A guest post by Brass
IntroductionWith effect from 1 January 2010, ISAF amended the definition of party, as shown:
Party A party to a hearing: a protestor; a protestee; a boat requesting redress or for which redress is requested by the race committee or considered by the protest committee under rule 60.3(b); a race committee acting under rule 60.2(b); a boat or competitor that may be penalized under rule 69.1; a race committee or an organizing authority in a hearing under rule 62.1(a).
- be present at the hearing under rule 63.3;
- to request the reopening of a hearing under rule 66; or
- to appeal any decision of a hearing under rule 70.1.
It might be supposed that the rule was devised with the pragmatic intention of preventing every boat in a fleet demanding a right to be heard when one boat was being considered for redress, when it was assumed that the protest committee would deal fairly with all boats without the necessity of hearing from each of them.
The changed definition of party improves fairness at the expense of possibly making redress hearings longer and more unwieldy.
US Sailing has issued National Prescriptions which impose considerably tougher and more specific requirements in the USA: see US Sailing Media Release and Prescriptions.
BackgroundIt seems likely that the amendment was precipitated by circumstances where the selection of the USA representative for Women's Windsurfing for the 2008 Olympic Games was changed as a result of redress given in the last race of the US Olympic Selection trials. The disadvantaged sailor, despite some prompting from the protest committee, failed to make any request for redress, and thus, not becoming a party, was unable to appeal the decision which cost her her representation. This led to a dispute between US Sailing and the US Olympic Committee under a USA Act of Congress, in which it was found that, by observing the rules which excluded the disadvantaged sailor from rights to hearing and appeal, US Sailing was in breach of the laws of the United States, and was required to change the procedures for considering redress.
In the Racing Rules Committee submission to change the definition (164-09, jointly prepared by the Chairs of the ISAF Race Officials Committee and Racing Rules Committee) it was recorded that 'The Race Officials Committee (ROC) currently recommends that boats that might be affected by a redress decision be permitted to participate in the hearing at which redress is being considered.' Regrettably, this recommendation did not appear to have been communicated outside the Race Officials Committee, and apparently not the US Sailing Judges who dealt with the Olympic Windsurfing Selection redress.
Scope of the changeRule 60.3(b) refers to the power of a protest committee to 'call a hearing to consider redress'. It might be argued that when a protest committee considers redress for a boat in a hearing of a protest (rather than a request for redress), to which the boat was not originally a party, that the hearing was not called by the protest committee 'to consider redress' and thus, that the redress is not being 'considered under rule 60.3(b)'. Such a strict construction of a provision evidently intended to enhance and ensure fairness and justice is not appropriate and the better construction is that any boat for which redress is considered by protest committee is a party to that hearing.
It may also be questioned whether the obligation of the protest committee, in considering redress under rule 64.2 for one or more particular boats, to 'make as fair an arrangement as possible for all boats affected, whether or not they asked for redress' means that boats which may have been affected, other than those originally identified, are boats for which redress is being considered, and are thus parties to the hearing. Again, a strict construction of the provisions may defeat the objectives of fairness and justice, and the better construction is that all boats should be taken to be 'considered for redress' and thus be parties.
Effects of the ChangeThe new requirement of the definition, that boats for which redress is requested by the race committee or for which redress is considered by the protest committee are to be considered to be parties to the protest committee hearing where redress is considered, generates some new obligations on the protest committee.
Under the old rules, the requirements that all parties to a hearing shall be notified of the time and place of the hearing … (rule 63.2) and that the parties to a hearing have a right to be present throughout (rule 63.3), and to question witnesses (rule 63.6), did not apply to boats for whom redress was being considered unless they had, themselves submitted requests for redress.
Protest committees, in hearing protests or requests for redress often went ahead and considered redress for boats that were not parties, in their absence, particularly under the requirement of rule 64.2 to make as fair an arrangement as possible for all boats affected, whether or not they asked for redress.
Under the new definition, every boat being considered for redress is a party to the hearing where redress is considered and must be:
- given notice, of the hearing and time to prepare in accordance with rule 63.2;
- afforded the right to be present throughout the hearing, (rule 63.3), and to question witnesses (rule 63.6).
Whether a boat for which redress is considered by a protest committee was given notice of a hearing, or attended the hearing, or not, that boat is a party, and is entitled to request a reopening of the hearing under rule 66. It would seem like a good idea, if a party has not been afforded all her rights under rule 63 requests a reopening, to promptly arrange a rehearing that does comply with rule 63. Alternatively, it may avoid inconvenience to other parties if a hearing to consider the request for reopening, attended only by the requester, is held, to hear an outline of the requester's case and thus assist the protest committee to decide whether or not they may have made a significant error, or whether significant new evidence is available, and decide whether to reopen the hearing proper.
A boat which, in accordance with the definition is a party to a hearing that has considered redress, may always appeal any protest committee decision, subject to rule 70.1.
Critical New Requirement for Protest CommitteesThe protest committee is required to ensure that every party to a hearing is given notice of the hearing (rule 63.1). Under the new definition of party:
- If the protest committee receives a request for redress for a boat, then the protest committee is required to ensure that a notice is given to all parties. Considering the discussion above, the protest committee might be wise to take the view that that means all boats competing in the race in question, or who otherwise might be affected by a redress decision.
- The protest committee might give notices individually to all boats competing in the race in question; or
- It might be useful to use a Sailing Instruction to the effect that
'A notice of hearing to consider redress posted on the Official Notice Board shall be taken to be a notice to all parties to the hearing, whether they are boats requesting redress, or otherwise specifically identified in the notice or not.''
- If the protest committee in hearing a protest decides that redress should be considered for a boat:
- The protest committee might adjourn the hearing and give a notice of hearing to all affected boats, as described above; or
- The protest committee might continue to decide the redress issue and publish a decision, but be prepared to immediately grant a reopening of the hearing, or at least a hearing as to reopening, to any boat competing or who claims to have been affected by the redress decision.