Diary Opening February 8th. Racing Anyone?

Our little holiday included a holiday from the America’s Cup. After the smiles and hugs on a stage in Monaco, GGYC and BMW ORACLE’s gift of goodwill to men was a letter the the Swiss defender serving notice that the American team believed the Alinghi catamaran to be illegal according to yet another arcane stipulation of the Deed of Gift.

According to GGYC in a handy ‘DOG for Dummies’ addition to their press release, the Deed of Gift requires…

“…a yacht or vessel propelled by sails only and constructed in the country to which the Challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup.”

GGYC also believes that historically, “yacht or vessel” has always included the hull, appendages, rig and sails.

It’s almost a year (around March 2009) since we first heard of a potential challenge to the 3DL sails that Alinghi were using. The technology used by North Sails to produce these highly sophisticated pieces of equipment requires certain weather conditions and the only place they are manufactured is Nevada, USA.

The American club signalled that it may use this off-the-water objection back in July, included in a long laundry list of complaints that the GGYC had with Alinghi. One by one, BMW ORACLE have worked through this list of reasons why there can’t be a race sailed in February 2010.

The latest nit-picking over the DOG has the potential to delay the race again. One outcome of a planned meeting may be to allow Alinghi time to construct sails in Switzerland, however this would cause further frustration with the rest of the sailing world, many of whom are waiting for AC33 to be over and done with quickly so the sport can move on. The latest statement by GGYC includes a rare admission that the behaviour of the challenger and defender is pushing the limits of goodwill from the sailing community. Tom Ehman says:

“We don’t think the sailing world would tolerate the two teams failing to sort this out…”

He doesn’t say what remedy the sailing world might have – probably because there is not much the sport can do – and both sides know it, else they might have considered the sailing world a long time ago.

Of course there is always Ehman’s favourite two words; Mutual Consent – but at this stage, it seems highly unlikely that the teams can agree on anything, despite the public lovefest between Coutts and Butterworth at the World Yacht Racing Forum.

According to a quick word-count, the Deed of Gift contains 1280 words. Using the New York Court system, there is not enough time before the sun explodes to analyse every single one of them and its intent. GGYC would prefer that the newly appointed Jury make the decision. The ‘five wise men’ have shown that they can come to conclusions far more quickly than the New York Courts can.

And so, the fans and the sport continue to be stuffed around. Those who have booked flights and hotel rooms to be in Valencia on the 8th of February may have to find something else to do in the Spanish winter rather than watch America’s Cup racing.

3 Months Out and No Venue. New Low for AC33.

I’m not sure there is any surprise this morning that Justice Kornreich has ruled that Ras Al Khaimah is an invalid venue for the 33rd America’s Cup. A reasonable person reading the Deed of Gift would probably agree that the document does not allow a northern hemisphere venue in February.

Even though SNG and Alinghi believed that a previous court ruling gave them the right to choose ‘any venue’, GGYC argued successfully that the earlier decision implied that the Swiss choose any venue ‘allowed by the deed of gift’. It’s a pretty simple argument and the Judge agreed.

It’s a shame that BMW ORACLE and their team were so unsure of their position with regards to the case that the had to throw mud at a country and its regime to try and score political points in the US. The arguments about potential terrorism were churlish and unbecoming of an international sporting team.

It’s also a shame that Alinghi and SNG took such risk on the venue. While the argument for bringing investment and global recognition to an emerging market through the use of the America’s Cup is a noble one, there has always been a sense that Alinghi were pushing limits of acceptability to all stakeholders, including fans by attempting to stage the race in an almost unknown town with barely any infrastructure.

The powers that be in RAK probably won’t be too disappointed. Once they get over GGYC’s terrorist fearmongering, they will have a pretty marina and a property development that will be worth more than it would otherwise. The previously unknown emirate has also received millions of dollars worth of exposure in the media, which is a pretty good ROI on a couple of white tents.

