Tuesday, October 27, 2009

New York Justice Decks RAK

In a surprisingly brisk judgment from the bench, Justice Shirley W. Kornreich of the New York State Supreme Court in Albany, New York, today eliminated Ras Al Khaimah as the location for America’s Cup 33, ruling in favor of Golden Gate Yacht Club (GGYC), the America’s Cup challenger, over Société Nautique de Genève (SNG), the defender.

Leaving the door wide open for Valencia as the venue for AC33 – and for an SNG appeal – the Judge then waded into deep water on other matters, including rules, changing rules, and who changes them; length-on-the-waterline measurements, not including the rudder, except on toy boats, which don’t count; and ballast, movable ballast, and other weighty issues.

Justice Kornreich, apparently, will soon rule on the remaining items.

According to courtroom observers from the AC Anarchy division of the website Sailing Anarchy, which provided members with gavel-to-gavel coverage online, the eminent David Boies of Boies, Schiller & Flexner of New York, acting for GGYC, was as out of his depth as the good Justice herself on boats, racing and rules
– neither of them helped by the ultimately defeated Barry R. Ostrager of Simpson Thacher & Bartlett, head of litigation at that firm and a known dissembler, acting for SNG.

GGYC awaits the Justice’s ruling on other matters, but pockets a considerable victory.

SNG, their legal team, and sailing team Alinghi, represented in the courtroom by Skipper Brad Butterworth (NZL), must feel like stunned mullets.

Shown respect by Justice Kornreich for their perspective on security matters, but only briefly, officials from Ras Al Khaimah are now left with a half-completed facility in the desert which, if ultimately completed, will enhance their resort but will not host an international sailing event.

At least, not any time soon.

Given the definitive outcome, curious observers could be forgiven for wondering why on earth SNG and Alinghi felt that Ras Al Khaimah was the perfect location for AC33 in the first place; how they possibly could have expected GGYC to support this bizarre decision; or how their understanding of the plain language of the venerable Deed of Gift could be so badly informed.

The image we have in our mind is of a wild and reckless 17-year-old on a Hobie Cat, tearing along on a scorching breeze, on a direct line for the marina and the vessels moored there, with absolutely no idea how to turn, slow, stop, or avoid the imminent catastrophe.

He looks a lot like Ernesto Bertarelli (SUI).

Monday, October 26, 2009

Armageddon, Dirty Bert, and the Disgrace of America's Cup 33

“In exchange for selecting Ras Al Khaimah to host the 33rd America’s Cup, SNG (Société Nautique de Genève) secured the following commitments, among others: the Ras Al Khaimah Investment Authority (“RAKIA”) agreed to finance a shipyard to be built in Ras Al Khaimah by Décision SA, a Swiss yacht-building firm that has built all five of SNG’s America’s Cup racing yachts and which is owned in part by Ernestor Bertarelli (SUI), who controls SNG’s racing team, Alinghi.”

Does that sound to you like self-dealing?

Well, that’s just part of it.

“RAKIA agreed to finance the building of a campus in Ras Al Khaimah for Ecole Pol(y)technique Fédérale de Lausanne (“EPFL”), a Swiss institution that has served as a scientific advisor and partner to Alinghi since 2003 and has played an important role in the design of Alinghi 5, the catamaran SNG/Alinghi built to defend the 33rd America’s Cup; and RAKIA agreed to provide funding for EPFL’s Center for Neuroprostheses, which is overseen by five chairs, two of which are endowed by the Bertarelli Foundation, a foundation established by the Bertarelli family, including Ernesto Bertarelli, to manage and fund the family’s philanthropic interests.”

All this from a complaint filed in the New York Supreme Court by the mega-mega-law firm Boies, Schiller & Flexner of New York, acting for the America’s Cup Challenger of Record, Golden Gate Yacht Club (GGYC) of San Francisco.

With the dull clethunk of a court clerk's rubber stamp, Société Nautique de Genève's trusteeship of the America's Cup has been formally challenged.

Perhaps fatally.

What it isn’t discussed in the complaint, of course, is the highly theoretical, abstract, and fanciful possibility that Ernesto’s cost of construction of his magnificent catamaran, Alinghi 5, was seriously discounted by Décision, a boat builder, in favor of a choice by SNG of RAK as a location for the defense of AC33, where Décision is seriously invested.

But is that possible? Could that happen? We have no idea. It would take legal discovery to discover it.

Perhaps that could happen.

Otherwise, Boies’s complaint hammers one fact after another in a punishing repudiation of SNG’s behavior as a as Trustee of the America’s Cup.

Virtually everything about the AC33 defense is a sham, says the complaint. Effectively, SNG's defense is a slap in the face to the venerable Deed of Gift, the august document that controls America’s Cup.

