bryan Willis and Mr Jerome Pels to give evidence. However, as both parties now accepted,this was a de novo hearing, and therefore, the ISAF decided that it was no longer necessary for those witnesses to be called, as their evidence related to procedural aspects of the case at the lower levels which were not germane to the matters which the Panel had to decide.

40. Before giving evidence, the President of the Panel invited each of the witnesses to tell the truth, subject to the sanctions of perjury.

Sir Russell Coutts

41. Sir Russell Coutts outlined to the Panel that there are a number of ways of moving weight forward on a boat, including by painting the boat and putting branding on it. One issue which he believes the Jury misunderstood was their assumption that the shore team would need direction from a higher authority in the team to make decisions on a boat; he considers that the shore team is tasked with assembling the boat and getting it ready for racing and so they make many decisions in that respect.

42. Sir Russell referred to the investigation conducted by Ms Lee Ann La France, which was not conclusive; one of the reasons was that Ms La France felt that she would need much more time to draw any proper conclusions. As the AC34 was approaching, OTUSA management did not have any more time. The internal investigation did not continue as Sir Russell felt that the team had been penalized enough and did not see any value in continuing the investigation after the AC34 competition had concluded.

Mr Graham McKenzie

43. Mr McKenzie explained to the Panel how the La France Note came into existence, as set out above at para. 9 of this Award. Mr McKenzie stated that on 21 August 2013, he shared the La France Note with all Jury members as he was authorized to do so. According to him, the La France Note was used for asking questions at the Jury hearing, nothing more, as the allegations contained therein were unfounded and not proven. The La France Note was not, however, shared with the parties.

44. Mr McKenzie stated that he received a lot of information leading up to the Jury hearing orally; for example, other teams were giving different views about what had occurred, which were not recorded in writing. He stated that you cannot exclude receiving other information but all the Jury can rely on is what happens at the hearing.

45. In relation to an email dated 19 September 2013 sent by Mr McKenzie to Matt Mitchell, Mr McKenzie explained that he was requested to contact Mr Mitchell by Hamish Ross (ACRM general counsel), through Brad Butterworth. According to Mr McKenzie, the purpose of the

email was to invite Mr Mitchell – whose own related case is currently pending before the ISAF Disciplinary Commission – to tell the whole truth as in Mr McKenzie’s view, the whole truth of who was involved in the unauthorized modifications of the boats had never emerged.

46. As to the case against Mr de Ridder, Mr McKenzie stated that Mr Ruthenberg believed as a result of a conversation that weight was to be put in the forward king post, and that Mr McKenzie believes that Mr Ruthenberg would not have done it by himself. The Jury formed the view that Mr Walker was not telling the truth. Another crew member who was initially named by Bryce Ruthenberg as being present during the conversation in Newport – Sailor X – was able to demonstrate that he was not present at the time the conversation took place and the charges initially brought against him were dropped by the Jury.

47. Mr McKenzie was also questioned about his membership in the Royal New Zealand Yacht Squadron, which was the Challenger at the AC34. Mr McKenzie answered that ISAF conflict of interest rules do not apply to the America’s Cup according to the Protocol, and that it is not unusual for members of the Jury to be members of a yacht club. He reminded the Panel that he was only one of five Jury members.

48. As to why the captain of boat 4 in Newport – Piet van Nieuwhuijzen – was never questioned, Mr McKenzie stated Mr van Nieuwhuijzen was no longer a part of OTUSA and was no longer in the USA. Mr van Nieuwhuijzen denied all knowledge of the incident and he was not further questioned or charged under RRSAC 69.

49. In response to a question whether there was any physical evidence that boat 4 ever raced illegally with lead in the king post, Mr McKenzie informed the Panel that there was an admission from Oracle that the boat raced when it was non-class compliant, and an admission from Mr Ruthenberg that he put lead in the kingpost. Ideally, the Jury would see such physical evidence, but Mr McKenzie believed the lead had fallen out or was removed. A few weeks before the America’s Cup, OTUSA – the holder of the Cup – came to the Jury and informed it that its boat had been racing non-class compliant for the last two years and it was on that basis, that it had surrendered trophies.

