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“Arbitration” is a process that provides an alternative to a formal protest hearing that is shorter, simpler and less intimidating, and that often results in a sailor voluntarily taking a penalty that is less than disqualification or withdrawing their protest. Arbitration is a short, closed, informal meeting between the sailors involved in a protest and a rules expert (the Arbitrator) that takes place before the protest hearing. One result of the process is that the sailors involved may learn more about the rules and how they apply to situations that arise on the race course without having to sit through a lengthy formal protest hearing. Because sailboat racing is a self-policing sport, protesting is the legitimate process whereby rule disputes are resolved. But too often, competitors involved in a breach of the rules are not willing to protest because the process of resolving the problem is too formal and intimidating, and often takes too much time. Some competitors would rather ignore a breach of the rules than give up their social time after a race to attend a protest hearing. Arbitration is fast, informal and less intimidating.
When arbitration is offered, an after incident scoring penalty is also offered. This after incident scoring penalty is available to all competitors, up until a protest hearing involving their incident begins, and whether or not they participate in arbitration. The SIs must specify the scoring of this penalty and the means to compute it.
One form of the scoring penalty is a score calculated using the method in rule 44.3(c) based on 40% of the number of entries. For boats finishing in the second half of the fleet, this penalty will be essentially the same score as a disqualification.
A slightly lesser penalty, which may encourage more to take it, is a score based on 40% of the boats entered, but not more than half the difference between the boat’s score prior to applying the penalty and the score for boats that are scored DNF.
In either case, when reviewing the SIs, the PC should be careful to ensure the language of the scoring penalty is clear and is fair.
Arbitration is a tool that any Organizing Authority can choose to implement. Normally it is not used at championships so that the protest committee can handle all protests, but this is up to the OA to decide.
When used as described in this section, it is consistent with the 2009-2012 RRS. The NOR and SIs must change appropriate rules to define an alternative penalty that boats may take after a race and before a protest hearing. The NOR and SIs should also notify boats that an arbitrator will hold a meeting for all protests filed involving a rule of Part 2 or rule 31 prior to the protest hearing.
Arbitration is held in a quiet location, well away from other competitors and observers. At the outset of the meeting, the arbitrator will explain the process so that the competitors are informed about and comfortable with the procedure.
The following principles should be followed:
· The arbitration process is not a protest hearing. The arbitrator is not a member of the protest committee that will hear the protest being arbitrated if it goes to a protest hearing. Boats or competitors are not “penalized” at arbitration; post-race penalties are optional and are taken by choice by competitors. Arbitrators give their opinion regarding the protest, but that is not a “decision” as the term is used in the racing rules. There can be no request for reopening, redress or appeal stemming from arbitration.
· When a competitor takes a penalty, either during or after the race, it is not necessarily an admission of fault for that incident. Often it is just protection against a possible unfavorable decision by the protest committee after the race despite the competitor’s belief that no rule was broken.
· Arbitration is technically optional to the competitors (just as protest hearings are), though competitors are strongly encouraged to participate when they are involved in a protest. Generally it is in both parties’ interests to have the protest resolved at arbitration if possible.
· If both (all) the boats involved in a protest are not represented at arbitration, there will be no arbitration meeting; and if the protest is not withdrawn, it will be heard by the protest committee. Note that any of the parties involved can choose to take the post-race scoring penalty at any time up until the protest hearing begins, even if arbitration is not held.
· The arbitration process should take no more than 15 minutes; less time if possible. Only the arbitrator, protestor and protestee attend. No witnesses are allowed. If a competitor believes his case requires a witness, the protest should be forwarded to the PC.
· Only incidents alleging breaches of rules in Part 2 or rule 31 can be arbitrated. Usually only two boat incidents can be arbitrated. Incidents with more than two boats are generally complicated enough that arbitration is not successful. However, sometimes arbitration for simple multi-boat incidents can be successful. The arbitrator usually has the ability to decide if a multi-boat case can be arbitrated.
· The protest should be sent directly to the protest committee for a hearing if either:
(a) The incident involves any possible injury or serious damage, or the gaining of a significant advantage by one of the parties.
(b) The arbitrator decides that a conclusion cannot be reached in a short time.
· The arbitrator will give one of four opinions, based on the testimony presented:
(a) The protest is invalid.
(b) No boat broke a rule.
