Protest Hearings

This page is  a basic guide for those conducting protest and arbitration hearings.. For more, see Appendix M of the Racing Rules of Sailing (RRS) and US SAILING's Judges' Manual.

It is not about how to win a hearing; that guidance is available elsewhere. 

Goals

The goals of any hearing are to:
  1. Determine an unbiased version of the facts of the incident;
  2. Apply the rules fairly;
  3. Respect sailors' rights; and
  4. Promote understanding of the rules.

It is definitely not a goal to play "gotcha" with the parties.

Terminology

Occasionally, parties will cross-protest each other, so that both are protestors and protestees. Decide which will go first and which second

Types of Hearings

We'll discuss the types of hearings, one less formal than the others:

  1. Arbitration
  2. Full protest hearing
  3. Redress Hearings

Preparation

For all hearings, a member of the protests committee (PC) or arbitrator should come prepared. Bring a rule book, paper and pen or pencil, a clear head and and an objective, friendly attitude. You may also bring US SAILING &/or ISAF appeals cases, for reference in deliberations. 

Protest Hearings

It's fair to say that if the parties to a protest saw the facts and interpreted the rules the same way, a protest committee wouldn't be needed. The dispute would have been settled before it got that far.

The process is much the same whether the protestor is seeking to have another boat penalized or redress for his or her boat. (Below, we'll address how redress hearings differ. )

Measurement Protests

Refer measurement protests to the class concerned. Typically, the sailing instructions will make class rule enforcement the responsibility of the class.

Rights of the Parties

The rights of the sailors are set out in the RRS in Section B of Part 5. The primary rights are:

  1. The right not to be penalized without being a party to a hearing, either a protestor or protestee. {63.1}
    1. There are only a few exceptions -- rules 30.2 (Z flag), 30.3 (Black flag), 67 (Propulsion), 69 (Gross Misconduct), A2 (Throw-outs) and P2 (Propulsion). This gives a sailor the right to defend himself or herself.
  2. The right to have the protest heard according to the rules. {63.1} 
  3. The right to be notified of the time and place of a hearing for which the sailor is a party and given time to prepare. {63.2}
  4. The right to be present while evidence is being heard. {63.3 (a)}
    1. This is a right to be present, but it does not bar the committee from hearing evidence if the party chooses to be absent. {63.3 (b)}
    2. This is also not a right to be present for the committee's deliberations.
  5. The right to have the protest or request for redress decided by a committee which does not include interested parties {63.4}

What/who is a party?

The definitions section of the RRS, as amended 1/20/2010, tells us that the term means a party to a hearing and includes:

Therefore, only those listed above may be penalized or enjoy the rights specified.

Here is the process:

  1. Introduction and Acceptance

    1. Introduce the members of the protest committee (There may be any number, from one to several.)
    2. Ask the parties if they have any objection to any member of the committee.
      • If there is an objection by either party, the member should recuse himself or herself from participating.
      • If any member of the PC has an interest in the outcome or a conflict of interest, he or she should recuse himself or herself.
    3. Ask the protestee if he or she has read the protest and had time to prepare.
      • If not, hand a copy to the protestee, allow time to read. If a notice of the protest was not posted, you may need to allow protestee time to prepare.
      • If copying facilities are not handy, it may be necessary to use only the original.

  2. Validity

    Is this a valid protest? Criteria:
    1. Is it in writing?
          Any piece of paper will do; it needn't be an official protest form.
    2. Was it filed on time? If not, is there good reason to extend the time?
          This implies the race organizers have designated a process for receiving and handling protests.
    3. Does it identify the incident as to time and place, protestor and protestee, a rule believed to be broken and the protestor's representative?
          Requirements for a valid protest are minimal and the cited rule may be other than the PC applies..
    4. Were requirements for notifying the protestee & the race committee met on the water?
      • Did the protestor hail "protest"? When? If heard, the fact of a hail is established.
      • If boat size requires it, was a flag flown? When? Did it stay flying through the race?
      • If the SIs require other notifications, were they met?
    Any other information is irrelevant at this stage, wastes time and inflames passions. Get the validity information, then excuse the parties while the committee deliberates.
    Outcomes:
    1. If the committee determines the protest is not valid;  the hearing will terminate without further testimony.
    2. If the committee finds the protest valid,  continue to the next step.
    3. Call the parties back and announce the validity decision and whether the hearing will continue.

