Filed under: Uncategorized
Having resisted the temptation to indulge in the vanity of parading my own opinions for 18 months, I thought that one of perhaps two or three missives may be allowed for 2009.
The Viaduct Basin in Auckland is buzzing again as 10 America’s Cup teams, some very real, some still winging it, have gathered for what is billed as a fornight of fun under the banner of the Louis Vuitton Pacific Series.
The format for the match racing is far too difficult to reduce to simple English, especially as a lot of flexibility has been built in to accommodate any unhelpful weather.
What is for sure is that the hosts, Emirates Team New Zealand, can race against all the others but has an automatic place in the finals. Such provision has caused furious debate in other circles.
Drinking in the same bar are the crews of the America’s Cup holder, Switzerland’s Alinghi, and their BMW Oracle rivals. The latest legal depositions over the structure of the next America’s Cup will be made during the Kiwi love-in, on the 10 February. Both sides can have up to 30 minutes to make their cases, again, to a New York Court of Appeals panel of seven judges which includes Carmen Beauchamp Ciparick, who was in charge of the challenge brought by (now Sir) Michael Fay against the San Diego Yacht Club. Even he wonders, these days, if he would do the same again.
As Senator George Mitchell is sent by new President Barack Obama to wade once more into a Middle East mire which extends well beyond just Irael and putative Palestine, questions have been asked in Auckland about the possibility of last-minute talks to avert tipping over the edge.
The LVPS has its finale on 14 February but any romantic notions of hearts and flowers are brushed aside by Alinghi skipper Brad Butterworth. His friend and opposite number Russell Coutts says he still wants to do everything to bring about a return to a multi-challenge America’s Cup in which the challengers have a fair crack of the whip.
I know how I interpret the English in the Deed of Gift but I know also that the Court of Appeals is not there to make recommendations on how to run a better, nor more just, nor more sensible America’s Cup. The only opinion it is constituted to promulgate is legal opinion.
What I can hope is that BMW Oracle, in the event of winning its argument and being made Challenger of Record and being given the go-ahead for a one-on-one Deed of Gift match, will already have a prepared statement to be read on the steps of the court saying that it is still prepared to go into talks, as Challenger of Record, with Alinghi to establish an immediate return to a multi-challenger format which has not been perfect but has served reasonably well for the second half of the 20th century.
If Alinghi feels it needs to stick to its one boat per team principle, especially at a time when the world’s finances are in chaos, then it could always return to the system which ran well up until 1995 and invite others to race in defender trials.
And I cannot finish without saying that I feel the International Sailing Federation could have chosen Francis Joyon as its sailor of the year, but, to borrow a phrase from Abba Eban about the troubled Middle East, ISAF rarely misses an opportunity to miss an opportunity. Michel Desjoyeaux has done a fantastic job in the Vendee Globe solo round the world race, and Sam Davies, perhaps among all the finishers, deserves huge applause.
Filed under: Tosh
Nearly all sport is centred around clubs – yes, there are public golf courses and tennis courts, yes, running can be very individual – and those clubs offer opportunities for common advancement or separation from the common; social exclusivity is still important to the masses.
But most sports at least agree that the same game will be played to a global set of rules. Sailing is different. It encompasses both sport and recreation, mixes the two, and, because of weak leadership at the top of the bloody-minded beneath them , offers huge scope for anarchism and fragmentation.
Clubs decide which types of yacht will be used, however obscure, and, in the UK at least, top talent has to move away from the club network if it is to thrive at national and international level.
The game is also capable of producing clubs within clubs, with, over the years maxis playing their own game, 50-footers appearing in various guises, and hybrids of the kind which the Farr 40 represents, claiming world significance. They exist within the game, but also operate in a separate, parallel zone.
Currently, the TP52s probably offer the best test of first division professionalism. It would be better if they abandoned any distinction between full professional and owner-driver teams and it would be wonderful if they could broaden their use from just their own circuit to being the boat of choice for a revival of the Admiral’s Cup. But that might mean putting their boats up for charter and privately-owned kit is not easily put at the call of another event organiser. Still, it would mean a big boost in exposure for the dreaded sponsors.
A much bigger fleet exists of Farr 40s, but, if they were to be made available for other events than their own, they would have to resolve a class rule which demands owner drivers to allow professional crews to use them as well.
