Different Venue, Same Nonsense?
Anarchy readers were treated to a live forum feed of the America’s Cup court proceedings yesterday from Centre Street in NYC, provided by Sparbuilder, Anon, Rennmaus, and I. The two-hour session started with the judge expressing her displeasure to find new papers from Golden Gate Yacht Club in her courtroom, and wondering aloud if GGYC even wanted to race. She would repeatedly express her displeasure with GGYC throughout the court proceedings.
Kornreich decided to take the less complicated of the motions before her, the first being venue. When Herman Cahn wrote in his decision that the venue chosen by SNG could be Valencia (Spain) or anywhere, did that mean anywhere that matched the conditions of the Deed (GGYC’s position) or anywhere (SNG’s position), period.
After a clear and to the point presentation by David Boies for GGYC that stressed anywhere couldn’t have meant anywhere, the judge asked him to continue about the concern GGYC stated about the venue itself. Out came a map illustrating the proximity of Iran to the racing area, and an additional short presentation about the proximity of Iran. The whole presentation couldn’t be more direct, honest, clear, and undisputable.
Barry Ostrager, representing SNG, opened up by mocking his opponent’s knowledge of geography and made several boisterous statements that all of GGYC’s arguments on this point were “flim flam”. The judge gave Barry’s every courtesy during the presentation until he uttered the words “125 million was spent” preparing the venue for this event, at which point she started shuffling papers and seemed uncomfortable or maybe disinterested. I think the latter, as Barry was laying it on thick.
Next up was Joel Rosenthal to represent the Emirate of RAK. I felt him touch my heart as he spoke about many other world sporting events have chosen venues with initially limited infrastructure, and gave them an opportunity to shine on the world stage, as several events had already done for UAE, and the Olympics would soon do for Brazil.
The judge then explained what she was considering in her decision and announced that she felt a need to render the decision at that moment. She voiced a clear displeasure with GGYC that seems unfounded and with great regret announced RAK was out, and there would be no more discussion.
Wow. The court continued in silence as we witnessed what many thought was an unlikely decision, and even then days away. It came suddenly and fell on the shoulders of SNG’s lead attorney like a ton of bricks. After a brief pause, Barry stated to the judge “you are canceling the race”, and then rambled for some time restating parts of what the judge had considered in her decision, and he struggled to come back from total failure on this motion.
I would believe almost every one in the room had great sympathy for the man and his team at that moment. I cannot imagine what the impact will be on SNG for their unsportsmanlike approach to selecting a venue miles from a country whose leaders constantly lead the citizens’ in chants “Death to America”, but no matter how they made that decision for the moment, I had sympathy for their loss on this motion. It quickly evaporated however as I was reminded of the lack of sportsmanship SNG exhibits in and out of court as Barry got back on his feet and pursued a rather dishonest but ingenuous strategy on the remaining of the agenda for the day.
Actually Barry never really ended, for the rest of the session he acted as a man that had just been granted a pass to speak whenever he wanted with nothing further to lose, and he used that to great advantage against David plus played off the judges apparent distrust of GGYC.
Next up was the motion to reargue a previous decision by the judge to allow SNG to set and modify additional rules going forward. The judge stated it would be unfair to reverse her decision but “she was perhaps overly broad” in her ruling and then entertained specific issues that GGYC had over the rules to date.
While this seemed like a good enough opportunity for GGYC to demonstrate how unsportsmanlike SNG has been with the rules, Barry would never let David make that point. Barry used his superior grasp of the subject matter to prevent GGYC from making much other progress this day.
For example, Barry sabotaged every attempt by David to deliver and defend important complaints GGYC had with the rules and behavior of SNG, batting each one back with a combination of pushing the judges buttons on several negative perceptions she has about GGYC and when that didn’t work just changing the subject.
David also struggled to keep the conversation on topic, and each time he succeeded in getting the judge to question for a moment why Barry didn’t answer a question or otherwise stay on topic, David could not speak clearly enough about why it mattered before Barry would seize control again.
The whole time David was going down in flames, I felt two things. He continued to come across as honest and measured and employing no tricks, but also came across unprepared.
The whole issue on the discussion on rudder temporarily left the judge asking Barry for help that he was eager to give, and with a man seemingly with nothing to lose, capitalized on the judges confusion in a really dangerous way (if ever caught by the judge he is toast) as Barry talked absolute nonsense and kept David from advancing his position. (It’s no exaggeration when SA’s state Barry appears to be playing Jedi mind tricks, it can certainly look like that, as Barry suggests to the judge of GGYC bad behavior such as competing in the courts rather than the water, and the judge agrees and repeats that back).
Going nowhere for sometime, David brought out the big guns reminding the court of Barry’s earlier promise that SNG rules to come wouldn’t disqualify GGYC’s boat. The judge acknowledged her memory of Barry previously assuring the court that no rules would be created to DSQ GGYC’s boat and stated that back to Barry. To my surprise, Barry stood by that statement, repeated it, and boy was I ready to watch a lawyer be keelhauled. But no, Barry explained away that GGYC kept changing their boat 4 times, how was he to know which one they would race? Ultimately the judge, with a glint in her eye, gave Barry a pass and changed the subject. She inquired if there is anything else to discuss beyond ballast and rudders (she seemed more than ready to rule in favor of the rudder configuration of BOR90 before this, but wasn’t ready anymore).
At this point both attorneys made it clear there was much to discuss, and so it continued, but David kept making little progress except for minor issues that Barry wasn’t contesting. Literally within seconds “not to exceed” was dispatched with a decision from the bench today in favor of GGYC that “not to exceed” (in length) means exactly that. A wise decision by Barry to avoid letting David finally paint SNG as unsportsmanlike with a rule of any kind.
David next took a major jibe and went right to the secret ISAF agreement, but had a difficult time of convincing the judge why the modified ISAF rules are unfair and lack teeth for the “impartial umpires” to act. A fair attempt to bring in a baseball analogy, where if the other team keeps moving the plate (an example of a late rule change or interpretation) the umpires need the power to insist the plate is returned to its original position. This example failed to impress the judge. She seemed to indicate that GGYC’s examples were to contrived, how could SNG possibly mean to have the outcome David suggested. Moments before the baseball analogy the judge stated she believed SNG when they said the ISAF rules were unchanged from previous ACs (simply untrue), and on that basis David was eventually cut off.
The sessions finished with a promise by the judge to get through as much as she can and issue rulings by the end of the week. Perhaps we will see in some rulings this week that the judge has had second thoughts, and some real limits to SNG’s rule making will emerge, but with all the confusion created around rudders and LWL, I don’t have high expectations.
If many of those go in SNG’s favor, I will surely feel the big win today was almost entirely neutralized by a combination of smaller wins by SNG that will enable them to continue the same rules shenanigans (just in another venue).
Notice: The author owns a software company that is a reseller level business partner of Oracle. Many thanks to Rennmaus, Sparbuilder, and Anon for their help before, during, and after the hearing today. Thank you also to Rennmaus for editing this article.