Q1 The PC can open a hearing under rule 69.2 (b)

Q2 As chairman of a protest committee if I am made aware that a boat has knowingly broken a rule and there are no circumstances under which the competitor could be exonerated then I may consider telling the competitor that the protest committee is considering investigating an allegation under rule 69, I would discuss with the PC before discussing with the competitor. Much would depend on the level of the regatta, the nature of the rule broken and the likely maturity or otherwise of the competitor against whom the allegation had been made. At a junior regatta, if I did talk to the competitor I would do so in the presence of a parent or coach. I would be careful not to make any statement that could be considered a prejudgement or introduce any question of bias prior to the hearing. I would not discuss or the case beyond reporting the allegation that had been made.. I would not make any statement that might be considered as initiating an investigation. I would have another protest committee member with me as a witness to the discussion so as to prevent accusation of bias if the matter subsequently went to a hearing. If the complaint was in writing I could give a copy to the competitor involved.

As a comment though, just the fact that an issue is under consideration under rule 69 frequently prompts a retirement if there is any basis to the allegation.

It is "fair play" (RRS 2) for one competitor to expect the other to comply with the rules, including 61.1 Informing the Protestee.
If Boat A does not find the incident important enough to comply with that, then Boat B might justifiably assume that a hasty hail alone was reconsidered.
While Boat B may later conclude that she was likely technically in violation and may indeed retire, she may also be wrong.
There is a purpose for each of our rules. We do not need another instigation of "legislating from the bench" by recoursing to 2 or 69.

Phillip .. 2 of the assumptions which are not open to question or change in the scenario are:

• Boat A fouls Boat B
• Skipper of Boat A admits to a 3rd party that he is aware that he fouled Boat B

The presence of the foul and Boat A's awareness of the foul at the time of the incident and beyond is not in question in this scenario.

That is the scenario that I addressed.

Phillip, you wrote ..

While Boat A [you wrote B, but meant A] may later conclude that she was likely technically in violation and may indeed retire, she may also be wrong.

In my scenario, there is no "likely technical violation" and Boat A can't "be wrong" about the foul. The foul was clear to both Boat A and Boat B and there is zero doubt of the foul's existence.

Boat A knows she broke a rule and knows she didn't take a penalty (what the WS Q&A addresses).

Philip: I suspect you may have mixed up Boat A and Boat B in your post. If not, I will need some further explanation before it makes sense to me.

Going under the hasty assumption that Philip switched the boats up, I disagree. Per the Basic Principles, if a boat knows that they have broken a rule, they should take their penalty. Full stop. The other boat protesting or not has nothing to do with it. Per parts of Case 138, this should normally be considered under Rule 2, but can be considered under Rule 69.

David B said

Much would depend on the level of the regatta, the nature of the rule broken ...

You have me all the way in your response except for those 2 items. Just 'poking the skunk' here ... ('poking the skunk' is an old family saying we use when one of us is purposely instigating a "discussion")

On the "level of regatta", one might argue that a lower-level regatta would be a better place to press this avenue, since it's a better place to teach with lower repercussions .. a lesson learned and carried forth as the racer graduates in their skills and knowledge into higher regattas. Also, an experience gained is often an experience shared .. so that lesson might permeate to other participants in that 'lower-level'

On the nature of rule broken, since we are talking about an on-the-water foul between boats, it begs the question which Part 2 rules are ok to break and which ones can't be let go?

While this scenario might rise to the level of a sportsmanship issue, I don't think it rises to the level of misconduct under RRS 69.

Case identifies a few examples of what is misconduct under RRS . Number 7 in that list is "Intentionally breaking a rule...". Question 3 in Case 138 asks the question if breaking a rule is a breach of RRS 69 if the boat does it unintentionally, and concludes that an unintentional breach does not break 69.1. Thus, the mere fact that A broke a rule is not enough, the PC must be conclude that she did it intentionally. Here, it is clear it was a "miscalculation" and not an intentional breach of a rule. But I suggest that the same is true of the question of whether or not she took her penalty. The PC must conclude that A intentionally failed to comply with the Preamble and RRS . However, there is some doubt in my mind that Boat A intentionally didn't comply with RRS 44. It seems there was some question in Boat A's mind at the time, as there was some delay in the protest from Boat B. But more importantly, notice that RRS 44.1 is permissive, not mandatory. It states that a boat "may" take a penalty. There is no requirement that she take her penalty on the water. Thus, the question becomes, did Boat A knowingly break a rule, was not exonerated and never intended to take a penalty. We don't know the answer to all of those questions.

