33rd America's Cup Legal Dispute - ACM Publishes Legal Documents

As is so often the case, what one hand giveth, the other taketh away...

In a move clearly designed to express confidence in their legal case, ACM have today published several documents via their website (Here) today.

These documents may also be downloaded from the links below:


Memorandum of Law in opposition to Preliminary Injunction

Affidavit - Miquel Terrassa

Affidavit - Hamish Ross

We doubt the timing, coinciding as it does with Alinghi's gesture of goodwill towards GGYC, is accidental. It's typical 'good cop, bad cop', designed to bare teeth in the event anyone suspects the protocol revision expresses weakness.

It's The Afterguard's hope that GGYC & BMW Team Oracle will have anticipated such contradictory actions, will disregard acts of aggression and will seize the opportunity to get the 33rd America's Cup back on track.

33rd America's Cup - New Boat Class Meeting Held

As reported in Friday's The Afterguard, today marked the first day of negotiations which should eventually result in the new America's Cup class yacht. It appears a short-lived event, with a further meeting scheduled for 15th October to finalise a first draft of the new rule, ahead of a completion target which remains 31st October.

The release may be viewed on ACM's website, Here.

Design of new America’s Cup Class Rule underway
15-09-2007

America’s Cup designers from Alinghi and the five challengers attended the first design consultation meeting on Saturday 15 September at the AC Management offices in Valencia.

Tom Schnackenberg, the class rule and competition regulations consultant, on behalf of ACM, submitted the general summary of the rule status and invited comments from the challengers. On the agenda for discussion was the philosophy, which foresees an exciting race boat to watch, in terms of speed, size and power. The 90footer must be physically and technically demanding for the sailors, as Schnackenberg describes: “A boat that harks back to the physical demands in Fremantle for example where every day was raced in 22 knots.”

Many design features need to be straightforward initially due to the tight timeframe that teams will be working within on a two year Cup cycle, but room must be left for substantial future development.

The key dimensions were confirmed as 90ft waterline length and 6.5m draft with a retractable keel to 4.1m, while other key dimensions, including beam, weight and consequently the sail area have been decided based on the infrastructure constraints in Valencia (bases, pontoons, etc). These and the key structural rules will remain confidential to the teams participating in the meetings until the 31 October when the new class rule will be made public.

Tom Schnackenberg commented on the day: “Everyone was very well behaved! I think we have made an excellent start with what is really a very important task. We want this rule to excite designers, sailors and the public alike and to form the foundation of a class that will endure and prosper for a long time.” His positive comments were welcomed by Grant Dalton of Emirates Team New Zealand: “This is a good start to the next Cup and we at TNZ are really excited about the new class. There is no time to lose with such a short Cup cycle and we’re pleased that we’re getting underway.”

The next meeting is scheduled for the 15 October where the design group will discuss the 1st draft of the rule. And meanwhile Schnackenberg will continue to receive input and develop a dialogue with the challengers and Alinghi as part of the design process.
--Ends-

America's Cup - ACM Share (Some Of?) The Love

ACM has today posted a release concerning the distributed profits from the 32nd America's Cup.

The Afterguard has one observation. As detailed in point 7. of the release, ACM have closed the accounts of the 32nd America's Cup to expedite the payment of proceeds to the challenging teams (which may or may not provide more of the fence-sitters with the funds required to formally challenge for the 33rd America's Cup); With the 32nd America's Cup Online Auction yet to finish, wouldn't it have been better to wait until the income generated was known? Or isn't the divestment of ACM's assets a contributory factor? Closed accounts would suggest that by some calculation the income generated isn't being divided amongst the interested parties.

The release can be read on the America's Cup website, Here.

The 32nd America’s Cup competitors receive their share of EUR 66.5 million profit 15-09-2007

AC Management (ACM), organiser of the 32nd America’s Cup, distributes 90% of the EUR 66.5 millions net surplus the event generated over the past four years to participating teams. This will help teams prepare for the 33rd America’s Cup which is to take place in 2009.

By creating a single structure managing both the Challenger Selection Series and the America’s Cup Match and by developing a professional marketing strategy, the organisers of the 32nd America’s Cup succeeded in creating a net surplus to be shared with all competitors of the 32nd event.

This EUR 66.5 million surplus comes from a total revenue of EUR 240 million, generated largely through the city bid and the four year sponsorship programme, but also through TV rights, the hospitality programme and the concessions and marinas of Port America’s Cup.

“This is a significant result and by providing the funds to the teams now, we aim to help them prepare their 33rd campaign, while also giving continuity to the event,” said Michel Hodara, CEO of ACM.

Ernesto Bertarelli, syndicate head of Alinghi, Defender of the 33rd America’s Cup, commented: “The vision for the 32nd America's Cup was to create a fantastic sporting occasion, in Europe, with a viable commercial business model comparable to other major global sporting events.”

The America’s Cup delivered on both accounts with this edition being arguably the best ever with over 4 billion TV viewers and 6 million visitors, watching extremely close racing. Bertarelli now looks to the future: “Our vision for the 33rd America’s Cup is to create an even greater sporting occasion for 2009 with an exciting new class of boats and to build upon the successes of the 32nd edition.”

THE STRATEGY AND STEPS TAKEN TOWARDS THIS NET SURPLUS DISTRIBUTION:

1. AC Management SA (ACM), the event organising body, approached the America’s Cup strategically and created one property by combining the America’s Cup Match with the Challenger Selection Series, while before they were run by separate entities. ACM also created Pre-Regattas which ran the course of the four year campaign;

2. The professional marketing of the property worldwide, focusing on the brand equity of the 'America's Cup', generated €66.5m net surplus from €240m revenue. Of this surplus, 90% is to be distributed to the participating teams.

3. The value generated came mainly from the City bid process and from the integrated sponsoring rights that offered to Partners a presence that ran the course of the four year campaign.

4. ACM also controlled the television rights, the hospitality, concessions and marina mooring within Port America’s Cup.

5. The redistribution formula is 10% to ACM, 45% to the Defender, 45% to the other teams as published in the 32nd Protocol in 2003.

6. Thus, the top challenger (i.e. Emirates Team New Zealand) will receive over €9m. The minimum contribution, to teams who did not qualify for the Semi Finals, is still over €1m.

