Terminal blow for the America’s Cup?

Terminal blow for the America’s Cup?

Brad Butterworth talks about the latest legal situation

Was it coincidence or was BMW Oracle Racing's announcement of their appealing last Tuesday's New York Supreme Court ruling timed to scupper Brad Butterworth sharing the Alinghi party line to the assembled British press at an informal soiree held at Cowes' Royal Corinthian Yacht Club?
Following Alinghi/the Societe Nautique de Geneve successfully winning their appeal last week, the Appellate Court overturning all previous judgements made over the past year by Justice Herman Cahn, most in the know assumed that BMW Oracle Racing/Golden Gate YC would take up their right to take their case to a higher level.

And so BMW Oracle are to appeal the appeal and this will see the case reach the final and ultimate stop in the New York state legal system: the Court of Appeals. While five judges ruled on Tuesday at the penultimate step (the New York Supreme Court's Appellate Division), the Court of Appeals comprises seven judges, including, interestingly, Judge Carmen Beauchamp Cipatrick, most familiar with the America's Cup, having ruled previously on the 1988 debacle. The problem is that working its way through the Court of Appeals is a process that could take six to 12 months unless the lawyers can get the case expedited, as they have previously managed. Projecting this forward there is a worst case scenario of the next multiple-challenger America's Cup not taking place until 2013.

So were BMW Oracle/GGYC right to appeal? If you are a Cup team even a big player, such as Sir Keith Mills' TeamOrigin or Emirates Team New Zealand, then this additional delay possibly represents a terminal blow which will have a lasting consequence on the future of the Cup. However having got so far down the litigation route, the previous court voting only three to two in favour of last Tuesday's decision, then few expected Ellison and his team to let this lie.

And the irony of all this is that the entire sailing community, as well as both teams have come round to the idea that the 33rd America's Cup will be held in giant multihulls sometime during the spring or early summer next year – the main questions being when exactly (March or May 2009) and where? Not only this but BMW Oracle Racing are believed to be nearing the completion of their 100+ft craft while Brad Butterworth describes Alinghi's new steed as being half way there. "We have all the bits and pieces, but they are not stuck together yet." Presumably he means beams and floats rather than carbon fibre, Nomex and epoxy.

Ironically it seems that there are many members of the Swiss team, particularly within their design office, disappointed by winning the latest legal round on Tuesday. "The designers were quite upset by Tuesday's decision. God bless America!" quips the silver fox, continuing: "You can see how the designers get bored, especially with how the rule works and you fit into a little corner of it and they all get there and then it becomes like a Formula 1 team where you are just manufacturing parts and you are just trying to get that part as light and as strong as possible. The V5 boats got there. We were a little bit ahead of the other teams with the stability of our boat. But with a light air venue like Valencia was it didn't show up that much. But it was critical to winning the matches."

Even Butterworth, personally, is intrigued by a multihull DoG (Deed of Gift) match "I think there has been so much effort put into it, it would nice to see the multihulls go," he says. "I am interested in the boat side of it, but I absolutely hate the legal side of it. The boats themselves have gone to another level with the technology available to the Cup teams and with guys like Michael Richelson and Dirk Kramers, when they get to focus on these boats… And I'm sure Oracle is the same with their designers. The multihull thing has always lagged behind monohulls in terms of technology, but now it is like the space race. Our boat will be quite different and I'm sure their boat will be just as good. They are smart guys.

He also re-iterates his warning from earlier in the year: "If we were forced to just finish this thing [their giant multihull] and do the DoG match, then I am into it, and if you have one of them, I think it is going to be hard to turn the clock back. And the boats aren't cheap. We still have two big teams rolling along doing this thing. The rest of the teams don't exist really which is the pity of it all."

But given a choice Butterworth says he would probably prefer the America's Cup to be held in monohulls. "As a team I'm not sure. We pride ourselves in being a team, so we talk to all the members of the team. The designers and boat builders have done a great job to get us in a position with this multihull where we would have been able to line up in May, which is what we thought the date would be and have a DoG match with Oracle. That has taken a huge amount of effort and a huge amount of money and now that is sitting there in the boat shed and all bets are off and there's no certainly about anything. We are back at where we were a year ago."

