PART 5
It is not appropriate for a member of the race committee to be a member of the protest committee when redress under rule 62.1(a) over an alleged improper action or omission of the race committee is being considered1
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When one party is a visitor to an unfamiliar club, but another party is a good acquaintance of one of the protest committee members, that may or may not be a prejudicial interest, but it should be declared to all the visitor to probe, and, if necessary, to object. In RYA 2007/1, at a regional championship, the protest of Miss Elainey Us against Blue Tack was dismissed. The protestor was a visiting boat, and the protestee was a member of the host club. The protest committee that heard the protest included a club member who was a close relative of a competitor sailing in Blue Tack. That fact was not disclosed to Miss Elainey Us’s representative at the hearing. When Miss Elainey Us’s representative then became aware of this, and took the matter up with the protest committee chairman, who conceded that a mistake had been made, apologised and offered a rehearing, which was accepted by Miss Elainey Us.
The organizing authority then revoked this offer, and no new hearing was convened. Miss Elainey Us appealed, and her appeal was upheld. Confirming that a new hearing, and before a new protest committee, was required, the RYA commented as follows.
Rule 63.4 requires that any member of the protest committee with a potential conflict of interest must declare the conflict as soon as he becomes aware of it and that any party to the hearing who believes a member of the protest committee has a conflict of interest must object as soon as possible.
A protest committee member with a conflict of interest must take no part in a hearing unless all the parties, having been informed of the conflict, agree that he may do so, or if the protest committee decides that the conflict is not significant, having taken into consideration the views of the parties, the level of the conflict, the level of the event, the importance to the parties and the overall perception of fairness2.
The correct procedure, as described in Appendix M2.3, is for the protest committee chairman, before the hearing begins, to ask all protest committee members to declare any potential conflict of interest and then to ask each party if they have an objection to any of the protest committee members. If a party objects, the protest committee must then decide whether the conflict is significant. The conflict of interest, the consent or otherwise of the parties, and the protest committee decision on the participation of the conflicted protest committee member must be documented in the written decision of the hearing.
The proceedings of the protest committee were contrary to these requirements, and the original decision was improper, as the protest committee chairman then realised. This is not to cast any aspersion on the integrity of any member of the protest committee.
If a party agrees, as in rule 63.4(b)(1), to continue with a protest committee member that has declared a conflict of interest, or the party does not object promptly when he learns of a potential conflict of interest, the party forfeits the right to appeal on the grounds of that conflict of interest…It is clear that the appellant was unaware of facts that were known to members of the protest committee, and the RYA sees no reason to doubt his statement that ‘if I had been told that there was a connection I would have objected to this person being a member of the panel’.
If a party realises that a member of the protest committee has a conflict of interest, but does not, when asked, object but later appeals on grounds that include conflict of interest, the RYA at least is unlikely to reverse a decision on the grounds of conflict of interest alone. Even when an objection was made at the original hearing and wrongly overruled, the outcome may be the ordering of a proper hearing of the protest by a new disinterested committee unless the appeal can be upheld immediately on other substantive grounds. The abstract of US 22 appears to take a tougher line, in stating without qualification that the participation in the protest committee of a competitor in the same race or series as is the subject of the protest or request for redress makes the hearing invalid. However, examination of the facts of the case indicates that an objection to the composition of the protest committee was made (and presumably overruled) at the original hearing. Nevertheless, the appeal decision was the reinstatement of the disqualified competitor rather than a fresh hearing, even though the facts of the case indicated the prima facie breach of a rule.
1 US 39, Appendix M section M3 2 Personally I would rather appear as a party before a protest committee with rules expertise, even if one or more members have a conflict of interest, than being heard by a disinterested but less capable protest committee
200 RYA The Racing Rules Explained
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