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Hearings involving misconduct require an extra level of care and vigilance to procedures and rules. There are several reasons why:
· The reputation of the sailors involved and of the sport overall are involved.
· A sailor’s right to compete can be suspended either directly because of a disqualification in a misconduct hearing prevents a sailor from a qualifying event for a later event, or because of additional disciplinary actions that can be imposed by US SAILING or ISAF.
· Under the Ted Stevens Olympic and Amateur Sports Act (TSOASA)[1], amateur athletes have additional rights that US SAILING must honor. Among these are additional requirements that must be met when a sailor’s right to compete is an issue. Failure to satisfy these requirements makes US SAILING and our judges vulnerable to expensive and time-consuming grievances through the US Olympic Committee (USOC) arbitration system.
· Fortunately, hearings for misconduct are rare; consequently most judges are inexperienced in handling these hearings. While most experienced judges are quite comfortable with normal protest committee procedures, few of us remember clearly the differences between a protest hearing and a rule 69 hearing.
This chapter has been revised and expanded considerably for the 2009 edition. The Judges Committee has:
· Updated the text to reflect changes in rule 69.
· Incorporated suggestions for meeting USOC requirements.
· Expanded advice on handling hearings to reflect best practices from a variety of sources.
Notably, we have included several suggestions from documents published by the Royal Yachting Association. To read their documents first hand, consult the RYA web site at: www.rya.org.uk/WorkingWithUs/raceofficials/Pages/bestpractices.aspx.
Among other things, the TSOASA complements the USOC Bylaws and aims to identify and safeguard certain athletes’ rights and to ensure that the voice of athletes is heard by national governing bodies of Olympics sports.
These safeguards extend beyond the direct Olympic path sailors to include most sailors in the United States. Relevant to sailing protest committees is the right of an athlete to a hearing with certain requirements before being declared ineligible to compete. Since a penalty issued under rule 69 can lead to a sailor’s loss of eligibility, all rule 69 hearings in the United States should be run with the USOC/TSOASA requirements in mind. Fortunately, while the USOC/TSOASA requirements place some extra requirements on a rule 69 hearing, they do not conflict with the Racing Rules of Sailing.
The main additional requirements are (more details later in this chapter):
· The notification of hearing to the sailor must include possible consequences.
· The sailor has a right to be assisted in the presentation of their case at the hearing, including having legal counsel if they desire (the sailor bears the cost of counsel).
· The sailor has the right to have a record of the hearing made, if desired. A good way to accomplish this would be to make a good audio recording of the hearing.
If a sailor believes that their rights under USOC/TSOASA have been violated, they can demand a hearing through the USOC Arbitration process. US SAILING may be required to pay some or all of the costs for conducting these hearings.
To limit the risks involved in these hearings, it is absolutely vital that protest committees involved in rule 69 hearings conduct the hearings carefully and meet all of the USOC Due Process requirements as well as the honoring the Racing Rules of Sailing.
In order to help athletes and officials understand this process better, the USOC has published several documents. The most useful for our protest committees is the “USOC Due Process Checklist.” APPENDIX F includes a copy of this checklist. If you are involved in a hearing that affects an athlete’s eligibility, go to the web and insure that you have the most recent copy of the checklist and other USOC documents. These are also available on the USOC website at: www.teamusa.org – on the very bottom of the page, click on “About the USOC”, then click on the link for “Athlete Ombudsman.”
Rule 2 (Fair Sailing) requires that a competitor compete according to recognized principles of sportsmanship and fair play. A protest under rule 2 is against a boat and may be applied with or without another rule. A boat, the RC, or the PC may all initiate a protest under rule 2. The procedures governing protests under rule 2 are the same as for other protests, including all of the elements testing validity.
When determining whether a boat broke rule 2, the PC should re-read the section at the beginning of the rulebook entitled Sportsmanship and the Rules. If a boat knowingly breaks a rule and does not promptly take a penalty or retire, she may break rule 2. This was the situation in Cases 34 and 65. There are six additional Cases (27, 31, 47, 73, 74, and 78) and one US Appeal (42) that deal with what does and does not constitute breaking rule 2.
