Clarity needed for America’s Cup future

Dr. Hamish Ross, a legal advisor for previous America’s Cup campaigns, provides an update on some of the legal wrangling now occurring in the 38th edition:

On October 24, 2026, it was the 139th anniversary since the signing of the third Deed of Gift of the America’s Cup in New York in 1887 between George Lee Schuyler, as the last surviving donor, and the New York Yacht Club.

That Deed still governs the Cup today (albeit with two NY court-approved amendments), and it is now back in the public eye because the newly created America’s Cup Partnership (ACP) purports to change how competition for the Cup is to be run in the future.

There is some misunderstanding about the New York Yacht Club’s request that the New York Attorney General examine whether the Partnership complies with the Deed. So let’s be clear about what it is and isn’t.

This is not a legal proceeding. The NYYC has not started or threatened any legal action. It is not to stop the 38th America’s Cup in Naples next year, and it is not targeting any competitor, owner or sponsor. It has simply asked the Attorney-General if ACP, as set up by the current trustee, the Royal New Zealand Yacht Squadron, together with its Challenger of Record, the Royal Yacht Squadron, is consistent with the terms of the Deed.

Why the New York Attorney General? The Deed of Gift creates a New York charitable trust under New York law. New York’s highest court, the Court of Appeals, has confirmed this in more than one past judgment.

In New York, the Attorney General is the public guardian of charitable trusts and acts through the Charities Bureau. The office has both the duty and the power to hold trustees (and those acting for them) to the terms of their trust – in this case the Deed of Gift.

Why the NYYC? The Club holds a special place in the Cup’s affairs whether or not it is competing. In 1857, it became the Cup’s first trustee, receiving the trophy from the surviving owners of the schooner America, and together with them it founded the competition. The Donors gave the Club a lasting role in seeing the terms of the Deed are upheld, even after it no longer held the Cup.

For example, when the Cup changes hands, the winning club becomes its new trustee. Under the Deed, that new trustee club must enter into a written undertaking to abide by the terms of the Deed, and a copy must be forwarded to the NYYC to verify this.

Every change of trustee since 1983, when the Royal Perth Yacht Club of Western Australia became the first club after the NYYC to hold the Cup, has given this undertaking in this way. The Royal New Zealand Yacht Squadron has signed two such undertakings as trustee, in 1995 and again more recently.

In short, the NYYC has an ongoing responsibility to ensure the Deed is respected and honoured. When it has concerns, the proper course is to raise any questions with the Attorney General.

The NYYC question is one shared by many others who know the Cup well and who believe the ACP may not be reconcilable with the Deed. This is being made unnecessarily more difficult because of an imposed secrecy surrounding the ACP documents and a refusal to make them public. The Club has asked the Attorney General’s Charities Bureau to seek those documents for examination and to review them in light of the Deed.

What happens next is up to the Attorney General. The office may conclude that all is in order. It may alternatively ask for changes in how the Cup is administered to bring it into line with the Deed and the law. If its requests are not met, it has substantial enforcement powers, including taking the trustee and its associates to court.

Notably, the Defender and the Challenger of Record have both said publicly that they welcome the NYYC’s query. That suggests all parties see value in having the question settled by the Attorney General.

Many appear to have forgotten that in 1987, the then trustee, the San Diego Yacht Club, attempted what the New York Supreme Court termed “truly radical and fundamental changes to the deed” to avoid a challenge from the Mercury Bay Boating Club from New Zealand. The New York Supreme Court correctly and firmly rejected this amendment application.

A similar result is almost certain if changes to the Deed are proposed when it is still possible to comply with the terms of the Deed, and especially if the application is contested. The fact that the current trustee continues to conduct the competition under the terms of the Deed is self-defeating evidence of a need to alter the Deed.

The door is always open for those seeking to alter the Deed to purchase, for far less cost than any legal proceedings to amend the Deed, a new Cup trophy and write their own vision for a competition for that trophy. This, after all, is precisely what Larry Ellison did in creating SailGP.

By continuing to act as guardian of the Deed as the donor envisaged, the NYYC is doing the wider sailing world a service for which all should be grateful. That way, the long and illustrious history and traditions of the America’s Cup can carry on into the future for the benefit of all, rather than being usurped by a few.

Defender New Zealand and Challenger of Record from Great Britain confirmed the Protocol for the 38th America’s Cup on August 12, 2025. The close of the initial entry period was October 31, 2025, with late entries considered up to March 31, 2026.

For the 38th America’s Cup, the AC75 has a helm and trimmer on each side of the boat along with a fifth crew position and a sixth passenger position.

38th America’s Cup: https://www.americascup.com/

38th America’s Cup entrants:
• Emirates Team New Zealand (NZL) – Defender
• Athena Racing (GBR) – Challenger of Record
• Luna Rossa (ITA) – Challenger
• Tudor Team Alinghi (SUI) – Challenger
• La Roche-Posay Racing Team (FRA) – Challenger
• American Racing Challenger Team USA (USA) – Challenger
• Team Australia (AUS) – Challenger

After the 2024 event, Barcelona, Spain declined hosting another edition, with the venue moved to Naples, Italy. Challenger racing is May 22 to July 4 before the 38th Match on July 10-19. Full details.

Preliminary Regattas:*
May 22-24, 2026 – Cagliari, Italy
September 24-27 – Naples, Italy

* The Protocol noted how there would be as many Preliminary Regattas as possible, with the intent to have three during 2026 and one possibly in early 2027, and a final event at the Match Venue immediately prior to the challenger series. Only two have been thus far revealed.