The second change in rule 69 is about the 'standard of proof' that should be used on the evidence:
A couple of quotes from an article by Daniel Dawer, with the title: Leveling the Playing Field: Why the USADA Must Adopt a Criminal Burden of Proof in Anti-Doping Proceedings
I've compiled a table and placed 'comfortable satisfaction' where I think it should be, which is level 8
TABLE 1: "STANDARD OF PROOF"
Note 1 | The standard of proof 'Comfortable Satisfaction' is more than 'Clearly established' and certainly more than 'Balance of probabilities', but less than 'Beyond a reasonable doubt'. I've added my description in italics - since I could not find any other.
Rule 69.2(b):I have had a very hard time finding out what 'comfortable satisfaction' means. The Casebook working party is preparing a Case to explain to protest committees what the “comfortable satisfaction” standard means and how they should apply it. But that will take - according to my sources - several more weeks, before that is finalized.
……. If it is established to the comfortable satisfaction of the protest committee, bearing in mind the seriousness of the alleged misconduct, that the competitor has broken rule 69.1(a), it shall either…...
Search results
A search on the Internet spewed out several doping cases where this 'standard of proof ' is discussed;A couple of quotes from an article by Daniel Dawer, with the title: Leveling the Playing Field: Why the USADA Must Adopt a Criminal Burden of Proof in Anti-Doping Proceedings
Article 3.1 of the World Anti-Doping Code, states that such a standard "is greater than a mere balance of probability but less than proof beyond a reasonable doubt.“And from an article by Angel R. Puerta: Uncomfortable Satisfaction
Accordingly, the WADA established a burden of proof “greater than a mere balance of probability but less than proof beyond a reasonable doubt”: namely, prosecutors must establish an athlete’s guilt “to the comfortable satisfaction of the hearing body.” The standard’s ambiguity emerges from a failure to define “comfortable satisfaction.” Is it closer to preponderance of evidence—the evidentiary standard in civil proceedings—or closer to beyond reasonable doubt?
Athletes need no longer be proven guilty "beyond a reasonable doubt" in doping cases - a near impossibility in many instances - but rather they must be proven guilty "to the comfortable satisfaction" of the panels hearing their cases.From an article on Velo News: Dick Pound talks Floyd Landis, Lance Armstrong and the system
The new standard brings common sense into the pursuit of a level playing field. Obvious cheaters can no longer hide beyond a "we have never tested positive" gimmick that is built upon clever drugs and astute event and training schedules.
“Absolutely,” Pound said. “You can do a lot more with a confession like that and allegations and information that they can provide than you can ever do with results that come from the odd guy who pees in a bottle. In principle, I am very comfortable with it.”
In criminal trials, he said, “you can hang people even without bloodstained clothes. It’s a matter of having the kind of panels and the people on those panels who are in a position to weigh the evidence and arrive at the level of proof — to the comfortable satisfaction of the panel — that CAS has adopted as the standard of proof.”
Pound added that the more rigorous “comfortable satisfaction” standard is applied to anti-doping authorities when presenting their evidence “but the athlete must only meet a ‘balance of probabilities’ standard (when submitting evidence in their defense). It really is all well calibrated.”
Citing a hypothetical example of someone charged with distribution of 300 syringes of Aranesp, Pound said: “You don’t need the actual syringes to make the case. Eyewitness testimony of a delivery, credit card receipts … all of that is admissible and it’s up to the panel to weigh that evidence.”The legal standards of proof can be found on: http://en.wikipedia.org/wiki/Legal_burden_of_proof
I've compiled a table and placed 'comfortable satisfaction' where I think it should be, which is level 8
TABLE 1: "STANDARD OF PROOF"
|
|
Level
|
Standard
of proof
|
Description
|
General
use (& Sport related)
|
RRS
(2013-2016)
|
|
|
10
|
Exclusion
(elimination) of all other possibilities. Also: beyond the shadow of a doubt)
|
No
other reason can be found – however unlikely – that can explain what has
happened. There is NO doubt.
