So now, let's negotiate

Tomorrow, Commodore Pierre-Yves Firmenich's delegation from Société Nautique de Genève (SNG) will sit down with Commodore Marcus Young's delegation from Golden Gate Yacht Club (GGYC) to discuss next steps for America's Cup. 

This is the biggest America's Cup event since July 2007.

That's when Alinghi successfully defended the cup against Emirates Team New Zealand, SNG accepted Club Náutico Español de Vela (CNEV) as challenger of record for AC33, and the leadership of GGYC and their sailing team BMW Oracle went ballistic. 

Soon after, all legal hell broke loose.

Hopefully, sanity will prevail when club delegates meet tomorrow.

But this is America's Cup. Whether we like it or not, a multitude of issues surrounds the participants -- and all of these issues will be in the room tomorrow, some of them elephantine.

Taking a cruise through the oceans of stimulus:

(1)  POWER PLAYERS

Ernesto Bertarelli (SUI), head of Alinghi, and Larry Ellison (USA), head of BMW Oracle, will not be attending in person. But their personal perspectives have defined America's Cup for two years and will strongly influence the proceedings tomorrow. Emotionally, they will be in the room.

Curiously, if we set aside an extraordinary assortment of trifling matters, one extraordinary issue separates these competitors. 

Ernesto Bertarelli's leadership has demanded total, complete and absolute control over every aspect of AC33, including the right to banish any competitor for any reason, at any time. One hundred and eighty degrees in the other direction, Larry Ellison has consistently demanded an AC33 that is governed by mutual consent, just like AC32, the most successful America's Cup in history. 

Ultimately, this is the divide that will control the event tomorrow.

(2)  GGYC GOES PUBLIC

To clarify their position, GGYC took an unprecedented step yesterday to publicly announce their objectives for AC33. They will enter the room tomorrow en clair. 

To no-one's surprise, GGYC re-affirmed their objective for a mutual consent, multi-challenger event involving clubs and teams from around the world. 

Interestingly, GGYC proposed two formats -- (i) An AC event managed by a truly independent America's Cup Management (ACM) with board members of the organizational authority appointed by all participants, as well as the defender -- not a captive ACM board where absolute power and authority, in truth, is vested in Ernesto Bertarelli and SNG. 

Alternatively, GGYC proposed:  (ii) An organizational repeat of AC32 -- with long-time AC sponsor Louis Vuitton possibly returning to take a leadership role in the Challenger Selection Series -- ostensibly Louis Vuitton Cup redux -- with all challengers sharing financial and organizational responsibilities for the series.

This is a very significant development. 

Not only does it consider Louis Vuitton's tentative, potential, and possible -- but welcome -- return to America's Cup (we can't imagine GGYC involving Louis Vuitton without their tacit approval); but it offers SNG and ACM the promise of much-needed financial relief at a time when classic AC sponsors have departed the stage and corporate replacements are thin on the ground.

(3)  MONEY MATTERS

Sponsors make America's Cup happen. They provide cash. Which may be one reason why a Deed of Gift race is so attractive to a Swiss defender whose major sponsors have also moved on. Certainly, a costly multi-hull vessel must be built and assembled, which takes millions. But the Deed of Gift event is just three races that could actually be completed in two days.

For the defender, financing a three-day event is feasible. Self-financing a one-year or two-year multi-challenger event is a phenomenal challenge.

In today's economic climate, it may be virtually impossible.

Interestingly, sailors always define America's Cup as a battle of boats and teams. Which is true. But the battle doesn't happen without money and sponsors are the people who provide it.

Who will provide the money -- and for which event -- will be the biggest elephant in the room tomorrow.

(4)  DOG RACES ARE FOR DOGS

America's Cup isn't about Deed of Gift races. Existing as a provision to resolve disputes, Deed of Gift (DOG) races are about competitors who cannot agree. 

The real world wants the Real America's Cup to return.

And, frankly, there is more than enough negotiating room for the delegates from SNG and GGYC to forge a way forward to a true multi-challenger event, where absolute fairness -- instead of absolute power -- prevails.

If you want a DOG race in this environment, it's probably because you don't want a classic America's Cup.

You don't want an America's Cup organized by mutual consent. 

