Volvo Ocean Race: Skipper in the hole for $40,000 legal costs
by Richard Gladwell 22 Mar 2018 17:03 PDT
23 March 2018
David Witt (SHK Scallywag) Volvo Ocean Race Media Conference Leg 7, Auckland © Richard Gladwell / Photosport
Volvo Ocean Race entry SHK Scallywag skipper David Witt is still seething over a dismissed a Misconduct complaint that he says cost him US$40,000 in barrister's and legal fees to defend.
The saga had its beginnings on November 9 while the Hong Kong-flagged Volvo 65 was racing from Lisbon to Cape Town on Leg 2 of the 45,000nm Volvo Ocean Race.
The complaint came from a fan who emailed both Jury Chairman, Chris Atkins (GBR) and World Sailing, making the allegation that four crew members of SHK Scallywag, including the female "victim", had shot and posted a video recording which had "caused widespread offence worldwide".
The claim triggered a new process under the Racing Rules of Sailing, for Misconduct during a major event.
The World Sailing appointed investigator investigated the complaint and elected to pass the matter to the International Jury.
David Witt along with navigator Steve Hayles was charged under a new provision in Racing Rule 69 Misconduct and amplified under World Sailing's Regulation 35. These rules apply to Major Events which include the Volvo Ocean Race.
If a Misconduct complaint is received relating to a Major Event, then an independent investigator must be appointed.
The investigator, known as an Event Disciplinary Investigating Officer (EDIO) has three options after concluding his/her investigation:
• Can take no further action
• Issue a warning only
• Charge the Participant with Misconduct.
In the Scallywag crew complaint the EDIO opted for the third option. The reasons for this decision by the EDIO were not referenced in the Jury Decision, in fact Witt and Hayles were exonerated.
America's Cup suspensions force changes
The new Misconduct rules have their genesis in the 34th America’s Cup in San Francisco.
Under the rules that applied for the regatta, the International Jury had to conduct their own investigation into measurement irregularities involving one-design AC45 catamarans. The Jury members took evidence from investigating Jury members, heard the case and made a decision. Four sailors and support crew were suspended for varying periods by the International Jury.
One of the suspended sailors, wingsail trimmer and professional Dirk de Ridder (NED), took the matter to the Court for Arbitration in Sport. His suspension was reduced from three years to 18months by CAS.
CAS recommended several changes after the de Ridder case, one of which was to separate the investigation function from the judicial function. World Sailing amended its regulations to provide for the appointment of the independent investigator (EDIO). Once his/her investigation was concluded, a decision is made on one of the three options – no action, a warning or prosecute. If the latter, then the EDIO passes his/her findings/report to the International Jury for a Hearing.
The way the rules and regulations are prescribed, the Misconduct process must be initiated and the EDIO involved.
Fan triggers complaint
The case with Witt and Hayles was one of the first under the new procedure. It is understood the EDIO was appointed by the World Sailing Judicial Board before the start of the Race. That makes for a more efficient process enabling quick referral possible. Misconduct complaints also referred to the EDIO within 48hours of the incident, unless a time extension is allowed by the EDIO.
The aggrieved fan's complaint arose from a video created onboard SHK Scallywag which was a take-off from the comedy "Good Morning Vietnam", starring Robin Williams as a radio DJ in Saigon during the Vietnam War.
Witt, Hayles and crew members Annemieke Bes and Tom Clout were involved in the production which was shot a few hours after first light during Leg 2 from Lisbon to Cape Town. Conditions were overcast and gloomy with the crew dressed in full wet weather gear, with some costume pieces.
The clip opens with Witt welcoming everyone to the "Steve Hayles Breakfast Show" and warns that most will be offended by its content.
He introduces the six crew on deck – Alex Gough and Tom Clout.
John Fisher is wearing a brown stained Silence of the Lambs mask – maybe a relic of the Equator crossings and was introduced by Witt as "our raging psychopathic safety officer".
Last to be introduced is, "Dr Clogs from the northern beaches of Amsterdam".
In the clip, Witt says one of their viewers has written in with a question and hands over to Hayles who is on the helm.
“Our skipper, David has a rash on his scrotum and they would like to know how these two (pointing to Gough and Clout) are meant to apply the Sudocrem?” Hayles asks.
(Sudocrem is a well-known ointment for nappy rash and tender skin which can afflict offshore sailors in a condition known as “gunnel bum” - caused by extended periods of wearing damp wet weather gear for extended periods.)
Although she speaks excellent English, a nonplussed Annemieke Bes appears not to understand what Witt was talking about, and then turns towards the camera trying unsuccessfully to contain her laughter.
David Witt then makes the comment that Dr Clogs can't speak so he will interpret her "handsignals.” The camera then cuts away from Dr Clogs and Witt makes a motion of dipping his hand into a container of ointment and off camera appears to rub the ointment into Hayles’ crotch.
At that point the 90second long video ends with Witt saying they “will be back after the break with more thrills and spills from the Steve Hayles Breakfast Show”.
