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.
2 comments:
I join you in saluting Judge Ciparick and the other five judges for 'having' the 'cojones' to uphold the integrity of the Deed of Gift by reaffirming GGYC's status as Challenger of Record. Like many others, I was surprised by the decision of the Appellate Division to reinstate CNEV as CoR, but was confident that Judge Ciparick -- who ruled on the America's Cup in 1988 and was familiar with the issues -- would do 'the right thing' by the Deed of Gift.
As to 'going forward,' I cannot envision Ellison/GGYC abandoning the DoG challenge match at this point (having spent millions on the design, build and test of his multi-hull) without key concessions from Bertarelli/SNG. Most America's Cup enthusiasts know that the major sticking points in the AC33 protocol have been SNG resistance to relinquishing control of AC Management, the Race Director and Committee, and the Arbitration Panel (or whatever these entities are currently being called).
Should SNG give way on the control issue, a DoG match may be unnecessary. But if SNG continues to resist GGYC and other competitors on these points during upcoming protocol meetings, GGYC should not hesitate to issue a challenge for the DoG match. Ellison is in the cockpit now, and GGYC need not compromise on that which I see as the most important issue of all: fairness of competition.
If the DoG challenge were issued, the best-of-three match could be sailed in February of 2010 (allowing for the 10-month timetable in the DoG) in the Hauraki Gulf; the facilities are already in place, and the success of the recent Louis Vuitton Pacific Series would increase anticipation of the head-to-head competition. It seems to me that if a protocol for AC34 could be agreed on prior to -- and pending the outcome of -- the DoG match, the other competitors could proceed with design, build and test of their entries for a multi-challenger event to begin in May or June of 2010 in Valencia. Both Ellison and Bertarelli have the financial resources to work on boats for AC33 and AC34 CONCURRENTLY, so as not to push the AC34 schedule out an additional year or so.
I must disagree with your assessment of Bertarelli, however. Being a billionaire yacht-owner doesn't make Bertarelli a sailor in the true sense of the word. In my view, he is a villain in all this: a stubborn, arrogant, sailor 'wanna-be,' whose intention from the outset was not just to capture the Cup for SNG and Switzerland, but to engineer a protocol that could keep the Cup in SNG's hands IN PERPETUITY.
From that perspective, the America's Cup does NOT need Ernesto and his European perspective. Indeed, from his own perspective, an AC34 without Alinghi would logically be no less valid than an AC33 without BMW Oracle -- which is what Bertarelli and SNG had been planning for until the Court of Appeals ruling dashed their hopes...
No comment, just an attempt to get in touch with Ross. I was in the Alinghi marketing dept until end 2005, then set up a company in Valencia to do VIP hospitality, and ran spectator boat for Shosholoza. Would enjoy hearing from you: jack.griffin@cupexperience.com
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