7. While the distribution date indicated in the Protocol is March 2008, ACM accelerated the closing of the accounts to allow teams to take immediate advantage of the revenue, helping them to prepare for the next campaign. The 33rd America’s Cup will take place in 2009 in Valencia.
--Ends--

America's Cup Sale Now On - Everything Must Go!

The Afterguard's polite reminder - Don't Be Late! - at 10:00 (CET) today, Thursday 13th September, 2007, America's Cup Management (ACM) begin their online auction of Assets From The 32nd America's Cup.

Yup folks, when the auction ends on Saturday 15th at 18:00 (CET), the 32nd America's Cup will be just a distant memory. The cupboards will be bare, and presumably ACM will begin 'investing' the Challenger's entry fees on new tables, chairs, etc. - the old ones would never do, they were just so '32'.

Details can be found on the special ACM Auction site: Here.

Studying the 'bid catalogue' you'll get to flick through nearly 900 individual lots, with Ribs; Golf Buggies; Battery powered trains; enough Bicycles to keep most of China pedalling; Electric Tricycles; Desks; Chairs; bar stools; lounge, office & Patio Furniture; Flags; Desktop PCs & Laptops; Plasma, LCD & CRT Screens; and even scale remote-control models of the 32nd Cup competitor vessels (don't these things get sold off to benefit charitable causes usually? Ok, we'll hush). For those with suitably sized swimming pools, you can even bid for your own 'Luis Vuitton' inflatable buoy. Then there are also 'structures' - pyramid refreshment tents, 'waves', why there's even a 'statue' of the Auld Mug for those too lazy to wrestle the real one from Alinghi's grasp. Oh, and magazines. No auction is complete without the obligatory lots of 'various' magazines.

For The Afterguard's take on events, we respectfully refer readers to our previously published story: 'The America's Cup - There's Everything To Pay For'.

33rd America's Cup - Supreme Court Dismisses Injunction, Sets Hearing For 22nd October

Justice Herman Cahn of the New York Supreme Court has dismissed GGYC's application for an injunction against SNG, and has ruled that both parties must submit written arguments ahead of an October 22nd, 2007 hearing date to resolve the issue of validity of CNEV's challenge.

As we went to press, we had not heard any reaction from GGYC.

Alinghi's website statement (Here):

More Good News for SNG as New York Court does not grant Injunction

After a brief hearing in the New York Supreme Court today before Justice Cahn, the Société Nautique de Genève (SNG) is pleased to announce that the Judge did not grant the Golden Gate Yacht Club’s (GGYC) application for an injunction, and instead ordered the parties to submit written legal arguments designed to dispose of the case in the shortest possible time.

The Judge set the 22 October as the date to hear legal arguments to resolve the central issue, which focuses on the validity of Club Náutico Español de Vela (CNEV), the Spanish challenge, accepted by the SNG after winning the 32nd America’s Cup.

The Spanish challenge, CNEV, also advised the Court that it will intervene in the case as a party so as to reinforce and confirm its legal standing as Challenger of Record for the 33rd America’s Cup.

Importantly, this is the second successful legal outcome in only a matter of days, following the America’s Cup Arbitration Panel’s ruling over the weekend that declared legitimate the Challenger of Record, and that the 33^rd Protocol complies with the Deed of Gift.

“Naturally we are pleased with this outcome which is another welcome positive result in this unfortunate legal process,” said Hamish Ross, Alinghi General Counsel, adding: “As we had asked the Court, SNG will be submitting, as planned, its motion to dismiss the case entirely, and we look forward to having an opportunity to clear this matter up as quickly as possible on the date set by the Court. We now need to draw a line under the uncertainty and damage created by the Golden Gate Yacht Club and BMW Oracle Racing’s actions and focus on the future.

Meanwhile work continues apace on the 33^rd Americas Cup in Valencia following the first Competitors Commission meeting on Friday of last week and with further meetings being scheduled. This period of consultation with the five registered challengers runs until the end of October when the new class rule will be published, ensuring that the America’s Cup remains at the pinnacle of international sailing.
--Ends--

The Afterguard's America's Cup & TEAMORIGIN Weekend Roundup: 9/9/07

In what will become a regular feature of The Afterguard, we present a weekend round-up of the past week (or so's) events surrounding the America's Cup and TEAMORIGIN.

We pick up where our last recap (Here) left off:

• Fri 31/8/07 Scuttlebutt featured a Q&A session with ACM's COO Michel Hodara, who got The Afterguard's goat by failing to address the single boat in Challenger Series issue when asked. Here.
• Sat 1/9/07 Commodore of Royal New Zealand Yacht Club refutes suggestion of SNG 'deal' in GGYC affidavit. BYM Here.
  
• Tue 4/9/07 TEAMORIGIN gave their (supportive) position on the 33rd Protocol and ACM's actions in a statement. Here.
• Wed 5/9/07 ACM had a bit a of a wiggle on today, holding teleconferences and more. They declared that they and Alinghi were moving forward with the 33rd Protocol, and attempted to respond to much of the criticism levelled to the protocol, indicating a wish to return the America's Cup to the romance of the J-Class. Alinghi hopes BMW Oracle Racing will participate. Alinghi's Brad Butterworth answered a number of questions and got The Afterguard's goat by failing to address the single boat in Challenger Series issue when asked. Here.
• Wed 5/9/07 ACM also reported that Valencia had been officially ratified by all concerned as the venue for the 33rd America's Cup.
  
• Wed 5/9/07 Michel Bonnefous announced he was stepping down as CEO of ACM, remaining on board to defend against GGYC litigation.
  
• Wed 5/9/07 SNG's written response to GGYC's motion due to be filed.
• Wed 5/9/07 Alinghi counsel Hamish Ross (helpfully) points out many teams do not have annual regattas or aren't incorporated (meeting a stipulation of Deed of Gift), most notably Royal New Zealand Yacht Squadron (not incorporated during 5 cycles of the America's Cup).
  
• Thur 6/9/07 The Afterguard published its extensive analysis of the recent TEAMORIGIN statement, releasing it's goat over ACM's failure to address the single boat in Challenger Series issue when asked. Here.
• Thur 6/9/07 Also on Thursday, ACM revealed that United Internet Team Germany had been accepted as the fifth official challenger for the 33rd America's Cup, explaining the apparent delay in confirming the news to 'due diligence'. Here.
  UITG: Applied: 10/8/07 Accepted: 30/8/07 (+20 days). Announced: 6/9/07 (+27 days)
  TEAMORIGIN: Applied: 20/7/07 Accepted: 23/7/07 (+3 days). Announced: 23/7/07 (+3 days)
  We assume due dilligence is a moveable feast? (Source: ACM website/PR)
• Thur 6/9/07 Alinghi's Brad Butterworth offers explanation of conduct at Farr 40 World Championships - straight from the horse's mouth, for a change. The words 'Teacup', 'storm' and 'in a' spring to mind. BYM Here.
  
