Alinghi makes a peace offering

"Tell you what Larry. If we promise to make this America’s Cup game a bit fairer, can we not go to court? Please?"

That’s the short version of a peace offering made by Alinghi yesterday. If you want to read the long version from Alinghi, it’s published below.

This is a massive climb down from the Defender’s original position. Clearly the prospect of going to the New York Supreme Court in just less than a month is getting a little too real for comfort.

So thankfully, sense has finally prevailed. Alinghi have backed down in a number of key areas. Though it seems none will ever be brave enough to say it in public, the other ‘legitimate’ challengers have a good deal to thank Larry and the Golden Gate Yacht Club for, in helping to get the 33rd Cup back on track as a true sporting contest.

While questions remain over the CNEV’s legitimacy as a true Challenger of Record (one of the GGYC’s primary objections), I hope Larry and the San Franciscans accept this peace offer from the Swiss, so that business of designing, building and sailing can continue without further interruption.

Here are those protocol amendments in full. They’re well worth a read, because they serve as a reminder of just what overarching powers the Defender had bestowed upon itself.

With regards America’s Cup Management’s (ACM) power to disqualify a competitor, this has been clarified to say that, should a competitor refuse to be bound by the Protocol, then they will have recourse to the Arbitration Panel without risk of disqualification until the Panel rules.

Secondly with regards ACM’s right to refuse an entry. The amendment is a restriction of ACM’s ‘ability to reject’ to an ability only on very specific grounds, which are: failure to comply with the Deed of Gift, a capacity issue within Port America’s Cup or a need to provide an equitable balance of competing nations. The SNG has made it clear that, should the GGYC abandon their legal action, they would be welcomed as a competitor for the 33rd edition and could shape the event along with the other challengers and the Defender during the ongoing Competitor Commission meetings.

A further suggested amendment point, on recommendation from the Arbitration Panel, regards the power of ACM to amend the Protocol and other rules. This has been changed to state that ‘any proposal to make any Protocol changes, related to the way in which the Arbitration Panel works, must be subject to its prior approval.’

In addition to this amendment, the SNG and CNEV have deleted the power of ACM to remove members of the Arbitration Panel. [what??!! This one had passed me by. I can’t believe ACM ever had the power to do this in the first place! It casts a different light on the ruling made by the Arbitration Panel a couple of weeks ago. A case of, ‘well, they would say that, wouldn’t they’, with ACM’s sword of Damocles hanging over their heads.]

Finally, the concern regarding ‘neutral management’ has been amended to extend the Fair Sailing rule to apply to all matters directly related to the regatta.

Following these changes, Ernesto Bertarelli made his plea to the GGYC and Larry’s team: "I would again appeal to BMW Oracle Racing to enter the 33rd America’s Cup as a legitimate challenger. It has been demonstrated that dialogue is possible for the better of this event and it should be noted by them that many areas of their concerns have been addressed.

"We would also like BMW Oracle Racing to consider that their action is hindering the opportunity for other teams to enter the competition, and harming the ability of existing competitors to generate sponsorship income and properly plan their challenge."

So, the ball is back in Larry’s court. It will be interesting to see how he plays it. Here’s hoping he enjoys his victory from Alinghi’s climbdown, and withdraws his legal proceedings accordingly.

Alinghi denies a stitch-up

Some reassurances today from Brad Butterworth and Alinghi that they are not going to abuse their self-bestowed powers over the 33rd America's Cup to the extent that many of us have feared. There are certainly more questions that it would be good to get answers to, but today's statement is at least a step in the right direction. Enough to appease Larry Ellison though? I doubt it. Here is the Alinghi statement in full.

Earlier today, Alinghi, Defender of the 33rd America’s Cup, gave a progress report on preparations for the 33rd America’s Cup at the Société Nautique de Genève. This gathering marked the start of the 33rd America’s Cup campaign and a return to business after the August break. Brad Butterworth, team skipper was accompanied by Hamish Ross, general counsel and Michel Hodara representing America’s Cup Management.

The group announced several developments in the preparations for the 33rd America’s Cup. The first is that the design consultation period, due to start in mid September, will last for six weeks and will result in the definition of the class rule. The consultation will be facilitated by an expert consultant to ensure the views of all five challengers are represented. Secondly, Brad explained that the clear intention regarding the development of the rules is to have a “tight design box” in order to facilitate close racing.

“Our objective is to create a tight design box rule that will ensure the emphasis remains on sailing skill and exciting racing as we have recently seen during the 32nd America’s Cup, this together with large, visually impressive state-of-the- arts boats will help us achieve our vision for the next Cup,” he declared during the press briefing in Geneva. “We are keen to return the America’s Cup to the romantic era of J-Class size yachts, albeit updated with the very latest technology. This will create a superb spectacle and event for sailing fans worldwide.”

It was also announced that in the next few days there will be a Competitor Commission meeting to discuss the 33rd America’s Cup and elements of the Protocol, with the aim to mould this edition into an even greater success than its predecessor.

ACM also confirmed today that Valencia has been approved by the Spanish Council of Ministers and has now been officially ratified by all the Spanish Authorities for the 33rd America’s Cup. This completes all contractual proceedings regarding the venue for the Cup in 2009. ACM also confirmed that United Internet Team Germany has been officially accepted as the 5th challenger.