The present mixture of pros and so-called amateurs in the Farr 40s has, if nothing else, worked. To interfere in such a way that the class became destabilised would not be a good idea, but there are some clever enough minds to tackle a discussion which could lead to an area of international competition which has withered being given new life and which would be welcomed back warmly. Perhaps two Farr 40s and a TP52 would make a good three-boat team.
The recent Farr 40 world championship in Copenhagen saw Italy’s defending champion Vincenzo Onorato steer his Mascalzone Latino to an emphatic, back-to-back victory over second-placed Ernesto Bertarelli in Alinghi with another former champion, Jim Richardson, third in Barking Mad.
Not surprisingly, Onorato, a typically heart-on-sleeve passionate Italian, said it had been something of a dream to beat the more Swiss, grey and cold Italian, Bertarelli, a dream he would like to repeat at the America’s Cup.
Bertarelli and his crew duly congratulated the Rascals dockside but, when it came to the prize-giving, they gave it the cold shoulder, with no senior member of the team there to pick up the trophy for second. That is not good. If there is no time in sport for grace and courtesy, then sport is the loser. It is a matter of manners and the snub was not just to the winners and the organisers but to all their fellow-competitors.
The truth is a very powerful weapon in an armoury of deception (one of my little sayings) and everyone may need to be well protected over the coming couple of months as the lawyers square up to each other in the case of Golden Gate Yacht Club versus Société Nautique de Geneve. Michel Hodara, the chief operating officer of America’s Cup Management, who is increasingly fronting for an organisation in which CEO Michel Bonnefous said he would be taking a less high profile role, has been vindicated when he said that the timeline as being propounded is in fact later and longer than at first thought.
But it may not be too much longer, if opinions about Justice Herman Cahn, from those who claim to know, are correct. He apparently has a reputation for being a no-nonsense, cut to the chase kind of guy. If there is any flannel or irrelevant thinking from either side, expect him not just to be impatient but ruthless.
So some paperwork will be delivered by 5 September and there will be a hearing on 10 September. This is not expected to be a careful examination of the arguments, just depositions to help Justice Cahn decide if there is a case to be heard at all and if it is in the jurisdiction of his court. Best estimates say that any angry confrontation would not be until October.
By the way, there has already been an angry confrontation in the not so wonderful city of Copenhagen. It has been cold and miserable for the Farr 40 worlds, but some heat was injected from outside when Ernesto Bertarelli’s Alinghi asked that the chairman of the jury, Tom Ehman, should step down. As Ehman is at the centre of the litigation by GGYC, at the behest of BMW Oracle’s Larry Ellison, Alinghi, as a competitor, felt there could be some conflict of interest.
Ehman did not step down, doubtless because he thought that his four co-jurors would never allow themselves to be manipulated in what could be seen as vindictive behavour. But Bertarelli’s skipper, Brad Butterworth, is incensed and has written to the International Sailing Federation (ISAF) with a formal complaint.
The stage is being set for a bitter battle. Expect SNG (Alinghi) to have a formidable team of lawyers which will assert that the event already has a mechanism for resolving disputes. It is called the Arbitration Panel, appinted by ACM, and may well deliver an opinion prior to any court hearing. SNG may also say that any quarrels over mutual consent have been covered by the Club Nautico Espanol de Vela, the chosen Challenger of Record, having signed up to the new protocol – as, by implication, have challengers from South Africa, United Kingdom, New Zealand and Germany.
Which leaves the case of the validity, under the terms of the Deed of Gift, of the CNEV challenge. That will doubtless give rise to long arguments over previous challenging clubs, not least the Mercury Bay and the SNG. But they went ahead, and so have the power of precedent. What everyone could do with is a tutorial on trust law in the New York Supreme Court. That is something which Justice Cahn is expected to give the highest priority.
Roll on the Rugby World Cup.
If life’s end of term report comes to the conclusion that the candidate was guilty of poor judgment, that is about as bad as it can be. If that poor judgment only affects the candidate, that is damning enough; if those judgments adversely affect a wider world, the guilt is compounded.
