49er controversy set to continue

As Italy's national Olympic Committee takes the 49er medal race to the Court of Arbitration in Sport in Lausanne

Update - see the footnate at the bottom of this article...

Italy’s national Olympic Committee confirmed today in Milan that it will take the result of the 49er Medal Race to the Court of Arbitration in Sport in Lausanne.

The case has already been the subject of four International Jury hearings in Qingdao over the undeniably odd episode in which series leaders Jonas Warrer and Martin Kirketerp (DEN) broke their mast in a monster capsize before the start, arranged use of the Croatian boat through their coach, completed the race, and became Olympic champions.

By completing the medal race, rather than being scored as DNC, the Danes won the Gold medal from Spain’s Athens Gold medallists, Iker Martinez and Xabi Fernandez, with Italy’s Sibello brothers in the Bronze position.

There’s probably not a person in Qingdao who doesn’t believe the 49er medal race was quite the most bizarre thing they’ve seen in sailing. All ten boats capsized at some stage or another (opening up a whole new line of debate about how these boats struggle so much by spearing into waves that even massively skilled Olympic sailors can’t keep them on their feet) and the medals were decided by a crew not even sailing their boat.

Bizarre is one thing. Finding a rule which says it is illegal is another and that’s why the results have stood. Martinez and Fernandez accepted what happened with equanimity, though the Spanish federation was geared up to take action. In the end it is the Italians who have taken the matter to a higher jurisdiction.

Through the course of the four hearings the following questions were raised:

With the start sequence running while the Danes were still leaving the harbour, did they cross the start within five minutes as the Sailing Instructions require? Yes, with 3m 57s on the clock.

Did the Danes finish within 15 minutes of the race winners from Austria? Yes.

Had Denmark obtained permission to use a boat that had not been in the pre-Medal Race Quarantine area? No, not before the race. The Danish team did however inform the race committee 15 minutes before the preparatory signal of the boat change; “at the first reasonable opportunity” according the Jury decision.

Once ashore, the Danes applied for written permission to the Olympic Measurement Committee to have the boat checked. This was done and duly passed.

Therefore with no rule saying that a boat can’t be substituted, the Jury decided it was legal and have been given necessary clearances to compete.

So often the devil is in the detail, and this why the case was revisited several times.
Spain initially argued for redress saying that the Danes had a weight advantage as
Pavie Kostov and Petar Cupac’s boat didn’t have carry the onboard camera as it was never intended to compete in the Medal Race. And what about the question of the wrong three letter country code? Several crews admitted they though it odd that the ‘Croatians’ were out on such a wild day and didn’t realise this was a competitor in the race. Neither of these factors gave the Danes a competitive advantage the Jury rule.

The one thing that could have tripped the enterprising Danes was carrying the wrong country letters and this was subject to a discretionary penalty not a mandatory one.
Had it been the latter, the Danes would have been DSQ and the matter laid to rest.

Instead, it’s set to run. One outcome we can be certain of is that the next Olympics’ Notice of Rule and Sailing Instructions will be written to cover boat substitution. Being silent on the subject has only raised hackles…

The decision in full:

Race: 16
Protestor: RC
Protestee: DEN
Protest details:
Facts found:

Protest 66 RC v DEN and Protest 68 ESP v DEN were heard together and under Medal Race Sailing Instruction Addendum Q 5.5(b). Sailing to the start, DEN capsized and broke her mast. This resulted in significant damage including the mainsail, gennaker and mast step. DEN returned to shore. It was not possible for DEN to repair the damage in the time available and DEN arranged with CRO to use the CRO boat. DEN, through their coach, at the first reasonable opportunity notified the Race Committee of the replacement 15 minutes before the warning signal. DEN sailed to the start, started 3 minutes 57 seconds after the starting signal and completed the race. The race was conducted in winds close to the upper limits for 49er racing and in very difficult wave and tidal conditions. Every boat capsized at some stage during the race and two boats failed to finish inside the time limit. As soon as practical after coming ashore DEN submitted a written request to the Olympic Measurement Committee (OMC) for the replacement boat and presented the boat for inspection. The boat was thereafter subject to checks for compliance with the class rules and all other checks carried out on other boats during quarantine. The request for replacement was then approved by OMC in accordance with SI 21.2. The replacement boat sailed by the DEN competitors did not have the identifications required by the Notice of Race and Sailing Instructions on its sails. It did not carry a camera as required by the Organising Authority. It was not subjected to quarantine procedure as required by Measurement Regulation 13.

Conclusion:

DEN, as a boat assigned to compete in the medal race, was required by SI 19.7 to make a genuine effort to start, sail the course and finish. The OMC approved the replacement of the boat and found that it complied with class rules and all equipment inspections carried out in the Medal Race Quarantine Procedures. DEN complied with SI 21.2 and 21.3. The basis for the protest under MR 12.4 ceased to exist when the OMC approved the request. SI 2 (Additional Identification), SI 3 (Cameras) and MR 13 (Medal Race Quarantine Procedures) are subject to discretionary penalties (SI 18.7, MR 13.7). DEN did not gain a competitive advantage by failing to carry the camera (in the prevailing conditions), by failing to carry the correct identification, or by sailing a boat that had not been subjected to the Medal Race Quarantine Procedure at the required time. SI 2, 3 and 21, and MR 13 are not subject to protests by boats (SI 18.7 and MR 13.7).

Update - we have since heard that the Spanish Olympic committees are also protesting the decision which will be heard by the Court of Arbitration for Sport on Friday in Beijing