"DROP THE COURT CASE & CHALLENGE, BY NOVEMBER 16."
Yesterday, ACM issued Event Regulations for the 33rd America's Cup and SNG sent an ultimatum to GGYC, giving the American club unil November 16 to withdraw its court case and enter, under the same terms as the other competitors.
GGYC issued a statement, yesterday evening, headed "Alinghi abruptly ends setlement talks." This was accompanied by copies of letters exchanged between SNG & GGYC and between Russel Coutts & SNG.
In his letter, Coutts stated that SNG's action "compels the inescapable conclusion that you want the New York litigation to continue no matter what the effects on the sponsors and other arrangements for the Event. This could only mean that you and Alinghi have decided that you do not want a race for the Cup in 2009."
BYM News was astonished by Coutts' statement, given the work that ACM has put into organising the 2009 America's Cup, and looked for an explanation of what had led to the SNG ulimatum. Marian Martin asked Lucien Masmejan, Ernesto Bertarelli's personal lawyer "Can you talk us through what happened yesterday, which led to SNG issuing an ultimatum to GGYC?"
Lucien Masmejan: I need to go back a bit further than yesterday. As you can imagine, since the court appearance there have been a lot of informal talks; I believe Melinda Erkelens and Hamish Ross may have talked, and perhaps Russel Coutts and Brad Butterworth and I know Jim Farmer, from Team New Zealand, has been working hard to try to resolve this and get the event underway.
I was not involved though, until last Thursday, when Russel Coutts phoned me and asked what was happening. I said that it was really up to them to say what would make them drop the case and enter.
So it came back to the nine point letter and myself, Russel Coutts, Tom Ehman and Melinda Erkelens, all had direct discussion and, in the end, it came down to two main points, from that list, both relating to the format of the event:
The first was about the defender sailing in the challenger series at all and they were also concerned that the defender might not sail at full speed and so it would give a false impression of the performance. I said I would discuss these points with others, because I am not a sailing expert, and get back to her.
Then the Competition Regulations were published and, on Friday night I spoke briefly to Melinda and told her that everyone had a problem about changing the format of the event, because it had all been discussed with the challenger of record and the other challengers.
We agreed to talk amongst ourselves and speak again on Monday evening and that was what happened. I told her, right at the beginning of the call, that changing the event was a critical issue and we were struggling over this, because we did not feel comfortable with the notion that a team, which had not challenged, should be able to ask for changes to what those who had entered considered a fair situation.
She then said that she had spoken to Russel Coutts and, after studying the Competitions Regulations, he had five new points that needed changing.
Can you give details?
There was one that was about the actual format of the racing. Russel didn't like the way the challenger would be selected, with three boats competing for the position. He wanted a return to the old format.
Another thing he wanted was that we dropped the ban on sailing in August 2008.
But that would put the teams whose bases were affected by the Formula 1 event at a disadvantage.
Exactly; the no August sailing ban was there to make things equal for all competitors, so I couldn't see how anyone at ACM & Alinghi, or the challengers would ever agree to that demand.
You said five points. What were the others?
Russel was not happy with rules about the substitution of boats. He also wanted to have the final sail allocation raised from 10 to 15 and, in addition, he wanted a system whereby a team that did well in the early races would get sail cards awarded, so they could have even more sails to use.
Things that would give an advantage to a team with a fast AC 32 boat and more money for more sails?
I'm not a sailing man, as I've said, but that was how it seemed to me and I couldn't see that it would be acceptable to ACM, Alinghi and the challengers. Anyway, Russel's last demand was something I knew would be entirely unacceptable. He demanded two boat testing from 2009, with all that means in the additional costs of two sailing teams, two sets of shore people, two sets of gear for boats. I knew nobody would accept that.
So what happened then?
I took the notes I'd made of the conversation with Melinda to our group of people and the people at SNG and we talked and talked and we said to ourselves "Russel has read the Competition Regulations and come up with five new points. If we start discussing any of those points, what will happen after he's studied the Event regulations? Will there be another ten new points?" and we knew he is used to negotiating that way. So we said enough is enough and SNG sent the letter saying drop the court case and enter by November 16."
Do you think they will?
I don't know; all I can say is that every time that they have asked for something, and implied that they would enter when that point was settled, it hasn't happened. Throughout this whole thing, they have just gone on raising more issues, whenever Alinghi compromised.
What do you think is driving this? I ask because, in his BMW Oracle blog, before Alinghi won the Cup Tom Ehman asked "What club will Desafío represent?" and went on to answer his own question, saying that they wouldn't challenge again through the national federation, because "Alinghi's legal experts believe that flies in the face of the Deed of Gift." He went on to say that a yacht club of convenience had been formed, to be called Club Nautico Español and based at the Desafío team base in Port America's Cup. There was no animosity in this, no suggestion of "sham" He even speculated on where the "club of convenience" might hold its annual regatta, and guessed at Santander. So, he seemed quite content that the Club of Convenience's annual regatta would be held at some time in the future.
Earlier, following Desafio Espanol's exit from AC 32, Ehman had waxed lyrical about the beneficial effect that the Spanish team had on the Louis Vuitton series and ended by describing them as "An all around class act of a Challenger."
So what happened to change Ehman's mind? How and why did he go from seeming to be entirely content with the idea of having Desafio Espanol as CoR, under a "Club of Convenience" and having its annual regatta in the future to those two things being the basis of a Court Case. How did "an all-around class act of a Challenger", become a totally inadequate Challenger of Record and Alinghi's poodle in his eyes?
I don't know. I agree that Ehman must have been aware that Desafio would be Challenger of Record - it was a very open secret - and that there were no hints that BMW Oracle objected to that. I can only guess that it was not Tom who wanted to go to court, but Russel Coutts.