(c) One or both boats broke a rule(s).
(d) A decision cannot be reached or an alternative penalty is not appropriate.
· A protestor always has the right to a protest hearing under rule 63.1, Requirement for a Hearing. This is true even if the protestee takes a post-race penalty with or without arbitration. The acceptance of a penalty does not “close” the protest matter, though usually the protestor asks to withdraw the protest when the protestee takes a penalty under rule 63.1.
· If, prior to a protest hearing, a boat has taken a penalty, the protest committee cannot further penalize her for that incident, unless the protest committee decides she caused injury or serious damage as a result of her breach, or gained a significant advantage in the race or series, or that she broke some other rule in the incident other than a rule of Part 2 or rule 31 (see rule 64.1(b)). Knowing this, most protestors are quite happy to withdraw their protest when the protestee takes a penalty.
· The sailing instructions usually change rule 63.1 to give arbitrators permission to approve the withdrawal of a protest that has been through an arbitration meeting. They should do so when satisfied that each party that broke a rule in the incident has taken a penalty (usually by receiving a signed statement to that effect), or that the protest is invalid. Usually the arbitrator will have protestors write on the protest form that they wish to withdraw the protest, and then sign it.
· The arbitrator must not give a reason for their opinion or make a case for either side until the protest is resolved, either by its withdrawal or by a subsequent protest hearing. At junior events where the sailors are new to protest and arbitration process, an arbitrator may find it valuable to be more forthcoming in explaining the circumstances. The arbitrator should still be very careful to not inadvertently pressure a junior sailor into a decision.
· If the arbitrator’s decision is not accepted or if he is unable to render an opinion, the protest is forwarded to the PC for a full hearing. The arbitrator should not discuss with any member of the protest committee the incident or the reasons why the protest was forwarded to the PC.
· If the protest goes from arbitration to a protest hearing, the arbitrator should not be a member of the protest committee, nor should the arbitrator be present at the hearing.
Before the arbitration meeting begins, the arbitrator should carefully review the protest(s) and think through possible rules issues that might come up. The arbitrator should check to ensure that the protests do not allege serious damage, injury or the other factors that would make alternative penalties inappropriate. If the incident involves more than two boats, the arbitrator should be comfortable that the incident appears simple enough to warrant an effort at arbitration.
After explaining the rules and procedures, the arbitrator should quickly establish if there are any issues with contact and damage. Since alternative penalties are inappropriate for incidents involved serious damage or injury, the arbitrator needs to establish that any damage is not serious and that there is no injury. The arbitrator also should not get involved in ascertaining whether a level of damage is serious or not.
To resolve this quickly, the arbitrator can ask each party if there was any contact. If there was, then ask each party if they believe there was any damage or injury. If either party contends there was damage, then the arbitrator should ask each party if they contend that the damage was serious. If ALL parties agree (without the arbitrator rendering an opinion) that there was no injury and that the damage, if any, was not serious, then the arbitration can continue. If any party contends that there was injury or serious damage, the arbitrator should end the meeting and forward the protest to the protest committee.
Next the arbitrator investigates if the protest is valid. If the arbitrator believes that the protest committee would find the protest to be invalid, he renders an opinion to this before taking testimony and gives the protestor an opportunity to withdraw the protest. If a protestor agrees that the protest is invalid and requests to withdraw the protest, the protestor should be asked to sign a statement that he withdraws the protest. A sample form is included in APPENDIX C of this manual and is available online on the judges website. Or the protestor can simply write on the protest form the words:
“I withdraw this protest.”
The protestor then signs the statement.
If validity is confirmed, or if the protestor chooses to not withdraw their protest despite the arbitrator’s opinion that the PC would find the protest invalid, arbitration continues.
The arbitrator asks the protestor to present their account of the incident using boat models, and then asks the protestee to give their account of the incident. The arbitrator may question the competitors and may allow them to question each other very briefly and under the arbitrator’s firm control.
Once the evidence has been given, the arbitrator decides whether or not the facts are clear enough to render an opinion. If not then the arbitrator forwards the protest to the full protest committee.
If the arbitrator is able to render an opinion, they should offer their opinion in terms of what the protest committee would be likely to conclude, and what options the parties have. This is important. While the arbitrator should be confident of their opinion and should show that confidence in expressing their opinion, they should also be careful to not appear to pressure or intimidate either party towards an action. It is up the parties to choose the option they wish to take.
