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10:11 PM Fri 14 Nov 2008 GMT
The immortal words of REM's hit 'The Great Beyond' seem oddly removed but relevant to the past 17 months of the America's Cup:
'I'm pushing an elephant up the stairs
I'm tossing up punch lines that were never there
Over my shoulder a piano falls
Crashing to the ground'
For most of those 17 months the protagonists have made the occasional lurch with their side of the grey beast. But moving this particular pachyderm up the America's Cup staircase has proved rather difficult.
Punchlines abound. This week more so than most, with release and counter-release all designed to maintain the high ground in the PR war, given that the legal war is now being put to rest in the Appeal Court of New York State.
For BMW Oracle Racing and the Golden Gate Yacht Club, the piano crashed to the ground with the surprise decision in July 2008 from the Appellate Division of the New York Supreme Court, in favour of Team Alinghi and Societe Nautique de Geneve.
First signs of movement in the 17 month impasse came on Monday with the announcement from the Competitors Meeting that there had been some changes agreed to the vexed Protocol.
However as it looked like the elephant might indeed get a foot up a stair, came the news that not only had BMW Oracle Racing not been invited to the meeting, another competitor, Mascalzone Latino, had been excluded for refusing to sign a non-disclosure agreement as a prerequisite to attendance.
For BMW Oracle Racing's Tom Ehman, this is his second time through the New York Court system with the America's Cup. The first was in the Mis-Match, which followed the 1987 America's Cup.
Is a settlement between the two sides that far off? Sail-World spoke to Tom Ehman, in San Diego, for his view of the state of the play.
Essentially there are three substantial issues in contention. First is the appointment of regatta officials and the Arbitration Panel itself, along with the jurisdiction of the jury which can be overruled by the Arb Panel.'
'I will explain it from the general to the specific', says Ehman. 'First, we feel that it's unfortunate that we and Mascalzone Latino were excluded. But we are heartened and encouraged, as you will see in Russell (Coutts') interview, by some of the positives that came out of the meeting. There appears to finally be some willingness to move on some of these points. For example, we are pleased to see that they will use ISAF officials. They didn't say who was going to appoint the officials, but if they are going to be appointed unilaterally by Alinghi, the Defender, then that's not fair.
'We have always used ISAF officials in the America's Cup, going back to 1974, they were appointed by mutual consent, and that's the way it should continue to be done.
'A major sticking point remains and that is the Arbitration Panel. Alinghi said in the press release that they would be willing to add two members to a Panel, of which they've already chosen three members - that makes it 3-2 rather than 3-0'.
'The point remains that adding two members to their three members already appointed does not come even close, in our view, to solving the problem.
'As you know, the standard operating procedure for selecting the Arbitration Panel is to have the Defender pick two members and the Challengers pick two members and then those four pick the fifth member. That's the way it was done in New Zealand for the 2000 Cup, the 2003 Cup and so on. And that would be fair. That would be correct.'
It should be noted that in the 32nd America's Cup there was no Arbitration Panel for racing decisions - the International Jury had the complete and final right of Decision. For 2010 and the 33rd America's Cup, for the first time in America's Cup history, all decisions of the International Jury will be appealable to the Arbitration Panel. That Panel, as it currently stands, has no ISAF certified International Judges on its membership.
Additionally the power of the Defender in what has previously a 50/50 decision-making process, causes BMW Oracle Racing real concern.
'They can still change any of the rules at any time and still impose new rules or restrictions on the competitors, requiring only the agreement of their compliant Challenger of Record,' says Ehman.
'Remember after Justice Cahn's ruling CNEV (Club Natutico Espanol de Vela) gave a press conference where they said, 'CNEV was formed in secret at the request of ACM.' Those are their words not mine.
'Alinghi and their Challenger of Record can still amend any of these Rules at any time and still impose new Rules.
'Any serious challenger would not - should not - be comfortable with that,' Ehman adds.
'Our position overall remains clear. We have said any number of times over the last year, in fact since we filed our challenge: adopt fair and competitive rules similar to AC32. We aren't saying it has to be the same format of competition. '
BMW Oracle Racing have dropped their opposition to the 'one new boat' rule proposed as a cost reduction measure for 2010. They are also more flexible on the Defender sailing in the Challenger Selection series for the first time in America's Cup history.
'If they want to do one boat, we can deal with the one boat issue and we even think there are some good ideas there. But it cannot be at the expense of the quality. The Challenger's Selection Series cannot be affected by us going to this one boat situation and having the Defender sail in it to the bitter end. The Defender could determine who ends up racing in the final,' Ehman told Sail-World.
'These issues need to be discussed, not just by Alinghi and their entered Challengers, but by the entire America's Cup community. Remember it's not just ourselves and Mascalzone who were not there last weekend in Valencia. Team Germany was not there, Luna Rossa was not there, K-Challenge was not there, and Victory Challenge, while present, has been neutral and did not sign that letter.'
Many would have the view that much of the argument over the 33rd Protocol is largely an exercise in semantics.
Take, for example, the issues raised over the composition of the Arbitration Panel and its powers, knowing that in previous America's Cup, very few decisions have ever been referred to the Arbitration Panel, and those that have were on issues not directly arising from the racing.