You don't want to cede anything to any competitor, at any time, for any reason, not even a world of competitors. 

What you do want -- it would seem -- is total power, total control, and total authority, regardless.

Which might be something, but it's not America's Cup.

(5)  GOODWILL

GGYC has sent delegates who can complete an agreement for AC33. SNG is sending major players.

We know there is negotiating room for a return to a classic multi-challenger America's Cup. We know that workable financial solutions, including a significant potential sponsorship, have been proposed that could make a classic AC33 a reality. We know that everyone on the planet wants to return to the fabulous atmosphere that prevailed in AC32.

We don't know of a real, valid, genuine, authentic factor -- other than power -- or perceived power -- that could prevent this from happening.

Now, all we need is goodwill.

We hope that's what prevails tomorrow.

Tremors, east and west

The America's Cup world is abuzz about boat construction.

Not that this should concern anyone, normally. But at this curious point in time, it's serious.

Actually, it's very serious.

Rabid AC fans, whose fingers are continuously on the pulse, thanks in large part to an extraordinary online network, AC Anarchy, are detecting boat building and assembling energy in amazing places like Anacortes and Villeneuve. 

That's Anacortes, Washington, U.S.A., where Larry Ellison (USA)'s amazing raptor trimaran was put together. And Villeneuve, Lake Geneva, Switzerland, where nothing ever happened, except for tourists visiting the lake, sailors watching Ernesto Bertarelli (SUI)'s latest catamaran, and wealthy people staying in exclusive hotels and villas, along with folks like Bill and Melinda Gates.

Now, in both places, much is happening.

Boat parts are being delivered at midnight in Anacortes. An amazing structure is being erected in a parking lot in Villeneuve that suggests to experienced sailors and boat builders that a vessel curiously like an extremely lengthy catamaran is soon to be erected there.

So what's really under way?

A great deal of confusion, of course. This is the America's Cup 33.

And if it's AC33, you can always take your chances. 

For the record:

(1)  Dogzilla, the phenomenal 90-foot trimaran, supposedly developed by BMWOracle for an America's Cup Deed of Gift (DOG) race, has disappeared.

(2)  Amazing boat parts are being delivered, under the cover of darkness, to a boat building facility in Anacortes, original home of Dogzilla.

(3)  An old rail yard in Villeneuve, now a parking lot, has been converted into a curiously smooth tarmac platform with astonishingly accurate concrete footings under a soon-to-be-completed alloy and mylar canopy. Here, fans say, Ernesto will assemble the real Swiss Myth, a Swiss cat.

(4)  AC sailors, privately, are saying big cats turn and handle faster than big trimarans, and in the simple DOG races ordained by the Deed of Gift, some say, that's a measurable advantage.

Meanwhile, the titans themselves (Ernesto Bertarelli (SUI) and Larry Ellison (USA) and their clubs) are meeting, have met, or soon are about to meet.

What they decide, is what AC33 will be about.

Yet, even before their determinations are announced, you can be assured, much is being expressed in alloy, composites, and glass -- in structures, as well as boats.

AC33, in one form or another, is coming to reality.

 

Words at work, not working

Words are flying. Words are being captured in huge nets and displayed on websites. Everyone is yearning for meaning. There is no meaning. 

Everyone is also searching for the next missive, the one that flies missile-like into the online world to be tapped by an online reporter and instantly disseminated to the world at large.

Perhaps these are incoming.

All this is the mating dance of America's Cup titans -- America's Cup 33 Challenger of Record, Commodore Marcus Young of Golden Gate Yacht Club (GGYC), and the AC33 Defender, Commodore Pierre-Yves Firmenich of Société Nautique de Genève (SNG).

The subject at hand:  What on earth -- or at sea -- will happen in AC33?

Specifically, will there be a multi-challenger event, involving teams from around the world?

Or will there be a multi-hull event, involving Alinghi (SUI) and BMWOracle (USA)?

If you think that words don't matter, troll the missives.

GGYC has reaffirmed its commitment to a multi-challenger event, but wishes to "discuss ideas to achieving mutual consent".

