Tuesday, October 27, 2009

BMW Oracle files Breach of Fiduciary Duty suit against America's Cup Trustee

Related PDF Documents- GGYC Complaint

[Source: BMW Oracle] Reckless and repeated disregard in its stewardship of the America’s Cup by the Société Nautique de Geneve (SNG) has prompted the Golden Gate Yacht Club (GGYC) to ask the New York Supreme Court to remove the Swiss yacht club from its position as Trustee in a Breach of Fiduciary Duty complaint filed today.

In its place, GGYC – the Challenger of Record the 33rd America’s Cup - has requested the Court to appoint a faithful, fit and proper substitute to oversee the next Match to be sailed in 2010, starting 8 February.

A new Trustee would provide equitable terms for both competitors, something SNG has denied GGYC by its orchestration and manipulation of the rules and processes designed to ensure that the defending sailing team, Alinghi, can not lose.

GGYC, and its sailing team, BMW ORACLE Racing, remain committed to sailing the Match on the dates in February 2010 set by the Court. There is no desire by this action to change Alinghi’s role as SNG’s sailing team and defender.

Foremost among a catalogue of failures of SNG and listed in a Breach of Fiduciary Duty complaint are:
• Offering the America’s Cup hosting rights in order to extract secret commercial deals

• Repeated attempts to seize control of the rules and officiating processes to ensure that Alinghi can not lose

• Moves to disqualify GGYC’s yacht despite assurances to the New York Supreme Court that this would not happen

• Selecting Ras Al Khaimah for the 33rd Cup to further its own business interests whilst exposing GGYC to unnecessary danger

“Winning the Cup brings not just honor and pride, but responsibilities too. The honor may have gone, but the responsibilities remain,” said Russell Coutts, Skipper and Chief Executive of GGYC’s challenging team, BMW ORACLE Racing.

“The America’s Cup is meant to be hard to win, not impossible to lose,” added Coutts.

The complaint also states that the America’s Cup was used as a powerful bargaining chip to extract enormous commercial benefits through secret and complex side deals in selecting Valencia and Ras Al Khaimah as host venues for the 32nd and 33rd Matches.

It is clear that entities associated with Ernesto Bertarelli leveraged the America’s Cup for gain.

“SNG says it has the right to change the rules for the America’s Cup races at any time and select all the umpires. It’s like letting the Phillies change the rules for the World Series after it starts and select all the umpires,” said David Boies, chairman of Boies, Schiller & Flexner.

“Basic fairness and sportsmanship require that a contest be played with set rules and judged by umpires free of interference. The Courts have already had to stop SNG from negotiating unfair rules with a sham competitor orchestrated by SNG. We hope that SNG will now abandon its efforts to win with rule manipulations and back-room deals. Let the best boat win on the water,” added Boies.

GGYC is also contesting SNG’s choice of Ras Al Khaimah in a separate case before the New York Supreme Court because it is in direct contravention of the Deed of Gift’s clear stipulation that the Cup can only be sailed in the Northern Hemisphere between 1 May and 1 November.

Nevertheless as Trustee, and in breach of its duty, SNG did not consult GGYC at any stage in selecting Ras Al Khaimah, a location it knew did not meet the clear language of the Deed of Gift and one which exposes the American challenger to unnecessary danger.

SNG’s actions since winning the America’s Cup in 2003 and defending it 2007 has brought a clamor of complaint from the sailing community around the world.

"Ernesto Bertarelli has taken advantage of the Cup holder’s inherent competitive balance in the Deed of Gift to absurd and obscene levels. By his actions on land he has tried to make sure that he can not be beaten on the water,” commented Bill Koch, whose America3 team was the successful defender of the America’s Cup in 1992.

Italy’s Vincenzo Onorato, a three-time challenger, said of Alinghi’s proposed rules for the next Cup: “This is the most unsporting document ever done.”

The America’s Cup has prospered for 158 years, despite the American Civil War, two World Wars and several economic depressions.

The oldest international trophy in sport is now in peril because of the selfish and self-serving acts of the Swiss yacht club, its representative sailing team Alinghi, America’s Cup Management (both controlled by Ernesto Bertarelli) and other affiliates.

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At 8:23 AM, Anonymous Anonymous said...

From the looks of the GGYC paperwork, SNG & Alinghi are not worthy of being a Trustee or a defending team. So much self serving going on without any responsibility towards the Deed.