But I would suggest that a well formed question to the competitor pointing out the language in the Preamble would likely result in an after race scoring penalty or retirement.

Paul said

Thus, the question becomes, did Boat A knowingly break a rule and intend to never take a penalty. We don't know the answer to that question.

I thought that I made that question clear, when I put into the scenario the "let me go" language as well as 'confident the protest will be tossed .. " .. thus establishing Boat A knows they fouled and are hoping to get away without a penalty.

Skipper of Boat A admits that he made a miscalculation and fouled Boat B, but that he watched for quite a while and didn't see the protest flag so he assumed that Boat B "let me go". Boat A says he's confident the protest will be tossed because of lack of notice.

Angelo - all evidence of intent. But Boat A doesn't have to do a penalty on the water. And she may believe she was exonerated. The PC would have to believe "to their comfortable satisfaction" that Boat A knew she broke a rule, knew she was not exonerated and didn't intend to take a penalty of any kind. I don't believe we have enough information to meet that threshold.

Here's another example (which is uncomfortably close to a real incident);

Boat A fouls Boat B. Boat B waves a red hat as a protest flag. Boat A yells "that's not a protest flag" and sails on, later telling other competitors back at the dock of Boat B's mistake. The protest is invalid for lack of a proper protest flag. Is that misconduct?

So everyone who has ever "taken their chances" and gone to a protest hearing and gotten off on a procedural technicality is going to hell?
Good thing we now have Rule 2 to impose a lesser penalty going forward.

But Boat A doesn't have to do a penalty on the water. And she may believe she was exonerated.

Paul, yea .. sure .. I didn't spell that out either .. but I think it's pretty obvious I'm building a scenario where the foul is clean and uncomplicated, Boat A knows they have fouled and they think that they are relieved of the responsibility to take a penalty because Boat B screwed-up the flag.

Boat B waves a red hat as a protest flag. Boat A yells "that's not a protest flag" and sails on, later telling other competitors back at the dock of Boat B's mistake .. is that misconduct?

I can't get past the simple language of the RRS, Basic Principle and the definition of misconduct .. and I haven't seen anyone clearly show how they can disconnect the Basic Principal and RRS 69.1.a.1.

If taking a penalty when you know you've committed a foul is a fundamental principle of sportsmanship, then not taking a penalty in that circumstance must be a "breach of good sportsmanship". Otherwise, the statement in the Basic Principle is meaningless.

The RRS says "Misconduct is ... a breach of good sportsmanship ..". An element of Sportsmanship is taking your penalty when you know you've fouled.. So, yes, IMO, if in your scenario your 'red-hat denying' Boat A knows he committed a foul and doesn't do his turns .. thinking that Boat B's error exonerates him .. yes.. that is a breach of good sportsmanship and thus if all else fails ... misconduct.

Last sentence of Case 138 ..
"However, when the port-tack boat realizes that she has failed to keep clear, she has knowingly broken a rule and must take the appropriate penalty. Otherwise she has broken a recognized principle of sportsmanship (see Basic Principles, Sportsmanship and the Rules).

There must be a reason that a third party cannot protest for an incident he has not seen.
Nor can a PC that has neither seen it nor heard from the guilty party's own mouth.
Find that reason.
Then tell me why resorting to unbridled, undefined Rules 2 and 69 should circumvent that reason.
(While also circumventing 61.1.)
Is it a corollary to Elvstrom that a judge who writes his own rules loses the respect of the competitors and also destroys respect for the written rules?

