Has Societe Nautique de Geneve failed to comply with the Deed of Gift by denying the Americans its sailing regs and rules?
At Golden Gate Yacht Club’s request, the Supreme Court of the State of New York has issued an order directing the defender, Societe Nautique de Geneve (SNG), to show cause why it should not be held in contempt of court for failing to comply with the America’s Cup Deed of Gift by denying GGYC its rights, as the next America’s Cup challenger of record, as detailed in the Order and Judgment.
Specifically, to date SNG has refused to affirm its sailing regulations and rules to GGYC as required by the Deed. To make matters worse, SNG said that it may change the rules in the future without GGYC’s consent, including the rules governing construction of the competing vessels. Further, it has entered into a secret agreement with the International Sailing Federation (“ISAF”), the organization which will have a central role in selecting match officials and sailing jury.
“Once again, Alinghi seems to believe the Deed and other rules do not apply to them,” said GGYC spokesman Tom Ehman. “As we said in our court brief today, the prejudice to GGYC is manifest. For example, SNG has proclaimed the intent and authority to construct its competing vessel with engines to trim sails and movable ballast, each now banned by the ISAF rules, and then announce a change in those rules that permits them. In designing its competing vessel, GGYC was compelled to rely on the ISAF rules which prohibit engines and movable ballast.”
In early April the New York State Court of Appeals, in a unanimous 6-0 ruling, held that GGYC was the rightful challenger, and that the next match would be in early February 2010.
The Deed of Gift provides that the Cup match “shall be sailed subject to [the defender’s] rules and sailing regulations so far as the same do not conflict with the provisions of this deed of gift.” The Deed also explicitly provides that the defender’s “rules and sailing regulations” for the match may only be modified through mutual consent of the defender and challenger.
At the time of GGYC’s challenge on 11 July 2007, SNG’s “rules and sailing regulations” were those of the International Sailing Federation (“ISAF”), including the ISAF Racing Rules of Sailing (“RRS”) that then and now govern major sailing events. These rules apply “so far as the same do not conflict with the provisions” of the Deed.
However, by letter to GGYC dated 23 April 2009, SNG for the first time claimed the right to change the rules for the match at anytime without mutual consent.
An ISAF Executive Committee member has acknowledged that on 5 June 2009, SNG (or its racing team Alinghi) paid ISAF 150,000 Euros pursuant to a secret agreement making certain arrangements concerning ISAF’s role in, and the “rules and sailing regulations” for, the next Cup match.
Neither ISAF nor SNG/Alinghi will disclose the agreement to GGYC. Especially in light of ISAF’s central role in selecting the match officials and sailing jury, such collusive secrecy is unacceptable and violates SNG’s fiduciary duty to GGYC as the challenger of record and trust beneficiary.
The court scheduled a hearing for Tuesday 21 July at 10:00.
“It is again a disappointment that the Golden Gate Yacht Club (GGYC) chooses to pursue its litigious strategy instead of fighting for the America’s Cup on the water. It is now the fourth time the American team goes to court, this time in an attempt to prevent the SNG’s legitimate right to use its yacht club rules – as prescribed in the Deed of Gift – and the ISAF rules and regulations to their full extent, as it has been the case in previous editions of the America’s Cup and in any international regatta in the world. While GGYC continues to put pressure on the SNG through the New York courts, SNG continues to wait for the GGYC to provide their yacht’s Custom House Registry as soon as possible, as per the Deed of Gift and the New York court decisions.”
Supporting court documents are available online at www.ggyc.com .