The second sentence of the rule cautions the PC that it must be “clearly established” that the principles of sportsmanship and fair play have been broken. When in doubt the PC must
conclude that the rule was not broken. A disqualification for breaking rule 2 is not excludable under rule 90.3(b). Further, a boat whose score in a race or series was made significantly worse by a boat that was breaking rule 2 may be entitled to redress (rule 62.1(d)).
In those instances where a competitor may have committed a “gross breach of the rules or of good manners or sportsmanship or brought the sport into disrepute,” a rule 69 action may be warranted. Rule 69 is conducted in a significantly different manner from the protest process of other rules. This includes how a rule 69 hearing is initiated, its procedures, definitions and penalties.
Unlike other rules, an allegation of Gross Misconduct is made against an individual competitor not a boat. In addition, a hearing under rule 69 is initiated by a PC based on its observations or through a report received from a source concerning the action of a competitor, on or off the water (rule 69.1(a)). The decision to call a hearing is solely the responsibility of a PC.
There are no restrictions on the source of a report, as there are for PC or RC protests under rules 60.2 and 60.3. A rule 69 action is not a protest, but can be initiated based on information imbedded in a protest or discovered during the hearing of a protest. If so, the committee should decide the protest first, and then it should consider opening a hearing under rule 69. If a protest form alleges a breach of a rule followed by unsportsmanlike behavior, the PC should decide the protest first. After completing the protest hearing, the PC should dismiss the parties, and then decide whether to proceed under rule 69.
If a PC receives a report concerning a person that are not a competitor but is affiliated with the event, they cannot conduct a rule 69 hearing. They can however, conduct an investigation and submit a report to US SAILING (and/or other relevant national authorities) and US SAILING can act under rule 69.2(a). In the United States, the report should be sent c/o the Race Administration Director at US SAILING headquarters. Mark it for attention to the Review Board.
Since a rule 69 hearing is based on alleged misconduct of a competitor, the misconduct must occur during[2] a competitive event. In most situations, this will coincide closely with the timing of a single event, however may be applicable over a longer period of time such as may be associated with a series of season’s points races held over an extended period.
The time and place of an incident is irrelevant provided that the misconduct can readily be associated with the event. For example, if during a regatta, a competitor was involved in a serious fight involving assault in a public place that while unrelated to the regatta venue still brings the sport into disrepute, a rule 69 hearing may be appropriate. On the other hand, were it to have taken place between the competitor and someone unrelated to the regatta, in private or in public, without the public knowing the competitor was competing in the regatta, a rule 69 hearing would not be appropriate.
When considering whether to proceed on a charge of gross misconduct, the PC should first carefully re-read rule 69 and Appendix M (Recommendations for Protest Committees), the USOC Due Process Checklist[3] and this chapter of the US SAILING Judges Manual.
On receiving the report, the PC must determine if the allegation is serious and credible enough to warrant a hearing or investigation under rule 69 to conduct a hearing. The allegation needs to be credible, and it must be a serious breach of a rule, or good manners, or sportsmanship, or have brought the sport into disrepute.
An incident must be within the PC’s domain and power to investigate. Rule 69.1(a) speaks of bringing the sport into disrepute. A violation of the law, involving private behavior that has nothing to do with sailing, might not bring the sport into disrepute. On the other hand, a known competitor who displays obnoxious public behavior does bring the sport into disrepute. If the behavior remains undisciplined, the town, the sponsor and the local club may well not wish to entertain the event in the future.
There is no time limit for calling a hearing under rule 69. In scheduling the hearing, the PC should balance priorities: if it is late in the day, it may well be wise to schedule the hearing for the following morning when tempers have cooled; and the sailor must be given sufficient time to prepare their defense; and the hearing must be scheduled such that the sailor can reasonably attend. On the other hand, delaying the hearing more than necessary allows tension to grow and misinformation to spread.