Mr Paul Henderson

50. Mr Henderson informed the Panel, that in relation to the ISAF conflict of interest rules, he believed that Mr McKenzie had an ‘immense’ conflict of interest and should have recused himself. The New Zealand government is a $30m investor of Emirates Team New Zealand, the challenge came from the Royal New Zealand Yacht Squadron, and Mr McKenzie is a member of the club.

Mr Mark Turner

51. Mr Turner is still involved with Oracle, has known Mr de Ridder for 12 -14 years and has worked on various campaigns with him. Mr Turner informed the Panel that 14 members of OTUSA were in Newport under the instruction of Andrew Walker. Mr Turner was only there for two days for a sponsorship arrangement. He checked in with the boats to see how things

were going but was not involved in the set up. There was an experienced shore team. Mr Turner was not involved in any conversation about bringing weight forward. Furthermore, Mr Turner was not aware of any direction from Mr de Ridder to place additional weight in the king post.

52. Mr Turner first became aware of the alleged illegal modifications on 26 July 2013 and thought Andrew Walker and Bryce Ruthenberg were responsible. In response to a question from ISAF’s counsel whether Messrs Walker and Ruthenberg told Mr Turner they had been instructed by Mr de Ridder, Mr Turner responded no, that they never told him that; neither Bryce Ruthenberg nor Andrew Walker identified Mr de Ridder and that did not come up as a discussion with Mr Turner at that time. When asked by ISAF’s counsel when it first came up, Mr Turner responded that he could not verify when that was said. ISAF’s counsel referred to Mr Turner informed the Jury that Andrew Walker was in charge of the shore team at Newport and in response to who had carried out the modifications, Mr Turner had responded that it was the shore team; “if that’s what they’d been directed to do”. Mr Turner confirmed that he had been told at the time that Mr Ruthenberg had been given instruction and that Mr Turner in consequence told Mr Nicholson on 4 August that he believed a sailor had been involved.

53. Counsel for ISAF pointed out that the only reason evidence about boat 4 came to Mr Turner’s attention and ISAF was because Andrew Walker and Bryce Ruthenberg voluntarily told Mr Turner about it during his investigation, following the discovery of illegal modifications on the BAR boat. Mr Turner responded that Bryce Ruthenberg volunteered it but he did not get a very clear picture from Andrew Walker as his story changed. Mr Turner stated that Bryce Ruthenberg never said he was directed by Mr de Ridder and did not say he had been pressurized by Mr de Ridder to put the weight in the forward king post.

54. Mr Turner stated that Andrew Walker did not give Mr Turner a name or say who it was or who was part of the group. Mr Turner believes the pressure must have come from a sailor or sailors, but he was never told a name. Andrew Walker never said that Mr de Ridder was the person who gave the instruction and Mr Turner still does not know or have any idea how all this came about. To him, it is very unclear who said what and how the weight addition came about.

Mr Matt Mitchell

55. Mr Matt Mitchell is a former sailor with OTUSA and his disciplinary case is currently before the Commission on charges relating to the BAR boat, which he denies.

56. In relation to the email of 19 September 2014 from Mr McKenzie, Mr Mitchell informed the Panel that he forwarded the email to Mr de Ridder because he thought it was highly unusual for an ISAF official to be talking to him about someone else’s case. Mr Mitchell denies that he approached Mr McKenzie through Hamish Ross and stated that he did not ask Mr Ross to contact Mr McKenzie on his behalf. Mr Mitchell informed the Panel that he was completely surprised to receive the email and had no idea what Mr McKenzie was talking about regarding “The Truth”. Mr Mitchell also questions why Simeon Tienpont – who admitted pouring resin

into the kingpost of BAR – was not charged with a Rule 69 violation whereas Mr Mitchell was charged.

57. In response to counsel for the Appellant’s question whether Mr Mitchell’s understanding was that he would give information in return for a favourable ruling, Mr Mitchell responded that he was unsettled by ISAF’s approach and sent an email with a letter copied to Mr McKenzie and Jon Napier.

Mr Bryce Ruthenberg

58. As Mr Ruthenberg was called to give evidence at the hearing by the Panel, he was first asked by the President of the Panel if he could confirm the information given to the Jury and interview with Mr McKenzie, which Mr Ruthenberg did. Mr Ruthenberg stated that he did not wish to change anything in his prior testimony and confirmed that he remembered meeting Lee Ann La France. He also confirmed that he accepted the content of a letter dated 19 December 2013, which he wrote to Jon Napier, in which he accepted the allegations made in the AC Jury Report.

