Not RAK nor Rudders

Just like buses, I haven’t written on the America’s Cup for 18 months, then a couple of blogs come along at once... But it’s not the appeal court’s decision to rule out RAK, or even rudders, that brings me back to the topic. Nope, you can get everything on that and more from the ever reliable Cory Friedman. Rather, I’m returning to the Cup because of the World Yacht Racing Forum held last week in Monaco.

I’ve read some rather sinister interpretations of what this event was all about, i.e. that it’s intended to rival ISAF as an organisational body for sailboat racing. Not yet. Right now, this is simply a conference for those involved in professional sailing; a place to network, air some dirty laundry, vent some spleen and generally discuss the issues affecting the sport.

Number one amongst those issues is the America’s Cup, while close behind is bringing some order to the chaotic multiplicity of events besetting sailing - Nick Fry, CEO of the Brawn GP F1 team, and keen amateur sailor, described it succinctly as, ‘a bugger’s muddle’.

If ISAF doesn’t get its butt into gear on this issue, the Forum may well become the place where the first plots are laid to rival ISAF’s administration of the professional sport – but that’s both another topic and, I suspect, a year or two down the track.

So, while the Forum’s organisers had scheduled a discussion on governance, it was the America’s Cup that had the headline grabbing final session – the Russell and Brad show - both Coutts and Butterworth made a presentation, and then joined a panel for a debate.

Most readers will know that the pair are old friends, and they made it quite clear to the gathering that nothing in the last two and a half years had changed that - by turning up more than a little worse for wear after a big session the previous night. The sub-text being: it ain’t our fault, we’re still mates.

The event has been reported elsewhere and I don’t intend to go back over that ground. Rather, I want to return to the questions asked by my previous blog; how do we stop the America’s Cup getting derailed like this again? And if we can’t, can we build the professional sport without it?

The Forum shed some light on the first part of this problem, at least if BMW Oracle win, with Russell Coutts mounting a defence of the ability of the Deed of Gift to manage the Cup; ‘…Mutual Consent, the two most beautiful words in the Deed of Gift.’

And in his latest article, Cory Friedman argued that there’s no need for any change, the Deed of Gift will do the job; 'New York’s courts have demonstrated that the Deed is just fine as it is…’

I beg to differ; while we may have got the right answers, it’s taken nearly three years to get a match that should have been held less than a year after the 32nd Cup. And in that time, the impact on people and businesses has been huge. Even those involved with the competing teams have had to live with a level of uncertainty that most of us would find unacceptable – no idea which school the kids are going to be in next week, never mind next year.

Formula 1 teetered on the brink of a bust-up and an incredibly damaging split last summer, but had the mechanisms in place to bang heads together, and the whole thing was settled in a matter of weeks. In comparison, the Deed of Gift and the New York courts don’t seem like much of a management system to me.

I still think we need to put a mechanism in place to prevent this kind of complete breakdown, on occasions where there is no mutual consent between the defender and challenger.

Russell Coutts did go on to allude to this issue in his presentation, saying that their legal advice was that changing the Deed of Gift to try and get a solution would be costly, time-consuming and not necessarily successful – any solution would have to reflect the desires of the original donors. It’s far from guaranteed that the court would look favourably on a proposal for, let’s say (my example) an independent dispute resolution body.

There is another way, which Coutts explained afterwards, and that’s using a commercial contract (with a massive financial penalty) that forces certain conditions for the defence of the 35th Cup on the winner of the 34th, when they enter the initial contest. Those conditions might include preservation of the same independent management system, along with clauses that roll the whole thing onto the 36th and 37th matches, and so on.

I’m no lawyer, but I suspect that there are still no guarantees that this won’t end up back in front of the New York judges. Nevertheless, it would go a long way as a holding action, until the court might be convinced to put something more permanent in place.

So far, so good, but what if Alinghi win? Brad Butterworth didn’t mention the issue, I didn’t get the chance to ask him about it afterwards, and his protestations that they would seek consent with the challengers on the future seemed a little feeble to me, at least in comparison to Russell’s. But then, I could be inaccurately pre-judging Alinghi on past history, or it could have been that Brad was struggling more with his hangover…

What of the hope that I expressed in the previous blog; that a united challenger group could hold out for long-term, structural change if they stuck together? Paul Cayard left the Forum to try and get agreement on a new set of rules for the 34th Cup, before either Alinghi or BMW Oracle win the 33rd, and self-interest makes them a good deal more entrenched in their views.

I wish him luck; personally, I didn’t detect a great deal of real, heart-felt mutual consent – Butterworth professed Alinghi’s preference for multihulls in the next Cup, while Coutts and BMW Oracle seem to want a return to monohulls. The rest of the potential challengers didn’t seem much more in agreement, but you can judge for yourself in these clips on the different issues; where and when, the type of boat, and a protocol for the 34th Match.

I suspect that the way that this will play out is that both Alinghi and BMW Oracle will pick a compliant Challenger of Record, and set up the next Cup in their own image. If BMW Oracle win, it may well include a solid plan for a long-term fix to stop this happening again, with some sort of independent professional management put in place. If Alinghi win, it probably won’t…

But I’ll finish by returning to my second question; if we can’t stop the America’s Cup periodically blowing up in our face, then can, or should, sailing try to build the professional sport without it?

The answer from the World Yacht Racing Forum is that many people already are – Mark Turner’s OC Group and Knut Frostad and his team at the Volvo Ocean Race are prime examples of talented, energetic people trying to deliver sailing as a commercially viable sport, with or without the Cup.

But can those events prosper in a world where someone can come along and drop a couple of hundred million dollars on grabbing some of the biggest names, and much of the precious media oxygen that sailing is afforded in the mainstream?

Knut Frostad made the point at the Forum that one successful sailing event will drag the rest up with it – and I think he’s right. But that event needs to be a sailboat race, not a legal soap opera.

And many other sports survive with no shortage of rich guys spending to win; they own plenty of football, gridiron or baseball teams. But those sports have a strong governing body in place to protect the commercial viability of the game.

So whatever happens, or doesn’t happen, in Valencia in February, I suspect that governance will still be a very hot topic at next year’s World Yacht Racing Forum – both for the America’s Cup, and the sport as a whole.

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