Subject: [NEXTEL-1] Cheap seats: Cup too good to put up with legal nonsense

From: Marcel <[email-masked]>
Date: Mon, 30 Dec 2002 02:31:54 -0500

Cheap seats: Cup too good to put up with legal nonsense

Sixty-nine furious tacks in one race. A thrilling three-second finish in another.
New Zealand's battle of the billionaires, round two — a rematch between Craig McCaw and
Paul Allen's USA-67 and Larry Ellison's USA-76 — has proved to be far and away the best
racing of the America's Cup challenger series. It's the kind of one-slip-and-you're-dead
action that's made Cup match racing an irresistible anachronism.
The two boats were so close for so long in Friday's second race, and the finish so
nerve-racking, you got the sense that everyone
involved — from the beefy grinders who'd been running on overdrive for two hours to the
mentally pooped afterguards weary of
second- and third-guessing Hauraki Gulf winds — needed a good hosing off.
As painful as it is to see the homeboys fall behind in the series to archrival Oracle,
it's grand to be reminded what the America's
Cup is really all about.
Or should be.
While the boats attempt to slice one another from Cup competition on the water, more and
more sharks, alerted by OneWorld
flesh and blood still lingering from the recent "cheating" scandal, are circling on land.
We've long maintained that none of the billionaire-owned syndicates hoping to snag the Cup
on a first try could stand up to the
microscopic scrutiny applied to OneWorld in the recent Sailing Witch Trials, after which
the Seattle team was assessed the
competitive equivalent of the death penalty for possessing old design materials from other
syndicates. Proof might come more
quickly than we imagined.
The rifle scope this week swung toward Oracle, whose owner, lest we forget, took great
relish in publicly branding OneWorld as
"cheaters" in the earlier design-secrets scandal. Late in the week, reporters in Auckland
received an anonymous Christmas gift
package of documents suggesting Ellison's crew might be even more guilty of the same rules
offense: possessing a full set of
designs, as well as all performance data and other forbidden goods, of AmericaOne, the
Paul Cayard-skippered U.S. Cup syndicate acquired by Ellison after the 2000 campaign.
The documents include a detailed June 2000 purchase agreement, clearly listing
"construction drawings and plans" for two Cup
race boats in a $7.3 million sale to an Ellison subsidiary, "Team Sayonara," as well as
papers filed with the California attorney
general's office confirming the property transfer. Cup rules allow the sale of syndicate
boats and materials, but they expressly
forbid transfers of all the brainwork behind them, which arguably gives an unfair design
advantage to a fledgling syndicate.
It's not clear who is spreading the documents, which Oracle has already branded a "smear
campaign." (The list of suspects has
been narrowed down to the approximately 6.2 billion people on Earth who can't stand
Ellison.) But Oracle, which in October 2001
sought and was refused permission by the arbitration panel to possess AmericaOne designs,
last week responded by claiming that
it somehow never had them.
Hmm. Something tells us the entire matter is one bored lawyer away from being thrown back
in the lap of the Cup's well-oiled
legal system.
Should it be? No. But the machinations over OneWorld shouldn't have been, either.
The OneWorld affair turned the challenger competition into a legal charade so ludicrous
that the Seattle team — either as a
statement about the regatta's litigiousness, a tribute to the Seattle law firm that
donated its time to defend it, or probably both —
now carries a "Davis Wright Tremaine" logo on the boom of USA-67, alongside other
sponsors.
Should Oracle be clearing space for a legal logo of its own?
Suggesting that Ellison's team gained any clear advantage over its well-heeled competitors
by possessing AmericaOne's old boat
designs is ludicrous. Almost as ludicrous as penalizing OneWorld on the water for a
staffer's discovery of a backup Zip disk containing old Team NZ data.
The problem is, rules are rules, and precedent is precedent. And the geniuses who run the
America's Cup, by caving in to
sore-loser competitors and hearing the thoroughly flawed OneWorld case long after the
deadline for such challenges, have set
one.
If it indeed is proved that Oracle possessed design documents for the AmericaOne boats —
in spite of an express arbitration-panel order to the contrary — how could the same panel
let it go unpunished?
The Oracle charges, if they're true, are arguably a far more egregious breach of the
protocol than the offense committed by
OneWorld, which essentially fessed up to its own infractions. Should Oracle skate simply
because the source of its alleged head
start, AmericaOne, is no longer around to point fingers and leak documents, a la Team NZ?
Such is the box the Cup people find themselves in — with walls, fittingly, of their own
making.
None of this, of course, is fair to the talented sailing team at Oracle. Any more so than
it was to the talented sailing team at OneWorld.
Both are proving, every day on the water, they're more than worth the price of admission
to an event that doesn't deserve them.
Ron C. Judd: 206-464-8280 or [email-masked].

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