59. Mr Ruthenberg met Mr de Ridder in 2007 and said that they got on well; he regarded Mr de Ridder as a friend and good work mate. He also had a good relationship with Andrew Walker who he has known for 12 years and was best man at his wedding. Mr Ruthenberg confirmed that the first time the matter of weight in the forward king post came to light, was when he and Andy Walker told Mark Turner.

60. Mr Ruthenberg stated that Mark Turner and Russell Coutts asked him about the incident prior to the McKenzie interview and he told them what he had done, which was add weight to boat 4 at Newport. Mr Ruthenberg confirmed that he did not stand to gain anything by admitting responsibility. He also confirmed that he knew the work was not permitted so he hid it from the AC measurers, by putting the lead inside the hollow kingpost.

61. Mr Ruthenberg described that he weighed the lead in Andrew Walker’s presence and that it weighed about two kilos. In relation to page two of the additional handwritten notes of his interview with Mr McKenzie, Mr Ruthenberg stated that when he mentioned that Mr de Ridder was ‘driving it’, he meant that Mr de Ridder had instigated the weight forward. Mr Ruthenberg stated that he, Andy Walker and […] were involved in adding the weight and hiding it, and that Dirk de Ridder also knew about it. He initially recalled Sailor X being involved but accepts that was a mistake.

62. Mr Ruthenberg confirmed that his recollection was that Mr de Ridder gave him instruction to put weight in the front kingpost. Mr Ruthenberg agreed with counsel for ISAF that the terms ‘front kingpost’ or ‘dolphin striker’ are often used interchangeably. Andy Walker also instructed him and Andy Walker was present when the instruction was given. Furthermore, Mr Ruthenberg confirmed that he was not just instructed to move weight forward generally, but to add it to the front kingpost.

63. Mr Ruthenberg believed that the instruction to place weight was clear, and he would not have carried out this work on his own back as he is simply a rigger in the team that does his job in the team; performance analysis of boats is not his “thing”. Mr Ruthenberg stated that Mr de Ridder is very good at performance analysis of boats, and Andy Walker also has knowledge of performance and design of boats.

64. Mr Ruthenberg could not recall exactly when the idea to put weight in the forward kingpost first came up but he agreed that it was before the races at the Newport Regatta. He stated that it would have been during the set-up period which lasted 4 or 5 days and would have been day 1 or 2 of the set up. ISAF’s counsel mentioned that the measurement report of Mr Nicholson stated that races began on 27 June, and suggested that the conversation to add weight would have taken place sometime between 22 and 24 June, with which Mr Ruthenberg agreed. Mr Ruthenberg confirmed that his recollection was that he provided the bag for the weight and Mr Walker provided the lead shot and that the idea of adding weight to the forward kingpost came from Mr de Ridder.

65. Since Mr Ruthenberg confessed to what he did, he no longer has a job with OTUSA or in the industry.

66. In response to questions from Mr de Ridder’s counsel, Mr Ruthenberg stated again that he did not recall any exact dates. He described that the conversation to move the weight forward took place inside the set-up tent, near the lunch table. He initially recalled that Sailor X was present during the conversation but he agreed that his recollection as to who was there was not accurate and during the Jury hearing, he remembered that Sailor X came to Newport later. Mr de Ridder’s counsel suggested that given that Mr Ruthenberg arrived in Newport on 17 June, and the meeting took place 1 or 2 days after he arrived, the conversation about putting weight forward would have taken place between 17 and 20 June, with which Mr Ruthenberg agreed.

67. Mr Ruthenberg stated that he could not recall exactly what was said in the meeting but Andy Walker subsequently told him he was getting pressure from ‘Cheese’ (Mr de Ridder) to get the job done.

68. Mr Ruthenberg agreed that there were conversations about putting weight low and forward generally and that had been the subject of email correspondence, which included Richard Slater, after the Newport Regatta.

69. Mr Ruthenberg does not recall whether Mr Slater was aware of the idea to put weight forward in the king post but that […] was aware. Mr Ruthenberg recalled that […] was on the boat when Mr Ruthenberg was putting the weight in and that he and Mr Walker were talking to […] as they were adding the weight. Mr Ruthenberg’s recollection is that Mr Walker bought the lead in Newport.

