Tomorrow is a crucial day for all involved in the 33rd America’s Cup. Future Cup historians will write about Monday, August 22, as the day when the choice between certainty and uncertainty was made.
What might happen in court?
There are four possibilities:
Judge Cahn has already advised mediation and, this time, might order it with a court designated mediator. Likely time involved 2 to 4 months;
Judge Cahn might say “I’ll reserve my decision.” In other words, he will want time to consider all that has been said and will issue his judgement at a later date. Likely time involved 2 to 6 months;
Judge Cahn might order a trial, with all that entails in discovery, calling witnesses etc. Likely time involved 1 to 2 years;
Judge Cahn could make an on the spot decision. This would be surprising, as it is the least likely possibility. If it were to happen, whoever lost would be likely to appeal. Likely time involved 1 to 2 years.
If the protagonists enter court at 2 pm tomorrow, the only outcome there can be is uncertainty.
What might happen outside court?
BMW Oracle and Alinghi representatives are to meet at 9 am tomorrow morning. If they can reach a mutually satisfactory agreement, there will be no need for the 2 pm hearing. ACM will then be able to focus entirely on planning the 33rd America's Cup; the challengers and the would-be challengers, waiting in the wings, will be able to start signing up sailors, designers etc, without adding "subject to ..." clauses to contracts; they will also be able to start placing orders for materials and equipment, which firms worldwide are anxiously waiting for.
If the two sides can reach agreement outside court, the outcome will be certainty.
Will certainty or uncertainty be the winner?
Yesterday, Alinghi invited BMW Oracle to come to the 9 am Monday meeting. Shortly afterwards, BMW Oracle issued a press release (link), fairly and squarely laying the blame on Alinghi. "Alinghi - not GGYC or the other challengers - has kept this matter in court, with the resulting inevitable uncertainty and delay." said Tom Ehman.
The release states that the stumbling block is that BMW Oracle wants to see the new boat rule, before it enters "It's quite simple," Ehman said. "show us the rule and we can get this fixed but, unfortunately, all we are getting back is legalistic correspondence that dodges this central point and seeks to shift responsibility."
The BMW Oracle release creates a strong impression that this is the only thing that stands between the two sides going from the certainty of an out of court agreement, to the uncertainty of going into court at 2 pm, but is that the case.
Today, Alinghi also issued a press release (link), saying that "BMW Oracle, through Russell Coutts, has repeatedly shifted the discussion frame by adding new demands each time Alinghi moved to resolve the issues raised."
It would seem, from the Alinghi release, that this is not a simple matter of them saying "OK BMW O, you can see the new rule." and agreement would be reached. The Alinghi release says "To the dismay of Alinghi and the Challengers, BOR, through Russell, sent a letter on 18 October to Alinghi with a further nine issues to be satisfied, including new points not previously raised. Several of these were completely against the fundamentals of the programme agreed by all legitimately entered Challengers and the cost cutting strategy presiding over the 33rd America's Cup."
Is there any hope that certainty can win?
The decision makers
Many believe that this could be relatively easily settled, if Ernesto Bertarelli and Larry Ellison got together and talked man to man, but is it really that easy? Indeed, is such a talk likely?
The Coutts factor
Coutts, who skippered the Alinghi yacht in its first America’s Cup win, parted with the Swiss team, in July 2004, after a disagreement over the running of the team for the defence, in Valencia.
Coutts had stated publicly that he was unhappy with Bertarelli's management style, adding that his concerns were "based on my experience as a skipper and in a leadership role in my last three America's Cup campaigns." and “centered on aspects of management that I had found in my own leadership experience to be successful."
As part of the settlement deal, Coutts was blocked from joining a rival syndicate, for the 32nd America’s Cup. At the time, both Bertarelli and Coutts expressed their “deep satisfaction” with the outcome, but how “satisfied” could any top helmsman really feel about being forced to sit out one America’s Cup?
Our wish for certainty.
Ellison is the key
Larry Ellison is the man paying for this court case and BYM News hopes that, tomorrow morning at 9 am, he will say to Tom Ehman, Russell Coutts et alia. “Right boys, this is between Ernesto and me; we will talk and reach an agreement, so that everyone – us, the other challengers, the boat builders, the suppliers and so forth can get on with sailing the next Cup, in 2009.
Will it happen?
We have no idea.
Even in the unlikely event of Alinghi acceding to all BMW Oracle’s present demands, what would prevent that list of nine BMW Oracle issues, sent as recently as last Thursday, leading to yet another list?
Larry Ellison would seem to hold another card. Who else, among the challengers and would-be challengers can afford to sign up key sailors, for a Cup that might not take place for years and pay them, year after year? It can’t be easy to get anyone to sign up to a contract, full of clauses that say “Subject to the Cup taking place …..”, but that’s what the others will have to go on doing, if this goes to court tomorrow.