Angelo - I'm in agreement with the idea that a competitor can be held accountable for intentionally failing to take a penalty. And I don't know how many other judges would feel that way, but I have to think that it meets the requirements of RRS 69.1. My point above is that it is not a simple question. I feel that a boat that blatantly hits a mark and doesn't take a penalty has demonstrated intent to break a rule (31) and thus breaks RRS 2. But I would only vote for such a conclusion if I find it more probable than not that the boat intended to break the rule. But, given the slightly higher standard of proof ("comfortable satisfaction") for RRS 69, I would expect pretty strong evidence that a competitor met all the requirements of 69.1. I suspect your example would be that situation if Boat A had no doubt she broke a rule, no possibility of exoneration, and did not take penalty even after coming ashore. But even then I suspect there would be a lot of resistance to imposing a penalty without some extenuating circumstances.

Phillip .. I just review the RRS again, and unfortunately "going to hell" is not a penalty available for Part 2 infraction, so they would still have to do their turns or retire .. :-P

To your other point .. nobody should be going to a protest hearing, to "take their chances" that the protest will get tossed due to a technicality for a foul they know they committed. Rules are very clear on that. If you know you fouled, you must take a penalty. Hearings should be reserved only for those questions of fact or fault. If fact and fault are undisputed, then the boat at fault must take a penalty. Trying to get-away with fouls is the premier presumption in racing that must be ended.

Serious though Phillip, what I'm trying to do here is foster a learning experience .. for myself mainly. I'm not trying to teach or preach. This is how I learn .. I try to understand, connect and then explore. The RRS connects the Basic Principle and Misconduct though "sportsmanship"

What I'm trying to do is find someone (anyone) who can show me where the daylight is between the Basic Principle's definition of what Sportsmanship is and RRS 69.1's sportmanship-based definition of Misconduct .. because without breaking that sportsmanship-based connection between the two, not taking a penalty for a known rule is misconduct by definition.

I'm asking someone to show me how to separate those two within the rules, cases, appeals or Q&A

I appreciate your journey, Angelo.
My grave concern is that this website seems generally to follow a line of "social justice" without regard to the structure of the on-the-water rules.
That arises in this case and the RRS16 case where many were too eager to penalize the starboard tacker - apparently (to me) only because of the dire consequence to the offending port tacker.
Perhaps it is simply the nature of the refinement of the rules: that they are written well enough now that only higher level "morality" issues bear discussion.
And perhaps these discussions do not percolate down to the troops and I need not worry...
Merry Christmas to all!

Dear All

The question is exploring the issue of misconduct. Does a deliberate decision not to take a penalty after knowingly breaking a rule constitute misconduct or not? Misconduct is a breach of sportsmanship or ethics. We have a self policing sport which relies on competitors taking penalties. To deliberately not take a penalty after knowingly breaking a rule is in my view a breach of both sportsmanship and the ethics of our sport.

This is not a matter of social justice but a matter of what the rules require. Competitors agree to sail in compliance with recognised principles of sportsmanship and fair play (rule 2) and accept the rules (Rule 3.1). If they don't then the most appropriate way of having a hearing and then either dismissing or upholding the breach can be rule 2 - if protested within time limits by an entity entitled to do so or rule 69 at any time should the protest committee consider it necessary.

I don't think that rule 69 is used enough in today's sailing environment. The beauty of rule 69 is that if appropriate, a penalty can be as little as a verbal warning. It is a very good disciplinary tool yet there is a reluctance to use it.

I'm a judge, I've chaired international juries and on a number of occasion have been in the precise position of considering whether to take action when a boat has knowlingly broken a rule and deliberately chosen not to take a penalty. In the various cases I've been involved with in international juries there have been times when a quiet word with the competitor has led to a retirement. If the quiet word is not appropriate then we have always gone down a rule 2 or rule 69 route.

I thought that the "you owe me one/doesn’t affect my score/I’m not worthy/stigma attitudes" debate was good. I think that this discussion is equally so. In my view standards of adherence to the rules have been dropping and whilst not entirely puritanical on the subject some changes in behaviour and peer group expectations would be good for our sport.