Mr Andrew Walker

70. Mr Walker gave evidence that he arrived in Newport the same day as Mr Ruthenberg and he recalled that Mr de Ridder arrived later, on 21 June 2012. He does not remember any meetings and stated that Mr Ruthenberg’s recollection of a meeting to discuss putting weight in the forward kingpost was false. He also stated that he was not put under pressure by Mr de Ridder to put weight anywhere but he was generally under pressure given the nature of the job. He stated that there were lots of discussions within the whole team about how to make the boat go faster, including putting weight forward by adding extra layers of paint and heavier graphics. He recalls seeing Piet van Nieuwhuijzen before the measurement, as he was the boat captain so he came out to Newport early to sort the boat out.

71. In response to questions from ISAF’s counsel, Mr Walker disputed that he is in a higher position than Mr Ruthenberg and stated that the first he knew of the weight being put in the forward kingpost was when Mr Ruthenberg told him he added it. Mr Walker presumed that it had all passed through the right chain of command. Mr Walker denied that he admitted to Mark Turner in July 2013 that he was involved with Mr Ruthenberg and denied being involved. Mr Walker agrees that Mr Ruthenberg would not have added the weight off his own bat, but would have done it under instruction which Mr Walker thought had gone through the correct channels. Mr Walker disputes that he bought lead in Newport.

Mr Jack Caldwell

72. Mr Caldwell gave his opinion that the Jury process was unfair as hearsay evidence was used as proof of matters. He stated that the Disciplinary Commission was created in haste to attempt to slip in English sports law as the applicable law.

Mr de Ridder

73. Mr de Ridder submitted that he is an exceptionally ambitious person but he did not consider himself a forceful person. The whole team was performance driven and he believed that you do not win world championships without a pressure to perform. However, he would never cheat to win. Mr de Ridder left school at 19, has sailed since then and is considered one of the most successful wingsail trimmers in the world. Since the Dutch MNA publicized that it would not impose any further sanction, he received a lucrative job offer to join the Volvo Race, Team Abu Dhabi.

74. Mr de Ridder stated that OTUSA started the Newport Regatta 5 points ahead of the rival team and so there was no motive to cheat. He said the team held open discussions about moving weight forward for the regattas in Venice and Naples well before Newport, but nothing illegal was ever discussed. He submits that the Jury failed to make the distinction between people who work on the platform and those who work on the wing, each of whom have very clearly defined roles. […] Mr de Ridder explained the concept behind moving weight forward in light air. Mr de Ridder accepted that if someone put weight in the forward kingpost it would be a breach of the rules.

75. Mr de Ridder stated that he arrived in Newport the morning of June 21 and arrived at the OTUSA base after lunch. He gave an interview about cleaning and using wings but there were no meetings. He recalls that Piet van Nieuwhuijzen arrived a day earlier and was working on the platform. Mr de Ridder was working on the wings. The next morning Mr de Ridder went down to the base and got the boat ready for measurement. He stated that he was never involved in a meeting as described by Mr Ruthenberg. He does not know why he did not bring up the question of timing before the Jury hearing. He stated that Sailor X got off because he could prove that the boat was already in the water when he arrived in Newport.

76. Mr de Ridder has never been accused of cheating in over 20 years. In relation to a chain of emails starting with one from Andy Walker dated 17 April 2012, Mr de Ridder stated that OTUSA is like a Formula 1 team and they do everything to go faster. He accepted that as Mr Ruthenberg no longer works in the industry, there is no reason for him to lie. Mr de Ridder pointed out that Mr Ruthenberg was very clear that he was getting pressure from Mr Walker, but Mr Ruthenberg could not remember what Mr de Ridder said, where he said it and who was present. Furthermore, Mr Ruthenberg never informed Mr de Ridder about putting weight forward.

77. Mr de Ridder stated that he found out about the weight in the forward kingpost 2 -3 weeks before the Jury hearing in San Francisco. In relation to a comment in the McKenzie interview notes that he was ‘aware of work done to the dolphin striker’ Mr de Ridder stated that Mr McKenzie was pretty loose with evidence and what he himself meant was that he could physically see that work was done to the kingpost; lots of boats have problems with the kingpost and it can be serious if it breaks. In response to a suggestion that he gave a different answer to the Jury, Mr de Ridder drew a diagram to explain to the Panel how extra length was added to the kingpost and at the time of the McKenzie interview, he knew this work had been done as he could physically see it. By the time of the Jury hearing, more measurements had been made and one could see that extra length had been added.

