A lengthy day of rhetoric

In Valencia yesterday Russell Coutts and Ernesto Bertarelli gave their conflicting views over the outstanding 33rd AC issues

The press were out in force in Valencia yesterday to attend an open day hosted by Alinghi at their base on the Darsena (Port America’s Cup), followed at the end of the day by a tour of the BMW Oracle Racing ‘boatyard’ hidden away amid stacked up containers in the middle of Valencia’s commercial port (the containers built-up as a wall after prolonged 60 knot winds last week nearly destroyed their tents - these same winds successfully wiped out Alinghi’s sail loft at their base in the Darsena).

Coutts was in the hardest hitting form we have ever seen him in, particularly defending Larry Ellison over some attacks on him (which we weren’t aware had been made) by Alinghi Team Principal, Ernesto Bertarelli. (See the video of his speech here)

"I think Mr Bertarelli either said or implied that Mr Ellison is trying to win this by spending more money. Let me tell you - I’ve had a lot of experience in America’s Cups and I think you can observe - that both teams are about the same size, they have similar-sized boats and similar-sized programs and with my knowledge of what it costs to operate a team like Alinghi and what it costs to operate this team – I can tell you now they will be very very similar," stated Coutts.



Alinghi counter that BMW Oracle Racing have been running their multihull campaign for almost a year more than they have, have had three major rebuilds of their trimaran, have more masts plus their technically intricate solid wing sail. Alinghi yesterday said that at present they employ 130 people. Given a tally up of the team mugshots on their office wall BMW Oracle Racing appear to have 148 people working for them, including a giant build team.

Coutts said that through this dispute, they had made a point of not personalising issues, but this wasn’t the case with Alinghi who "have gone out of their way to make personal attacks on various people within our team, the latest one being Mr Ellison. I think that is a really unfortunate way to go."

He continued: "I am tired of the immature stupid cartoons and personal attacks that are coming out of the other side and I have restrained myself for two and a half years. But I am not going to put up with this rubbish any longer. The fact of the matter is we haven’t been the ones printing obnoxious cartoons and criticising the other parties. We have been trying to stick to the arguments that this is about running a fair competition and having proper rules. And it is about time the other side actually started answering some questions as to why they can’t accept the rules that have been written for a long long time now."

Coutts went on to attack Ernesto Bertarelli over his not being a self-made man, as BMW Oracle Racing’s Team Principle Larry Ellison is, in terms of his business, and he felt that this was one of the reasons Bertarelli so far had been unwilling to sign the numerous agreements they have offered them over the last two and a half years: "Five or six good settlement opportunities, one of them which was supported by the majority of challengers way back." This included the latest, the ‘Singapore agreement’, which had been signed by BMW Oracle Racing and the ISAF representative that had attended last week’s meeting.

Earlier in the day Bertarelli had given his opinion on this: "In two and half years it has been a constant treat: Sign an agreement with me or I’ll take you to court - threat after threat after threat. We are subject to these conditions for two and a half years now, so we are really looking forward to going racing.

"The problem with the strategy that they implemented, picking up every single argument and making interpretations of their own on what’s right and what’s wrong, leads to an endless argument."

But Coutts countered: "Then they say ‘you are always complaining about the rules’. Well this is about the rules! Never in the history of this Cup, I would suggest, have we had such rules complications. And never in the history of this Cup has the defender tried to impose such bizarre rules."

Wind limits

Coutts stated: "The Deed of Gift is pretty clear - it gives each party various rights or benefits. One of the benefits that the defender gets is that it gets to select the venue and the challenger generally gets to select the timing of the event. Nowhere in the Deed of the Gift does it give the defender the right to also select the wind conditions that the boats will race in. They get enough of an advantage selecting the venue. And yet what do we see today? We see a situation where they are trying to impose wind limits on the competition and not only that, the measurement is at 60m - 60m, I would suggest that the race committee won’t have the capability to measure the wind at 60m."

Coutts went on to accuse Alinghi of setting the 15 knot maximum wind limit at 60m not for reasons of safety, as they claim, but simply because the Swiss catamaran has been set up to race in light conditions, while their trimaran is better in strong conditions. "15 knots at 60m - that may be something like 11-12 knots on the water and they are claiming that professional sailors who’ve had two and a half years to prepare for an event [aren't capable of sailing in more than this]? Give me a break. To try and impose your limits on a competition is frankly the most ludicrous thing I’ve ever heard in my life and I have been around yacht racing for a few years now. No one has ever attempted to do that." He added: "Optimist dinghies race in more than 11 knots, so it should be able to race the America’s Cup in these conditions wouldn’t you think?"

Wind limits have been imposed on previous America’s Cup - but these, it should be stressed, were by mutual consent between the Defender and the Challengers.

Coutts stated that they had sailed their trimaran in more than 22 knots of wind and had hit more than 41 knots of boat speed. "We prepared for a regatta where frankly we don’t know what the weather would be on day one or day three, so we built a boat that could be ready for anything that is dealt to us by the weather guys."

