To be or not to be, that is the slippery slope that distinguished Judge Herman Cahn finds himself on as he presides over a legal dispute on one of the State of New York’s more charitable trusts; the America’s Cup. Judging from his demeanor, he seems in no mood to coddle.
For the matter at hand, it would seem abundantly clear that Nautico Club Espanol de Vela, (CNEV) is not a viable challenger of record (COR) and the New York Supreme Court will have no alternative but to rule that the Golden Gate Yacht Club (GGYC) is the first legally binding challenge for America’s Cup (AC 33). As with all cases before a court one point of view begets another.
The dispute stems from the protocol set forth by managers of the 33rd America’s Cup. For the first time in many years the challengers for the old trophy finds themselves without a set of rules that were crafted by a mutual consent with the defending yacht club. After defeating New Zealand in July, five races to two, the Societe Nautique de Geneva (SNG) from Geneva, Switzerland are the defenders.
Succinctly in its aggregation is that CNEV has not held a legitimate “annual” regatta, as required by the deed of gift. The Alinghi Syndicate, which represents the (SNG) should have at least contemplated defending the America’s Cup and set up a token challenger of record in some shape or form. Then run an “annual” regatta well in advance of this past year’s America’s Cup races. It doesn’t take much to get a regatta going; a few sailboats and couple of cases of beer, some rum….etc.
And speaking of trying to get a regatta going, it seems that SNEV is trying to grovel for boats for an upcoming regatta on November the 24/25th. They have petitioned members of the Club de Regatas Marina of Pobla de Farnais to “reschedule races to coincide with the regatta” organized by the CNEV. The CNEV are “encouraging members to participate” to enlarge the numbers of boats at the event.
BMW Oracle (GGYC) is marshaled by billionaire software mogul Larry Ellison. The team ghosted away in the semi-finals and initially, many saw their legal challenge as sour grapes. But, clearly from the onset, the new protocol was troublesome to say the least and downright wrong at most.
While the nautical design teams plot out the lines for a new generation of boats for the next event, where ever it may be, excitement is building about the new America’s Cup 90 Class Rule and regardless of the outcome of the legal proceedings the new AC90 rule should survive.
So, what made Alinghi King Ernesto Bertarelli think he had earned a mandate after defending, to try a power grab? Why kill a good thing? At what point does the (SNG) protect its interest as, not only the defender, but as the trustee of the America’s Cup, beholden to the bylaws established by the deed of gift? The ‘Cup does not belong to Bertarelli, Alinghi or to SNG. The yacht club is a mere caretaker, whose responsibility is to allow for competition as a perpetual challengers trophy.
The 32nd America’s Cup was one of the most exciting sport championships ever with Alinghi surviving the final race by one second. The city of Valencia may have forced the issue of selection early, by forcing Bertarelli to commit to returning the races back to Spain, adding an ambitious guarantee of 10 challengers. Finding 10 syndicates willing to fork over a combined billion dollars to sail for the “auld mug” would have been a stretch with or without the legal challenge.
Bertarelli’s vision seems short sided thinking he could fly the CNEV. Any newfound momentum with the hope of additional corporate sponsorship is gone. With a loss in the integrity of match, Louis Vuitton bailed after 30 years. The Formula 1 mafia coerced a competition moratorium of 5 weeks around its grand prix race date every August. From one “fixed” sport, now to another? NASCAR calling.
The difference is Bertarelli represents the (SNG) as the custodians of a trust and he is no Bernie Ecclestone. His (Ecclestone’s) corrupt sport has been propped up for the most part by the “merchants of death” (tobacco) for the last decade, as costs in Formula One racing have grotesquely spiraled out of control. It wouldn’t have taken a rocket scientist or billionaire, to see thru the transparency of this “sham” (COR). It’s ironic that empathy now lies with Ellison.
It would seem that a large part of Bertarelli’s paranoia stems from what happened during Race 3 of the America’s Cup finals and to some extent, the last leg of Race 7. In choosing Valencia, Spain as the home waters to defend the ‘Cup the (SNG) felt the strength of the ancient Mediterranean port city would be a consistent wind radius of 12-16 knots. But, the wind was anything but consistent off Valencia.
In fact what at first was a nautical nightmare of no wind turned out to be the ecstasy of unpredictability. The late afternoon wind shifts were extreme and it must have driven designer’s nuts, because it became the great equalizer as sailors were forced to race by the seat of their pants.
The racing between Emerates Team New Zealand and Alinghi was exhilarating. Each match could have gone either way and while trying to measure the designers technological progress of madness, into the proliferation of milliseconds, to the advantages of the “turbocharged” Version 5’s, was like squeezing blood from a trillion pennies. Maybe the designers are bored, but we weren’t. The crews decided this one!
Race day strategy turned on having to hoist the navigators up to the top of a 130 ft. carbon fiber pin of a mast, to look for the breezes and shifts leaving the tacticians with either too little or to much information to process. Hence the emphasis of Bertarelli’s impassioned defense driven protocol, which I am sure he drew up on the way in to port at the conclusion of Race 3.
“It’s not offshore racing where you just have to see whether the wind decides the regatta. I don’t think the wind should decide the regatta, said Bertarelli. ‘The competitors (ie: designers) should decide it on their ability.”
Huh? “I didn’t come to the America’s Cup to do this type of racing,” Bertarelli says. Wind shifts, as with race delays are as part of sailing as are windy, rainy games on the football field. Like Fremantle, Western Australia’s notorious “Docktor”; or San Francisco Bay’s ebb tide, its called home field advantage, but since SNG chose Valencia, whose to blame?
Speaking of sham. The term, a noun, appeared in language brought forth by the Golden Gate Yacht Club’s court transcripts regarding CNEV’s status as a bona vide yacht club. Sham appears in the newly revised American Heritage Dictionary on page 641.
The definition goes as follows; something false or empty purporting to be genuine. Two words down is shambles, defined as; a scene or condition of complete disorder or ruin. This is what the short sidedness of 33rd America’s Cup has been left in.
With all the thought, preparation and legal maneuvering that has gone into the actual notices of race and the apparent neutral documentation of the new AC 90 class yacht, it boggles the mind on how the declaration of the CNEV as challenger of record could have been so poorly thought out.
Obviously Lucien Masmejan (Bertarelli’s lawyer) wasn’t the extra person on board for Race 3.
Here are 5 points that should bring the warring sides together.
1] Agree that the AC90 is a worthy successor to the ACC Version 5 yacht. 2] That Alinghi should not be allowed to participate in the challenger series. If SNG Is concerned about preparing for a defense, hold trials, or try something radical; a European Defense. 3] Allow the challengers to form their own commission to “mutually agree” with the defender on terms. CNEV should be vanquished.4] Allow syndicates to build 2 of the new AC 90 boats, but institute a “salary cap” to keep costs in control. Allow two boats (from the same mold) to be built. 5] Bring in an international jury to arbitrate disputes.
Back to the American Heritage page 641, further down the same page is shamrock, which should serve to remind everyone on a truly admirable, challenger and competitor, Sir Thomas Lipton. In parting, thank you to all the lawyers and deposed witnesses for all the great reading, but more importantly I am looking forward to “breakfast in Valencia” again, ASAP. Even in giant 90 ft. tri-marans! Bring on the “radio boys”. Sayonara.
Mark Wharton Reid
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