Monday, February 23, 2009

Another legal debacle

Eyes glass over when references of sailing and law are in the same story. Thank you, America’s Cup. Since October 2007, U.S. Olympic sailing became another legal exercise following the selection trials for the RS:X women’s boardsailing event. You say, who cares, the Olympics are over. Agreed, but sometimes when the train leaves the station, she goes all the way, as demonstrated by the recent decision of the United States Olympic Committee (USOC).

There is no swift way to describe the originl, but here is an attempt: At the RS:X Trials, there was a redress hearing for an incident during the final race that involved Nancy Rios. The preliminary results showed that Farrah Hall had won, but once the redress hearing was resolved, Nancy Rios had the lowest point total. Following the Protest Committee’s redress decision, Hall could submit a redress protest if she felt their decision was improper. She did not, but then the next day, well after the time limit, she tried, but her request for a time extension was denied.

Hall’s team of advisors and lawyers proceeded to pursue every option to help her get to the Olympics, but ultimately it was determined that all the protest procedures in place were sufficiently followed, and the decisions made by the Protest Committee were confirmed. The only caveat now is how the USOC does not approve of the procedures as stated in the Racing Rules of Sailing (RRS), and wants US SAILING to revise them to be consistent with other amateur athlete laws.

Are the procedures problematic? Not according to US President Jim Capron. “We believe that the rules for protests and redress hearings are compliant, and think the USOC hearing panel applied a standard that is inapplicable to field of play decisions.” US SAILING has until July 1, 2009 to demonstrate how it intends to fix the rules, and until September 1, 2009 to implement satisfactory corrections.

USOC decision: www.sailingscuttlebutt.com/news/09/0222
Farrah Hall’s statement: www.sailingscuttlebutt.com/news/09/0223a
US SAILING statement: http://linkbee.com/F7QX

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6 Comments:

At 5:02 PM, Blogger Scuttleblog said...

While some people might not like the RRS, they are what we use, and have been using for a lot of years. A couple facts to remember:

* No results are final until the time has expired to submit protests, and then hear them. Farrah knew that Nancy had filed for redress, so any thought that she had won the trials was pretty naiive.

* The RRS permit only those people who are "party" to a protest to be part of the hearing. I have seen it said that Farrah should have been involved in the Rios redress hearing, but Farrah was not involved in the incident. If Farrah had been invited anyway, it would have opened the door for Nancy to accuse US SAILING of wrongdoing.

 
At 7:32 PM, Anonymous Anonymous said...

The RRS's contravene the USOC & the TSO & ASA end of story.

The event was a Olympic qualifier hence the NGB of US Sailing was under the governance of the USOC. It's the same when you go to the Olympics where ISAF is under the IOC.

The whole handling of the issue was bush league at best by US Sailing. They should be sued to the max & Hall should have a spot put aside for her for the 2012's.

 
At 11:22 PM, Anonymous Anonymous said...

It may be that the RRS contravene the USOC & the TSA, but if that's so, it's not the RSS that need changed.

What argument could Hall have made? If you grant redress, I won't go to the Olympics? The purpose of a hearing isn't to determine a desired result, but rather to to determine what the situation at hand warrants and then to let the chips fall where they may. In this case, the PC determined that redress was warranted, granted it, and then published the final results.

Making Hall a party to this process when she otherwise would not be creates a situation where one party's interest is not the proper adjudication of the incident, but rather where it's in a particular outcome regardless of the facts.

Moreover, the ruling suggests that *every* competitor may be a party to *every* hearing regardless of their actual involvement. That's nothing more than an invitation to calculation, politics, skulduggery, and pretty much everything else that works against the question of what's the fair resolution of the particular situation at hand.

It's easy to understand Hall's disappointment at learning that the PC's decision meant she would not go to the Olympics. But she chose to compete under a very well-known and well-understood set of rules, and when those rules didn't deliver the result she desired, only then did she decide to object. At its very essence, that's not what the sport of racing sailboats is about.

 
At 9:14 AM, Anonymous Anonymous said...

64.2 When a protest committee decides that a boat is entitled to redress under rule 62, it shall make as fair an arrangement as possible for ALL boats affected, whether or not they asked for redress . . . when in doubt about the facts or the probably results of any arrangement for the race or series . . . the protest committee shall take evidence from appropriate sources.

Key themes here, fair to ALL boats (clearly there is some question by at least one boat that the decision was in fact not fair to all the boats).

The Committee shall take evidence, shall means its not an option for the committee, it must, that's the rule, but it chose not too.

Reading through the hearing results a few times, one, the committee chose not to hear evidence from anyone else, period, even though 64.2 says it SHALL. Two, was this the "fair" decision for ALL competitors, or just for the one they decided to listen too?

