The Jury for the 32nd America's Cup has ruled that the Spanish team, Desafío Español, is not allowed to employ Phil KAIKO, an America's Cup yacht designer. Kaiko has previously been associated with both K-Challenge and Mascalzone Latino since the end of the 31st America's Cup in March, 2003.
The Jury ruled that Mr. Kaiko had applied 'substantial intellectual creativity and judgement to the determination of' eventual hull shape or rig design during his work for Mascalzone Latino.
This Jury ruling is not the result of a protest, but rather answers the second of two questions the Spanish team posed to the Jury in January.
Earlier this year, the Jury had answered, 'No' to a hypothetical question from Desafío Español asking: 'Is a Competitor permitted to employ a designer who has previously been engaged by a potential challenger, without restriction on what the designer has done for a potential challenger?'
Desafío Español then asked, in light of the answer to the hypothetical question, whether it was able to 'continue its engagement with Mr. Kaiko as designer?'
It was this question that was before the Jury at this hearing over two days in London, England.
The five members of the Jury heard evidence from a number of Phil KAIKO's colleagues from his time at Mascalzone Latino who described the work that he did over several months in the summer and autumn of 2004. The question for the Jury was to decide whether this work constituted 'design' as it is defined in Article One of the Protocol for the 32nd America's Cup.
In instructions issued prior to the hearing the Jury advised, 'The scope of the evidentiary hearing will be limited to the following issue: Did Mr Kaiko apply substantial intellectual creativity and judgement to the determination of the shape and structure of Mascalzone Latino's hull, deck, cockpit, mast tube, geometry of the mast rigging, appendages or sails.'
In nearly 12 hours of testimony on Monday, witnesses described work attributed to Kaiko in two main areas, designing appendages for models for tank testing and some mast section testing in collaboration with the University of Florence. Vincenzo ONORATO, the owner of the team, spoke about how Kaiko came to be employed at Mascalzone Latino, and what work he expected Kaiko to complete through the second half of 2004.
For his part, Kaiko said he didn't consider the work he did as 'design' as it is described in the Protocol, but rather as necessary work on tools that would be used later in the design process.
In issuing its ruling, the Jury stated: The Jury is satisfied that Phil Kaiko was a designer, as defined in the Protocol, whilst employed by Mascalzone Latino. As a consequence he is restricted from working for any other competitor in the 32nd America's Cup by article 13.5 of the Protocol.
Therefore, the answer to Desafío Español's question at to whether they can continue to engage Mr. Kaiko is, 'No'.
Submissions will now be taken by the Jury on the issue of costs for this hearing.
A full written Jury decision will be issued by the end of the month.