Forum: The Racing Rules of Sailing
'Untaking' a Post Race Penalty
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John AllanCertifications:
- National Judge
- Regional Race Officer
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Should a boat be allowed to 'untake' a Post Race Penalty taken under rule T1?
Should a boat be allowed to 'unretire'?
What about when a protesting boat has insisted on a protest hearing and the protest committee decides that the protestee has broken no rule?
Should a boat be allowed to 'unretire'?
What about when a protesting boat has insisted on a protest hearing and the protest committee decides that the protestee has broken no rule?
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Based on the other recent thread about a custom-defined “arbitration” procedure, I reviewed the rules both under Appx T as well as Appx V. I couldn’t find anything defining “finality” of the decision to take a voluntary penalty.
We typically don’t ask “why” someone takes a post-race penalty. That said, the idea of knowing the rationale is implied in Case 142 Answer 2.
We hope that competitors will take a penalty or retire based on the Basic Principal of Sportsmanship and Rule 2 that they believe they broke a Rule. So what happens if a jury determines you did not break a rule?
I think a P.C. in the right circumstance could provide the sailor the opportunity to state on what basis or belief they took a penalty. If their reason aligns directly with a conclusion of the P.C., then maybe it’s appropriate to allow them to withdraw the penalty acceptance.
Subsequently the protestee beomes aware of additional evidence, perhaps a race video or discussion with a witness, that indicates that what was presented to the arbitrator was incorrect and the protestee did not in fact break a rule. Wouldn't it be a fairer result for the protestee to rescind their acceptance of a post-race penalty?
Same principles could apply to a protestor's decision to withdraw her protest.
That said, it seems like SIs invoking Appendix T arbitration often state that decisions taken by the competitors in arbitration are final.
Yes, but Appx T and V are silent on finality.
Leo and Mike, I appreciate your bell-ringing position, but can you point us to something in the RRS to support your positions?
True, but 86.1(b) allows the SIs to change those appendices to make decisions final. If the objective is to simplify and abbreviate the process when appropriate, I think making Appendix T or V decisions irrevocable via the SIs is fine. If the event is important enough that irrevocable decisions aren't appropriate, is it appropriate to have arbitration at that event at all?
The question still stands, without modifying T or V, what in the RRS prevents a boat from “untaking” a post-race penalty?
That wasn't quite the question.
The OP question was 'Should a boat be allowed to 'untake' a Post Race Penalty?'
Would you care to expand your reasoning a little?
Apparently you disagree with the RYA Appeals Committee
I also took it further than your RYA case to the question of a post P.C. decision. For instance ....
Suppose a boat breaks an SI and retires. In the same race another boat breaks the same SI, is protested and the P.C. determines the SI was not allowed under the RRS. The retired boat learns of this and requests to withdraw their retirement.
On the subject of un-retiring, it’s worth noting that the ISAF Q & A Panel considered that in 2008, in Q & A 2008/3. The Q & A Panel followed the RYA decision in general, but without imposing time limits. It seems the RYA were inventing rules there. The Q & A Panel envisaged a boat requesting redress if the race committee refused to re-score her to revoke the retirement. A protest committee would then consider the merits of the revocation under a redress hearing. That would then rely on the race committee making an almost arbitrary decision to refuse to re-score and then fitting the issues within the criteria and procedures for redress, which seems to me very unsatisfactory.
I understand that the accepted wisdom is that a boat who retired or who took a voluntary scoring penalty can revoke it because there is no rule to say otherwise. However, in my limited understanding, I can’t say that the reasoning for that is either very convincing or very practical.
Thanks for your thoughtful response.
Thanks for the jurisdictional point, which I hadn't thought of, and also for the old Q&A which I've since looked out.
I agree that the RYA time limit of Protest Time Limit is downright arbitrary, and embarrassing for want of any attempt at rationale.
It seems to me that there are two 'principles' in tension here, and perhaps you will be more adept at running this argument than I am.
