Wednesday, August 7, 2013

More About Redress

Since my last post on the subject of redress, I’ve received several comments from people I’ve met at regattas, agreeing with me that we should get rid of redress. Maybe there’s more support for this idea than I thought, though of course people who think I’m crazy probably don’t bring it up. If you think we should get rid of redress and be like every other sport in simply accepting unlucky breaks, let people know about it!

In the last post I covered the most common reason for requesting redress – actions or non-actions by race committees, protest committees, organizing authorities, and the like. 

In this post we’ll look at the other reasons a boat might request redress. 
 
Rule 62.1 (b)-(d) says a boat may request redress because of:

     (b) injury or physical damage because of the action of a boat that was breaking a rule
           of   Part 2 or of a vessel not racing that was required to keep clear;

     (c) giving help (except to herself or her crew) in compliance with rule 1.1; or 

     (d) an action of a boat, or a member of her crew, that resulted in a penalty under 
           rule 2 or a penalty or warning under rule 69.2(c).
 
Like the rest of rule 62.1, part (b) seems fair on the face of it; but not so fast. The problem with fairness here is that boats that are fouled in such a way that they lose a huge number of places are not eligible for redress unless there was damage, whereas boats that are damaged in perhaps insignificant ways can claim the damage was what hurt their finishing position, and get redress. Rule 62.1(b) does not require that the damage be substantial, the way rules 44.1(b) (taking a penalty) or 60.3(a) (protest committee hearing a protest that would have otherwise been invalid) do. 
 
On the other hand, rule 62.1 requires that the boat’s score was made significantly worse by the damage itself, not just by the incident. So if boat port-tacks you just after the start and puts a hole in your side and it takes 2 minutes to get the boats apart, can you claim redress for that delay? Reading the rule carefully, I'd say not; but I'll bet most protest committees would say otherwise. If the damage keeps you from sailing on starboard tack until you can duct-tape the hole shut, that’s clearly redressable. 

Rule 62.1(c) and (d) are the most defensible part of the redress rule, but the situations these parts describe are so rare that most sailors can go their entire lives without the events listed in this rule even happening.
 
There's one other thing about redress we need to look at. Some years ago, US Sailing instituted the “Farah Hall” prescriptions, so called because they were pressed upon US Sailing by Farah Hall, who was prevented from being selected to the US Olympic Team because of an incident in the Olympic Trials for the 2008 Games (she subsequently windsurfed her way onto the team for the 2012 Games). One of the Farah Hall prescriptions, to rule 60, deals with redress. It says, 
 
US Sailing prescribes that when redress has been requested or is to be considered, the protest committee shall make a reasonable attempt to notify all boats of the time and place of the hearing and the nature of the request or the grounds for considering redress. Before holding the hearing, the committee shall allow reasonable time for boats to make written requests to participate.
When we first wrote this prescription, I was of two minds about it – on the face of it the prescription seems fair, but it looked as if it could cause huge hassles for the protest committee. Suppose everybody in a big fleet decides to participate? The redress hearing could become unmanageable. But now that the prescription has been around for awhile and is in wide use across the country, I've changed my mind. The general experience I've heard about is that usually almost nobody takes advantage of the opportunity to attend the hearing, and even if lots of people show up for the hearing, a good protest committee can control the process so it doesn’t get out of hand.

The reason I like the prescription is that hearings are essentially adversarial processes, with the protest committee hearing both sides of the argument and deciding the outcome. For example, when there's a protest both the protestor and protestee are parties to the hearing, so both sides of the incident are presented. I can't tell you how many times I've thought the protestor had an open and shut case after she presented her side, only to discover that the protestee's presentation and witnesses cast the entire incident in a different light.

In the case of redress hearings, without the prescription above, usually the only person in the room who stands to gain or lose by the decision is the applicant. It's true that when the redress is brought under rule 62.1(a), the race officer or whoever is claimed to have done an improper act is a party, but nobody really speaks for all those boats that, if the redress is granted, will have lower scores for the event. In the case of requests for redress under rules 61.(b)-(d), there's nobody in the room to say, "Wait a minute.  That kind of damage doesn't really hurt a boat of this type,"  or "I saw them pick up the crew member that had fallen off her boat.  I punched my stopwatch and it was 3-1/2 minutes before she was returned to her original boat, not the 10 minutes claimed by the boat requesting redress."
 
So it makes sense to alert all boats about the redress request and the reasons given in it (usually, by simply posting a copy of the request on the Official Notice Board), so that anybody who may be hurt by the decision can oppose the request. 
 
The only really onerous effect of this prescription is to delay the hearing, and I think that can be taken care of through shorter protest time limits (or maybe a separate, shorter time limit for redress requests) accompanied by electronic communication of the required notice and the requests to be present. 
 
I don't have the same good feeling about the second Farah Hall redress prescription, which is to rule 63.4:

(b) [when practicable] a request for redress based on a protest committee decision shall be heard by a committee that contains no members of the committee that made the original decision.
Personally, I think this prescription is nuts. Basically, it allows a disgruntled loser from a protest hearing to demand a new hearing, and Rule 63.1 requires that once the request if submitted, there has to be a hearing. If there are any judges in the area who weren't on the original protest committee, a new committee must be formed that has no overlapping membership with the old one. And if the request for redress is worded cleverly, the new committee must essentially conduct an entirely new hearing. This gives the loser a “second bite of the apple”, which is distinctly unfair. In my opinion, if the sore loser really believes there were errors or the protest committee simply got the rules wrong, she can appeal. 
 
In cases where new evidence becomes available or the protest committee realizes that they have made a serious error, the loser of the original protest hearing or the protest committee itself can ask that the hearing be reopened so that the new evidence can be heard or the decision can be rethought. In such cases, rule 66 specifies that the panel for the rehearing have a majority of members from the original protest committee – exactly the opposite of the Farah Hall requirement. 
 
Note that the Farah Hall prescriptions can be written out, either individually or in toto, by the sailing instructions. I understand that there are entire areas of the country where it is the custom to do so. But I suggest that before you do this, you should put some careful thought into the value of these prescriptions, not just into the negatives – and I urge you to keep the prescription to rule 60. 
 
Alternatively, you could simply write out redress, altogether. Rule 62 is one of the rules that can be modified by sailing instructions (see rule 86.1). So organizers could simply put the following rule in their sailing instructions:
SI n. Rule 62 is deleted.”
There might be people who love redress hearings and won't come to your event if they don't have an opportunity to file for redress, so you'd better include this change in the Notice of Race, too.


2 comments:

  1. Don't even think of addressing (c) so lightly. Read rule 1 again, and again!

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  2. A very thoughtful analysis of the Redress rule, however, one comment:

    A disgruntled loser from a protest cannot request redress for an alleged improper action of the protest committee under 62.1(a) because the rule specifies "but not by a protest committee decision when the boat was a party to that hearing." I don't see the viability of your comment that the loser could get a second bite at the protest apple.



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