“Most of the team is now back from the summer break and we are pressing ahead with preparations for the next Cup in 2009, with a particular focus on developing the new class rule through consultation with the five confirmed challengers,” said Brad Butterworth, adding: “These new class rules will be released on 31st October 2007, 18 months before the first pre-regatta with the new boats, and two months earlier than initially planned.”

Brad took the opportunity to clarify and further explain aspects of the Protocol that have been misinterpreted over the summer period:

CLARIFICATION OF ELEMENTS OF THE 33rd PROTOCOL

It has been alleged that CNEV is a ‘sham’ and not a legitimate Challenger of Record?
A: The legitimacy of the CNEV is unquestionable. For the 32nd America’s Cup, Desafío Español represented the Spanish sailing community through the Federation and it was decided to create a new club that captured the essence of Spanish sailing. This new Club incorporates the America’s Cup spirit in Spain and is chaired by the Vice Chairman of the Spanish Sailing Federation. BMW Oracle Racing are attempting to undermine the challenge on two counts both of which are erroneous as there are several examples of clubs being formed specifically to challenge for the America’s Cup (including clubs from Australia, Japan, Germany, US and Canada) and of clubs holding regattas after submitting a challenge. Furthermore, the credibility of the Spanish Challenge is further underlined by the strong performance demonstrated during the 32nd America’s Cup with them advancing to the Semi Final.

What is the impact of the BMW Oracle Racing legal challenge?
This is a legal ambush by one party; the fact is we have six competitors, including Alinghi, lined up for the 33rd America’s Cup. It is a distraction for the America’s Cup and is totally self serving on their behalf. It is most damaging for teams that haven’t yet entered given that this climate of uncertainty created by the GGYC prevents them from gaining sponsorship and building their teams. The 32nd America’s Cup saw the best action on the water and that is what we want for the 33rd America’s Cup.

What is the reason that ACM can refuse an entry?
See AC 33 Protocol clauses 2.7 (d), 4.4
A: First of all a competitor has to fulfil the requirements of the Deed of Gift and the Protocol. Furthermore, ACM is the event organiser and this rule has been written because, as in other major sporting events, we have a limited number of entries available, however, if a potential entrant feels they have been unfairly treated there is recourse through the Arbitration Panel.

ACM can throw out any competitor at any time?
See Protocol clause 5.4 (b)(d)
A: No, ACM does not have the power to throw out a competitor at any time. ACM has the power to disqualify a competitor who refuses to be bound by the rules. Even in this extreme situation the competitor concerned would be entitled to appeal to the Arbitration Panel.
This is very similar to the obligations of any other global sporting event authority, including the IOC, FIFA and the FIA.

The officials are not independent?
See Protocol clause 5.4
A: The Protocol contains rules to ensure fair sailing and from a sporting perspective the 33rd America’s Cup will be no different to the 32nd. The key is what happens on the water and during the sailing competition will be in the hands of experienced officials, with a record of integrity, accredited by the International Sailing Federation (ISAF). The Challenger of Record can object to any senior (those with decision making powers) appointment if they believe the person is not neutral and the Sailing Jury will determine whether the appointment is neutral or not.

Why does ACM need the right to change the competition regulations from ‘time to time’?
See Protocol clause17
A: ACM administered the 32nd America’s Cup, arguably the best America’s Cup of all time and it needs the appropriate authority to run the 33rd edition. This is no different to any other global high tech sport where the governing body has to provide regular interpretations and clarification of sporting and technical rules in a dynamic environment.
The Challenger of Record or the Defender can object to significant changes and ACM could refer the proposed change to the Arbitration Panel.

The new Competitor Commission has no voting powers?
See Protocol clause 10.1
A: The Defender and ACM need to be in consultation with the challengers to ensure the next event is as good as possible and therefore it made sense to be present within this forum.
It should be noted that the Challenger Commission had no voting rights last time affecting the competition, only the power to recommend. The same applies to the Competitor Commission this time.

The late publication of the new class rules will not give the teams enough time and will provide Alinghi with an unfair advantage?
A: We have been thinking about changing the class since 2003, as a matter of fact Russell Coutts was a strong advocate for a new class of boat for the 32nd America’s Cup. The design team is now back and working after the summer break in preparation for the six week consultation period which starts in mid September. This consultation will lead to the definition of the new class rule which will then be released on 31 October 2007, 18 months before the first pre-regatta in the new boats, and two months earlier than initially planned. In order to facilitate the work during the consultation period and to ensure the views of all competitors are represented an appropriate expert consultant will be appointed to oversee the process.

How will the new class rules lead to ‘close and exciting’ racing?
A: It provides for all competitors to start at the same level. It is our intention to limit the parameters of the ‘design box’ for the new class as this will assist in achieving our vision of state of the art boats and competitive racing befitting of the premier event in international sailing.

Alinghi will gain unfair advantage through competing in the Challenger Selection Series (CSS)?
Our philosophy to reduce cost and encourage competition is to return to the concept of a one boat campaign per team for the 33rd AC. This is the best solution to actively reduce the costs by avoiding having to hire two full crews and produce and maintain two fully rigged boats. However at the same time the Defender needs to be able to gauge and develop its relative performance and therefore needs to be included in the series. The other choice was for the Defender to two boat test from the start of the campaign, which is expensive and less attractive from an entertainment point of view.