Is it really too late to negotiate?

“Yes,” replied Alinghi’s lawyer Lucien Masmejan.

The news that the time for talking is over cast serious doubts as to whether the America’s Cup can really take place in 2009 following the tit-for-tat announcements yesterday (Tuesday 13 Nov). In it’s most recent statement Alinghi threw down the gauntlet to BMW Oracle saying that the Golden Gate Yacht Club had until Friday 16 Nov 5pm New York time to declare whether it was in or out. After that there was no time to discuss the issues that have dogged plans for the next America’s Cup any further.

In a phone call to Yachting World, Alinghi’s lawyer explained that the Swiss team believed it was close to an agreement at the end of last week only to discover that, after the weekend, BMW Oracle had raised five more points that it wanted to discuss relating to the manner in which the next event would be run.

“Every time we get close to an agreement Russell Coutts comes back with further points,” he said. “We are now no longer willing to try to settle the issue. With each exchange we are back to square one.”

The news pushes the two teams and their yacht clubs closer towards having to accept a judgement from the New York Supreme Court as to whether the current Challenger of Record is valid, a seemingly simple issue. Yet the outcome of the debate could have far reaching implications.

“If BMW Oracle does not make its intentions clear and we go past the deadline there will be two possible outcomes,” he continued.

“If BMW Oracle decides to enter they will have to drop their lawsuit and accept the current terms. If not, there is full uncertainty and we will wait for Judge Cahn’s verdict. If this is the case and Oracle lose we are expecting them to appeal which would make running the Cup in 2009 very difficult.

“If we lose then there are two scenarios. First the judge may simply say that the CNEV is not a valid challenger. The second might be that the CNEV is not valid AND that the next valid challenge is that of the Golden Gate Yacht Club.

“If this were to be the case, it would then be likely that Oracle would chose to race in 90x90ft catamarans, but it be up to the Societe Nautique Geneve to decide where the race would take place.

“Under the Deed of Gift it is the right of the Defender to select any boat within the limits set out in the document as well as having the right to select the location of the event. The Challenger would be able to select the date.”

But perhaps the biggest twist in the saga so far is that other Challengers would only be acceptable if agreed by both parties, an unlikely scenario.

“Winning in court is like winning the Challengers series,” he continued.

Perhaps the real issue is that hanging out for a favourable ruling is considered by BMW Oracle to be the fastest route to the America’s Cup.