Those who love, are fascinated by, or just take a an interest in yacht racing are being let down at the highest level by poor judgment in two of the world’s top showcase events. A third can plead mitigation, but may have created a slippery slope for itself.
Invevitably, leading the march into weary frustration is the America’s Cup now that the first edict from the New York Supreme Court has been handed down by Justice Herman Cahn. The Societe Nautique de Geneve, through whom Ernesto Bertarelli’s Alinghi syndicate has successfully both challenged and defended, has, apparently, chosen to ignore the 22 August deadline to respond to a petition lodged by the Golden Gate Yacht Club at the behest of Larry Ellison’s BMW Oracle. Was that an error of judgment?Courts take themselves very seriously and don’t like being ignored.
The petition claimed that the challenge from the Club Nautico Espanol de Vela and accepted within seconds of Alinghi beating Team New Zealand 5-2 in July 2007 was invalid. It further asked that GGYC’s own challenge, for a race in 10 months (July 2008) in a boat up to 90 feet long and with a 90-foot beam, should be accepted by SNG.
Further detail is available in earlier missives, but the future is of more concern. After a long silence, America’s Cup Management, Bertarelli’s vehicle for drawing up the new protocol and partners with Valencia (both city and region) and the Spanish government in running the whole event said, rather feebly, that it was “disppointed”. Even detractors can only sympathise with ACM’s communications machine for being so flaccid. That is the fault, and it is an error of judgment, of its masters.
Public relations should be a matter of clever stategy, brilliant and varied implementation, and the ability to coach non-protagonists, like dumb-cluck coporates, in the public bit of the relations. But they have to back the project and the projection of it. Too often, throughout industry and commerce, public relations means setting up a buffer zone based on the mushroom principle of keeping the public in the dark and only when necessary feeding the stupid suckers on bullshit.
It is entirely wrong to keep on saying that, to understand the America’s Cup, you first have to understand that it is a winner takes all event. No-one is much more than a temporary steward of something that will be passed on – even Ernesto Bertarelli does not expect to live for another 156 years. In the meantime, the public has been invited to be one of the interested parties. To be autocratic has often proved to be an error of judgment in the long term.
Now both Bertarelli and Ellison seem, if anything, to be digging their heels in for a personal knife fight. Ellison’s statement following the court’s decision surely said that talking would be far better than litigation, which could be seen as giving ground before the fight had even begun. But there was no similar hint in the response from ACM and behind the scenes talks involving Russell Coutts, Brad Butterworth, Tom Ehman and Hamish Ross seem to be running into the sand.
The trio of Bertarelli, Michel Bonnefous (president of ACM) and Lucien Masmejan (Bertarelli’s lawyer) is setting the tone. It is their judgment that will be judged, as will that of Ellison, who claims support in the court of public opinion but should know better than to leave anything to anything as chancy as that.
Chance was seen as likely to be the determining factor on the Olympic Games track chosen for sailing by the Chinese, endorsed by the IOC and fought not hard enough by the International Sailing Federation. Fans in Britain must be happy with the lottery as they bagged five golds and silver, saw recognised talent rise to the top, and laid down a marker that, whatever the sailors may think, must have sent shivers down the spines of many rival national coaching teams. There are plenty more where these winners came from.
But the fact is that Qingdao is not worthy, in normal August conditions, of being an Olympic level sailing track. The authorities in that authoritarian country have not seen fit to sell the counter-argument and the feeling is made worse that, 700 kilometres out of the sight of Beijing, it is out of the mind of an organisation focused on delivering a huge propaganda return from the main stadia in the capital and giving a huge television audience that is not going to be concerned with sailing, the message it – and the major sponsors – want.
But an error of judgment it is and it is very unlikely that the whole game will be given much of an aspirational boost to the youth of the world because the arena is so poor.
Whether the decision to delay the start of Fastnet Race by a day was the right one remains to be seen. It didn’t seem to make much difference to the competitors, most of whom retired long before they hit the vulnerability zone of the Irish Sea. In Plymouth, none of the early finishers had a good word to say for the delay, but few were injured, no-one was killed, the emergency services had only a light workout, and a new record was set.
The big question mark was over whether the age-old rule that it is the skipper and crew that decides whether to start or continue had been slightly undermined. In a blame culture era it is reasonable to see that organisations will try to protect their backs from meddling politicians and uninformed journalists. But the precedent is now set.
