Protest!.. What's the big deal? or A Case for Arbitration

by Andrew Campbell on 15 Jan 2009
In the game of basketball, players commit fouls all the time. Even in a non-contact sport, infractions are going to happen. It would be ridiculous to throw a basketball player out of the game in the first quarter as soon as he committed one minor foul. Then why in sailing is it reasonable to penalize a boat with a DSQ for a penalty that happened in the pre-start of a race? What if that incident happened and the other boat didn't want to have to throw that boat out, should the incident be simply overlooked?

If we were talking about basketball the play would not be overlooked. Play would be whistled dead, the player would be singled out, the reason for the call would be briefly explained, the player would have a foul added to his five-foul limit and play would resume.

Last week we saw a letter posted in Scuttlebutt from a senior judge obviously bothered by the recent protest activities in the Volvo Ocean Race:

'Ted Beier, Senior Judge: (re, Volvo Ocean Race story in #2755) Shame on the jury for allowing Telefonica Blue to withdraw their protest for reasons of scores. If Blue felt that a foul had been committed at the time she should go through with the protest regardless of other considerations. That's how the game is supposed to be played. Using a protest or not following through with a protest as a strategic tool for score considerations is NOT how the game should be played. '

While I agree with Mr Beier's assessment that if there was a rule broken, then a penalty should be imposed, I think this is a great example of a problem in the sport of sailing. The discrepancy between taking a penalty turn on the water and the DSQ penalty is too large for the culture of the sport to properly police itself. The stigma of having to take another team into a protest is simply too aggressive for most sailors to follow through, relative the foul that may have occurred. So the foul goes unresolved.

The sport of sailing inherently entails a lot of give and take between sailors both on and off the water. Sailing advertises itself as a 'self-policing sport,' for the most part. That said, match racing, team racing, medal races, and most dinghy fleet races all have some form of on-the-water umpires or judges on the water for their top and mid-level events.

It has been a great equalizer in the game as on the water judging has become more common for the policing of rule 42 especially, but for cutting down on the level of protests at team race and match race events as well. The legendary stories of team race events being decided after midnight in a dimly lit room are so easily avoided now with merely the presence of an umpire on the water to prevent frivolous fouls, or make a cut and dry call that would previously have taken a ten minute hearing to sort out.

While things are improving, the vast majority of boatracing still falls under the self-policing mentality even when there is jury on the water. The biggest issue holding sailing back from a viable self-policing atmosphere is the gap between taking a 720 and risking going to the room. The stigma around sitting in a protest room lingers from those hearings that lasted until midnight in the days of yore. People are nervous in the protest room. You go into a room with a panel of judges to talk about time and distances that happened hours earlier. If you were on trial for a felony you would only have one judge to deal with, but if you lightly brush your spinnaker against a leeward boat, you have to face a panel of three!

Often fouls go unresolved such as in the recent situation with Telefonica in the VOR. Incidents happen on the water where two boats disagree on whether or not there has been a foul. They take place all the time. But, if the incident wasn't egregious, then there are two courses of action, two boats will opt to blow it off and say 'You owe me one.' The stigma of going into a hearing is such that people would just as soon avoid it. The worst part of the cultural structure often evident in sailing is that the social capital used up by taking somebody to the protest room is more important to most people than avoiding the protest room altogether and vowing to never let it happen again.

Not to make a judgment about people in the sport… I know for a fact that sailors are good people, but I'm with Ted Beier when he is irritated by Telefonica backing out of a protest when an obvious foul occurs. If you know a foul occurs, it is your responsibility to protest.

If you are not comfortable with protesting… then we need to change the system so that the protest hearing has less of a stigma surrounding it.

The system of arbitration is the direction in which the protest hearing should evolve. Collegiate team racing had a 'three-minute justice' protest system for a while that cleaned up lengthy hearings. Arbitration can do the same thing. What usually happens in arbitration is the two parties get together with a member of the jury not on the potential protest committee. Each party gives a quick story about what they thought happened and then the jury member gives his opinion about who he thinks is likely to be thrown out and take a DSQ if the parties went to a protest hearing.

If the losing party understands the judge's quick response, then he can take an arbitration penalty which is usually 20%, or something far less than a DSQ (100% penalty). In most arbitration systems the protesting party can still take it to a protest and file for full DSQ or risk being thrown out themselves. Sometime the protest room is necessary to clean up cases of damage or when there are multiple boats involved, but often times they take too much time and are too formal for the minor nature of many incidents in the rules. How is it that somebody taking too much room at a mark can earn the same penalty as two boats crashing into each other port v starboard?

By taking capital punishment off the table, on the water fouls are more likely to be resolved in a matter where a) sailors learn the rules through discourse with a member of the jury and b) penalties are given out when fouls occur.

Lying in the protest room stops. Procedural hang-ups for egregious fouls stop. Intimidation in the boatpark aimed to prevent people from filing protests stop. Avoiding the protest room stops. The stigma ends. I would argue that if there were an arbitration system in every regatta this year, there would be more protests and more penalties given out at first, but would lead to an improved quality of sailing in the long-term.

As it stands the number of infractions that occur far outnumber the number of protests filed. There are entire days at the Laser World Championships I've raced in where 150 boats sailed 15 mark roundings, two thirds of the fleet getting there in a minute or less and not a single protest got filed. It is absurd to think that every incident gets resolved properly, but the stigma of the current protest system remains.

Arbitration could get us away from that cultural faux pas that is the protest room. Have a discussion with your planning committee next time you're going to host a regatta. Ask yourselves whether arbitration is a better option. To learn more: ISAF's Guidelines for Arbitration http://www.sailing.ca/files/racing/regatta_organization/ISAFArbitrationProcedure.pdf