Former Team NZ director warns he will sue if Saudi Arabia named as next America's Cup host

More than seven months after successfully defending the America's Cup, Team New Zealand is still to name a venue for the next cup. Photo / Michael Craig

A former Team New Zealand director has told the syndicate he will try to use a legal precedent that stopped the All Blacks touring apartheid South Africa in 1985 if Saudi Arabia is named as the venue of the next America's Cup.

More than seven months after Team New Zealand defended the America's Cup in Auckland in March, the syndicate is yet to name the venue for the 37th edition of the world's oldest international sporting competition.

Multiple media reports have named Jeddah, a port city on Saudi Arabia's west coast on the Red Sea as a possible venue, with some sailing figures claiming they believe it is now the favourite to be announced by Team New Zealand.

This has sparked a legal warning from a high-profile member of the Royal New Zealand Yacht Squadron (RNZYS).

Jim Farmer, QC, who was a director of Team New Zealand from 2003 to 2013 has written to both the RNZYS general committee members and Team New Zealand's directors, seeking a direct assurance that neither would seek to hold the next defence of the cup in Saudi Arabia.

"In the event that you are not able to give that assurance and Team New Zealand does determine that Jeddah will be selected as the venue, I will personally take High Court proceedings to prevent the implementation of that decision."

Farmer, who has earlier questioned the governance and financial arrangements of Team New Zealand, has blogged about what he described as the "appalling human rights record" of Saudi Arabia, from its public executions, disregard for women's rights and the reported involvement in the execution of an award-winning Washington Post journalist, Jamal Khashoggi.

In his letter to RNZYS commodore, Aaron Young, Farmer pointed to the famous case of Finnigan v New Zealand Rugby Football Union, in which two club rugby members took a case against the decision of the NZRFU council to accept an invitation for the All Blacks to tour South Africa in 1985.

"The basis of the court's decisions was that, by sending a team to South Africa, the Rugby Union would be in breach of its own constitutional objective of fostering the sport of rugby, by virtue of the resulting harm to the reputation of the sport and to New Zealand rugby in particular," Farmer wrote.

"The Squadron's objectives are similar and the conduct of the next Defence in its name in Saudi Arabia would cause similar harm."

He later wrote to Team New Zealand's directors, and former chairman Sir Stephen Tindall, arguing that the selection of Jeddah would be "irresponsible and seriously damage New Zealand's international reputation as a country that respects human rights, including gender equity".

Young replied on behalf of the RNZYS on October 21, saying that Team New Zealand was responsible for arranging funding and negotiation of a host venue agreement, but once this was completed, it would do its own due diligence.

"We have not yet been asked to consider Saudi Arabia as a venue for the America's Cup. If we are asked to consider it, I can assure you that our consideration will be objective and thorough."

Team New Zealand declined to comment on Farmer's warning. Photo / Michael Craig

A spokesman for Team New Zealand declined to comment on Farmer's warning. "There is a detailed venue selection process ongoing with the potential venues well publicised. We have not commented on the process throughout, but can say there has been no final venue confirmed at this stage."

Difficult, but not implausible

The case of Finnigan v NZRFU saw two Auckland club rugby players claim that the union's decision to allow an All Black team to tour South Africa did not comply with its own stated purpose, to "control, promote, foster and develop" rugby in New Zealand.

A few days into the substantive hearing in the High Court in Wellington, when it became clear that the hearings would not be completed before the All Blacks were due to leave for South Africa, Justice Maurice Casey granted an interim injunction preventing the team from leaving on the basis of "a strong prima facie case ... that the present tour cannot benefit rugby in this country".

The tour was cancelled, although an unofficial team, the New Zealand Cavaliers, toured South Africa in 1986.

Victoria University Associate Professor Dr Dean Knight said courts would normally be reluctant to second guess the decisions of bodies such as incorporated societies.

While there might be similarities here it was important to consider the context of the 1985 case, which came four years after a South Africa tour divided the country, with widespread protests about New Zealand's ongoing sporting contact.

Although the America's Cup was seen as "New Zealand's Cup" and it was a major event into which the New Zealand government had made significant investment, Knight was not sure it had the political significance of New Zealand's divisive sporting contact with South Africa in the 1980s.

"It's difficult to think that the stars are once again going to come into alignment to allow someone to knock over the decision of an incorporated society, a private body, when they make a decision about what's in the best interests of the sport, but it's not implausible."

Another legal expert appears to be hinting at issues which could face the America's Cup if it were taken to the Middle East.

On Sunday Hamish Ross, an America's Cup lawyer who Team New Zealand boss Grant Dalton accused of a "devious" plan to challenge the validity of Ineos Team UK as challenger of record for the next America's Cup, posted on Facebook on Sunday, about an "important, but little known" judgment of the New York Supreme Court in 2009 that he said could affect all future venue selections.

Ross quoted a decision in light of Société Nautique de Genève's decision to select Ras Al Khaimah (part of the United Arab Emirates) as the venue for the 33rd America's Cup.

After the location was challenged by the Golden Gate Yacht Club, Judge Shirley Kornreich delivered an oral ruling in the Supreme Court of New York noting that the Deed of Gift of the America's Cup was that it was to be friendly competition between foreign nations.

"In keeping with the laws of New York and of the United States against discrimination, any venue that is selected must be a venue that permits spectators and competitors from any nation and religion to take part," Kornreich said.

Ross wrote that the ruling "would seem to eliminate any prospective venue for the 37th America's Cup that has discriminatory laws or practices which conflict with those of New York and the United States".

Citing media reports that Jeddah was a possible venue, Ross wrote that it "would not appear to qualify as venues able to be selected by any America's Cup Defender".