Forum: Protest Hearing Procedures
New rules - Invalid protests
John Standley
Certifications:
- International Judge
0
I am interested in others' views please.
New rule 60.3(a) states that 'When delivered a protest shall be in writing and identify the protestor, the protestee, and the incident'.
If these three things are not provided the protest is invalid - See rule 60.4(a)(1).
In the situation of a protest in a club race, where protest committees are not normally on site and the hearings are organised for some time in the following week, will it be necessary to assemble a protest committee to find the protest invalid or will it be ok for a sailing secretary to declare it invalid and close the case?
New rule 60.3(a) states that 'When delivered a protest shall be in writing and identify the protestor, the protestee, and the incident'.
If these three things are not provided the protest is invalid - See rule 60.4(a)(1).
In the situation of a protest in a club race, where protest committees are not normally on site and the hearings are organised for some time in the following week, will it be necessary to assemble a protest committee to find the protest invalid or will it be ok for a sailing secretary to declare it invalid and close the case?
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(a) The protest committee shall hear each protest or request delivered unless it allows it to be withdrawn.
The PC must hear it.
I think your point is also covered by 63.4(a). The PC should find it invalid, so they should not hear it. I suppose there is no problem with a club appointing a PC of 1 to make the determination and advising the protestor accordingly. This could be done without assembling a panel. If they do not like it the protestor can appeal.
A protest is defined as: 'An allegation made under rule 61.2 ...'
RRS 61.2 says 'A protest shall be in writing' and goes on to list required contents and exemptions to those requirements
So, under the current rules a protest is an allegation made in writing, with certain prescribed contents.
It will come into existence when the protestor writes it.
The obligations of the OA and protest committee begin when it is delivered to the race office in accordance with RRS 63.1, and the obligation of the protest committee is to hear that protest unless it allows it to be withdrawn.
Under the 2025 rules
A protest is defined as: 'An allegation made under rule 60 ...'
2025 RRS 60 consists of 5 parts
The 2025 definition of protest says the whole of 2025 RRS 60 must apply for an allegation to be a protest.
In particular, 2025 RRS 61.3 Delivering a protest says
Thus, under the 2025 rules an allegation, written down by the protestor does not comply with 2025 RRS 61.3 until it is 'delivered to the race office' AND it identifies the protestor, the protestee, and the incident.
So a written allegation that does not identify the protestor, the protestee, and the incident does not comply with the definition of protest, and is not a protest at all, and does not trigger an obligation on the OA or the protest committee to deal with it in any way.
This will come in handy in the event that a 'protest' is delivered to the race office that does not identify the protestee. Under the present RRS 61.2, if the protestee is not identified in the initial protest as delivered, the protestee may be identified at any time before the hearing, but in accordance with RRS 63.2 'All parties to the hearing shall be notified of the time and place of the hearing': if the protestee is not identified, the notification cannot be given and no hearing can be scheduled, so the protest is in limbo.
Under the 2025 rules, a written allegation is not a protest at all until it is delivered to the race office and contains the required contents.
So, in the absence of the required contents, there is no obligation to conduct a hearing.
Despite 2025 RRS 60.4(a)(1), it is not an invalid protest: it is not a protest at all.
Is https://www.racingrulesofsailing.org/posts/3077-new-rules-invalid-protests#comment_15343 your interpretation or is it supported by any official explanation?
I'm intrigued. It's certainly an interesting idea and convenient too. However, it does represent a game change, and I'm not sure one is intended.
Need to think through this more.
B
If they file using paper, is it invalid? Alternately, does on-line mee the "in writing" clause?
The answer to the second - notuntil it is printed.
Are you all suggesting that, under the current rules, a written filing (intending to be a protest to play along with this idea) is delivered on time but does not describe the incident but does describe the parties and rules broken, you would not hold a hearing to find it invalid, but rather classify it as "no protest filed" administratively and not hold a hearing at all?