But what now? Well the race must still be held in February of 2010. The race must also be raced in a venue which is deed compliant. This means that it has to be in the southern hemisphere, Valencia or another northern hemisphere venue ‘with mutual consent’.

Wherever the venue, both teams owe it to the sport to make a decision quickly. One can’t imagine either SNG or GGYC giving refunds to people who had already arranged travel to RAK for February. The selfishness of both sides continues to show through. It obviously doesn’t matter if anybody attends the event, winning is the most important thing.

Even Valencia, with an established infrastructure for sailing will struggle to organise an event which is supposed to be the pinnacle of sailing in 100 days. The teams, who maintain bases there, will be able to scramble the resources required to race, but one senses that even if they agreed the venue today – sailing’s global showcase will be a hastily arranged shambles.

Of course the warring parties issued statements. The Golden Gate Yacht Club opened with the 2nd most used phrase in press releases in 2009 – pleased, (The most often used word in press releases in 2009 is innovate). Tom Ehman’s statement said:

We’re pleased with the court’s decision today that Alinghi’s choice of the venue for the 33rd America’s Cup was not allowed under the Deed of Gift.

We look forward to Justice Kornreich’s decision later this week regarding two additional issues.

We remain motivated to negotiate all remaining issues with Alinghi to ensure a fair, competitive and successful America’s Cup in February 2010. We took a big step towards this goal today.

That’s right – it’s not over. GGYC are still awaiting rulings on adjudicators and measurements. There was no mention of further action re SNG’s fiduciary duty – perhaps it was just a backup in case GGYC had lost the fight on the venue, but the threat of further action remains.

Alinghi’s statemement included:

“This is a disappointing result as we were certain that Justice Cahn’s May 2008 decision allowed the Defender to chose Valencia or ‘any other location’,” said Lucien Masmejan, Société Nautique de Genève (SNG) legal counsel. “Ras Al Khaimah has put enormous time and effort into this 33rd America’s Cup project. We thank them and feel sorry for this unexpected result out of the New York court”.

The sorry saga continues. The New York lawyers are laughing all the way to the bank while the sailing public is jerked around. Only a fool would invest in the America’s Cup in any form at the moment – from promoters of hotel rooms to a fan buying a baseball cap, let alone a sponsor.

Tom Ehman’s Response to Release of the ‘Secret’ Agreement.

Golden Gate Yacht Club’s spokesman Tom Ehman has released an official statement following a version of the ISAF/SNG agreement being made public in recent days.

Golden Gate Yacht Club (GGYC) re-asserts its reasonable request that the 33rd America’s Cup be sailed under the undoctored International Sailing Federation (ISAF) rules and not some hybrid version which the Société Nautique de Genève (SNG) has tailored for its own benefit under the scope granted to it in the secret agreement struck with ISAF.

This agreement is now public, as GGYC requested. Some of the terms of the agreement have been altered but there is still a long way to go before the 33rd America’s Cup can be considered a legitimate competition for both defender and challenger.

SNG is clearly bound by the Deed of Gift to sail under ISAF rules because they are the rules of the defending club.  To achieve a competitive and legitimate 33rd America’s Cup, we need to ensure, among other concerns, that:

• SNG can only amend its normal racing rules with the mutual consent of GGYC, per the Deed of Gift;
• SNG does not have a veto power over the appointment of the jury;
• The normal ISAF redress procedures are in effect, with the jury freely able to interpret or amend the rules as it sees fit;
• SNG is not permitted to obtain confidential interpretations from the officials that are not also available to GGYC; and
• The text of the agreement itself is formally and officially revised, not purported to be amended via press releases and side letters.

GGYC will continue to work to ensure a set of rules that are fair to both competing teams.  We appreciate the strong showing of support from the international sailing community and media for our court motion to compel public disclosure of the agreement between SNG and ISAF, which had been executed in secret.

