Anyone following the America’s Cup saga knows that there’s a legal challenge brewing that needs to be resolved. The scheduled start of racing is now only six months away.
Let’s set the scene. The 1857 Deed of Gift established the Cup as a Charitable Trust in the state of New York. As such, it comes under the Charities Bureau administered by the NY Attorney General. Not-for-Profit Corporation Law in the US authorizes the AG to bring actions against trustees, including foreign entities, who misuse charitable assets.
The ‘Verified Complaint’ lodged by businessman and Cup veteran, John Sweeney, draws the attention of the Charities Bureau to a raft of objections to aspects of the event as it is currently managed and conducted. The Bureau must decide whether those breaches amount to a level of misuse that would require the intervention of the Attorney General.
Claims that the current AC boats and racing formats don’t comply with the DoG are familiar, and correct. The last time the Deed was varied in that regard was back in 1956 when its wording was amended to reduce the load waterline of competing yachts to 44 feet and to drop the rule that boats had to sail to the venue of each match ‘on their own bottom’.
That amendment brought us the 12-metre era. But it was also the first time the event and the physical trophy – both trust properties of the New York Yacht Club – were legally referred to as “the America’s Cup”.
Regrettably, the current custodians of the Cup are happy to parade their ignorance of AC history. The official Louis Vuitton 38th America’s Cup website declares that:
“Upon returning to New York, the original syndicate members of the America had thoughts of melting down the silver ewer to create commemorative medals. Thankfully this didn’t happen and on July 8th 1857 the yacht’s owning syndicate renamed the trophy the America’s Cup and donated it, under a Deed of Gift.”
No, they did not “rename” it. In fact, it is the legally doubtful use of the more recent trademarks and names registered as “America’s Cup” held by a private commercial entity that is now the key issue.
And we’ve been here before.
After the Alinghi syndicate won the Cup in 2007 they established (through the Société Nautique de Genève) a for-profit company called America’s Cup Management. It purported to hold the TV rights and sponsorship revenues for the next series, bypassing the Deed of Gift. But the New York Supreme Court ruled that ACM could not replace the DoG.
History repeats. In 2025 Team New Zealand and Athena Racing established the America’s Cup Partnership, a private for-profit entity that claims all the commercial rights associated with “the America’s Cup” including hosting fees, media rights, merchandising and the licence of the Cup trademarks. Participants in AC38 are required to agree to that arrangement (and presumably are entitled to a proportionate share of any profits).
In effect, ACP has created for itself a monopoly of what would appear to be charity assets. That is the core of Sweeney and New York Yacht Club’s complaints.
So, what are the chances that the Charities Bureau will seek intervention by the Attorney General? Fair, to good.
The courts are always attracted to rulings of simple compliance rather than relying on interpretation. It is reasonable to think that the AG would take a view that the America’s Cup Partnership is seeking to profit from rights it does not legally hold under the Deed of Gift.
At the most basic level, whether the Attorney General could then secure a judgement that the Cup should not proceed in Naples next year is doubtful. But a court might well find that, under New York charities law, ACP cannot use or sell the America’s Cup name and trademarks that it claims to own. Sponsors, challengers and the host city could well start asking for their money back.
Come July, we might be watching a best-of-13 Cup match – without “the America’s” – and maybe even without the Cup itself. Stay tuned.
