This week, a fierce dispute and a decision by the independent arbitration tribunal have set the opposing parties in the America's Cup on fire. Around two months before the start of the Christmas pre-regatta and the associated first clash between the Cup teams, a public dispute has arisen between the defenders of Emirates Team New Zealand and the Italian Luna Rossa Prada Pirelli Team ("Challenger of Record", COR36 for short). The Italians had appealed to the Court of Arbitration in anger that two of the five planned and agreed race courses would only be available for the final of the challenger series, but not for the round robin preliminary round and the semi-finals. These are the two particularly spectator-friendly courses B and C, which, as a result of agreements with the harbour authorities, will not be available to the challengers until the end of the Prada Cup.
Because it can be assumed that these two spectator-friendly courses will form the "main stadium" for the 36th America's Cup duel, the Italians felt that by cancelling the majority of the races in the challenger series, they were deprived of sufficient regatta sailing time where it could really count in the later Cup duel. Namely, where in March the best challenger will in all likelihood challenge the New Zealand Cup defenders in the battle for the coveted SIlberkanne: on the public courses B and C.
The decision in favour of the Italians was made by the America's Cup Arbitration Panel chaired by Australian David Tillett with Dr Henry Peter (Switzerland) and Graham McKenzie (New Zealand). All three are lawyers with plenty of America's Cup experience. The Italian application against what they saw as an imbalance in the utilisation of potentially decisive courses was flanked by two similar submissions from the other two challengers (Ineos Team UK, American Magic).
The arbitration tribunal ruled as follows:
"If parts of the course areas for the Challenger Series and the Match (for example, courses B and C) are not accessible at all times without restrictions in accordance with Article 3.4 of the Protocol, then that part of the course area will not be used for either the Challenger Series or the Match."
The arbitral tribunal also clarified that its decision does not prevent the Challenger of Record and the Defence Counsel from approaching the competent port authority with an attempt to relax the current restrictions or to reach another mutually agreed solution in consultation with all participants. The decision is available as "Decision ACAP 36/12". here in detail.
As the losers of the decision, the Kiwis reacted indignantly. In their statement, they said after the arbitration judgement became known:
"After three years of planning for a land-based stadium event, Challenger of Record Luna Rossa has taken a campaign through the Adjudication Panel that has destroyed one of the greatest benefits of the America's Cup event for the people of Auckland and visitors from across New Zealand. The America's Cup Court of Arbitration released a decision overnight that cancels the use of the inner race courses of the harbour stadium for all races in the Prada Cup (Challenger Series) and America's Cup Duel. This decision has a significant negative impact on event accessibility for the Auckland and New Zealand public, the safety of the event and the reliability of staging the races. All of these elements have been fundamental to Emirates Team New Zealand since we won the America's Cup in 2017. The imagery with Auckland City in the background has always been an important factor in showcasing Auckland and New Zealand around the world in an event that has a significant global audience - which was another reason for the original race course selection. New Zealand CEO Grant Dalton said: 'I'll be blunt: We are outraged by this decision because it goes against everything we have tried to achieve over the past three years and has no regard for the impact this has on the Auckland and New Zealand public.' Emirates Team New Zealand is now looking at options to remedy this unbelievable decision."
The Italian "Challenger of Record" responded to the fierce indignation of the New Zealanders and the accusations with this statement:
"We were disappointed to read the ETNZ press release. We would therefore like to point out some key elements that explain the arbitration panel's decision to withdraw race courses B and C from the 36th America's Cup.
- The America's Cup is governed by a set of rules accepted by all challengers and the defender: the protocol that guarantees the sporting fairness of the event.
- A fundamental rule of the protocol, Article 3.1, specifically states that all Prada Cup challenger series races must be sailed "(...) within the course areas of the match (...)" (the protocol and the relevant passage can be accessed and downloaded here.
- In early September, the Challenger of Record discovered, without prior involvement or information from the Defender, that the round robin preliminaries and semi-finals of the challenger series - the Prada Cup - could not be sailed on courses B and C, the preferred courses for the final match. The defender has kept this situation under wraps since the end of January/beginning of February.
- Having become aware of the situation, the Challenger of Record COR36, with the support of all challengers, has requested that Rule 3.1 above be enforced.
- With the aim of restoring sporting fairness and justice, the arbitration panel has decided that race courses B and C can either be used for all Prada Cup races - or not at all.
The attacks from Emirates Team New Zealand are aimed solely at discrediting the Luna Rossa Prada Pirelli team with populist accusations that disguise an attempt to gain an unfair advantage over the challengers who, we repeat, unanimously support the COR36 by making their own independent submission."
And who is right?
According to New Zealand America's Cup veteran Brad Butterworth, who first won the America's Cup in a row with New Zealand, then with the Swiss team Alinghi and has now been working as a consultant for the Luna Rossa Prada Pirelli team for a few weeks, his compatriots have been "caught out" trying to bend the regatta too much in their favour. Butterworth told the New Zealand Herald newspaper that the fight over the use of the area was an "old problem" of the America's Cup. Butterworth described the current relationship between the defenders and the "challenger of record" as "not great", but appealed to the Kiwis to remain approachable for an amicable solution. The Italians, and with them the other two challengers, currently have the leverage for this in the form of the arbitration award. The Kiwis cannot be happy to continue defending the silver jug out at sea instead of close to the public. And it doesn't.
While New Zealand's CEO Grant Dalton has since described the arbitration decision to the New Zealand Herald as fair, he also insists that there had long been a deal with the Luna Rossa Prada Pirelli team on this issue and that the case should not have gone to arbitration in the first place. In an interview with the daily newspaper, Dalton made further "pinpricks" towards the Italians, noting, for example, that the Luna Rossa Prada Pirelli team "fired its entire management in March" and "started afresh". Despite the arbitration ruling, the dispute between the Kiwis and the Azzurri is clearly far from over. Because Dalton also made this clear: his team would move "heaven and earth" to change the current situation, which would spoil the sailing party for most Kiwi fans. This can only work through joint negotiations, as there is no possibility of appeal against a decision by the arbitration tribunal.
Sport is still in demand in New Zealand: On Friday, Sir Ben Ainslie's Ineos Team UK tested its new "Britannia" for the first time in action off Auckland
Tatjana Pokorny
Sports reporter
