Friday, 28 March 2008

Groundhog Day

Out of court, and straight back into court, sounds familiar, right? Ernesto Bertarelli’s promise to get the America’s Cup show back on the water turned out to be about as reliable as England’s so-called ‘golden generation’ were on Wednesday night… No, sorry, that’s not a good metaphor; the over-paid, over-rated bling merchants are reliably awful.

The week started with another exchange of volleys in the press release/letter war. You may recall that when we left things just over a week ago the warring factions were primarily engaged in a skirmish over the date of the Cup match – July 2008 (as specified in the Golden Gate Yacht Club’s (GGYC) original Deed of Gift Challenge), October 2008 (the date GGYC say they subsequently agreed to with Societe Nautique de Geneve (SNG) last November) and July 2009 (the date that SNG are claiming for the match).

After that story was posted, things really livened up, with a flurry of letters, claims and counter-claims. There might have been a time when I’d have sifted through these, and summarized each missive with a link… though I prefer to think not. Anyway, now I have a life. If you don’t, you can find them all in the usual places – the GGYC and Alinghi websites.

When you stick it on high heat for a while, all these words boil down to the usual: both sides blame each other for the current impasse, and neither will shift from their position.

They eventually got the opportunity to tell each other this in person, with a meeting on Wednesday 26th March in Geneva. The outcome was soooo predictable… Alinghi’s press release was entitled - SNG frustrated with meeting outcome. Oh really? I never would have guessed. GGYC were more guarded, but it made no difference. Alinghi followed up in short order with an announcement that they were returning to Justice Cahn and the New York State Supreme court for a decision on the date of the Deed of Gift Match. Alinghi posted their letter to Justice Cahn for us all to read, and GGYC followed up with their own legal response.

Again, cutting to the chase, Alinghi’s case is all about the idea that the 10-month notice period stipulated in the Deed of Gift is suspended (or 'tolled' as Alinghi call it) by the legal action – as they claim GGYC have already agreed to, and GGYC vehemently deny (this is a good BYM News interview with Tom Ehman). I could harp on about this legal stuff, but frankly, Cory Friedman will do a better job on Scuttlebutt when he posts his latest missive on the opposing arguments on Monday 31st March…

Meanwhile, the good Justice (who would be well on the way to winning ISAF’s World Sailor of the Year if it wasn’t for the fact that our august governing body have given every appearance of siding with Alinghi) hasn’t wasted any time, and he’s set a date for the court hearing of Wednesday April 2nd - after which, we can all tune our sets to stand-by again (or switch them off, if you’re carbon neutrally inclined) until Justice Cahn pronounces.

Then what happens…?

My money has it that the court is more likely to set a date of July 2008 than July 2009 and if that happens SNG/Alinghi are in a whole world of hurt. Expect the toys to come hurtling out of the pram and Alinghi to either return the whole thing to the court with an appeal, or less likely but more entertainingly, try something like the forfeit/rechallenge strategy I outlined in the last post.

The October 2008 date is the more interesting, as Alinghi could make this one – whatever they may claim. They have time to build a boat even if they start now, never mind if, as Tom Ehman points out in the above interview and one of the GGYC’s many press releases of the last week, they started back in December ’07 (they have signed up Alain Gautier for multi-hull training).

So this one could go either way, SNG can still play the venue card – they get to decide whether the race is in 5 knots off the Island of Capri, or 25 knots of the island of Oahu (the word on the Valencian street is that the Oracle camp is fully packed and containerised and ready to go anywhere in the world). Not to mention that SNG/Alinghi can choose the rules (How about... no boat shall be penalized for a collision... take that one and ram it into your lightweight multi-hull, Larry). Alinghi might just decide that they really aren’t getting any joy from the court, and return to what they’ve demonstrated they are good at – winning tough yacht races. Or they might not.

