12:55 PM Sat 17 Jan 2009 GMT
 | | 'The 12Metre, Kiwi Magic, sailed by the winning 1992 America's Cup afterguard of Bill Koch, helmsman, Buddy Melges, tactician, Vincent Moeyersoms, strategist'
© Rolex/Daniel Forster |
Two time America's Cup competitor and winner, Bill Koch, has been successful in a bid to have an amicus curiaeletter accepted by the the Court of Appeals in the State of New York.
At the same time the Court rejected letters from two other parties who had supported the position adopted by the current Defender, Societe Nautique de Geneve (SNG). The two teams - Team French Spirit (FRA)and Team Shosholoza (RSA) had their motion to file additional amicus curiaebriefs denied.
Koch was a former winner and Defender of the America's Cup in 1992 for he San Diego YC. In 1995 he opted to promote the Mighty Mary, all womens team. He is a member of the America's Cup Hall of Fame.
Koch's letter gave tangential support to the submission put forward by Golden Gate Yacht Club. It underlines the practical reasoning for requiring a Club to have already held an annual regatta, and for that club, if it wishes to be Challenger of Record, to be organised as a yacht club.
The cut-off date for the lodging of amicus curiae letters was early January 2009, and Koch, through his attorneys has scored something of a breakthrough in having this letter accepted for considerably by the Court.
The bulk of the text is reproduced below:
Preliminary Statement
The America's Cup is the oldest and most prestigious sailing regatta in the world and the oldest active trophy in international sport. It predates the modern Olympics by 45 years. The America's Cup, which is a silver cup trophy, was first won in 1851 by the yacht America in a race around the Isle of Wight. After winning the Cup, the six owners of the America donated the Cup to the New York Yacht Club in 1857, creating a charitable trust under the laws of New York that provided that the Cup would be a perpetual challenge cup for the friendly competition. between foreign countries. From the beginning, the Deed of Gift required that a Challenger of Record be an organized yacht club. Since 1857 there have been 32 America's Cup matches and in every single race, the Challenger of Record was an organized yacht club. Most of these yacht clubs had royal patronage.
Although the Appellate Division below found the requirement that a Challenger of Record hold an annual ocean regatta to be somewhat trivial, history indicates that it was an important requirement for the donors. In fact, status and grandeur of the Challenger of Record was so important to the donors that in 1882, after two challenges had come from yacht clubs situated on the Great Lakes, which resulted in racing vessels deemed to be 'crude in finish' and 'degrading to the standing of the competition'; the sole surviving donor, George Schuyler revised the deed to require that, in addition to being an 'organized yacht club' the challenger must have 'its annual regatta on an ocean water-course.'
The requirement that a Challenger of Record be an organized yacht club, also provides other benefits. It guarantees that a Challenger will have the experience necessary to negotiate a fair and competitive Protocol for the America's Cup; that the Challenger is a sailing enthusiast motivated by the challenge of competing in a world renowned sailing event, rather than the financial incentives of holding an international sporting event. It ensures that the America's Cup will remain a true sport, with the most prestigious teams racing for organized yacht clubs that have real members who can rally behind their team. The requirement secures a level of competition that drives innovation and captivates public attention.
Now, more than a hundred and fifty years after the America's Cup began, the current Defender and trustee of the Cup, Societe Nautique De Geneve (SNG), has disregarded the terms of the Deed of Gift and seeks to trample tradition and tarnish the prestigious reputation of the America's Cup by permitting a sham yacht club, Club Nautico Espanol De Vela (CNEV), to serve as Challenger of Record for the 33rd America's Cup. The objective of SNG and its team founder, Ernesto Bertarelli, is to use CNEV to make money and circumvent the self-dealing charitable laws of New York. CNEV is not a yacht club. It has no vessels, no members, no physical facilities (other than the base facility of its racing team) and has never held an annual regatta. Prior to September of this year, CNEV had no website, no telephone number or contact information. In fact, it was incorporated just days before it submitted a challenge to SNG.
In truth, CNEV is nothing more than a federation of sports clubs and individuals who promote the sport of sailing. The sole purpose of its creation was to ensure that the 33rd America's Cup would be held in Valencia, Spain. Because CNEV is not a bonafide yacht club, it cared little (or knew little) about negotiating a fair and sportsman-like race for the America's Cup. Instead, its prime focus was to ensure that the race would be held in Valencia, and in exchange for that guarantee, CNEV allowed SNG to create a one-sided Protocol that left SNG with total control of the competition.
The result of this exchange is a plan for the 33rd America's Cup that not only violates the express language of the Deed of Gift, which requires the Challenger of Record to be an organized yacht club holding its annual regatta on an ocean water-course, but one that also fails to comply with the spirit and intention of the Deed of Gift. Should the lower court's decision stand, any organization, whether a yacht club or not, could be a Challenger of Record. The outcome would be a rapid demise to the grandeur and prestige of the America's Cup. The America's Cup would no longer be a competitive event that drives innovation and captures the public's attention. The event, as it exists today and as it was envisioned by the donors of the Cup, would die.
