Protest Committee & Hearing Procedures
Aggravated Rule 69 Incidents
Along with a host of other WS homework-study items, that I was recently given, included the study item below (which I am sure many on this forum have seen before):
“7. You are the chairman of the protest committee. It is 10:00 PM and the club is closing. You have just been told by the club manager that in an argument with the bartender about one hour ago, the tactician aboard one of the offshore boats was intoxicated and used foul and abusive language. In anger, the tactician allegedly threw a beer bottle at the bartender. What should the protest committee do? What rules apply?”
Of course, the simple answer is to follow Rule 69 (and that SoP) and the relevant WS reference documents: G.2 (World Sailing Judges Manual) and WS Misconduct Guidance etc, and which are all straightforward enough.
However, given the nature of the cited incident-example, and while not specifically stated in the above referenced WS documents, I presume that the OA would also be immediately engaged, and their counsel and even resources sought - e.g. local Lawyer members and/or suitably qualified investigator etc; and to be circumspect and to tread lightly about investigating, ‘testing’ and deciding to hold a hearing etc (are police involved and/or civil proceedings being instigated – soberingly, G4.4.4).
Any intimate experiences with this type of incident?
Created: 26-Jul-13 08:25
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The protest chair can do no more than collect some information and brief his team early morning.
He will soon be told to leave the club; the team is probably dispersed.
He needs a hearing to decide id a 69 should be brought, it is not their decision.
At his accommodation, the chair can plan and prepare an RRS 69 notice in case it is approved in the morning.
The boat owner's telephone number could be sought in case the owner needs to know about his crew member's actions and the possible consequences; he may choose not to take him to avoid endangering the boat's score.
Contact the protest team for an early meeting to discuss least an early (before race ) hearing is required.
With simple facts like bottle throwing and bad language no real need for an investigator, as few witnesses will be required
, and this simplifies matters.
The PC Chair has received information from a source. It (the PC) shall decide whether or not to call a hearing.
So, you need to describe how you would want the scenario to play out. Don't forget to look at RRS M6.
You need to keep a sense of perspective: it is a breach of good manners, it has no effect on the fairness of the competition and is not an issue involving protection of competitors from harassment, bullying etc. While it is serious, and in the old money is undoubtedly gross misconduct, it is not World War 3: it is at the lower end of criminality.
You do not need a 'qualified' investigator: who you choose to investigate is up to you.
You do not need any legal advice to conduct a RRS 69 hearing. There is no decision a protest committee can make under RRS 69.2(h) that can have any legal repercussions: The only actions a protest committee can take under RRS 69.2(h) affect places in races at the event. This cannot lead to, for example CAS proceedings for restraint of trade. Of course the protest committee should exercise discretion in making any communications about the matter that may be defamatory (see RRS 63.6(c) and (d)).
Obviously this is a time-line problem. The scenario opens after close of business and you need to fit in the procedures required by RRS 69.2 in between when you receive the initial information and when you want any penalty, such as exclusion from racing, to apply. You will need to pay particular attention to:
While it is not strictly a requirement, I would want to talk to the Regatta Chair or a senior Flag Officer or Board Member of the OA and find out how seriously they view the incident, and broadly, what they would like to see happen. I would be cautious about placing too much reliance on what a staff manager of the host club tells you.
Just note the following:
The process well laid out above thanks (I have been on a Jury for one potential 69 case and the Chairman pretty much followed that).
What got me thinking though (or over-thinking perhaps?) with this particular study-example case, is: in many jurisdictions, the bartender within his or her right to call the police and the tactician arrested and a police investigation naturally ensues (taken very seriously in some - e.g. Australian 'sucker punch' laws) - one has to be also very careful running any parallel investigations and any declarations and notifications-timings under such circumstances (notably so here in the Philippines).
Simple drunken assault is not CSI Miami.
Unlike, say, a Coronial Inquiry, or a Military incident investigation, you have no legal obligation to coordinate or synchronise your investigation or hearing with police or any criminal proceedings. If the police are concerned, its up to them to ask or direct you as they require, and you would normally cooperat and comply with any such request or direction.
Step 5 – If the allegations are proved
I would find this to be misconduct under Rule 69.
Does intoxication matter?
As the first step required by RRS 69 is to decide whether or not to call a 69 hearing, would you convene a panel to make that decision or do it on your own? In your above discussion, it is written as you acting unilaterally.
A protest committee acting under this rule shall have at least three members.
RRS 69.2(b)
When a protest committee ... believes that a person may have broken rule 69.1(a) it shall decide whether or not to call a hearing.
The decision must be made by the protest committee, not an individual.
I have a bit of a problem with this.
I think these actions are looking very like an investigation that an investigator appointed under RRS 69.2(c) would be doing, and hence that the protest committee chair is acting as an investigator.
But in accordance with RRS 69.2(c), investigators shall not be members of the protest committee that twill decide the matter .
So, I think that, by carrying out their own investigations, the protest committee chair is disqualifying themselves from sitting on the protest committee hearing the matter.
I think asking a few preliminary questions, like name and contact details and perhaps requesting the manager to write down a record of what happened for future use would be ok, but any 'statement taking' where the protest committee chair wrote down a statement and asked and recorded answers to questions, and the other steps, concerning other staff and video are crossing the line into investigation.
For this one, see other posts: the decision to call a hearing needs to be made by a protest committee of at least 3 members, and I think it is risky to give some sort of preliminary notice to the person before the proper written notification is prepared and delivered.
I think asking someone to preserve records of an incident in itself is not investigating an incident as long as those records are not reviewed. Back in the day, VCR based security systems would overwrite if not preserved .. so such an instruction was paramount. Now that this is all digital and much in the cloud .. default retention durations are longer now.
Likewise, asking a witness to jot down as much as they can remember while it's fresh in their mind (and before their memory is corrupted by continued recounting and discussions with others) is fine IMO as long as those notes or statement is not reviewed.