And if it’s July 2009, I don’t think we’ll be hearing much from Alinghi except for the crowing. And although GGYC might make a fuss about being hard done by, if the rules and venue are something they can live with, I suspect they will also accept the date. They still have a headstart, and there’s nothing to stop them maintaining it by building a second multi-hull, based on the lessons they learn from the first. In fact, given that Alinghi’s Protocol limitations on two-boat testing won’t be applying to this regatta, they could conceivably crank up a full two boat programme between now and then, and wouldn’t that be fun to be a part of…

The other possibility is that Alinghi swaps horses mid-race and offers a multi-challenge event for 2011 (or even 2009) under the compromise Protocol (proposed by GGYC and backed by the other challengers) that they, SNG/Alinghi, had previously turned down last autumn. This one would really put the cat amongst the pigeons back at Oracle Towers.

Whatever their motives when they issued their Deed of Gift challenge back in July last year, I doubt that Oracle believed that Alinghi would so comprehensively sail themselves downwind into a narrow creek with a square rigger. But they have, and right now, Oracle have a hand on the prize. They are one court judgement away from going into a Cup match with a serious jump on their opponents. Would you give that up if you had the opportunity – even if, when you started out, you just wanted a fairer deal for the Challengers in a multi-team event? I didn’t think so… but that call ain't gonna make you look good.

And finally, there’s a peach of an article by Vincenzo Onorato on the Mascalzone Latino website, where Vincenzo gives it to Alinghi with both barrels, loaded with number ten shot (you don’t want to break the glass - I’ve been reading No Country for Old Men).

The story finishes by looking forward to a day where the 33rd Match is all over, and Oracle have won – clearly a glass-half-full kind of guy - but the ideas are rock solid:

If possible, get Louis Vuitton back on board – they define the event, as much as the name America’s Cup, and their presence will reassure other sponsors.

Use the old boats and limit new hull builds to one – there’s a need to cut costs at a time when all the teams are struggling for sponsors and cash. (And personally, I doubt the credit crunch/US recession is going to improve matters for anyone anytime soon.)

Race as soon as possible – like, you know, 2009.

You can’t argue with any of that – roll on the day…

And don’t worry, Vincenzo, we haven’t forgotten why this all kicked off in the first place.

Mark Chisnell ©

Thursday, 20 March 2008

Laying Down the Law…

Justice Cahn has spoken… on the 17th March 2008, the New York State Supreme Court ruled in favour of BMW Oracle and the Golden Gate Yacht Club (GGYC), pushing aside the efforts of Alinghi and the Societe Nautique de Geneve (SNG) to overturn the 27th November 2007 judgement. If you haven’t been paying attention that was the one about the Club Náutico Español de Vela (CNEV) not being a proper Challenger of Record, substituting the GGYC in their place. So the judge read the wedge of ‘Keel Yacht’ papers provided by SNG, and dumped them in the trash where they belonged…

So much for the headlines, the detail is murkier, our gold standard in these legal matters has been Cory Friedman, writing in Scuttlebutt, and his latest take on the affair (Part 18, god help us...) makes it clear that he isn’t clear if this latest judgement is an actual court order, or not. If it is, then the you-have-30-days-to-appeal clock starts ticking. If it isn’t, then we’re still waiting for the order that has been pending since the end of November.

Still, that might not matter - Alinghi have declared that they won’t appeal in a statement posted on their website. But then, they said that before and then changed their minds, only to apparently change them back again.

Just as critical a part of the equation going forward is the date in Alinghi’s announcement – they are saying that they look forward to a Deed of Gift match with the GGYC in July 2009. But we know Oracle have in mind a date rather earlier – October 2008. In a phone call to Cory Friedman, quoted in the Scuttlebutt article, Ernesto Bertarelli tells our hero that…

‘SNG would not be ready to race in October 2008 if that turns out to be the date. He (Bertarelli) further confirmed that, if pressed to race in October 2008, SNG will forfeit.’

Friedman’s next action was to call GGYC and talk to Tom Ehman – who reckoned that as Challenger, they have the right to choose the match date and if SNG doesn’t like October 2008, then it’s up to them to do something about it. A later story in The Times online had a further explanation from Ehman on how the October date has been arrived at:

‘The Deed of Gift says that the Challenger chooses the date and must give ten months’ Notice of Challenge. So we challenged last July. We gave them not ten months, we gave them 12 months’ notice and chose dates in July 2008.

