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All or Nothing for BMW Oracle Racing?

While Ernesto Bertarelli waited in vain for wind with 260 other boats at Acura Key West Race Week, Justice Herman Cahn of the New York State Supreme Court issued a decision that could tilt the battle over the third America's Cup in favor of Bertarelli's Alinghi team.

January 24, 2008
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Alinghi Press Conference-Key West

Stuart Streuli

Ernesto Bertarelli opened the flap on the tent that serves as the Jury Room here at Acura Key West Race Week on Wednesday evening as if he were pulling back the curtain to reveal the Wizard of Oz. At least for a moment, his sense of humor was fully intact. “The Jury Room,” he said, with a trace of a smile. “Isn’t this appropriate?”

One had to admit: He had a point.

Earlier in the day, well up the Eastern Seaboard, in what has become the ultimate Jury Room for the next America’s Cup-Justice Herman Cahn’s chambers in the New York Supreme Court-news had come forth that Bertarelli believed was at least a moral victory for his Cup syndicate, Alinghi. Cahn is currently pondering the validity of the Golden Gate Yacht Club’s Deed of Gift challenge for the 33rd America’s Cup, and he’d invited Alinghi to “present additional information…including the definition of a keel yacht versus a multihull.”

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It’s somewhat reminiscent of Bill Clinton’s astounding deposition regarding the degree to which he’d laid his paws on the robust White House intern, Monica Lewinsky. “It depends on what the definition of ‘is’ is,” he famously replied.

As with Bill and Monica, this Cup case seems to be coming down to a matter of legal semantics (though it also begs a larger question: Why can’t billionaires find decent lawyers?).

Bertarelli gave a hint as to what documents Alinghi would present to the court when he cited the Training Programs/Getting Started pages on the US Sailing website. “We’re talking Basic Sailing 101 here,” he said.

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As he read off the definitions of the four types of boats raced in the United States-small boats, keel boats, windsurfers and multihulls-it was obvious that he was enjoying himself. It was also fairly clear that, well, he had another point. After all, the GGYC has issued a challenge with a “keel yacht, 90 by 90 feet,” and it’s impossible to conjure such a vessel. “It would most likely look like a barge,” said Bertarelli, before adding, “The point is that GGYC did not submit the correct certification (defining the precise parameters of their challenging yacht) and therefore can’t be entertained as the challenger of record.” He later added that it was the exact same sort of oversight as that committed by the original challenger of record, the Spanish group CNEV, when they failed to hold a proper regatta that would’ve added the credibility to their challenge that they were sorely lacking.

Bertarelli fielded questions from a handful of journalists on a number of Cup-related matters, and several of his answers were more than a little interesting. For example:

On whether Alinghi had begun making plans, should they be so decreed by the court, on forging a Deed of Gift (DOG) defense aboard a multihull: “The Deed is very clear in that if you lodge a challenge you have to give the defending yacht club a chance to respond. Therefore you have to be very specific about the vessel on which you’re going to challenge… (But) it’s clear from the multihull community that (BMW/Oracle) has already hired a set of designers and sailors and initiated designs… At this stage, being in court…we have to consider a (multihull defense). But it’s impossible for us to consider (a design when) we don’t know what (BMW/Oracle) is going to come with, yet.”

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On whether Alinghi had hired multihull designers or sailors: “We haven’t signed a specific multihull sailor yet. We’re very early in the process of thinking about a DOG match if the U.S. courts forced us into one.”

But Bertarelli’s most provocative statement came in response to a question from veteran Cup scribe Bob Fisher, who asked if Alinghi would accept a challenge from BMW/Oracle if the Swiss prevail in court this time around.

“At this stage, honestly, I don’t know,” Bertarelli said. “They’ve created specific damage to the Cup to possibly (have) to sit one out. Why should (Larry Ellison) have the right to compete when he’s prevented 12 teams from competing? It’s a difficult question. (But) there comes a time when you have to respect the fact that if you take certain actions you have to be responsible for them.”

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And on it goes. Judge Cahn has suggested we’re a few days away from his decision. It certainly isn’t getting any less complicated, and the latest from the Alinghi camp suggests that it may well be an all-or-nothing result for BMW/Oracle. Win the court case, and they’ll likely hold all the trump cards in dictating how and when the next Cup will be contested. Lose, and they very well will be sent back to San Francisco Bay, unloved, uninvited, and totally out of luck for the 33rd edition of the America’s Cup, wherever and whenever that may be.

Stay tuned.

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