Gladwell's Line - Stacking the Cup game

by Richard Gladwell, Sail-World.com on 16 Jul 2015 In a further move consistent with the 'Do as I say, not as I Do' strap line of the 35th America's Cup, organisers have announced the involvement of Gosling's Rums as Official Rum and Official Ginger Beer of the 35th America’s Cup.

Few would see an issue with that in an island which has Dark and Stormy as its national drink. However, the Competitors are specifically prohibited from having any form of 'hard liquor or other spirit brand of alcohol' advertised on their yachts, crew or venue.

The prohibition has hit financially strapped Team New Zealand, who were unable to re-sign major sponsor Skyy Vodka because of the liquor ban for competitors. While there could be some justification in the liquor advertising as a passage through the myriad of TV advertising bans on smoking, liquor and betting products in various television rights territories.

By their actions, Cup organisers say that it is OK for Gosling's to be sold at the various America's Cup venues. But competitors in the same event and venues are not allowed to have any hard liquor sponsor's involvement displayed on their yacht, crew or venue.

In a further irony the presenting sponsor of the America's Cup, Louis Vuitton's parent company LMH was formed from a merger of Moët et Chandon and Hennessy, leading manufacturers of champagne and cognac, with Louis Vuitton, to form the luxury goods conglomerate.

That apparent ambiguity begs the definition of just what is 'hard liquor or spirit brand of alcohol' - presumably whiskey, rum, vodka, bourbon, etc. are all hard liquor - but wine, champagne, beer and the like are not of the hard liquor genre and are therefore legal on boats.

That being the case, the argument that the hard liquor advertising ban is done for TV advertising code purposes does not stack up. Wine, beer and RTD mixes are also covered by the TV adverting code bans.

The only real purpose for that particular Protocol advertising rule seems to be to make Team New Zealand's difficult commercial life even harder. Because of it, they cannot re-sign Skyy Vodka - a move reckoned to have cost the team up to $10million in cash sponsorship. Other commercial teams are similarly constrained.

Cup organisers rubbed salt into that wound, this week with the signing of a hard sponsor and agreeing for Gosling's products to be sold at Cup venues. Clearly the ban on hard liquor advertising is not about protecting the image of the Cup.

'Born in the USA?'

The announcement of the crew list for America's Cup Defender Oracle Team USA, in which none of the five crew were born in the USA, underlined how far the current America's Cup has strayed from the intention of the Deed of Gift.

Nationality is a fundamental of the Deed of Gift, the 19th-century document that governs the conduct of the America’s Cup.

It was this intent of the Cup donors that the long-time holder of the Cup, the New York Yacht Club, used to ensure that all parts of the yacht were built in the country of Challenger, the yacht was designed in the country of the Challenger, and in the 12 Metre era of the Cup 1956-1987 all crew competing in the Match had to be nationals of the Challenger country. The interpretation was at the centre of the ruckus as to who was actually the designer of the Australian Challenger Australia II.

The Interpretative Resolution of 1958 set out how the nationality rules had applied for design and construction in the preceding 88 years.

1958 - In view of the expressed intent of the donors of the America’s Cup that it should be “perpetually a Challenge Cup for friendly competition between foreign countries” and the fact that in accordance with that intent and commencing with the first race for the Cup in 1870 down to the present time every challenger has been both designed and constructed in the country of the challenging Club and every defender has been both designed and constructed in the country of the defending Club so that every challenger and every defender has been in all respects truly representative of the countries of the challenging and defending club and the Cup has become by tradition the symbol of the yachting supremacy of the country of the Club winning the challenge match.

Resolved that the word “constructed” wherever it appears in the Deed of Gift of the America’s Cup shall always be construed as “designed and built”.

And in terms of sailing crew the Interpretative Resolution in 1980 was just as plain:

1980 - For a candidate to be eligible for an America’s Cup Match in any year subsequent to 1980, every member of the candidate’s crew must be a national of the country in which the club represented by the candidate is located.

