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 - Protocol Revised By Société Nautique de Genève, Alinghi & Club Náutico Español de Vela

This afternoon Alinghi have issued a press release concerning protocol changes agreed by Alinghi, SNG & CNEV intended to address the continuing concernings of Golden Gate Yacht Club and halt the ongoing court action.

Whether viewed as an act of altruism, common sense or capitulation, the amendments to the 33rd Protocol do represent the best chance so far for peace within the America's Cup. All attention now turns to North America for a response from GGYC.

The full release from Alinghi's website (Here):

SNG and Alinghi announce Protocol amendment and make a final appeal to BMW Oracle Racing

2007-09-20

Today the Société Nautique de Genève (SNG) and Alinghi announced that after a series of successful Competitor Commission meetings and discussions with the legitimately entered challengers, the Protocol has been amended in agreement with the Challenger of Record, Club Náutico Español de Vela (CNEV). As a result of this, the majority of BMW Oracle Racing’s concerns have been addressed and the Defender issues a final appeal to the American team to drop their legal actions and join the competition.

These developments continue the progress of planning the 33rd America’s Cup, as Brad Butterworth, Alinghi skipper, explains: “The Competitor Commission meetings were set up as a forum to shape the 33rd America’s Cup and this avenue of dialogue is really working for the better of the event. With this and the ongoing design consultation period, which will define the new class rule and competition regulations, we are making good progress towards the 33rd.”

These amendments, as a result of Competitor Commission meetings, also reflect many of the desired changes brought forward by BMW Oracle Racing and discussed between Brad Butterworth and Russell Coutts, BOR skipper, over the last few weeks, in an attempt to resolve their concerns over the 33rd America’s Cup Protocol.

As a result and following these changes, Ernesto Bertarelli, Alinghi syndicate head, appeals to the Golden Gate Yacht Club (GGYC): “I would again appeal to BMW Oracle Racing to enter the 33rd America’s Cup as a legitimate challenger. It has been demonstrated that dialogue is possible for the better of this event and it should be noted by them that many areas of their concerns have been addressed.” And finally he added: “We would also like BMW Oracle Racing to consider that their action is hindering the opportunity for other teams to enter the competition, and harming the ability of existing competitors to generate sponsorship income and properly plan their challenge.”

The Protocol amendments are as follows:
With regards America’s Cup Management’s (ACM) power to disqualify a competitor, this has been clarified to say that, should a competitor refuse to be bound by the Protocol, then they will have recourse to the Arbitration Panel without risk of disqualification until the Panel rules.

Secondly with regards ACM’s right to refuse an entry. The amendment is a restriction of ACM’s ‘ability to reject’ to an ability only on very specific grounds, which are: failure to comply with the Deed of Gift, a capacity issue within Port America’s Cup or a need to provide an equitable balance of competing nations. The SNG has made it clear that, should the GGYC abandon their legal action, they would be welcomed as a competitor for the 33rd edition and could shape the event along with the other challengers and the Defender during the ongoing Competitor Commission meetings.

A further suggested amendment point, on recommendation from the Arbitration Panel, regards the power of ACM to amend the Protocol and other rules. This has been changed to state that ‘any proposal to make any Protocol changes, related to the way in which the Arbitration Panel works, must be subject to its prior approval.’

In addition to this amendment, the SNG and CNEV have deleted the power of ACM to remove members of the Arbitration Panel.

Finally, the concern regarding ‘neutral management’ has been amended to extend the Fair Sailing rule to apply to all matters directly related to the regatta.
--Ends--

33rd America's Cup - GGYC's View On Court Proceedings

The Golden Gate Yacht Club have posted a release reflecting on Monday's court decision to request written arguments and to set a date for proceedings; not surprisingly, it does not reflect on the court's decision not to grant an injunction on SNG.

Once again, a chink of light - Tom Ehman states a strong preference for a negotiated solution.

Download the full release via the GGYC website, Here.

Court Orders Date for America’s Cup Hearing
New York, NY 10 Sept. 2007 --

The Supreme Court of the State of New York today ruled that it would hear argument on October 22 on the validity of the challenge that has produced the proposed protocol for the next America’s Cup.