If the Royal Ocean Racing Club is to decide whether conditions are raceable, then the decision of the skipper is, however slightly, suborned. This time the forcast was clear – but never came true as the top report was of 45 knots, not the predicted gusts of 60-plus. Having done it once, will the principle be applied again and if a fleet is sent out into heavy weather and there is more damage or injury does that mean that the vultures (lawyers) will have more of a case?
But the main question is over who shall make the judgment. Individuals on their own behalves or institutions, not just nannying, but in their own defence?
Filed under: America's Cup
His skipper, the elegant Francesco de Angelis, had already left – “time to move on after 10 years” he said. His front man, Paolo Martinoni, lover of wine in nothing less than magnums and with classic patrician Roman looks, has left and gone for a month’s holiday in the States. Now the big boss, Patrizio Bertelli, has said he is pulling out of the America’s Cup after three attempts to succeed in what had become an obsessive passion.
“Participation in the next America’s Cup was carefully analysed and, while significant human and financial resources are already available, it was decided that, after three campaigns, a cycle had come to an end,” said a communiqué crafted by his consiglieri, Francesco Longanesi Cattani.
There were then the obligatory thanks to his sponsors, praise for the intense years of campaigning and the hope expressed that another Italian team would be able to compete in the next cup and keep Italy at the top of the game.
More of that later, but Bertelli will be missed. What others saw as tantrums and anger was always described by friends and even some detractors as passion. He has been a positive asset to the cup, added an essential ingredient of style and as he walks away, along with another company equally concerned about style, Louis Vuitton, so Ernesto Bertarelli’s America’s Cup Management will have to revisit its core strategy about what audience it wants to attract.
The equally passionate Vincenzo Onorato may be the most likely Italian to pick up the baton, and his Mascalzone Latino boats were showing impressive pace before they suffered a bit of a meltdown with five consecutive defeats. Onorato , who also races hard in Farr 40s and runs Italy’s Mobylines ferry group, had been a bit in despair as well as dispute with America’s Cup Management during the cup.
He was far from happy with the rather down at heel feel of the setting for the bases in the southern group and also found the smell from the drains rather unpleasant. He should have tried standing outside BMW Oracle’s palace in the northern group.
He also found himself under attack because he parked one of his ships just over the harbour wall to house hospitality guests. It had Mobylines writ large along the side, along with his whale logo. This was regarded by ACM as ambush marketing, something which exercises all those who want to keep a tight control on who appears where and says what. It is also incredibly pervasive. Few know that, when buying world cup soccer tickets in Germany, in the small print on the back, the transaction was described a s contract between the organsier and the purchaser.
In theory, if you attended a match wearing your favourite tee shirt and that tee shirt carried the logo of a brand that was in competition with one of the event’s official sponsors, then you could be refused entry. Don’t you just hate that kind of invasion of your freedom.
Anyway, Onorato was also in the statement-making business. He started with the premise that “we all” wanted tough but ulimately fair-play-based competition. Ho hum. That “we all” wanted the chance to compete successfully. Ho hum.
After offering a sop to both Alinghi, the defender, and Oracle, a challenger, he then went on to say that he wanted to rip up the America’s Cup 33 protocol, renegotiate all the contentious points already raised by Larry Ellison through the Golden Gate Yacht Club, and offered to have an agreement signed by every challenger to change, by America’s Cup 34, to the 90-foot new class of yacht proposed by Alinghi. But after its design rule had become the subject of agreement between Alinghi and the Challenger Commission. Ho, ho, hum.
Not many would give Onorato much of a chance and by going so public he could be faced with the choice of either backing down or, like Bertelli, voting with his feet and his cheque book. See you in Copenhagen, Vincenzo.
Filed under: America's Cup
If justice is on your side, then argue justice. If the truth is on your side, then argue the truth. If you have neither, then argue the law. Lord knows how many time I have quoted that and now, it seems, that, unfortunately, the minutiae of legal interpretation will determine not necessarily the format of the next America’s Cup but the power struggle between two rich and stubborn men.
