Arbitrating the Camel Racing
If you have landed here, that's fine. But this story was originally intended as an entry at the SAIL blog. If you would rather read it there you can click here.
By Kimball Livingston
August 5, 2007
Hearing Vincenzo Onorato come out against the Alinghi protocol for America's Cup 33—Onorato is Mr. Mascalzone Latino—I decided I really had to labor through yet another reading of The Document, as I suppose the protocol will be referenced if we make it all the way to court. I came away with two thoughts.
1) If they had opened the process to all parties to decide how to conduct the next event, and appointed a committee, and this protocol was the result, there would be howls of derision at what an ungainly, compromised "camel" the committee had produced: to qualify in older boats and then race for the cookies in hastily-developed, hastily-built 90-footers. Those things can hurt you.
2) If the owner of the New York Yankees became simultaneously the Commissioner of Baseball, would that be a good thing?
Yeah, I've asked the baseball question before, but it won't go away.
Onorato's comments were released on the Mascalzone Latino web site during La Copa del Rey at Palma de Mallorca, where his Mutua Madrilea came second to Siemens and Paul Cayard (Cayard hints that he may soon be living back in Valencia; does the second-Spanish-challenge rumor have legs?).
At almost the same moment, spokesmen for Patrizio Bertelli, Mr. Luna Rossa Challenge, were announcing that he's pulled the plug on the Prada Team heritage and bowed out of AC 33. We know that Bertelli was another big player unhappy with the protocol, but his public statements thanking this and that party for past efforts give us nothing to chew on here.
I understand the Larry Ellison/BMW Oracle legal effort, including the challenge in a 90-foot catamaran, as an attempt to force Alinghi to the bargaining table to forge a new protocol, one where "Commissioner" Ernesto Bertarelli cedes a few powers to the teams. Bertarelli insists, however, that the matter should be heard by "our independent arbitration panel and we hope to have their resolution soon."
So about that panel
The Arbitration Panel for America's Cup 33 was appointed by America's Cup Management, which was created by Bertarelli through the vehicle of his challenging club, Socit Nautique de Genve, and it consists of three members, two of whom served on the jury for America's Cup 32, and both of whom voted in favor of Alinghi in the two protest situations that developed.
One of those Arbitration Panel members, Graham McKenzie, is a former partner of the same Auckland law firm (Bell Gully) where Alinghi general counsel Hamish Ross was a partner for 12 years.
I remind you that both protests in AC 32 (or perhaps you were not close enough to the grapevine to know) were decided on the same 3/2 (partyline?) split in a jury of five.
What's next for Number Three of the threesome, I wonder?
Or is it possible that Alinghi higher ups are so innocent and nave that they have given no thought to appearances?
And let's not over-interpret Mr. Bertarelli's reference to "our independent arbitration panel," emphasis mine.
It's interesting at some level that I have been for 30 years a member of a yacht club in San Francisco (not the Challenger of Record for AC 32), and Mr. Ellison has been a member of the same club since 1995, but I have never once met the guy. I've followed his career through the technology-obsessed press of Northern California, where something on the order of "ruthless" has been about the most positive portrayal of the head of Oracle software. Then, as racing went along in Valencia, I began to see a lot of positive portrayals in the sailing press. Angus Phillips of The Washington Post interviewed Ellison and really liked him, and that seems to be more or less the state of affairs, except among those who think he's mucking up America's Cup 33 by being a contrarian.
On the other side, I know that Alinghi got kicked around ugly in New Zealand in 2003, and the individuals were made to feel it and probably still feel it, but I don't think there was any international pushback until certain events of AC 32, and then of course the publication of the protocol for AC 33.
Myself, I had nothing but high hopes, and I can even remember when certain members of my profession regarded me as a pollyanna case.
I still favor the sunny side of the street, but thinking now of Alinghi skipper/tactician Brad Butterworth's famous get-out-of-here, "You're on the other side" declaration to Luna Rossa lawyer Luis Saenz—Stuart Alexander reported the incident out of last month's press conference formalizing Valencia as the site for AC 33—I am reminded of the last time that America's Cup racing got mired in court matters. That was also, perhaps coincidentally, the last time that a catamaran was involved, and the year was 1988 and San Diego Yacht Club was fending off New Zealand's unwanted Big Boat challenge, and Dennis Conner observed to the press corps, "If you've been out for a ride on one boat, you probably haven't been invited out on the other."
Such was the poisoned atmosphere, and it took a long time for the air to clear.
1) Having Team New Zealand as one of its challengers for AC 33 is a boost for Alinghi's public relations, but it would be easier to view the Kiwi move as a high-ground play if they hadn't taken startup funding from Alinghi after 2003.
2) Now that I'm finally back in California and digging through the piles of mail that accumulated in my absence, I discover that I should not have been so surprised when Alinghi dumped the AC class. I see that the magazine, Seahorse, published a relevant interview of Alinghi principal designer Rolf Vrolijk and chief engineer Dirk Kramers, which ran while racing was underway.
Taken in total, this interview does not in any way imply that a final decision had been made. However, this quote tells us something about the thinking:
Rolf Vrolijk: "There is no space left. The guidelines for the rule rewrite in 2003/4 were driven by Ernesto Bertarelli and Larry Ellison's belief that it was very important to have close competition on the water. They really wanted to show how close America's Cup racing could be, especially for the Cup's debut in Europe.
"So the rule was narrowed right down into a tight box rule. Outside this box there is no option, only a range of penalties, and, within, all the parameters and the speed-producing factors are carefully controlled by Version 5. That also goes for the materials, construction techniques and also applies to the rig. So the rule basically comes to an end now."
3) So much for what I know. About a million years ago, in my enthusiasm for the tight competition of AC 32, I compared the excitement of the 1983 Aussie II win at Newport to the excitement of AC 32. Here's what I imagined:
"One difference between 1983 and 2007 is critical; 1983 was a one-off, with Ben Lexcen's "winged keel" providing a significant advantage to an off-the-wall challenger. That's not replicable. But the tight racing we're seeing here will happen again."
Or maybe not.