“We are very pleased with this decision, as we are keen to see this issue properly resolved with a minimum of further delay,” Tom Ehman, Head of External Affairs for GGYC’s team, BMW ORACLE Racing, said.

“During the hearing, the court suggested that the parties engage in mediation to resolve all disputes. This is a course that we continue to support,” Ehman said.

“Our strong preference remains to negotiate a solution. If this is not possible, today’s decision provides for swift resolution through the courts.”

He said the team strongly favors an America’s Cup regatta like the last one sailing in monohulls, and had supported seeking a quick legal resolution so that all participants could know the outcome of the case as soon as possible.

The San Francisco club alleges that the current America’s Cup Defender, Société Nautique de Genève (SNG), is in breach of its duty under the Deed of Gift that governs the Cup. It says SNG has accepted a challenge from an invalid contender, and is seeking to impose an unprecedented one-sided set of rules that unfairly advantage the defender to the detriment of all other competitors.

Ehman said that on October 22 the court would hear argument as to the merits of the case and that a judgement could be expected shortly thereafter.
--Ends--

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--

Golden Gate Yacht Club Reveals Case Against Société Nautique de Genève

In fresh documentation made available on their website, Golden Gate Yacht Club (GGYC) have revealed the specifics of their case against Société Nautique de Genève (SNG).

The comprehensive documents make quite a case against the 33rd Protocol and the actions of SNG & Club Náutico Español de Vela (CNEV). One aspect noted SNG's alleged scheme to avoid adjudication by the New York Supreme Court by resigning its role as defender in a timescale preventing all but the previous cup holder from becoming defender, in which case Emirates Team New Zealand would become defender and would then elect SNG as Challenger Of Record (source: GGYC Memorandum of law, Section IV, C, Page 18).

The comprehensive documentation may be downloaded from GGYC's website and read via the following links:

Affidavit of Thomas F. Ehman, Jr. August 22, 2007

GGYC Memorandum of Law August 22, 2007

Golden Gate Yacht Club Takes Dispute To The Next Level

The Golden Gate Yacht Club has taken its dispute with Société Nautique de Genève over the 33rd Protocol and choice of Challenger Of Record to the next level through a court order requiring Société Nautique de Genève to respond to its complaint.

Mindful of the large amount of opinionated and partisan comment thus far expressed throughout the media, The Afterguard has determined to simply reproduce the materials released today by Golden Gate Yacht Club without modification, enabling readers to form their own viewpoint.

Golden Gate Press Release: 22/8/07 - Download the original document from the Golden Gate Yacht Club website here.

Golden Gate granted court order to advance America’s Cup resolution

New York, NY (August 22, 2007) – The Supreme Court of the State of New York today granted an order sought by the Golden Gate Yacht Club (GGYC) requiring the Société Nautique de Genève (SNG) to promptly answer a request to speed up the legal process for resolving its proposed new rules for defending the next America’s Cup.

The San Francisco club sought the Court ruling alleging SNG is in serious breach of its fiduciary duty under the Deed of Gift that governs the Cup. It says SNG has accepted an invalid challenge from a sham yacht club, and is seeking to impose an unprecedented one-sided set of rules that hugely favor the defender to the detriment of all other competitors.

“We are very pleased with this ruling by the Court, because we believe the Cup will be irrevocably damaged if we don’t get SNG’s Protocol changed,” Tom Ehman, Head of External Affairs for BMW ORACLE Racing, the US club’s team, said.

“The new Protocol would give SNG’s team, Alinghi, radical new powers to control nearly all aspects of the event that are still unsupported by any explanation from SNG as to why they are needed,” he said.

Ehman said the syndicate whose challenge had been accepted by SNG, the Club Náutico Español de Vela (CNEV), was a shell organisation that had been formed only days prior to issuing a challenge and did not comply with the terms specified by the Deed of Gift.

“We would still prefer to negotiate a solution outside the court, but we see SNG as violating its responsibilities as Trustee, and we are fully prepared to go the legal distance if needed to stop the America’s Cup being subverted into a hopelessly one-sided event,” he said.

