Thursday 22 April 2010

Parties to a Redress Hearing

A guest post by Brass

Introduction

With 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).
As previously drafted, the definition of party, had the effect that boats that were considered for redress, but which had not, themselves, requested it (that is where redress was initiated by the race committee or protest committee under rules 60.2(b) or 60.3 (b)) had no right to:
  • 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.
This had the incongruous result that although a protest committee, in considering redress under rule 64.2 was required to 'make as fair an arrangement as possible for all boats affected, whether or not they asked for redress', those boats, unless they themselves had formally requested redress, were not entitled to be heard by the protest committee as to what a fair arrangement might be.


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.

Background

It 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 change

Rule 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 Change

The 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).
Under the old definition, a boat that was not a party to the original hearing, could initiate a request for redress, alleging that some omissions or actions taken by the protest committee in connection with a hearing considering redress, such as a failure to give notice under rule 63.2, were improper.  Now that all boats being considered for redress are parties, rule 62.1(a), last clause, prevents this being done.  Instead, as parties, boats have rights to request reopening and to appeal.
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 Committees

The 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.

13 comments:

  1. Very excellent presentation on the effects of the new US Sailing prescriptions and the new, Jan 2010 definition, of "party".

    It seems to answer a few lingering questions I have about the new US Sailing prescriptions.

    But perhaps Brass can confirm a few things about his comments.

    1. Are you saying the new US Sailing prescriptions and or definition of “party” say that a boat is a “party “ to a redress hearing even when it chooses not to attend the hearing after it has been properly notified?

    2. What constitutes the protest committee considering redress for a boat, under 60.3(b), when that boat is not a party to the hearing? Or, it be correct to say that if a boat's score or position in a race is changed by a PC decision, under 64.2, that boat is now a defacto “party” and entitled to request reopening and to appeal?

    Dick

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  2. The then circumstances is well informed on the following websites.
    (Statement)
    http://www.ussailing.org/News/2008/rios_hall_second_statement.asp
    (Documents)
    http://www.ussailing.org/News/2008/Rios_Hall_second_hearings_docs.pdf
    sen yamaoka

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  3. Sen,

    Thanks for the links about Hall v Rios. Apart from morbid curiosity about how not to run a high profile redress, I don't think that much is served by picking over that case now.

    Dick,

    You mentioned the effects of the new US Sailing prescriptions and the new, Jan 2010 definition, of "party".

    The article was written before the US Sailing Prescriptions were published: it deals with the implications of the RRS change in definition of 'party'. The US Sailing Prescriptions are much more detailed and were not discussed.

    You asked: "1. Are you saying the new US Sailing prescriptions and or definition of “party” say that a boat is a “party “ to a redress hearing even when it chooses not to attend the hearing after it has been properly notified?"

    Yes. Whether or not a boat makes a written request under US Sailng Prescripton to rule 60, or actually attends a hearing, makes no difference to whether she meets the definition of 'party'. National Prescriptions cannot change definitions (rule 86.2(a)).

    Rule 63.3(b) tells us what to do when a 'party' does not come to a hearing:

    "If a party to the hearing of a protest or request for redress does not come to the hearing, the protest committee may nevertheless decide the protest or request. If the party was unavoidably absent, the committee may reopen the hearing."

    You asked: "2. What constitutes the protest committee considering redress for a boat, under 60.3(b), when that boat is not a party to the hearing? Or, it be correct to say that if a boat's score or position in a race is changed by a PC decision, under 64.2, that boat is now a defacto “party” and entitled to request reopening and to appeal?"

    This is what I was trying to get at in the second paragraph under Scope of the Change, My conclusion was that PCs would be wise to treat all boats that _may be affected_ by the giving of redress as 'parties'.

    The key notion is that any mistake of the PC in awarding redress can now be remedied through firstly reopening, then, if necessary appeal, without the need to make a request for redress which would be subject to the rule 62.2 time limit, and so be ruled invalid without any consideration of its merits.

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  4. Ah yes. I see now that your presentation did not include a consideration of the new US Sailing Prescriptions but rather just the new Jan. 2010 definition of “party". I had just received and read the new US Prescriptions when I read your post and mistakenly thought the new prescriptions were part of your analysis when they were not.

    But could you clarify when a boat meets that part of the definition that says “or considered by the protest committee under rule 60.3(b)”?

    For example. If boat A requests redress and the PC awards redress by changing that boat’s score and, as an unintended consequence, another boat’s score is changed; does that boat meet the “or considered by the protest committee under rule 60.3(b)” in the definition of ”party”

    And, if a PC changes the scores of other boats under A6.2 are those boats now “parties” that can request reopening or appeal or are they only eligible to request redress for the PC decision?

    Dick

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  5. Dick,

    My conclusion was that PCs would be wise to treat all boats that _may be affected_ by the giving of redress as 'parties'. This is consistent with 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) where 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.'

    In your two examples, excluding the disadvantaged boats from the redress hearing is the very mischief that the amendment is intended cure.

    You could argue the case in a more round about way as follows. Assume that the protest committee has complied with its obligation under rule 64.2 to make an arrangement as possible for all boats affected. The protest committee could not possibly have accomplished this unless they considered all boats which may have been affected. Therefore the protest committee must have 'considered' all boats that 'may have been affected'. If they failed to do so, they have not complied with their obligation under rule 64.2.

