Alan Sefton - Exposed: The Dark Side of the Americas Cup

EXPOSED

CONTENTS

The 166-year history of the Americas Cup the oldest trophy in sport is a tale of seemingly endless intrigue and controversy peopled by some of the most powerful men of their times the JP Morgans, the Vanderbilts, the Liptons, the Sopwiths, the Packers, the Bonds, the Fays, the Turners, the Ellisons, et al.

Some have been attracted to the fray by the sporting challenge alone the ultimate test at the highest level of a sport that has long been the domain of the wealthy. Others have used the Cup to circumvent social barriers and societal constraints. Then there are those who have sought to use the Cup for political and/or business gain.

Whatever their objectives or agendas, they have been drawn almost inexorably to the contest and have brought with them all the drive and determination to succeed that made them so successful in everyday life, sometimes no matter the cost (figuratively and literally).

And thus they became acquainted with a little item called the (Americas Cup) Deed of Gift, a brief and deceptively straightforward document that was drafted by the owners of the schooner America when they donated to the New York Yacht Club (NYYC) the trophy theyd won in a race around the Isle of Wight, in southern England, in 1851. What became the Americas Cup (named after the yacht that won it) was presented to the NYYC as a perpetual challenge cup for friendly competition between foreign countries, and the transaction was formalised with a Deed of Gift that was vested in the New York Supreme Court. Known simply as The Deed, it laid out the terms and conditions that had to be met in order to challenge and race for the trophy. Those terms and conditions were first drafted in May 1852 by George L Schuyler (one of America s six owners) and have, with little amendment, prevailed through all manner of tests and challenges, ancient and modern, in the century and a half of continuous competition that has since occurred.

Some of the ensuing 35 matches for the Cup have been in keeping with the donors intent to foster friendly competition between foreign countries. Others, though, have been blatantly hostile, even opportunistic, and controversy has never been far away. Some would lay the blame at the door of the Deed, and its true that the Cups reputation for intrigue and dissension was engendered by the New York Yacht Clubs high-handed conduct when it was dealing with initial challenges in the late 1800s. The response of the challengers, particularly of two high-profile gentlemen from Britain, was on occasion so hostile that the NYYC twice called in George Schuyler to clarify the intentions of the donors. The Deeds author made it clear that he was not happy with the way the club was conducting its Cup affairs. Once Schuyler had finished redrafting what became the October 1887 edition of the Deed, however, the fundamental elements of a competition that would become unique in sport were set in stone and, largely, would serve the Cup well.

There are those today who would assert that Schuylers covenant is way past its use-by date and has little or no relevance in the modern world of professional sport. More often than not, though, those taking such a position have agendas and choose to use and/or interpret the Deed in ways that suit their schemes. In modern times, this has led to two long-running and exceedingly contentious court cases that made the full legal journey from New Yorks lower court in Manhattan, through that courts Appellate Division and finally on to the Court of Appeals in Albany, New York, and, in the process, held the event prisoner for years at a time.

The first of those, in 19871988, involved San Diego real-estate developer Malin Burnham and legendary Cup skipper Dennis Conner. Through their Sail America Foundation for International Understanding (SAF), they influenced the San Diego Yacht Club (SDYC) to ignore what would prove to be a perfectly legitimate challenge from New Zealand merchant banker Michael Fay (in the name of the Mercury Bay Boating Club), in 90ft waterline monohulls (the biggest sloop-rigged yachts allowed by the Deed). The New York Supreme Court ordered San Diego Yacht Club to defend or forfeit, as was required by the Deed, and this in turn led to San Diegos infamous 1988 defence in a wing-sail catamaran (against Mercury Bays nominated 90ft waterline sloop) after telling the New York court that multihulls racing against monohulls was normal in sailing competition. It also led to one of the august panel at the Court of Appeals asking where in the Deed of Gift it said that the Americas Cup had to be fair despite it being carefully laid out for the court that Schuylers cardinal principle for a match was one party contending with another party on equal terms as regards the task or feat to be accomplished.

The second dispute, in 20072010, saw Swiss biotech billionaire Ernesto Bertarelli and the Socit Nautique de Genve (the defender) and San Francisco software tycoon Larry Ellison and the Golden Gate Yacht Club (the would-be challenger) make the same journey through the New York courts to Albany, when the Swiss engineered a challenge from a newly formed yachting organisation Club Nutico Espaol de Vela (CNEV) in order to facilitate an event in which all rights and powers were vested in the defender, which was clearly not what was envisioned by the donors. The Court of Appeals ruled Socit Nautique de Genves challenger invalid and instructed the Swiss to defend against the next challenger in line, Golden Gate Yacht Club, which it finally did in 2010 in a match that featured giant and outrageously hi-tech (and expensive) multihulls.

Both of these prominent legal spats entailed close scrutiny of, and comprehensive legal argument about, the wording and meaning of Schuylers Deed. One of the only upsides of the arguments was that most of the potentially contentious elements of the Deed were interpreted by the ultimate authority, whose various rulings were now the precedents for any future attempts to circumvent the donors terms and conditions. Just as importantly, though, the Deed was shown to be as relevant as it always had been a wonderful anachronism that sought to cherish and preserve attributes of sportsmanship and fair play from another age.

The two individuals primarily responsible for the content of the Deed of Gift were the founder (and then commodore) of the New York Yacht Club, John Cox Stevens, and his good friend and contemporary George L Schuyler. The original document, drafted by Schuyler, amounted to all of 374 words and was more a brief letter outlining what the donors had in mind for the trophy. By the time it had been exposed to the heat of several confrontational challenges, though, that letter had morphed into what became known as the Third Deed of Gift a 1,256-word document, again drafted by Schuyler but this time with input from NYYC, which was full of legalese and contractual language that (supposedly) made the donors intentions abundantly clear.

To anyone who doesnt have ulterior motives, Schuylers Third Deed is straightforward enough. If you are a bona fide yacht club (not an individual) with the appropriate credentials, you can challenge for the Cup in a yacht or vessel that meets certain guidelines as to size and rig. You must give 10 months notice of challenge and can negotiate with the defender the details of the match to be sailed. If you cant agree on those details, the Deed lays down a three-race formula for getting the job done. Oh, and racing will be on ocean courses, free from headlands.