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Olympic Games 1996

IYRU Olympic Update

The Hearing Procedure

Excerpted from Protests and Appeals by Bryan Willis. Published by Fernhurst Books. Reprinted here with permission of the publisher.

The general procedure for any type of hearing is fairly standard. The committee members meet and read the documents. The parties are called in. Evidence about validity is heard and a decision made as to whether the protest or request is valid. If valid, evidence about the case itself is heard from the parties and witnesses who are questioned by the parties and committee members. The committee makes its decision in private. The parties are recalled and the decision is announced.

The Protest Room

Most yacht clubs and sailing clubs have a "committee room" which is used (amongst many other things) for the conduct of hearings. At championships, several rooms are sometimes needed including a room where parties and witnesses can wait.

The members of the committee sit in a row behind a table with the chairman in the middle. The parties, and each witness when called to give evidence, will sit opposite them. There are often models or a blackboard or flip-chart to help the parties and other witnesses to give their evidence.

Ideally, the committee room (or jury room, as it is called when a jury has been appointed) is quiet, with soundproof walls, big enough to seat everyone comfortably, ventilated, and not too hot or cold!

Members of the Protest Committee

The committee is likely to comprise three members (a chairman plus two). If it is sitting to hear a request for redress, its membership should be independent of the race committee. If it is hearing a protest its members might be the same as those of the race committee.

At a championship the protest committee is likely to be a jury appointed by the organising authority, and have a membership of three or five.

At an international championship, it is likely to be an international jury with five members.

'Interested Party' as a Member of the Committee

No one is allowed to sit on the protest committe if he is an 'interested party'. The rules define an 'interested party' as 'anyone who stands to gain or lose ar a result of a decision of a protest committee or who has a close personal interest 'in the result'.

At the level of regattas where international juries are appointed, an 'interested party' is a rarity. However, organising authorities sometimes unwisely appoint a competitor's parent or relative as a member of a jury; as the results of almost every hearing would directly effect that competitor's score, the appointee would have to stand down for all those hearings.

As a competitor it is important that you question 'interest' as soon as you are aware of it. A good protest committee chairman will address any possibility of interest before the hearing begins, but if he doesn't, and you know about a committee member who you think fulfils the definition of 'interested parties', you must consider whether you are prepared to accept the situation, and if not, you must raise the question immediately. To make this the point, or even a point, of an appeal is unlikely to lead to the appeal being upheld if you didn't make a timely complaint. So when you lodged a protest against John and the chairman says to you 'We are having difficulty finding sufficient experienced people to serve on the protest committee; Mary here is John's Aunt; are you prepared to accept Mary as a member of the committee?', and you answer 'yes', then that is an end of the matter. By the way, you shouldn't jump to the conclusion that Mary will favour John in the committee's deliberations; she might be so keen to be unbiased, she actually leans the other way!

Observers

At any level of event, observers are sometimes allowed to attend a hearing. Whether or not observers are permitted to sit in on hearings, and the extent to which they are positively encouraged to do so, is for the committee itself to decide. Observers usually sit to one side, and a little away from the table. They are not permitted to speak or disturb the proceedings in any way. The committee chairman should ensure that none of the observers is involved in or witnessed the incident.

If you are a party to the protest and you are going to call witnesses, make sure none of them is in the group of observers.

If you are uncomfortable with the presence of observers, you can ask for the hearing to be conducted without them, but you may have to provide a reason, and your request might be refused by the committee. The presence of observers (provided they are well behaved!) usually enhances the respect for the work of the protest committee, and personally I think allowing observers is usually beneficial , provided there is space for them.

At junior events, I strongly recommend that an adult supporter for each of the parties be encouraged to attend as an observer. At Optimist World Championsihps (where the skippers are all under 16), a coach or team leader sits behind and to the side of each of the two parties. They remain silent throughout (unless they are needed as translators). The huge benefit is that they see that their skipper has had a fair hearing; in their absence they could never be sure this was the case.

At an America's Cup there might be unacceptable pressures put on the participants were the press be allowed to watch hearings, and as far as I know, observers have never been allowed.

Date and Time of Hearing

The protest committee must inform the parties of the time and place of the hearing. At a club even this can be done orally. At a championship parties can be informed orally, but championship sailing instructions often prescribe a system of notification using the official notice board which means you must check at the close of protest time whether you are involved, since you cannot rely on being informed in any other way. However, without a special sailing instruction, the committee must inform you personally, although if you are the protestor you must make a reasonable effort to find out when and where your protest will be heard.

If the race committee or protest committee is initiating a hearing against you, you must be given a written copy of the protest.

If another yacht is protesting you, you are entitled to see the written protest or to be given a copy of it.

At championships where hearings are to be expected, you can expect them to be scheduled promptly after the day's racing. At a sailing club, arranging a hearing arising from a club race is sometimes not so easy. There is often the need for a compromise between holding the hearing soon after the race when everyone's memory is fresh but with the protest committee comprising people who were competing in the race, or with those who didn't race but have little racing experience on the protest committee, and waiting several days or a week for more experienced or independent committee members, when memories are fading. In my opinion, it is best to have a hearing soon after the race, at least to establish the facts.