If the arbitrator believes that no rules were broken, the arbitrator would voice that opinion (without stating why) and would give the protestor the option of withdrawing the protest.
If the arbitrator decides that one or more parties broke a rule, the arbitrator would say which parties they believe broke rules (again without stating why) and then list the options available to each party, which would include:
(a) Taking an alternative penalty.
(b) Retiring.
(c) Not taking a penalty.
If the competitor accepts an alternative penalty, the alternative penalty form is completed, or the competitor writes a simple statement on the protest form, such as:
“I accept a 40% penalty.”
The competitor signs the statement. Once this is completed, the arbitrator should present the options available to the protestor, which includes withdrawing their protest, or not withdrawing their protest. If the appropriate boat accepted a penalty, and the protestor is reluctant to withdraw their protest, the arbitrator could offer their opinion that the protest committee would (or would not) likely find the penalty taken to be appropriate.
The arbitrator may also decide that he is unable to determine sufficient facts based on the testimony given to make a decision. The protest is then forwarded to the PC for a full hearing. Once the arbitration process is concluded, the arbitrator will decline any comments on the protest unless the protest has been withdrawn or a protest hearing has been concluded.
Also if there was any damage, the arbitrator should remind the parties that an arbitration meeting does not formally determine that one boat actually broke a rule (a party accepting a penalty does not necessarily admit fault). Consequently, it should not be used to decide what boat should pay for repair of damages. If a protestor believes they need a formal written decision for such purposes, then they should not withdraw their protest and the protest would be forwarded to the protest committee for a protest hearing.
If all protests involved in an incident are withdrawn at the close of arbitration, and after the arbitration form is completed and handed into the protest desk, then (and only then) the arbitrator is welcome and encouraged to freely explain and review the incident with the parties. This session often turns into an excellent learning opportunity for the sailors involved and is one of the rewarding parts of being an arbitrator. Often when sailors have chosen to take a penalty, their attitude towards learning from the incident is much greater than when they have just been disqualified by a protest committee.
If, in the unusual case the PC becomes concerned that one of the parties has changed their testimony significantly from what was said at arbitration, the protest committee should first remind all parties that intentionally changing their testimony would be considered lying and would taken very seriously - including possible grounds for a misconduct hearing. Normally this would be a sufficient deterrent. If necessary, the protest committee could convene a hearing under rule 69 to investigate the alleged lying, and during that hearing, they could call the arbitrator as a witness.
The arbitrator should be a highly qualified and experienced judge with a strong command of the rules. The arbitrator must think and make decisions quickly and must command the respect of the sailors. A good arbitrator listens well, speaks confidently yet respectfully, and does not “talk down” to the sailors. Trained umpires often make excellent arbitrators. Some outstanding judges who excel at untangling complex protests make poor arbitrators as these judges are uncomfortable with the quick pace of the presentation and decision making.
A good way to learn to become an arbitrator is to watch experienced arbitrators in action. Auditing an arbitration meeting as an observer is fine, as long as the parties agree. To protect the objectivity of the PC, neither the arbitrator nor the observer should be a member of the PC that could later hear the protest. The observer could also observe the protest hearing - but strictly only as an observer, and again with the advanced permission of the parties and the protest committee.
During arbitration, the arbitrator should have a copy of: the NOR, the SIs and any amendments to them, a current rule book, a watch to keep track of the time and boat models.
In an effort to provide more consistency to the arbitration process across the United States, the Judges Committee appointed a working party to develop a “best practice” guide to arbitration and standardized language that can easily be incorporated into sailing instructions. The working party’s best practice concepts are reflected in the above description.
In addition, APPENDIX E of this manual contains a Judges Committee recommended “Attachment Z” that can be used without modification to implement arbitration. An electronic copy of this attachment can also be found on the US SAILING judges’ website.
Organizers can incorporate arbitration by simply attaching a copy of Attachment Z to the end of their SIs and including the following sentence in either the “Rules” section of the main body of the SI (generally paragraph 1 of the SI), or in the “Penalty System” section (paragraph 14 in Appendix L SI Guide):
“SI Attachment Z, AFTER INCIDENT SCORING PENALTY AND PROTEST ARBITRATION, will be in effect.”
If the organizers want to have a percentage other than 40%, say 30% as an example, they would use the following words:
