April 29 2008: One accusation that has been levelled at Alinghi is that, throughout this entire saga, it has not attempted to reach an agreement with BMW Oracle.
Alinghi has always refuted this and maintained that it could not reach agreement, because BMW Oracle kept moving the goal posts. In support of that, it has provided a timeline of events that are pertinent to its attempts to reach agreement.
August 8: GGYC asks SNG to rescind the existing 33rd Protocol and replace it with a new one based on the 32nd. They also demand a complete withdrawal of the project relating to the new boats.
August 16: SNG responds and explains it cannot unilaterally rescind the Protocol that was negotiated and mutually agreed with the Challenger of Record, CNEV, and by a large and growing number of challengers.
In addition, SNG confirms that there is no draft Class Rule in existence and that a new Class Rule is a fundamental element on which the other competitors relied when entering the current Protocol. Consequently, the GGYC demands are denied.
SNG includes in this response a proposal to meet at a time and place convenient to GGYC to discuss any specific concerns that are not otherwise addressed in the Protocol.
August 22: GGYC clearly indicates its reluctance to negotiate and commences exparte injunction proceedings in the New York Supreme Court. Notwithstanding its provocative actions, the SNG remains willing to meet and discuss GGYC’s issues.
September 4: SNG again proposes a meeting with GGYC in Geneva on September 8.
September 5: Alinghi and AC Management announce a six week design consultation period that will result in the definition of the AC90 Class Rule. The intention is to have a “tight design box” in order to facilitate close racing.
Brad Butterworth, Alinghi team skipper, continues to have numerous conversations with BMW Oracle to convince them to abandon their legal action and join the 33rd America’s Cup along with the other challengers.
September 7: AC Management names Tom Schnackenberg as the Class Rule and Competition Regulations consultant. He is to ensure that the views of all entered challengers are represented.
Mike Sanderson, Team Director of TeamOrigin, says: “The choice of Tom Schnackenberg to lead this process is fantastic. Having someone of Tom’s calibre available and willing to take on this important task is very fortunate for the whole America’s Cup community.”
September 15: This day marks the start of a consultation process with all entered teams to define the class rule, the competition and event regulations, chaired by Tom Schnackenberg, Class Rule and Competition Regulations consultant. Shosholoza’s Nicola Sironi; Desafío’s John Cutler, Phil Kaiko, Patrick Shaughnessy; Team New Zealand’s Grant Dalton, Nick Holroyd, Marcelino Botín, Adolfo Carran; Team Germany’s Michael Scheeren, Marc Wintermantel, Eberhard Magg; TeamOrigin’s Mike Sanderson, Andrew Claughton, Juan Kouyoumdjian and Alinghi’s Grant Simmer, Rolf Vrolijk and Michael Richelsen attend.
Grant Dalton of Emirates Team New Zealand says: “This is a good start to the next Cup and we at TNZ are really excited about the new class. There is no time to lose with such a short Cup cycle and we’re pleased that we’re getting underway.”
September 20: Alinghi and SNG announce amendments to the Protocol agreed with all entered challengers that also address the majority of BMW Oracle’s concerns.
SNG makes a public appeal to the GGYC to drop their legal action and join the competition as a challenger.
September 21: Unsatisfied with the amendments, the GGYC responds to the appeal in a letter saying: “(...) the real issue is the unfair Protocol. That is why the law suit was filed in the first place (…)” and it makes further requests for changes to the Protocol.
September 27. Ernesto Bertarelli speaks directly to Larry Ellison regarding the Protocol amendments of the 20th September. Larry advises him that the Protocol amendments are sufficient to remove any blockage in resolving the litigation however he remains concerned that Alinghi has already designed the AC90 yacht. Ernesto assures him that this is untrue.
October 6: SNG responds to GGYC’s further demands of the 21st September explaining that their Protocol changes have already been addressed via discussions with the 33rd America’s Cup competitors. Based on this and other issues, discussed and resolved, it is clear that SNG has heard and met the GGYC’s concerns and that this has been without the involvement of a third-party.
October 9: SNG sends a letter to the Challenger of Record, CNEV, suggesting the entered challengers select the displacement of the new AC90 class to prove to the GGYC that Alinghi has no design advantage. The entered challengers support this gesture.
This move was in response to a request made by Russell Coutts, BMW Oracle CEO, seeking reassurance that Alinghi did not have a head start in designing their AC90 and relates to Larry Ellison’s concern mentioned to Ernesto Bertarelli on September 27th.
