PART 5
Rule 2, Fair Sailing is not available for dealing with bad behaviour by a support person. The choice is between rule 69 and rule 64.4. As has been seen under that rule, action under rule 64.4 is limited to a breach of a specific rule, and it cannot be used for misconduct alone, since misconduct can be addressed only under rule 69. On the other hand, rule 64.4 may be simpler to apply, as it does not have the enhanced processes of rule 69. However, when rule 69.2 is used against a support person and an act of misconduct is established, rule 69.2(i) says that rule 64.4 is to be used to choose and apply the sanction(s) to the support person.
RYA guidance points out that the full panoply of a rule 69.2 action may not be necessary for alleged minor misconduct, especially if the outcome is never likely to be more severe than a formal warning. A simple informal interview with the miscreant may be sufficient. However, when rule 69 is applied, this must be done very carefully.
• Only a protest committee can call a hearing under rule 69. If a race committee or organizing authority wants an action under rule 69.2 to be considered, and there is no preappointed protest committee to consider the matter, the first job is to appoint a protest committee for the purpose and send it a report and request for action, with which the protest committee may or may not agree. The protest committee now has the option under rule 69.2(c) and (d) of commissioning an investigation before deciding whether to call a hearing.
• Rule 69.2 is not a vehicle for penalizing a boat or a competitor as a direct outcome of a protest hearing. Nor can a normal protest hearing seamlessly become a rule 69.1 hearing. If facts or allegations justifying a rule 69.2 hearing emerge during the hearing of a ‘normal’ protest or a request for redress, the protest committee must act in the same way as starting a hearing after receiving a report, namely to decide that a hearing is needed, and to inform the competitor in writing of the alleged misconduct and of the time and place of the hearing, giving the competitor time to prepare.
• If the allegation made as part of a ‘normal’ protest involving breaking a race rule, the protest should be heard first, arising from which the boat may be disqualified, possibly non-excludibly (DNE) also under rule 2. This will generate facts that will accelerate any subsequent rule 69.2 hearing.
• The written allegation must be specific, not general. If bad language is alleged, the words alleged to have been used should be quoted, distasteful as that might be. If bad behaviour is alleged, it must be described in as much detail as is known or asserted. The written allegation must also say specifically which element(s) of rule 69.1(b) is alleged to apply.
• The question sometimes has to be asked whether what is alleged is sufficiently closely associated with the event to come within the scope of a rule 69.2 hearing. There is no issue when misbehaviour occurs during a race, or at a regatta site during an event. The further in distance from the club or regatta site and the further in time before or after the event, the less likely this will be. If a complaint has been received from neighbours or from officialdom, the fact that the complainant associates the person complained of with the event tends to answer that question. In practice, the complainant is usually unable to identify the miscreant by name, and there may be a group of competitors, generally but not individually identifiable as being associated with an event, who have been making a nuisance of themselves. The protest committee may need to investigate further before a hearing is called to try to find who may have been involved, and it might have to initiate a hearing against a considerable number of competitors in order to discover more exactly during the hearing who was, and who was not, involved.
• If there is no suitable club member to chair the protest committee, or if perception of the independence of the process will be helped by having an outside person to chair the hearing, the national authority may be able to recommend a suitable judge.
• The protest committee must have at least three members1 .
• If the alleged incident occurred during a regatta, it is important for the hearing to take place as soon as possible during the regatta.
• If the alleged incident occurred in connection with normal club racing, it may take some juggling of diaries to get all concerned to hearing as soon as conveniently possible for those who need to be present.
• It is appropriate for the competitor to be legally represented in serious cases. • There is no explicit time limit on the calling of a rule 69.2 hearing. The circumstances justifying a hearing may not emerge for some time after the end of an event, for instance when information emerges about a possible deliberate infringement of class rules. In this case, a new protest committee will almost certainly have to be set up to decide whether the allegation warrants a hearing, and it might be appropriate for it to consider whether there has been any undue delay in the information being made available: if that has been unjustifiably delayed, that might be a reason for a protest committee to exercise its discretion and not call a hearing2
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1 It is unhelpful that something that is absolutely NOT a protest is to be heard by a ‘protest’ committee. 2
Q&A 2017.003 is to the same effect. 224 RYA The Racing Rules Explained
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