SNG, through Vice-Commodore Fred Meyer, who -- consistent with his personal tradition -- uses subtle pyrotechnics, actually verbal sleight of hand, to dissemble the determinations of the New York Court, asserts that "mutual consent" should be discussed.

Now, "mutual consent" is the new "having".

If you are wondering what it actually means, you are not alone.

Both of the parties are dancing very gingerly around this litmus term. 

No-one is saying what they will be discussing when they step into a conference room somewhere, sometime soon, probably in Geneva.

Think about this.

If you are Ernesto, you must sponsor an America's Cup defense. But you have no UBS -- the mega-Swiss bank is now under attack by authorities in the United States. You have no Louis Vuitton -- the long-time AC sponsor and provider of funds for the preliminary events of America's Cup has left the stage, creating its own event for America's Cup teams and boats in New Zealand. 

You also have declining credibility because of the departure of both landmark sponsors, no other sponsors on the horizon, and an imperfect and, frankly, tumultuous relationship with the governments of Valencia and Spain. 

As all of us know -- nobody more than Ernesto Bertarelli's captive management organization ACM -- this isn't exactly the right time to bring newcomers or new sponsors into America's Cup.

So, if you are Ernesto, will you enthusiastically agree to stage a multi-month, multi-year, multi-challenger event?

We don't think so.

Yes, billionaires like Ernesto and Larry have resources. But yes, even billionaires have their limits.

The best we can expect from the Swiss Billionaire, pundits say, is a handy dandy three-day Deed of Gift event, where Ernesto defends against Larry's raptor trimaran by sailing ... well ... the amazing Swiss Myth, a vessel of absolutely pluperfect design and proportions that nobody has ever seen, not even spies.

But is this what Larry wants? Even after building a real, photographed, and competitively viable $20 million trimaran contender?

No, Larry wants a multi-challenger event. Up front, plain and simple. 

He wants GGYC to achieve an agreement with the Swiss defender (SNG) to allow New Zealand, Italy, France, Great Britain, South Africa, China, and every other maritime nation under the sun -- or at least off an arm of the sea -- to participate and contest the opportunity to win America's Cup 33.

Despite the April dancing, that's a pretty solid declaration from the challenger of record for the next America's Cup event.

That is not a declaration that the Swiss defender has made since his puppet yacht club challenger was removed by the Courts of New York.

Nor is it, we believe, a declaration he is ever likely to make.

Sturdy voices request (politely) inclusion

Burgees of the Cross of St. George

and Companion Crown and Star

Today, commodores representing yacht clubs who are deeply vested in America's Cup declared themselves for a multi-challenger event and urged Société Nautique de Genève (SNG) of Lake Geneva, current Defender, and Golden Gate Yacht Club (GGYC) of San Francisco, Challenger of Record, to negotiate an agreement to achieve it.

Baron Iliffe of Yattendon, Royal Yacht Squadron (UK), and Messers. David Elwell, Jr. (New York Yacht Club), Mark Fitzhardinge (Royal Perth Yacht Club), Andrew La Dow (San Diego Yacht Club), and Scott Colebrook (Royal New Zealand Yacht Squadron) sponsored and co-signed an open letter to request -- and if they had the power, we are sure, to require -- the two clubs to come to a similar conclusion.

The letter, however, neatly parsed the participants.

Authors of the epistle were clubs that either "set the America's Cup in motion" (Royal Yacht Squadron), or "have been a former trustee of the Cup" (New York, Perth, San Diego, and New Zealand).

Notably excluded from this cohort, of course, Société Nautique de Genève, current defender.

You would have to say SNG was deeply vested, and a trustee; after all, they won it twice. Defending it once is enough.

Perhaps the letter should have read -- 'from all trustees except SNG'. 

Yet that would be impolite, and the commodores are gentle people.

But it's interesting that the First Lords of America's Cup felt the need to express themselves. 

At the highest level, of course, all of us endorse their sentiments. 

All of us want a multi-challenger event, especially for sailors and their families; sooner, rather than later. All of us love Valencia; we want to return there, as soon as possible. All of us love a fabulously competitive event, and we always prefer a multitude of flags and burgees -- some of them with elements other than the Cross of St. George (which we respect mightily, and against which, we might add, we hold nothing).