Impossible
to achieve; even in law cases this is never used
|
-
|
-
|
|
A
|
9
|
Beyond
a reasonable doubt
|
In
negative terms, as a proof having been met if there is no plausible reason to
believe otherwise.
|
Criminal
Cases
|
Gross
Misconduct
(RRS
69; before 2013)
|
|
|
8
|
With
comfortable satisfaction, required by the seriousness of the allegation
|
It is highly unlikely that the allegation is not
true.(note 1)
|
Doping
and (often) in Appeal Cases
|
Gross
Misconduct
(RRS
69; since 2013)
|
|
B
|
7
|
Clearly
established/ clear and convincing evidence
|
With a
high degree of probability established that the allegation is true. A firm
belief or conviction in its factuality.
|
Equity
Cases (paternity, juvenile delinquency, child custody, wills, etc.)
|
Fair
sailing & sportsmanship (RRS 2)
|
|
C
|
6
|
Balance
of probabilities or preponderance of evidence
|
The
proposition is more likely to be true than not true. Effectively, the
standard is satisfied if there is greater than 50 percent chance that the
proposition is true.
|
Civil
Cases / Rules of the Game
|
All RRS
Except 2 & 69
|
|
|
5
|
Substantial
evidence
|
Such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion
|
-
|
-
|
|
|
4
|
Some
credible evidence
|
|
-
|
-
|
|
|
3
|
Probable
Cause for arrest
|
|
-
|
-
|
|
|
2
|
Reasonable
to believe
|
|
-
|
-
|
|
|
1
|
Reasonable
suspicion
|
|
|
|
|
|
0
|
Benefit
of assumption
|
Needs
no evidence to support a claim
|
-
|
-
|
Note 1 | The standard of proof 'Comfortable Satisfaction' is more than 'Clearly established' and certainly more than 'Balance of probabilities', but less than 'Beyond a reasonable doubt'. I've added my description in italics - since I could not find any other.
Submissions
I did find a description in the submission that prompted this change. There were three submissions about rule 69 this year; Submission 123-12, Submission 124-12 & Submission 125-12.
The Racing Rules Committee noted their recommendations in the minutes: Racing Rules Committee Minutes.
The Racing Rules Committee noted their recommendations in the minutes: Racing Rules Committee Minutes.
(g) Submission 123-12 - New Case (A) - Rules 69, 69.2(c);Recommendation to Council: Reject(h) Submission 124-12 - New Case (B) - Rules 69, 69.2(c)
The example is too complex. See Submission 125-12.Recommendation to Council: Reject
Undesirable to use recent identifiable case. See Submission 125-12.
(i) Submission 125-12 - New Case - Rule 69.2(c)Recommendation to Council: Approve with the following amendment
Approve with the addition of a sentence stating that "comfortable satisfaction" is used by the Court of Arbitration for Sport.
Case Book Working Party to edit and include the concept set out in the final paragraph of Submission 124.12, Comparison with other Standards of Proof.
Case Book WP to include an example along the lines of the example in Submission 124-12. The edited case is to be approved by the RRC.
Comfortable Satisfaction?
The Council minutes have not been published yet. So the final decision is not yet in the public domain. Nevertheless following this trail, there are a few interesting insights about 'comfortable satisfaction' in these documents:Rule 69.2(c) specifically requires that in a rule 69 hearing the protest committee use the more strict ‘comfortable satisfaction’ standard and, furthermore, that the more serious the allegation, the stricter the committee’s standard should be. That standard is always greater than the ‘balance of probabilities’ standard but is less than the standard of ‘beyond a reasonable doubt’. In between these two limits, the standard of proof is a sliding scale, based on the seriousness of the allegations before the committee.
It is also a fundamental principle in disciplinary proceedings that competitors must be regarded as innocent until any allegation is proven against them. Therefore part of the comfortable satisfaction test is whether or not the evidence presented to the committee is sufficient to mean the competitor is no longer presumed to be innocent.
The last sentence of the Terminology section of the Introduction implies that words ‘comfortable’ and ‘satisfaction’ are used in rule 69.2(c) in ‘the sense ordinarily understood in . . . general use.’ Both ‘comfortable’ and ‘satisfaction’ are frequently used in everyday speech, and so most judges will be familiar with how they are generally used. Judges could also consider whether they feel ‘uncomfortable’ with any conclusion reached. If they are uncomfortable, then they are not comfortably satisfied.
It should be noted that in a rule 69 hearing, the protest committee must answer ‘Yes’ to both of the following questions before it warns or penalizes a competitor or boat under rules 69.2(c)(1) or 69.2(c)(2):
In Submission 124-12 (which was recommended to be rejected) the final paragraph makes a comparison on the evidence between three standards of proof. The case does not meet the requirements of "beyond a reasonable doubt", but does (with a margin) meet the "balance of probability" criteria, since nearly all evidence supports the allegation.As rule 69.1(a) states, an act of gross misconduct may be a gross breach of a rule, good manners or sportsmanship, or conduct that brings the sport into disrepute.
