America's Cup proves to be a stubborn beast

by Richard Gladwell, Sail-World on 15 Nov 2008
The immortal words of REM’s hit 'The Great Beyond' seem oddly removed but relevant to the past 17 months of the America’s Cup:

'I'm pushing an elephant up the stairs
I'm tossing up punch lines that were never there
Over my shoulder a piano falls
Crashing to the ground'

For most of those 17 months the protagonists have made the occasional lurch with their side of the grey beast. But moving this particular pachyderm up the America’s Cup staircase has proved rather difficult.

Punchlines abound. This week more so than most, with release and counter-release all designed to maintain the high ground in the PR war, given that the legal war is now being put to rest in the Appeal Court of New York State.

For BMW Oracle Racing and the Golden Gate Yacht Club, the piano crashed to the ground with the surprise decision in July 2008 from the Appellate Division of the New York Supreme Court, in favour of Team Alinghi and Societe Nautique de Geneve.

First signs of movement in the 17 month impasse came on Monday with the announcement from the Competitors Meeting that there had been some changes agreed to the vexed Protocol.

However as it looked like the elephant might indeed get a foot up a stair, came the news that not only had BMW Oracle Racing not been invited to the meeting, another competitor, Mascalzone Latino, had been excluded for refusing to sign a non-disclosure agreement as a prerequisite to attendance.

For BMW Oracle Racing’s Tom Ehman, this is his second time through the New York Court system with the America’s Cup. The first was in the Mis-Match, which followed the 1987 America’s Cup.

Is a settlement between the two sides that far off? Sail-World spoke to Tom Ehman, in San Diego, for his view of the state of the play.

Essentially there are three substantial issues in contention. First is the appointment of regatta officials and the Arbitration Panel itself, along with the jurisdiction of the jury which can be overruled by the Arb Panel.

'I will explain it from the general to the specific', says Ehman. 'First, we feel that it’s unfortunate that we and Mascalzone Latino were excluded. But we are heartened and encouraged, as you will see in Russell (Coutts’) interview, by some of the positives that came out of the meeting. There appears to finally be some willingness to move on some of these points. For example, we are pleased to see that they will use ISAF officials. They didn’t say who was going to appoint the officials, but if they are going to be appointed unilaterally by Alinghi, the Defender, then that’s not fair.

'We have always used ISAF officials in the America’s Cup, going back to 1974, they were appointed by mutual consent, and that’s the way it should continue to be done.

'A major sticking point remains and that is the Arbitration Panel. Alinghi said in the press release that they would be willing to add two members to a Panel, of which they’ve already chosen three members – that makes it 3-2 rather than 3-0'.

'The point remains that adding two members to their three members already appointed does not come even close, in our view, to solving the problem.

'As you know, the standard operating procedure for selecting the Arbitration Panel is to have the Defender pick two members and the Challengers pick two members and then those four pick the fifth member. That’s the way it was done in New Zealand for the 2000 Cup, the 2003 Cup and so on. And that would be fair. That would be correct.'

It should be noted that in the 32nd America’s Cup there was no Arbitration Panel for racing decisions – the International Jury had the complete and final right of Decision. For 2010 and the 33rd America’s Cup, for the first time in America’s Cup history, all decisions of the International Jury will be appealable to the Arbitration Panel. That Panel, as it currently stands, has no ISAF certified International Judges on its membership.

Defender Power

The power of the Defender in what has previously a 50/50 decision-making process, causes BMW Oracle Racing real concern.

'They can still change any of the rules at any time and still impose new rules or restrictions on the competitors, requiring only the agreement of their compliant Challenger of Record,' says Ehman.

'Remember after Justice Cahn’s ruling CNEV (Club Natutico Espanol de Vela) gave a press conference where they said, ‘CNEV was formed in secret at the request of ACM.’ Those are their words not mine.

'Alinghi and their Challenger of Record can still amend any of these Rules at any time and still impose new Rules.

'Any serious challenger would not – should not – be comfortable with that,' Ehman adds.

'Our position overall remains clear. We have said any number of times over the last year, in fact since we filed our challenge: adopt fair and competitive rules similar to AC32. We aren’t saying it has to be the same format of competition. '

One boat opposition dropped

BMW Oracle Racing have dropped their opposition to the 'one new boat' rule proposed as a cost reduction measure for 2010. They are also more flexible on the Defender sailing in the Challenger Selection series for the first time in America’s Cup history.

'If they want to do one boat, we can deal with the one boat issue and we even think there are some good ideas there. But it cannot be at the expense of the quality. The Challenger’s Selection Series cannot be affected by us going to this one boat situation and having the Defender sail in it to the bitter end. The Defender could determine who ends up racing in the final,' Ehman told Sail-World.

'These issues need to be discussed, not just by Alinghi and their entered Challengers, but by the entire America’s Cup community. Remember it’s not just ourselves and Mascalzone who were not there last weekend in Valencia. Team Germany was not there, Luna Rossa was not there, K-Challenge was not there, and Victory Challenge, while present, has been neutral and did not sign that letter.'

An exercise in semantics?

Many would have the view that much of the argument over the 33rd Protocol is largely an exercise in semantics.

Take, for example, the issues raised over the composition of the Arbitration Panel and its powers, knowing that in previous America’s Cup, very few decisions have ever been referred to the Arbitration Panel, and those that have were on issues not directly arising from the racing.

Ehman disputes this view. 'Remember, unlike previous Cups, in this next Cup the Jury decisions are all appealable to the Arbitration Panel. That’s never been the situation other than last time when, in fact, the Jury was the Arbitration Panel - but that was a different deal.

'There was no appeal to another body controlled by the Defender. That’s what they set up here. So there is a basic fairness issue that remains and other points that we have communicated over and over again.

'Again we are encouraged that there seems to be some discussion and some movement. But we are disappointed that they will not sit down with all of the stake holders, which has always been done in the past. Always.

'As long as I’ve been involved in the Cup you never did things with the Non Disclosure Agreements until well after the Challenger entry deadlines have passed, which is not the situation at present as entry is still open.

'All meetings included all of the prospective Challengers. In fact, even after you had an initial challenge, and went for another year, you always invited all of the Challengers to sit and discuss things. Or, when you had multiple Challengers because you were trying to get everyone’s best ideas and you are trying to reach mutual consent. That, we hope, is the direction the Defender is leani