‘In December, after Justice Cahn’s ruling, we agreed with their attorneys then - they have since been excused by Alinghi - that we would race in October [2008]. So we gave them another 11 months’ notice from Justice Cahn’s decision and a total of 16 months’ notice [from the original challenge], and now they want two years’ notice. As far as we are concerned it is in October, we won’t go back now. Even though Justice Cahn makes it quite clear that the match could be in July [2008], we stand by our agreement.’

Are we headed back to court on this one? Justice Cahn has told them both that if they can’t agree a date for the match, then they can come back to him for a ruling, or use an independent neutral arbitrator.

So this looks like the next front in the battle, but I’d been reading the whole Keel Yacht affair as part of that same rearguard action on the part of Alinghi: namely, using the courts to stall because they had started the multi-hull design and build process after Oracle and were playing for time to catch up.

On the face of it, it’s hard to see how SNG are going to bring about a Cup match in 2009 without using the court to further this same strategy. But when you read the order, you can see how Alinghi might have decided that the legal route was not getting them anywhere – despite two sets of extremely expensive lawyers.

So their next move has been to send a letter to the GGYC, which is posted on their website, to explain why they think that the earliest date a match could happen would be 1st May 2009. This argument is largely based on the idea that the ten month notice period is interrupted by the litigation. This notion is discussed in Justice Cahn’s decision where he states, ‘Contrary to SNG’s assertion, that the parties wound up entangled on legal proceedings, which “interrupted” the 10-month period, does not invalidate the Notice of Challenge’.

Although Justice Cahn is not expressly dismissing the idea of an interruption to the 10-month notice period, given those quotations marks I’m not sure I’d want to be stepping up in front of him and trying to argue its validity in order to postpone the event to 2009…

So… perhaps… Bertarelli’s declaration that Alinghi would forfeit the Cup rather than be forced to race in October 2008 is the first shot in a new gambit – calling the court and Oracle’s bluff. Would Larry Ellison accept the Cup as a forfeit, and collect the opprobrium of the world along with it?

And there’s another angle here (since we seem to have started a game of what if...), which is that the time and place of the forfeit would presumably be at Ernesto Bertarelli’s choosing, by delivering a letter to that end to the GGYC - no prizes for guessing what might well be delivered a couple of seconds later… no, not a pizza… another Deed of Gift challenge for the next America’s Cup.

Once SNG’s challenge was placed with the newly minted Cup holders (by forfeit) at the GGYC (for the summer of 2009, presumably), they would have to accept it. The circle would be complete and the rest of the challengers would be just as locked out as they are now… And the Deed of Gift match goes back to July 2009 anyway.

This idea has some traction (hey, I’m speculating, but who isn’t?), given how hard it is to tune in a picture of Bertarelli just handing the Cup back… It might be the best leverage he has for getting the Deed of Gift match when he wants it – and short of having a representative of the GGYC’s preferred Challenger of Record accommodated in the entrance hall at the San Francisco yacht club 24/7 to shadow all arrivals of mail and couriers, I don’t see quite what Oracle can do to counter this play…

There are various responses to all this posted around the net, if you haven’t caught up with them yet, then Dalts response for Emirates Team New Zealand (ETNZ) is on their website, and the K Challenge reaction is on BYM News

Meanwhile, sailing preparations continue unabated at BMW Oracle. It looks like the latest to sign up to the Coutts juggernaut are former ETNZ sail designer, Robert Hook, and Craig Phillips. Phillips has long been Hooky’s right-hand man, joining him at OneWorld in 2003, and then moving to ETNZ for the 2007 Cup - I can’t remember any further back than that…

The rest of the BMW Oracle sailing team were also announced this week, along with a training programme that spans Extreme 40s to TP52s. Joining Coutts at the back of the boat are John Kostecki (tactician), Jimmy Spithill (helmsman), Hamish Pepper (strategist) and Michele Ivaldi (navigator). There are plenty of names from the 2007 Oracle sailing roster, but there are more from the old Luna Rossa sailing team that Spithill led to a Louis Vuitton semi-final in 2007. What there aren't are any multi-hull specialists - these guys all have America's Cup stamped through them like rock... check out the recently resuscitated BMW Oracle website (bring back the BOB!) for the full list.