• Fri 7/9/07 ACM announce the appointment of respected Tom Schnackenberg as 'the class rule and competition regulations consultant for the design consultation period'. Mike Sanderson of TEAMORIGIN said by ACM to be 'satisfied'. Here.
• Fri 7/9/07 Also on Friday, the ACM appointed Arbitration Panel for the 33rd America's Cup announced its ruling on ACAP 33/01. The panel found it had the competence to rule on its own jurisdiction. CNEV's challenge is valid, and therefore entitled to challenge as COR and SNG obliged to accept. 33rd Protocol complies with Deed of Gift, with a recommendation for points 155 & 156 to be amended. This was not entirely helpful as the listed nomenclature does not correspond t the publicly published 33rd Protocol, requiring observers to await the publication of the full findings. A later update to the statement appearing on ACM's website suggested these items relate to the administration of the Arbitration Panel. We await clarification with much interest. Here.
• Fri 7/9/07 Alinghi 'delighted' CNEV is valid. Here.
  
• Fri 7/9/07 Salvatore Sarno of Team Shosholoza puts forward case for challenging under 33rd Protocol. Doesn't share GGYC's view - 'challenge at sea, not in the courts'. Here.
  
• Sat 8/9/07 The Times of London dedicated an article by Andrew Longmore on TEAMORIGIN featuring the thoughts of Mike Sanderson, looking at the forthcoming announcement of team members on Friday 14/9/07. Teasingly, the article names a number of Britain's leading design and crew talent (Ker and Claughton, but also Ainslie), as well as overseas potentials (Juan Kouyoumdjian); it also indicates that Sanderson has had little time to define new relationships, and that therefore the team might look similar to his ABN-Amro Volvo Round The World inner circle. Here.
• Sun 9/9/07 The Times might have been right with the TEAMORIGIN ABN-Amro connection - Kimball Livingston quotes Stan Honey at TEAMORIGIN. Here.
  

Forthcoming Attractions:

• Mon 10/9/07 Initial New York Supreme Court hearing in case of GGYC Vs. SNG before Justice Cahn.
• Mon 10/9/07 Arbitration Panel publishes ACAP 33/01 papers.
• Mon 10/9/07 Desafio Español introduces Crew.
• Thur 13/9/07 Bidding starts in the great ACM car boot sale.
  
• Fri 14/9/07 TEAMORIGIN introduces Crew & Design Team at Southampton Boat Show.
• Sat 15/9/07 Class V6 vessel consultation period starts.
• Wed 19/9/07 Fuxia Challenge crew apparel launch (no, really).

33rd America's Cup Arbitration Panel Make First Ruling: Club Nautico Español de Vela Are Legitimate

In the most recent of a flurry of activities over the last few days, the 33rd America's Cup Event Authority have disclosed that the recently nominated Arbitration Panel have reached their first decision, that Club Nautico Español de Vela (CNEV) are a legitimate Challenger of Record.

Full documentation has yet to be released which may or may not address a number is issues recently raised by GGYC in their action against SNG in the New York Supreme Court, a legal dispute still in its early days. The statement released by ACM today indicates that documentation will be available from ACM's website on Monday September 10th.

The full statement may be read upon ACM's website (Here), and is reproduced below:

Arbitration Panel confirms validity of CNEV

07-09-2007

This afternoon, the Arbitration Panel reached a decision on the ACAP 33/01 case, in the matter of the Protocol governing the 33rd America’s Cup and in the matter of an application filed by SNG on July 20, 2007 in respect of the validity of the challenge of Club Nautico Español de Vela (“CNEV”) for the 33rd America’s Cup.

In compliance with directions from the Arbitration Panel, the full document will be made available from this website Monday September 10, but it the meantime this is the summary of the decision:

“[162] The decision of the Panel is the following:

- The Panel (i) has the competence to rule on its own jurisdiction and (ii) also has jurisdiction to

rule on the present matter;

- The challenge for the 33rd America’s Cup made by CNEV on July 3, 2007 (i) is a valid challenge

entitling CNEV to challenge for the America’s Cup as Challenger of Record and (ii) SNG is obligated to

accept (as it was the first valid challenge it received);

- The Protocol signed by SNG and CNEV on July 3, 2007 complies with the Deed of Gift; and

- Although this does not affect the compliance of the existing Protocol with the Deed of Gift, the

Panel believes that SNG and CNEV should consider amending the Protocol in respect of some of its

provisions as stated in point points [155] and [156].”
--Ends--

The statement appearing on ACM's website has been subsequently updated to read thus:

Arbitration Panel confirms CNEV as Challenger of Record

08-09-2007

Yesterday evening, the Arbitration Panel reached a decision on the ACAP 33/01 case, in the matter of the validity of the challenge of Club Náutico Español de Vela (“CNEV”) for the 33rd America’s Cup.

"This is a very important milestone as the Arbitration Panel confirming CNEV as the Challenger of Record and that the Protocol complies with the Deed of Gift, gives us further confidence to continue our plans and work on organising the 33rd America’s Cup campaign both in 2008 and 2009.” said Michel Hodara, on behalf of America’s Cup Management.

Summary of the decision of the Panel is as follows:

“- The Panel (i) has the competence to rule on its own jurisdiction and (ii) also has jurisdiction to rule

on the present matter;

- The challenge for the 33rd America’s Cup made by CNEV on July 3, 2007 (i) is a valid challenge

entitling CNEV to challenge for the America’s Cup as Challenger of Record and (ii) SNG is obligated to

accept (as it was the first valid challenge it received);

- The Protocol signed by SNG and CNEV on July 3, 2007 complies with the Deed of Gift; and

- Although this does not affect the compliance of the existing Protocol with the Deed of Gift, the Panel

believes that SNG and CNEV should consider amending the Protocol in respect of some of its

provisions as stated in points [155] and [156].”

To clarify this final point, this recommends that some changes are made to the way the Arbitration Panel is administered. The full Panel Decision will be made available from the America’s Cup website (www.americascup.com) on Monday 10 September.