78. In relation to sanction, Mr de Ridder stated that the penalty is enormous and destroys 20 years of hard work. He considers that he cannot prove he did not do something. He was hoping to do one more AC and then move into boat design. The AC teams have now hired their teams for the next cup. Mr de Ridder’s penalty has not been made public so he still gets offers for day sailing. The entire episode was highly publicized in the media and Mr de Ridder had to explain to his children why the media were saying he was a cheat.

III. SUBMISSIONS OF THE PARTIES — A. The Appellant’s submissions

79. The Appellant’s submissions, in essence, may be summarized as follows:

1. Evidence: there is a lack of sufficient evidence against Mr de Ridder to justify a finding of guilt;

2. Penalty: the penalty imposed was disproportionate;

3. Disciplinary Commission: the Commission lacked jurisdiction to hear Mr de Ridder’s case and the Rules of Procedure of the Commission were created illegitimately; and

4. Due process: there was a general lack of procedural fairness during the disciplinary hearings of ISAF.

a) Evidence

80. The Appellant submits that the case against Mr de Ridder is based entirely on the testimony of Bryce Ruthenberg who had only a ‘vague recollection’ of the conversation during which Mr de Ridder allegedly directed Mr Ruthenberg to place the weight in the forward kingpost. The Appellant submits that Mr Ruthenberg was uncertain about who was present at the meeting, who ordered him to place the lead and how he was instructed to place the lead. Moreover, Mr Ruthenberg acknowledges that he never told Mr de Ridder he had placed the lead.

81. In relation to the alleged meeting, the Appellant submits that Mr Ruthenberg was wrong about Sailor X and could have been wrong about Mr de Ridder. Andy Walker strongly denies such meeting ever took place and the meeting has never been confirmed by any of the attendees allegedly present. The alleged meeting took place on 19 or 20 June 2012, yet Mr de Ridder was not in Newport on those dates. ISAF did not dispute the evidence of Cathy Ryan that she travelled with Mr De Ridder on 21 June and ISAF did not dispute the timeline, which proves that Mr Ruthenberg was mistaken not only as to Sailor X but also Mr de Ridder. The Appellant submits that the best evidence is that of Mr de Ridder himself which the Panel should accept.

82. The Appellant submits that the available evidence does not make sense and there is no direct evidence of lead in the forward kingpost. It cannot be excluded that lead was put in after Newport as there is no chain of custody. Furthermore, there is no motive for Mr de Ridder to put his career on the line for a potential advantage, knowing it was illegal. Mr de Ridder was always an honest person.

83. The Appellant submits that the Lee Ann La France investigation was inconclusive and the La France Note contained views that were unfounded and unproven. ISAF’s counsel failed to show that Mr de Ridder was a liar, whereas Ms La France found Mr de Ridder to be a credible witness.

84. In relation to the standard of proof, counsel for Mr de Ridder submits that the standard should be interpreted as close to reasonable doubt given that Mr de Ridder is facing the most serious charges. Counsel reminded the Panel that Mr Ruthenberg received a one-year period of ineligibility, which was suspended subject to certain conditions, for his role in the matter.

b) Penalty

85. The Appellant submits that the sanction is disproportionate and has destroyed Mr de Ridder’s career, or at least seriously handicapped it. The Appellant compared this case to sentences handed down in other disciplinary cases before ISAF, and referred to CAS case law and English/EU law to demonstrate that the principle of proportionality must be observed and the “exclusion of Mr De Ridder from the 34 th edition of the America’s Cup would have been a sufficient punishment in this view”. Finally, Mr de Ridder is fighting for his honour and the damage is not just about the dollars.

c) Procedural Issues

86. In his written submissions, the Appellant pleaded that the Disciplinary Commission lacked jurisdiction; the Review Board made a fundamental error by accepting the Rules of Procedure of the Disciplinary Commission; there were irregularities concerning the adoption of the rules of Procedure of the Disciplinary Commission; and there was an absence of ‘natural justice’ because of an overlap in members between the various ISAF disciplinary bodies. In relation to the procedural issues, in his closing submissions, counsel for Mr de Ridder submitted that they could be cured by the de novo hearing, but that nonetheless there should be a ruling on the conduct of ISAF as the sport deserves this.

d) Costs

87. The Appellant requests a ruling on costs, should his appeal be successful

B. The Respondent’s submissions

88. The Respondent’s submissions, in essence, may be summarized as follows:

a) Evidence

89. Counsel for the Respondent submitted that ISAF completely rejects any allegation of conspiracy. ISAF did not cause this controversy. It was presented to it after confessions were made and an investigation occurred. The reason Mr de Ridder was found guilty was because he was the only sailor named by the two who confessed.

