Alinghi amends Protocol and appeals to BMW Oracle Racing. But is it enough to avoid the courts? Matthew Sheahan reports

 In a statement issued today by Defenders Alinghi, the Swiss team says it has addressed the ‘majority of BMW Oracle Racing’s concerns’ and appeals to the American team to drop its legal action and join the 33rd America’s Cup.

In broad terms (the full statement is below) Alinghi has;

1 – Clarified America’s Cup Management’s (ACM) position on disqualifying a competitor

2 – Clarified the circumstances in which ACM might accept or reject a Challenger

3 – Changed the process by which the Protocol can be amended

4 – Has deleted ACM’s power to remove members of the Arbitration Panel

5 – Tweaked the ‘neutral management’ issue.

While these five topics include some of the issues that are at the heart of the dispute, they do not appear to address all the aspects that Larry Ellison’s team are unhappy with. The fact that under the current Protocol the Defender can sail against the Challengers right up to the semi-finals must surely remain of concern.

But perhaps the most crucial issue of all is whether the Spanish challenge is a valid one. It is this issue in particular that appears to be driving the debate towards the courts.

Nevertheless, with Alinghi having made its next move, it’s BMW Oracle Racing’s turn to respond.

In the meantime, here’s the full Alinghi statement.

Today the Société Nautique de Genève (SNG) and Alinghi announced that after a series of successful Competitor Commission meetings and discussions with the legitimately entered challengers, the Protocol has been amended in agreement with the Challenger of Record, Club Náutico Español de Vela (CNEV). As a result of this, the majority of BMW Oracle Racing’s concerns have been addressed and the Defender issues a final appeal to the American team to drop their legal actions and join the competition.

These developments continue the progress of planning the 33rd America’s Cup, as Brad Butterworth, Alinghi skipper, explains: “The Competitor Commission meetings were set up as a forum to shape the 33rd America’s Cup and this avenue of dialogue is really working for the better of the event. With this and the ongoing design consultation period, which will define the new class rule and competition regulations, we are making good progress towards the 33rd.”

These amendments, as a result of Competitor Commission meetings, also reflect many of the desired changes brought forward by BMW Oracle Racing and discussed between Brad Butterworth and Russell Coutts, BOR skipper, over the last few weeks, in an attempt to resolve their concerns over the 33rd America’s Cup Protocol.

As a result and following these changes, Ernesto Bertarelli, Alinghi syndicate head, appeals to the Golden Gate Yacht Club (GGYC): “I would again appeal to BMW Oracle Racing to enter the 33rd America’s Cup as a legitimate challenger. It has been demonstrated that dialogue is possible for the better of this event and it should be noted by them that many areas of their concerns have been addressed.”
And finally he added: “We would also like BMW Oracle Racing to consider that their action is hindering the opportunity for other teams to enter the competition, and harming the ability of existing competitors to generate sponsorship income and properly plan their challenge.”

The Protocol amendments are as follows:

With regards America’s Cup Management’s (ACM) power to disqualify a competitor, this has been clarified to say that, should a competitor refuse to be bound by the Protocol, then they will have recourse to the Arbitration Panel without risk of disqualification until the Panel rules.

Secondly with regards ACM’s right to refuse an entry. The amendment is a restriction of ACM’s ‘ability to reject’ to an ability only on very specific grounds, which are: failure to comply with the Deed of Gift, a capacity issue within Port America’s Cup or a need to provide an equitable balance of competing nations. The SNG has made it clear that, should the GGYC abandon their legal action, they would be welcomed as a competitor for the 33rd edition and could shape the event along with the other challengers and the Defender during the ongoing Competitor Commission meetings.

A further suggested amendment point, on recommendation from the Arbitration Panel, regards the power of ACM to amend the Protocol and other rules. This has been changed to state that ‘any proposal to make any Protocol changes, related to the way in which the Arbitration Panel works, must be subject to its prior approval.’

In addition to this amendment, the SNG and CNEV have deleted the power of ACM to remove members of the Arbitration Panel.

Finally, the concern regarding ‘neutral management’ has been amended to extend the Fair Sailing rule to apply to all matters directly related to the regatta.