Additionally, ACM is pleased to report that a Competitors Commission meeting took place on Friday morning with all the entered competitors and was the start of the planning process for the new class rule and competition regulations, which will include a schedule and format for the 33rd America’s Cup. This meeting also gave the Competitors Commission the opportunity to discuss further elements of the Protocol and there are further meetings planned in the coming weeks.
--Ends--

ACM's Appointment Of Tom Schnakenberg As New Boat Class Consultant Receives Thumbs Up From TEAMORIGIN

The ACM today announced the appointment of Tom Schnackenberg to consult on the troubled 33rd Protocol's new boat class (see ACM's website Here). Furthermore, Mike Sanderson, Team Director at TEAMORIGIN is quoted by ACM as indicating his approval and acknowledging the appointments positive impact.

The statement in full:

ACM announces Tom Schnackenberg as consultant to develop new class rule

07-09-2007

Today, ACM, Event Authority for the 33rd America’s Cup, named Tom Schnackenberg as the class rule and competition regulations consultant for the design consultation period due to start on 15 September with current challengers. He will ensure that all views are taken into consideration in the process that will eventually lead to a new class definition to be announced on the 31 October 2007.

Michel Hodara, CEO of ACM, commented: “We are delighted Tom is joining us to contribute actively on the writing of the new class rules. Tom has an unrivalled experience and his ability to resolve conflicts and his credibility are great assets in the process”.

Grant Simmer, design team coordinator for Alinghi, also explained Tom’s appointment: “Tom started working in the America’s Cup in 1977 and has been involved in every Cup cycle since then, winning the Cup 3 times. He is respected as one of the smartest and most experienced technical sailors and designers in our sport. Tom’s responsibility will be to consult and consider the input of the entered challengers and to publish the new class rule by 31st October. Tom will also work on other racing regulations related to the 33rd America’s Cup. Once he has completed these tasks we look forward to welcoming Tom in the Alinghi design team”.

Mike Sanderson, Team Director of TEAMORIGIN, also was also satisfied with this appointment: “The choice of Tom Schnackenberg to lead this process is fantastic. Having someone of Tom’s calibre available and willing to take on this important task is very fortunate for the whole America’s Cup community.”

The challengers, which include the Challenger of Record, Desafío Español, TEAMORIGIN, Team Shosholoza, Emirates Team New Zealand and United Internet Team Germany, will join the Defender for a series of open discussions, starting 15 September. This group will consider rule drafts leading to the new class rule which will become public, two months ahead of schedule, ensuring an 18 month period before the first race in the new class.

Schnackenberg describes his pleasure at the new appointment: “It is a huge challenge and for me that is part of the appeal. I have been intrigued by the prospect of the new rule since it was signalled after the Cup and am honoured to have been invited to participate in its inception”

Tom Schnackenberg biography:

11/5/1945, Wellington (NZL)

- 1977: Sail designer at North Sails (Lowell North) for Cup defence candidate Enterprise

- 1980: Sail designer for the challenger Australia I

- 1983: Sail coordinator for Australia II, challenger and winner of the America's Cup

- 1987: Sail coordinator for Australia III and Australia IV

- 1988: Sail coordinator for KZ1the Big Boat challenger

- 1992: Sail coordinator for Spirit of Australia, challenger candidate

- 1995: Design coordinator and navigator of Black Magic

- 2000: Design coordinator and navigator for Team New Zealand

- 2000: America's Cup Hall of Fame inductee

- 2003: Syndicate head, design coordinator of Team New Zealand

- 2007: member of Luna Rossa Challenge

A doctoral student in nuclear physics, Schnackenberg discovered yachting at 21years old. From 1977 he was a sail designer at North Sails for Enterprise, Lowell North's 12-Metre Cup defence candidate. Three years later, he was sail co-designer for Australia, the 1980 challenger, and in 1983 coordinated Australia II's sail designs, enjoying his first Cup success. One of the inventors of 3D design of sails and the tri-radial genoa, in 1987, he was sail coordinator for Australia III and IV during the Cup defence in Fremantle. He designed sails for the giant KZ1, (The Big Boat) for the 1988 Cup and in 1992, was sail coordinator for Spirit of Australia. In 1995, he joined Peter Blake's famous "dream team" and in 2000, he again coordinated the design team - the "millennium rig" became a sensation - and he sailed again as navigator. Schnackenberg also won the1987 Admiral's Cup series and then supervised the national yachting team at the 1992 Olympic Games in Barcelona. The triple America's Cup winner (1983, 1995, 2000) was most recently on the design team for Luna Rossa Challenge.
--Ends--

Alinghi & ACM Present 33rd America's Cup Progress Report

ACM appear to have got up a head of steam as they and Alinghi release a statement detailing most (but not all) of the news arising from Official 33rd America's Cup activities that took place earlier today - we assume further statements (welcomes and farewells) will be released in due course.

The following statement has been released via the ACM website, here.

--Begins--

Alinghi and ACM move forward with plans for the 33rd America's Cup
05-09-2007

Earlier today, Alinghi, Defender of the 33rd America’s Cup, gave a progress report on preparations for the 33rd America’s Cup at the Société Nautique de Genève. This gathering marked the start of the 33rd America’s Cup campaign and a return to business after the August break. Brad Butterworth, team skipper was accompanied by Hamish Ross, general counsel and Michel Hodara representing America’s Cup Management.

The group announced several developments in the preparations for the 33rd America’s Cup. The first is that the design consultation period, due to start in mid September, will last for six weeks and will result in the definition of the class rule. The consultation will be facilitated by an expert consultant to ensure the views of all five challengers are represented. Secondly, Brad explained that the clear intention regarding the development of the rules is to have a “tight design box” in order to facilitate close racing. “Our objective is to create a tight design box rule that will ensure the emphasis remains on sailing skill and exciting racing as we have recently seen during the 32nd America’s Cup, this together with large, visually impressive state-of-the- arts boats will help us achieve our vision for the next Cup,” he declared during the press briefing in Geneva. “We are keen to return the America’s Cup to the romantic era of J-Class size yachts, albeit updated with the very latest technology. This will create a superb spectacle and event for sailing fans worldwide.”

It was also announced that in the next few days there will be a Competitor Commission meeting to discuss the 33rd America’s Cup and elements of the Protocol, with the aim to mould this edition into an even greater success than its predecessor.