If so, that's a new one on me.
A protest shall be in writing.
BTW - IMHO, online is not in writing until it's printed.
I think the common understanding is that when communication is done such that it uses a language's alphabet and is read by the recipient ... then that communication was written.
Webster says ... "writing" is:
"The act or process of producing and recording words in a form that can be read and understood."
My answer is no but to be fair I had not thought about it before. I would also suggest that very few protests do not include some description of an incident, and I do not recall ever finding a protest invalid because the incident was not described.
This may well be the case with the new rules as it is clear that the three things need to be provided so people will do so. This is more likely to be the case with electronic forms as they will probably become required fields so people should not be able to submit without providing the info.
It is often that we look at the wording of the rules in a fresh light when they are re-written, and I do find John A's argument to be reasonable. Yes, there are technical ways to resolve this by phone hearings or some of the other methods described above but why should we put ourselves and our administrators through the effort of organising something that is blatantly obvious.
No, I'm simply applying the words in the 2025 rules.
I'm not sure it was intended either.
Angelo,
2021 RRS 61.2 requires that a protest 'identify' the incident, not describe it.
I think a protest that said 'XXX broke rule NN' would identify the incident at least if it also identified where and when the incident occurred.
Bear in mind the function of the requirement is to enable the notification required by RRS 63.2 to contain protest information sufficient to allow the protestee to know what it is that he or she is accused of, which is the natural justice (due process) requirement.
I think the point is whether a duty judge, acting in good faith, and with reasonable intelligence is able identify something in writing as a protest or not.
If it was a Protest Form or a Hearing Request Form, I think the duty judge or race office administrator would follow up with the protestor to get the details, and then send it to the protest committee for hearing.
On the other hand if it was just a scrap of paper or, say, a vague SMS that could not reasonably be recognised as a protest, it might be ignored.
I would expect that the requirement to sufficiently identify the incident would mostly be considered in a hearing to conclude whether the protest was delivered within the PTL or whether the PTL should be extended.
RRS 60.3(a) is the rule which requires ID of the parties and incident.
As John S points out .... 63.4(a) states that first a PC shall determine validity, which based upon 60.4 encompass meeting the definition of protest and other required items.
So i think a PC does have to 'open' a hearing, determine validity, then "close" the hearing if invalid.
See my post at 05:07. I contend
See John S's comment above above blatantly obvious.
Given that the 2025 rule 60.3(a) now pointedly omits the provisions for making a protest good after it is delivered to the race office that were in 2021 RRS 61.2, I think from 2025 it's up to the protestor to have their ducks in a row when they deliver the protest.
I suggest that one of the purposes oh the change is to deter protestors from delivering a 'skeleton' protest within the PTL that lacks essential content, thus attempting to avoid a dispute about PTL, and in fact, gaining theoreitically unlimited time before the hearing could be began, because the hearing could not begin until sufficient protest information was available to be communicated to the protestee.
I'm not suggesting that as a duty judge or jury secretary I would be any less helpful to protestors than I ever have been.
IMO ... 60.4(a)(1) and it's inclusion of 60.3 ... make it clear to me that all these potential defects are part of a determination of "validity" ... and validity shall be determined by a PC at the start of a hearing according to 63.4.
I also agree that this could be done by a PC of 1. If someone disagrees, they could request a reopening or appeal.
Thank you.
I must admit, I don't totally agree with your interpretation.
The RRS includes a few different places where an allegation may be made that a boat broke a rule. The easiest example is probably R28. There are a couple of others.
Of course we're talking mainly about the instance an allegation may be made that a boat broke a rule in (or under) R60. 'Under' meaning, with reference to the part of R60 which empowers a boat/committee to make such an allegation within the rules.
"An allegation made under rule 60 that a boat broke a rule..." This phrase serves to differentiate this allegation of a rule breach from others (which are conveniently not called protests).
