The AC 37 has started, news and rumours

[accnick]

Part of the challenge associated with the cup is financial. Many may bemoan that but facts are stubborn things. Having won six of the last eight cups, the Kiwis have more than proven themselves equal to the task on the water. We'll see if they can navigate the finances.  

Your math seems a bit off here:

2021    NZ

2017    NZ

2013   USA

2010   USA

2007  SUI

2003  SUI

2000   NZ

1995   NZ

If you want to ignore the DoG Match of 2010, we'll go back one more and throw in:

1992  USA

Four out of eight is pretty damn good. Do you see a pattern above since 1995? Try:

win

defend

lose

This goes for NZ, SUI, and the USA. 

 

[porthos]

"The loser of the 2022 match will immediately present a challenge for the following, multi-challenger match, in the expectation of being the CoR for the 2024 match."

It is this kind of bullshit that is why the NYSC needs to be more progressive in their thinking. To date they have refused, as best I recall, to make decisions on anything but the intent of the deed. I think it would be wise of them to accept that the application of the Deed has changed and they should be putting provisions in place to better protect the Deed from those changes in how the event is now.

From the New York Court of Appeals in Mercury Bay:

"Questions of sportsmanship and fairness with respect to sporting contests depend largely upon the rules of the particular sport and the expertise of those knowledgeable in that sport; they are not questions suitable for judicial resolution . As sporting activities evolve in light of changing preferences and technologies, it would be most inappropriate and counterproductive for the courts to attempt to fix the rules and standards of competition of any particular sport. To do so would likely result in many sporting contests being decided, not in the arena of the sport, but in the courts." (Internal citations omitted; bold emphasis added.)

The NYCA will limit itself to attempting to apply the plain meaning of the words used in the Deed as the best evidence of what the grantor intended, and will not attempt to go beyond that. 

 

[porthos]

Your math seems a bit off here:

2021    NZ

2017    NZ

2013   USA

2010   USA

2007  SUI

2003  SUI

2000   NZ

1995   NZ

If you want to ignore the DoG Match of 2010, we'll go back one more and throw in:

1992  USA

My point (perhaps clumsily made) was that retaining the cup requires both prowess on the water and financial resources. The Kiwis have the former in abundance and, based on what others have said here, appear to struggle with the latter. They are fantastic sailors, and for that purpose was counting 2003 and 2007 as those teams were lead by Kiwis.

 

[porthos]

You miss my point entirely.

Contract law is contract law. The Deed of Gift is in essence a contract for the cup itself, and in order to hold it the winner must comply with it. That says nothing about other contracts on top of it, my point is it is possible for both sides to be correct here. That there can be a legally enforceable (as in financial penalties) agreement that they'll use the AC75 for two cup, at the same time as the winner being legally able to hold the match in any class they like.

We've plowed that ground earlier in this thread. Yes, the parties could have a separate agreement talking about future cups that imposes financial penalties for failing to abide by those terms. That would not run afoul of the Deed as nothing in that separate agreement would prevent a party from complying with the Deed.

 

[mako23]

What is your opinion o  the matter? I admit I'm a little bit confused here. Reading that, I would imagine it refers to the specific boat used in the Match, let's say Britannia. Should the British lose the 1 - 1 match, what prevents them to use a new boat to mediately challenge again? 

The commodore of the RNZYS being locked away in Auckland with commodore of another club

 

[accnick]

My point (perhaps clumsily made) was that retaining the cup requires both prowess on the water and financial resources. The Kiwis have the former in abundance and, based on what others have said here, appear to struggle with the latter. They are fantastic sailors, and for that purpose was counting 2003 and 2007 as those teams were lead by Kiwis.

Winning the AC is a team effort involving a complete program, including  management, design, construction, and sailing (among a bunch of other things, including a strong financial base).

More often than not, the winner is the one who puts all those things together at the right time.

The TNZ program in 1995 did that as well as or better than any team in the modern era, and is still the benchmark

 

[porthos]

W

Thanks! Another question. Let's assume for a while that ETNZ and INEOS produce a protocol with such a clause regarding AC38. Then someone appeals to the NYSC. What could the outcome be? The Court ask them to amend that part of the protocol? Or could they invalidate the whole challenge (I don't think so). What happens if the decision come after the  match has  been raced? I wonder if the RNZYS has received other challenges other than from ineos. All other subsequent challenges would not be obviously taken into account,  but what if the first one is for whatever reasons declared invalid?

