How Does Arbitration Work at J World Annapolis
Protest arbitration provides an intermediate method of protest resolution before the protest is heard by the protest committee. Arbitration gives sailors a chance to take a less severe penalty than disqualification when they realize that they have broken a rule. Arbitration does not solve all protests, but for most situations involving the rules of Part 2 and rule 31, arbitration is seen by competitors to be fast, informal and much less intimidating than attending a protest hearing.
Here is how arbitration works at J World Annapolis.
The sailors tell the arbitrator(s) what happened on the water and the arbitrator(s) makes a decision about which boat, if any, broke a rule.
Here at J World we make this short and sweet handling arbitration by conference call and limiting sailors to two minutes of testimony each. The party that broke a rule may take a reduced penalty which is specified in the Sailing Instructions. If the arbitrator’s decision is accepted, the protestor withdraws the protest and the dispute is resolved without a hearing by the protest committee.
The primary purpose of arbitration is to simplify and speed up the protest process for incidents that do not require the full protest hearing process.
Arbitration can only work if the boat that the arbitrator says broke a rule receives a penalty that is less than the disqualification she may receive in any subsequent protest hearing. The penalty is stated in the sailing instructions and, if accepted by a boat as a result of arbitration, holds the same status under rule 64.1(b) as the penalty she could have taken on the water. The penalty for arbitration should be more severe than any penalty that is available to the boat on the water at the time of the incident, but significantly less severe than a DSQ. In the case of the J World Annapolis Thursday Night Racing series, the penalty is 40% scoring penalty.
Principles of Arbitration
Arbitration is consistent with the 2013-2016 Racing Rules of Sailing. None of the rules in Part 5 (Protests, Redress, Hearings, Misconduct and Appeals) that protect the interests of the competitors are compromised by arbitration. All of the safeguards built into Part 5 Section A (Protests and Redress) and Part 5 Section B (Hearings and Decisions) remain in place. If the decision of the arbitrator is accepted by the protestor, the protest is withdrawn. If not, the protest remains and must be heard under the rules of Part 5 Section B by the protest committee. See rule 63.1 (Requirement for a Hearing). Rule 44.1 is changed to permit a boat that has broken a rule of Part 2 or rule 31 to take a penalty after racing but prior to any protest hearing. Her penalty shall be a scoring penalty as calculated in rule 44.3(c) equal to 40% of the number of entries. Arbitration takes place after a written protest has been lodged, but prior to the protest hearing.
For Thursday Night Racing, the arbitration hearing is held via conference call. Testimony given during arbitration should not be overheard by any potential witnesses of a subsequent protest hearing. Only the arbitration judge(s), the protestor and the protestee are permitted to attend. No witnesses are allowed.
If a competitor believes the case requires a witness, the protest will go to a protest hearing.
Arbitration will only be used for protests where:
- the incident only involves two boats. A protest involving three or more boats is usually too complex for a single or two judges to handle in less than 10 minutes.
- the incident is limited to the rules of Part 2 or rule 31. If it becomes clear that other rules are applicable, or another boat may be involved, the arbitration hearing will be closed and the protest forwarded to the protest committee.
- there was no contact that could have caused serious damage.
An arbitration hearing is not a protest hearing. While the general procedures of hearing a protest are used in arbitration, the arbitrator is not bound by the rules of Part 5 that govern the conduct of a protest hearing. The arbitrator and the competitors should understand that any participant in an arbitration hearing may decide that the protest should be heard by the protest committee. Such a request from a competitor will not be denied. The arbitrator conducts the hearing with the knowledge that the protest may still be heard by the protest committee. The arbitrator will not enter into a discussion on the interpretation of a rule or answers questions about his conclusions until the decision is accepted and the protest withdrawn.
The arbitrator’s main task is to decide the likely outcome of the protest if it went to a protest hearing. That includes validity, which is the first step in the process. This includes the possibility that the protest will be declared invalid.
For example, if the protest form states the flag was displayed 30 seconds after the incident and there were no exceptional grounds, then we will go no further.
Before we start, I will ask, “how did you inform [protestee] of your protest?” and, “did you fly a flag? (if applicable)” or, “did you hail protest?” I will ask the protestee to confirm whether or not they heard the hail and saw the flag.
For a valid protest, I will take each party’s testimony in turn. Protesting boat first, followed by the protested boat. No witnesses are called. In making a decision, I will consider the probability that testimony derived from witnesses or more rigorous questioning of the parties will not substantially change the facts presented to the arbitrator.
At that point, I will decide:
- One or both boats should take a penalty in the incident. This would be because one or both boats broke one or more rules. The arbitrator applies the principles of exoneration to a boat that has been compelled by the other boat to break a rule. If boat A is exonerated, the arbitrator would advise that boat B take a penalty. Refer to rule 64.1(a).
- The protest should be withdrawn. This could be because no boat broke a rule or because the protest is invalid.
- The protest should go to the protest committee. The protest might be too complicated to decide without witnesses or may involve a rule not suited to arbitration.
I will limit my decision to one of these three statements and will provide no explanation of the decision at that time. The entire process should take no longer than 10 to 15 minutes. If that time is exceeded, the issue is too complex for arbitration, and the arbitration hearing will be closed. The protest is then forwarded to the protest committee.
If the arbitrator’s decision is accepted and any appropriate penalties are accepted, I will then ask if the protestor wants to withdraw the protest. For arbitration hearings, the protest committee agrees to give the arbitrator the right to act on the committee’s behalf and approve a request to withdraw a protest under rule 63.1 (Requirement for a Hearing).
Note that there are good reasons but no obligation on the protestor to withdraw the protest. If the protest is not withdrawn, it must be heard by the protest committee. Sometimes a protestor may refuse to withdraw the protest in order that the protestee will be scored DSQ in the protest hearing.
I must explain that if a boat accepts an appropriate penalty, rule 64.1(b) applies. In such a case, the protest committee may penalize the protestor in the subsequent protest hearing, but the boat that took the penalty shall not be penalized further.
Once the protest is withdrawn, I may discuss any aspect of the case with the parties to the hearing. Successful arbitration is often followed with a discussion of a number of possible scenarios, I usually do this with a follow up email to both parties separately to explain how I got where I got.