So we are in a situation where one teams wants one set of wind limits, the other team wants another set and not surprisingly it appears that they can’t agree. And how will the international jury decide upon this? Come up with a tiny wind range when both boats have a reasonably equitable performance? We wait to see.

Country of Construction

Coutts then launched into an impassioned argument on the ‘country of construction’ issue that is particularly focussing on Alinghi 5’s 3DL sails. He gave the example of a cake which once you take it out of the oven [in Minden, Nevada, USA] is a cake. It doesn’t become cake when it is taken to another country [Switzerland] and the icing and candles are put on it.

He compared it to Roger Federer turning up at Wimbledon and arguing that he should be allowed to play with an illegal racket. He also rebuked the Swiss team for suggesting that his team should stop complaining and just go racing. "Let’s stick with the tennis example for a moment and imagine that one of the tennis players turned up at Wimbledon and said ‘look, okay there is a dispute over my tennis racket, but let’s just play the game and at the end of it, we’ll let the rules officials sort this out. We might have to reverse the result, but let’s get his battle back on the tennis court where it should be’. Can you imagine a more bizarre situation than that? It is totally unacceptable."



On this same topic earlier in the day Bertarelli had accused the American trimaran of being French: "If they start arguing on our sails, there is a tremendous amount of things that we can argue about their boat. They have a German engine on board. Why would the BMW engine be legal? Because Tom Ehman says so? If you step back and look at their boat you ask ‘where this boat is coming from?’ Show me a boat in America that resembles [theirs] even closely. I can show you a lot of boats in France that look just like that one. I can’t find one... [But] if you go on Lake Geneva, the personal press attaché of Russell – Bernard Schopfer - wrote a book about the heritage and tradition of multihull sailing on Lake Geneva and there is a clear sequence of events that made this boat possible to build. Show me a book that shows any such tradition and history for the BMW boat. And on and on. I think that our view is that these two boats are legal, that they used the rules applied to the 32nd America’s Cup - that is our interpretation - with regard to Constructed in Country; the interpretation that we agreed with them for the last America’s Cup. In our view, both these boats are legal and we should go racing. If they start arguing about the sails – then we shall argue about their engine, who designed their boat, where is this boat coming from, why did they need French sailors to get it started? So that is why I think this law suit should be withdrawn."

Bertarelli added that 3DL is Swiss intellectual property having originally been developed in Switzerland including one of their own team - Luc Dubois.

As to their boat being French, Coutts countered: "Go look at their website and see how many Swiss they have got in their design team, if they want to play that game..."

The problem with Coutts’ CoC argument is that while we absolutely agree that the Swiss sails weren’t built in Switzerland - they were finished there - this can be applied to any number of smaller elements that potentially breach the letter of the CoC requirements on both teams’ boats. Typically in past Cups we understand that the country of construction issue has solely focussed on the hull (even some hulls were ‘finished’ in another country, such as Luna Rossa’s ending up at Green Marine in the UK for example). One interpretation of the CoC issue could be simply that the hull alone has to be built in the country of that team, ie anything that can be taken off can be built elsewhere. Our view is that anything beyond this would have to be all encompassing, right down to the nuts and bolts. However after being shy to come forward with it during our interview last week, Coutts last night provided his team’s definition of what CoC entails. "Our position is that if it is a readily-available, non-custom item then you can source that and use it. So a standard bolt or a piece of carbon fibre [can come from anywhere]. The courts might agree with that and they might take a position where every item has to be constructed in the country including the nuts and bolt. If they do that we are happy to go into the race like that."

He continued: "We don’t believe that you can go away and get someone else in another country to construct something that is highly customised for a particular boat and it is a major component of the boat. To us it is very very clear: If you go back and you read the ‘settlers’ intent’ at the time of executing this Deed, it is very clear that this is not acceptable."

Coutts confided that they might, prior to 8 February, make their boat even more conservative in terms of the interpretation of the Deed’s CoC requirements, although he didn’t specify how.

What seems most likely, with just 18 days left to go until the opening race of the 33rd America’s Cup, is that the Supreme Court in New York will not have reached their decision on the CoC issue, especially since Alinghi have yet to file papers with the court stating their counter-arguments.

Equally Alinghi seem to be in absolutely no mood to go back to the drawing board with their sail wardrobe at this late stage.

So it now seems certain that the 33rd America’s Cup will begin racing on 8 February with Alinghi sailing with what BMW Oracle Racing view as illegal sails and thus there will be litigation hanging over the event. As we stated last week, if the New York Supreme Court take the Country of Construction issue literally - ie down to the last nut and bolt on each boat - then it could end up with both boats being disqualified after they have raced...

"There have been rules in this competition for 158 years since this race started, important rules that we believe one side shouldn’t be able to unilaterally be able to ignore at their whim to be able to change the rules to suit themselves," continued Coutts. "That is what this whole argument has been about since day one. When you look back at the early days of settlement opportunities that there have been, we have created what I believe, right up until recent days, some very reasonable settlement opportunities and in fact when you look at our latest complaint about their sails, we have even offered them more time to create some Deed-legal sails in Switzerland. I would suggest that they can do that. That is all we’re asking and what do they do – they turn around and say ‘these guys are trying to delay the event’. I’ll tell you something, if that’s the way they want to be, we’ll go racing on February 8th and we won’t give them more time to build their sails if that’s what they want. I think that was a very generous offer and I spoke to Mr Ellison about that offer to try and i) sort the rules out before the competition starts and ii) make them a reasonable offer, so that they can still come to the water with a Deed-compliant and legal boat and race us. If they don’t want to do that, then frankly we are not going to allow them to break the rules as they like in this competition.