The NYCA would invalidate the Protocol as violating the Deed (and would probably say something along the lines that the parties cannot use the "mutual consent" clause of the Deed to override other requirements of the Deed). The NYCA would not invalidate the entire challenge as the challenge met the requirements of the Deed.

If the contest hadn't occurred yet, the court would probably not tell the parties what to do -- the court would just confirm that the Protocol before the court was invalid. The parties would then have to agree to a revised Protocol or sail under the terms of the Deed.

If the contest already occurred, the court would confirm that nothing in the AC37 Protocol could bind the AC38 match, and that any attempts to do so would be invalid. 

 

[The Advocate]

From the New York Court of Appeals in Mercury Bay:

"Questions of sportsmanship and fairness with respect to sporting contests depend largely upon the rules of the particular sport and the expertise of those knowledgeable in that sport; they are not questions suitable for judicial resolution . As sporting activities evolve in light of changing preferences and technologies, it would be most inappropriate and counterproductive for the courts to attempt to fix the rules and standards of competition of any particular sport. To do so would likely result in many sporting contests being decided, not in the arena of the sport, but in the courts." (Internal citations omitted; bold emphasis added.)

The NYCA will limit itself to attempting to apply the plain meaning of the words used in the Deed as the best evidence of what the grantor intended, and will not attempt to go beyond that. 

Yes, I have recognised that and stated as such. Times have moved on though and it would be good for the NYSC to revisit their thinking.

 

[porthos]

Winning the AC is a team effort involving a complete program, including  management, design, construction, and sailing (among a bunch of other things, including a strong financial base).

More often than not, the winner is the one who puts all those things together at the right time.

The TNZ program in 1995 did that as well as or better than any team in the modern era, and is still the benchmark

I certainly didn't mean to imply that winning the AC was limited to only sailors and money. You are of course correct that many other things go into that equation (design, management, construction etc.).  Perhaps I should have said there is money and then everything else. The Kiwis have excelled at everything else. 

 

[porthos]

Yes, I have recognised that and stated as such. Times have moved on though and it would be good for the NYSC to revisit their thinking.

Courts don't really work that way here. They are bound by prior decisions and can only rarely change them. The words I quoted and the approach of the court are binding precedent on any future courts that may have to deal with interpreting the Deed.  Moreover, the court is frankly right in saying that courts are unsuitable to resolve matters relating to the fairness of sporting contests.

You are, of course, entitled to your opinion and your wish as to what would happen. I was merely pointing out that there is nothing in our jurisprudence here that would really allow that to happen. 

 

[Fiji Bitter]

He's trolling B)

Maybe a little bit, but the opinions in this thread are very one sided, and sometimes factual wrong or historically incorrect. Besides there are also some real trolls, and some that just keep repeating themselves endlessly. 

Of course I do appreciate all the serious and well meant posts , and the funny ones too, thank you very much.

Anyway, don't get me wrong, I fully understand the "higher" position of the DOG, absolutely. What I tried to make clear is how there is a way around it, to nevertheless agree in principle on the next (2nd) challenge, all within the 4 corners. If you think that some smart lawyers cannot do this, then you are pretty naive.

And indeed, a pre-agreement will not be DOG enforceable, but a considerable compensation clause, in a totally separate contract, will stand up in a regular civil court, and not be ultra vires. This has been made clear by Porthos and JonRowe too, isn't it?

Now, do I really like the idea of an interum Round Wight challenge, just like a one off official AC Cup regatta?  Well, as long as there is no harm to all other potential challengers, why not. The subsequent regular AC has already been brought forward by 1 year, and will be in the AC75 that almost everybody loves, so don't get too emotional, don't worry, be happy!

 

[The Advocate]

Courts don't really work that way here. They are bound by prior decisions and can only rarely change them. The words I quoted and the approach of the court are binding precedent on any future courts that may have to deal with interpreting the Deed.  Moreover, the court is frankly right in saying that courts are unsuitable to resolve matters relating to the fairness of sporting contests.

You are, of course, entitled to your opinion and your wish as to what would happen. I was merely pointing out that there is nothing in our jurisprudence here that would really allow that to happen. 

Yes, my partner is American and I spend time there, I understand that common sense is not your country's strong point, but arse covering is.

 

[Fiji Bitter]

Oh wait, the schooner America was American, and the DOG was written by an American "genius", and it's called the America's Cup. 