Articulated in the complaint:

Alinghi’s arbitrary, bizarre and total control of the rules, without exception.

A secret pact agreed with the International Sailing Federation (ISAF) to control the rules, including – amazingly – the emasculation of ISAF in an abrupt and definitive way, decidedly neutering the world’s sailing authority, relative to AC33, authorizing them to do virtually nothing.

Measurement mania, in violation of the Deed of Gift, which favors the picayune measurement of the competing vessel in favor of Alinghi.

Mortal danger – well, not to put too fine a point on it – the risks of the impacts of war – in the waters off Ras Al Khaimah, which are less than 20 miles from Iran. All of which is a very serious consideration for any owner, club member, sponsor, or fan who wishes to bring a private vessel to the RAK location – given that no navigable way exists to get there without reckless exposure to threats from pirates (who are routinely successful) or aggressive Iranian Navy commanders (who don’t hesitate to act).

Self-dealing deals in Valencia – even before AC32, deals were concluded involving Bertarelli real estate, infertility clinics, and Ernesto’s mega-pharmaceutical firm. This is icky.

The failed proposition of Real Federaćion Español de Vela (RFEV), as a potential cup challenger, and its subsequent substitution by the pathetic and inadequate Club Náutico Español de Vela (CNEV), manifestly not a club.

Total control by Alinghi and SNG over anything and everything, including who can challenge for AC33 and enter, and who cannot, as well as the race committee, competition judges, and every other official, including the class rules themselves, racing rules, and the details of the challenger series, and a lot more – literally and absolutely everything, without exception, under Alinghi's control.

The AC Defender (Alinghi) as a virtual challenger – meaning Alinghi’s ability to compete in the challenger series, even if their performance negatively affects the standings of other competitors.

All of that, and more.

It’s amazing.

Suddenly, everything you ever felt was wrong about AC33 – and more – has been laid before the Courts of New York by Golden Gate Yacht Club (GGYC), in an attempt to bring the Depravity of America’s Cup to an end, in a major way.

Will sanity prevail?

Well, AC33 at Ras Al Khaimah may happen. Then again, it may not.

But the issue of SNG’s breech of responsibility as an America’s Cup trustee will survive RAK.

This issue will not be decided in racing that takes place on the war-infested, headland-sheltered waters off a narrow, barren piece of desert land that points to the heart of Iran.

It will be decided in the Courts of New York.

And this will decide the future of America’s Cup.

Thursday, October 1, 2009

America's Cup Chess

I open with my pawn (e4).

You open with your pawn (e5).

Then I move my bishop (b5). And so on. Remember?

Somewhere beyond the standard openings, things get interesting.

It reminds me of America's Cup.

Knowing that movable ballast will plunge their vessel's length on the waterline over the limits imposed by the Deed of Gift, Société Nautique de Genève (SNG) decides, for the first time ever in America's Cup history, to include the rudder of the competitive vessel (the trimaran of Golden Gate Yacht Club (GGYC)) in that vessel's waterline measurement, forcing it over the limit imposed by the Deed of Gift. Ha, ha!

That's e4.

GGYC responds by challenging SNG's movable ballast, reminding SNG that the Deed requires every element of the vessel's racing load to be aboard for measurement, as SNG (in dissembling mode) avers their ballast isn't part of the racing load.

That's e5.

GGYC marks their response by punching the mega-clock of mega-lawyer David Boies of the mega-law firm, Boies, Schiller & Flexner, LLP, who files a memorandum of law in the Supreme Court of the State of New York in support of GGYC (a document that was very well written and very clearly articulated, we might add, at least for lubbers like us).

That's Bp5.

Meanwhile, His Excellency Fred Meyer (SUI), Vice Commodore of SNG, departs from all convention, repudiates his prior behaviors, flaunts elaborate courtesies, and writes a surprisingly temperate, respectful letter to his senior counterpart at GGYC, Commodore Marcus Young (USA).

From Vice Commodore Meyer, this, also, is a first in America's Cup history.

The dust barely settled on his powdered peruke, the Vice Commodore brings greetings from the Alpine nation, enquires into the health of the California Commodore and his colleagues, family and friends, utters felicitations of joy, and shares abundant blessings . . . well, no, that's overdoing it.

But Vice Commodore Meyer overdid it also.

In the first mannered letter he has ever written, Meyer sought to document that GGYC representatives had actually visited the desert port of Ras el-Khaimah, in the United Arab Emirates, and uttered nice remarks about preparations there for America's Cup 33.


Well, that's chess. It's a move.

At some point in the Grand Tour of the Courts of New York, SNG will seek to prove, somehow, some way, whatever actually happened, and whatever GGYC subsequently did, that GGYC actually visited the Middle East venue, and liked it.

And here is Myer's letter to prove it.

Anyway, that's the middle game.

Your move.