61.3 states the protest committee SHALL extend the time if there is good reason to do so (for submission of redress and protest requests). Shall again means MUST, the question here, was there good reason, as a judge, one might say awarding an Olympic birth in the Room rather than on the course is damn fine reason to hear every bit of evidence possible.

Sadly, I fear the Hearing Board got this exactly right, with out further information, it sounds like the PC got itself set on a path and rather than admitting that this was an issue or that it might be wrong (god forbid), it tried to hide behind the rules and protect itself, rather than fair competition or the sport.

Why if this was a simple rules issue as US Sailing argued, did US Sailing need legal council? Was it because they were incapable of admitting that they might have been wrong, pride, arrogance, or worse?

US Sailings argument that Juries are the equivalent of umpires making field of play decisions also strikes as increasingly absurd particularly when one takes into account that the Jury's ability to protest or bring action against a competitor is highly restricted, by the rules. We, the competitors are the Umpires that is the rule, we are a self policing sport for the most part, a point of pride.

To the points above, the very essence of sailboat racing is wining on the the race course, not in the room, by better sailing, not better legal council. They probably should have tossed the race or re sailed it, no doubt they were pressured to speed things along.

This is going to be really good for sailing in the US! It will take some time to work the kinks out despite Mr Capron's hints to the contrary, but

the sport is in desperate need of more transparency at the jury level and more participation by competitors in the jury process, which is increasingly viewed as more trouble than its worth by competitors.

Like it or not, as the Hearing panel pointed out, many of the senior judges we are dealing with in US sailing have NOT raced competitively in years, they are more judges than sailors, and we all pay the price. Can someone who raced Thistles in the 1950's really understand a Mumm30 rounding in breeze?

Competitors increasingly don't want to go to the room because they don't have faith in the process and see it as an arbitrary waste of time. This leads to a lot of reckless behavior on the course by folks who know they wont get protested because no one trust the jury to give a fair decision, which further erodes confidence in the rules and governance of the sport and deters non-sea lawyer types from wanting to come out to play, at all. Anyone notice how much participation at the club level is down?

Now, competitors are going to have to sit on panels, no more free rides, actual racing sailors sitting in judgment of actual racing sailors, god forbid.

Now, US Sailing has the opportunity to create prescriptions that bring a new level of transparency, fairness and participation to judging racing sailing and ISAF cant do squat about it.

Any of you who would like to see ISAF override US Laws designed to protect our rights as human beings and fair competition (just as ISAF lets CAT threes say they are CAT ones), perhaps you would find a better home judging gymnastics. For those of you who suggest that this will cause more bickering in the room, I think you will find that people actually argue less when they believe they are being treated fairly under rules that are transparent and consistently enforced.


I for one, as an active competitor who is also a jurist, welcome this ruling and see it as a turning point for the better. Study up on your rules folks, come next year you probably going to find that you are going to have to sit on a panel sooner or later, not fun at all, but a small price to pay to make the rest of the time the most fun you can have going 6knots.

 
At 9:39 AM, Anonymous Anonymous said...

[Like it or not, as the Hearing panel pointed out, many of the senior judges we are dealing with in US sailing have NOT raced competitively in years, they are more judges than sailors, and we all pay the price. Can someone who raced Thistles in the 1950's really understand a Mumm30 rounding in breeze?]

Actually, the process as it is now makes sure that the senior judges have not raced competitively in years. Having taken all the courses and passed all the tests, I still cannot get a judging certification as I spend too much time racing and not enough time judging. To move beyond being a certified judge to become a senior judge requires a demonstrated committment to judging. I will not be able to do that till I become less committed to racing.

 
At 10:15 AM, Anonymous Anonymous said...

(Actually, the process as it is now makes sure that the senior judges have not raced competitively in years. Having taken all the courses and passed all the tests, I still cannot get a judging certification as I spend too much time racing and not enough time judging. To move beyond being a certified judge to become a senior judge requires a demonstrated committment to judging. I will not be able to do that till I become less committed to racing.)

Seems the representatives of other Olympic Sports who made this decision see value in making sure you get to do both, not either or, which some might see as a good thing.

Frankly, some of the "requirements" to advance as a judge seem more like a Fraternity/social club initiations than a thoughtful action designed to improve the quality of governance in the sport (is it what you know, or who you know? is it intellectual integrity or political correctness).

Maybe in the future, you wont be forced to decide between doing what you love and doing what you believe is right.

Probably going to take a bit to figure out how to make it work in practice as Mr Capron notes, but maybe its time we start, not an easy task but a worthwhile one if we look at it as an opportunity rather than a sanction.

Otherwise, if viewed as a sanction and resisted (as the initial US Sailing response suggests will be the case), it seems pretty clear, US Sailing can kiss its National Organizing Authority good bye come July. Trees of Liberty and the Blood of Patriots or some such?

 

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