ACM also confirmed today that the Valencia host city contract has been approved by the Spanish Council of Ministers and has now been officially ratified by all the Spanish Authorities for the 33rd America’s Cup. This completes all contractual proceedings regarding the venue for the Cup in 2009. ACM also confirmed that United Internet Team Germany has been officially accepted as the 5th challenger.

“Most of the team is now back from the summer break and we are pressing ahead with preparations for the next Cup in 2009, with a particular focus on developing the new class rule through consultation with the five confirmed challengers,” said Brad Butterworth, adding: “These new class rules will be released on 31st October 2007, 18 months before the first pre-regatta with the new boats, and two months earlier than initially planned.”

Brad took the opportunity to clarify and further explain aspects of the Protocol that have been misinterpreted over the summer period:

CLARIFICATION OF ELEMENTS OF THE 33rd PROTOCOL

It has been alleged that CNEV is a ‘sham’ and not a legitimate Challenger of Record?
A: The legitimacy of the CNEV is unquestionable. For the 32nd America’s Cup, Desafío Español represented the Spanish sailing community through the Federation and it was decided to create a new club that captured the essence of Spanish sailing. This new Club incorporates the America’s Cup spirit in Spain and is chaired by the Vice Chairman of the Spanish Sailing Federation. BMW Oracle Racing are attempting to undermine the challenge on two counts both of which are erroneous as there are several examples of clubs being formed specifically to challenge for the America’s Cup (including clubs from Australia, Japan, Germany, US and Canada) and of clubs holding regattas after submitting a challenge. Furthermore, the credibility of the Spanish Challenge is further underlined by the strong performance demonstrated during the 32nd America’s Cup with them advancing to the Semi Final.

What is the impact of the BMW Oracle Racing legal challenge?
This is a legal ambush by one party; the fact is we have six competitors, including Alinghi, lined up for the 33rd America’s Cup. It is a distraction for the America’s Cup and is totally self serving on their behalf. It is most damaging for teams that haven’t yet entered given that this climate of uncertainty created by the GGYC prevents them from gaining sponsorship and building their teams. The 32nd America’s Cup saw the best action on the water and that is what we want for the 33rd America’s Cup.

What is the reason that ACM can refuse an entry?
See AC 33 Protocol clauses 2.7 (d), 4.4
A: First of all a competitor has to fulfil the requirements of the Deed of Gift and the Protocol. Furthermore, ACM is the event organiser and this rule has been written because, as in other major sporting events, we have a limited number of entries available, however, if a potential entrant feels they have been unfairly treated there is recourse through the Arbitration Panel.

ACM can throw out any competitor at any time?
See Protocol clause 5.4 (b)(d)
A: No, ACM does not have the power to throw out a competitor at any time. ACM has the power to disqualify a competitor who refuses to be bound by the rules. Even in this extreme situation the competitor concerned would be entitled to appeal to the Arbitration Panel.
This is very similar to the obligations of any other global sporting event authority, including the IOC, FIFA and the FIA.

The officials are not independent?
See Protocol clause 5.4
A: The Protocol contains rules to ensure fair sailing and from a sporting perspective the 33rd America’s Cup will be no different to the 32nd. The key is what happens on the water and during the sailing competition will be in the hands of experienced officials, with a record of integrity, accredited by the International Sailing Federation (ISAF). The Challenger of Record can object to any senior (those with decision making powers) appointment if they believe the person is not neutral and the Sailing Jury will determine whether the appointment is neutral or not.

Why does ACM need the right to change the competition regulations from ‘time to time’?
See Protocol clause17
A: ACM administered the 32nd America’s Cup, arguably the best America’s Cup of all time and it needs the appropriate authority to run the 33rd edition. This is no different to any other global high tech sport where the governing body has to provide regular interpretations and clarification of sporting and technical rules in a dynamic environment.
The Challenger of Record or the Defender can object to significant changes and ACM could refer the proposed change to the Arbitration Panel.

The new Competitor Commission has no voting powers?
See Protocol clause 10.1
A: The Defender and ACM need to be in consultation with the challengers to ensure the next event is as good as possible and therefore it made sense to be present within this forum.
It should be noted that the Challenger Commission had no voting rights last time affecting the competition, only the power to recommend. The same applies to the Competitor Commission this time.

The late publication of the new class rules will not give the teams enough time and will provide Alinghi with an unfair advantage?
A: We have been thinking about changing the class since 2003, as a matter of fact Russell Coutts was a strong advocate for a new class of boat for the 32nd America’s Cup. The design team is now back and working after the summer break in preparation for the six week consultation period which starts in mid September. This consultation will lead to the definition of the new class rule which will then be released on 31 October 2007, 18 months before the first pre-regatta in the new boats, and two months earlier than initially planned. In order to facilitate the work during the consultation period and to ensure the views of all competitors are represented an appropriate expert consultant will be appointed to oversee the process.

How will the new class rules lead to ‘close and exciting’ racing?
A: It provides for all competitors to start at the same level. It is our intention to limit the parameters of the ‘design box’ for the new class as this will assist in achieving our vision of state of the art boats and competitive racing befitting of the premier event in international sailing.

Alinghi will gain unfair advantage through competing in the Challenger Selection Series (CSS)?
Our philosophy to reduce cost and encourage competition is to return to the concept of a one boat campaign per team for the 33rd AC. This is the best solution to actively reduce the costs by avoiding having to hire two full crews and produce and maintain two fully rigged boats. However at the same time the Defender needs to be able to gauge and develop its relative performance and therefore needs to be included in the series. The other choice was for the Defender to two boat test from the start of the campaign, which is expensive and less attractive from an entertainment point of view.
--Ends--


Our only observation at this time, with regard to the final question:

We all understand the officially prepared statement, we've read it a number of times now; no matter how many times and how loudly you repeat it, the given answer seems only to support the contention that the one boat clause of the 33rd Protocol is flawed and ill conceived; not once have ACM, Alinghi, SNG or CNEV publicly addressed the question that is posed - who will be the first to crack we wonder? Our email is at the top of this page; please begin your response:

I, the undersigned, in my official capacity as representative of ACM/Alinghi/SNG/CNEV*, hereby do provide irrefutable evidence that Alinghi's ability to defeat challengers and otherwise influence the outcome during the selection series, based solely upon Alinghi's ability to arbitrarily choose to mount an effective defence, without there being competitive risk or cost to Alinghi, does not give unfair advantage to Alinghi over all other challengers because _________________________________________________________________. (please continue answer on further sheets of paper if required).

