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Protest committees are not infallible. The rules provide for appeals as a mechanism to correct possible PC errors in interpreting the rules. The RRS provide for a single level of appeals to the national authority. For most appeals, US SAILING has a two-level appeals system, consisting of an association appeals committee (AAC), and the US SAILING Appeals Committee (AC). There are no appeals to the ISAF. The ISAF publishes and maintains “The Case Book” that is a collection of appeals decided by various national appeals committees. These cases are “authoritative interpretations of the rules.” The ISAF selects appeals for inclusion in the Case Book from appeals submitted by national authorities that “clarify an important meaning of a rule or increase the understanding of a complex rule” (ISAF Regulation 31.3.3).
US SAILING receives fewer than twenty-five appeals per year. Since appeals are infrequent, a PC whose decision is being appealed should carefully review the pertinent rules in Part 5, Section D (Appeals) and the US SAILING prescription to Appendix F (Procedures for Appeals and Requests), when providing documents, comments or additional information to an appeals committee.
Under rule 70 (Appeals and Requests to a National Authority), only the PC’s decision or its procedures may be appealed, not the facts found by the PC. It is common for competitors who are unhappy with the decision of a PC to appeal based on an improper determination of the facts. In such cases, rule 70.1 directs the appeals committee to deny the appeal.
Who may appeal? Rule 70.1 allows a party to the hearing to appeal. The definition Party provides the details: a protestor; a protestee; a boat requesting redress; a boat or a competitor that may be penalized under rule 69.1; an RC or OA in a hearing under rule 62.1(a).
A PC or AAC may request confirmation or correction of its own decision under rule 70.2. This is not done very often, but can be a very useful tool when the case is particularly complex or the decision is controversial. US SAILING receives only a few requests for confirmation of decisions per year. If the PC has resolved a complex protest but is uncertain about its conclusions, referring the decision to an appeals committee is a good way to ameliorate the concerns that the competitors may have about the decision.
Requests for confirmation or correction of a decision by an AAC can only be made to the AC after the written decision has been sent to the parties to the appeal, and the parties have not further appealed the decision themselves. This is necessary to preserve the right of the parties to appeal to the AC and have that appeal reviewed independently. After the AAC has sent its written decision to the parties and given them the required time to appeal to the AC themselves, then the AAC is welcome to send the appeal to the AC for confirmation or correction.
A club or other organization affiliated with US SAILING, but not an individual, may request an interpretation of the rules under rule 70.4, provided that no protest or appeal is involved. This is another way for a PC or OA to deal with a difficult situation. The primary difference between a referral in rule 70.2 and a question in rule 70.4 is that the AC can correct the PC’s or the AAC’s decision in a referral under rule 70.2. The answer to a question submitted under rule 70.4 has no effect on a protest decision.
The rules provide for the denial of the right of appeal, but only in a few circumstances:
· If the protest committee is a properly constituted international jury under Appendix N (International Juries).
· If the NOR and SIs so state, the right of appeal may be denied provided that
· the event qualifies competitors for a subsequent event, under rule 70.5(a) (US SAILING prescribes that its approval is required for such events desiring this procedure);
· US SAILING approves the denial of appeal and the event is not open to competitors from other national authorities, under rule 70.5(b);
· US SAILING and ISAF agree, provided the PC includes at least two International Judges, under rule 70.5(c).
In most cases, the right of appeal is denied only when the event organizers assemble a properly constituted international jury.
The right of appeal may also be denied when it is essential that the results of a race or regatta be final to qualify a boat in a later stage of the event. Such events could include ladder events of a US SAILING Championship, where the winner of a regional event advances to the semi-finals and the winner of the semi-finals goes to the finals. However, US SAILING has prescribed that they need to approve any such procedures for ANY of these events. Details on obtaining such approval can be found at the www.ussailing.org/rules/noappeal website.
Rule 70.5(b) allows an OA and RC (being responsible for the NOR and Sis) to petition US SAILING to deny the right of appeal for an event open only to entrants under their jurisdiction. It would be exceptional for US SAILING to approve such a request.