  3. Opening Statements

    The rules do not require a specific process for taking evidence, but each party should be given the opportunity to state his or her case. The committee's focus is on what facts each party is alleging; parties' rule interpretations are less relevant.
    1. Hear the protestor's statement and let him or her demonstrate visually; do not allow protestee statements at this time.
      After the protestor's statement is finished, let the protestee ask questions of the protestor.
    2. Hear the protestee's statement and let him or her demonstrate visually; do not allow protestor statements at this time..
      After the protestee's statement is finished, let the protestor ask questions of the protestee.
    3. After the protestor and protestee have made their statements and questioned each other, the committee may ask questions of the protestor and protestee.

  4. Witnesses

    Let each party call witnesses. No witness should be allowed to see or hear any part of the proceedings other than during his or her own testimony. Limit the witnesses to those that can contribute new information to help resolve the facts in question; more witnesses do not necessarily produce a better decision.
    1. Witness makes statement.
    2. Party calling witness may ask questions.
    3. Other party or parties may ask questions. Do not allow arguing with the witness.
    4. Committee may ask questions of the witness.

  5. Summary Statements

    Allow each party in turn to sum up without interruption. First, the protestor, then the protestee.

  6. Committee Deliberations

    Excuse the parties while the committee deliberates. Summary:
    1. Determine facts found
    2. Determine which rules apply
    3. Determine which -- if any -- rules were broken and by whom
    4. Determine if a breach of a rule was compelled by another boat's breaking of a rule.
    5. Determine who is to be penalized, for what rule and .
    6. Write down the decision.

  7. Announcement

    1. Call the parties back and tell them your decision. They have the right to copies of your written decision.
    2. Give a copy of the decision to the scorer, so it can be reflected in the scores.

Deliberations

The committee should conduct its deliberations methodically. This is the recommended process.

  1. Facts to be found:

    The first and most important order of business is to determine the facts, which may or may not be the same as alleged by the parties and their witnesses. Typical facts:
    1. Date and time (e.g., "first race") of incident
    2. Wind and water conditions;
    3. Place on course, positions with respect to starting or finish lines, marks &/or obstacles;
    4. Relative positions of boats, courses (e.g., tacks) and speeds;
    5. The sequence of events. What happened first? Second? Etc.?
    6. Did any boat take a penalty on the water?
    7. Did contact occur? Did it cause serious damage or injury?
    8. Did a boat gain a significant advantage?
    9. Make a diagram of the facts or use one submitted by a party, if found to be accurate.
    10. Do not include any rules or interpretations at this stage. To the extent that you simply state the facts as you find them, they may not be appealed. If, however, you include rule interpretations in your "facts", that is appealable.
    11. Write down all facts as found.
          (Hint: You may limit the facts found to those relevant to the situation.)

  2. Determine which rules applied during the entire sequence;

        (Hint: There is usually more than one and different rules may apply at different times.)

  3. Derive conclusions

    1. What rules applied to each boat and when?
    2.  Who broke which rule or rules?
    3. Was breaking of a rule compelled by another boat breaking a rule?
          (Example: "PW & PM are exonerated; PW by the actions of PM and PM by the actions of PL.")
      • If so, and if that boat is not a party to the hearing, a separate hearing, with the committee protesting that boat, may need to be convened, with the PC protesting.
      • A competitor may not be penalized without being a party to a hearing. {Rule 63.1} The PC may not penalize a boat participating only as a witness! A witness does not have the same rights in a hearing as a party.
    4. Was there serious damage, injury or significant advantage? (Hint: Requires immediate retirement, lesser penalties are not sufficient.)

  4. Make decisions:

    1. Who broke which rules?
    2. Who is exonerated?
    3. Who is penalized?

  5. Write it down;

    Use extra sheets if needed.

Appeal

Each party -- most likely, one penalized or whose protest is not upheld -- has the right to appeal the decision within 15 days of receiving the written copy. The appeal may challenge the rules applied and the committee's interpretation of the rules. The appeal may not challenge the facts found, except their sufficiency to establish the decision..

Protest committee's view of appeals

The appeals committee may make any of these decisions:
  1. Uphold the PC decision;
  2. Determine the PC misapplied or misinterpreted the rules, reach different conclusions and direct the race to be re-scored;
  3. Determine the PC found insufficient facts and direct the protest to be re-heard; or 
  4. Determine that the PC misapplied the rules, did not find sufficient facts for the rules which did apply and direct the protest to be re-heard.

The latter three are an embarrassment and a hassle. They are avoidable with good protest procedures.

Arbitration

Often sailing instructions will give competitors with disputes an opportunity to resolve the matter less formally and with lesser penalties than in a full protest hearing. We call this "arbitration" and it has these characteristics:

With more than two parties, arbitration may not be feasible.