The Deed of Gift that protects the Cup as a perpetual sporting challenge is governed by a fiduciary trust established under New York law in 1887.

The GGYC court action also seeks a preliminary injunction to obtain critical information related to the club’s challenge under the Deed of Gift.

The American challenge is for a race next summer under the Deed’s 10-month rule. GGYC need to know where SNG intends to hold that competition and what the SNG sailing rules are. Under the Deed, the Swiss Defender is required to provide these important details to the Challenger.

GGYC filed a challenge on July 11th, and asserts that SNG must accept it. If successful in this motion, the GGYC case could be heard by the Courts as early as October 2007.

--Ends--

Golden Gate Media Backgrounder: 22/8/07 - Download the original document from the Golden Gate Yacht Club website here.

BACKGROUNDER

33rd America’s Cup

Summary
The Golden Gate Yacht Club, (GGYC) has filed a suit in the Supreme Court for the State of New York seeking a court ruling on the legitimacy of the current proposed Protocol for the next America’s Cup.

We believe that the challenge that has been accepted and the proposed Protocol are legally not acceptable as they breach the terms of the Deed of Gift that governs the Cup. This is based on our view that Société Nautique de Genève (SNG) has accepted an invalid challenge from a sham contender, and is seeking to impose an unprecedented one-sided set of rules that would damage the Cup as a genuinely competitive event.

We would prefer to negotiate a solution. But we have taken this court action in order to ensure a fair contest and protect the integrity of the Cup.

We urge the adoption of a protocol similar to the one used last time which produced such a successful event. We are keen to see this issue resolved and move on to the sailing.

2007 Timeline
July 3: Alinghi, representing SNG, wins the 32nd America’s Cup.

July 5: SNG announces a radically new Protocol for the next Cup and names Club Náutico Español de Vela (CNEV), as the Challenger of Record (COR).

July 11: GGYC presents a formal challenge to SNG in Geneva. GGYC argues that the challenge by CNEV is invalid. This is based on the grounds that at the time of its challenge CNEV, which was established only a few days prior to having its challenge accepted, was not a bona fide yacht club and did not have an annual regatta, each as required by the Deed of Gift.

July 20: GGYC files suit in the Supreme Court for the State of New York, which presides over the Deed of Gift, seeking a ruling to have the CNEV challenge discarded as illegitimate and the GGYC’s challenge accepted.

August 22: The court grants an order sought by GGYC requiring SNG to promptly answer a request to speed up the legal process for resolving its proposed new rules for defending the next America’s Cup.

CNEV challenge
Our concerns about the validity of CNEV and its challenge include the facts that:
• It is not a bona fide yacht club.

• It was created and is controlled by Real Federación Española de Vela (RFEV), which is itself not a yacht club.

• It was formed for the sole purpose of making a challenge only days before its challenge was made and accepted.

• Contrary to the Deed it has never held an annual regatta anywhere, and

• It appears to have accepted the loss of Challenger rights in the new Protocol in a way that no genuine Challenger who was seeking a fair contest would.

The Protocol
We believe that the protocol must be rejected in order to protect the status of the America’s Cup as a genuine sporting contest.

We do not believe this protocol is valid, fair, or in the spirit of racing that the Cup stands for. It is clearly not the result of the mutual consent process between a defender and a legitimate challenger that is prescribed in the Deed of Gift.

Our chief concerns about the Protocol are:
• It is invalid because SNG entered into it with an invalid Challenger, CNEV.

