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Best Decision Might Have Been to Give the Cup to a Third Party

To: Carmen Ciparick State Supreme Court Justice New York, N.Y. Your Honor:

By my reckoning, you’re one for two.

Since you may know or care little about sports, I will advise you that is not bad for a batter, not good for a fielder, not bad for a three-point shooter, not good from the free throw line, not bad for a quarterback, not good for a coach.

You see, it’s all a matter of perspective.

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Judicially, I would suggest that one for two means half an issue was ignored.

Your decision Tuesday to forfeit the America’s Cup to New Zealand portrayed the San Diego Yacht Club as the villain of what you apparently perceived as a melodrama. Had you been paying more attention, you would have realized this was instead a farce.

And what you missed was that one side alone did not turn America’s Cup XXVII into a farce. It was a farce from its inception. In fact, it was a farce before its inception.

You persuasively made the point that the SDYC “violated the spirit” of fair play because it defended with a catamaran against Michael Fay and his 133-foot monohull. However, you ignored the fact that Fay violated the spirit of multinational competition when he unilaterally issued his one-on-one challenge in the first place.

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What we had here, from the beginning, more closely resembled mud wrestling (or mud slinging) than the white-duck world of yacht racing. The governing Deed of Gift calls for “friendly competition between foreign countries.” If you think there was anything friendly about this confrontation, just check all the dirt that landed on your front porch .

Actually, it’s too bad you had to even get involved with this mess, but you’ll understand how it all came about.

The working words are arrogance and greed, and I think you might have encountered a bit of both over the course of this scenario.

After Stars & Stripes brought the Cup “home” to San Diego in 1987, weeks and then months went by with no announcement about where the next defense would be. Everyone assumed it would be San Diego, except that Sail America seemed occupied with trying to shop the event to the highest bidder.

None of this would have happened if Sail America’s honchos had the good sense and civic loyalty to step off the flight from Australia with the announcement that the next event would be in San Diego in 1990 or 1991.

What happened was that this unnecessarily ponderous process provided Fay with a window of opportunity through which to jump with his challenge, thus shutting the door on the rest of the world. Rude.

Sail America was understandably irate. Here it was planning this big party, even if it didn’t seem to know where it would be, but now it had only one guest . . . who had invited himself. Rude.

Almost from that day onward, Your Honor, you have been in the midst of the fray.

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Your first ruling was that Fay’s challenge was within the letter of the deed. This ruling made sense at the time.

However, at this point, I did not realize you were also concerned with the spirit of deed. That is a different ballgame. Just ask all those countries who were literally left at the dock.

Meanwhile, with no choice but to race, Sail America contrived the notion of defending with the catamaran. Now Fay’s attorneys were in your face, but you declined to rule until after such a competition had taken place.

Eventually, a regatta actually took place, if you want to call it that. It was everything everyone expected, which was nothing. The Cat devoured the Kiwi.

Then it was all over, as you well know, but more litigation.

Lo and behold, you pondered for months and came to the conclusion that the spirit of the deed called for a fair competition. Now we were suddenly dealing with the spirit of the deed rather than, as in the previous case, the letter of the deed.

I would suggest, Your Honor, that these two critical decisions seem to run counter to one another in terms of whether to deal with the letter of the deed . . . or the spirit.

How can you go one way with the first and the other way with the second?

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May I suggest a better ruling?

I’ll give you one anyway.

You should have chided both sides for unsportsmanlike conduct . . . and given America’s Cup back to the Australians. It was never tarnished in their hands, but it sure is tarnished now.


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