Swiss America's Cup holder Ernesto Bertarelli was hit for six today when the New York Court of Appeals ruled that his structure for the next event was faulty and installed California-based arch-rival Larry Ellison as challenger of record.
Both Bertarelli and his rival, the Oracle software boss Larry Ellison, were given a finger wag by the judges, who called on them to sit down and sort out their differences. Protracted legal war, war may soon be followed a jaw, jaw with a rather more urgent timetable. First contact was expected to be by telephone between the two principals.
"We will work hard to urge and encourage both sides towards a multi-challenger 33rd America's Cup to ensure that the event gets back on track as soon as possible," said Britain's Origin team boss Sir Keith Mills, knowing this was a holding position until both BMW Oracle, which has repeatedly said it wants a multi-challenger event, and Alinghi, which has repeatedly said it wants a multi-challenger event, say what they now intend to do.
BMW Oracle was saying only that it was pleased with the court decision. Alinghi, in an ambiguous response, said that it had "consistently" wanted to settle the matter and would now discuss the terms of the regatta with BMW Oracle.
In July 2007, after a successful defence against the Kiwis in Valencia, Spain, a newly-formed Spanish yacht club was installed as the challenger of record and a protocol for an event this year, which concentrated even more control in the billionaire's hands, was presented to all other potential challengers, including Britain's Origin, skippered by Ben Ainslie.
But the American team, which was lining up three-time cup winner Russell Coutts, sidelined as his skipper by Bertarelli, cried foul. A first run through the New York court agreed that the installation of the Club Nautico Espanol de Vela, did not fall within the trust deed guidelines set down in 1867 by the New York Yacht Club.
Bertarelli, through his Geneva Yacht Club sponsor, appealed and the Appellate Division backed him. Ellison's club, the Golden Gate Yacht Club, took the matter to the Court of Appeals and the six-judge panel voted 6-0 in favour of Golden Gate, installed it as the challenger of record and awarded costs against Bertarelli.
As legal bills have often been running in excess of $500,000 a month over the last 21 months, the billionaire former pharmaceuticals boss is thought to have taken a major hit to his piggy bank.
Ellison's BMW Oracle team challenge is in a giant trimaran, which has been testing off San Diego. Bertarelli's skipper, Coutts' former best buddy Brad Butterworth, recently said that the Alinghi yacht, thought to be a catamaran with a central pod, could finish building within a couple of months.
As defender, the Swiss have the choice of venue and have been indicating strongly that this would continue to be Valencia, but that the best of any one-on-one three-race series would not be staged until May next year. it may never happen.