Tuesday, October 23, 2007

Hamish Ross talks to Valencia Sailing about Monday's court hearing in NY

Given the importance of Monday's court hearing in New York, not just for the America's Cup but top professional sailing as well, we will try to give the point of view of as many players as possible. Earlier this morning (NY time) we talked over the phone with Hamish Ross, Alinghi's General Counsel, who obviously commented on the case through the Defender's glasses. We will try to talk to Tom Ehman, his counterpart at BMW Oracle, today or tomorrow.

Valencia Sailing: Let’s go first quickly through yesterday’s court hearing? What did Judge Cahn focus on?
Hamish Ross: The focus of the judge was purely a technical, legal analysis of the Deed of Gift. It does not concern the protocol at all, it does not concern Oracle’s objections to the terms of the protocol. It is purely and simply whether the CNEV (Club Nautico Español de Vela) is a valid challenger under the Deed of Gift and it focuses on two major issues. Is it an organized yacht club? Is the annual regatta required to be held before the challenge or can it be held after the challenge?

Valencia Sailing: Are you satisfied with the hearing?
Hamish Ross: Yes, we are satisfied with the hearing because we believe the judge’s questioning was appropriate and we are quietly [Note: When the interview was first published the word "quietly" was wrongly written as "quite"] confident of our position in terms of the eventual decision. Obviously, there remains some uncertainty and within 2-3 weeks we'll find out the judge's view.

Valencia Sailing: So, if I understand well, you expect a decision from the judge within 2-3 weeks.
Hamish Ross: Yes, that's correct.

Valencia Sailing: A few hours before the court hearing, both Alinghi and BMW Oracle were stating that "constructive" talks were taking place between you and Tom Ehman. Why didn't you reach an agreement?
Hamish Ross: The talks were focusing more on what their position was, understanding their position, them understanding our position and often in negotiations it is highly desirable that both parties understand their motivations. Often, other solutions come by themselves if you understand the other party's motivations.

We are going to have a meeting with them this morning and get further discussions about how the court hearing went respectively, what could happen on the various outcomes. We will also put to them a final proposal in terms of how this could be settled so that they take it back and consider it internally.

Valencia Sailing: I was obviously unaware of that meeting but from yesterday's reports and TV footage it seemed that Tom Ehman and you were miles apart. How close to a deal are we right now?
Hamish Ross: The response we have received so far from Oracle indicates that there is still some distance between the parties.

Valencia Sailing: Regarding the CNEV, there have been various media reports than when Judge Cahn asked one of your lawyers about CNEV's annual regatta he answered it was scheduled to take place in November? Is that correct?
Hamish Ross: I'm not in a position to comment on that. You must ask the CNEV to comment on that. I'm aware they held two regattas previously and I'm not aware of a future plan at this stage. It is something you have to talk to CNEV about.

[Note: We have contacted the press office of the RFEV (Spanish Sailing Federation) in order to clarify the issue and, so far, they refused to make any comment.]

Valencia Sailing: It seems to me that what we are seeing here is nothing more than an egoistical fight between two of the richest men on earth.
Hamish Ross: No, it is far too simplistic to see it that way. It is more than that. My view is that Oracle coming from a position of Challenger of Record and influencing to a very great extent the America's Cup rules found themselves in a position where they no longer had the influence and were just another challenger. They had difficulties adjusting to that.

Valencia Sailing: You put the whole blame on Oracle but you avoid mentioning the protocol you presented that was found by a lot of people as heavily one-sided.
Hamish Ross: I think it is simplistic to say one party is entirely to blame. We need to take some criticism that perhaps we didn't communicate the protocol in an appropriate manner and explain the motivations and what kind of intentions were behind the provisions. In hindsight, if you look back and say, "would you do things differently knowing what has happened?", the answer is obviously yes.

Valencia Sailing: Assuming there is a deal shortly, within the next couple of weeks, is your goal to hold the event in 2009? Will you still hold pre-regattas in 2008 and the Challenger Selection Series and the America's Cup match in 2009?
Hamish Ross: It certainly is our goal to hold the America's Cup in 2009. It certainly is the goal of the other entered challengers as well but this very much depends on Oracle's litigation. I must say that the window for 2009 is rapidly closing, very rapidly. Unless we have some certainty in the next few weeks then the regatta will be forced to be postponed.

Valencia Sailing: Finally, what is your strategy if Judge Cahn decides that CNEV is indeed invalid? Will you appeal?
Hamish Ross: We haven't given great consideration to what will happen if the ruling is against us. We can't determine in advance whether we will appeal. We need to review the judgment, to see whether it is indeed appealable. There are other options available to us in terms of outcome in case the judge rules against us.

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At 6:45 PM, Anonymous Brian said...

As I said on other posts before, everything comes down to CNEV's having its annual regatta.
I remind you CNEV is a legal, organized yacht club according to Spanish legislation.
So, the main point is to know (and I am not an English expert) if having implies that regatta can take place after challenging as long as it happens in 2007.
So, Pierre, if the CNEV is the key issue for all parties, you should try to contact and interview Mr. Manuel Chirivella Bonet, President of the CNEV (and Vicepresident of the Real Federación Española de Vela, the Spanish Sailing Authority).

At 8:11 PM, Anonymous Anonymous said...

Good luck with the interview...

At 4:34 AM, Anonymous oneworld said...

The affidavits lodged by the Golden Gate Yacht Club make a compelling argument that CNEV does not fulfill the criteria of being an organised yacht club and that it has failed to hold an 'annual regatta' (that is, an ongoing regatta). GGYC even argues that CNEV may not even continue to exist beyond this Cup cycle!

CNEV’s continuation is particularly noteworthy, as the Deed stipulates that the Cup is never to be the property of ‘the … owners of any vessel winning a match’. That presumably would also exclude the Federación Española de Vela, CNEV's sponsor, as it is not a yacht club.

Past trustees of the Cup have treated the matter of the Cup’s succession very seriously. When the Earl of Dunraven challenged for the Cup for 1893 on behalf of the Royal Yacht Squadron (RYS), the New York Yacht Club was
horrified by RYS’s ambivalence towards the Cup. RYS originally indicated it wouldn’t take back the Cup or continue the Cup competition if Dunraven won
the match!

The Royal New Zealand Yacht Squadron even scrutinized the eligibility of current trustee Societe Nautique de Geneve (SNG) before accepting Alinghi’s 2003 challenge. It sent
representatives to monitor the legitimacy of SNG’s ‘annual regatta’ in Cannes in 2000, much to the displeasure of both Ernesto Bertarelli and Russell Coutts! (By rights, you could even argue SNG should never have been eligible to sail for the Cup in the first place, let alone won it, as I think it is also pretty likely from the Deed's preamble that only yacht clubs based on an arm of the sea or on the coast were intended eligible to challenge for the Cup, not clubs based in-land!)

At the end of the day, CNEV's legitimacy as a yachting entity and its failure to have held an 'annual' (read ongoing) regatta are critical to the Cup's future. SNG and CNEV have paid lip service to the Deed of Gift and in a few weeks Justice Cahn's ruling on this matter will bite them squarely on their transoms!


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