Validity

Each type of hearing has its own validity requirements. Before a hearing can progress to the point when evidence about the incident is heard, the committee must decide whether or not it is valid. Although on some questions of validity the protest committee has some discretion, when the requirements are met the protest committee must decide that the protest or request is 'valid' and proceed with the hearing. When the requirements are not met the protest committee must decide the protest or request is 'invalid' and state the reason why it is invalid, and must 'refuse' it.

The process of addressing and deciding on whether or not a protest or request is valid usually takes a few seconds, but sometimes it can be a long and complicated procedure, especially if one of the parties (the protestee in the case of a protest) disputes the validity. But even when the protestee readily accepts that a protest is valid, the committee still has the duty to satisfy itself that it is valid. The validity requirements cannot be set aside just because the protestee is prepared to proceed.

Witnesses might have to be heard and cross-examined just on the question of validity, before the actual hearing ever gets started, if indeed it does. Many protests are ruled as invalid and refused.

Withdrawing a Protest

When a yacht hails 'protest' and displays a protest flag, she reserves the right to lodge a protest, but hailing and displaying does not commit her to actually lodging it.

Lodging means handing the written protest to an official. Generally, once a protest is lodged it cannot be withdrawn. There are two exceptions, which I will explain now, but the second of these two exceptions is hardly worth knowing about.

Acknowledging the Infringement

When one of the parties 'acknowledges the infringement' before the hearing starts, the protest isn't exactly withdrawn, but it has to be set aside. When a protestee is unsure whether he infringed the rule he is accused of infringing in the protest form, apart from saving time, there is not much incentive to 'acknowledge the infringement', as the difference between the points awarded for a late retirement and points awarded for a disqualification after a hearing is usually insignificant. 'Acknowledging the infringement' means acknowledging having infringed the rule that has been alleged to have been infringed in the protest form, not merely retiring for an unspecified reason.

Protestor Wanting to Withdraw Her Protest

So in the rare case of contact which is both minor and unavoidable and when neither yacht wants to protest, neither need take any action, but if a third yacht sees the contact and being of the opinion that the contact was not 'minor and unavoidable' lodges a protest against both yachts for infringing rule 33 (the rule that obliges at least one of two yachts to protest or retire), there is a possibility that the committee will find that the contact was not minor and unavoidable, uphold the third yachts's protest, and disqualify both protestees. The committee will not go into which yacht was right-of-way and which was give-way; it will simply address whether there was contact and if there was, whether it was minor and unavoidable. If it finds as a fact that there was contact and that it was not minor and unavoidable, it will decide that both yachts infringed rule 33 and disqualify both. On the other hand if it finds that there was no contact or that there was contact but that it was 'minor and unavoidable' then it will dismiss the third yacht's protest.

Fearful of a 'third yacht protest' and the commitee finding as a fact that the contact was not minor and unavoidable, one of the two yachts involved in the contact (typically the one that thinks she was the right-of-way yacht) may lodge a protest but argue that the contact was minor and unavoidable. Should the committee agree, then she is permitted to withdraw the protest. Should the comittee find that there was contact and it was not minor and avoidable, then the protestor's protest can proceed (under some other rule of part IV) and the committee must consider which right-of-way rule was infringed and disqualify the infringing yacht.

A few words about the term 'minor and unavoidable'. Minor and unavoidable collisions are rare. Minor means a light touch. Unavoidable means that try as she might, through no fault of her own, a yacht has so little steerage way that even though she is at a distance where she is 'keeping clear', she is drawn to the other yacht, perhaps by waves, or some mystical attraction between floating vessels.

'Minor and unavoidable' can never be used as a defence in a protest, except when the protest is brought by a third yacht claiming an infringement (by two yachts) of rule 33, or brought by a one of the two yachts not actually wanting to protest but fearful of a third yacht protesting.

It is important to appreciate that whenever there is contact, albeit minor and unavoidable, there is always an infringement of some rule of part IV.

In twenty years judging I've never come across a case where a protestor wanted to withdraw her protest because she claimed the contact was minor and unavoidable.

Evidence, Facts, and the Decision

In the language of the racing rules, evidence is everything a witness (and that includes the parties) says or shows in a hearing ro the committee. John says 'My yacht Ostrobogulous was on starboard tack'; that is evidence. Had John said 'It is an indisputable fact agreed by both parties that my yacht Ostrobogulous was on starboard tack', that too would be evidence, not a fact. John places a model on the table with its boom on a particular side, in a particular position in relation to other models; that is evidence. If John were to bring in his damaged rudder for the committee to see, then the damaged rudder would be evidence. Descriptions and diagrams in a written protest form are evidence. When John says 'Bill told me after the race that he definitely saw that I was on starboard tack at the time of contact', that is evidence (but without Bill, is valueless). An opinion given at a hearing by a measurer or some other specialist is evidence. A video recording is evidence. Photographs are evidence (but usually of little value). A written report from someone not able to attend a hearing is hearsay evidence, and without its author available to answer questions about it, it too is of limited value.

