Another Busy Week Going Nowhere…

Everyone who had no idea what a Tolling Agreement was until this week raise their hands. I guess that’s most of us. Since we left our sailing soap opera with a post last Friday, Tolling Agreements have gone from a dinky little new phrase to chuck around in the pub, to being central to any likely settlement of the future of the America’s Cup.

A Tolling Agreement, it turns out (I’ve been reading Cory Friedman Part 19…), is the legal way of stopping the clock on an event (building a nuclear plant, flooding a valley to build a hydro-electric dam, running the America’s Cup… all the normal stuff) while the legal action proceeds to a conclusion. Such an agreement was suggested by Justice Cahn way back in September last year, at the first hearing in the New York State Supreme Court. Both the Golden Gate Yacht Club (GGYC) and the Societe Nautique de Geneve (SNG) were in general agreement on the idea at the time – GGYC apparently even did the subsequent paperwork and signed an offer that... SNG rejected. So nothing exists in print, and as we all know, a verbal agreement isn’t worth the paper it’s written on.

Or maybe not…

The parties met before Justice Cahn on Wednesday, April 2nd, to try and settle the matter of the date of the 33rd America’s Cup match. And the account of that hearing forms Part 20 of Cory Friedman’s opus (odds on Cory laying down Part 60 around this time next year?). It does seem from reading this that GGYC have turned the straight-forward absence of a tolling agreement into a dog’s dinner of an argument about why the match should be in October 2008. The only motive for this that I can think of - rather than going for the jugular and insisting on a match according to the original challenge dates of July 2008 - is that they won’t be ready by then either. As to the rest of what went on at the hearing… Read Friedman’s account.

At the end of it all, Justice Cahn decided that he couldn’t decide at the hearing, and I’m not surprised, given the plethora of arguments and rationales for the various dates/hemispheres. There’s a rumour going round that he will issue a judgement in a week or two, but whether that gets us any closer to the 33rd America’s Cup (never mind the 34th) remains to be seen. There is still plenty of legal golf left in this hole. SNG can still drag the whole damn thing down to the Appellate Division although, as in 1988, that may not stop the Defender having to sail a match in the meantime. But the venue of that match, the rules that apply to it, the legality of the Challenger’s boat could all still be the subject of further court action… This is getting old isn't it?

If you want to read the reactions of either Alinghi or GGYC/BMW Oracle to all this, click on the links. But frankly, you’ve got better things to do, like... oh, you know... going sailing?

Meanwhile, the sailing team training that we reported on last week proceeded less than smoothly for Alinghi, who managed to flip Alain Gautier’s trimaran, Foncia, over in the Atlantic. The sound of hollow, Schadenfreudean chortling echoed around the world (discreetly - as two of the guys were airlifted ashore to hospital – no serious damage). But Alinghi fronted up with a decent press release (this one is worth reading), in which Ed Baird talked through the capsize, which happened while they were bearing away. Thierry Martinez was there to record the event in glowing colour.

If I were a crueller man, I would have found a picture of Ed standing on the upturned hull of Foncia and captioned it… ISAF Sailor of the Year. Then I’d have found a picture of Rohan Veal going Mach Ten in his foiler Moth and… And you can guess the rest, but it’s a way cheap shot. None of this is Ed's fault. As far as I know.

BMW Oracle Racing were having a more successful time of it, training on Groupama 2 with Franck Cammas. The Groupama website told us that Russell Coutts, John Kostecki and Jimmy Spithill had all been sailing with Cammas' and some of his crew. They kept it upright, and will move onto match racing in 60 foot multihulls next week…

Times are less entertaining for all those other teams that announced their planned participation in America’s Cup XXXIII way back in the halcyon days of last summer. The sound of slamming doors and keys turning can be heard all over Valencia. There are rumours of another round of retrenchment at one of the teams, while United Internet Team Germany shutdown on schedule on the 31st March with the somewhat mixed message that they plan to… ‘continue its previous, trustful and successful work in the 34th America's Cup on a basis of a new protocol / rule’. While simultaneously… ‘The contracts of all team members are discontinued and the base in Valencia will be closed for the time being after March 31 2008.’