Seasons greetings to all and best wishes for a happy and prosperous 2018.

David B. "Hear Hear!" .. well said.

Phillip, as to the thought threading through recent posts, I'd offer the following:

First, there is a rich archive of threads going back where situations/Part 2 rules are analysed and discussed (those numbers dwarf the threads which you are complaining about). I'd encourage you to work back through them .. that's why the forum keeps them up there and still open to comment.

Second, you wrote:

So everyone who has ever "taken their chances" and gone to a protest hearing and gotten off on a procedural technicality is going to hell?

The above idea (that one can get-off on a technicality) is harmful to our sport. It's been ingrained by experience and passed, or even encouraged peer-to-peer, that trying to 'get off on a procedural technicality' is acceptable. It is not. To only focus on Part 2 scenarios while BP and RRS 2 are being ignored, is akin to arranging the deck chairs while the ship takes on water ... especially since we are a self-policing sport. Luckily we have enough bandwidth to both plug the holes in the hull and put the chairs right.

But the reason the BP and RRS2 topic is top-of-mind recently is in large part due to the very recent "WS Q&A 2017-007 Basic Principals - Sportsmanship" (which I site in both the title and body of this thread).. If you read that entire Q&A (which I encourage you to do) (Q&A 2017-007), you will see clearly that it is impossible for a racer to ever get-off on a procedural technicality (without breaking BP and RRS 2) if they are aware they violated a rule.

So, to your question above, if anyone is aware they "got-off" and after the hearing are aware they broke a rule, the Q&A is clear on what the rules require.

PS:
In the WS Q&A, give extra consideration to the implications of 'scenario c', which states:

A competitor is aware of an incident (either on or off the water) but his knowledge or interpretation of the applicable rule is incorrect, and therefore he believes that he has not broken a rule. Later on, he becomes aware of the correct interpretation and realises that he has broken a rule in a number of events.

I call your attention to that very Q&A, to wit:
"Later on, he becomes aware of the correct interpretation and realises that he has broken a rule in a number of events." [emphasis mine]
And add the following from the Guidelines to Misconduct examples:
#7. Repeated breaches of rule 2. [ditto]
Are we indeed a self-policing sport?
The informal aside with the competitor by a respected authority should be enough in a first instance.
It is still the competitor's decision whether to retire.
.
I still have trouble with the FACT of the foul. Facts are determined by protest hearings.
Perhaps an aside with the competitor who failed to follow through on informing the protestee would aid the sport just as much.
A protest hearing would have determined an outcome, not a condemnation of fairness or misconduct.
And not one based on the complaint of an interested third party.
.

For any racers who might be following this thread and follow this forum to better inform themselves (as the Judges already know this).

As a racer, if you are fouled or witness a boat committing a foul, you are obliged by the RRS to enforce the rules. Yell "Protest" and be prepared by having the red-flag handy (if required by your boat-size & class) so you can fly it immediately without fuss. Sometimes racers are unclear if they've committed a foul. Your hail may help confirm their own suspicions or at least help remind your competitors of their responsibility. If the boat does not take their penalty, follow-through with your protest. Give back to the sport you love though the giving of your time and effort to follow-through ... all the way to a hearing if necessary. 99% of the time, someone learns something from the experience, helping to make them a better competitor going forward.

That said, the RRS is clear that as racers adhering to good-sportsmanship, it is each of OUR responsibility to take our penalty, which might be to retire, anytime we are aware that we committed a foul or broke a RRS or Class rule, be it on the water, before a hearing or days later. This responsibility does not require any witnesses, finding of facts, or protest by a 3rd party. The only witness required is ourselves.

Philip: I must take exception to something in your post.

I still have trouble with the FACT of the foul. Facts are determined by protest hearings.

This is not the case. A protest hearing must have a finding of fact because it interacts with the outside world through evidence and witnesses and must come up with a singular description of the outside world in order to have a basis to logically apply the rules, but facts exist outside of their observation. If I'm all by myself and I hit the weather mark, that is a fact and I am obligated to do my spin.