Yachting: Court decision nears on America's Cup claim

A decision whether a court injunction will stop the America's Cup should be known tomorrow. Photo / Oracle

A decision whether a court injunction will stop the America's Cup, and Emirates Team New Zealand's promising march towards a showdown with holders Oracle, should be known tomorrow.

It is all to do with a little-known African-American sailing group, African Diaspora Maritime. They contend that Oracle's host yacht club, Golden Gate Yacht Club, unfairly dismissed their attempts to compete in a defender series to win the right to defend the Cup in San Francisco.

If ADM win the injunction, the America's Cup regatta would halt. The purpose of the injunction is to win the approval of the New York Supreme Court for an ADM entry to the Cup and a series against Oracle to decide who will race against the winner of the Louis Vuitton. That will almost certainly be Team NZ.

The problem is that ADM do not have a boat or a crew. It would take years to design, build and launch a boat and train a crew sufficiently skilled to take on Oracle.

Few people took this legal effort seriously until ADM's attempt to prove breach of contract against GGYC was approved on appeal, allowing ADM to pursue matters further. GGYC vice-commodore Tom Ehman, GGYC commodore Norbert Bajurin, and Anthony Romano have now been sought for depositions during the week of August 5.

That is making a few people in the America's Cup nervous. GGYC is appealing against ADM's right to press for an injunction but a decision was not known at the time of writing. GGYC say they are confident the action will be dismissed and that ADM did not have the ability to mount a credible challenge. Common sense also dictates that, if an injunction was to have been granted, it would more likely have occurred more than a year ago when ADM's efforts to engage in a defender series were first knocked back by GGYC.

ADM's affidavit includes the contention that Ehman, also director of the America's Cup, did not respond several times to ADM's requests for communication and direction regarding registration for the America's Cup. ADM have asked for expedited discovery and a consolidated trial before September 7, the scheduled date of the first America's Cup match between the defender and challenger.

The tricky thing about this action is that it is not just a matter of alleged breach of contract. It indirectly references race and discrimination - always a hot topic in the United States.

The prevailing theory is that ADM's legal action will fail; that the court will see little profit in shutting down a regatta already under way when injunctive action could have been taken long ago.

But there are emotional variables at play which give rise to doubt - and which mean fewer people are dismissing ADM's action as a PR stunt designed to draw attention to its cause of getting more black sailors in a predominantly white pastime and professional sport.

Then there is the unanswered question of the money. The heavyweight US legal firm of McDermott, Will & Emery is involved and, with the bill already likely to be on the way to US$1 million ($1.25 million), there is curiosity about the source of the funds.

ADM is not a wealthy organisation. Conspiracy theorists have wondered if the invisible wallet is that of Ernesto Bertarelli, the billionaire behind former holders Alinghi who were themselves ambushed by Oracle billionaire and team overlord Larry Ellison in a court action. That eventually saw Alinghi forced to meet Oracle on the water in a one-on-one challenge which Oracle won.

Bertarelli has apparently privately denied he is pulling the strings but that has not stopped speculation.