America's Cup - the debate with Hamish Ross - 2

by Richard Gladwell on 1 Nov 2007
In the second part of the discussion with Hamish Ross, General Counsel for Alinghi, we looked at the report on Monday, out of South Africa that further delay in settling the America’s Cup dispute would affect the financial viability of the teams that had entered, and others who are in the wings.

Ross agreed with the comments from Shosholoza’s Captain Sarno. ' One of the effects of the court action is that the window will close on 2009 very quickly,' he said. 'If this is not resolved within several weeks the opportunity to have a regatta in 2009 is gone for good.

'If the judgment is in our favour, and Oracle appeals, we are facing another year of uncertainty.

'If we lose then 2007 doesn’t really matter anymore. We will have to race catamarans in 2008; or we mutually agree an alternative regatta format with Oracle; or we appeal.'

'Our problem, Team New Zealand’s problem, South Africa’s problem, all competitor’s problem are that no sponsor is willing to commit the large sums needed without certainty in the event.

'Until we get certainty, teams and people don’t get funded.'

Turning to the current Court action, we put it to Hamish Ross that unlike the situation in 1988, there is only really a single point only point that is really in dispute - whether CNEV is a valid Challenger.

'Yes, that is pretty much it,' he said

Sail-World: 'Given that the question being asked of the Court is a relatively simple matter of interpretation, are you going to Appeal if it doesn’t go your way? Couldn’t you just accept the Judge’s decision and get on with the regatta?'

'Whether or not we appealed would depend on what the judgment said,' Ross responded. 'If a fundamental error had been made by the Judge then obviously we would be looking seriously at that. It is open to either side to accept the decision and not appeal, to give some sort of certainty.'

Sail-World: 'So taking this a step further, if Alinghi got to be in a situation where the Judge ruled in favour of GGYC, would you then sit down and negotiate with a view to not going ahead with the catamaran challenge?'

'That decision hasn’t been made,' Ross explained. 'And, we’ve not been spending time over what would happen if we lost. We’ll deal with that at the time if we have to. There will be a number of options open. One is meeting the catamaran challenge under the Deed of Gift. The other is negotiating a Protocol with Golden Gate. And there is the possibility of appealing the decision, as well as other possible options...

In setting up the 2007 event, ACM were careful to position the event so that there was not a clash with the Tour de France and other major events. In 2010, the Football World Cup is being staged in South Africa from 11 June to 11 July 2010. Wouldn’t this preclude an America’s Cup in 2010?

''I’m not in a position actually to say whether one date is better than another, but certainly 2010 has some difficulties associated with it. In 2010 the Football World Cup is on at the time we would be looking at for the America’s Cup. We could possibly work around it, but makes a difference to broadcasters and therefore to many sponsors. It’s not completely out of the mix, is what I am saying but 2010 has special issues ACM would need to work hard on,' Ross explained.

Sail-World: 'Would the venue change if the event was moved from 2009?'

'A venue change is not being considered. Valencia is signed up for a regatta held in 2009, 2010, or 2011. So there is no need to consider a venue change.

Dabbling in both Trials?

One of the features of the 33rd Protocol is that one clause gives the Defender the right to conduct Defence trials (with two or more boats, obviously) and would get around the no two-boat testing – which is one of the tenets of the latest Protocol. Another clause gives the defender the unprecedented right to sail in the Challenger Selection Series. The way the Protocol currently stands, the Defender could sail in both while the Challengers are restricted to one. What was the intention of this, we asked?

Ross replied: 'Remember this was written at a time when not a lot of thought had been given to how a regatta would have been shaped or formed, and given that we were intending to restrict competitors to one boat the Defender trial system was left in there as some possibility. It is a subject which, of course, Oracle had raised, and our response has been that it is not our intention to hold Defence Trials at all. Our only racing, if you like, will be as part of the Challenger Trials.'

Sail-World: 'So are you going to remove that clause from the Protocol?'

'No decision has been made at this point,' Ross responded. 'We have told the Challengers what our intentions are. There has been no move to remove it from the Protocol. That may change at some point.'

Sail-World: 'But the way the Protocol currently reads, Alinghi could legally sail in both Trials.'

'Yes I agree that is the way it reads,' Ross replies. 'But that is absolutely not our intention. There is certainly no other team in Switzerland about to put its hand up and race Alinghi in some kind of a trial, anyway.

'If you look back historically, the reason New York held onto it so long was because of the defender trial system. Once the challengers had worked that out a got themselves some decent trials then they started to be competitive.

'Now we have returned to a reverse of the old system, where you have a very strong set of challenger trials and no Defender trials. Some may see that as a good thing.

'Switzerland’s position is no different than New Zealand’s position. You wonder how long it would be if NZ kept winning the Cup before they had some idea of introducing trials. I think Grant (Dalton) may have made the comment not too long ago that if they had won, then it was on their program as well,' Ross concluded.

Wiping Mutual Consent

One of the areas in which Alinghi and ACM have copped a lot of criticism is the fact many of the mutual consent provision have been withdrawn from the 33rd Protocol which had been present in previous editions? Many would argue that what was a Challenger trophy is now a Defender driven trophy.

Hamish Ross explains their thinking: 'The feeling was that there needed to be a strong event authority with an ability to innovate and get things done. There was a desire to have a strong central authority making rules and being able to introduce new ideas.

'What we found last time was that the window in which you had the ability to introduce new ideas was a relatively small window.'

Sail-World: 'That being so, why not make this strong central authority, truly independent instead of what is currently seen as a tool of the Defender?'

Ross replies: 'This maybe the future of the America’s Cup and some have promoted it, but while the Defender takes all the financial risk of the event it is unreasonable to expect the Defender to give up control.

'While the 32nd AC was very financially successful through the efforts of ACM, in which all competitors received the benefit of, it was not long ago the event was insolvent. Also, I believe you need to think very hard before making any changes to a formula that has been so successful, there needs to be a place for the winner to take the competition home,' he adds.

Including the Excluded

Sail-World: ' If the Court decision goes your way, and given that there are at least three substantial teams outside the ACM wagon circle (Victory Challenge, Mascalzone and BMW Oracle) who have been deliberately excluded by Alinghi/ACM from the consultation process to date. How are you going to get those teams back into the fold? The line 'we won, y