Following the ruling of the New York Supreme Court on 29 July (reinstatement of Spain's CNEV as Challenger of Record), the Cup seemed to be back on track. Initial plans for an event with several challengers had begun immediately after the judgement. Now BMW Oracle has once again vetoed the idea - and the future is more uncertain than ever.
As last Tuesday's judgement was not unanimous, the Americans had the right to appeal against the decision. And they did just a few days later. BMW Oracle argues that the Spanish Challenger of Record, which was reinstalled as the leading challenger on Tuesday, does not fulfil the criteria of the 1887 foundation charter. Spokesman Tom Ehman says: "We believe the Challenger of Record must be a genuine yacht club. It must not be an entity set up with the help of the defending champion to organise a one-sided event. Such a decision would set an absurd precedent."
The Spanish Club Nautico Espanol de Vela (CNEV) was founded specifically for the America's Cup. The legal dispute between BMW Oracle and Cup winner Alinghi centres on unclear wording in the foundation charter, which the US team interpreted to mean that the CNEV does not fulfil a criterion of the Deed of Gift - the Challenger of Record must hold an annual regatta at sea. The Spaniards started doing this after their challenge, with Optis. In the opinion of BMW Oracle, this is not enough, so the entire protocol for the 33rd America's Cup is invalid.
The fact is that the wording, which was written down over 120 years ago, is so vague on this point that it can be interpreted in any way today. Judge Herman Cahn had previously agreed with the Americans' argument, but three of the five appeal judges interpreted the passage in the same way as Alinghi and the CNEV. There is no clear truth in the case, only one clear loser: the sport.
The only thing that is certain at the moment is that the Cup has reached the lowest point in its 157-year history and has lost all credit with athletes, sponsors and fans. The grotesque wrangling in court is no longer comprehensible to the interested public. Observers recognise the appeal by the Americans as the "death blow" for the Cup - because a sporting competition cannot be expected in the coming years after the recent events.
Further developments remain completely unclear for the time being. After the judgement in the first instance (BMW Oracle as the only challenger), the plans of most of the campaigns were destroyed and the teams were disbanded. Only BMW Oracle and Alinghi were preparing for a duel with specially built 90-foot multihulls, with March next year as the likely date. However, following Alinghi's victory in the appeal, plans were made at the end of last week for a cup with several challengers with the prospect of regattas in 2010 or 2011. However, it will now take "at least 22 to 24 months" before a final decision is made, according to Alinghi lawyer and spokesman Lucien Masmejan.
Brad Butterworth, America's Cup veteran in the service of the Swiss said: "I am disappointed that BMW Oracle has decided to further delay the 33rd America's Cup after the opportunity for a multi-challenger event following the Court of Appeal decision."
