With the America's Cup seemingly helplessly embroiled in courtroom bickering and semantics, a surprise move by TEAMORIGIN has proposed a 'third way'.
The team have proposed their candidacy as challenger of record, to negotiate a protocol agreeable to all & based upon the original AC33 proposal, with the final to take place in Valencia in 2011.
The action is an attempt to provide a means for Société Nautique de Genève (SNG) and Golden Gate Yacht Club (GGYC) to end hostilities long before any protracted New York Supreme Court resolution, while affording both sides a face-saving opportunity.
With all parties claiming to have the cup's best interests at heart, it's an opportunity to prove the purity of their intent; at the same time, to disregard such opportunity may well once and for all reveal non-sporting motivation behind current activities; the ball is (as is so often the case) firmly in SNG's & GGYC's respective courts, pardon the pun.
The Afterguard believes that the opportunity to see a broad field compete for a 33rd America's Cup can only now be achieved by compromise, and although far from perfect, this TEAMORIGIN assertion will once and for all answer the question 'is it really for the sake of the sport?'. Can either party, subject to current court scrutiny, afford to disregard a viable alternative? Certainly TEAMORIGIN have now been seen to propose a solution with guidance from former ACM-man Marcus Hutchinson, TEAMORIGIN's Director of External Affairs & Communications - a man ideally qualified to know which bullet Ernesto Bertarelli might bite.
TEAMORIGIN's statement in full (also here)
TEAMORIGIN and the Royal Thames propose a "Third Way"
Tuesday, 22 January 2008
On 9th January this year TEAMORIGIN, with the Royal Thames Yacht Club (RTYC), lodged a Deed of Gift (DOG) Challenge with the Société Nautique de Genève (SNG). It called for a Match in 2011 in Valencia to be sailed in AC90 yachts and it outlined their willingness to consider a mutual consent match with a protocol along similar lines to the one signed in July last year.
The RTYC’s most recent challenge was lodged in anticipation of a potential vacuum occurring should the currently disputed Golden Gate Yacht Club’s (GGYC) DOG Challenge be found lacking by the New York Supreme Court’s Judge Cahn. SNG’s motion to reargue and renew points about the validity of GGYC’s DOG Challenge, part of the legal dispute that has dogged the America’s Cup since July 2007, was due to be heard on 14th January of this year, along with argument on settling the order arising from the judgment of 27th November. On 14th January however Judge Cahn further postponed the hearing to Wednesday 23rd January.
Accompanying the RTYC’s DOG Challenge documents was a covering letter from TEAMORIGIN to Ernesto Bertarelli, syndicate head of Alinghi and Pierre-Yves Firmenich, President of the SNG, signed by Sir Keith Mills, TEAMORIGIN Principal. In it he wrote:
“…we envisage discussing with you and hopefully agreeing alternative arrangements by mutual consent as contemplated in the Deed of Gift. Our intention would be to agree a Protocol and associated documents along similar lines to the ones negotiated with Challengers between July and November 2007.”
“We are in favour of your original philosophy for the 33rd America’s Cup, the pillars of which came through clearly in the July 2007 Protocol, namely a mutual consent regatta, based in Valencia, with pre-regattas and sensible cost containment…”.
The delay in Judge Cahn’s deliberations last week has opened up a second potential benefit from the RTYC’s new challenge. It could now also help secure a new trial protocol with the Swiss Defender that is sufficiently satisfactory to the GGYC for the American club to be sufficiently comfortable to drop its challenge, making way for the RTYC to become the Challenger of Record. This should result in the avoidance of the inevitable appeals threatened by both sides should they lose in the current litigation. It should also negate the need for a DOG Match some time this year or next, with the serious complications that the potential of such an event is starting to bring to light.
By following the lead proposed by TEAMORIGIN and the RTYC the GGYC and the SNG have a real opportunity to reach a successful conclusion to the current situation, stop building yachts for a DOG Match, avoid further litigation and allow stability to return to the world of the America’s Cup - something that would benefit all prospective challengers and the sport as a whole.
To ignore this opportunity would result in further untold damage and could lead to a potentially hollow victory, completely debasing the value of the America’s Cup as the pinnacle of the sport of sailing and stunting its ability to further develop in the future.
“We believe that a real window of opportunity exists to end this situation positively and quickly. And so we call on the GGYC and the SNG to take this new opportunity seriously and work with us on a new protocol for an America’s Cup in 2011 in the exciting new AC90 class,” concluded Sir Keith.