Ehman disputes this view. 'Remember, unlike previous Cups, in this next Cup the Jury decisions are all appealable to the Arbitration Panel. That's never been the situation other than last time when, in fact, the Jury was the Arbitration Panel - but that was a different deal.
'There was no appeal to another body controlled by the Defender. That's what they set up here. So there is a basic fairness issue that remains and other points that we have communicated over and over again.
'Again we are encouraged that there seems to be some discussion and some movement. But we are disappointed that they will not sit down with all of the stake holders, which has always been done in the past. Always.
'As long as I've been involved in the Cup you never did things with the Non Disclosure Agreements until well after the Challenger entry deadlines have passed, which is not the situation at present as entry is still open.
'All meetings included all of the prospective Challengers. In fact, even after you had an initial challenge, and went for another year, you always invited all of the Challengers to sit and discuss things. Or, when you had multiple Challengers because you were trying to get everyone's best ideas and you are trying to reach mutual consent. That, we hope, is the direction the Defender is leaning towards, trying to be a little more open and a little more inclusive. But time will tell.'
It would appear that some of BMW Oracle Racing's objections would be removed if the right of appeal for International Jury decisions were removed, and the Arbitration panel reverted to its previous role of determining questions outside the actual America's Cup and then Louis Vuitton Cup racing.
Ehman: 'That would certainly make us a lot happier. But at the end of the day you still have to have a fair Arbitration Panel. The Arbitration Panel is the Supreme Court of the America's Cup. We all sign a document saying, 'You will not resort to the courts. You will be governed by this Arbitration Panel.' So it has to be fair, as in any Arbitration situation where both parties are parties to its Appointment. Not have it handed to you and say, 'This is our Arbitration Panel and this is the one that's going to decide everything.''
'That's certainly a major sticking point. And it remains so despite what they said in their press release earlier in the week.
'It's not just the Jury Appeal process. We don't understand why that is in the Protocol at all - race juries, international juries, at any other event deal with racing rules and racing issues. Their decisions are final. They are not subject to appeal. Why would you appeal a jury decision? Why would you have that? Other than to give yourself a second bite of the apple with the body you had appointed. It is a major point.
'The good news is there does appear to be some movement. It's our fervent hope that somehow they will agree to sit down with all the other teams, not just us, and talk about the rules.'
In an event like the America's Cup, because of the commercial issues that are part and parcel of the regatta some stricter rules are required to ensure compliance with matters such as event advertising and sponsorship to ensure that organiser obligations to sponsors can be met.
Ehman agrees. 'You do need strict rules and we had them last time. And we have had them for as long as we have had advertising rules. The point is that when you are dealing with ISAF, the Olympics, or the World Championships, you have an independent organising authority.
'In the America's Cup, for the first time, the Defender wants to run, control, and decide everything about the Challenger Selection Series. As you know, that's never happened before. If you've got the Defender deciding all of that, you are going to have some conflicts and problems. Challengers need to have the ability to set their own programs to some degree.'
This moves into the territory of whether it is better to have the America's Cup, and what was known as the Louis Vuitton Cup, controlled by one event management organisation or whether the pre-1995 style operation of two distinct regattas and organisers is a better way.
The thinking behind the single event is that it is a much sounder commercial proposition, as the Louis Vuitton Cup has underscored and it has a much better chance of attracting media attention. Combining the two under the one umbrella organisation provides the best of both worlds. Remember, too, that the current event management organisation, America's Cup Management, bears the whole financial risk of the event, and splits profits with Challengers.
Ehman accepts all that. 'Last time, we sat across the table as the Challenger of Record and we agreed to do just that - to have a central organising committee, but it was done under Mutual Consent. All decisions were made under Mutual Consent.
'This time the Defender wants to decide everything. So there is a fundamental issue that remains the major sticking point. As Russell said in his interview about Alinghi, they can't just try to own and operate the entire America's Cup. It's a Challenger's Cup.'
In summary, the major points still at issue would seem to be the selection and jurisdiction of the Arbitration Panel; the lack of Mutual Consent on regatta conditions and selection of officials; and the ability of the Defender to introduce new Rules during the course of the regatta.
Ehman agrees these are the basic points still outstanding. 'We have a longer list of points in contention, but we don't see them as being difficult to sort out. When we hosted a Challengers Meeting in Valencia last year, the 12 Challengers didn't see those issues as being too difficult to sort out either.
'For example, the Defender should be able to race in the Challenger Selection Series. Larry has said he agrees with this and Russell said it's a good idea for cost cutting. But the Defender should not sail in the semi-finals or the finals. They can sail in the under-card, but they can't be able to sail up to the bitter end because they can affect the outcome. That would take out some of the mystery and mystique out of the America's Cup.
'Another small but important point is the fair competition clause. Remember we had a similar clause in the last protocol, and it has to be applied to everybody: the officials, the sailing jury and the arbitration panel. There are some other points like that.'
All involved in the America's Cup should be well aware that if the 33rd America's Cup is to be sailed in 2010, valuable time is burning while the current debate continues.
'The challenge - the court case - was a defensive reaction to what we saw as very unfavourable and anti-competitive conditions. We said all along that we would negotiate even up to and after the court case. If they will not sit down, and we go to court for this final appeal and win that, we will still try to sit down and negotiate a proper mutual consent multi-challenger America's Cup.'
by Richard Gladwell, Sail-World
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