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?
Monday, 10 September 2007
America's Cup Arbitration Panel's Report Released
ACM's Arbitration Panel, have released the full documentation of their findings in respect of CNEV validity and some issues arising from the complaints originally made by GGYC.
The full document may be downloaded as a PDF Here. Do be sure to to note 86 pages before sending to the printer!
We've had a quick glance through the document, and can't imagine it won't be called as evidence in SNG's defence at the court case due to begin at 2pm (EST) today, which is convenient, to say the least. There's much content to satisfy the legal eagles.
Of note: page 29; Point [21]: TEAMORIGIN's Royal Thames Yacht Club outlines the jeopardy to their challenge from any lengthy dispute:
5. Impact of uncertainty
5.1 Until the application before this Panel in this matter is decided and until the matters raised in the Complaint are resolved or settled, there is uncertainty as to the terms upon which RTYC may compete in the 33rd America's Cup and indeed uncertainty as to whether or not RTYC will be permitted to compete in the 33rd America's Cup.
5.2 This uncertainty damages RTYC's ability to raise funds from sponsors(which understandably wish to know whether the party they wish to sponsor will indeed take part in the event), to employ staff, to plan, to know whether and to what extent to expend further funds on all matters relevant to becoming an effective challenger and ultimately jeopardises RTYC's ability to become a viable competitor.
5.3 A quick decision from this Panel declaring CNEV's challenge and the Protocol valid will provide the certainty RTYC needs, will save RTYC and its representative TEAMORIGIN from potentially wasting substantial sums of money and will ultimately make for a more competitive event."
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.
Thursday, 12 July 2007
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.