First the 'principle' of 'justice', and secondly the principle of finality.
I think the general principle of 'justice' should prevail over the principle of finality. I seem to recall that, for example, court rules about leave to appeal often include a get-out 'when the interests of justice require'.
It seems like a pretty patent injustice to me that a boat that has been found to have broken no rule should be held to an irrevocable taking of a penalty.
Any further thoughts?
One idea you brought-up was time limit. I think Appx T, which John A’s OP sites in one part, envisions a voluntary penalty in the Arbitration process. This would imply that a protest had been filed (though not necessary). The TL under Appx T is before the hearing opens. By accepting an after-race penalty, the hearing is never held and arguably the clock suspended as the protestor would have agreed to withdraw their protest. Therefore, in this instance the penalty-taken is inexorably tied to the protest withdrawn. Take back the penalty, the protestor would need to be given the opportunity to “withdraw their withdraw” and if so, a hearing should be scheduled and heard.
On the other hand, if Appx V or T are not involved and a boat simply retires without being protested but because they believe they broke a rule, I would argue there is no time limit. As we’ve seen in Q&A 2017-007 there is no time limit for a boat to retire if they learn that they broke a rule at a later time. If that is true, then the opposite should be true as well. If a boat retired without being protested, just on their sense of sportsmanship, but later discover that they did not break a rule, they should be able to withdraw their retirement.
What’s sauce for the goose is sauce for the gander.
This does bring up process and notice. I like your play by play that, assuming this penalty/retirement has left the PC’s hands (has gone to the RC for scoring), that this necessarily has to be a redress process and notice to the parties.
Post Race Penalty under rule T1 is NOT tied to the existence of a protest or to arbitration. If there is no protest hearing, there is no time limit on when a Post Race Penalty may be taken.
There is certainly no mention in Appendix T of any time limit when a Post Race Penalty may be 'untaken', although the RYA Appeal specifies the Protest Time Limit or Declaration Time: John G and I agree that this is purely arbitrary (but I would be interested in any arguments about what might be a sensible time limit).
Don't assume that the protesting boat in an arbitration will withdraw their protest if the protestee takes a Post Race Penalty.
I'm pretty sure that anything that can be said for a Post Race Penalty applies equally to RET.
We are in agreement. That’s what I thought I said when saying “this would imply a protest (but not necessary)”.
And later I believe my post also aligns with your thoughts when I discussed the RET taken in the absence of a protest. As you say, if T was around, an aware competitor would take the % hit instead. Some competitors don’t understand that they can do that outside of arbitration. I’ve had to point that out more than a few times.
Does the jury have authority to reinstate someone whom they did not DSQ in the first place?
Why limit to post-race penalty or withdrawal?
How about penalty turns or retirement taken in error? Seek redress for time or place lost unnecessarily!
(Not a serious question. Only addressing the trouble that unringing creates for PC, RC, and the fleet.)
There are no instructions or provisions for revoking this decision once notification has been made. There is no notification requirement. There can be no reopening or appeal as the penalties are not the result of a hearing. It doesn't meet the standard for redress. It's not a scoring error.
So I think in this case the rules' silence = absence of consent and these decisions can be considered final and irrevocable.
They deliver to a member of the protest committee a written statement ....
This assumes that a protest committee, with members has been appointed. If that is the case, there is absolutely no need for there to be a protest delivered.
I guess the drafters of Appendix T did not consider cases where the OA/RC appoints a protest committee ad hoc, only after a protest has been delivered. In that case, I would be quite happy if the written statement was delivered to the race office as for a protest, and immediately acted on by the race committee.
A number of ways, including:
Generally, yes: they can give redress.
But, particularly, for 'untaking' penalties, see John G's discussion.
There being no rule about whether or not a boat can 'untake' a penalty, and no notion in the rules about a boat being 'allowed' to take, or 'untake' a penalty, a boat CAN take (by doing the things the rules prescribe) a penalty, and 'untake' a penalty, in any sensible way, but presumably by written notice, because the rules are silent.