Not the first Steve Hayles Show
The idea apparently came from a similar skit in the first leg, when race veteran Steve Hayles spoke on camera with a first-time competitor, Ben Piggott about "the things I wish I'd known about 25 years ago" - one of which was the use of Sudocrem for skin chafe.
One point apparently missed by the fan viewing the incident and those involved initiating the judicial process, was that Bes was wearing a beard.
To a reasonable observer that would indicate that she was knowingly in on the comedic spoof.
The only other possible and ridiculous inferences being that Annemieke Bes routinely put on a beard along with her wet weather gear, before going on deck for her watch. And that Fisher also routinely wore a Hannibal Lecter mask.
"What is bulls**t about the rule is that someone sitting on the other side of the world on Facebook can look at the video and say "I don't like this. Or I don't like him or her or whatever, and lodges a complaint," says Witt almost four months after the incident.
"I’m US$40,000 in the hole to defend a dismissed claim," he added.
" The Jury found that the video was not offensive at all and that the sailors weren't responsible because we don't control the content which is edited by others and is published by Volvo," Witt explains. "Even if the video did bring the sport into disrepute, we couldn't have been prosecuted, because it is edited and published by others."
The point being that responsibility lies with the producers and not the actors.
"When I got off the boat and looked at the video I could see how people could twist it, and say "that's a bit awkward". However, I also didn't remember it being shot like that", Witt continued.
"The rule (RRS69) used to be called Gross Misconduct, but it has now been re-written and is now called Misconduct. This charge still carries the stigma that I am sexually harassing a crew member. Guilty or innocent - I always lose," he said. “The whole thing is so twisted around, it is crazy.”
As a professional sailor, skippering one of four professional supermaxi campaigns in the world, Witt would have been well aware of the very serious consequences of an adverse finding by the International Jury in a Rule 69 Hearing.
Witt forced to lawyer up
In the 2013 America’s Cup, Dirk de Ridder then a 41yr old Dutch professional sailor and wingsail trimmer with Oracle Team USA, was found to have infringed RRS69 Gross Misconduct and was excluded from further racing in the 34th America's Cup. The incident related to the America’s Cup World Series sailed in one design AC45 catamarans and not part of the America’s Cup Regatta in San Francisco, although both events were covered by the same International Jury.
That exclusion cost de Ridder a second America's Cup winners medal. He was also given a five-year suspension from the sport by World Sailing (later found to be excessive and reduced to 18months by the Court for Arbitration in Sport). The suspension was reported as having also cost de Ridder a lucrative US$500,000 contract to sail aboard Abu Dhabi winner of the 2014/15 Volvo Ocean Race. All told the suspensions cost de Ridder wins in two of sailing's most prestigious events
"So I engaged a barrister in Cape Town," said Witt explaining his prudent reaction to the most serious charge in the sport.
"She [the barrister] asked if the video had been edited. When we reviewed the raw footage, Besie was laughing her head off - but that had all been cut out.
"It was a very stressful time", Witt recalled. "I was really copping s**t, and then the case gets dismissed, and everyone just shrugs their shoulders and walks away.”
"No-one was even interested in the Facts Found".
(To date the full Facts Found and Decision have not been published by Volvo Ocean Race save for a report that can be viewed here).
"That's what's wrong", said Witt. "Now I've had to spend $US40,000 to defend a dismissed claim, and there's nothing to say it can't happen again."
"It's one thing for a report to go in, but someone in World Sailing needs to have the courage to say "that's crap" and for the matter to be stopped there and then and proceed no further."
Complaint filed by fan
Under the current and previous edition of the Racing Rules, an International Jury can receive a report on an incident "from any source" - opening the door for social media fans and others outside the event to make a complaint which will trigger the Rule 69 procedure.
In a major event, such a complaint requires the appointment of an EDIO to investigate, who Witt says for the Volvo OR was John Doerr - a rules veteran, and coincidentally he was also a member of the 2013 America's Cup International Jury.
It is not clear when the complaint was made - but under the Racing Rules had to be referred to the EDIO within two days of receipt.
“At no stage did John Doerr talk to any of us. How could he, we were at sea on Leg 2? We were charged with a Rule 69 breach before we had even finished the leg to Cape Town”, Witt says.
“We were interviewed at the Hearing itself, but not in the Investigation phase. We were charged without being interviewed", he adds, emphasising the point.
The Scallywag support team elected not to tell the sailing crew of the RRS69 complaint while they were at sea, as they were racing and only found out the Misconduct charge was proceeding three days before SHK Scallywag arrived.
"We got on board and told them just after they crossed the line 68 seconds in front of the next boat," said Shore Team manager Tim Newton.
The fact there was going to be a RRS69 Hearing in Cape Town against Witt and Hayles was leaked by some sailing websites some 10 days after SHK Scallywag finished.
"As shore team, we had no requests for information nor were we asked to send any questions to the boat," Newton said.
The Jury Decision notes: "The EDIO was not present at the hearing; he presented his evidence in writing." (John Doerr was also the Chairman of the International Jury for the Kings Cup Regatta in Phuket which ran from December 2-9, 2017 overlapping with the Cape Town stopover.)