Signed: ___________________
Please Print Name: _________________
Role within Organisation: ___________________

* Delete as applicable.

Please note that answers which relate to the 'if we didn't do it this way we think it would be unfair to the defender ' defence will be marked down. Revisions to the Protocol which resolve this issue will be given special attention during marking. Thank you.

Scuttlebutt Gets Answers From ACM - More Questions Arise

Under the title 'ACM: Questions And Answers', the excellent Scuttlebutt has provided yet further opportunity for ACM to (fail to) respond to some of the most significant questions not related to legal actions. Read the whole piece in Scuttlebutt 2423.

ACM COO Michel Hodara first responded to a precise & perfectly worded question concerning the risk of unsporting conduct arising from the Defender's impact when competing in the Challenger series. In response, Hodara repeated issues of cost saving and the necessity to test the single vessel, as previously stated by ACM. Not once did the response reflect the question posed.

In answer to which teams were involved in the design of the new class of AC vessel, Hodara stated that from mid September all the officially challenging teams will be involved, including "the German Team who have submitted their entry and who will formally be accepted in the next days.”

Hodara was asked to explain the recent ACM statement which suggested ACM had proposed the 33rd protocol, when the protocol should be agreed upon by Defender and Challenger. Hodara explained, “That is correct and is exactly what happened. The Protocol is the result of many meetings and discussions with the Challenger of Record and its representatives, which lasted most of the duration of the 32nd AC Match. The process was the same than in 2003 with GGYC and BOR.”

And finally, when pressed to explain the relationship between ACM, SNG & Alinghi, Michel Hodara observed, “Because Yacht Clubs tend to appoint the appropriate professionals to deal with all AC operational and administrative matters, ACM sometimes speaks on behalf of Alinghi’s club, the Société Nautique de Genève (SNG).”

ACM publishes 33rd Protocol 'Story To Date'

Following much criticism of little or no public recognition of the case being brought against it, the last week has seen much quoted from ACM, and now the organisation has published its take on the situation to date.

The statement in full (which can be viewed on the official ACM website here):

33rd America's Cup

Golden Gate Yacht Club v. Société Nautique de Genève: Arbitration/Litigation status (as of 24 August 2007) 28-08-2007

In order to keep our readers up to date with news of the dispute playing out in the New York court between the Golden Gate Yacht Club and the Société Nautique de Genève, we have drawn out a simple timeline and explanation which explains the steps that have been taken and the ones to come.

The dispute between SNG and GGYC is now proceeding on three paths: (i) the arbitration before the arbitration panel under the 33rd Protocol, (ii) the complaint filed by GGYC in NY court, and (iii) the motion filed by GGYC in NY court.

Arbitration

- SNG, CNEV, ACM and Royal Thames have made submissions to the Arbitration Panel.

- GGYC was invited to participate in the arbitration but refused.

- A ruling is expected as to the validity of CNEV’s challenge in the coming weeks.

- Two of the three arbitrators were also arbitrators for the 32nd America’s Cup.

Litigation: GGYC’s Complaint

- GGYC’s complaint which challenges CNEV’s status as Challenger of Record was dated 20 July but was not served on SNG until 17 August.

- SNG’s response is due in mid-September.

- SNG believes GGYC’s claims are without merit and will defend itself against them.

Litigation: GGYC’s Motion

- On 22 August GGYC applied to the NY court seeking:

- An expedited schedule for the case commenced by GGYC’s complaint under which discovery (the exchange of information between the parties) would be completed in September and trial would be held in October, and

- A preliminary injunction requiring that SNG (i) provide GGYC with SNG’s club sailing rules and (ii) identify where a two-team match between SNG and GGYC in July 2008 would be held.

- The 22 August “order” of the NY court only sets a schedule for the parties’ submissions on GGYC’s application and in no way addresses the substance or merit of the application.

- SNG’s written response to the motion is due to be filed 5 September.

- A hearing on the motion before the NY court is scheduled for 10 September.

- The complaint and the motion are part of the same case and are before the same Judge (Justice Cahn) in NY.

--Ends--

Counting Challengers With Michel Hodara

Michel Hodara, speaking in coverage from European broadcaster RTL, indicated that in addition to the five challenges already declared, there were 'at least a dozen additional challengers' considering competing within the framework of the 33rd Protocol.

A (google) English translation of the original story can be read here.

Now first up, we count:
Desafio Espanol (COR), Emirates Team New Zealand, TeamOrigin and Team Shosholoza as official challengers to date (according to ACM's website). We'll assume that the fifth official entry is in fact the defender, Alinghi.

Twelve others? We can presumably exclude Larry Ellison's BMW Oracle Racing from those happy to work within the 33rd Protocol.

Beyond United Internet Team Germany, who have previously announced their official entry (but remain 'overlooked' at this time by ACM), who can come up with the most accurate list of 11 other contenders?

Oh, and while you're at it, consider the implications of accommodating 'at least' 17 teams in the maximum of 14 bases available at Port America, Valencia. Where did we get that number? Why, from Mr Hodara's interview earlier today with BYM News (here)!

ACM's Hodara Presents Defence

BYM News have published an interview with the ACM's Michael Hodara who presents the best media defence to date.

The full interview can be read here.

We've cherry-picked the eye-catching moments:

• Some critics are genuine in their wish to prevent the AC from evolving to preserve the status quo; others (unnamed) 'are simply jealous.'
  
• Court papers only served on SNG on August 17, 2007 (as justification for SNG/ACM's apparent lack of activity).
• Case to determine GGYC's wish to accelerate original suit due to be heard in court on 10th September (SNG to reply by 5th September).
• Port America could support a maximum of 14 teams (12 existing bases, 2 further could be built) - justification for ACM's control of who challenges.
• Protocol may have been too short and simple. Text is right, perception isn't.
• Challengers commission replaced with Competitors Commission intended to improve dialogue between 'squabbling' (our inclusion) challengers, the defender and the ACM. Competitor's Commission has met once already.
• No mention of Challenger Of Record for the second successive statement.
  

ACM & Alinghi React to Golden Gate Yacht Club's Court Order

ACM President Michel Bonnefous & Alinghi skipper Brad Butterworth quoted in ACM response.