And BTW, the Americans defended the Cup merciless for a long time with every possible restriction for the Challengers. Everything 100% strict nationality rules, no discussion! Only some court cases...  -_- .

 

[IPLore]

There are some here that are suggesting involving involving the NYSC.

I am not quite clear which role they are suggesting:

1) Resolving litigation.   Thus far nobody is suing anybody else.  Let us hope it stays that way. Litigation has always been bad for the cup.

2) Approving a proposed amendment to the DoG.    The NYYC has applied for and received 2 amendments to the deed subsequent to the passing of the original donor.  I believe a 3rd amendment would need to be submitted by NYYC.

There has historically been a tradition of selecting a measurement rule for the cup and keeping that class for several cycles or even several decades.  The J Class (20+ years) was followed by the 12 meter class (30+ years) was followed by the IACC (15+ years).   It has been noticeable that participation picks up when the AC sticks with a class for several cycles. 

I do not think that Defender and CoR agreeing to staying with the AC75 for one subsequent event after 37 is a blatant breach of the DoG.  Nor do I think that the NYYC will seek an amendment to prevent that.  

The tricky question will be enforcement of that entry requirement. In theory a challenger for AC 38 could be a club which did not participate in AC 37 and did not sign the entry contract.

For the time being, it is an academic and somewhat fruitless debate. The AC 37 is going to be held in AC75s because the defender and CoR have so decided. Any agreement on the AC75 for A C 38 will have a clause "unless mutually decided otherwise". Most everyone who invests in a AC75 will likely want the same boat used for the next two cycles.

As to a one vs one match , the DoG clearly allows this. The court would likely not stand in the way of this for one cycle but if two clubs tried to turn it into a perpetual 2 club competition with the 2 clubs agreeing to challenge each other to the exclusion of other challenges, then this would likely be taken to court by another club that wants to challenge. Under paras 2 and 3 of the gift,  it was clearly intended to be open to more than 1 club from 1 country over time.

Again this is academic because the current challenge press release seems to envisage other entrants.                                                                                                                                                                                                  

 

[porthos]

There are some here that are suggesting involving involving the NYSC.

I am not quite clear which role they are suggesting:

1) Resolving litigation.   Thus far nobody is suing anybody else.  Let us hope it stays that way. Litigation has always been bad for the cup.

2) Approving a proposed amendment to the DoG.    The NYYC has applied for and received 2 amendments to the deed subsequent to the passing of the original donor.  I believe a 3rd amendment would need to be submitted by NYYC.

<snip>

The trustee has to request an amendment, so RYSNZ would have to do that. 

There is precedent for the trustee applying for an interpretive resolution of the Deed rather than an amendment. In 1985, the Royal Perth Yacht Club (as trustee) requested a confirmation from the NYSC that the "arm of the sea" requirement of the Deed allowed a challenge from the Chicago Yacht Club. The parties all stipulated that the "arm of the sea" could include the Great Lakes, so the court didn't really have to do any heavy lifting.

You are correct that nobody is suing right now.  Although this setup up -- if true -- is fertile grounds for litigation. If ETNZ/INEOS attempt to publish a protocol for AC38 before AC37 is done, watch for someone (perhaps like EB) to sue to invalidate it as violating the Deed (because no new challenge can be considered until AC37 is done).

Even if nobody sues in the event ETNZ/INEOS release the AC38 Protocol early, I will be interested to see how many teams are willing to start up an AC75 campaign for AC38 before AC37 is over, as until AC37 is over nobody can be sure that AC38 will be contested in AC75s.  That's a lot of time, effort, and most importantly money to expend without a guarantee that AC38 will be what it has been promised to be.  

 

[IPLore]

A Protocol Governing AC37 will be published within eight months including the provisions outlined below:

• It has been agreed the AC75 Class shall remain the class of yacht for the next two America's Cup cycles,This is likely a good thing. I say "likely" because in the past, staying with a class/rule for more than one cycle has increased participation. However the AC 75 is an expensive beast and if challengers remain low than hopefully this would be mutually revisited.  and agreement to this is a condition of entry.
  
• The teams will be restricted to building only one new AC75 for the next event. Clear sign of desire for cost control but also a competitive disadvantage for new teams.
  
• A single Event Authority will be appointed to be responsible for the conduct of all racing and the management of commercial activities relating to AC37.
  