Coutts told at least two challengers that the team would settle if Alinghi could prove it did not have a design advantage.
October 10: The entered challengers set the displacement, a fundamental parameter of the new AC90 class, and are satisfied this will negate any potential design advantage.
Contrary to its prior assertion, this does not satisfy BMW Oracle and it demands to analyse the displacement parameter in light of the full rule, not trusting the entered challenger’s designers, who confirm the parameter to be crucial enough to provide the guarantee.
October 17: Despite the Protocol amendments, despite proving no design advantage by allowing the challengers to decide the displacement of the AC90, the GGYC, through a letter to Alinghi and the challengers, demands nine additional changes to the Protocol.
October 20: SNG writes to the GGYC and the entered challengers outlining the current status and the damage caused by the GGYC’s ongoing litigation. The defending yacht club reiterates that despite the steps made to resolve the GGYC’s issues both with the Protocol and the AC90 class, the GGYC keeps on returning with more demands.
October 21: Grant Simmer, Alinghi design team coordinator, once again publicly invites BMW Oracle to join discussions with entered challengers to develop the new AC90 Class Rule: “If BMW Oracle chooses to enter they will be welcomed into this process.” The GGYC refuses.
October 23: Representatives of Alinghi and GGYC meet at the New York Yacht Club to explore possible settlement options.
Emirates Team New Zealand’s, Jim Farmer, on behalf of the entered challengers, sends a letter to the GGYC asking them to reconsider the nine points and to enter.
October 25: Despite seven of its nine additional demands being resolved, the GGYC continues to pursue its law suit and issues a press release saying it will agree “to comprehensive new compromises to get the America’s Cup back on track for Valencia in 2009 if the Defender will disclose its rule for the boats’ design.”
October 31: As scheduled, AC Management issues the AC90 Class Rule and makes it public.
Designers from entered challengers applaud the consultation process, which BMW Oracle refused to join. Juan Kouyoumdjian, principal designer for TeamOrigin, says: “This has been an efficient and productive process and the boat itself will be spectacular: challenging to design, to sail and to race.”
November 1: GGYC again moves the negotiation goalposts and requests to “compare yesterday’s document with what they [Alinghi] started out with and we continue to ask Alinghi to provide this.” The opinion of expert designers from five entered challengers is not taken into account.
November 8: AC Management issues the 33rd America’s Cup Competition Regulations approved by the Defender, the Challenger of Record and all entered challengers. The group presents them at a press conference in Barcelona.
November 12: During settlement discussions, BMW Oracle unexpectedly announces five new demands that directly affect fundamental arrangements that were recently agreed by all entered competitors in the 33rd America's Cup. The message came through Melinda Erkelens, attorney for BMW Oracle, who, after discussions with Russell Coutts, called Lucien Masmejan to say: “(…) he now has five additional points which were not on the list.”
Alinghi loses confidence in BMW Oracle having any intention of negotiating a settlement in good faith.
November 13: AC Management publishes the 33rd America’s Cup Event Regulations, a result of joint work and consultation with the Defender and entered challengers.
All the elements for an America’s Cup in 2009 are in place and have the support of all the existing competitors; however the feasibility of a race in 2009 is still impaired due to the GGYC law suit.
SNG sends a letter to the GGYC asking them to clarify their position regarding their participation in the 33rd America’s Cup by November 16 at 17:00 New York time. GGYC responds rejecting this demand.
November 15: Russell Coutts issues an ultimatum for SNG to accept their proposal by November 16 at 18:00 CET. This includes the same nine points, seven of which had already been resolved, plus several new issues, one being their unacceptable demand to impose an event format on the Defender.
November 16: In an attempt to rescue the multi-challenge event, Emirates Team New Zealand, TeamOrigin and Team Shosholoza sign a letter sent by GGYC to SNG making the same demands. The Protocol, competition regulations and event regulations were developed by mutual consent in consultation with ALL entered challengers, therefore this proposal for further changes from a splinter group can not be considered.
December 4: Russell Coutts sends a letter with 12 further proposed Protocol and competition regulation amendments, including changes to the race schedule and reinstating two boat testing.
December 11: Representatives of the Defender and GGYC meet in New York. Alinghi presents the framework of a new long-term “vision” for the event requiring amendments to the Deed of Gift. At the end of the meeting both parties agree on a statement, but GGYC publicly states a different opinion and calls off the discussions on the subject.