We remain excited about racing for the 33rd America’s Cup in February 2010 provided that we are treated like any other competitor in any other regatta in the world – able to compete under ISAF’s rules and regulations.

New Lawyers Will Make AC33 “The Greatest Event Ever in the History of Sailing.”

For those of you who haven’t ever seen the Alinghi ‘cartoons’ you are missing one of the quirkiest communications gimicks of any America’s Cup team ever. Often completely baffling to an outsider, these little PR missiles are a reminder of the difference between the Swiss and American teams. This week’s cartoon refers to a reported incident in which a BMW ORACLE Rib allegedly had a close call with a local fisherman while “spying” on the Alinghi sea trials.

Normally such a thing would be thrown on the ever mounting pile of irrelevency surrounding the 33rd Edition of the once glorious event, but new reports suggest that the GGYC’s thirst for litigation is far from quenched. Several sources have reported that David Boies, once retained by Emirates Team New Zealand, has joined the Golden Gate YC legal team.

Tom Ehman, fresh from acting as happy shiny master of ceremonies at the BMW ORACLE ’special event’ in San Diego is back to his ‘worst rules in history’ speech saying:

There continue to be serious issues with the way Société Nautique de Genève is conducting their stewardship as Trustee of the oldest trophy in sports, and the way Alinghi have mounted their defense of the America’s Cup – from Day 1 when they tried to issue rules that were widely condemned as ‘the worst … in the history of the America’s Cup’ to their recent issuance of measurement regulations that would disqualify our boat if left to stand.

Of course BMW ORACLE and GGYC are not out for themselves. This is a much higher calling, the reputation of the cup and the whole sport of sailing is at risk if the legal crusaders fail. Ehman continues:

‘That is why attorney David Boies and his firm Boies, Schiller & Flexner LLP have joined with our current legal team – to protect our competitive interests, the interests of sailing, and of the Cup itself. BSF’s reputation, legal acumen and track record are exemplary.

Despite the New York courts ruling that the all powerful Deed of Gift gives the Defender rights to do pretty much whatever they like, the American team want it to be more fair.

And if the crack team of legal brains can use up all the money that could have been spent on R&D to find a solution that BMW ORACLE and GGYC are happy with, they are going to have a great time at a wonderful event where everything is rosey… presumably valencia sunset rosey.

In fact Ehman is confident that this will be the pinnacle of the sport for all time saying:

‘We remain excited about sailing for the 33rd America’s Cup in February 2010. We want this to be the greatest event ever in the history of sailing, and are continuing our preparations to make this happen – even as we continue our fight for fair rules.’

BMW ORACLE Official Event Keeps Sponsors Happy.

With the legal proceedings coming to an end, BMW ORACLE have held an event for sponsors which the press release describes as the “first official presentation of the team.” For readers of this site, there was no real news – the biggest story of the day was that BMW ORACLE have confirmed that Australian James Spithill will helm the trimaran USA for the Deed of Grudge Match in February.

From an outsider’s point of view, it was a typically corporate kind of show. Although the public had been invited, they were excluded from the event itself but according to the PR people – “The public enjoyed the show from the adjacent public area behind the Convention Center.” Sentiment monitoring of Twitter shows some dissent from that view, so perhaps there was a miscommunication about what the event was all about and who it was for.

Several of the VIP Guests sent a Twitpic or two and one uploaded a video to YouTube: http://www.youtube.com/watch?v=2Ub2fDmHaws – otherwise, the press swallowed the headline about the helmsman.

Journalists had the opportunity to ask questions during part of the event – the video of that is below…

There’s also a catchy little happy smiley vid on the BMW ORACLE Racing website. - kids jumping on the trampoline etc, (we’d share it here, but there is no embed code available).

So as we said yesterday – the battle for hearts and minds is on. Arguably it is more important for BMW ORACLE as the perception of their sponsors’ brands are at stake, but both sides will be trying to use whatever communications tricks they have to build up to February.

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