Under some conditions, it may be necessary to schedule a hearing well after the alleged incident. It is important to consider a time and place for the hearing that gives the competitor a reasonable chance to attend.
If members of the PC are no longer available, the OA may appoint a new PC for the hearing under rule 69.1(f). The PC can also be augmented with one or more additional members that have more experience with rule 69 hearings.
While the report alleging misconduct to the PC need not be in writing, the PC is required under rule 69.1(a) to promptly notify the competitor in writing. The notification must include a statement of the alleged misconduct, the date, time, and location of the hearing. The TSOASA also requires that the notification state the possible penalties (see sample letter).
The notification needs to manage a careful balance. It needs to describe the allegations specifically enough that the competitor can adequately prepare their defense. But the allegation also should not be too specific, as the scope of the hearing must be limited to the allegations. An allegation such as “regarding your behavior after racing last week” or “that you behaved in a fashion that brings the sport into disrepute” is insufficient. An allegation that “you cursed at an umpire on leg 3” might be too specific if the verbal abuse occurred during and after the race. A good example might be “that you directed abusive and foul language at the umpires during and after race 5”. A sample notification letter is shown in Figure 10.1 (below). You can also download a copy of this letter from the web (www.ussailing.org/judges/links). This letter could be used either during the event, or mailed to the competitor after an event has concluded. If the letter is not delivered in person, take follow-up steps to ensure that the competitor receives the letter. The rules do not address whether or not email would be valid notification. If you use email to deliver the notice, again, be sure that the competitor receives it, and consider sending a printed version of the email through normal postal mail as well.
Sometimes the behavior that leads to a rule 69 hearing is linked to an incident involving a protest/redress hearing under other racing rules. Handle the protests/redress hearing separately and before the rule 69 hearing. If the evidence leading to a rule 69 hearing arises during a protest/hearing, you can prepare the written notification as you finish the protest decision and give it to the competitor after the protest decision.
The requirements and recommendations for a rule 69 protest committee are more stringent than for a regular hearing. Rule 69.1(b) requires that the PC have at least three members for a rule 69 hearing.
In addition, US SAILING recommends that whenever possible all PC members should be at least US SAILING certified judges and the judge whom chairs the hearing should have prior experience conducting rule 69 hearings. Adding an additional member to the protest committee to give you the expertise in rule 69 hearings is fine under the rules. You may also add a judge via teleconference to provide additional expertise in conducting rule 69 hearings.
Both the actual and the perceived objectivity of the protest committee are particularly important in these hearings. Take extra care before starting the hearing to be sure that no member of the protest committee is an interested party. Pay particular attention to real or perceived conflicts of interests. Avoid having a member of the protest committee who has had strong individual disagreements or animosity with the competitor. Note also that it is not improper to have a member of the PC who saw the alleged incident.
<PC Chair Name>
<Address>
<date of letter>
<<name/address of competitor>>
Dear <name>:
The protest committee has received a report of an incident alleging << description of the charges>>.
These allegations are sufficiently serious to warrant a hearing under rule 69, Allegations of Gross Misconduct, of the Racing Rules of Sailing.
If you are found to have committed these allegations, the protest committee can, under rule 69.1(b), issue a warning, or disqualify you from one or more races of the regatta. If the protest committee penalizes you, US SAILING and the International Sailing Federation (ISAF) will be notified and may suspend your eligibility to compete in sailing under rule 69.2 and 69.3.
You have the right to be assisted in the presentation of your case at the hearing, including the assistance of legal council, if desired; you have a right to call witnesses (you must have them present at the hearing or readily available by telephone) and present oral and written evidence and argument; you have the right to confront and cross-examine adverse witnesses; you have the right to have a record made of the hearing. If you wish to exercise any of these rights, it is your responsibility to make necessary provisions.
The protest committee has scheduled a hearing to investigate the above allegations on <<date>> at <<time>> hours at <<location>>.
Sincerely,
<<PC Chair, name>>
Chair, <<event>> Protest Committee
cc: <<rest of PC and others directly involved>>
Figure 10.1. Sample rule 69 notification letter.
