Seven Challengers take umbrage at Cup Protocol

by Richard Gladwell, Sail-World on 11 Oct 2007
Just two weeks after the finish of the 32nd America's Cup, seven of the Challengers signed a letter expressing their views of the Protocol which had been signed between the Defender, Societe Nautique de Geneve, and their Challenger of Record Club Nautico Espanol de Vela.

Known as Exhibit 2, and referred to in the submissions lodged recently by Mascalzone Latino and BMW Oracle Racing, the signatories to the letter – Emirates Team New Zealand, Luna Rossa, Mascalzone Latino, United Internet Team Germany, Areva Challenge, Victory Challenge and BMW Oracle Racing had just come off the back of one of the greatest America’s Cups ever, an event that really just needed the gas tank to be filled again and left to again for the next two years.

Instead they found themselves stuck in a very difficult position. Enter and sail in a competition that was very heavily weighted in terms of the Defender; or drop out of the America’s Cup game.

Between them the seven teams had a total of 17 America's Cup campaigns. Desafio Espanol had just one and its club CNEV, had been in existence just a few days, had never competed in an America's Cup and indeed had never organised a yacht race.

Against this backdrop, the ire of the seven Challengers is understandable. They have since all had to make a choice, and only two have entered.

With usual salutations and introductions stripped away, the basics of the letter addressed to the Presidents of Club Nautico Espanol de Vela and Desafio Espanol is as follows;

In our collective role as past Challengers and prospective Challengers, our opinion is that this Protocol is the worst text in the history of the America’s Cup and more fundamentally, it lacks precisely the mutual consent items which are required.

Some of the essential features of the Protocol are as follows:
1. The obligation which previously required the Event Organiser (ACM) and all Regatta Officials to be neutral has been erased. (See Art. 5 and specially 5.9 of the Protocol of the XXXII America’s Cup).

2. There is no reference or consideration whatsoever to the interests of the Challengers, who are an integral and essential part of the America’s Cup. (See Art. 2.2).

3. Any Challenger that disputes the Protocol may be disqualified from the competition by the Defender and indeed may not be accepted for any reason at the complete discretion of ACM. (See Arts. 2.7 (d) or 4.4).

4. There is a prohibition for the Challenger of Record to act in the interest of other Challengers. (See Art. 3.4).

5. ACM has powers and rights which significantly exceed the position of any Defender in any other Protocol in history. (See Arts. 6, 7, 8, 9, 10, 11, 13 or 17).

6. The Defender, through ACM, is given the power 'unilaterally' to establish the rules for the all the events, including the Challenger Selection Series, giving the Defender a crucial and unfettered role in determining the Challenger for the America’s Cup. This is without precedent and is absolutely contrary to the Deed of Gift. (See Art. 5.4(b)).

7. The essential rules of the event will be imposed by ACM and changed at any time without even consultation with the Challengers. (See Art. 17).

8. The Challenger Commission disappears and the Competitors Commission is deprived of the voting rights and other crucial rights such as amending the rules or filling protest to the Jury or Arbitration Panel. (See Art. 10).

9. There is absolutely no certainty on the format, schedule or venue of the competition, qualifying regattas, defender series or scoring. (See Arts. 11 or 13).

10. For the first time in history, the Defender is designing the Class of boat in secret with no contribution by the Challengers. (See Art. 14).

11. You have granted the Defender rights never before granted in a Protocol such as having more boats than the Challengers or participating in the Challenger Selection Series, except, the Challenger Final. (See Arts. 12 or 13).

The essential consequences of your signature of the Protocol for the Challengers are as follows:

1. The asset value of the current AC boats is almost zero.

2. The Protocol makes it impossible to close a budget, now or in the near future, for any team or to seriously talk to sponsors for the next AC.

3. The Protocol harms the competitive position of the Challengers.

4. The Protocol lacks all the neutral management provisions that guarantee a fair contest.

5. The Protocol eliminates the powers of the Challenger Commission and greatly reduces those of the Challenger of Record.

6. The most important Sailing Rules will be known only 60 days before racing (in last AC they were known years ahead or several months) this implies that it is impossible to train for Match Racing and that the Defender will have an incredible advantage on the water.

7. Sport justice has gone back to before 1960’s.

8. The essential elements of the competition have changed taking all the balances and guarantees from the Challengers and vesting them in ACM and the Defender.

9. This is overall a radical change in the Americas Cup which jeopardizes the participation and survival of the event.

You are well aware that serious questions have been raised about the legitimacy of the newly created and purely instrumental entity called 'Club Náutico Español' to advance a Challenge under the provisions of the Deed of Gift. In the sincerest hope that the America’s Cup competition will not have to endure the turmoil associated with litigating that issue, but wilt rather move forward with the balanced and fair procedures and protocols that have historically characterized this competition, we ask you to dissolve 'Club Nàutico Español' and withdraw your Challenge within the month of July 2007.

Clearly that deadline passed without action from the Challenger or Defender. While some of the issues with which the six Challengers took umbrage have since been addressed in the Protocol changes announced by Team Alinghi and Desafio Espanol, the majority have not.

The remaining feeling of antipathy towards the document is evidenced by the fact that only two of the six challengers have entered, and three of the remaining Challengers, Luna Rossa, Mascalzone Latino and BMW Oracle Racing are very publicly estranged from the event.