As the 22 October date for a court hearing in the New York Supreme Court drew ever closer, the verbal tit for tat battle over the future of the America's Cup stepped up a gear. While there have been reports of the disgruntled billionaires Ernesto Bertarelli and Larry Ellison trying to sort things out over the phone, there has been little sign of progress in public.
At the end of September, Alinghi conceded some its self-bestowed power by offering to withdraw some of the more outrageous clauses in the Protocol for the 33rd Cup, the document that lies at the centre of this furore. Some of these concessions amounted more or less to a confession, a confession of just how one-sided this Protocol had made the Cup in the Defender's favour.
Holding out the olive branch, Bertarelli made his plea to Ellison's team: "I would again appeal to BMW Oracle Racing to enter the 33rd America's Cup as a legitimate challenger. It has been demonstrated that dialogue is possible for the better of this event and it should be noted by them that many areas of their concerns have been addressed.
"We would also like BMW Oracle Racing to consider that their action is hindering the opportunity for other teams to enter the competition, and harming the ability of existing competitors to generate sponsorship income and properly plan their challenge."
However, for BMW Oracle and the Golden Gate Yacht Club, the concessions went not nearly far enough, and the Americans swiftly issued a retort that detailed their many remaining objections. Recently appointed Kiwi skipper, Russell Coutts (the architect of Bertarelli's first Cup victory in 2003) commented: "The previous Protocol worked perfectly well. What the other side has completely failed to do is explain why any of these changes are necessary, especially as they undermine fundamental fairness."
For many months, Ellison's objections to Alinghi's steamrollering Protocol have sounded like a voice in the wilderness, with seemingly no other challenger showing the courage to support BMW Oracle Racing's protest. It has emerged recently however that seven of the challengers from the last Cup did submit a joint letter of protest to Alinghi just a fortnight after the 32nd Cup concluded.
The letter, now known as Exhibit 2 because it is expected to be used in the New York court case, voiced the shared concerns of Emirates Team New Zealand, Luna Rossa, Mascalzone Latino, United Internet Team Germany, Areva Challenge, Victory Challenge and BMW Oracle Racing. Mascalzone boss Vincenzo Onorato has since taken a further step. With two weeks to the court hearing, his team Mascalzone Latino and the Reale Yacht Club Canottieri Savoia submitted an amicus curiae brief to bring their views to the attention of the New York Supreme Court.
Mascalzone's general counsel, Alessandra Pandarese commented: "It is unfortunate that the America's Cup is in court once again, but no one, especially the Defender, can be surprised that this has happened. The Protocol, promulgated by SNG with Club Náutico Español has essentially eliminated the role of the Challenger. In so doing, the Protocol contravenes the core terms of the Deed of Gift that created the America's Cup, which provides that the Cup shall be ‘a perpetual Challenge Cup'."
To date, Bertarelli has refused to submit to mediation, but instead has sought to win over public opinion and the media with a charm offensive, making personal appearances in New York and on the west coast of the States. There is no doubt, in person he is a charming individual and it is hard not to take a liking to the man. But the weight of public opinion remains against him. He blames Ellison and Coutts for painting such a villainous picture of his behaviour. "They are painting us as the evil empire," said Bertarelli, who argues that the Americans are the real culprits. "I think these are two greedy individuals. They say I am trying to hold on to the America's Cup forever. In 10 years, I hope I am not a part of it anymore."
It's difficult to see how Bertarelli can pin the accusation of greed on Ellison and Coutts, when most observers would say it was Bertarelli and Alinghi's grossly one-sided Protocol that lies at the root of this dispute. It has loaded the Cup so heavily in the Defender's favour as to make the America's Cup by far the most unbalanced contest in world sport. To allow yourself as Defender to compete in a challenger series, where you could race hard against one opponent and race soft against another, thereby giving yourself the chance to influence the outcome of the series. How, in anyone's understanding of sport and fair competition, is that justifiable?
One justification is that with the new 90-foot boats which Alinghi have selected for this contest, they deserve competition to help get them up to speed. And yes, that is some justification, but when you control the whole shooting match there are other ways of creating those competitive opportunities without muscling in on the challenger series, where you could have an enormous effect on a fair outcome.
It's such a shame it's had to come to this. Of course there is some soap opera entertainment to all of this, watching the world's 11th wealthiest individual take the world's 76th wealthiest individual to court over a yacht race. But it doesn't cast the sport in a good light.
Bertarelli and Ellison are both great sailors in their own right. Ellison was a long-time competitor in Maxi yacht racing before Chris Dickson talked him into the alluring world of the America's Cup. Bertarelli is a huge fan of sailing at all levels, racing 30-foot multihulls on Lake Geneva and competing in the Rolex Farr 40 World Championships (an event he won in 2001 with Russell Coutts, although it was Vincenzo Onorato who has won the past two Farr 40 Worlds). Bertarelli has even bought himself a £9,000 Bladerider Moth, a 11-foot singlehander dinghy that hydrofoils above the water.
So there is no doubting the man's genuine passion for the sport. He commented recently: "What I'd like to do is take advantage of a clear opportunity for sailing. I am engaged in trying to make sailing something more than for wealthy individuals." That indeed is a noble aim for the sport, but right now the only people that are getting any enjoyment out of the America's Cup are the lawyers.