ACM Statement, 23rd August 2007:

The Société Nautique de Genève, Alinghi and America’s Cup Management are very disappointed that BMW Oracle Racing, through the Golden Gate Yacht Club, has followed through with its threat and officially filed legal proceedings in the New York Courts.

“ACM in good faith has proposed a protocol intended to advance the sport of America’s Cup sailing. Far from being an attempt to control everything, the new protocol has been written to make the 33rd America’s Cup even better: a new class of boat which brings the technology to state-of-the-art, exciting racing and an even higher profile and more professional event which befits the premier competition in sailing.” Michel Bonnefous, President ACM. “Our vision is to make the America’s Cup in 2009 comparable with the best sporting events in the World. This vision is shared by many Challengers from around the world, four of whom have now formally entered the competition, with others about to do so.

Bonnefous continued “Larry Ellison is holding the Cup to ransom for competitive gain by attempting to disrupt the preparations of the teams from Switzerland, Spain, South Africa, Great Britain and New Zealand, as well as many others who have notified of their intention to enter the competition shortly.”

“Ellison lost on the water in 2003 and in 2007, failing to secure a match for the America’s Cup.” said Brad Butterworth, Skipper, Alinghi, “He is now pretending to be the good guy, representing the interests of all stakeholders, whereas in reality they have gone to court to force an earlier private match on their terms without the involvement of other competitors.”

“While their legal teams are busy destabilising the 33rd Cup and the preparations of the existing challengers, they are simultaneously snapping up sailors left, right and centre. These underhand tactics make it particularly hard for the smaller teams who rely on sponsorship, which is very hard to secure under these circumstances, and shows disregard for all the legitimate competitors.”

--Ends--

Whatever Happened to United Internet Team Germany's Challenge

At a time of little or no official America's Cup activities, The Afterguard ponders what has happened to UITG's 'Official Entry'...

The UITG website carrys a release dated Sunday 5/8/07, referring to an 'early entry allowing more time for preparation', suggesting entry was a done deal. Websites following the America's Cup (press and other) were awash with news of the 'official' German challenge. The Afterguard prepared a news story to coincide with ACM's official confirmation. Yet here we are on Thursday 16/8/07, some eleven days later, and there has been no ACM confirmation.

Now it's that time of year, especially on the European continent, when vacation time can often account for missed deadlines. Yet yesterday, 15/8/07, ACM updated its webpage of officially recognised participants to carry a link to the 'Notice of Entry' (compare our image of the page here to the current one); although the page was updated, ACM chose not to introduce the name of United Internet Team Germany to the list; on that basis we can't claim a lack of attention to the list to account for the absence. Surely, entry fees, paid prior to UITG's announcement, would have found there way to the ACM coffers by now?

We're not sure if UITG chose to announce prematurely, but here at The Afterguard we're grateful for our hesitance to cover the story at the time, choosing instead to await the official confirmation. We'd love to tell you all about UITG's entry, we just can't be sure its actually happened yet! Are ACM doing UITG a disservice, or have UITG done a disservice to the general public?

Inset image: Photo © United Internet Team Germany

Hodara's Uncompromising Tone Over 33rd Protocol

France 24 carry an AFP story containing defiant statements from ACM's COO, Michel Hodara.

Hodara says of the 33rd Protocol:

"We have no intention of going back (on decisions that have been taken)", but indicated some detail might be "fine-tuned" over the coming weeks.

Boat-change content "has been thought about for a long time and many are convinced that you must change to have a more exciting event".

Of challenges to the Protocol: "It is a shame that people could think that things would not be carried out in a fair and just way".

Of Luna Rossa's decision not to participate: "a pity".

AFP added that "The (Mascalzone) compromise solution was rejected by Hodara, who said the teams which take part in the 2009 Cup would get information on the characteristics of the new boats from September 15, ahead of an October 31 deadline."

Nothing we didn't already know, except that ACM want all wavering challengers signed up by September 15th. For most, the decision to join shouldn't be too difficult (if they wish to exist, they need to hop on board before the boat leaves) - but for Oracle and Mascalzone (especially), things must be a little tense.

ACM Update 33rd Protocol via 'Notice Of Entry'

ACM stay on course through publication of the 'Notice Of Entry'.

The following document (© ACM) can be downloaded from here.

Specifically, have a look at 2.2 iv - The Deed of Gift gets an update - 'has or will have' a regatta.

Notice of Entry

1. Background

This Notice of Entry is issued by AC Management SA pursuant to Article 4 of the Protocol Governing the 33^rd America’s Cup for application by yacht clubs to become a Challenging Competitor.

Definitions used in the said Protocol shall apply to this Notice of Entry.

2. Application

I, ________________________________ am the Commodore (or state other office) of the _____________________________________ [ yacht club name ] and I am duly authorised by such yacht club to submit this Notice of Entry, as confirmed by [Notary] hereunder.

2.1 Yacht Club: [ Club ] hereby makes application to AC Management SA to become a Challenging Competitor in the 33^rd America’s Cup.

2.2 Deed Of Gift: [ Club ] is qualified to challenge for the America’s Cup under the terms of the Deed of Gift dated 24 October 1887 between George L. Schuyler and the New York Yacht Club regarding a silver cup won by the schooner yacht America at Cowes, England on the 22^nd day of August 1851, as amended by orders of the Supreme Court of the State of New York on 17 December 1956 and 5 April 1985, and in particular;

(i) is not domiciled in Switzerland;

(ii) is an organised yacht club;

(iii) is incorporated, patented or; licensed by the legislature, admiralty or oth executive department of the state in which it is domiciled; and

(iv) has or will have an annual regatta on the sea or an arm of the sea.

2.3 Certificate of Incorporation: An original notarized certified copy of the [club’s ] certificate of incorporation as well as of the trade register extract is/are annexed to this Notice of Entry.

2.4 Annual Regatta: The Notice of Race of the [ club’s ] annual regatta on the sea or arm of the sea demonstrating the Challenger meets or will meet the obligations in the Deed of Gift are annexed to this Notice of Entry.

2.5 Organised: Details, such as the [club’s] existing by-laws and its organization regulations, demonstrating how the [club] is organised and meets the obligations in the Deed of Gift regarding being an organised yacht club are annexed to this Notice of Entry.

