Alessandra Pandarese is General Counsel to Vincenzo Onorato's Mascalzone Latino team.
Marian Martin caught up with her by phone and explained "Some points that Mascalzone and BOR have raised appear to conflict with the views of a majority of challengers, some seem hardly worth the fuss and sometimes even Mascalzone and BOR seem to be at cross purposes. I’d like to clear up some of these points with you."
A thrust of the Mascalzone amicus brief is that GGYC must be reinstated as COR, as leaving CNEV in place would violate Schulyer’s intent. It comes over as a matter of principle for Vincenzo Onorato. Is this something he really does feel strongly about?
Alessandra Pandarese: Well, we have to discuss this in the full context; the full context is that what we want, what Mascalzone wants to avoid is that the judgement does not recognise CNEV, a club created by the defender, or for the purposes of accommodating the defender; so that it does not happen again in the future. I don’t think Vincenzo feels strongly about CNEV in itself, it is because of all the process.
In recent statements, Tom Ehman has said BOR would drop the court case, if Alinghi agrees to various points, but they do not include the removal of CNEV. If that were to happen, would Vincenzo want to compete in AC33, with CNEV still in place?
AP: There are two different issues here; one is the fact that the structure, which allows you to have CNEV, enables the Defender to have the current protocol; with a serious Challenger this would not be possible. The other point relates, substantially, and this has been declared many times, to the fact that the protocol is not acceptable So, basically, if the protocol would be modified in a fair way Mascalzone could take part. This is very logical.
Except that several teams have told BYM that the AC33 protocol creates a more level playing field and they have a far better chance of winning under it. Mascalzone & BOR say the exact opposite; that the protocol gives the Defender a huge advantage. What have you spotted that these other people have missed?
AP: The answer to this is that I would like to talk to these people that have said they have a better chance. If these people are now saying because the Defender is now, somehow, more available to talk; if this is true, then it is understandable that they might think that things have changed, but I’d like to talk to them and consider their points.
I’ll send you a list.
One of the problems for Mascalzone & BOR is selection and employment of race officials, Arbitration Committee etc. ACM hired the officials for AC32 and paid them, so why this is a problem now?
AP: The appointment of the officials this time is a very different process and not by mutual consent, but that’s not really the point. If you had been aware of the discussions on this topic, during the last Cup, and the issues that were talked about, it is clear that the America’s Cup should consider a way to pay the officials in a more independent way. That is something that should be discussed.
Surely, the officials will the same ones that always do the job, so why does it matter who pays or picks them?
AP: I think that it is really, really important that there is agreement on the way they are appointed and that they should receive a stipend from both sides; on the basis of mutual consent, from the Defender and the Challenger.
Your Amicus brief says that ACM will make the rules, without consulting Challengers and without sufficient notice. When ACM hoped for a 2009 event, the Class, event and competition rules were all published in November 2007, after consultation with challengers. Now, the challengers and defenders are meeting to agree rules for a 2010 event. So isn’t your Amicus out of date on that one?
AP: It is not out of date, because we had to make the point that the discussions started after the case. Also, for us, it is really important to open the discussion and have the process of the discussion open to all the challengers and to include all the interested parties and, if this happens, we will be more than happy.
Marcus Hutchinson told us last year “The CoR has told us that it wants to share its power with all the challengers and it is sharing it.” Now, BOR claims that CNEV is exempted from acting on behalf of the Challengers. Is that right?
AP: I don’t know. If CNEV is acting, or not acting, on behalf of the challengers, I’m not aware at all.
Mascalzone signed the famous “worst text in history” letter, in the hope that the AmCup would “not have to endure the turmoil associated with litigation”. How did you feel …….
AP: I think that the position now is not about who represented who; I think the situation is very, very clear. Everyone has decided what their respective positions are and the best way to solve this situation is simply to meet all together. It is no good for people to say this and this and this, it is clear now that everyone has their own position and, if each person has a different position, then the only way to solve this is by direct confrontation.
Wouldn’t it be better to try to avoid confrontation and come to some compromise solution?
AP: Yes, but in direct confrontation you can discover compromise; but yes, for sure.
At the moment we have a situation where BOR has issued a 10 point settlement list, which is basically last year’s 9, with the addition of one that says “If ACM secures an Event sponsor that conflicts with a major sponsor of a Competitor, that Competitor shall be under no obligation to display ACM sponsor logos on its yacht, base or team gear or otherwise promote or associate with such Event sponsor.” Have you ever heard of a single yachting event with such a rule?
AP: I think the point is that you must have a situation where all the competitors have clear access to potential sponsorship. We have to somehow to end the possibility that there is conflict. If the event organiser, I’m speaking in general here, if the event organiser has access to a sponsorship base, then the competitors should have access. So, the intent, I guess, is that there is a possibility for all competitors to have equal access and to have a no conflict situation that would prevent them to have access to a sponsorship; which I think is quite fair.
It would mean though that if, for example, Rolex were to become title sponsor, then BOR and others with watch sponsors wouldn’t be required to display the Rolex logo. That doesn’t seem reasonable.
AP: The event organisers must not be in a position to have a monopolisation of the sponsorship; I guess that is what they want to avoid.
You went to a meeting in Geneva and were not admitted because you wouldn’t sign a Non Disclosure Agreement. Why wouldn’t you sign?
AP: I think we have explained this in the Mascalzone Latino statement and, as I said already to you, our position is that we believe the discussion should be an open discussion; there is no practical reason for secrecy. In a moment when you have to reach compromise, agreements or whatever words you want to use, it is better to open the discussions to interested parties. There must be discussion altogether.
These NDAs have been a feature of Challengers meetings, so you must have expected to have to sign one. Why did you go if you had already decided you wouldn’t?
AP: I don’t know who told you that.
Well, certainly since August 2007.
AP: The confidentiality agreements meant that things should not be disclosed to the world, not that they shouldn’t be disclosed to interested parties.
It seems highly unlikely that BOR and Alinghi will ever reach agreement, so long as Ehman and Coutts are calling the shots at BOR and it seems certain that Alinghi will never agree to Vincenzo’s idea of repeating AC 32. Can you see any compromise solution that Mascalzone, BOR and Alinghi could all live with?
AP: Marian, I have been involved in many conflicting situations and, of course, there is always the possibility of compromise. Each of the sides may have its critical points and those critical points should be put on the table for discussion and debate. The basic rule for reaching a solution is that both sides talk and have the will to really solve and to compromise. If any side sticks on a particular point then, of course, you never find a solution, but I’m a natural optimist and I believe it would be possible to find a compromise; I hope so.