While it is easy to have some sympathy with the sentiment of Larry Ellison’s complaint about the terms and tone of the protocol presented by Ernesto Bertarelli’s America’s Cup Management on behalf of the Société Nautique de Geneve, it is tempting to say that a little more jaw-jawing should have been attempted before going to war. And, while there was an attempt by Ellison himself to focus on why he feels aggrieved when he coincidentally introduced Russell Coutts as his new ceo and skipper, that appeal on the basis of fair play was hardly given the sort of worldwide push that could have built a head of steam against the protocol for America’s Cup 33.
Perhaps being told that, having dared to stand up to Bertarelli, he would, whatever happened, be frozen out of the next cup, Ellison just shrugged his shoulders and plumped for high noon. But there are always back channels for negotiation and little spotlight has been played on a willingness by either side to reach a settlement.
Claims, fostered by Bertarelli’s Alinghi men, that the petition to the New York Supreme Court was not properly served first time round have been hotly denied by spokemen for the Golden Gate Yacht Club. All was done, they say, according to Hoyle. So the clock, if they are right, is ticking and SNG has 30 days to respond.
In a bid to pre-empt anything the court may decide, Alinghi has referred the legitimacy of the newly-formed Club Nautico Espanol de Vela to be the challenger of record to a three-man arbitration panel appointed by ACM. None of them has been named, but the law firm which represents GGYC, Latham and Watkins, has sent a letter from its Third Avenue, New York office to the man it regards as its chairman, Prof. Henry Peter, at the panel’s Geneva office.
It is gloriously American in its aggression and ebullience, with shades of Rome’s greatest legal orator, Cicero, who developed the tactic of discrediting witnesses in order to discredit that witness’s evidence, even it it were just, truthful and accurate.
James V Kearney says that the format and process of the arbitration panel violate the most basic principles of justice and are an affront to the most basic sensibilities common to all law-abiding people. Do the chattering classes of up and mid-town New York really feel so angrily indignant? He goes on to say that SNG’s proptocol for AC33 was designed to put the fox in charge of the henhouse.
It quotes Peter himself as saying that the New York Supreme Court has jurisdiction over the deed of gift and the right to decide the interpretation of the deed and to decide whether a challenge is valid.
His parting shot says: “The disgrace and shame brought upon the America’s Cup by this charade threatens to inflict a crippling blow to the sport.” Well, the International Sailing Federation may wring its hands and mutter in its beer about its castrated inability to do anything to control its own sport when it comes to the America’s Cup, but the Olympics classes are hanging on and thousands of regattas are enjoyed every weekend around the globe under its racing rules. Many people who say they enjoy sailing do not have a clue that this row is going on and many others could not give a damn.
But going on it is. And neither man is know for backing down. At the press conference called to celebrate, as far as the locals were concerned, the selection of Valencia for a second time, the government minister, regional president, mayor and Bertarelli took care to sing from the same hymn sheet and promise support the CNEV and the Desafio Espanol which spawned it.
But after Bertarelli had delivered his second passionate denunciation of Ellison, regional president Francesco Camps decided enough was enough, stood up and shut the proceedings down.
Having announced that Team New Zealand was joining the Spanish, Britain’s Origin and South Africa’s Shosholoza as challengers under the disputed protocol – negotiations were going on with TNZ until the last minute – Bertarelli may have thought that persuading a former winner of the cup, and therefore one of its trustees, to back that document would be a powerful argument in his locker. Another, more secptical view, may be that challenging is a matter of self-interest at a time when Bertarelli is also saying that no more bases can be built in the America’s Cup port.
So, the battle lines are drawn. Whatever happens, there will be blood on the carpet as Larry Ellison, boss of the California-based Oracle software house, says he cannot accept the terms of the next America’s Cup as drawn up by the pharmceuticals billionaire from Switzerland, Ernesto Bertarelli.
This is no longer a contest on the water, it is only perpherally about yachting. It is a battle of wills and Ellison has taken the big risk of throwing down, very publicly, a legal gauntlet. He didn’t even do that very well, as the technicalities of serving the petition in the New York Supreme Court ran into problems. But the Golden Gate Yacht Club, which does his bidding, will get it right and then the Société Nautique de Geneve will have 30 days to respond.