- Is the committee comfortably satisfied that the facts found establish that the alleged conduct occurred?
- Is the committee comfortably satisfied that the conduct that occurred was gross misconduct?
Reports
Since we all will have to learn work with this 'new' standard of proof, it would be of great benefit to us all, if the Working Party was kept informed on Rule 69 hearings in the next four years. If you are involved in such a case - it would be prudent to make sure that your insights are included in the (IJ-,IU-,RO-)reports. The exact reasons why the panel members thought that the standard 'comfortable satisfaction' was met or not met, the latter just as important as the first.
Jos
ReplyDeleteI’ld like to explain some of these terms.
The expression “beyond reasonable doubt” comes from the adversarial procedures used in courts in English speaking countries. There, a court case is decided by a contest between the parties to present their cases, cross-examine opposing witnesses and persuade the judge or jury.
Under the adversarial system, the judge or jury have no ability to conduct their own investigations. They must rely solely upon the information that the parties choose to present.
If the facts presented are inconclusive, then a judge or jury relies on a burden of proof. A civil case normally must be proved to the balance of probabilities. In a criminal case, the judge or jury need to be sure that the accused is guilty before they convict. If they have a reasonable doubt, they must acquit.
A lot of people over-estimate the degree of proof that “beyond reasonable doubt” requires. It means what it says: beyond a doubt that’s reasonable. It doesn’t mean proof to a scientific certainty or beyond any vague or fanciful doubt. Most criminal convictions are decided on the basis of one person’s word against another. A judge or jury only needs to be sure about whose version to accept.
In sailing we don’t use the adversarial system. Protest committees are inquisitorial bodies. We are not restricted to considering the information the parties choose to present. RRS M3.3 says, we are required to resolve doubts one way or another, and if we don’t have enough information, we should recall the parties and make further inquiries. We shouldn’t just sit back and say “the protestor didn’t prove such and such”. We can say that, after investigating, that “we’re not satisfied that such and such took place”, which is a different statement.
Some investigatory bodies, such as some disciplinary tribunals and commissions of inquiry, are constituted to make decisions when they are “reasonably satisfied with regard to the seriousness of the allegations”.
The phrase “with regard to the seriousness of the allegations” doesn’t mean a sliding scale of certainty – such as they need to be 50% sure if there’s a minor allegation and 80% sure in a more serious one. It refers to how far the investigatory body should go to be satisfied. To give an example, we may be 100% sure when we decide to buy a certain brand of soap or toothpaste, but that is a different type of decision from when we decide to buy a house or get married.
I understand that this is where the term “comfortable satisfaction, bearing in mind the seriousness of the alleged misconduct”, in the Anti-doping Code, is derived from. Article 3.1 of the Code describes this standard of proof as being higher than the balance of probabilities but lower than beyond reasonable doubt. That shouldn’t be read in an adversarial context. It needs to be read in the context of the nature of the inquiry being undertaken.
A rule 69 inquiry (as with a professional disciplinary inquiry) is a lot more complicated than simply asking whether a charge or allegation has been proved. A rule 69 inquiry involves normative elements such as judgments about what is unacceptable behaviour in the context, whether those standards were breached, and what should be done if there was misconduct. Applying a burden of proof, such as “beyond reasonable doubt” isn’t very helpful here. It seems more helpful to ask whether the jury is comfortably satisfied, bearing in mind the seriousness of the alleged misconduct.
It seems to me that “comfortable satisfaction, bearing in mind the seriousness of the alleged misconduct” is a description of the mental process that juries are already taking in rule 69 hearings.
What I have written above is a description of how courts and tribunals approach questions of proof in countries formerly part of the British Empire. I am very interested to hear about how courts approach these questions in the Netherlands and other European countries. After all, you’ve been applying the inquisitorial system since Roman times.
John G
Dick Pound (re: Lance Armstrong) seems to use circular thinking:
ReplyDelete"It’s a matter of having... people on those panels who [can] arrive at the level of proof — to the comfortable satisfaction of the panel — that CAS has adopted as the standard of proof.”
That skips past defining the standard of proof and only asks whether the panel has comfortably arrived at the (undefined) standard of proof.
And your Level 8 convicts even when there is, by definition, a plausible reason to believe otherwise.
What honest panel can comfortably arrive at this conviction?
No. You have redefined honest jurisprudence downward to achieve your goal. We should not stand for that injustice.
Get your proof and make your true case.