• The defender, through the company it has formed to manage the event, America’s Cup Management (ACM) can reject any entry – even if it complies with all requirements. Once disqualified, there is no provision for the challenger to contest this ruling. See AC 33 Protocol clauses 2.7 (d), 4.4

• ACM have the power to appoint the event authority, and all officials. (The Challenger of Record (see below) can only object on grounds of neutrality of judgment. See Protocol clause 5.4

• ACM can impose any rule on any team. See Protocol clause 5.4 (b)(d)

• The new Protocol does away with the independent Challenger Commission which represented well all challengers in AC 32. See Protocol clause 10.1

• The defender will unilaterally create a new design rule governing the boats to be raced, with seemingly only very minor input from the COR; and can develop this rule well in advance of advising challengers so that they have a much shorter window to develop a rival boat. See Protocol clause 14.1

• The Defender gains the right to gain valuable information and advantage by participating in the Challenger selection series, but Challengers will not be permitted to participate in any Defender series. See Protocol clause 13.5



Other references:
The issues raised by the Protocol have been reported on and covered independently by leading yachting media who have widely criticized it as leading to a one-sided event. These include:
Seahorse September 2007
Sailing World September 2007
Yachting World September 2007
Sail-World.com website

Q&A
Q: Other syndicates have signed up for the next event – how can the new Protocol be so bad if they are already in?

A: It is up to individuals to decide whether they sign up and they will have their reasons. Our belief is that the Protocol is legally unacceptable under the terms of the Deed and will produce a one-sided event. This is not about “taking sides”. This is about protecting the Cup and keeping to a spirit of genuine and close competition.

Q: Isn’t this just a case of you and the Defender each simply trying to gain an advantage for yourselves before the next event?

A: We are not the only ones unhappy with the new Protocol or who favor an event that is legal under the terms of the Deed and is equitable to everyone. The changes we are calling for would apply to all Challengers equally. Any gains on the Defender’s side apply to them alone. That is the fundamental issue, we are fighting for a fair and even contest.

Q: What do you think should happen?

A: We want to see an event that has neutral rules and preserves the rights of the Challengers by reinstituting a Protocol substantially the same as AC 32.

Q: Are you opposed to any changes in the Protocol?

A: No. We simply want to see any changes introduced in a way that is open and treats all competitors equitably, as opposed to springing a radical change on the event with effectively no consultation or justification.

Q: Shouldn’t the competition be decided on the water? Isn’t court action against the spirit of true sportsmanship?

A: We would prefer to negotiate, but going to court may be the only way we can effectively contest the new Protocol.

Q: Will you drop your court action if a Protocol like the one governing the last event was re-introduced?

A: Yes.

Q: Are you asking for essentially the same things Mascalzone Latino have asked for?

A: Yes, we support the proposal recently made by Mascalzone Latino which is about ensuring a fair competition and also calls for a Protocol along the lines of the one used for the last event.

--Ends--

Will The Real 33rd COR Please Make Themselves Known?

Word reaches The Afterguard courtesy of BYM Sailing & Sports News of significant developments concerning the proposed 33rd America's Cup Protocol recently released by Societe Nautique de Geneve(SNG - see here).

It is speculated that the Challenger of Record (COR), Club Nautico Espanol de Vela (CNEV), is preparing to stand down, subsequent to the challenge to the Protocol presented by Golden Gate Yacht Club (GGYC), in which it is claimed that as COR, CNEV did not meet the requirements of the Deed Of Gift which govern the terms under which the America's Cup is defended (see here, here & here).

In terms of the sequence of events leading to the proposed nomination of COR, it is being speculated that CNEV made the first application to be COR, followed by Great Britain's Royal Thames Yacht Club (RTYC, TEAMORIGIN). Subsequently GGYC (BMW Oracle Racing) challenged the Protocol and its nominated COR, presenting their own claim to the role.

Should CNEV be proved a discredited COR (& therefore disqualified) or pre-emptively resigns, yet the remaining content of the 33rd Protocol remain uncontested, SNG will exercise their right to select the alternative COR, presumed to be RTYC - with little apparent love between SNG & GGYC, it's unlikely that SNG would willingly nominate GGYC (& couldn't hope to do so without appearing to capitulate completely). Might GGYC then dispute this outcome?

3. 3 Selection of an alternative Challenger of Record:
Upon the withdrawal or disqualification of the Challenger of Record,
SNG shall select, at its sole and exclusive discretion,
a new or an existing Challenging Competitor to be the new Challenger of Record.
If no Challenging Competitor is willing to become the new Challenger of Record,
the new Challenger of Record shall be the Challenging Competitor
who was the first in time to submit to ACM a completed Notice of Entry.