Sample Sailing Instruction

For arbitration to be available (or required) sailing instructions must say so. Below is sample language to be included in the "Protests" section.

  1. For each protest involving rules of Part 2 of the RRS, arbitration will be offered to the parties, unless the arbitrator deems the protest inappropriate for arbitration. This modifies Part 5, Section B of the rules. One representative of each party, who was on board at the time of the incident, will meet with the arbitrator. No witnesses will be permitted. After taking testimony from each representative, the arbitrator will render one of the following opinions:
    1. The protest is invalid or no boat broke a rule. If the protestor agrees, the arbitrator will allow the protest to be withdrawn and it shall not be reopened or appealed. If the protestor disagrees, the protest committee will schedule a protest hearing.
       
    2. One or both boats broke a rule. The boat or boats breaking a rule may accept an Arbitration Penalty and the protest may be withdrawn. If the penalty is accepted the matter is closed and cannot be resubmitted to a hearing, reopened, appealed or submitted for redress. If not accepted, the protest committee will schedule a protest hearing.
       
    3. The arbitrator decides a protest hearing is required. The protest committee will schedule a protest hearing.
  2. The Arbitration Penalty shall be 40%, applied in accordance with rule 44.3(c).
  3. Rule 63.1 is changed by adding, “The arbitrator may allow a protest to be withdrawn without the approval of the protest committee.”
  4. An arbitration hearing shall be limited to 15 minutes. If at the end of that time there is no resolution in a manner set out in Sailing Instruction item 1 above, the arbitrator shall refer the matter to the protest committee for a hearing.

Arbitration Procedure

The procedure is much like that of a full hearing, but abbreviated in time and informal in nature. As an arbitrator, you are on a short clock; you must be aware of time and efficient in moving the process. The steps are:

  1. Acceptance of Arbitration

    Introduce yourself and ask both parties if they accept arbitration and you as arbitrator.
    1. If both agree, proceed to the next step.
    2. If either declines, terminate the hearing and refer the protest to the protest committee.
    3. Ask the protestee if he has read the protest; if not let him do so before continuing.
       

  2. Validity

    Is this a valid protest?
    1. In writing? Was it filed in time?
    2. IDs incident by time & place, protestor & protestee, a rule and protestor's representative?
    3. Did the protestor hail "protest"; when; was it heard?
    4. If boat size requires it, was a flag flown? When?
    5. If the SIs require other notifications, were they met?
    All other information is irrelevant at this time and merely inflames passions. Outcomes:
    1. If the arbitrator determines the protest is not valid; he or she should say so and terminate the hearing. The protestor retains the right to either withdraw the protest or go to a full hearing.
    2. If the arbitrator finds the protest valid, he or she should say so and continue to the next step.

  3. Testimony

    Begin hearing the "merits of the cases"; take notes.
    1. Hear the protestor's statement and let him or her demonstrate visually.
      1. Let the protestee ask questions of the protestor; do not allow protestee statements at this time.
    2. Hear the protestee's statement and let him or her demonstrate visually.
      1. Let the protestor ask questions of the protestee; do not allow protestor statements at this time.
    3. The arbitrator may ask questions of the protestor and protestee.

  4. Summary Arguments

    Let the parties summarize their cases. Do not allow interruptions of or by either party.
    1. First, the protestor
    2. Then, the protestee.

  5. Deliberate

    Because the arbitrator needn't talk to others, there's no need to excuse the parties if they don't interrupt.
    1. Review your notes.
    2. Determine the facts.
    3. Determine which rules applied to whom and when.
    4. Determine if either boat broke a rule.
    5. Determine which, if either, should be penalized.  

  6. Announce Arbitrator Findings

    By this time, the arbitrator should have a clear picture of the incident, of the rules that apply:
    1. State which rules apply, which -- if any -- were broken and by whom.
    2. State your conclusion as to how a protest committee is likely to find. (See note below.)

  7. Parties' Decision

    Success or failure of the arbitration hinges on the parties' decisions here. The arbitrator's statement may lead one party to conclude he or she is unlikely to prevail in a full hearing and would be either spending more effort futilely &/or suffering a greater penalty.
    1. If this is the protestor, he or she has the option to withdraw the protest or go to a full hearing.
      1. It may the protestor who has broken a rule. He or she has the option to accept a penalty.
    2. If this is the protestee, he or she has the option to accept a scoring penalty or go to a full hearing.
    3. If both parties broke a rule, they may each accept a penalty to end the matter.