90. ISAF submits that there was a conversation between Andrew Walker, Bryce Ruthenberg and Mr de Ridder at which adding weight was discussed. Mr Ruthenberg was expected to add weight, and Mr Ruthenberg did add weight. Mr de Ridder knew it and also that it was in breach of the rules. He did not tell the truth to the Jury. ISAF’s case does not depend on a direct order.

91. In relation to motive, counsel for ISAF submits that this is not a case where motive ought to trouble the Panel. It is obvious that those involved were very keen and very focused on moving weight forward and down on the boat. The emails disclose legal ways of doing so; the motive

is there and desire is there. Mr de Ridder was in a position of authority and respect to encourage, persuade, and direct Messrs Ruthenberg and Walker to carry out the illegal act. It is simply not remotely probable that Mr Ruthenberg or Mr Walker would add weight without direction to do so.

92. ISAF submits that the strongest evidence is Bryce Ruthenberg’s confession. He had nothing to gain by confessing, which caused the proceedings to commence in the first place. If Mr Ruthenberg had said nothing, there was no evidence the lead was in the forward kingpost and the only way it was discovered was through his confession. Mr Ruthenberg has lost any chance of working in the industry and has suffered in that way to the same extent as Mr de Ridder. ISAF submits that Mr Ruthenberg is extremely credible, although his recollection of events – exactly which day and who was there – are not perfect. It was not important whether Sailor X was there, as Mr Ruthenberg did not say anything about him. Mr Ruthenberg understood the instruction came from Mr de Ridder, which is corroborated by Mr Walker in a number of ways. Mr Walker’s present evidence is unreliable; it has obviously changed throughout proceedings. It started with him admitting much more in terms of his own involvement and also implicating Mr de Ridder. Mr Walker’s contemporaneous corroborative evidence at pages 357 & 358 of the Transcript state there was a meeting where Mr Ruthenberg, Mr de Ridder and maybe Piet van Nieuwhuijzen were present.

93. ISAF submits that the timeline reconstructed by Mr de Ridder does not help. Mr Ruthenberg cannot recollect exact words said and does not remember exact dates. Mr Ruthenberg was pretty sure the boat was measured the day before the race, which would have been 26 June. ISAF submits it can only be assumed Mr Ruthenberg meant the day before the boat was put into the water to train, which would have been 21 June. The only thing the Panel can be sure is that weight appears to have been put in the boat before the races. No one can remember exactly when and it is certainly possible that Mr de Ridder could have been there for discussion. The evidence regarding Piet van Nieuwhuijzen only came out during the CAS hearing and is not an issue before this Panel.

94. In relation to the La France Note, counsel for ISAF submits that the note does not add much but it corroborates the evidence of Andy Walker and Bryce Ruthenberg. ISAF’s counsel submits that Mr De Ridder’s answers are not persuasive and that further, ISAF’s counsel st ated that Mr de Ridder was unable to explain why Mr Ruthenberg would have added weight without instruction.

95. Counsel for ISAF submits that the correct burden of proof is comfortable satisfaction, which comes from the rules and regulations in place and is also the test that CAS will apply for these types of cheating cases and match fixing cases where there is no other standard.

b) Procedure

96. Counsel submits that as this is a de novo hearing any procedural difficulties are cured. As the focus of the CAS hearing was on the factual issue of what had happened at Newport, ISAF had not developed full submissions in answer on the ISAF procedure.

c) Penalty

97. Counsel for ISAF accepts that the sanction must be proportionate and submits that the most helpful jurisprudence is the case law on match fixing. ISAF accepts that the regatta stage was not the America’s Cup final, but it was part of the biggest international sailing event and at the highest level. ISAF submitted that a sanction of 3 years is not too long and is not one the Panel should interfere with.

98. At the conclusion of the hearing, the parties confirmed that their right to be heard had been respected.