Team NZ not clear of legal woods on America's Cup

Emirates Team New Zealand team members aboard NZL92 return to the Port America`s Cup after the last race of the 32nd America`s Cup.
Emirates Team New Zealand / Photo Chris Cameron ETNZ ©
Emirates Team New Zealand’s move back into the accepted Challengers’ fold has drawn some interesting reaction and comment over the past few days.

Emirates Team New Zealand’s move back into the accepted Challengers’ fold has drawn some interesting reaction and comment over the past few days.

One of these was the remark on Radio Sport, by Alinghi skipper, Brad Butterworth, that they (Team New Zealand) 'have their problems with the Arbitration Panel, and still have, when they sued Ernesto and the Yacht Club when they realised the Cup was not going to be in 2009.'

Asked to explain that comment, and the clear implication that Team New Zealand may still get hauled in front of the Arbitration Panel, and penalised for breaching the 33rd America’s Cup Protocol because the had taken legal action, and not accepting the prescribed adjudication process, Alinghi legal counsel, Hamish Ross responded: 'I believe what Brad was saying is that they need to 'wash themselves of their sins', for their breach of the Protocol.

'It may be possible at some time in the next America’s Cup regatta for another challenger to put pressure on them during the competition by raising the question of their breach again, a tactic that has been used in the past. There are mechanisms in the Protocol to prevent that from happening, such as requiring the complaint to be filed as soon as they were reasonably aware of the incidence. So Team New Zealand would have some defence.

'At some stage they have to sit down and work out the best way to get this issue off their plate.'

In the past such transgression have been used by competitors to 'needle' others at a particular point in the regatta, and can prove very distracting affecting on the water performance. If bought such an action would be hard to deny. It is unlikely that there would be no penalty on the basis of the precedent this would set. Penalties could range from a small to significant points penalty, or a monetary penalty which could range from 'ice cream money' as levied by the 32nd America's Cup Jury for an infringement by Mascalzone Latino to something more substantial.

It is not Alinghi's place or any other party's place to give a waiver on possible action, as that waiver is not theirs to give. It cannot be binding on other parties, even if the Defender gave an undertaking not to indulge in such action.

The Arbitration Panel meets in the 2002 Louis Vuitton Cup. The Arb Panel has been reconstituted for the 33rd America’s Cup, and its chairman Prof Henry Peter (SUI) is second from left.
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Turning to the Competitors’ Meeting currently underway at the Société Nautique de Genève, it would seem that the new America’s Cup class may be around 80ft overall, and of a type that can be sailed outside the America’s Cup regatta. The class will be run by a class association which will set the class rules independently of any single challenger or the defender, thus removing some of the power currently exercised by the defender.

From other sources Sail-World understanding the design is believed to be similar in type to the TP52 class.

Between the current meeting and the next, scheduled for 11th November, a new rule will be drafted, circulated, discussed and amended. It is expected that the finished rule will be published early in the New Year.

The current meeting is being attended by 12 teams, of whom just five competed in the 2007 Louis Vuitton and America’s Cups.

Not in attendance are BMW Oracle Racing and Luna Rossa, who were both semi-finalists in the Louis Vuitton Cup, and Mascalzone Latino. None of whom have entered the competition as yet.

The way the America’s Cup is currently being run, the Competitor Meetings are only open to competitors who have formally entered, in contrast to previous America’s Cup years when such early meetings have been open to past America’s Cup competitors, entered competitors and teams seriously contemplating making an entry.

Ross explains the change of stance: 'We are actually making some firm rules here at this meeting, and there didn’t seem to be much sense in having the meeting open to a whole group of people who may, or may not be in the 33rd America’s Cup.'

Bribon, on which Team New Zealand have been campaigning on the TP52 circuit in 2008

On the question of flexibility and amendment to the current Protocol, Ross was of the view that all 'are given the opportunity to raise any issues they may have. Certainly these are discussed, and if that has the agreement of the meeting then Alinghi’s position is that things will change.

'The olive branch is still out to BMW Oracle to come and join the meetings, and raise the issues with everybody. If they can convince everyone that what they are saying is correct then obviously something will happen.'

'The Defender’s position is that they will not sit down with each team individually and negotiate a Protocol. We will only deal with teams who have made a commitment to enter.'

Some believe that view is oxymoronic in that to enter, a team must accept the published Protocol, and be bound by it.

Yet as soon as they enter the Competitors’ Meeting they are discussing changes to a Protocol they have stated they accept. An oft-stated view of he Defender is that 11 teams have entered and accepted the Protocol, believing that is proof positive that the document is not the draconian measure that some paint it to be.

Ross defends this situation by commenting 'The Protocol, is a living animal, that has evolved and changed. Last time it was changed 12 times, and similarly when the Cup was in New Zealand. It is just one of those things that when faced with new or changed circumstances, everyone just sits down and deals with them.'

'We are ending up with a situation where the rest of the world is on one side and BMW Oracle are on the other.

Before their announcement earlier this week that they were withdrawing their legal action against Ernesto Bertarelli, Team New Zealand were in the position that as an Entered competitor they were entitled to attend the Competitor Meetings – even though they had opted to take legal action against parties associated with the America’s Cup defender.

'Team New Zealand’s ability to attend the Competitor Meetings while in breach of the Protocol was open to question,' Ross responded. 'Certainly they had been advised that unless they dropped their legal action they would have to answer to the Arbitration Panel in terms of their breach of the Protocol. While the Meeting was open to entered teams, the decision at the time had been made that teams that were in substantial breach would not be allowed to attend that meeting. That is an academic issue now it has been resolved and there is no value in further dissecting it.

'We are now trying to address the second leg of the double, in terms of BMW Oracle. I just wish they could be a little more flexible in terms of their positioning, and understand that the defender and challenger of record cannot renegotiate the rules with each intending challenger, no past defender has ever done so and it does not happen in other major sports , but at the same time the defender has demonstrated considerable willingness to work with those who make a commitment to the competition.'

'We have had a dialog which hasn’t been successful. Their attitude has always been change it or we will keep suing. I hope they look at all the other teams, wishing to get on with the 33rd America's Cup and see that they are isolated in the sport for the action they are taking. They need to change tack and work from within the America’s Cup organisation rather than from without, or leave the rest of us to get on with sailing.'

'We live and hope.'

Alinghi have been consistent in refusing to acknowledge the offer from BMW Oracle Racing and other disaffected parties to use the Protocol from the 32nd America's Cup as a basis for the 33rd Match, a move which would resolve all legal action and get the America's Cup back on course and with and expanded and very credible entry list.

The way matters now st