Cup that's filled with controversy

As Ras al Khaimah prepares to host the 33rd America's Cup, the competition is once again mired in legal wrangling.

Ernesto Bertarelli, the head of the Alinghi team, raises the America's Cup trophy.

As Ras al Khaimah moves ahead with its preparations to host the America's Cup, scheduled to begin next February, the legal wrangling continues over the 33rd edition of the event that is widely regarded as the pinnacle of yacht racing.

Since July 2007, when Alinghi - skippered by Brad Butterworth and racing on behalf of Société Nautique de Genève (SNG) - successfully defended the trophy and, within days, accepted a challenge from Club Náutico Español de Vela (CNEV), a newly formed Spanish yacht club, the accusations, appeals and court orders have been flying. Last week the Golden Gate Yacht Club (the Challenger of Record, represented by BMW Oracle Racing) filed court papers against the Swiss holder of the cup for the sixth time.

But why all the wrangling? The simplest answer is, perhaps, because it has always come with the territory. Since the very first race - then called the 100 Guinea Cup - off Cowes in England in 1851, the contestants have pushed the rules as far as they have legally been allowed. In that race the schooner America, from New York Yacht Club, did the unthinkable - beating its five rivals by sailing inside the Nab Light mark, after its local pilot noticed that the usual requirement to sail around it had been omitted from the race regulations. Regardless of the cries of "unfair!" the cup went to New York, was renamed after the winning yacht and the challenger competition was born - and so, it seems, was the spirit in which it has been contested ever since.

A Deed of Gift was drawn up by America's owners to govern the cup's future as "a perpetual Challenge Cup for friendly competition between foreign countries", specifying that it was to be contested by yacht clubs. A slightly revised version published by a committee from the New York Yacht Club in 1887, with the Supreme Court of New York State named as the arbiter in any disputes, has governed the competition ever since.

And that's where the fun really started: there was immediate uproar in the yachting community and beyond. The editor of The Field magazine, Dixon Kemp, called it "an attempted confidence trick", since it was deemed to protect the holder's interests unfairly. Given that the cup is a challenge trophy, it is hardly surprising that the defender - which also has the right to host and organise the race - will tilt things in its own favour.

And, regardless of whether the New York Yacht Club wrote the deed with that intention, its history as defender has been filled with intrigue, skulduggery and accusations of bad sportsmanship. There was the notorious disqualification of the Earl of Dunraven's challenger in 1895 after it had won the race, and the 1934 match, which Sir Tommy Sopwith's English challenger, Endeavour, lost on a newly introduced technicality.

Sopwith cried foul, the Americans responded that the English had simply failed to read the rule change properly before the race, and the declaration of one wit - "Britannia rules the waves but America waives the rules" - passed into America's Cup legend. As a result the New York Yacht Club retained the cup for 132 years - the longest winning streak in history. The 1983 win by the Royal Perth Yacht Club's Australia II, backed by the flamboyant Alan Bond, prompted fresh accusations of cheating - now focusing on design.

Scuba-diving spies were caught in the team compounds, the Australians were accused of using a "secret keel" (nothing wrong with that), and Dennis Conner of the San Diego Yacht Club questioned the New Zealand challenger's innovative fibreglass hull. "Why would you build a plastic yacht unless you wanted to cheat?" he asked at a post-race news conference. By that time, due to the growing number of would-be challengers, the cup had become a three-month, multinational glamour-fest of sailing, featuring the world's very best match-racing sailors and their exceedingly wealthy backers.

Under the "mutual consent" clause of the deed, the competition comprised a multiple-challenger selection series followed by the cup match, all of which is governed by a protocol specific to that particular edition of the cup. A Challenger of Record, representing all of the would-be challengers, would be involved in the drafting of the Protocol. Except in 1988. That was when Michael Fay, the financial backer of New Zealand's challenge by the Mercury Bay Boating Club - perhaps still smarting over Conner's "cheat" jibe - threw a curve ball at the San Diego Yacht Club. In the Deed of Gift's wording, Fay, a lawyer-turned-banker, had seen an opportunity: eschewing the convention of sailing 12-metre class yachts, Fay challenged with a giant monohull, KZ1. Measuring 90 feet (27.4 metres) on the waterline, it would unquestionably be faster than any 12-metre.

San Diego sued; the New York Supreme Court decided that the big boat was within the terms of the deed and insisted that San Diego accept the challenge and either negotiate mutually agreeable terms for the match, sail under the deed's default rules, or forfeit the cup to Mercury Bay. In response San Diego built a 60ft catamaran, which was guaranteed to be faster still. They raced in September 1988 and KZ1 predictably lost by a huge margin. Fay took San Diego back to court; Judge Carmen Ciparick ruled that Conner's catamaran did not comply with the Deed of Gift and awarded the cup to Mercury Bay. Conner won the cup back on appeal; Fay then counter-appealed to New York's highest court and lost again.

And so to the 33rd America's Cup. There are many parallels with 1988 - most obviously the scrapping of a mutual consent protocol, the return to the courts for legal rulings on the deed's terms and, perhaps coincidentally, the key role played by one of the 1988 protagonists, Tom Ehman, who was then with San Diego and is now head of external affairs for BMW Oracle Racing, the team representing Golden Gate.

Golden Gate filed its first lawsuit barely three weeks after SNG and Alinghi won the 32nd cup. SNG had released a new protocol on July 5, at the same time naming CNEV as Challenger of Record. Seven would-be challengers for the 33rd cup objected, signing a letter to SNG calling it "the worst text in America's Cup history", adding that they were signing "in the sincerest hope that the America's Cup competition will not have to endure the turmoil of litigating that issue" and requesting that CNEV withdraw its challenge by the end of July. The signatories included Golden Gate.

However, 10 days before the end-of-month deadline, Golden Gate filed court papers challenging the legality of CNEV's challenge under the Deed of Gift. SNG argues that, since there is no mutual consent there can be no protocol and the competition must therefore be run under the default format according to the Deed of Gift. Muddying the waters further, the terms Protocol and Challenger of Record, both used by GGYC in its submissions to court, do not appear in the deed or any of its revisions.

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