Also away from the courts, Team Shosholoza has been forced to deny reports that it’s folded (just like most of the world’s investment banks then). The head honcho, Captain Salvatore Sarno commented that they still had staff at the base in Valencia and, ‘In South Africa, our naval architect Alex Simonis and his team is working on our new AC 90 campaign yacht. We are going ahead even though the rules and dimensions might change.’

And there was a Paris presentation by Marc Pajot, head of the new French America’s Cup challenge, French Spirit. I think (it’s all in French) that Pajot announced that he will be joined by Philippe Presti as skipper and Bertrand Pacé as helmsman – a pretty tidy starting line-up. Presti was the back-up helmsman with Luna Rossa in 2007, and Pace is a former ISAF number one ranked match racer. This is of course for the 34th Cup, as the 33rd will be invites only to Oracle and Alinghi…

Mark Chisnell ©

Wednesday, 12 March 2008

Cup, what Cup?

I’ve just checked the date on my last blog post, and it was six weeks ago. But I guess that’s about the level of attention that the America’s Cup deserves right now - just the occasional glance over the shoulder towards the court room… yup, still there, bickering away…

BBC correspondent Robert Peston has just written a book (Who Runs Britain?) on the rise and rise of the super rich, the market failings that have allowed this to happen and the distorting impact that it has had on British society and the economy - hey, Robert, over here, you missed a bit…

It’s a shame we don’t have the collective will to start Rule 69 proceedings, chuck a couple of people out of the sport for five years and see how the dust settles on that. In fact, if Team New Zealand wanted to go down the legal route, it might have been just as profitable to turn up at the next Farr 40 regatta and slap a Rule 69 report on the desk of the protest committee. The rule is ambiguous - as far as I can see - on whether bringing the sport into disrepute has to be done at the actual regatta in question…

But hold on, I’m getting ahead of myself - back at the ranch house the court room affairs have (as always) been best reported by Cory Friedman for Scuttlebutt, and there have been four additions to the oeuvre since we last posted – someone is sticking with it, at least...

Part 14 was on the January 23rd hearing in the New York State Supreme Court before the venerable Justice Cahn. Nothing much happened, except the Société Nautique de Genève's (SNG) new lawyer, Barry Ostrager, managed to obfuscate and stall sufficiently that the GGYC team couldn’t get the killer blow in. Come back later.

And so they did, on January 28th, when the hearing was covered in Friedman’s Part 15. This was mostly about the whole ‘Keel Yacht’ issue that SNG are using to try and establish that the Golden Gate Yacht Club (GGYC) challenge is invalid. Friedman covers where the issue came from (the words were copied from the 1987 Kiwi challenge that led the Cup into court last time), and why it threatens GGYC when they are so close to getting a ten count on SNG…

Personally, like Friedman, I think the use of ‘keel yacht’ in the challenge paperwork is irrelevant and have said so before – GGYC provided the dimensions in their challenge, and SNG can sail what the hell they like anyway, as evidenced by the court’s decision in 1988. In that case, the court allowed San Diego’s multihull to race against New Zealand’s monohull behemoth. But whether or not this judge, Justice Cahn, will see it that way once he’s waded through the blizzard of paperwork that SNG have presented to murk up the case remains to be seen.

GGYC finally got around to making this fundamental point in a letter to the Judge, sent after the January 28th hearing. It was the subject of Freidman’s Part 16 which finished with a nice summary of the state of affairs that still pertains (in this court case), at this point in time:

‘GGYC argues that Justice Cahn should sign its proposed order, dated December 11, 2007 (an October 2008 match), and send the case to the Appellate Division, First Department, if SNG, as promised, appeals. SNG argues that Justice Cahn should DSQ GGYC or refer the matter to ISAF, without, however, citing any provision of the New York Civil Practice and Rules that would authorize Justice Cahn to make such a referral, or provide a mechanism to do so.’

And so, the teams continue their preparations for the DoG fight in Cats...