ARGUMENT
Mr. Koch supports the argument asserted by Plaintiff/Appellant Golden Gate Yacht Club that the intent of the donors, as expressed in the Deed of Gift, was that only a bonafide yacht club could qualify as Challenger of Record. Not only is this requirement expressly set forth in the Deed of Gift, but the requirement is necessary to maintain the splendor and glory of the America's Cup.
As a practical matter, a requirement that a challenger be a organized yacht club that has held an annual ocean regatta, ensures that the challenging entity will be independent from the Defender and will have the experience needed to negotiate a Protocol for the America's Cup that will result in a competitive showing of true sportsmanship. This competition fuels innovation and fortifies the prestige of the America's Cup.
If the decision of the Appellate Division stands, and CNEV is permitted to serve as Challenger of Record for the 33rd America's Cup, the prestige and reputation of the Cup will be soiled. The lower court's decision opens the door for a Defender to invent sham challengers (as SNG did here) so that the Defender may continue to control the Cup. The result of this is that the Defender could violate the self-dealing provisions pertaining to charitable trusts of the state of New York and divert monies to itself.
The revenue generated by the America's Cup will create huge incentives for non-yacht clubs to lodge challenges simply to secure the event in their home city (as is the case here where CNEV was created solely to ensure that the 33rd America's Cup is held in Valencia). In its amicus curiae brief the City of Valencia states that the 32nd America's Cup had an economic impact of 6 billion Euros and created more than 60,000 jobs. The financial temptation to host the Cup creates a perverse incentive that would certainly pervert the motive of a sham challenger. Absent independence from the Defender and the experience of a organized yacht club, the challenger would be unable to negotiate a fair Protocol that maintains the high level of competition upheld by the America's Cup Defenders and Challengers of Record since 1851.
Moreover, if a challenger is not a bonafide yacht club - if it lacks members, a physical location and an annual regatta - sailing enthusiasts cannot join the challenging club, and rally behind their team for the America's Cup. The nature of the event would change. In the end, public interest in the America's Cup would greatly diminish, and along with it would go sponsors and syndicates, which are necessary to the survival of the Cup.
A successful and competitive America's Cup requires the merging of management, technology, fundraising and teamwork. The America's Cup is as much about technology as it is sportsmanship. The boats that compete in the event have always been on the cutting edge of technology. The race introduces to the world the innovations in sailing hydrodynamics and aerodynamics. Technology is paramount. It is this innovation that captures the public's attention and drives the competition. Although the typical America's Cup match lasts 2 1/2 to 3 hours, a sixty second win is consider a 'big win'; even a five second difference in speed is enough to win the event. This tight margin fuels innovation in technology and can only be maintained if the competition is held on a level playing field.
Maintaining cutting edge technology also requires experience. The experience to negotiate a competitive course, to design a state-of-the-art boat, to understand the foundations of competitive sailing and to manage a staff of 50 to 100 people that includes marketers, fundraisers, public relations personnel, maintenance crew, sail makers, yacht designers, meteorologists, engineers, computer experts, retail staff, rules experts, housing staff, coaches, tender operators, sailors and more. By requiring a challenger to be an organized yacht club that holds an annual ocean regatta, the Deed ensures that all challengers will have a threshold level of experience to produce an America's Cup even worthy of its history.
All of this requires funding. There is a direct correlation between money spent and boat speed. Most racing syndicates must rely on sponsorship to fund their quest for the Cup. Sponsors, who look for a return on their money, are motivated by public support and attention. The public will not be enticed to watch a one-sided race that favors only the Defender and a 'no-name' challenger will not have the fan-base to draw a large crowd. Absent public interest to draw in sponsors, competitors will be unable to raise the money necessary to fund the technological innovation and talent needed to win the America's Cup. And a sponsor will be less likely to back a challenger facing an unfair Protocol that guarantees a victorious Defender. Without a cutting-edge, fair and competitive event, public interest in the America's Cup will further dwindle, funding and innovation will cease and the world's oldest and prestigious international trophy sport will die.
Accordingly, the Appellate Division decision not only conflicts with the intent of the donors and the plain language of the Deed of Gift, the practical result of its decision would forever change the America's Cup from a competitive and prestigious match between the most prominent members of the sailing community, to an unfair and degrading race unjustly dominated by SNG.
Koch requested the Court to reverse the majority decision of the Appellate Division and find that CNEV is not qualified as a Challenger of Record under the Deed of Gift for the America's Cup.
by Richard Gladwell, Sail-World
| Click on thumbnails to enlarge and find more photos:
Lord Howe Island Windy Point, NSW
Foiling - Wind Wing Foilboards
Kitesurfing - Kites
Stand Up Paddle - Wave & Cruising Boards