KEY POINTS:
The America's Cup could be held in July next year and could be a sole battle between BMW Oracle and Alinghi, in 90-ft multi-hull boats, if Alinghi's efforts to deal itself into a greater position of power continue to backfire.
Although far from certain, and an unpalatable flashback to the Michael Fay "big boat" era of the late 80s, a regatta which excludes Emirates Team New Zealand and other challengers is one possible outcome of Oracle's move to weaken holder Alinghi's self-serving grip on the Cup.
In a move that has now ended up in the New York Supreme Court, Oracle's challenge seeks to replace the Spanish yacht club chosen by Alinghi as the Challenger of Record for the next America's Cup.
If Oracle succeeds, they will become the sole challenger, as set out in America's Cup rules, and they have specified July 4, 2008, for the first race. They have also produced specifications which show the Cup would be contested head-to-head by 90-ft, multi-hull yachts.
Oracle maintain they are hopeful of forcing Alinghi to negotiate new terms for the next regatta for all challengers, including TNZ. But the prospect of two syndicates, both owned by multi-millionaires and with ego aplenty, butting heads in court remains strong.
Emirates Team New Zealand's legal spokesman, Jim Farmer QC, confirmed discussions between Oracle and other challengers but said TNZ wasn't supporting Oracle's move financially or otherwise.
"If this happens, it leaves everyone else out in the cold," he said. "We just want to get on with it and have a regular regatta."
Oracle is attempting to unseat the Challenger of Record for the 33rd America's Cup, Spain's Club Nautico Espanol de Vela (CNEV), the club behind the Spanish Desafio Espanol challenge in Valencia.
After the high point of some of the most exciting racing in the history of the Cup, the regatta now seems destined for an unseemly legal squabble unless Alinghi backs down and agrees to water down some of the conditions in the protocol for the 33rd Cup.
The protocol, announced by Alinghi at the end of racing in Valencia, angered many of the challengers because it enabled the Swiss syndicate to 'stack the deck' richly in its favour.
It allows the Swiss to gain a head start in designing, building and even racing the new 90-foot boats unveiled in the protocol.
The winners have always set the rules in the America's Cup but the protocol went far beyond what the challengers thought was fair and reasonable - provoking Oracle's recent move against CNEV. Oracle, through the Golden Gate Yacht Club, have also lodged their own challenge, designed to take over from CNEV and which calls for the Cup regatta to be held in July next year.
In the protocol, Alinghi came up with the following changes:
New boats - 90 feet in length but with few other known design specifications which Alinghi intend to form themselves rather than in consultation with the challengers, as has previously been the case.
No venue - they are still negotiating to have the 33rd America's Cup in Valencia in 2009 but it could yet be held elsewhere no later than 2011.
Defender racing - Alinghi also dealt themselves the right to sail in the challenger series, previously off limits to the defender who did not race until the Cup match.
"What it means is that the challengers don't know the venue; we don't know the date; all we know about the boats is that they are 90 feet with a sliding keel," said Farmer.
"We can't formulate a budget. We don't know whether the regatta will be held in two or four years and Alinghi have given themselves until the end of the year to tell us. We can't design a boat because the class rule is not settled. We can't even go to sponsors because we don't know how much money will be needed and we don't know details that sponsors tend to be interested in - like when and where and what sort of boat."
Oracle's legal challenge is based on the fact that CNEV is not a bona fide yacht club under the terms of the America's Cup Deed of Gift. But it is designed to get the Spanish club - widely regarded as a patsy or stooge for Alinghi to get what it wanted - out of the picture, forcing Alinghi to negotiate with the other challengers on the terms of the next Cup.
Oracle are saying negotiation is their goal - and not an Oracle vs Alinghi multi-hull contest. However, indications are that Alinghi are not in a mood to negotiate - and are content with court action so far.
The head-to-head Oracle vs Alinghi regatta will only come about if one of three possible outcomes occurs:
Oracle succeed in the court action and win the right to stage a challenge for the Cup in July next year.
Alinghi back down and negotiate a new protocol.
Alinghi win and carry on with their current course.
Perhaps the second outcome is most likely.
But Farmer said the Oracle challenge still left open the possibility of "a Michael Fay situation."
This is a reference to the infamous 1988 legal wrangle where Fay challenged American defender Denis Connor, using legal interpretation of the Deed of Gift to build a giant monohull, much bigger and faster than the 12m Cup yachts of the time. Connor responded by building a giant catamaran which easily won the ridiculously one-sided racing.
If it seems a big jump to head back to those days where the lawyers held sway, Farmer's point is not necessarily that it will happen again, but that the possibility has arisen after Alinghi's protocol and Oracle's response.