In fact, in all of the R60 rules, there is only one part of R60 which empowers, within the rules, a boat or committee to allege that a boat broke the rules. Specifically, this is Rule 60.1.
I do not think the definition of 'protest' includes all the subsections of Rule 60.2-60.5.
Additionally, the logic of validity plays out in so far as a protest which does not comply with 60.2 and 60.3 is considered 'invalid'. Note that it is still a protest 'made under 60... (point 1)'. It's just not valid. This is marked by the fact that in R60.4(a)(1), 'protest' is in italics.
Also, further down, we get to the hearing procedure, which asks us first to consider validity (R63.4(a)).
That is, a 'protest made under rule 60' is tested for validity at a hearing' and only at a hearing. Coupled with R63.2(a) we get to the conclusion that a protest which doesn't comply with 60.2 or 60.3 is still a protest made under R60, but is and can only be found to be invalid at the commencement of a hearing.
If an invalid protest was considered 'not a protest' and discardable at rule 60.3, then it would make rule 63.4(a) superfluous.
Just my 2 cents.
At minimum, it will be optically better for the committee appointed for that day/week/regatta to "meet" in some form and determine the protest is invalid. Without that step, we open ourselves to unnecessary appeals, potential distrust of the process, lost opportunities to learn, and bad feelings. Should be easy enough to do by email: Protest chair sends something like the following via email (or whatever communication is being used):
Side note, I agree that typed communication is "written" even if electronic, provided it is via an official channel with some level of record-keeping (email, whatsapp, online filing, etc.)
Your comment about Federal Law scares me a bit. We should not be writing the RRS to comply with American Federal Law. If you need to change things locally this should be done by prescription or other means.
Do not know enough about statutes around the world to comment further.
I do agree there needs to be a fair process.
There are practical differences, to me, between an event when the PC /Jury is on site and the average club situation.
If the PC/Jury is on site, they have nothing else to do so get them to review the request and proceed accordingly.
Online systems can be set up with required fields that prevent submission until protestor, protestee, and incident are described. Paper forms can also advise that unless those three sections are required for the hearing request to be invalid.
If the protestor believes they are being unfairly treated they have an opportunity to appeal under 70.1.
It would be up to a PC to determine if all requirements for validity (flag, advising, sufficiency of description of incident) are met, but there is clearly no need for that to take place if 60.3(a) is not complied with in the first place.
We are only talking about a request that is submitted without the information required by new RRS 60.3(a).
There can be no presumption of invalidity under 60.3(b) as there is a requirement for the PC to determine if there is good reason to extend.
I do not believe the PC can find a protest delivered without the required information at the time of lodgement - whatever reasons may be given. The exceptions in 60.4(c) only apply to 60.4(b).
This is a significant change from current 61.2, where names of protestor and protestee can be added later but before the hearing.
How can a person be irate if they have not completed the form properly? The respondent would rightfully be irate if the protest was heard when the request was delivered without the info required.
I'm afraid I don't agree with John A's logic that an invalid protest is not a 'protest' at all.
I do agree with the opinon that only a PC can declare a protest invalid requiring a hearing - be it a PC of one or not.
Remember that WS is rightly against discouraging protests and requests, and this important principal has to be balanced against the inconvenience to members of PC's , other Parties and their witnesses, having to attend hearings that are highly likely to go nowhere.
Accordingly, I think it is up to the PC Chairman to act appropriately when perusing protests & requests prior to arranging hearings.
Phil.
What i do say is that my application of the definition and 2025 rule 60.3(a) provides a way out of the impasse that presently arises when a written allegation is delivered, but doe not identify the protestee or the incident, so that it is impossible to either notify the protestee at all, because they are not identified, or impossible to notify protest information, because the incident is not identified, so that the requirements of rule 63.2 to give notification cannot be met and a hearing thus cannot properly be held.
I think in those cases the OA/RC should add Appx T and set forth a process that the arbitration can be done over the phone. The arbitrator could then indicate that the protest will likely be found invalid and give the filing party a chance to withdraw their filing or insist on proceeding.
