It’s a Challenge... and an Opportunity

It’s been a while since I last ventured onto the topic of the America’s Cup – and with good reason. Another thirty instalments of Cory Friedman’s inestimable blog on the various court manoeuvrings have come and gone, with precious little in the way of clarity or progress in the New York court on which the action centres. 

Unsurprisingly, I’m still just as weary of the whole thing as I was back in April last year. So, don’t panic, I’m not about to start a tack by tack analysis of court performance, still happy to leave that to Mr Friedman. 

Instead, I wanted to point out that we may be about to turn a corner, from where we can see in the distance (and perhaps only briefly, before the confused fog of unconstrained legal warfare rolls back in) a glimmer of sunlight uplands.

The possibility of an America’s Cup match actually happening in February 2010 in Valencia looks to have tipped solidly this side of 50-50 – enough for BMW Oracle to start packing up in San Diego, anyway. 

So at the risk of pointing out the obvious; if Blinghi race in February then one of them is going to win. And when they do – regardless of any further legal recourse - a representative of another yacht club will need to be standing beside the winning team’s principals with a new challenge in their hip pocket. 

This is the traditional method for the new defender to control the next America’s Cup match: line up a yacht club who will challenge on previously agreed terms. The new defender is bound to accept the first challenge after their winning yacht crosses the finish line – so it’s important to have this organised in advance of the final race. 

It was a system which failed horribly for Alinghi when the New York court decided that their ‘hip pocket’ challenger – Club Nautico Español de Vela (CNEV) - wasn’t actually a yacht club, giving rise to the current situation.

Now, we all know that the delivery of this next hip pocket challenge will almost certainly not be the end of the 33rd America’s Cup. There remains plenty of potential for further legal challenges, for more appeals, affidavits, memos, depositions, oral argument, and so on, and on, and on.... 

But regardless of all that, the making of the next hip pocket challenge will be an important moment – because the nature of the document will tell us a lot about the intentions of the new defender for the 34th match. And it will be the first time in about two and a half years that anyone outside Blinghi (and the good judges of the New York court system) has had any say in the future of the event. 

So – what will be in those new challenge documents? What might be under negotiation right now, in smoke-free backrooms, for the future of the America’s Cup?

If Alinghi win, it seems unlikely that their plans for the 34th America’s Cup will vary greatly from their much maligned, original blueprint for the 33rd. The word on the street I was walking down the other day was that they’ve got a newly bona fide, bomb-proof CNEV lined up as the challenger again, and so we could be right back where we started - just two and a half years older. And looking forward to the number of Cory Friedman’s court reports reaching three figures.

However, if BMW Oracle wins, things could be different. They’ve talked a good game for how they might run the next Cup, but that hip pocket challenge will be the real test – what will it say about the 34th Cup?

I’m not the first person to think that any new challenge document needs to fix the Cup once and for all. It needs to ensure Deed of Gift altering, court approved, full and binding change – the kind of thing that will put the Cup on a sound footing as a 21st century professional sport. 

Team Origin’s principal, Sir Keith Mills, has recently talked about just this sort of thing - but what he hasn’t said, is what he’ll do if he doesn’t get it. 

Personally, I’m starting to think that if the new challenger agreement provides for no lasting change, then maybe it’s time for Sir Keith and all the other potential teams to think about walking away from the Cup, just letting that ugly old silver ewer go...

If nothing else, that threat might provide them with a brief moment of influence on the Cup’s future – but only if the challenger group act together.  If they do, there’s a chance, just a chance, that Blinghi can be pressured into fundamentally changing the way the America’s Cup is played.

And boy, do we need it. It’s the second time in twenty years that the Cup has been hauled off to the court room to the detriment of almost everyone involved, and we can be sure it won’t be the last, unless the Deed itself is modified to stop it happening again. 

The 33rd Cup that we’re watching, this monstrous battle of technology, lawyers, wallets and wills is actually much closer to the origins of the Cup than anything that happened in Valencia in 2007. Sad to relate, but this is what the Deed of Gift bestows on us as a Cup match, and unless the court approves changes to the Deed, it will revert to type every time it gets an opportunity. 

But a professional sport needs to offer all the stakeholders – sponsors, competitors, spectators, officials - continuity, security and a viable long-term business model. And it can’t do that while it’s being blown around by the whims, obsessions and largesse of the super rich. 

So, unless the new defender is going to apply to the court to change the game so it cannot be railroaded by the next rich guy to come along (which I accept would be like a turkey voting for Christmas), then perhaps the sailing community just has to let it go, let the Cup be what it is, and set about building the professional sport without it.

It won’t be easy, the America’s Cup can, and almost certainly will, carry on doing what it does best - pitting the financial behemoths of the time against each other in what will remain a headline grabbing arena. 

What’s so bad about that? About having this vast endeavour going on every time there are people willing to pay to play? It will enrich some of our number, and who knows, maybe someone will make a discovery that will define a new golden age of sail, make oil-fired container ships obsolete and help rescue us all from melting ice caps. 

The problem is that somehow the sailing community will have to get the message across to the mediaverse that this wild and wacky race doesn’t define the professional sport of sailing any more than cheese rolling defines athletics. 

But as I said, that isn’t going to be easy - I just pitched a major media organisation to provide reports on the upcoming Louis Vuitton Trophy in Auckland, and was turned down for the simple reason that it wasn’t the America’s Cup. Same people, same boats, wrong trophy. Turning that attitude around is going to take time, and it’s only going to happen if everyone outside Blinghi can get on the same page and agree what the alternative is… 

But that’s really for the future, in the first instance, the select group of people funding and organising the group of putative challengers have the big decision to make. And the moment they have to start making it is when the winning boat crosses the line to end the 33rd America’s Cup on the water. 

It’ll be a challenge, but it’s also an opportunity.

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