The first hurdle that Ellison’s lawyers will have to clear is that the deal with the challenger of record, the recently-formed Club Nautico Espanol de Vela, is invalid, though the court could find this is ok and still rule that the GGYC challenge in 90×90 catamarans should go ahead.
As Team New Zealand has joined CNEV, South Africa’s Shosholoza and the UK’s Origin in challenging under the protocol which Ellison finds so objectionable, the divide and rule principle seems to be working.
At the shambolic press conference organised to announce that the €105m bid from Valencia (40% Madrid, 40% region, 20% city) was successful, so the rallying calls of support for the CNEV and Spain’s national governing body which spawned it, the Desafio Espanol, were thumped onto the table by regional president Francesco Camps, Valencia mayor Rita Barberá, and national government minister of public administration Elena Salgado. One curious precursor was a stone-faced Alinghi skipper Brad Butterworth asking the Luna Rossa lawyer Luis Saenz to leave. “We are on different sides,” he said.
America’s Cup Management ceo Michel Bonnefous was on hand to say he hoped to organise the best America’s Cup ever and remind Salgado, when she said that only a preliminary agreement had been signed, that this was a binding agreement. As the Madrid parliament is in summer recess it cannot be formalised until September.
Ernesto Bertarelli started slowly, saying that there would be two regattas next year, the first, in the spring, in Valencia and the second, in the autumn, to be announced, but in Europe. AC 33 trials would begin in April 2009, the class rule for the new 90-footer would be published by October 31 this year and teams, although they could build two hulls, could only sail one at a time. No two-boat testing, no side-by-side testing with other syndicates except when taking part in an ACM-organised regatta.
The same rules would applly to Alinghi – though how far they are already ahead with design work was not mentioned – and if the defender was eliminated from the challenger trials it would no longer be able to test against others. Alinghi would, in any case, not be able to contest the challnger finals. Big deal.
He said that an independent arbitration panel would be appointed as would an independent jury. Who will make the appointments – why ACM of course, which is wholly owned by Bertarelli.
He then started laying into Ellison. “It seems like having failed to win on the water, twice, he is trying to win it in court,” was the gist of what he said. This was a “great disappointment” and the bid to race exclusively, without other challengers being involved, “is unacceptable.” The answer was, he said, to refer the matter to the arbitration panel, not the New York court. “We have no interest in racing in a 90-foot multihull,” he said, adding that Ellison’s move was creating huge insecurity, not least for those challenger syndicates trying to raise sponsorship finance. And it was damaging ‘the America’s Cup brand’.
Mayor Barberá said she would support the Desafio and protect the rights of the Desafio as challenger of record. She was happy to hear that Ellison was saying he liked Valencia and invited Ellison “to give up all this litigation and we will welcome him with open arms.” Salgado, a socialist party government minister, gritted her teeth and chimed in with support for the opposition People’s Party mayor.
Behind the scenes the councils of war are in daily session. If Ellison thinks he can head a tight union of dissent he has to be deluding himself. Every syndicate will put self-interest first and do what they think is best for themselves. If Ellison can squeeze out some benefit then so be it. But they would expect him to be equally tough if he were to win the cup.
Ellison had, the previous day, taken the trouble to fly into Valencia to present his latest prize, the former Alinghi skipper Russell Coutts, as the chief executive office and skipper to replace Chris Dickson. He held centre stage in the cinema/theatre for most of a hastily-organised press conference and engineered the first crack at occupying the moral high ground by calling for a committee of challengers to agree mutually a design rule for the next cup, to call for the race officials,umpires and jury to be completely independent, and that any legitimate yacht club should have thr right to enter a team in the challenger series. “Right now, the Alinghi protocol gives Alinghi sole discretion to throw out any challenger they don’t like for any reason. This is unfair and unacceptable,” he said.
Why should he say this? Because, and it dependes on which version you believe, either Ellison called Bertarelli or Bertarelli called Ellison but the outcome was that Bertarelli warned Ellison that a Golden Gate Yacht Club Challenge would not be accepted. Asked the same question at the press conference the following day, Bertarelli said: “No comment.”
Whether Bertarelli would defend a catamaran challenge, and whether that would be in Valencia, is unkown. But, if Ellison goes down the New York Supreme Court route, only one will be left standing. Great soap opera script material. Not great sport.