Forum: Protest Committee & Hearing Procedures
Hearings for Discretionary Penalties
P
Paul ZupanCertifications:
- International Judge
- National Judge
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Appendix M5 states "the committee may question a representative of the boat and any witnesses to collect evidence it decides is appropriate. It is not necessary to conduct a hearing to collect this evidence." There is some discussion as to the meaning of this "recommendation." Does it mean that the PC doesn't need to hold a hearing of any sort? And, if not, does it require the drafting of a decision?
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While I don't think drafting a full decision is required, there should certainly be documentation between the PC and scorer to officially instruct them to include the penalty in the scoring.
Putting myself in the position of a competitor trying to understand what happened, I would like to see a brief description of the incident and maybe a fact that it was self-reported. The conclusion section could include references to any guidance used to determine the penalty and then the decision is the penalty imposed. But I don't think the PC is required to do this. I think this would fall into the best practice category. For events where there is a lot of media coverage or the penalties are not as well defined it could prevent lots of rumors and suppositions.
1. How does a PC come to a decision without opening a hearing? Both practically and procedurally, how does that happen?
2. Should a PC document the procedural posture, facts found and decision if a decision is made based on them. Specifically, should a PC document the facts relied upon to make a decision regarding the penalty, including mitigation?
3. Under what rule does a boat file redress for a decision made by the PC? Who should hear that request?
4. What happens if a boat files an appeal on a decision where there was no hearing and/or no written decision?
5. Should we assume that a self reporting boat also submitted all evidence of mitigation?
Seems that a self-reported DP is akin to Appx V and T in that way, it's just that the penalty can be less than DSQ.
If a boat admits to breaking a DP rule, and hands over the evidence to the PC there isn't really anything to dispute. (If there was, it should be in a protest request). The whole process effectively jumps to straight to 'deliberation', and penalty phase which is done behind closed doors anyway.
Of course, the option to hold a hearing is always available if the PC suspect the evidence given is dodgy.
Definitely write up the decision. I think the current hearing decision form is sufficient. In procedural matters section, it can be mentioned that no hearing was held per RRS64.
Somethng like this?
Procedural Matters
Boat X reported her breach to the protest commaittee. Per RRS64, no hearing was held.
Facts Found
Boat X retired from the race at 1359.
Boat X reported her retirement using the online form at 1459.
SI X requires that a boat report their retirement using the online form within 30 minutes of retiring.
SI X is marked as [DP].
Conclusions
1 Using the DP Guide a starting penalty of 50% was decided.
2 The penalty was decreased because the breach was reported by the competitor.
3 There were no circumstances to justify increasing the penalty.
Decision
1 The penalty applied is 40% applied to race 5.
Perhaps the confusion is trying to distinguish the gathering evidence phase of a hearing from the deliberation phase. It's still a hearing even if no testimony is taken. Deliberation is done during a hearing and results in a decision. I'm at a loss to see how a PC could apply a DP without a hearing and written decision.
Of that 1%, I'd say 99% would result in the penalty being decreased on the grounds that the boat self-reported. Everyone is happy.
If there is a possibility that a breach may be increased due to an aggravating factor, then open a hearing (just to get everything out in the open), although it would not be an improper action to not do so.
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So to me, that subjectivity is built into the RRS but only in the case of a self-reported breach. Appendix T1 is designed to encourage people to take a penalty. I don't think RRS64 is the same. To me, RRS64 is simply to speed things up where they can be sped up. Avoids the rigmarole of a full hearing. It doesn't have to be used though.
No. RRS 64 expressly says 'There is no requirement for a hearing.'
There is no entitlement for any party or any other person to be provided in writing with the facts found, applicable rules, and reasons for a decision of a protest committee other than when a decision is made as a result of a hearing of a protest or a request for redress in accordance with RRS 63.6(b).
Obviously the protest committee needs to at least inform the scorer of a DP.
The Discretionary Penalties Guidance lays out quite a lot of considerations and a quite complex process of reasoning for applying Discretionary Penalties. The Preferred Wordings have some sample wordings. I think the protest committee should document its considerations and reasoning in a written decision.
By doing what Appendix M tells it to do: question a representative of the boat and any witnesses to collect evidence it decides is appropriate. Arranging to do this in any way it decides is appropriate. A committee is entitled to determine it's own procedures subject only to any limitations imposed upon it by the authority that created it.