Given that BMW Oracle Racing have appealed then for Alinghi it will be full steam ahead still with the build of their new giant multihull. The prospect of two giant and virtually complete state of the art monster-sized multihulls being scrapped as the America's Cup returns to a conventional monohull event is too gross to imagine. Butterworth doesn't specify costs but the words "$100 million" do pass his lips in reference of how much the development and build process of one of these boats is likely to cost.

If they end up not being used in the America's Cup, Butterworth can see other applications for them. "They will be capable of breaking records these boats. It will be interesting to see if someone wants to push them in hard weather it will be interesting to see how fast they can go. That would be fin. So long as you are locked in!"

Obviously during the next weeks there is still the possibility of some sort of compromise, although what form this might take is hard to imagine. Now that they are so far down the road with their giant multihulls perhaps they might just get on with finalising conditions for this match, such as when and where.

Butterworth reckons that the only way there could be reconciliation is through the two team principles talking, but he admits that relations between Bertarelli and Ellison are just as fraught as ever. "A lot of water has gone under the bridge now. A lot of lies have been told and a lot of lawyers involved." However Butterworth and his old skipper Coutts are on more friendly terms once again. "I caught the ferry across from the mainland with Russell earlier," said Butterworth. So did they sit together and who sat next to who? "We sat next to each other but we talked about other things. I checked him out and I knew he was coming here, so we talked about it."

But none of this is getting the Cup back on track. If BMW Oracle Racing lose their latest and final appeal then it reverts back to square one with the existing and horrific Alinghi-biased Protocol for the 33rd America's Cup with the Spanish club, the CNEV back as their toothless puppet Challenger of Record, although in reality last year the process of putting the 33rd event together did seem to have considerably more challenger involvement in it than the Protocol suggests. If this proves to be the case Butterworth reckons the 33rd America's Cup multi-challenger event could be in 2010 earliest, but more likely 2011.

Butterworth warns that in terms of the global economy the landscape today is very different. "When we won in July, they were heady days. You look at it now and things have changed dramatically. A lot of the owners of boats that I sail on around the
world are pulling back and everybody is tightening down. So the 14 challengers we had signed up for the 33rd, I'm not sure how many teams will get to front up. Every time I have sailed in the Cup it has got bigger and better, but it is hard to say it will be bigger and better next time after what has happened. But the world seems to change quickly. If the TV is there and the teams are there and if there's the money to get things rolling it could be bigger and better. Personally I think the business of the Cup has been ruined."

If BMW Oracle Racing lose in court, then it has been widely suggested that Bertarelli might prohibit them from competing in the 33rd America's Cup (this is one of the provisions they have allowed themselves in their Protocol). Butterworth can neither confirm nor deny whether this might happen. "I think TNZ has a bigger problem because they signed the protocol and then they breached it. So we'd have to talk to the other challengers to see what they wanted to do."

So was he shocked by last Tuesday's decision? "For sure. I was expecting it not to come out on Tuesday because nothing had happened in a hurry," says Butterworth. "The New York courts have got a lot more life-threatening things to deal with rather than the America's Cup. We thought we had a chance for sure. The legal side has definitely gone against us, but also public opinion. It has come back a long way, but it is a problem of not communicating things properly in the beginning. It is tough being the defender. The challenging thing is far more fun, believe me. The defender thing is far more difficult to deal with."

So in the meantime it is business as usual for the Alinghi and BMW Oracle multihull design, build and sailing teams as they get in sailing time (and swimming time in the case of BMW Oracle) in events such as the iShares Cup before their new boats are launched. "Obviously we have to defend ourselves and that means getting ourselves ready for a DoG match because that is a possibility. So work goes on and we will be doing a lot more multihull sailing and that won't be so bad either."


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