If a boat 'untakes' a penalty, and the race committee does not reflect this in the results, the boat can request redress for an improper omission by the race committee, and if John G (reluctantly), or I (happily) am on the protest committee, she will be given that redress, provided there is no evidence of unsportsmanlike conduct such as having discouraged a protest by accepting the penalty in the first place.
Maybe, but it will be less of a problem if we have a cool think and a discussion about it, before it hits us in the middle of a regatta.
Because this thread was sparked off by another thread about Arbitration, finality and appeals, hence post race penalties, and because there is the RYA Appeal about UnRetiring..
Bit why not indeed?
Well, I think it's a serious question, otherwise I wouldn't have started the issue running.
A Turns Penalty is a bell that cannot be unrung, except that a boat might be entitled to redress under rule 62.1d, if some unsportsmanlike action, like a Case 47 deceptive hail, caused her to take the turns.
A rule 44.3 Scoring Penalty: suppose a boat takes a scoring penalty by flying the yellow flag. Another boat, seeing the yellow flag bases her tactics on that, and, for example, does not cover the yellow flag boat, who picks up a shift and romps home well ahead. This would indicate that boats should not be allowed to 'untake' a rule 44.3 scoring penalty, but if the circumstances for rule 62.1d applied as above, maybe redress could be given.
Retirement: see John G's discussion above, and the RYA Appeal.
Post Race Penalty is different: there is no physical llimitation preventing it being 'untaken' and nobody has relied on it to their detriment (assuming the not taken to discourage a protest, or other unsporting reason condition).
Consider the example I suggested in the OP
What about when a protesting boat has insisted on a protest hearing and the protest committee decides that the protestee has broken no rule?
Do you think it is fair that a boat that has been formally found to have broken no rule should be penalised?
Do you think it is wise, in the absence of any express rule, to be inferring an unwritten rule that a boat in these circumstances should be prevented from avoiding her unmerited penalty?
I wanted to when parents said children who had accepted the penalty did not understand what they were doing. With post race it is consensual so you cannot have a reopening o appeal.
I believe once accepted that is it for all time. The other boat may have withdrawn a protest as the penalty was accepted. Finality seems important
I think as the protest saying the SI was bad was probably after the limit the the limit would be extended.
As there was an invalid si I would have thought if the boat could not withdraw it's retirement it could claim redress fo the incorrect SI.
Consider P & S have an incident and protest is hailed and flag posted. After the race P tells S "there is no need to file a protest because I am accepting blame and filing with the RC now". P withdraws and S does not file a protest. After protest time expires, scoring is finished and trophies given, some friends convince P that he may have won the protest if it was filed. Most of the RC have left to go to dinner and P finds them in a restaurant and demands that his withdrawal be withdrawn. Since protest time he expired and the jury is also out having dinner or driving home then A has no opportunity to protest.
How is this resolved within the rules as they now exist?
If it had been earlier and he had tried to withdraw it should have been refused in these circumstances as the starboard boat did not protest because of it.
To me any attempt at withdrawal would be a RRS 69 matter of Misconduct. A Breach of good manners or sportsmanship.
If a boat can withdraw a retirement (bearing in mind that Basic Principles Sportsmanship and the Rules says retirement is a penalty), how is retirement any different from a post race penalty?
How is the taking of a post race penalty 'consensual' when retiring after finishing is not?
And one might ask, with respect to rule T1, 'consensual among whom'?
The decision to retire or take a post-race penalty is the boat's alone. They notify the RC and are scored according, no concurrence or consent is required.
I was told you could "Unretire" I was told you could not reverse a post race penalty, when I had hoped you could.
Just as I do not agree with all the rules I do not necessarily agree here. I follow what I am told, as ask to get clarification, so my decisions are in line with requirements and not appealable.
With the post Race penalty though, the procedure interfaces with others so withdrawing has implications, especially if a protest on the basis of it has not been lodged or one has been withdrawn with the consent of the protest committee.