I think a protest committee should record the facts it relies on to decide a DP. I can't readily see any reason not to publish these facts found as part of the protest committees decision.
A boat making a report and receiving a DP under RRS 64 is not a party. A protest committee's decision under RRS 64 is not subject to appeal.
To get to an appeal against a protest committee's decision on a DP made under RRS 64, a boat would need to request redress against the protest committee. In hearing that redress, the protest committee would surely want to see the facts upon which they based their disputed decision.
RRS 61.1 (a) and RRS 61.4 (b)(1).
The protest committee?
Those members of the protest committee who were not involved in the initial DP decision and who thus have no conflict of interest?
Those members of the protest committee who [may] have a conflict of interest but
Perhaps a pragmatic solution at a lower level event would be to consider the reasons in the request for redress: if they disclose good reasons why the protest committee may have made a significant error in it's DP decision that the protest committee is likely to resolve in the boat's favour, go ahead and hear the request and see how it pans out.
If there is no hearing there is no party to a hearing and there is no entity entitled to appeal under RRS 70.1.
See above, There is no entitlement for any party or any other person to be provided in writing with the facts found, applicable rules, and reasons for a decision of a protest committee other than when a decision is made as a result of a hearing of a protest or a request for redress in accordance with RRS 63.6(b).
They get their chance if and when the protest committee questions them in accordance with Appendix M5.
I can't find the word 'mitigation' in the RRS, the Discretionary Penalties Guidance, or the Judges Manual.
The PC "Satisfies itself" this is an formal meeting of the PC but not a hearing as the parties are not present.
If the PC do not have the details for the DP they as for more details including mitigation ask for more details. These could be teased out in the notification form on RRS.
I the boat does not like the DP imposed by th PC it can request redress as can any other boat who disagrees with the posted DP.
The scorer has obviously to be notified of the decision. The competitors are notified when the results are posted.
So the assertion is that, the PC is going to receive a report of some kind, send an investigator if needed to gather more information, meet informally as a panel and issue instructions to the scorer to change a competitors score. The competitor is then penalized without a hearing so they can ask for redress if they don't like the score. But there was no hearing and the PC did not make an error so there is no grounds for reviewing new evidence. And there is no appeal. I think I understand. Under what rule are we penalizing a competitor without a hearing?
Paul - I don't see the words 'evidentiary hearing' in M5.
We are penalizing them under rule 64, which specifically says they don't get to have a hearing. Since the boat has essentially pled guilty and thrown themselves on the mercy of the PC, I don't know how they would meet the redress requirement of through no fault of their own. The PC penalized them based on a report from them. If redress is requested then a hearing on that request must be held, but I would think it would be a short hearing. That could be appealed, I suppose.
Doesn't RRS 64 state "the protest committee shall decide". Wouldn't the formation of the PC with a required composition (if there is one) be a prior act to a DP being acted upon by the PC?
The protest committee can meet as formally or informally as it chooses: a committee may determine it's own procedures subject only to any limitations imposed upon it by the authority that created it (So for an International Jury composition of the panel would have to be in accordance with Appendix N).
RRS 64 requires the protest committee to 'decide': that is it makes a decision.
A 'hearing' occurs when parties come before the protest committee and are 'heard' to bring evidence, question witnesses and submit arguments.
I said before
Obviously the protest committee needs to at least inform the scorer of a DP.
The Discretionary Penalties Guidance lays out quite a lot of considerations and a quite complex process of reasoning for applying Discretionary Penalties. The Preferred Wordings have some sample wordings. I think the protest committee should document its considerations and reasoning in a written decision.
Despite the fact that the RRS do not require the protest committee to publish a written decision beyond the implied need to inform the scorer, I think the protest committee should publish it's decision, using the Preferred Wordings.
Once there has been a redress hearing, the boat may appeal.
Yes, it's akin to Appendix T Post Race Penalties but for SI/NOR/CR breaches annotated [DP] that typically are not breaches of Part 2 or RRS 31 for which a PRP may be taken.