Clause 3.3 of 33rd America's Cup Protocol

Or, will GGYC continue to dispute - encouraged by the scent of the blood of a wounded adversary - the selection of the original COR regardless of any anticipated resignation - claiming the entire 33rd AC Protocol invalid, in which case they contend that they should be considered the rightful COR. In this potential outcome, SNG would find itself negotiating the terms of a revised Protocol with GGYC, & should there be no consensus, the terms would revert to reflect the original conditions of the Deeds of Gift, unchanged by any Protocol.

If this happened, there's the potential of the RTYC then presenting a challenge to the decision, possibly considering themselves the first valid challenge (after the invalid CNEV and before the GGYC's challenge), & therefore the rightful COR in the eyes of the Deed of Gift. Or they might give consideration to the fact that 8 challengers are apparently aligned with GGYC, subscribed to the belief that the GGYC are seeking to uphold the best interests of all challengers and indeed the spirit of the cup.

The GGYC today issued a second statement defining their vision for the 33rd Cup, prescribing Valencia, V5 ACC vessels and, as before, themselves as COR. Read the statement in full here.

TEAMORIGIN may feel their best bet is to diplomatically step back from the maelstrom & focus their full attention on the business of mounting the best possible challenge on the water, & at the same time win themselves favour from the rest of the challengers (of what value?).

What would be in the best interests of TEAMORIGIN? Clearly, COR status would put the team centre stage, which would be advantageous in terms of attracting publicity and sponsorship (or at least could be 'spun' so), but it also puts a very young team at the centre of what some consider a political snake pit. Go for broke and there might be derisive claims of being a COR of convenience, allowing both sides of the current argument to avoid humiliation.

We have just one final (mischievous) thought - what constitutes 'friendly'?

This Cup is donated upon the conditions that it shall be preserved as a perpetual
Challenge Cup for friendly competition between foreign countries.

Deed Of Gift of The America's Cup

AC 33 Protocol bustup - Seconds out, round two

It didn't take long - Club Nautico Espanol de Vela have responded to the Golden Gate Yacht Club's claim to the title of COR already.

BYM Sailing & Sports News carry an English translation of the Spanish statement, indicating:

1. Their acceptance as COR was in accordance with the Deeds of Gift.
2. While they don't refute that the COR must have organised regattas, they indicate that the Deed of Gift does not specifically state that those regattas must have taken place before (as opposed to taking place after) becoming COR, and as they have regattas organised to take place later this month, there's nothing wrong.
3. To GGYC's complaints concerning lack of venue and date of 33rd Cup, CNEV state they're as much in the dark as anyone else, it not being an issue for them; they also point out that at the end of the 31st America's Cup, there was a similar period of time in which date and venue of AC32 were undetermined, and at this time the COR was indeed BMW Oracle Racing!
4. They have upheld the spirit of the Deed of Gift in all actions.

Hmmm... we say:

1. That's for a court to decide.
2. Legal ambiguity at best. It'll be interesting to see what type of regatta takes place - anyone care to bet it'll be a radio controlled boat festival?
   The Deed of Gift states:
   Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match of this Cup, with a yacht or vessel propelled by sails only and constructed in the country to which the Challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup. (source: Wikipedia).
   
3. Surely the point of being COR is to hold the current cup holders to account and clarify the detail? It's hard to imagine that Alinghi are in as much doubt as the other potential teams as to what where and when - which gives them the advantage that the role of COR is intended to prevent! Touche, in terms of Oracle Racing's previous conduct.
4. As ever, the interpretation is everything. In terms of their apparent conduct as a COR of convenience, we disagree.

The question is, will this elevate to legal conflict?

Right, where's that gum shield and sponge?

Challenge to AC33 Protocol - Let Battle Commence

The Golden Gate Yacht Club challenges the 33rd America's Cup Protocol.

In what has either marred or added interest to (depending on viewpoint) recent America's Cup competition, a not unexpected challenge has been issued in respect of the contents of the recently published 'Protocol Governing The Thirty Third America’s Cup' (we previously covered the news here).