Consistently, if it's America's Cup, we aver, its about the world. Nations, boats, and sailors, from all over. Fans worldwide. Many voices, many faces. It's just better that way.

On another level, we must admit, there is also this astonishing 90-foot raptor trimaran that America's Cup fans have called DoGzilla, which was built by Larry Ellison (USA) of BMWOracle, the racing team sponsored by GGYC. 

This utterly amazing vessel is a fabulous innovation and a new threshold in multi-hull design. We are enthralled by its power and potential. 

Apparently, there is also the Swiss Myth, an equally amazing multihull that exists firmly in the imagination and secrecy of a conspiracy of European designers, builders, fabricators, assemblers, riggers, painters, tent builders, building owners, and trucking firms, which some say is hidden in Villeneuve, in the Alpine Nation. Nobody has ever seen it.

All of us would love to watch these vessels race. Nobody more than us.

For the Cup, we hope it never happens.

Let's watch these vessels race, by all means. But let's ask Rolex to create a new class for the event.

Meanwhile, on yet another level, we wonder about the motivations of the Alta-class of America's Cup Trustees. Yes, of course, they want global racing. Yes, they love America's Cup. And no, there is no doubt about their motivations. They love the Cup.

At the same time, they are laying in place an assertion, a fact, an event in time and place, that could easily be extended, with repetition and emphasis, and endorsed and expanded by attorneys, that could lead to an event that none of us would ever want to see, ever again, ever in our lifetimes.

That's when the Titans of the Universe Clash Without Resolution and Plunge the Cup into Litigation Yet Again.

If that ever happens, we can be assured of one thing.

The Eminent Trustees of America's Cup Exclusive, acting as a majority in the Courts of New York, will seek to restore the Deed of Gift to its originator or to some other mutually agreed defender (to be defined).

Now, we can't imagine that a club like GGYC, that has consistently demanded a protocol that requires fairness, independence and fair competition, would seek to invoke the Wrath of the Pennants of St. George and Companion Crown and Star.

But if a club like SNG is determined to act like the idiot its representatives have consistently presented since July 2007, we can be assured of it.

The Trustees Exclusive will act.

A win for the Auld Mug

The silver trophy, as viewed by Alinghi

In a surprisingly simple opinion authored with astonishing clarity by Judge Ciparick (with Judges Graffeo, Read, Smith, Pigott and Jones concurring), the New York Court of Appeals today reinstated the decision by Justice Herman Cahn of the Supreme Court of New York to deny Club Náutico Español de Vela (CNEV) its status as Challenger of Record for America's Cup 33.

Judge Ciparick affirmed the status of Golden Gate Yacht Club (GGYC) as Challenger of Record, and urged GGYC and America's Cup defender and trust holder Société Nautique de Genève (SNG) to get their acts together, resolve differences, and move forward.

It was a victory for many things, among them: (1) truth, (2) honor, (3) tradition.

Of course, 'having' had its day, that dastardly canard.

But the Judges clearly and unequivocally understood that 'having' had its meaning in 'its regatta', and concluded that, on the day it mattered, CNEV did not have an annual regatta, 'its regatta', or any other regatta, for that matter, at any time in the past or present, and had -- at that time -- no plans for having a regatta of any kind, anywhere.

Now having is dead, thank God.

We sincerely hope that it is permanently dead, its corpse now lying sodden and bloated on the floor of an arm of the sea, somewhere, a stake hammered through its heart, soon to be sundered, rendering tasty morsels for feeding creatures.

Ultimately, 'its annual regatta' and its failure to have an annual regatta, or anything approaching anything that has to do with being an authentic, reputable yacht club that holds regattas, indicted CNEV as a sham, cobbled together in the aftermath of AC32. 

But, frankly, that's not the beauty of today's decision.

As everyone on the planet knows, and the court agreed, CNEV failed to pass the plain-simple-square-knot determinations of Dear Dead George Schuyler's amazing Deed of Gift.

Far from being a quaint, ancient, goodwill gesture that can be parsed, corrupted and co-opted by anyone who thinks they can control it, Schuyler's handiwork passed yet another test. 

If you want to adjudicate America's Cup, said the New York court, you'd better stay within the confines of the four corners of the deed. That's where the truth is.