Ends.
Royal Thames Yacht Club notice of challenge may be downloaded here.
Tuesday, 22 January 2008
TEAMORIGIN challenge America's Cup factions to state their motivation - court or sport?
Thursday, 4 October 2007
The Afterguard - 33rd America's Cup In Disarray
The Afterguard turns its back for 5 minutes & the entire world seems to go stark raving mad...
Allegedly, Alinghi's Simon Daubney has tested positive for traces of cocaine, and if true, money's power to corrupt in sport is yet again proven... [Source: NZ Herald]
The billionaire's boys club stage a short-lived love-in (by phone), yet while both parties sound increasingly anxious to avoid the car crash they've both contributed to, they remain on course to inflict mortal wounds not on each other so much, but on the Auld Mug itself. [Source: The Telegraph/GGYC]
ACM survey the rising tide:
ACM to reassess the feasibility of the America’s Cup in Valencia in 2009 03-10-2007
As a consequence of the uncertainty and the delays arising from the Golden Gate Yacht Club Law suit in New York, AC Management (ACM) is concerned that the feasibility of organising the next America’s Cup in Valencia in 2009 has been effectively compromised.Desafio Español throws itself onto the pyre:
Statement from Desafío Español
Regarding the press release issued today by ACM in which declares its concern about the “the possibility of postponing the event to a later date”, Desafío Español states its unconditional support to the Spanish and Valencian authorities, the Defender and the Organisation of the America’s Cup.
Desafío Español understands that the organisation of a sporting event of this magnitude must be done without haste and under the best consensus atmosphere between all the parties involved.
For this reason, Desafío Español shows its conformity with the proposed conversations between ACM, the Defender, the Challenger of Record, the competitors and the Spanish Authorities in which Desafío Español will participate actively.
Desafío Español also hopes that, as a result of these conversations, the 33rd America’s Cup can be celebrated in the initially proposed dates.
Meanwhile, Desafío Español continues working towards the next edition of the America’s Cup, configuring the structure of the team and developing its plans.
--Ends-- [Source: Desafio Español]
Meanwhile TEAMORIGIN trademark themselves, no doubt praying they get the opportunity to merchandise. [Source: UK Intellectual Property Office]
So with little hope for an America's Cup before 2011, we at The Afterguard are seriously considering crawling back under our stone and enjoying another vacation... of course what all this activity really means is that a resolution will likely be found before the end of the week. Nowt so strange...
Thursday, 20 September 2007
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
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--
Tuesday, 11 September 2007
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--
Monday, 10 September 2007
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
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 33rd Protocol complies with the Deed of Gift.
--Ends--
Thursday, 30 August 2007
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
Tuesday, 28 August 2007
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
--Ends--
Thursday, 23 August 2007
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--
Wednesday, 22 August 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--
Friday, 3 August 2007
Coutts Offers Bertarelli an Olive Branch
Valencia Sailing is carrying a statement from BMW Oracle Racing's Russell Coutts indicating that GGYC would be prepared to drop its legal challenge to the 33rd Protocol if it was to be completely rewritten to reflect the wishes of Mascalzone.
It strikes us that if this were to be the case, GGYC wouldn't have much case to pursue anyway, which might explain why it fell to Coutts to release the news, not Ellison.
Anyway, a flicker of light on the horizon - surely Bertarelli can't ignore this? Watch this space!
Tuesday, 24 July 2007
Société Nautique de Genève respond to Supreme Court Move
America's Cup Management (ACM) have today issued a statement confirming official challengers for the 33rd America's Cup as Spain's Desafino Espaniol, South Africa's Team Shosholoza and Great Britain's TeamOrigin, contesting to face Switzerland's Alinghi in the final of the next competition.
Additionally, the statement reflects the reaction of Société Nautique de Genève (SNG) to the legal challenge being made by Golden Gate Yacht Club (GGYC)in the New York Supreme Court.
The statement in full:
Two more Challengers join the 33rd America’s Cup 24.07.2007
The Société Nautique de Genève (SNG) is pleased to announce that less than three weeks after Alinghi beat Emirates Team New Zealand to win the 32nd America’s Cup, two more teams have joined the Challenger of Record, Club Náutico Español de Vela, in challenging Alinghi for the 33rd America’s Cup. Last week, South Africa’s Team Shosholoza (Royal Cape Yacht Club) had its challenge accepted. On Monday, it was TEAMORIGIN (Royal Thames Yacht Club), marking a return to the America’s Cup for the United Kingdom.