In a series of documents detailed here, the Golden Gate Yacht Club (GGYC - represented by BMW Oracle Racing) yesterday wrote to Societe Nautique de Geneve (SNG - represented by holders Alinghi), claiming that the content of the Protocol issued was in fact invalid, for the following reasons:

• The declaration of Club Nautico Espanol de Vela (CNEV - apologies, we can find no website for the club - represented by Desafio Espanol) as Challenger Of Record (COR) is invalid as CNEV is not a bona fide yacht club, effectively only been recently formed for the specific purpose of application as COR.
• CNEV has never held a regatta - a requirement in the Deed of Gift (the document defining the regulations under which the America's Cup takes place).
• CNEV, in becoming COR, has delegated all setting of racing regulations for the 33rd Cup to SNG, at least breaching the spirit of the Deed of Gift in it's requirement that competition should be fair (our interpretation).

Accompanying the letter challenging the 33rd Protocol, GGYC also enclosed their own, 'bona fide' (their words) challenge - presented with 'much pleasure' no less - demanding recognition as legitimate COR.

Most notably, it also cautions that should SNG and they as COR fail to mutually agree upon a new protocol, then the next America's Cup should be undertaken in accordance with the Deeds of Gift, without further influence from the current holders. Amongst other matters, this defines the next match to commence in ten months time, and that the challenger shall have influence over choice of vessel!

It is widely held that the current 33rd AC Protocol is designed to give SNG's Alinghi the maximum competitive advantage over all other challengers, and many consider this as unsporting.

No doubt, a number of other clubs will have made application prior to GGYC's submission dated 11/7/07 - including TeamOrigin's Royal Thames Yacht Club (rumoured to have negotiated to be recognised as COR if Emirates Team New Zealand had won the cup, and to have covered the issue with Alinghi when purchasing the boat SUI 75). We can't imagine, therefore, that if the issued Protocol is torn up, BMW Oracle Racing would ever be seen as COR - unless any team challenging the selection of COR by the cup holder automatically has the right to be COR if successful in that challenge (sorry, we just don't know).

The 'sailing' part of the America's Cup has just ended, and now begins the 'handbags at dawn' component of Sailing's greatest prize.

33rd America's Cup - Protocol Released

"Bigger, faster and harder to sail" Brad Butterworth, Alinghi

The Protocol for the 33rd America's Cup was released earlier today (for a PDF copy, click here).

Top amongst the key points is the definition of a new class of ACC yacht which must be sailed in the final match between defender and challenger. New vessels must be 27.4 metres in length (as opposed to the 24m vessels raced in AC32). This will mean that none of the 102 AC vessels in existence will qualify, although the protocol does allow for existing vessels to be modified to fulfil requirements.

Larger vessels, without mechanised assistance, will require larger sail area, will be faster and more of a handful on the water - a greater challenge to the crews.

Full new ACC rules will be published on or before December 31st 2007, in which the full specifications will be detailed. After the date of publication, there will be a minimum of 18 months before AC 33 regattas will see the racing of the larger vessels; until this time, existing AC32 class vessels will be used.

We will have to wait until final publication to confirm speculation that teams may well be limited to the racing of one AC33 vessel, presumably to reduce the technical advantage between the richest and poorest teams.

The Challenger of Record (COR - the team who officially challenges the holder to a new match) is detailed as Club Nautico Espanol de Vela - the club of convenience, as representatives of which Desafio Espanol raced AC32.

The COR selection appears to strengthen the likelyhood that the venue for AC33 will indeed be Valencia, Spain, as previously speculated. It was confirmed that should this indeed be the case, AC33 would take place in 2009. If this isn't finalised soon, a three month bidding period will begin, and should another venue be selected, then racing would be in either 2010 or 2011 (again, the final announcement will be made on or before 31st December, 2007; presumably a new venue would need a longer lead time). Thus far, only Trapani in Sicily have declared any intent. As a land-locked country, the Swiss Team must select a coastal water in Europe (despite some speculation of a Dubai venue).

We'll be back to examine the fall out and speculation surrounding events in due course.