The PRO walks into the jury office dragging one of his safety boat drivers. They throw a report on your desk that says that the safety boat operator was tasked with confirming that all coaches were wearing PFD's as required by the SI's. The SI's say violation of this rule will result in a DP. The safety boat guy says he pulled up on coach boat number # and the driver of the boat was not wearing a PFD. The safety boat informed the coach boat that PFD's were required. The coach boat driver looks straight at the safety boat driver and refuses to put on a PFD. You're the chair. What do you do?
It's a protest as defined.
Not self-reported.
Edited:
Notice that is the recommendation but not the rule.... Anyone else?
64 DISCRETIONARY PENALTIES
When a boat reports within the protest time limit that she has
broken a rule which is subject to a discretionary penalty, the
protest committee shall decide the appropriate penalty having
first considered the evidence that it considers appropriate.
There is no requirement to hold a hearing.
Nothing in RRS 64 applies unless a boat reports within the protest time limit.
Nothing there identifies the protestor as required by RRS 60.3(a). That's not a protest.
Advise the RO that if it's a matter of concern to him he should consult with other members of the race committee and decide whether the race committee wishes to make a report to the protest committee concerning a support person.
If the protest committee receives a report from the race committee it must first decide whether or not to call a hearing in accordance with RRS 62.1 .
If the protest committee does not call a hearing it can take no further action.
If the protest committee calls a hearing and decides that a support person broke a rule it may act in accordance with RRS 62.3.
Not technically a protest, but the point is that RRS64 (no hearing) is not available since it was not self reported. So a full hearing is required before any (DP) penalty can be given. In this case a hearing under RRS62.1.
The condition of 'self reported' is found in RRS64 and M5.
"When a boat reports within the protest time limit that she has broken a rule which is subject to a discretionary penalty..."
"to comply with Sportsmanship and the Rules by reporting within the protest time limit that she has broken the rule."
A better example might be:
In a multi-day event, at the end of a day's racing, a boat realizes that she did not have all the required equipment on board. The penalty for this is marked as [DP] in the class rules, which also includes guidance on the penalty. The boat reports to the PC that she did not have the equipment on board for races 3, 4, & 5 and that the equipment was on board for races 1, 2, & 3 and that it will be on board for the remaining races in the event.
Does the PC need to have a hearing or can they just tell the scorer what the penalty is, i.e. act under rule 64 as expanded on by M5?
No rule requires a protest committee to be transparent.
I've repeatedly said that in my opinion a protest committee should publish a written decision when it decides a DP under RRS 64, but no rule requires them to do so.
'Due process' is an artefact of the US Constitution. Other jurisdictions would recognise kindred, but less stringent concepts as 'natural justice' or 'basic procedural fairness'.
Nothing in the RRS accords anybody a right to 'due process', and certainly not as a 'foundation',
I don't agree that RRS achieves only marginal efficiency: it enables a competitor who knows she has broken a rule for which a DP applies to 'make themselves good', relying on the protest committee's good judement. If they are aggrieved by the protest committee's decision they can always get a full hearing by requesting redress.
At the very worst, fairness can be achieved by the redress process.
How come bias and abuse are suddenly coming into the discussion?
You can't infer bias or abuse from lack of transparency.
And how are bias and abuse, if any, specially problems with decisions made under RRS 64?
Paul Zupan
Certainly the protest committee is required to make a decision. That's exactly what RRS 64 says. To the extent that considerations leading to the decision are subjective, The Discretionary Penalties Guidance makes that a process of disciplined subjectivity.
I strongly disagree.
A 'hearing' occurs when parties come before the protest committee and are 'heard' to bring evidence, question witnesses and present arguments.
A meeting of a protest committee at which they may make decisions is not necessarily a 'hearing'. Consider, for example
By acting in accordance with RRS 64 and The Discretionary Penalties Guidance.
Personally, while following the process of the The Discretionary Penalties Guidance, I would be writing things down, but nimbler minds than mine may well be able to apply those processes without writing things down.
Writing things down is not invariably necessary to enable a person or committee to make a decision.
I've said before that I think that a protest committee should write and publish a decision, in the usual form when it makes a decision under RRS 64, but no rule requires the protest committee to do that, and no person has any entitlement to ask for or receive a written decision.
Agree with most of what you say. But
Not sure about redress. We need to be a bit careful here.
They may get redress for some improper action or omission. These may be:
This is a main reason why documenting and presenting the DP decision in writing is strongly urged. By sticking to the suggested policy process and wording for writing up DP, the PC protects against complaint of improper action or omission.
Redress against the actual decision should be quite hard to succeed if the process was properly followed. Perhaps the following might work:
Even if they are rules, C1 states ... (emphasis added)
Even the quote in #2 above where it talks about "maintaining consistency" is prefaced with a "should be". I don't see with all the soft language above, we get to "improper action or omission" (unless you think "will be guided" is strong enough).
If you're saying that it should be even harder to get Redress for a DP decision (than I have suggested) , then I'm inclined to agree.
The DP policy is not set in stone. It's what I meant when I said there is 'subjectivity' built in to the system.
Operating within that subjectivity is not an improper action.
There's a lot of fluff in being "guided" to "suggested penalties" that "should be adjusted".
PS .. and that's only if the Jury Policy was made a rule by the NOR. If not, then it's only an error/omission vs RRS 64 left as Appx M is also "only advisory".
Well we need to be careful about any redress hearing.
I've been pondering a bit about 'improper action' lately.
I'm thinking that a decision is improper if it is a decision that no reasonable protest committee, based on the facts found (and any omitted relevant facts) could have made.
Certainly not a difference between 10% and 5%, but say getting dinged 90% for a minor breach that didn't affect performance or results, with no aggravating factors.
Australian Sailing had a go at making DP guidance into rules with an attachment to the NOR/SI back in 2017.
It was immensely cumbersome and didn't catch on.
But it would need to be a major deviation to stand.
All good.
Said Created: Today 04:25
No the protest committee does not need to have a hearing.
RRS 64 says There is no requirement to hold a hearing.
The protest committee can just tell the scorer what the penalty is.
But as everybody in this thread has said, they would be most unwise to do so.
The protest committee should:
Why make something that is simple so difficult.
We did not ask the boat to break the rules, he gets a penalty, it is his decision as to how he proceeds.
We certainly do not want to encourage anyone to consider redress. It is their right, and if lodged the jury will consider it then, we need no preconceived ideas.
As a comment though if rule 64 is followed where is the action improper? Do not forget, the jury will have been satisfied on the facts, so really it is all over and done with.
My original question was where in rrs is a report form that gives adequate facts, to be lodged electronically so there is no need to take additional information fronm the boat.
Mike b
Let's say the PC determines a penalty without a hearing or writing a decision and informs the scorer.
1. Fifteen minutes later the same competitor comes back with his coach who informs the PC that the equipment was actually on board. but that the coach had put it in the flotation tank. Is redress available? Specifically, what was the error the PC made and where is the rule that requires the PC to act in that manner?
2. A day later the coach comes to the PC and says, listen, I went and pulled the video tape from the boat park and competitor B can be seen removing the equipment from the boat in question. Beyond the 69 issue, how do you fix the score of the boat in question?
3. Fifteen minutes later the coach is at the PC desk demanding to know why his guy has a penalty and files a request to fix it. Does the PC hear the request as request for redress? Do you tell the coach in a game of telephone the facts and decision of the jury and ask that he withdraw his request?
4. The competitor comes back and says that the penalty is completely unfair and he thinks the guy he reported to in the jury room is a Swede and the Swedes have it out for the Norwegians and files a request.
My point is, if the PC opens a hearing, writes a decision and publishes it, all of the above scenarios are either easily fixed or avoided. And I want to point out, this is not an onerous task. We should convene a panel to hear the evidence and make a decision. We do it all the time for requests to withdraw. The only difference is that we document our meeting and publish it (like we do with requests to withdraw). That transparency makes a lot of difference, and the procedural posture of the penalty now fits into our established hearing procedures.
The Olympic Charter and the Athletes' Declaration both outline due process rights for the Olympic Movement, including the right to a fair hearing. To the extent the rules have been moving away from requiring a hearing before penalizing a competitor, the more concerned I become as it is not uncommon for officials to look for a way to justify not doing so. So there is much gnashing of teeth over whether or not we have to do one thing or another, but I think what gets lost in that conversation is the practical matter of resolving conflict where we, as the PC, are tasked with being neutral, fair and providing due process. And there is a tendency to be arrogant about it where a bit of humility goes a long way.
lets look at your 1.
no redress is not available, the competitor reported a breach and the Jury gave the DP, no redress this was a competitor fault and not that of the Jury.
2. above answers but a 69 here.
3.. what kind of request? if a request for redress this is answered above a competitor fault not Jury so rejected. .
4. we get this all the time and it is a shrug of the shoulders. If a request again no act or omission so no request.
Due process is a USA thing and save us from it. Our bug bear is here European Declaration Of Human Rights but hopefully soon a government will reject it.
Above as per the rules at all stages they have had the right to a fair hearing.
We are not tasked to provide due process, (not a concept known to the rrs) we just follow the rules.
Look because of USA cases we have rrs 63.3 to allow some Jury members with a conflict of interest to be admitted. We use competitor parents all the time but the USA prohibited it hence the rule.
I believe with redress in the USA you have extended rights as to who needs to be called. All this is a USA problem and not for the rest of the world.
We get the Rule book and respect it and expect competitors and coaches to do likewise.
No ones rights as specified in the rule book are ever ignored.
Keep it simple stick to the WS rule book.
Paul, is that your point? ... that, by doing that simple step, we now provide the opportunity for the PC to reopen to consider new facts and possibly change the decision .. and without the framework of the hearing, that door is shut?
OK .. there is no protest filed, and no hearing request. Under 63.2, only protests and R4R's are envisioned, but there is no rule that states the PC can't have other types of hearings. If the PC doesn't turn the self-reported rule breach into a PC generated protest against the boat ... then are we talking about a hearing that is not a protest hearing, but is some new "self-reported DP hearing"?
If the PC doesn't take the report and turn it into a protest, then I do not think there are any parties. If there are no parties, then nobody has standing for a reopen request or R4R.
Doesn't that take us back to it being a protest hearing because that's the only way to make the self-reporting boat a party?
If the above logic is correct .. and trying to work with your idea .. maybe an SI would be in order, which defines this special type of protest hearing to which the boat is automatically made a party to the hearing, but the hearing is administrative and avoid 63.1 and 63.2?
Considerable.
Firstly it's arguable that a protest committee is only empowered to hold 'hearings' under
So to conduct a hearing following a boat's report under RRS 64, the protest committee has to protest the boat based on information from the representative of the boat herself in accordance with RRS 60.1 and 60.4(b)(3).
To conduct a hearing, Preamble to Part 5 Section B Hearings and Making Decisions states
Rule 63 applies to all hearings conducted by the protest committee.
RRS 63 includes requirements for:
It's not as simple as 'jot down the facts and record them as a decision?
And it's going to take a lot longer than 2 min?
No. Redress is not available. There was no improper action or improper omission by the protest committee in acting in accordance with RRS 64. As Mike B (to whom I apologise for characterising as 'everybody' in a previous post) has said, there is fault of the boat's own in providing wrong information in the report that she made.
Would this be different if there had been a hearing?
Firstly, to get from the report by the boat to a hearing the protest committee would have to protest the boat based on information from the representative of the boat herself in accordance with RRS 60.1 and 60.4(b)(3).
Yes. If there had been a hearing, then the protest committee could decide that it may have made a significant error or that there was significant new evidence and reopen the hearing in accordance with RRS 63.7(a).
The protest committee could then hear the new evidence, find new facts and reach new conclusions and a new decision.
You don't go 'beyond the RRS 69 issue'.
You call a RRS 69 hearing and if you decide that Competitor B broke RRS 69.1 you apply RRS 61.4(b)(5) to consider giving redress. I would be happy that the removal of the equipment (action of the RRS 69 penalised boat) caused the boat's score to be made worse (by the DP), through no fault of her own.
Would this be different if there had been a hearing?
Once again, there is new evidence and the protest committee could reopen the original hearing. In that hearing, the protest committee might find facts about the removal of equipment, including that the equipment was covertly removed, but by a person who cannot be identified as Competitor B.
I don't think the protest committee should use the reopening of the original hearing to skate around the RRS 69 issue, but possibly they might not be persuaded that there was sufficient identification evidence to support a RRS 69 hearing.
Or maybe you treat it as a request for redress.
Then of course the protest committee must hear the request.
Would this be different if there had been a hearing?
The protest committee might view the 'request to fix it' as either
If it's a request for redress alleging an improper action by the protest committee in it's decision, then redress is not available under RRS 61.4(b)(1) because the decision was about a boat that was a party to the hearing.