PS: Or maybe setup a Validity-Only arbitration system .. where the phone-arbitration only considers validity and if the filing-party decides to proceed .. a PC is formed and hearing scheduled.
Validity is decided by a PC at a hearing.
A pet hate I have is OAs who find setting up hearings such a burden that they prefer to find creative and questionable ways to avoid hearings. (Not accusing anyone here of being that OA, but it does happen, and John As interpretation will be lapped up too easily, perhaps with undesirable results.)
Just as we have high expectations of competitors to plan for the after-match process (I don't look too kindly when a competitor says they are busy at the scheduled time, especially if the time for hearings was specified in the NoR or SI), I also expect/encourage OAs to be prepared for that part of the competition. Scrabbling around last minute for PC, and a room or trying to dodge the hearing is not the best planning and not good for our sport.
Regarding the due process being handed down from higher authority, I seem to remember the hearing checklist we use (the one with all the checkboxes) being referred to as 'the CAS checklist'. https://www.ussailing.org/wp-content/uploads/2022/03/CAS-Checklist_03.2022.pdf
I believe it was CAS (Court of Arbitration of Sport) who pushed all Olympic sports, via IOC, to align with the CAS minimum procedure standards for dispute resolution.
Well, the sailing dispute resolution system was/is built on the foundations and fundamentals of a fair justice system (and in some jurisdictions is even recognised as compliant enough that a court may refer back to the RRS process) .
One of those fundamental principals of fair procedural justice is 'transparency'.
The only way to be fully transparent is to require ALL cases to be heard by an impartial body. Recording and reporting of the process is a key part of the transparency too.
https://law.yale.edu/justice-collaboratory/procedural-justice
All this said, common sense is needed.
So, a request may include or completely omit the details of 60.3(a) or be grey in-between.
If protestor or protestee or both are completely omitted, one or more parties will be missing. Invalidity per 60.3(a) is 99.99% certain.
It would be quite logical for a remaining party to predict the invalidity of the hearing and waive her right to be present. e.g. Not turn up.
The process still needs to be followed and the records must reflect as such. But realistically, who would know what format the actual process had taken? A hearing by zoom? WhatsApp? A one-man committee? Who would care? I certainly wouldn't.
The key is that the process was recorded - transparency is maintained.
https://www.racingrulesofsailing.org/rails/active_storage/blobs/redirect/eyJfcmFpbHMiOnsiZGF0YSI6MzgxMzEzLCJwdXIiOiJibG9iX2lkIn19--d454c55a18aa013041df43f9e2e86020f78b230e/hkoda_open_and_national_championships_2024_decision_11.pdf
However, if the details of 60.3(a) are grey (validity or invalidity uncertain), it would be at a party's own risk to waive the right to be present.
My technical reasoning why I think that John's interpretation doesn't work is mainly in my earlier post. I hope in this post to give a line of reasoning why fundamentally John's shouldn't work, at the same time, perhaps inspiring a different approach to handle the impasse described when important elements are missed.
The following appear to be the rules that apply.
Protests
Posting the notice on the official notice board with a zoom meeting time and URL link seem to meet that requirement of 63.1(a)(1). After nobody calls in... publish the findings "Case N submitted by protestor unknown against protestee unknown about an unidentified incident was found to be invalid under rule 60.4(a) or 61.2(a).
The concept of a protest not being a protest unless it identifies the protestor, the protestee, and the incident doesn't seem to be supported by rule 60.4(a), rule 61.3 or 63.4(a). Validity is the first thing you consider. You are entitled to your day in court, or evening in the protest room no matter how little you wrote on your hearing request form!
Protest
Redress
Another approach would be to call the protestor (if they provided their name) and ask if they wish to withdraw the protest.
I did some digging thru my vault of protests and found many hearings that were documented as Mark stated above.
For Example: