Cup foes told to settle it on the water

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What should have been clear at the start became perfectly clear at the end: Club Náutico Español de Vela is not a proper yacht club under the terms of the America’s Cup Deed of Gift and cannot be challenger of record for the 33rd Cup.

Ernesto Bertarelli's Alinghi syndicate has twice won the America's Cup.

On April 2, the New York Court of Appeals — the state’s highest court — ruled for Larry Ellison’s BMW Oracle Racing/Golden Gate Yacht Club and against Ernesto Bertarelli’s Alinghi/

Société Nautique de Genève — the current Cup holder — in a battle of billionaire yachtsmen that has dragged on for 21 months in three courts. In a unanimous opinion, the court declared GGYC the challenger of record.

After nearly two years of wrangling over technicalities, the appellate decision came down to a plain and simple understanding of what the Deed of Gift says about who may be a challenger of record: “[Any] organized yacht club of a foreign country, incorporated, patented or licensed by the legislature, admiralty or other executive department, having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match for this Cup.”

Writing for the court, Judge Carmen Beauchamp Ciparick said the plain meaning of that language is that a club must have a history that continues into the present — of being organized, incorporated, patented, licensed and having an annual regatta — for it to be a challenger of record. “By using the word ‘annual’ [to describe regatta], the settlor suggested an event that has already occurred at least once and will occur regularly in the future,” she wrote. Club Náutico Español de Vela, formed just days before it challenged Société Nautique de Genève, had never run an annual regatta, though it later said it planned to. It issued its challenge the day Alinghi won the 32nd America’s Cup, and two days later CNEV and SNG published a mutually agreed upon protocol for the 33rd Cup that gave Alinghi virtual control over the terms of the race. GGYC cried foul, alleging that CNEV was a creature of Bertarelli’s, set up so he could stage a coup and take charge of the next regatta. GGYC then issued its own challenge to Alinghi, arguing CNEV wasn’t a bona fide yacht club.

Ciparick concludes her opinion with a veiled reproof to SNG to dispense now with the litigation and other tomfoolery and get on with the racing. “It has been posited that the right to act as trustee of the America’s Cup should be decided on the water and not in a courtroom,” the judge wrote. “We wholeheartedly agree. It falls now to SNG and GGYC to work together to maintain this noble sailing tradition as ‘a perpetual Challenge Cup for friendly competition between foreign countries.’ ”

After the ruling, both camps appeared war-weary and ready to talk. But it seemed as if they still were talking past each other. Marcus Young, GGYC’s commodore, said in an April 7 letter to SNG that BMW Oracle officials were prepared to meet “immediately” with Alinghi representatives and negotiate a mutual-consent agreement to run a “conventional, multichallenger regatta in monohulls … as soon as practicable.” A week later, Fred Meyer, president of SNG’s America’s Cup committee, advised its members that it had sent a letter to GGYC accepting its Deed of Gift challenge — to race one-on-one in 90-foot multihulls — and inviting GGYC  “to meet in order to define the terms.”

Meeting in Geneva April 23, delegations from the two clubs stuck to their guns. GGYC proposed a conventional multichallenger regatta. SNG said it was prepared to defend the Cup in a “90-by-90-foot boat” in 2010. It said it was open to a multichallenger series, but GGYC would have to agree to give other challengers more time to prepare. GGYC said the court-imposed timeline for a Deed of Gift challenge in 90-footers is February 2010; it said SNG wants to race in May 2010.

Meanwhile, the NYYC and four other clubs with Cup histories — the Royal Yacht Squadron, Royal Perth Yacht Club, San Diego Yacht Club and Royal New Zealand Yacht Club — had sent an open letter to the two rivals exhorting them “to negotiate together for a fair and equitable multichallenger event,” which they say would be in the “interest of the sport of sailing in general and members of the broad America’s Cup community.”

SNG says 18 syndicates are interested in racing in a multichallenger series. Alinghi started out talking about sailing 90-foot monohulls, but as the court case dragged on, along with the worldwide recession, the economics of a new Cup-yacht design have become tenuous. Before the Court of Appeals decision, Alinghi’s latest proposal had been to race in 33-foot monohulls to cut costs. Now it’s pressing to race in 90-foot multihulls.

Unless Ellison and Bertarelli can reach agreement on a smaller boat and a multichallenger protocol, Alinghi and BMW Oracle will duel one-on-one in a best-of-three series in 90-foot multihulls. Under the Deed of Gift, the racing is supposed to start within 10 months of the court’s decision, and SNG would need every bit of that time to get a big multihull on the water. (GGYC has been sea-trialing a 90-foot trimaran since October; Alinghi has been tight-lipped about its multihull.) That would take the racing into February, which under the Deed of Gift would require a Southern Hemisphere venue.

This article originally appeared in the June 2009 issue.