So, better for everybody to treat it as a request for reopening
In this scenario, were the matter has developed in quite a complex way, and a request has finally been delivered in writing, I don't think that is a good idea or is going to work.
In other circumstances, where the considerations were very simple, or where the protest committee has documented it's considerations but just not published them, then it might work.
Of course you hear the request. I think you should consider it in two parts:
Considering the second aspect you would apply RRS N3.1
N3.1 Members shall not be regarded as having a significant conflict of interest (see rule 63.3) by reason of their nationality, club membership or similar.
Would this be different if there had been a hearing?
If there had been a hearing originally, the party would have been given the opportunity to object to any protest committee member, and if they didn't do so, they deserve little consideration afterwards.
The disadvantages are the delay and resources in holding a hearing.
2. Onwards > Protests and Redress hearings as discussed.
There is no redress as others mentioned, but them returning and saying that actually they were wrong is adding more appropriate evidence (see R64) upon which the PC would make a decision. A different decision.
The restrictions of reopening (new evidence rules) do not apply. Instead, it is probably more apt to apply the 90.3(c) principal that it is never to late to correct a score.
15 minutes is not a significant delay, and having the wrong score (DPI) up there for that short time can not have affected any other boat's racing strategy or tactics.
This is all moreso if still within the PTL.
So simply change back.
Aftert that it's too complex and outside RRS64.
The decision to have a hearing is PCs, not boat's.
Every SI change to rules makes me cringe.
I'm sort'a running with Paul's idea now to help flush it out.
The starting point for comparison is the non-hearing PC decision under RRS 64, which results in the boat not being a party, no reopen recourse and little to no R4R basis or opportunity.
Looking at the PC-meeting where they decide under RRS 64. The reporting boat:
So, an SI could state that when the PC protests a boat based on a report that is subject to RRS64, the PC may hold a hearing with all those same qualities, unless the boat requests to be present when they submitted their rules-breach report.
Now, the boat is in the position of having a hearing where they were a party, they can request a written decision, request reopen, appeal, etc.
With the correct SI language, it would only improve the position of the boat's standing in the rules.
I'm still struggling with it.
If a boat self reports her breach she essentially waives her rights to all those luxuries. In return she gets to go straight to the bar and enjoy drinks with her mates.
She can read R64 before she reports herself.
So, I don't see why we should then clutter the SIs trying to crowbar these rights she opted to give up back in.
I have no problem with R64 as it is. I actually think it will turn out to be one of the least used rules in the book. So I'm quite impressed we have spent 50 posts on it.
So I do think we should resist the temptation to fix rules which might not be broken.
I'm not advocating anything. I'm just doing the thought-experiment of flushing it out to see what the challenges (and possible approaches) are if one accepted Paul's premise.
So simple, if we have the information.
We do not want little bits of paper, most events are online filing.
Where in rrs to make this filing with facts and comments on mitigation?
Incidentally this could be a jury delegated responsibility, as there is on requirement for any number of people or a full jury.
Get the data, keep it simple.
We need a facility, I doubt it will really ever happen, just be prepared.
In fact I have really enjoyed this chat.
What it reinforces to me is how regional and cultural even basic societal foundations such as justice and fairness are. Also, we have to assess the seriousness of the breach when considering how to act. This makes our job as judges of an international sport more grey, rather than black or white.
At an international event, we need to work to the lowest common denominator... what appears to be the 'most fair' I suppose.
Paul's point is totally understood.
There may be certain times when I wouldn't go near a decision without a hearing under R64.
At a big international event perhaps it may not be wisest when the stakes are so high and the potential for complaints is high. On the other hand, at a local club beercan race, where everyone is good friends and no one really cares who won, then yes, R64 is there to make life easier.
As I said.. Regional and cultural.
Mike,
You are asking where on rros.org can a competitor make such a report because there doesn't seem to be a dedicated place where a competitor can go to do that.
You're right. There isn't a tab entitled 'Self-reports of DPs'.
So if asked, I'd just ask them to write an email, or a pencil and paper. Or they could put a hearing request in and name themselves on the form or something like that. Maybe the penalty report form?
The point is, I don't think it's too much a problem not having a dedicated form considering I really don't envisage people using R64 much. So work around it would be my advice.
I wouldn't think it worth Paul's development team's time (or the real estate on the menu list) to include a Self-Reported DP tab.