Fred Meyer, Vice-Commodore of the SNG, comments: “We are delighted that these teams have challenged, they will bring much in the way of competition to the 33rd America’s Cup and will contribute to making this next event even greater than the 32nd edition.”
This good news comes off the back of a disappointing reaction from the Golden Gate Yacht Club (GGYC) represented by BMW Oracle Racing and Larry Ellison, which it has been reported in the press, is contesting the validity of the CNEV in the New York Supreme Court.
SNG’s Fred Meyer gives his reaction: “It is disappointing that the GGYC appears to be devoting its energies to disrupting and damaging the America’s Cup by attempting to secure an exclusive match for the trophy having failed to obtain the right to challenge through normal competition on two successive attempts, first in the 31st and then the 32nd America’s Cup. The GGYC is attempting to hold the event hostage to its demands for a private match race in catamarans and the SNG will never negotiate with GGYC under these circumstances and, as trustee of the Cup, will strongly defend all attempts by the GGYC to disrupt and damage the America’s Cup.”
Most surprising of all is that the GGYC expressly demands to race an exclusive match race against the Defender in 90ft catamarans on 4 July 2008. There will thus be no Challenger Selection Series, nor pre-regattas. The Swiss Yacht Club stands by the validity of the challenge from the CNEV, the Challenger of Record, in all respects and cannot consider another Challenger of Record without breaching the terms of the Deed of Gift. Accordingly, SNG rejected the GGYC’s challenge on behalf of BMW Oracle Racing and continues to hope that it will abandon its misguided action and join other challengers now entering the 33rd America’s Cup under the terms of the Protocol governing this event.
It has been widely acknowledged, including by the GGYC, that the 32nd America’s Cup was superb. By hosting and developing the event in Europe and by delivering some of the most exciting and competitive racing for a growing fan base and TV audience, the America’s Cup is now firmly established as a truly global sporting event. This GGYC action, contrary to their claims, returns the America’s Cup to litigation, adverse publicity and poor sportsmanship, precisely the same situation which marred the America’s Cup in the late 1980s.
Following the tremendous success of the first competition for the America’s Cup to be held in Europe since 1851, the Société Nautique de Genève looks forward to an even better 33rd America’s Cup involving competitive challengers from around the world and providing a bright future for the sport of yacht racing.
--Ends--
Thursday, 19 July 2007
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?
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.
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'?
Challenge Cup for friendly competition between foreign countries.
Friday, 13 July 2007
Golden Gate Yacht Club Issues Statement
The yacht club challenging the appointment of COR for the 33rd America's Cup today publicly issued a press statement, explaining their action in writing to Société Nautique Genève and claiming the role of COR for themselves.
The statement in full:
San Francisco's Golden Gate Yacht Club Challenges for 33rd America's Cup
The Golden Gate Yacht Club (GGYC) of San Francisco today presented a formal challenge for the 33rd America's Cup to the Société Nautique Genève (SNG), defending yacht club of Cup winner Team Alinghi. The challenge was delivered in person on July 11th by representatives of GGYC to an officer of the Swiss club in Geneva. The GGYC challenge follows the SNG's acceptance of what appears to be an invalid challenge that unfairly advantages the defender, Team Alinghi.
After Alinghi won the 32nd America’s Cup on July 3rd, SNG accepted a challenge from the Spanish Club Nautico Espanol de Vela (CNEV). It appears that CNEV is a brand new yacht club specifically created for this challenge and as such fails to meet the requirements for a challenging yacht club as defined by the Deed of Gift. The Deed of Gift, a document written in 1857, defines the rules for the America's Cup to this day. The Deed of Gift requires that the Challenging yacht club conduct an annual regatta on an arm of the sea. CNEV has never conducted a regatta of any kind and thus cannot be a legitimate Cup challenger.
Furthermore, the race Protocol for the 33rd America’s Cup agreed to by the challenging yacht club CNEV and the defending SNG are invalid because they fail to specify the rules for the next competition by omitting a specific regatta date, location and class of boat. The Protocol is also invalid because virtually all Challenger rights are eliminated and total control of the event and its rules are granted to the Defender, Team Alinghi. The Alinghi Protocol for the 33rd Americas Cup alters the very nature of the competition giving unprecedented and unfair advantages to the Defender.