  8. Pass on the Results

    Let the protest committee know the results of arbitration: 
    1. That the protest is withdrawn. Note it on the form.
    2. That a competitor or both has accepted a penalty. Note which on the form.
    3. That arbitration did not resolve the matter and the committee will have to hear it.
    Give the form to the secretary or chair of the protest committee.

  9. Say no more

    Do not discuss the matter with competitors or PC members until it has been completely resolved. Do not testify as a witness or participate in any further proceedings.

An arbitration decision, once accepted by the parties, can not be appealed nor used for redress.

Note: Saying how a PC is likely to find is more a mediation technique than arbitration. However, it allows the arbitrator to discuss facts which may not be completely ascertained by the testimony. For example, you may turn to one party and say "For the protest committee to decide in your favor they will have to find ...", then turn to the other party and describe the facts needed to be found from his or her point of view.

Redress

Redress hearings are for restoring fairness to an otherwise unfair result. In some cases, the unfairness may be no one's fault. A hearing for redress is conducted like a protest hearing and sailors have the same rights.

Conditions for Redress

Rule 62 requires that a request for redress be based on a claim or possibility that a boat's score has been

  1. made significantly worse
  2. through no fault of her own
  3. by one of the following:
    1. Improper action of a race committee or the organizing authority;
    2. Injury or physical damage through the action of a boat breaking a rule of Part 2 or a non-racing vessel failing to keep clear if required; (Note: A non-racing vessel is not always required to keep clear.)
    3. Giving help in compliance with rule 1.1 (except to herself or her crew); or
    4. A boat against which a penalty has been imposed or disciplinary action taken under 69.1.

Hearing Differences

There is only one party, the boat requesting redress. (Or, there may be multiple boats asking for redress.) There is no protestee, or (usually) penalty or exoneration. The race committee may appear  seeking redress for a boat or as witness, but can not be penalized, exonerated or given redress.

The committee is required {rule 64.2} to consider the affect on "all boats affected" and to make as fair arrangements as possible.

When in doubt about the facts or probable affects of a redress arrangement, the PC "shall take evidence from appropriate sources." This could mean calling other boats as witnesses (or expanding the hearing to include other boats) and taking evidence as to the effect of any arrangement it may be considering.

The PC is allowed to ask the parties what type of redress they are seeking. The answer may help in deliberations. If the redress would adversely affect other boats, the PC should invite them to give their perspectives.

Deliberation Differences

Deliberations will focus on the requirements of rules 62 and 64.2.

Facts Needed

Three facts the committee must find in order to grant redress are that:

  1. The boat's score has been made significantly worse;
  2. It was through no fault of her own and
  3. The boat's score was made worse by one or more of the four "claims or possibilities" listed in rule 62.

If the committee finds only one or two of the above facts, it may not grant redress. If the committee finds all three facts, it must grant redress. However, the redress may be to let the scores stand. (Source.)

Other facts to be found involve the fair arrangement to be made, the type of redress to be granted. 

"Significantly worse"?

We might agree that the difference between 1st and 30th is significant and that a difference between a trophy and no trophy is also significant. Also, that the difference between next-to-last and last is not especially significant. What about 3rd versus 4th in an 8-boat fleet? It is up to the PC to find the meaning of "significantly worse" in each instance.

No fault of her own

"No fault" means none whatsoever; partial fault (even a little) excludes redress. Examples:

Fair Arrangement

Rule 64.2 recognizes that all boats deserve fairness, not just the boat asking for it. Possible arrangements (See also A10.) include, but are not limited to:

The committee may also consider other arrangements. For example, a boat scored OCS may be reinstated to to her actual finishing time or place.

Race Committee Errors

Some race committee errors may be easily amenable to a fair arrangement; others, not so much. Examples:

  1. The RC scored a boat OCS and the PC found the boat started properly
  2. The PC finds that rule 26 was in effect and the RC lowered the class flag one minute late according to the rule; 29 of 30 boats started (less than one minute) before the flag was lowered and were scored OCS; one boat started after the flag was lowered and was scored 1st.
  3. The PC finds that a mark of the course sank (was not replaced) or was out of position after a few boats, but not the majority of the fleet, had rounded it.

Boats that make an error (e.g., sailing the wrong course) because of RC errors should not receive better scores than those who did not make the error.

Redress & Scoring

It's fair to say that boats ask for redress in order to change their scores. Therefore, redress granted can not ignore its scoring impact. The PC decision should state whether other boat's scores are to be affected and, if so, how. 

Redress given does not necessarily change the scores of other boats. It is possible that redress may result in two or more boats with identical scores.