Many people need to ask the questions of how you would feel if your yacht club board members were enriching themselves at the expense of your yacht club & it's members when holding a regatta. It's just not done in the normal world.

At 8:36 AM, Anonymous Anonymous said...

This is just the final confirmation that BMWOR are just intent on running the Cup they never won the way they want it. Guess they would like to see ETNZ run the match. Very cosy.Hope they have a nice time talking a lot of bollocks in Nice.

At 9:19 AM, Anonymous CheeseBurger said...

BOR is accusing Alinghi of cheating in the match that still needs to be raced. Why don't they just compete? If they win and get disqualified, they can sue afterwards.
Finally, what is wrong with obtaining some benefits form hosting the cup. That's the defender's priviledge. BOR even has two sponsors in their name! Is that self-serving?

At 9:30 AM, Blogger Renaud said...

Ne vous souciez pas de n'être pas remarqué ; cherchez plutôt à faire quelque chose de remarquable.

Quand la haine ou la faveur de la multitude s'attache à un homme, il faut examiner pourquoi.

Le sage se demande à lui-même la cause de ses fautes, l'insensé le demande aux autres.

Appliquez-vous à garder en toute chose le juste milieu.

Quelques citations de "Confucius" pour BOR ....

At 9:41 AM, Anonymous Anonymous said...

Russell COutt, you should be ashamed! This is the meanest attack of all. Especially when it comes to Valencia and purported commercial advantage.
The people who received the commercial advantages are the teams: low tax, free base, over EUR 30 millions distributed to non-Alinghi teams.

Come on, Coutts, how can you dare talk about honor? You have none! You are the most centric and selfish person in the world. You are shame for the world of sport, any sport.

Probably when Ehman made the Cup bankrupt in the 90s it was good stewardship.

Please, please, it is time to stop this joke, as it is not funny.

It really is time to get rid of Coutts, Ehman and co. Shame on you.

At 9:43 AM, Anonymous Anonymous said...

Coutts is criticising benefits derived from the city bid but when goes to meet valencia officials asks for the VERY SAME condotions as ACM. YOu are a jerk Coutts.

At 9:44 AM, Anonymous Anonymous said...

Reading a quote from Onorato is the most laughable part. Onorato is a senior cheater. He's shown that all along his participation to the cup. Taking him a s a reference is great.

At 9:45 AM, Anonymous Anonymous said...

Typical Euro bufoons statements. Since the cup has been with SNG it has been going downhill,and the only group trying to do something about it, they run down and ridicule. What the sad thing is, is some of the names involved on both sides, they all need to take a good long hard look at themselves, and rrealise most of the world is losing interest on our once treasured Americas Cup competition.
R.I.P The Americas Cup.

At 10:25 AM, Anonymous GDEvans said...

"Since the cup has been with SNG it has been going downhill,and the only group trying to do something about it, they run down and ridicule."

What a load of rubbish. The AC32 in Valencia was the most popular in years with more teams competing and more people watching. AC31 in NZ had a few less teams, but was still a huge event. I know - I was at them both. The atmosphere in both locations was fantastic.

Since the AC left the US it has gone from strength to strength.

I am not defending SNG - I am British and have no preference for either of the billionaires swinging their small dicks at each other.

The future for the AC is through yacht racing on the water. Not by somebody who has never reached the final going through the courts.

At 1:46 PM, Blogger Norby said...

chér renaud, en anglais, s'il vou plais.

At 2:57 PM, Anonymous Anonymous said...

I do not understand all this anger and excitement of Alinghi fans. If Alinghi is clean than the court will attest so. If they have "dirt on their fingers" the court will take the necessary actions. So if the motivation, ambition and behaviour of Alinghi and SNG is as noble and superior as they claim, there is no reason to worry because BMWOracle's "breach of fiduciary duty" suit will be kicked out of the court like nothing...

At 3:18 PM, Blogger Renaud said...

I'm sorry "Norby" to write sometimes in french; my mother language. My english is like BOR & Alinghi ... still in training !

My post above was only some citations of Confucius as all this rubbish with the N.Y. Court fed me up .

I was in Valencia for the AC32 and I lack another such beautiful event. I'm Swiss, suporting Alinghi, but in Valencia I had some beers with Kiwis at the ETNZ Base in a fantastic friendly attitude. I hope to live such moments again.

At 2:42 PM, Blogger Norby said...

no problem, renaud. i am brasilian, my mother language is portuguese and unfortunately my french is much much worse than my english; i just wanted to understand what you wrote.


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