As Bernie explained well an hour ago, Luna Rossa threatened to pull out of the Cup this morning if AC Commercial Director Doctor Harvey doesn’t respect ‘the principle of unanimity of all challengers required to change the Class Rule’, and he immediately issues a clarification regarding the proposed shrinking of the AC to a regatta for foiling forty-fives. This is huge news, and the SA Legal Department has been burning the midday oil and wearing out their swivel chairs researching why.
1) The existing Protocol, on its face, seems to require only a simple majority of challengers to shitcan the AC62, and SA’er ‘porthos’ unravels the mystery of how it works.
Paragraph 1.1.(p-bis) establishes the Challenger Committee. That same paragraph establishes that the CC may act via a simple majority unless some provision says otherwise: “Unless otherwise provided, a simple majority vote of all of the Challengers in the Challenger Committee shall be required for the Challenger Committee to make a decision and/or take an action.”
Article 20 addresses amendments to the Protocol. Paragraph 20.2 indicates that the Protocol “may only be amended with the agreement of GGYC and the Challenger Committee.” There is nothing Article 20 indicating that the agreement by the CC must be had by anything more than the simple majority set forth in Paragraph 1.1. In fact, I wasn’t able to find any provision in the Protocol that requires more than a majority vote by the CC to make a decision or take an action.
Paragraph 1.1 (p-bis) does indicate that the CC may make its own “organizational rules.” I suppose it is possible that the internal rules of the CC may have something to say about this (i.e., that the internal rules of the CC would require more than a simple majority), but I doubt that. “Organizational rules” implies logistics and not substance.
Paragraph 29.1.(g) requires the Match be raced in yachts that conform to the AC62 rule. That is the operative provision that has to be changed in the Protocol. There would certainly be more references in the Protocol that would have to be amended, but that is the provision that dictates what boat is used. As that is a Protocol amendment, the simple majority CC rules set forth in 1.1.(p-bis) would apply. [Contrast to the AC62 Rule, where amendments require unanimous consent of all teams -Ed]
As long as a majority of the CC and GGYC agree to a change — such as ditching the 62’s — then it can happen.
2) We’re not sure what it took just yet but Coutts and the Doc have enlisted that simple majority (including Artemis, the only team that stands to lose almost as much progress as LR), and if the AC press office is to be believed, a vote is a foregone conclusion.
3) Luna Rossa’s reference to ‘principle’ in their release and their signalling that they won’t sue is a clear sign the team is aware of the shortcomings of their legal position.