• The Defender and the Challenger of Record, will be investigating and agreeing a meaningful package of campaign cost reduction measures including measures to attract a higher number of Challengers and to assist with the establishment of new teams. Clear desire to increase participation.
  
• A new Crew Nationality Rule will require 100% of the race crew for each competitor to either be a passport holder of the country the team's yacht club as at 19 March 2021 or to have been physically present in that country (or, acting on behalf of such yacht club in Auckland, the venue of the AC36 Events) for two of the previous three years prior to 18 March 2021. As an exception to this requirement, there will be a discretionary provision allowing a quota of non-nationals on the race crew for competitors from "Emerging Nations." Gives Spithill lots of options but it will exclude some of the top talent around the world .   I am not a fan of this rule. It helps ETNZ (and Team GBR) but also depresses market value of some of the world top professional sailors.
  
• There are a number of different options but it is intended that the Venue for the Match will be determined within six months and the dates of racing announced in the Protocol, if not before. Open ended on location.
  

 

[strider470]

As a LR fan I would be very displeased if the ETNZ and INEOS will  actually consider the 1 - 1 match.This is something clearly against all the other challengers, especially LR that was the most competitive of them in this edition.

And I add that this would be a precedent that could easily backfire on the Kiwi Team in the future.

When one of the two buddies will lose the Cup, and sooner or later it will happen, the new defender could follow the very same path. Would ETNZ sourvive such a situation? Based on the financial struggle they usually have to retain their assets even beteween consecutive cups.. I think not.

 

[The Advocate]

As a LR fan I would be very displeased if the ETNZ and INEOS will  actually consider the 1 - 1 match.This is something clearly against all the other challengers, especially LR that was the most competitive of them in this edition.

And I add that this would be a precedent that could easily backfire on the Kiwi Team in the future.

When one of the two buddies will lose the Cup, and sooner or later it will happen, the new defender could follow the very same path. Would ETNZ sourvive such a situation? Based on the financial struggle they usually have to retain their assets even beteween consecutive cups.. I think not.

I hear you and agree, but I think 37 will likely go DoG. I can't see anyone wanting to sniff the turd these two are gestating.

 

[The Advocate]

There are some here that are suggesting involving involving the NYSC.

I am not quite clear which role they are suggesting:

1) Resolving litigation.   Thus far nobody is suing anybody else.  Let us hope it stays that way. Litigation has always been bad for the cup.

2) Approving a proposed amendment to the DoG.    The NYYC has applied for and received 2 amendments to the deed subsequent to the passing of the original donor.  I believe a 3rd amendment would need to be submitted by NYYC.

There has historically been a tradition of selecting a measurement rule for the cup and keeping that class for several cycles or even several decades.  The J Class (20+ years) was followed by the 12 meter class (30+ years) was followed by the IACC (15+ years).   It has been noticeable that participation picks up when the AC sticks with a class for several cycles. 

I do not think that Defender and CoR agreeing to staying with the AC75 for one subsequent event after 37 is a blatant breach of the DoG.  Nor do I think that the NYYC will seek an amendment to prevent that.  

The tricky question will be enforcement of that entry requirement. In theory a challenger for AC 38 could be a club which did not participate in AC 37 and did not sign the entry contract.

For the time being, it is an academic and somewhat fruitless debate. The AC 37 is going to be held in AC75s because the defender and CoR have so decided. Any agreement on the AC75 for A C 38 will have a clause "unless mutually decided otherwise". Most everyone who invests in a AC75 will likely want the same boat used for the next two cycles.

As to a one vs one match , the DoG clearly allows this. The court would likely not stand in the way of this for one cycle but if two clubs tried to turn it into a perpetual 2 club competition with the 2 clubs agreeing to challenge each other to the exclusion of other challenges, then this would likely be taken to court by another club that wants to challenge. Under paras 2 and 3 of the gift,  it was clearly intended to be open to more than 1 club from 1 country over time.

Again this is academic because the current challenge press release seems to envisage other entrants.                                                                                                                                                                                                  

There is no real new info in that. There are inaccuracies though, NYYC is not the current trustee. From my recollection, albeit vague, there are other parties that can request amendments. I would have to check that though.

 

[IPLore]

I hear you and agree, but I think 37 will likely go DoG. I can't see anyone wanting to sniff the turf these two are gestating.

By DoG , do you mean with no measurement rules other than the DoG

Or do you mean 1 vs 1 with AC75s........