The OP question was deliberately normative about what 'should' happen. It was not about what 'could' happen or what the RRS permitted or prevented. Regrettably most posters have focused on the latter.
Those that have addressed the 'should' or 'fairness' issue seem to be agreed that
I'd welcome any further discussion about the 'should' or 'should not' issue.
A boat takes a post race penalty as possible insurance against further punishment, whether he actually broke a rule or not is irrelevant. You take the penalty and that is it, no way back.
First, "un-retiring" seems like it would have to be limited to the case where a boat sailed the course, finished and retired after finishing, no? If a boat retires and doesn't finish there's no point in un-retiring since they'd then be scored DNF instead of RET. And if a boat retires and continues to sail the course it's unfair to other boats who no longer consider that boat a competitor, and the "temporarily retired" boat which is no longer racing risks breaking 24.1 in any interaction with a boat that is still racing. So in my opinion, out of fairness to all boats, any retirement prior to finishing should be regarded as irrevocable as the retirement has changed the competition for all boats.
Allowing a boat to rescind her RAF may be fair for that boat but I agree that it's only fair for all if it takes place within the protest time limit (or if the time limit is extended by reason of the un-retirement). If it's fair for a boat to un-RAF, it seems like fairness requires that boats, race committee, protest committee, etc. should have the opportunity to protest the un-retiring boat.
It seems obvious that a turns penalty can't be "un-taken." It would be difficult to find a fair solution in offering redress for a boat that did penalty turns and then decided that she didn't really have to.
Likewise, I don't think a boat that signals that she intends to take a scoring penalty during a race should be allowed to revoke that decision. Once the yellow flag is up I think it has to stay up. As with retiring while racing, a boat announcing that she's taking a scoring penalty has changed the state of play for all boats and there's no way to unwind that to make it fair for all boats.
I guess I could see where it would be fair for a boat that decides to take a post-race scoring penalty to be allowed to rescind that decision, but again it's only fair for all if others are still able to protest that boat.
And I guess that I would still come down on the side that since retiring or taking a scoring penalty is a decision by the individual boat, not something imposed upon them, it's not unreasonable (that is, not unfair) to hold the boat responsible for her decision and not allow either un-retirement or un-taking a scoring penalty. In my opinion, a boat should consider those decisions irrevocable and decide accordingly.
That makes sense.
The old Q&A John G referred to (Q&A 08-003) was more circumspect, proceeding from the position that there is no rule addressing whether or not a boat should be 'allowed' to retire or 'unretire', and said, addressing only Retiring After Finishing, as follows:
In the event that another boat did not lodge or withdrew an otherwise valid protest based on the original retirement of the boat, the protest committee should extend the time limit and hear the
protest.
If the boat did not act in good faith, such as, attempting to avoid being protested by first retiring and then rescinding that retirement, she breaks rule 2, Fair Sailing. Her breach may even be a gross breach of sportsmanship and justify a hearing under rule 69.
RYA Case RYA2001-02 bluntly says
When a boat retires in compliance with rule 44.1, Penalties at the Time of an Incident: Taking a Penalty, for having gained a significant advantage or causing serious damage in the act of touching a mark or breaking a rule of Part 2, that is irrevocable.
That, and you argument about on-water Scoring Penalty seem likewise eminently sensible.
Yes
I think that there are some circumstances where the decision is not entirely the decision of the boat alone, but we can discuss that a bit later on.
With the rules as they are currently written I would say "NO". I do not think that the RC can justify that under the current rules no matter how much verbiage you apply.
If the question is changed to "Should the RRS be changed so that a boat will be allowed to 'unretire'?" I think that is an entirely different idea and cannot be decided by just a small group.
In that thread, Phil posted an interesting thought directly relating to this thread. With his permission I am posting it here below. I think it’s very interesting and thought provoking. Thanks Phil!
But it is a bit of a stretch to say that withdrawn (recanted?) statements are "information."