The rules for handling hearings when the competitor fails to attend are significantly different than for a regular protest or redress hearing. In essence, the PC should try hard to ensure that the hearing is scheduled so that the competitor attends. Due to the seriousness of the allegations, the PC should only run a hearing without the competitor if they are quite certain that the competitor could attend but chose not to do so. Under rule 69.1(a), if the competitor has a good reason for being unable to attend, the PC must re-schedule the hearing. Under rule 69.1(d), if the competitor does not attend the hearing and does not provide a good reason for failing to attend, the PC may hold a hearing without him. Alternatively under rule 69.1(e) the PC may choose not to conduct a hearing without the competitor present and shall collect all available information and make a report to the relevant national authorities.
If the PC decides that it cannot or should not conduct a rule 69 hearing without the competitor present, they can still investigate, take evidence, and if the PC deems it appropriate, submit a written report to US SAILING. In conducting the investigation, use the same procedures and guidelines that you’d use in a formal rule 69 hearing. The report should be sent to c/o the Race Administration Director, at US SAILING headquarters.
The PC cannot penalize a competitor under rule 69 without conducting a proper rule 69 hearing.
In a rule 69 hearing there is usually only one party to the hearing and that is the accused competitor. If more than competitor is involved in the same incident, the rules allow you to hold a single hearing with all the accused competitors as parties. Be extremely diligent in honoring the rights under the rules for all parties. This includes:
· Specifically notify each party in writing of the alleged misconduct.
· Allowing each party to prepare a defense.
· Allowing them to call witnesses to the hearing.
· Ensuring that the parties are able to question every witness who gives testimony.
In addition, the USOC/TSOASA gives each party the right to counsel.
It is especially important at a rule 69 hearing to maintain an atmosphere of calm formality and to carefully obey the rules and procedures governing rule 69 hearings. Having a calm, cool demeanor is essential, since the PC can find itself confronted with, and perhaps even involved in a case that stirs strong emotions.
The PC must be meticulous about procedures including a good written account of the proceeding, erring in favor of the competitor and ensuring that the competitor has ample opportunity to prepare to answer the allegations.
Before the hearing begins, as a group, the entire PC should carefully re-read rule 69 and Appendix M (Recommendations for Protest Committees). The hearing must be held in accordance with the procedures in rules 63.2, 63.3(a), 63.4, and 63.6. The hearing must not be hurried. The PC’s careful attention to fairness and procedure is critical.
Due to the serious nature of a rule 69 hearing the following key points should guide the process.
· Only when there is evidence at hand that indicates a reasonable possibility of gross misconduct should a rule 69 hearing be initiated at all.
· The competitor must be given the allegations in writing and a reasonable opportunity to prepare a defense.
· During the hearing, ample opportunity should be given to the competitor to present evidence and call witnesses, and the procedures should be adhered to meticulously.
· A record of the evidence presented must be kept. A good audio recording will usually suffice. In addition, make good copies of all written evidence and take careful notes.
US SAILING recommends that the protest committee should apply the test of “beyond all reasonable doubt.” This is quite different to the guidance in Appendix M that a “breach of a rule has been established to the satisfaction of the protest committee.” It is also a higher burden than the USOC Due Process requirement that the burden of proof be at least a “preponderance of the evidence.”
No publication of the outcome should be made, other than the usual hearing result on the official notice board, and required and confidential reports to the relevant national authorities. Further the PC should not make any public comments about the hearing other than to state the penalty.
Making an audio recording of a hearing can be a valuable tool for ensuring that the proceedings are accurately documented in a cost-effective and simple manner. However, a poor recording can confuse issues further, so here are a few suggestions for making an effective and simple audio recording of a hearing:
· The recorder does not need to be expensive, but try to use a digital recorder that allows you to download the recording to a computer and transmit it electronically. Digital recorders also avoid the hassle of having to interrupt a hearing to change the tape. Make sure that the recorder has fresh batteries and sufficient capacity to record the entire hearing.
