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The Deed is in Need of a Makeover

It's time to update the Deed to ensure the future of the America's Cup. "Jobson Report" from our April 2009 issue

March 17, 2009
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Gary Jobson 368

I have followed the America’s Cup for 50 years, and over this span I have witnessed it from every angle: as young spectator, crewmember, organizer, committee member, commentator, and now bewildered observer. I have studied its history, interviewed all the prominent players, and tried hard to make sense of the developments as they have occurred of late. While Cup races always look glorious in retrospect, there has been intrigue and controversy in all 32 matches dating back to the competition’s inception in 1851. But the deplorable series of events that have transpired since the conclusion of the 32nd regatta in Valencia, Spain, have taken the Cup to a new low. Looking ahead, it is time for the America’s Cup to be reorganized so it can thrive.

While sitting in the New York Court of Appeals in Albany, N.Y., in February for the final round of litigation between the Golden Gate YC and Societe Nautique de Geneve, I studied the surrounding walls of the ornate wood-paneled courtroom. Portraits of judges past peered down from all sides. They looked stern and important. It reminded me of the portraits of past Commodores at the New York YC, and this led me to wondering what the Cup sailors of the past would think of the current state of the event. At one point during the February trial, one of the appellate judges remarked that we couldn’t bring George Schuyler back to explain his intentions so we need to interpret his thoughts. It sure would be nice to know exactly what Schuyler intended.

At this writing, it’s difficult to forecast how the appellate court will rule. If it were up to me, I would rule in favor of the Golden Gate YC. The Spanish yacht club, Club Nautico Español de Vela, was formed specifically for the America’s Cup: it had no members, annual regatta, or standing to be the Challenger of Record. SNG’s attorney, Barry Ostrager, made a theatrical show at the appeals hearing, stating that BMW Oracle was trying to win in court what they have been unable to on the water, and that there were 19 challengers building and prepping boats for racing in July 2009. To the best of my knowledge, not a single boat has been or is being built, with the exception of two multihulls.

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Such an inaccurate comment demonstrates what is wrong with SNG’s case. The Swiss team’s owner Ernesto Bertarelli simply wants to control every aspect of the regatta. Most egregious is the demand that his team be permitted to participate in the challenger trials. This is a challenger-driven event. If they ever hope to wrest the Cup from Bertarelli’s grasp, they should not concede this point. Rather than engaging directly with the challengers, the defender should be encouraging multiple defense syndicates to compete, similar to the past practice of the New York YC, the Royal Perth YC, and the San Diego YC.

The global economic recession will no doubt have an impact on sailing in general, and the America’s Cup in particular. It is going to be far more difficult to raise money to sponsor a team. To his credit, Bertarelli wants to run a lower cost regatta by allowing only one new boat, and reducing the amount of time teams can train and race. These are worthy ideas and should be developed. In 1987 Star & Stripes won perhaps the best-managed America’s Cup with a modest budget of $15 million. Such a figure would barely get a team started today. Some campaigns have spent five to 10 times that amount. Such inflated campaign costs can not continue.

There have been pauses in America’s Cup competition following past economic down turns. For example there was only one match between 1904 and 1929 and no racing between 1938 and 1957. Rather than rushing into a new event that will most likely struggle, it would be wise for the Cup’s constituents to take the time now to rewrite the Deed of Gift for a better future. The correct people must be called upon to manifest important changes to the Deed of Gift and protocol; they should be representatives of past Cup trustees. This group would resolve all disputes and perpetuate the protocol from one match to the next.

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Next on my list of changes, as it has been for long time, would be to return the America’s Cup to its nationalistic roots, which call for a “friendly competition between foreign countries.” Crews, designers, builders, and managers should be nationals of the country they represent. This single requirement would bring back interest of the general public, which has been lacking in the most recent matches. I also think the match should be sailed in the home waters of the defender, not put out to bid to host cities.

Third on my list would be to set up the management of the Cup under the authority of an international body. At present it seems the system must restart with every challenge. An appropriate example is the system set up by the highly successful National Football League, which employs a commissioner with considerable authority to run the league. The league office would employ regatta administrators, umpires, judges, and race committees. This would not be the charge of the defender, as Alinghi would have it today. The AC “Commissioner” would answer to the stakeholders (past trustees and all participants).

The standing Deed of Gift, as written, expects a challenge to take place in a short period of time. Only 10 months notice need be given for a match. To help avoid confusion, schedules must be set well in advance so yacht clubs, owners, sailors, sponsors, venues, media, and spectators can plan accordingly. Every sport today plans well into the future, and the America’s Cup would benefit by doing the same, not just planning from match-to-match. The New York YC, during the latter portion of its tenure as Cup holder, would always announce the timing, format, and boats before the conclusion of the ongoing match. This practice helped avoid confusion.

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The authors of the Deed of Gift envisioned a race that encouraged new technology. At present huge amount of funds are spent on small advances. I would like to see a Cup that is either strictly one-design (which would save a lot of money) or allows designers to come up with boats that can sail at record-breaking speeds. When designers are constrained by tight measurement rules costs go up without corresponding breakthroughs in speed.

As an aside, I would like to see a match in 90-foot multihulls if it comes to it. I bet everyone would look at the America’s Cup differently after such a race. I seriously doubt either of the parties will negotiate anything other than a “Deed of Gift” match. If Golden Gate YC wins the appeal, a multihull race is likely.

Reducing costs will certainly allow more teams to compete, but the long-term effects of the economic slow down is a big unknown for any potential America’s Cup team. During the Great Depression there were three matches between 1930 and 1937. But successful defender Harold S. Vanderbilt kept a tight lid on costs. He named his 1934 yacht Rainbow in the hope of brighter days ahead. The economic environment today is different, however, and it is going to be hard for corporate heads to justify sponsoring sports teams when so many people are out of work. A challenged economy is a problem that will be with us for several years, and it will most certainly impact the America’s Cup.

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I get the sense the New York State Court would welcome an update to the terms of the Deed of Gift, but this can only be accomplished when there is no longer any standing litigation. This is why all stakeholders would do the America’s Cup a service by learning from the N.Y. Court of Appeals decision and designing a better format for the future. Any changes or rewrite would have to be done with the cooperation of the current holder of the Cup (Alinghi). Bertarelli has written about making changes in the past. This would be a good opportunity. It might take some time to do this, but the America’s Cup and the sport of sailing would be better off.

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