Not a lot else has happened in the intervening six weeks, or even in the two months since the last full update. There was talk in an Italian newspaper, Fare Vela (and reported in English here) that a race circuit might be set up for the Version 5 Cup boats, with the possible venues including Cowes, Kiel, Trieste, and Valencia, with Alinghi, United Internet Team Germany, TeamOrigin, Shosholoza, Victory Challenge, Desafìo, one of the two French Teams, Emirates Team New Zealand and one team from China all supposedly involved.

And the Brits, in the shape of the Royal Thames Yacht Club (RTYC) and Team Origin, filed a Deed of Gift Challenge with SNG. This seemed to be something of an ass-covering exercise, just in case a vacuum should open up with the judge throwing out the Golden Gate Yacht Club’s challenge (on the basis of the keel-yacht), along with the earlier first challenge from Club Nautico Espanol de Vela (CNEV) that’s been the bone of contention all along. But until both of these things happens, I don’t think we have to worry too much about this one…

Each of the putative challenging teams is responding in a different way to the circumstances. Team Germany will begin laying off its sailors at the end of the month (but they may get new contracts if they race in the proposed Version 5 series, which they seem to be prime motivators behind). That includes Sport Director, Joechen Schuemann, who must be dead pleased he left Alinghi for the German challenge. Michael Scheeren, the team’s owner, was quoted by German magazine Focus as saying, ‘A certain number of contracts, including Jochen Schuemann's, expires on March 31 and we will not be extended. We cannot continue to finance a large team without knowing more about where the America's Cup will take place in 2011.’

So Schuemann and his mates have headed off to race TP52s with Harm Muller-Spreer's Platoon. Muller-Spreer has gone from steering his own boat and racing with a few mates, to a fully cocked pseudo-Cup programme in the space of two seasons. And this quote from the Adonnante article gives you an idea of how those changes might play out in the wider TP52 class:

‘The only thing about the MedCup circuit that, honestly, bothers me is that- it is going to be very professional of course - we have to take care that is not taking off like the Formula 1 motor racing where one guy, Bernie Ecclestone, is dominating everything. The MedCup is a business for some, it is about earning money, but my feeling is that they have to ask the owners of the boats a little more, because without the owners and the teams there is no MedCup… At the end it is private owners who are pushing it forwards and these professional teams are coming forward. At the beginning it was the King of Spain, and guys like this, and you have to keep asking them as well.’

I talked about the possible impact the Cup hiatus might have on the TP52s back on January 2nd, and here’s evidence of the pressure it is putting the owners under. Watch this space.

But it’s the response of Emirates Team New Zealand (ETNZ) to their predicament that has caused the most excitement of late. They have also been laying off staff – nearly a third of the team so far. Then, at the beginning of March, the Kiwis lodged their own set of papers with the New York Courts, in two separate cases. In the first, SNG, Team Alinghi, Ernesto Bertarelli and America's Cup Management (ACM) are all charged in the New York State Supreme Court with breach of contract in not organising an America’s Cup in 2009 – for which ETNZ claim they had a binding agreement (Justice Cahn has been assigned to this case).

And just for good measure, there’s an anti-trust case in the US District Court for the Southern District of New York, against the same group, over the way they have handled organizing the Cup so far, and the pretty pass to which it has brought us all. Dalton and co want damages in excess of US$12 million - Alinghi were quick to respond and Dalton explained the background in an interview in which the - previously very pro-Alinghi and partisan - BYM website agreed that CNEV was not a valid yacht club....

Once again, Cory Friedman waded into the breach, with Part 17, and Friedman’s conclusion was… don’t hold your breath. None of this is going to get settled any time soon, and almost certainly not before the main GGYC v SNG case. If you want to know why, I’ll refer you to Part 17, 'cos I’m going to leave it right there. Hell will freeze over before we see another Cup match at this rate of progress...

But come October, there will be guys racing around the planet at Mach 3 with their ass on fire, and it’s going to be a whole lot more interesting than this - did I mention I’m going to be writing for the Volvo Ocean Race? Now that is something we can all get excited about....

Mark Chisnell ©