· Assign one member of the PC to understand the operation of the recorder and monitor it through the hearing.
· Before the hearing, test the recorder in the same room in which the hearing will be held. Make voice samples from everywhere in the room where someone might speak. If the test recording is not clear and easy to understand, make adjustments as necessary. A poor recording is as bad as no recording at all.
· Ask permission of all those present to record the hearing. Do not make a clandestine recording.
· At the start of the hearing, have each person introduce themselves with their full name and their role in the hearing. Having each person do this (rather than one person introducing everyone) ensures that each person’s voice is recorded and linked to their name at the start of the hearing.
· For each witness, make sure they are aware that a recording is being made. If they object, consider pausing the recording in order to understand what their concerns are and try to resolve them. Have the witnesses introduce themselves for the sake of the recording.
· Take precaution to ensure that the recording is kept confidential and copies distributed only when appropriate. Copies to the parties and protest committee would be appropriate. In a follow-up investigation, the US SAILING Review Board make ask to review the recording, ensure that the parties to the hearing know this, and if possible, the chair of thehearing should review the recording with the Review Board to ensure that the contents are clear and the identities of the speakers are correct.
Once the PC has heard all the evidence, they must reach a decision for which there are three options: Dismiss, Warn or Penalize. The appropriate decision is a straight-forward question of evidence, and the panel must be very sure of the facts. If there is any reasonable doubt, the PC must dismiss the allegation.
If the accused competitor is found innocent of the alleged misconduct, the PC should make this quite clear. The news of a rule 69 hearing will have most likely spread throughout the regatta, and it is important the competitor’s name is cleared publicly.
If the PC finds that the competitor committed a gross breach of a rule, of good manners, of sportsmanship, or has brought the sport into disrepute, it must then decide whether to Warn or Penalize. The consequences are very different.
A Warning is not a penalty and the PC does not report it to any national authority. If the competitor has apologized, paid for any damage and seems genuinely contrite, a warning may suffice. A competitor that receives a warning is still in gross breach of the rule, or good manners, etc. but the record of the misconduct remains at the local level.
If the PC decision is that the accused has committed a gross breach of a rule or of good manners or sportsmanship or their acts have brought the sport into disrepute, and the PC does not give a warning, then PC must issue a Penalty.
Penalties by the PC are limited to the OA’s jurisdiction and usually apply to the race or regatta for which the PC has been appointed. A penalty, under rule 69.1(b)(2), may exclude a competitor or a boat from a race, the remaining races in a series, an entire series or a period of time.
The decision should be posted on the notice board. It is quite likely that the fleet will be well aware of the hearing and will be waiting for the result. The decision in the public posting must not go into detail as it might be considered libelous (see Figure 10.2).
The full written report should be considered confidential and distributed only to the PC, the parties to the hearing, and the relevant national authorities. If the decision is that the allegation is true, it is sufficient for the posting to read as shown in the example.
Disqualifications under rule 69 may not be discarded under rule 90.3(b) and should be noted in the scores with the penalty designation DGM as per rule A11.
[NAME OF EVENT]
Date: [DATE]
To: [COMPETITOR]
Subject: Rule 69 Hearing
[BOAT] is to be scored DGM (Disqualification under rule 69.1(b)(2); not excludable) for race [x] [or] all races sailed and excluded from races yet to be sailed.
[or]
[COMPETITOR] has been warned.
For the protest committee,
[SIGNED]___
Chair
<posting date and time>
Figure 10.2. Sample rule 69 decision notice.
While the decision on what is an appropriate penalty will vary for each incident. They would be based on the severity of the incident, the attitude of the sailor, if the offence is repeated, and other aggravating or mitigating circumstances. However, consistency in penalties for similar breeches is also important.
Consider Table 10‑1 (below) as guidance (but not binding) from the US SAILING Judges Committee in helping decide appropriate penalties. The table contains six levels of action:
· Level 0 - Interview with competitor, but no hearing
· Level 1 - Warning, but no penalty
· Level 2 - Increase the boat’s points score in a race or series
· Level 3 - Disqualify boat or exclude competitor from race or races
· Level 4 - Disqualify boat or exclude competitor from event
· Level 5 - Disqualify boat or exclude competitor from event and recommend further action by US SAILING.