2.6 Representation: [ Club ] will be represented by

_________________________________________________

Name of representative (syndicate)

All communications and notices are to be sent to:

[Provide address (no PO Box address), fax, and email, telephone details of both the yacht club and the representative entity (syndicate) with the name(s) of contact person(s)]

3. Bound By Protocol

The [ Club ] and the [ Representative – syndicate ] each hereby unconditionally agree and accept to be bound by the terms of the said Deed of Gift, the Protocol, and all applicable rules and obligations referred to in such Protocol including but not limited to those which will be contained the documents listed in Article 2.5 of the said Protocol, and any amendment to such Protocol or such rules and obligations that may be issued from time to time.

4. Arbitration and Dispute Resolution

The [ Club ] and the [ Representative – syndicate ] each hereby unconditionally agree and accept to be bound by the dispute resolution provisions of the Protocol and by the decisions rendered by the Measurement Committee, Sailing Jury and the Arbitration Panel in accordance with such provisions of the Protocol. [ Club ] further unconditionally submit to the exclusive jurisdictions of the Measurement Committee, Sailing Jury and the Arbitration Panel as provided in the said Protocol and agree and undertake not to resort to any other court, or tribunal in respect of any matter regarding the 33^rd America’s Cup.

5. Entry Fee and Performance Bond

[ Club ] submits an entry fee of Euro 50,000.00 with this Notice of Entry and agrees a performance bond will be required to be posted by us to AC Management SA of up to Euro 950,000.00 at a later date on at least 30 days prior notice.

The entry fee shall be transferred on the following bank account:

BENEFICIARY BANK :

UBS SA

Rue des Noirettes 35

Case Postale 2600

1211 Genève 2

BANK ACCOUNT :

IBAN : CH 3000 2402 4048 7696 75T

SWIFT : UBSWCHZH80A

ACCOUNT BENEFICIARY :

AC MANAGEMENT SA

20, Route de Pré Bois

CP-1852-1215 Geneva 15

Switzerland

6. Challenger of Record

The [Club] and [Representative – syndicate] each acknowledge and agree that the Club Nautico Español de Vela (“CNEV”) is the Challenger of Record under the terms of the Protocol, but that in the event of the withdrawal or disqualification of CNEV, [Club] may become the Challenger of Record, as provided under Article 3.3 of the Protocol.

The [ Club ] and [ Representative – syndicate ] also acknowledge that Golden Gate Yacht Club ("GGYC") is claiming that CNEV is not a valid Challenger of Record and has commenced a lawsuit in New York State court seeking to have CNEV removed as Challenger of Record and to have GGYC inserted in its place.

The [Club] and the [ Representative – syndicate ] further acknowledge that Societé Nautique de Genève ("SNG") has commenced an arbitration proceeding before the Arbitration Panel constituted under the Protocol in which it asks the Panel to confirm CNEV's status as Challenger of Record.

The [ Club ] and the [ Representative – syndicate ] each understand that AC Management and SNG cannot be responsible for any losses incurred by [ Club ] and/or [ Representative – syndicate ] as a result from GGYC's actions.

Signatures:

[Club]:

Name:

Office:

Date:

[NOTARY’S LEGALISATION + CONFIRMATION OF SIGNATORY’S AUTHORITY, POSSIBLY CONFIRMED BY THE HAGUE APOSTILLE]

[Representative – syndicate]:

By countersigning this Notice of Entry [representative – syndicate] confirms its agreement with its provisions and in particular unconditionally agrees and accepts to be bound by the terms and conditions of sections 3, 4 and 6 above.

Name:

Office:

Date:

[NOTARY’S LEGALISATION + CONFIRMATION OF SIGNATORY’S AUTHORITY, POSSIBLY CONFIRMED BY THE HAGUE APOSTILLE]

--Ends--

The America's Cup - There's Everything to Pay For

ACM provides details of an Auction of items from the 32nd America's Cup.

You can imagine the scene, you've just come to the end of a four year struggle to successfully organise a major global sporting event, no doubt with weeks of tying loose ends up still ahead; no sooner is the cup held aloft do you learn that you've got to do it all over again, only this time in a 2 year time frame... then news reaches you that there's a court action challenging your every decision, so things are going to be even more complicated. The good news is you've pretty much spent the past 4 years accumulating all that you need for the next campaign, so you don't have to worry about that. At the very least, you'd think your boss would let you hang on to your desk and chair to work from.

But this is the America's Cup, and there's sponsorship money to squander. So you decide to arrange an auction of everything that's beginning to look a bit tatty - perhaps you have a new colour scheme in mind for the office, or you simply see an opportunity to rid the organisation of that golf buggy you might have accidentally 'pranged' on one of those cerveza-fuelled late night races around the car park.

All that is conjecture, what is fact is that ACM now have a live website with details of their forthcoming auction, which you can visit here.

A recent press release detailed the lovelies on offer:

Valencia, 30 July 2007

Following the end of the competition on the water and the dismantling and packing of what was a successful event, some of the physical assets of the 32nd America's Cup will be put up for sale through a capital asset auction company.

The organisers of the 32nd America's Cup acquired numerous capital assets and despite last week's announcement that Valencia will be the Host City to the 33rd America's Cup, some of these assets will now be sold, and the revenue generated distributed in accordance with the Protocol for the 32nd America's Cup.

Among the items for sale are some of the boats used by the Regatta Operations department to organise the races, but also varied electronic items (plasma screens, computers, servers, televisions, etc), office furniture, vehicles (trucks, golf carts, scooters), catering equipment, etc. A few memorabilia items will also be part of the online auction.

The auction, exclusively online, will take place during three days in September.

So there we have it, irrefutable proof that the ACM's dieticians and nutritionists have ordered the management to go on a strict diet for the duration of the 33rd cup campaign, as evidenced by the auctioning of their catering equipment; it must be that, because we know the catering equipment manufacturing industry well, and we know their goods are designed to last a lot longer than 4 years!

And look see, there's more. The organisers of the America's Cup don't see the need to hang on to boats next time around. Does anyone know if the FIA and Bernie Ecclestone plan a format change to F1 at all? Perhaps spinnakers might make an appearance?

We also noted that there will be a few memorabilia items on offer, so we've raided the Afterguard's piggy bank in preparation; we suspect, however, that we're going to be disappointed to learn that the alleged availability of 'a pair of slacks belonging to Ernesto Bertarelli with Larry Ellison's teeth imprints on the backside' will turn out simply to be malicious rumour.