Legal decision brings America’s Cup feud closer to resolution

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A multi-million dollar sports feud that has been bitterly fought for the past two years between rival billionaires may be settled in the full glare of internet television on Wednesday. The legal bills paid by both sides are thought to add up to at least $50m so far.

In a nifty piece of legal footwork, Justice Shirley Kornreich of the New York Supreme Court has openly admitted that she does not understand all the intricacies of yacht racing and has, instead, ordered the warring parties to nominate an expert apiece – the Americans are expected to choose British former America’s Cup, Olympic Games and world respected jury chairman Bryan Willis - that those two jointly agree on a neutral third, and then they argue out the disputes between them, and she can allow the whole thing to be televised with the proceedings streamed live on the net.

The opponents, so far off the water, are the holder of the America’s Cup, Switzerland’s Ernesto Bertarelli and his club, the Societe Nautique de Geneve (SNG), and the challenger, San Francisco-based Larry Ellison and the Golden Gate Yacht Club (GGYC). The battleground is the way the next America’s Cup is staged.

Previous attempts to thrash out the differences have failed miserably. A previous judge, Herman Cahn, ordered them to use a court mediation service. No-one gave that any enthusiastic support. The sports world governing body, the International Sailing Federation (ISAF), which has show little ingenuity, much less leadership or care of the reputation of the sport it should be governing, staged an attempt to hold the ring. The two sides never met.

The ISAF also wrong-footed itself externally by coming, for a €150,000 fee, to an agreement over the running of the event which included a confidentiality clause which left it open to accusations of taking sides and taking a bribe for reaching a biased secret agreement. It also faces internal dissension at its annual general meeting, which starts on Britain’s Bonfire Night in Korea. In question will be whether it needed the endorsement of two thirds of its governing council.

Normally disputes of this kind in sailing are dealt with internally through a system of international juries, the members of which are overseen by ISAF. But no jury for the 34th America’s Cup, which started life as a challenge race round the Isle of Wight in 1851, has yet been appointed. Judge Kornreich has already vetoed Bertarelli’s choice of the little-known United Arab Emirate of Ras al Khaimah.

She has also reversed an attempt by Alinghi to vary the way in which the length of the Ellison boat is measured which would have made the American trimaran illegal or have to be chopped in length.

But, with three months to go to what claims to be the oldest trophy in sport – which ignores Britain’s Doggett’s Coat and Badge rowing race staged on The Thames since 1715 – there is no agreed venue and the rules, due to be published later this week, have yet to be seen and, even then, unless the court hearing this week settles the matter, would still be subject to change.

The default position for both sides is to hold the best-of-three races off Valencia, Spain on the court-ordered starting date of 8 February, though Alinghi insists it is also talking to southern hemisphere venues. Alinghi and SNG will give up none of their powers, enshrined in a trust law Deed of Gift drawn up by the New York Yacht Club in 1887, without a fight. That is why the battles have continued in the New York courts.

Both sides still have major compounds from the last Cup, successfully defended by Alinghi in 2007, in Valencia. Both have spent untold millions designing, building and developing two of the most weird and wonderful racing sailboats in the sport’s history. Setting wind limits in which to race should answer any safety questions.

By thinking outside the courtroom box and doing something which ISAF felt it could not do, Judge Kornreich may have found a way of taking an axe to the Gordian knot of endless bickering and opened a slipway to the water, where the matter always had to be settled.