Only the committee finds facts, based on the evidence, almost always in private, and only after a valid hearing. If it decides 'Ostrobogulous was on port tack' then that becomes a fact. Whether it was true or not is another matter. Facts found by the protest committee are not open to appeal. It is therefore far more important to provide the evidence which will lead the committee to find what you consider to be the facts which reflect what you think actually happened, than to guide them in applying the correct rules.

The decision (for example to disqualify Ostrobogulous) is also made by the committee and must be based on the facts found. Should the decision not be the correct one based on the facts, then an aggrieved party can successfully appeal (unless the right to appeal has been denied for a legitimate reason).

A party cannot appeal the facts themselves, as the appeal authority cannot change facts found by the protest committee. If a fact was found which was totally unreasonable, an appeal authority might return the case to the committee for reconsideration or comment.

Onus of Proof

The term 'onus of proof' is often used (wrongly) in place of the term used in the rule book: 'onus of satisfying the protest committee'. A protestor must satisfy the committee that an infringement occurred or at least might have occurred. So a protest claiming that a yacht is 'illegal' (that is, that it infringes a class rule) would have to include a reason why the protestor thinks there has been an infringement. Just because the accused yacht is the fastest on the racecourse would be insufficient. This prime obligation for the protestor is not described in the rule book (although in my opinion it should be) but there are several examples in appeal decisions. In the vast majority of cases it is not a point to be questioned, as there is sufficient evidence (usually in the protest form) to convince the protest committee that there 'may have been an infringement' (or, to put it another way, there is 'a case to answer'.) Members of the protest committee should take an active role in questioning the witnesses so that the 'facts found' are as close to what actually happened as possible. Although the protest committee is not obliged to do so, not ot take an active role in questioning the witnesses would give an experienced or legally trained party a big advantage over one who was not. Protest hearings are not courts of law; we don't have a prosecution and defence.

There are four situations described in the rule book where there is an 'onus of satisfying the protest committee'. They are:

Room at a mark - breaking an overlap. The yacht claiming the overlap was broken has the onus of satisfying the protest committee that she became clear ahead when she was more than two of her overall lengths from the mark.

Room at a mark - establishing a late overlap. The yacht claiming an inside overlap has the onus of satisfying the protest committee that the overlap was established in proper time.

A yacht choosing not to tack in response to a hail at an obstruction. A yacht that replies 'you tack' the onus of satisfying the protest committee that she gave sufficient room.

When any of these four situations is an issue, rather than sit back and see whether the party can satisfy the committee, a good committee will take an active role in questioning the parties, and if in spite of their answers, the committee is unsure, then, and only then, will it 'go with the onus' and decide that 'the protest committee is not satisfied'.

The Decision-making Process

When the parties have given the evidence they want to give, the decision-making process begins. The committee does this in private, so the parties are asked to leave. If there are observers, they too are asked to leave. Alternatively, the commitee members retire to somewhere where they can discuss the case in private.

The committee must 'find facts' by considering the evidence presented at the hearing. It can put what weight it likes on the various pieces of testimony. The committee might believe one party who brought no witnesses and disbelieve the other who brought many. It might be inclined to rate as 'low quality' evidence from someone the committee believes is a perpetual 'truth stretcher'. Since the committee discusses the case in private, and writes the 'facts found' without having to justify what it finds, the members can discuss anything they think is relevant, including the quality of evidence and credibility of witnesses.

Coming to an Agreement

When they go into their private decision-making mode, the committee members discuss the evidence they have heard. If one of them witnessed the incident, he is not permitted to say any more than he said in the hearing. There is rarely the necessity for a vote, as a member holding a minority view is usually happy to be persuaded by the others, but if there is disagreement about an important point they will discuss the evidence relating to that point. Unless a comamittee member feels so strongly that the others are wrong that he dissociates himself from the decision, you will never know whether the 'facts found' and decision were agreed on unanimously or by a majority.

Giving the Decison

When the committee has agreed on 'facts found' and made its decision based on those facts as to which yacht(s) (if any) infringed a rule, and what the penalty will be (there is usually no alternative open to the committee but disqualification from the race), the parties are recalled and the decision read out. If you don't understand some part of the decision, you can ask for clarification, but few chairmen will allow a discussion.

When a Party Doesn't Show Up

When one of the parties fails to come to the hearing, the protest committee has to consider whether proper notice was given. If not, it might postpone the hearing to another time or date. If it believes proper notice was given, or that the party (usually the protestee) has no intention of coming, then it will proceed with the hearing. Provided that the evidence given by the protestor (and his witnesses) is believed by the committee and includes an infringement by the protestee, the protest will be upheld, and the protestee penalised. If it is the protestor that fails to attend, and the protestee's evidence is believed and includes an infringement by the protestor, then the protestor will be penalised, so it is most unwise for a protestor not to attend! If both parties fail to attend, then evidence from witnesses (including members of the protest committee if any of them saw the incident) can be heard and will determine the outcome. If neither party attends and there are no witnesses, then the case has to be dismissed as there is no evidence. The protest form itself is not evidence but simply an allegation which, without any supporting evidence, is of no value, even if it includes an allegation of contact.

Red Sky at Night Report