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  6. Brass,
    I agree the PC committee should invite all boats to be parties and to attend a redress hearing. However, I think if a boat does not attend the hearing that boat should not be considered a party. Then they can ask for redress themselves if warranted. If they are made a party but don't attend the hearing, then RRS 62.1(a) says they can't ask for redress from a decision when the boat was a party to the hearing. This would lead to the curious situation of a PC being asked to reopen a hearing based on new evidence from a competitor who did not attend the first hearing. A PC may reopen, but shall hear all protests and requests for redress. I think it is fairer to allow a competitor the option of asking for redress themselves.

    Thanks,
    Darryl

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  7. Darryl, Thanks for your response.

    I don't think you can have it both ways.

    You cannot have a boat 'invited to attend a redress hearing' then say that that boat is not a party: As I pointed out to Dick, the rules specifically cover what happens when a party does not turn up.

    The position of a boat, affected by a decision to give redress to another boat being required to make her own request for redres is much more disadvantageous than if that boat had had a right to be present, and bring and question witnesses, and submit arguments in the original hearing. This is what the amendment was trying to take care of.

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  8. Brass,

    Aha! I see how you get to say a boat is considered for redress under the definition of “party” through the use of 64.2. Very clever.

    So, are we saying that when a PC grants redress under 64.2 all boats affected become a party whether they participated or chose not to participate in the hearing and, when a boat chooses not to participate they knowingly give up their right to request redress?

    So, in any redress hearing, a request for redress will not be available to any boat in that race?

    Dick

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  9. I am not trying to be clever. I am trying to advance a reasoned case for interpreting 'party' broadly so as to achieve fairness, and aviod embarassing disputes.

    I am saying that, when it convenes a hearing to consider redress for a boat, then a protest committee should treat all other boats in that race or series as boats that may be affected by giving redress to one boat, as parties to the hearing, in accordance with [the previously unpublished] ISAF policy.

    I am saying that whether or not boats give notice of a desire to participate, or actually come to the hearing has no bearing on whether or not they are 'parties'.

    There is no scope for a boat to elect or choose between remedies.

    If a boat is a 'party', and dislikes the protest committee's decision, she has rights to request a reopening, or to appeal, but has no right to request redress based on any alleged improper action of the protest committee. If a boat is not a 'party' she has a right to request redress, but has no rights to request reopening or to appeal against the original decision. A separate redress hearing, after the protest committee has once made up its mind, is a much weaker right than the right to participate in the original hearing, question witnesses and submit argument about how evidence and rules should be interpreted and applied.

    So, yes, a boat that may have been affected by a decision of a redress hearing is not, under rule 62.1(a), entitled to request redress on the grounds of any improper action of the protest committee, but is entitled to request reopening or to appeal, which are more beneficial entitlements.

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  10. Besides gaining some rights in becoming a party, a boat also has now an obligation. She must make a reasonable attempt to attend the hearing if she wants to be heard.
    A reopening is unlikely to be granted if she did not do that - she still can request appeal, but the facts found, if adequate, will stand.
    All boats must now look at the notice-board and decide if a request for redress might have influence on their scoring and if so, if they should attend.

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  11. Jos,

    Last bit first.

    You said "All boats must now look at the notice-board and decide if a request for redress might have influence on their scoring and if so, if they should attend."

    I don't think this is correct unless boats are first put on notice by an appropriate SI that a notice on the board is a notification under rule 63.2. An actual rule to this effect in future revisions wouldn't go astray.

    Second bit.

    Why do you say "She must make a reasonable attempt to attend the hearing if she wants to be heard. ... A reopening is unlikely to be granted if she did not do that"?

    My understanding of rule 66 is that if a party asks for a reopening no later than 24 hours after being informed of the decision, then, if the protest committee does not wish immediatly to reopen the hearing, they must give the party asking for the reopening a hearing, to present evidence and argument as to why the original hearing should be reopened.

    I think the whole point of the rule change was so that a boat will not be excluded from having 'her day in court' by procedural rules that cause the real merits of the case to be not considered. I think that given the cases that gave rise to this rule change, our American cousins would be wise to give this rule a very liberal interpretation.

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  12. @ Brass,
    Would you grant reopening to a party in a port/starboard protest when they failed to attend the original hearing without a reasonable excuse?

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  13. Jos,

    If ANY party asked for a reopening within 24 hours after being informed of the original decision, I would at least hold a hearing to hear their reasons for asking for reopening.

    I don't think that the protest committee can properly decide whether the party had a reasonable excuse, or to use the words of rule 63.3(b) was 'unavoidably absent' unless there is a hearing.

    If a party (or, in my opinion, anybody else) makes a sensible submission that persuades the protest committee that it is likely to have made a significant error, or that there is significant new evidence that is or will become available within a reasonable time, then I would reopen the hearing.

    I am aware that some senior judges disagree with the notion above, and hold that only if a party asks for reopening within 24 hours should it be granted. I disagree. The purpose of reopening is to enable the protest committee to correct any mistake it might have made. I think it is absolutely unconscionable for the protest committee, knowing it is likely to have made a significant error, not to reopen the hearing, merely because of a time or procedureal defect.

    Particularly while this new definition of 'party' is 'bedding down', I think there will be quite a few problems which are best solved by taking a liberal interpretation.

    I also think, that in the redress situation, in practice, when the protest committee holds a hearing to consider reopening, the issue of whether the requestor is in fact 'hardly done by', and why, will come out, and either it will become clear to the protst committee that they _have_ failed to make a fair arrangement, and therefore should reopen, or else the protest committee may be able to explain to the requesting party why his reasons for reopening are not valid, and persuade him to be happy for there to be no reopening.

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