Thus, the Cup won.

Now, instead of courtroom theatrics, what we have to look forward to is an America's Cup of some kind or another, to be held somewhere, sometime soon. And that's great.

At this momentary pause in the proceedings, we are struck by three thoughts:

(1)  GGYC, encouraged by their sailing team sponsored by Larry Ellison of BMWOracle, ultimately prevailed. In our view, honor won. As a highly competitive sailor, an America's Cup traditionalist, and a profoundly independent American, Ellison spent a small fortune to support the integrity of the Deed of Gift, protect the honor and authenticity of America's Cup, and assert traditional values in a world where 'values', like 'having', get shifted, manipulated, and misappropriated. 

All AC fans owe Ellison for his commitment. Remember, he shelved his personal passion -- sailing fast racing boats -- in order to assert the principles of the Deed of Gift of the America's Cup. And he paid good money for the privilege. Nobody does anything remotely like this in today's world. Certainly not in Wall Street. Certainly not in Europe.

We also owe his partners, team leaders -- and especially his sailors and their families -- who toughed this out with him, at their personal expense, in order to be loyal to their team and to an American point of view. This took faith, courage, and nerves of steel, especially in today's economic environment. 

All of us, owe this club, this leadership, and this team. We also owe their lawyers.

(2)  In affirming the clarity of the Deed of Gift, Judge Ciparick's decision gently underscored all the provisions of the deed, including, particularly, the notion of "foreign". 

It takes a nation different from the Defender's to be an authentic Challenger of Record, says the deed. Once the challenger is affirmed (and has satisfied the requirements of a challenger under the Deed of Gift), other nations may participate by mutual consent. That's one of the many things 'mutual consent' means. Of course, we all know this, and we've all forgotten it. Yet the New York court, interestingly, reminds us that nationality, in fact, is at the heart of what America's Cup is about. 

Moving forward, perhaps we will respect that even more, and embrace it even more. 'Foreign' means different countries. Different nations. Definitive nationalities. So beware any Defender or Challenger who seeks to diminish "friendly competition between foreign countries". And beware anyone who seeks to trump the Deed of Gift. George Schuyler has your number, and he has amazing reach.

(3)  NOW WHAT? 

Every sailor on the planet hopes that the so-called DOGzilla, Larry Ellison's amazing 90-foot multihull, now undergoing modifications, will actually meet on the water somewhere, the great mythical vessel CHEEZilla, Ernesto Bertarelli's to-date fictional multihull, supposedly taking shape in a hamlet off that cold-water Arm of the Alps, Lake Geneva. 

We have said before that we don't believe the multihull exists, and we would love to be proved wrong, yet nobody has been able to prove us wrong, as of today. Believe me, everyone on the planet is trying to prove this monster exists. So far without success.

The bigger issue is, however, how will Larry Ellison and Ernesto Bertarelli resolve a Deed of Gift event? That's the really big MAGilla. 

If Ernesto actually is building his boat, we hope they decide to have an enormous blowout, preferably this year, and then -- in the great Mutual Consent tradition -- find a way to assure their teams, the teams of AC nations everywhere, and their sponsors, that a fabulous AC34 will take place in 2010, in Valencia, which all of us love, truly an America's Cup haven to be esteemed, just like Auckland, San Diego, Perth, and, well, soon, probably, like San Francisco.

And what about Ernesto?

Nobody has dished out more about Ernesto than we have. 

Yet we have also given him great credit for what he truly is -- a passionate sailor, a great competitor, and an America's Cup stalwart, even though we mightily disagree about how he expresses his passion for managing post-America's Cup 32 events. 

After all, he proved to us, through the success of AC32 in Valencia, that he was a master. Then he turned his mastery into a mystery.

Whatever his frame of mind today, we believe America's Cup needs Ernesto Bertarelli. 

AC needs his passion. AC needs his enthusiasm, his team, his European perspective. AC needs his magnetism. AC needs his defense of the Cup, now and in the future.

If Ernesto finds a way to decline a Deed of Gift race, on the other hand, and pursue a conventional America's Cup, it will save him millions, employ hundreds of sailors and their families, and continue his great tradition, which happens to be very becoming of him, as the Victor at Valencia.