The Jury also noted that: “none of crew-members David Witt, Steve Hayles, Annemieke Bes or Tom Clout, who appeared in the video and who were interviewed by the Jury, believed that the content of the video would be offensive, nor did they feel embarrassed or offended by taking part. In contrast, they found it humorous. “
The Hearing was held on in Cape Town on December 7 - three days before the start of Leg 4 to Melbourne.
Witt is clearly irritated that following the investigation by the EDIO that the Hearing proceeded, and that the EDIO did not elect to take no further action, or just issue a warning.
Had one of those options been exercised then the complaint could possibly have been kept out of the media. Witt would not have had to gear up a legal team and then go through a Hearing on the most serious charge in sailing – and just three days before the start of a Southern Ocean leg.
A barrister's tale
Witt’s frustrations were echoed in comments made by his South African barrister in her summary address to the International Jury.
"The barrister said 'I can't believe I'm sitting here. This is the most ludicrous thing I have ever seen. If this were in real-life, it wouldn't even get to the Police Station let alone to the Court and for me to get the job of having to defend it.'
"Let me just try and live in your world for a minute. When I got appointed to the case, I went home and said "I've got involved in the Volvo Ocean Race. I've got to defend the Scallywag skipper on a charge. My husband said, "what did he do?"
"She said: "I don't know let's look at the video". And her family watched it.
"My eight-year-old son said, the masts were funny, and everything else was boring."
"My husband said, "I hope they can sail because they are lousy actors."
"My sixteen-year-old daughter said it was the funniest thing she had ever seen."
"And my 19-year-old daughter, who is extremely feminist said: "Mum, I'm not real sure about it, what does the girl in the video think?"
"The barrister said let's find out and opened the Case up, read the notes, and said, "they haven't even asked her."
"The 19-year-old's response was "that's what I find extremely offensive."
"It was a pretty good way of summing the whole thing up," said Witt.
There was some furore about the content of the video clip which was shown at the World Sailing Forum on November 27-28. That reaction did not seem to be widely supported outside WSF bubble.
In their Facts Found the International Jury itemised the emails and social media feedback - which reads in summary form:
• Volvo Ocean Race received just two emails complaining about the video
• Volvo Ocean Race received a limited number of comments on its social media post. "The vast majority of these were positive; only a very small proportion implied that the content of the video was offensive," the Jury noted.
• After removing the video from public access, SHK Scallywag received 52 comments about the video that were positive and two that were negative.
On that poll, numerically there were just five people who took offence - well wide of the original complaint which claimed the video caused "widespread offence worldwide".
The Jury dismissed the complaint against David Witt and Steve Hayles.
"David Witt and Steve Hayles did not commit misconduct because the video has not caused widespread offence worldwide and has not brought the sport into disrepute", the five-member Jury wrote.
"Even if the video were considered offensive, David Witt and Steve Hayles would not have committed misconduct as they were not fully responsible for all stages of video publication; in particular, content approval is the responsibility of the OA [Organising Authority]," the Jury concluded.
The Volvo Ocean Race has a protocol for the handling of any questionable content generated off the boats, but that was not flagged by the On Board Reporter because he did not consider the content was offensive.
Complaint has on the water consequences
As well as being out of pocket to the tune of US$40,000 as the result of a complaint that appeared to attract a very low level of support, there was a further penalty for SHK Scallywag.
"When Halyesy left the crew in Cape Town, we'd already spoken about wanting to get Libby Greenhalgh on board as navigator," Witt explained.
"With the Rule 69 going on and me being attacked in social media, plus all the peripheral noise, we politically made a decision not to take Libby on for that Leg [3 to Melbourne], even though she was ready to go and we wanted her.
"We had to pull away from taking Libby - simply because if it didn't work out, it would have been another disaster for us - so we had to let it all blow over."
"We had to make a critical crewing decision from a purely political point of view."
That decision, triggered by a complaint from an unnamed fan, had a race-defining cost for SHK Scallywag.
Without Libby Greenhalgh on board, SHK Scallywag finished 5th on the Leg from Cape Town to Melbourne.
With the former Team SCA navigator sitting in the navigator's seat, SHK Scallywag won the next Leg 4 from Melbourne to Hong Kong and then finished second on Leg 6 into Auckland.
SHK Scallywag went on to be the top performer in the seven-boat fleet across Leg 4 and Leg 6.
For Witt, the personal cost of having to defend himself legally on a spurious claim works out at US$8,000 for each of the five fans who commented that they had taken offence at the comedic mid-ocean video.
Professional Golf has had similar issues to that of the Scallywag complaint.
Rule changes were implemented into professional golf in January 2018, following scoring complaints made on the review of video broadcasts by fans.
World Sailing's rules and regulations clearly have to change to make it clear that officials control the sport and not the fans.
Changes also need to be made to protect professional sailors from the serious financial, reputational and competitive consequences of Misconduct Hearings when the sailors are exonerated.
"There is nothing to say that this can't happen again," says an exasperated David Witt.