This is presumably the death of the circuit of regattas proposed for this summer (in the old version five boats) that the German management had been working hard on. You can draw a couple of conclusions from this: if it doesn’t have official America’s Cup racing stamped on it, sponsors aren’t interested. In which case you can forget all those ideas about telling Alinghi they can keep the trophy and starting up the Louis Vuitton Cup instead. Or maybe this credit crunch thing is making life a little tough for the sponsorship hunters right now. In which case, perhaps it’s good that we’ve got an excuse to keep everyone off the water for a couple of years (decades?) till the good times roll again…

Meanwhile, the sailing teams are sticking together as much as they can, we’ve previously mentioned that the core Team Germany squad will be racing the TP52 Platoon (renamed Platoon powered by Team Germany). And on Wednesday, Valencia Sailing reported a press conference at Desafio Espanol, where they announced that they too would be sailing TP52s, along with a GP42 campaign this year. If there isn't some light at the end of the Cup tunnel soon, where might these teams turn next for some action?

And it seems that on the same day that CNEV’s (remember them, they used to be Desafio's yacht club and the Challenger of Record) lawyer was apparently up before Justice Cahn, Desafio were also announcing that they will now be representing Bilbao’s Real Club Maritimo del Abra. There is a lot more on this if you follow the Valencia Sailing link.

But that’s plenty enough for me…

Mark Chisnell ©

One Small Step for Alinghi…

Might be a giant step for America’s Cup racing – or it might not.... Alinghi appeared to blink first in their stand-off with Oracle Racing over the Protocol for the 33rd America’s Cup, when on Friday they announced that they were making some changes to the disputed Protocol, after discussions with the Arbitration Panel and those competitors that have already entered.

The Société Nautique de Genève (SNG) and Alinghi’s announcement came with an appeal to BMW Oracle Racing and the Golden Gate Yacht Club (GGYC) to lay down their weapons – the court case due to be heard on the 22nd October – and enter the event under the new Protocol. They reckon that the changes address many of the issues raised by GGYC, and Alinghi skipper Brad Butterworth referred to recent discussions with Russell Coutts, Oracle’s skipper.

The changes to the Protocol are:

The power to disqualify a competitor has been clarified so that should a competitor refuse to be bound by the Protocol, they now have recourse to the Arbitration Panel before they can be thrown out.

America’s Cup Management (ACM) can now only refuse entry to the event on specific grounds – such as capacity at the venue.

There are changes to the power of ACM to amend the Protocol in relation to the Arbitration Panel, and these changes must now be subjected to Arbitration Panel approval first. ACM no longer have the power to remove members of the Arbitration Panel.

The ‘neutral management’ has been changed so that the Fair Sailing rule is extended to apply to all matters directly related to the regatta.

If you want to decide for yourself if this will keep BMW Oracle from the court, they list their issues with the 33rd Protocol in their media backgrounder here...

Or you can cut to the chase and go straight to an article on the Guardian website, where Tom Ehman (Head of External Affairs for BMW Oracle Racing) is quoted as saying that ‘We welcome some new points, but the changes are largely cosmetic and do not address the central issues.’ Ehman added that GGYC will not be withdrawing the court case on the basis of these amendments, and they want to negotiate a settlement directly with SNG.

So it looks like we will rumble on towards the day in court for now - whether or not this first step closer to a negotiated settlement will be followed up with more remains to be seen. Presumably GGYC are now in a better position to judge the strength of the SNG case, as they had to file their papers with the court last week. Alinghi appear to have posted these documents on their website here. As I believe I've mentioned before, if I wanted to read this stuff myself, I'd have taken law classes...

Meanwhile, United Internet Team Germany, one of those teams who have entered under the current Protocol, have got their man - Jochen Schuemann has left Alinghi to lead the German challenge. Schuemann had been sailing director at Alinghi for the last two Cups. But his absence from the race boat in the 32rd Match against Team New Zealand hinted at a coming departure. There's an interview with Schuemann on BYM.

Schuemann is joined by Jason Ker, the Brit who was chief designer at Team Shosholoza, the South African entry in the last event. Porsche and Audi have put their money down as sponsors, and the team has bought one of the Alinghi boats - SUI-91. There’s a report on the press conference on the Valencia Sailing blogspot.

And earlier last week, ACM doled out the 66.5 million euro profit from the previous America’s Cup. ACM take a ten percent cut as a management fee (this is after all the costs have been deducted from the gross of 240 million euros), then 45% goes to Alinghi, and the rest is shared between the challengers. ACM state that Emirates Team New Zealand will receive over nine million euros as the Challenger, while those teams that didn’t make the semi-finals will be making do with just over a million each - not quite enough to hire a top flight skipper then...?

Mark Chisnell ©