In 1851, the schooner America, was last away at the start of the 100 Guineas Cup; by the first mark, No Mans Buoy, Volante, Freak, Aurora and Gipsy Queen were the leaders, with America fifth. Volante then stood on for the Nab Light vessel, for the normal Queen's Course instruction for racing was to round the Nab, but local pilot Robert Underwood, on board America, had noted that this requirement had been omitted from the race regulations! He took the American schooner inside the Nab and grabbed a lead that he held to the end.
There were, of course, cries of “unfair”, but it was ruled that America had committed no breach of the race rules and thus, albeit not for some years, the America’s Cup competition was born.

Nothing has changed much, protests and cries of “unfair” and legal action – threatened and actual - have persisted throughout the 150+ year history, so the controversy that is, presently, raging in 2007 is nothing exceptional. Talk of challengers abandoning the America’s Cup, in favour of “an alternative event”, as some columnists, bloggers and forum posters have suggested, is sheer nonsense. There is only one America’s Cup, there can be no alternative; this matter will be settled and the 33rd America’s Cup will take place, the only questions are over how it gets settled and when, where and in what boats it takes place.

In its action against the Société Nautique de Genève, the first thing that the Golden Gate Yacht Club, the challenger for Oracle, has asked the New York Supreme Court to do is to do is “void the purported challenge of the Club Náutico Español de Vela (CNEV), because CNEV does not qualify under the Deed of Gift as a challenger.” The reasons behind that statement are a Deed of Gift statement that “Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta on ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match for this Cup.”

The wording of the Deed is somewhat short on being precise about what it means, which has given CNEV an opening for saying that it does not actually state that the yacht club must have held its annual regatta, before its challenge is accepted, though most people would assume that was intended when the Deed was drawn up. The fact that CNEV has now held a first so-called regatta, which was nothing more than a series of 5 races, in Optimists, for children attending a course at the Santander Centre for Sporting Excellence, has done nothing to add to its credibility. The Supreme Court is, however, unlikely to be interested in CNEV’s credibility, only in whether – under the wording of the Deed of Gift – it does, or does not, qualify as a challenger and that is not cut and dried.  

There is another reason why the Golden Gate Yacht Club could be on sticky ground with this first demand. With the exception of the first one, Spanish America’s Cup challenges have been made jointly by the yacht clubs of Valencia and Bayona. For the 32nd Cup, the Barcelona Yacht Club wanted to challenge and the result was some acrimonious in-fighting. This was brought to an end when the Real Federación Española de Vela said that it would challenge! So, the Desafio Espanol challenge for the 32nd America’s Cup was made by an organisation that did not hold an annual regatta on the sea and was not even a yacht club, but nobody objected, not even the Challenger of Record, which was then the Golden Gate Yacht Club! How will the NY Supreme Court react to the fact that the Club that is now protesting CNEV’s legitimacy as a challenger, actively condoned a clearly illegitimate challenger last time round?

Another bit of thin ice for Golden Gate is its statement “By refusing to disclose the basic elements of regatta venue, date and boat design rules, there is no opportunity for a fair and equitable competition.” Alinghi won the 31st America’s Cup, in New Zealand, at the beginning of March and announced that it would go through a lengthy process to choose a venue and decide on dates and would make an announcement at the end of November. It’s going to be a bit tough for Golden Gate to explain why a venue selection process of almost 9 months was OK when it was COR, but - now that it isn't - it views one of a maximum of 6 months as giving “no opportunity for a fair and equitable competition.”

Then, of course, there is the fact that, if the court were to find in favour of GGYC and it could not come to an amicable agreement with SNG, the next America’s Cup will be held in 90 foot multihulls and that is something that nobody – except perhaps Russell Coutts and Paul Cayard – wants, so it is clear that the best way forward is not through the court, but through dialogue.

The Golden Gate Yacht Club’s legal action was precipitated by an announcement from ACM, last week, that “Shosholoza joins the Challenger of Record, Desafío Español and the Defender Alinghi, as the first confirmed participants in the 33rd America’s Cup.”. That announcement made it clear that Golden Gate’s challenge had not been accepted, but it may also have been the announcement that heralds an equitable solution.

Shosholza is headed by Captain Salvatore Sarno, a very plain speaking man, who started life as a merchant seaman and is now a director of the world’s second largest container shipping company, MSC, and CEO of its South African branch. When you talk to Sarno, the immediate impression is of someone who makes things happen. The notion of starting off an America’s Cup Team with a small budget is very much at odds with the theories of the top teams, who see having a large budget, established at the beginning, as a major key to the sort of development flow that brings success. Yet Sarno started off Team Shosholza with no sponsors, just his own money. BYM News asked him about that at the first encounter.

Sarno replied “There are two ways to make things, happen; the American way and the MSC way, the Mediterranean Shipping Company way. The American way is to start big with big money, big project, big test and to do nothing. The MSC way is to start little, with a lot of patience, a lot of love, a lot of brains, a lot of inventiveness to go ahead and that is Shosholoza. You can see here, in the Port of Valencia, that 60% of the containers are yellow containers with our logo on them. The Mediterranean Shipping Company started 30 years ago and has become the second largest shipping company in the world. I was there from day one, so I know what it means to start poor against the biggest and to win against them. We, Shosholoza and the Mediterranean Shipping Company, want to win the America’s Cup.” That is the character of the man; those who have already jumped on the 'knock anything and everything connected with Alinghi' bandwagon and talked of "another Alinghi poodle" are very wrong. Salvatore Sarno is nobody's poodle.

Speaking to the Spanish newspaper Las Provincias, last week Sarno said he was very optimistic about the next Cup and believed that, within 15 days, everything will be resolved; date, venue and protocol problems. The paper has him saying that there will be a solution for everything; Bertarelli is not a dictator, he is a reasonable man, who knows a lot about negotiating and that is why he is going to sit down with the challengers to renegotiate the protocol. 

Let’s hope that Salvatore Sarno’s reputation for making things happen comes into play here and all is resolved, without the need for a court case.

Whatever happens, it is hard to see how CNEV can continue to be Challenger of Record, for many reasons: Most of the last Cup’s challengers have expressed contempt for the way CNEV agreed to protocol terms that they find unacceptable; Several yacht clubs, including the Royal Valencia & Barcelona Clubs, have told the Spanish Sailing Federation that they do not and will not recognise CNEV as a legitimate club; The Spanish press has ridiculed CNEV’s Optimist regatta; Several within the Desafio Team are said to be unhappy about the situation; Last, but no means least, those who sail with King Juan Carlos say that he is not amused by this saga.
Was it just a coincidence that, in the last week, the Spanish Cabinet signed into law a Royal Decree that gives more control of the management of Federations to the members?