Except in the case of an international jury, whenever the right of appeal is to be denied it must be so stated in the NOR and SIs. As suggested in rule J1.2(12) (Notice of Race Contents) and rule J2.2(31) (Sailing Instruction Contents), it is good practice and not improper to give such notice even when an international jury is appointed.
Unless at least one of the conditions in rule 70.5 is precisely met, the right of appeal cannot be denied. Anything in a NOR or SIs that suggests that appeals will not change the race results or effect the awarding of prizes is invalid unless one of the conditions in rule 70.5 applies.
The rules do not provide for the conduct of a “hearing” when processing an appeal. Only the interpretation of the rules by the PC or Association AC can be appealed. Under rule 70.1, an appeals committee deliberates based on the facts found by the PC, and cannot take additional testimony. If additional facts are required, the appeals committee, under rule F6 (Inadequate Facts; Reopening) must get them from the PC.
Appendix F (Procedures for Appeals and Requests) is a US SAILING prescription that replaces the ISAF Appendix F. This US SAILING rule is necessary because we have a two-level appeals system.
The US SAILING Appendix F (Procedures for Appeals and Requests):
· Cannot be changed by SIs (rule 86.1(b)).
· Directs that appeals of a PC are sent to Race Administration Director at US SAILING. (F1.1).
· Directs that PC requests for confirmation of the decision are sent to the Race Administration Director at US SAILING. (F1.1).
· Empowers AACs. (F8).
· Directs appeals of AACs to the AC. (F1.2).
· Directs requests by AACs for confirmation or correction of their decisions to the AC. (F1.3).
· Directs requests for interpretations (rule 70.3) to the AC. (F1.3).
· Directs appeals from finals of US SAILING championships and requests for confirmation or corrections of PC decisions at such events to the AC. (F1.4).
· Describes appellant’s responsibilities. (F2).
· Establishes a 15-day (non-extendable) time limit from the appellant’s receipt of the written decision for appealing. (F2.1).
· Sets fees for appeals, referrals and questions to US SAILING. (F3.3).
· Requires the AC to notify the committee whose decision is being appealed and ask for missing documents. (F4).
· Requires PCs to provide missing documents, facts or other information requested by the AC. (F5.1).
· Requires a PC to conduct a hearing or re-hearing as directed by the AC. (F5.1).
· Requires an AAC appeals committee to provide missing documents. (F5.2 (a).
· Requires an AAC to consider an appeal if so directed by the AC. (F5.2 (c).
· Requires the AC to send copies of the relevant documents to all concerned who do not already have them. (F5.3).
· Requires the AC to accept the protest committee’s facts. (F6).
· Requires the PC to provide requested facts or reopen the hearing. (F6).
· Establishes a fifteen-day time period for parties, the PC, and the AAC to make comments on an appeal to the appropriate committee (F7)
· Establishes additional actions allowed under the provisions of rule 71 (F8).
No interested party can be involved in an appeal decision (rule 71.1). No member of the PC can be involved in the appeal decision (rule 71.1). The involvement of any such person could be the basis for another appeal.
The AC may return the protest for a new hearing by the same PC (rule 71.2), or for a new hearing by a different PC (rule 71.2). As is true for PCs (rule 64.1), the AC may penalize any party to the hearing, based on any rule that it finds to be applicable (rule 71.3). Decisions of the AC are final, and all concerned (competitors, PC, RC and OA) are bound by those decisions (rule 71.4).
A PC is permitted, but not required, to comment on appeals of its decisions. It is the responsibility of the PC to initiate comments; there is a 15-day time limit from the PC’s receipt of the appeal. Comments sent later than the time limit may be ignored. Comments are not “facts,” and, therefore, do not have the same significance as facts to an appeals committee. If the PC reviews its decision and decides that more facts are needed, the committee should reconvene and add the necessary facts to its decision. If more testimony is required, then all the parties must be notified of the time and place of the reopened hearing and be given the opportunity to attend (rule 63.2 and rule 63.3(a)).