The requirement that a person be a national will be satisfied if the person has been domiciled in, or has had a principal place of residence in, or has had a valid passport of that country for no shorter period than the two years before the date of the first race of the applicable America’s Cup Match. However, no person may claim dual or multiple nationality. If a person satisfies the conditions of nationality for more than one country, he shall elect and declare a single nationality and may participate only on behalf of the country whose nationality he declares.

Note this nationality requirement applied to every sailing crew member.

These requirements remained more or less in place until Alinghi won the Cup in 2003 and decided that it had become too much of an expense and inconvenience for sailors to have to maintain a home address in the country of their Club, as well as a passport, and maintain their original residence for post-Cup use. Added to the salaries commanded by these sailors of fortune, the Swiss move was driven by convenience rather than compliance with the intent of the Cup donors.

Just a decade later, the nationality requirement has now been diluted to the point where only one of the sailing crew must be a passport holder of the country of the Challenging/Defending yacht club. Plus on the design and construction requirements only the exterior surface of the catamaran's hulls must be laid up in the country of the Challenger/Defender.

None of the five sailing crew listed for the Defender Oracle Team USA for the upcoming America's Cup World Series was born in the USA. Three are Australian born. Two are New Zealand-born. A couple of the crew meet the passport-holder requirement by virtue of dual passports. In a previous era, they would all have had to hold USA passports as the minimum requirement.

The fundamental point of the Deed if Gift that a competitor had to be able to design, build and sail their yacht using national effort has been taken out of the competition, and the event remains true to its founding principles in name alone.

For three/four of the teams in the Class of 2017 it can no longer can it be said (from 1958 above) '..the Cup has become by tradition the symbol of the yachting supremacy of the country of the Club winning the challenge match... (Depending on how much of the Defender's design package is picked up by the French team.)

Two of the Challenging Teams Japan and France have been offered design packages handed to them by the Defender, Oracle Team USA. These are not just a basic hull or platform package, of the likes sold to late entry Luna Rossa for the 34th America’s Cup by Emirates Team NZ, but are a full boat, platform, wingsail and foil packages. Again, it remains to be seen how much French technology is in fact embodied. But for all teams the AC48 is a one design in terms of hull, platform, and wingsail profile - removing the national design component that was intended by the Cup donors.

The control systems, and foil packages are open. In a normal America's Cup, the teams had their design and construction teams located at least in their country of club origin.

Now all that is required is for a construction team to fly in with a set of moulds, perform and certify the external surface lay-up ritual in the country of the challenging yacht club. Then they head back to the contracted building facility and turn 48ft long exterior surface laminates into a finished AC48.

The moves are touted as being to the benefit of getting smaller, and new teams started in the America's Cup.

However it is arguable,and in fact seems likely that the Constructed in Country conditions of the Deed of Gift cannot be modified by Mutual Consent and the whole boat must be built in the country of the yacht club. The Deed of Gift is specific that Mutual Consent is only applicable to dates of the Match; Courses; number of 'trials' (races); sailing rules and regulations. The modifying clause 'an any and all other conditions of the match in which case also the ten months's notice may be waived.'

The view of Deed of Gift experts spoken to by Sail-World indicates that the Mutual Consent provisions do not apply to lessen the size of the boat below 44ft LWL, the Cup must be a Match race (ie cannot be fleet racing), the yachts can be propelled by sails only.

Further the Deed requires that the yachts must be constructed in the country of the Challenging Club, competing against a yacht 'constructed in the country of the Club holding the Cup'.

An Interpretation was made in 1980 to allow sails to be made in the country where the Match was being held, and that the boats could be modified in that country (in the team's base).

Any modification of the Intent of the Donor by a Protocol provision is always contestable in Court, and the current Protocol provides immunity for this this to happen.

There are just six teams entered - two more than the 34th America's Cup. Three are virgin teams in America's Cup terms; the fourth sailed just four races in the 2013 Louis Vuitton semi-finals. Only half the teams border on complying with nationality requirements as they were up to 1990.

Numbers are about half the monohull era - not that it is a monohull vs catamaran issue, but the event has been dragged so far away from its roots that it is almost meaningless in terms of sailing supremacy of a nation - for several of the teams, anyway.