Without the basic elements of regatta venue, date and boat design rules as required by the Deed of Gift, the Alinghi Protocol provides no opportunity for a fair and equitable competition. Only the Defender can begin to plan their campaign and design their yachts while all the other competitors must sit and wait for further information. We have spoken with most of our fellow AC 32 Challengers and we believe that they share our view. We seek to continue to expand and build upon the successes of the 32nd America's Cup which was exciting and rewarding for competitors, sponsors, media and fans by returning to an environment where mutual consent in forming the rules provided a fair and close competition for all.
We will endeavor to work with SNG to mutually agree to appropriate terms for the 33rd America's Cup to keep the event exciting and fair for all. Under SNG's stewardship, the 32nd America's Cup delivered some of the most hotly-contested racing in recent Cup history and brought Cup sailing to more people worldwide than ever before. We hope we can build on this for the future and continue the momentum we started here together in Valencia.
The Deed of Gift requires the Defender to accept a valid challenge, and together the Defender and Challenger can mutually agree on the rules for the competition. Failing such agreement, then the original rules in the Deed will dictate the terms, defaulting to a challenge to take place in ten months with a boat defined by the challenger.
Ends Statement
Clearly, GGYC aren't going to back down any time soon. With BYM Sailing & News indicating their source in Madrid expects confirmation of Valencia as host for the 33rd AC very soon, it appears that Larry Ellison and Ernesto Bertarelli are on a collision course leading to a court of law, with an absence of certainty over the resulting impact.
On the face of it, the challenge to the Protocol is a highly principled affair, if that is the motivation. Granting enormous advantage to the defender by way of a COR of convenience helps no one; uncertainty over venue, vessel and timeline will disadvantage all but the decision maker.
A court case could run and run; most likely leading to the decision of a court-adjudicated compromise. A win to SNG and CNEV will see the same state of confusion played out over a more distant time frame, possibly without the valued involvement of a wounded and sulking Oracle Racing, and would do nothing to address the perceived injustice of the Protocol. A win to GGYC might well see them deliver on the 33rd cup being held just 8 months from decision, between just defender and COR (Oracle Racing); under such circumstances, GGYC has proposed a multi-hull vessel of challenge, and we remember how that worked out previously! Harder to judge is what impact this would have on other teams and their personnel, and the wider future for the competition.
None of this is helping the smaller teams that both protagonists claim to be representing in their actions; try developing the interest of sponsors if this mess continues; try settling on a boat design when you don't even know how many hulls to include, let alone how long to make them; try keeping a team together, or forming a new one, when you can't even provide the answers to the most essential questions.
And where does all this leave our team of special interest? TEAMORIGIN founder Sir Keith Mills must be ruing the day he decided to throw his hat into the ring; but he's no stranger to improbable odds, as those of us who watched the London 2012 Olympics bid get gold will remember (it had only been considered a candidate for silver or more likely bronze). The thing is, in bidding for the Olympics, while there might have been room for AC-like skulduggery and subterfuge, it all got played out according to a very well defined timeline. That suited the London bid as Sir Keith is someone who likes to get on with it; the problem is he now finds himself in a new playground that isn't playing ball right now.
A delay is a pain to TEAMORIGIN (how do you use the time wisely when you've announced you want to play, but don't yet know the rules? You can paint out the name 'Alinghi' on SUI75 only so many times during its transformation to GBR75). The real killer is the confusion. 'Yes, we can guarantee your £15 Million will be spent well and generate maximum exposure for your brand' doesn't wash when all the action is due to be held on Court TV. Hopefully the time since their launch back in January has been enjoyed to the maximum, because the reality of running an America's Cup team starts to bite right here.
There are only two certainties right now:
People with little interest in sport are about to get very rich in court representing the differing interests of a competition we love, and as ever, the America's Cup is proving great for spectators, even if events offshore seem to matter least of all.
Thursday, 12 July 2007
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:
- Their acceptance as COR was in accordance with the Deeds of Gift.
- 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.
- 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!
- They have upheld the spirit of the Deed of Gift in all actions.
- That's for a court to decide.
- 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). - 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.
- As ever, the interpretation is everything. In terms of their apparent conduct as a COR of convenience, we disagree.
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).
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.