"I feel very strongly - I have never before been at any sailing regatta where one of the competitors tried to determine what wind conditions you should race in or tries to change the fundamental rules or turn up with an illegal sail in the competition and then to expect the other competitors to say ‘that’s okay let’s just go race this race on the water’. That’s not happening. The problem with this situation is that Ernesto Bertarelli is allergic to racing under fair rules. If he would just race under fair rules then we can get this competition on on the water and you’ll see two great teams doing battle and I think that a lot of it will be wind dependent. I think there is going to be an even bigger difference in the boats to what I thought they would be depending upon those wind conditions."

Once again Coutts stressed that the CoC issue had been taken to the court in New York because they hold jurisdiction over Deed of Gift issues. If the judge delegates the decision on to the international jury - then Coutts said he was absolutely fine about this.
Coutts went on to say he was disappointed that the 33rd America’s Cup was more likely to be decided on the weather, technology (ie the difference in speed of the boats), breakage and crew mistakes, rather than crew skill. "As an engineer I am fascinated by what I see [the boats], but it is not where I think this sailing competition should be. It shouldn’t be decided by the weather."



Going racing on 8 February?

So the million dollar question - if there is litigation pending, will BMW Oracle Racing be on the start line on 8 February? “We’ll have to - but what a ridiculous situation that is. If the answer doesn’t come before the race, we’ll get the answer after the race,” states Coutts.

Bertarelli doesn’t think that at this stage the 33rd America’s Cup could be delayed from 8 February. "It has been mandated by the New York Surpeme Court, and we have an agreement with the City of Valencia. Our sponsors have the dates and they have booked flights and rooms. I have had numerous invitations now and we are working closely with the city to set up television coverage. We are three weeks away from the race date set by the New York court. If BMW Oracle wants to carry the argument on beyond the regatta, they can do that, like it was done in 1988. It has to race - the America’s Cup is like a long marathon: You run for two and a half years to the finish line and this last month is the final sprint. And we are sprinting - we are putting everything we have developed over the two and a half years into the boat, because the finish line is 8 February. And if we are sprinting and someone says ‘hold on a second, the finish line is not in 500m it is in 3 more miles’ it sets off all your preparation and planning and for the team to peak at the right time. So the date of 8 February has been the same for them and us. The America’s Cup is not won in a day, it is won in two years. So the 8 February is when we have to go racing."

Nor does Bertarelli think at this stage that the series can be any longer than a best of three. "We could have agreed to different formats but I think now it is too late. We tried to sit down with them twice and twice they served us papers while we were negotiating. Ultimately the three versus seven format given that the two boats and the two configurations are so different, I think that with the Deed of Gift format we’ll find out who has the fastest boat. We are going to be sail 40 nautical miles in the first race and the second one is 39 nautical miles, so it is lot of miles to cover, and we’ll find out who has the fastest boat. We don’t need to drag it on. And the impact is stronger. It is February. It is already going to be hard to get three good days of sailing in."

Among Alinghi’s latest views on the short comings of the American team is over their trimaran, with its solid wingsail complying with the vessel described in the BMW Oracle Racing/GGYC original Notice of Challenge document. "The AC spirit is the challenger declares their boat and the defender gets 10 months to respond. They declared a sloop and we asked repeated for them to announce their boat as soon as possible as is mandated by the Deed of Gift. When they launched their boat it had a mast, a mainsail and a jib. Right now their boat doesn’t look much like a sloop – it looks like a cat-rigged boat, certainly the way it goes upwind. So where is the mainsail – where is the jib?"

Alinghi are also not happy with the US team being in the commercial port, but equally, as Coutts argues, there is no way that the BMW Oracle Racing trimaran, with its solid wing rig, could negotiate the narrow channel down to their base in the Darsena with any semblance of safety. "They argued in court that the infrastructure in Valencia was perfect for the America’s Cup in February," said Bertarelli. "They are not using the infrastructure of Valencia, they are barricaded behind containers in the commercial port and if you try and go and look at them preparing for the America’s Cup you will chased by police."

Bertarelli concluded: "If Larry Ellison wins the America’s Cup in court, I’ll be paying for the party in New York. I’ll bring the champagne. I’ll celebrate with him. If that is the way it is going to end, I’ll be the first one clapping ‘well done, Larry. Well done. Way to go. You have won the America’ s Cup in court’. In some ways it is getting there because after nine challenges and changing - and that is a personal view – the history and tradition of the America’ s Cup as it has been for more than 150 years, he has in some ways managed to get quite a lot of advantage in court. But if the court then decides that if we can’t lose our sails, I’ll go to New York and say ‘good on you’."