Note also that Table 10‑1 is intended to cover incidents for which protest and penalty under rule 2 is not considered appropriate. Remember that protests under rule 2 should be handled as a “regular” protest hearing with all the requirements described earlier in Chapter 6.
Table 10‑1. Guidelines for ranges of penalties for misconduct.
In the past, there have been threats made by competitors against PCs, i.e. that the competitor will sue for libel (the dictionary definition of which is ‘bringing someone into ridicule, hatred, or contempt’). PCs should try not to let the possibility of such action deter them from taking the appropriate action, but should always strive to be extra careful to follow the rules and use good and careful procedures.
As described in section 12.10, US SAILING provides insurance for its certified officials to protect them while acting as a volunteer official either inside or outside the United States. Consult the FAQ on the web at www.ussailing.org/raceadmin for additional information.
In some circumstances, the PC in the US must send a report to one or more outside organizations. When the PC issues a penalty (rule 69.1(c)) or when the PC conducts a hearing under rule 69.1(d) and decides that the allegations are justified, the PC must send a copy of the report to:
· US SAILING (send it to Race Administration Director (attn: Review Board) at US SAILING’s headquarters.
· The competitor (or other persons under rule 69.1(d)). [these other persons are not defined in rule 69]
· The national authority of the competitor and boat owner (or other person under rule 69.1(d)).
· ISAF – if the PC is an international jury appointed by ISAF (see rules 69.1(c) and 69.1(e)).
In the report, the PC should give a detailed description of the incident, its findings and a copy of the hearing written record. This should include the facts found by the PC, and any other information such as provocation, behavior in the hearing, specific language used, restitution and the PC’s recommendation regarding any further penalty. A copy of any recorded evidence should also be included.
Upon a review of the report, the US SAILING Review Board will proceed under rule 69.2 and may decide no further action is necessary, or take additional action including, conducting further investigations, holding hearings, and possibly suspending the competitor’s eligibility to compete in its area of jurisdiction for a period of time per ISAF Regulation 19.
If US SAILING suspends a sailor’s eligibility to compete, it must forward a copy of its report to ISAF, and to the national authorities of the competitor and boat owner (if their national authority is not US SAILING)
The competitor may appeal the decision unless the right to appeal has been properly denied under rule 70.5. Appeals of rule 69 hearings should, like all appeals, be sent to the Race Administration Director at US SAILING headquarters. Appeals of rule 69 hearings are handled directly by the US SAILING Appeals Committee (not initially by Association Appeals Committee) (F1.4).
The US SAILING Review Board will not conduct a follow-on investigation until any action by the US SAILING Appeals Committee is completed. The procedures under which the Review Board operates are documented in Article 15 of the US SAILING Regulations.
As the governing body in the US for an Olympic sport, US SAILING is also legally bound by the USOC/TSOASA. This means that athletes may request binding arbitration before a USOC arbitration panel. While such requests are extremely rare, they can occur and can do so on very short notice (if say a rule 69 penalty occurs that eliminates a competitor from qualifying for a subsequent event that may only be a short time after the qualifying event).
The process that an athlete goes through to request such a hearing is documented on the USOC web site at: www.teamusa.org (on the very bottom of the page, click on “About the USOC”, then click on the link for “Athlete Ombudsman.”
ISAF may also conduct and investigation and take further action under Regulation when it receives a report either from a national authority that has suspended a sailor’s eligibility, or from an international jury acting under rules 69.1(c) or (e).
[1] The “Ted Stevens Olympic and Amateur Sports Act” is variously referred to as the “TSOASA” or “Amateur Sports Act” or “Ted Stevens Act.”
[2]A period beginning when the sailor arrives and ending shortly after the prize giving.
[3] Included as Appendix F of this manual or available on the USOC website: www.teamusa.org.
