2017 Rules Conflict of Interest

Introduction

Since 1981 the Racing Rules of Sailing (RRS) have protected the integrity of the protest process by restricting the roles of persons who have a close personal interest in the decision of a protest committee.

Up to 2017 this was done by defining ‘a person who may gain or lose as a result of a protest committee’s decision or who has a close personal interest in the decision’ as an interested party, and:

• Prohibiting an interested party from taking part in the hearing of a protest (2013 rule 63.4);  and
• Restricting the acceptance of reports from interested parties as the basis of protests by race committees and protest committees (2013 rules 60.2 and 60.3).

The strict application of these rules at small clubs and events caused problems with assembling well qualified protest committees.

The 2017 RRS, consistently with the approach taken in administrative governance in World Sailing, replaced interested party and associated prohibitions and restrictions with concepts of Conflict of Interest.

2017 Changes to RRS

The 2017 rules define Conflict of Interest as follows:

Conflict of Interest A person has a conflict of interest if he

(a )may gain or lose as a result of a decision to which he contributes,

(b )may reasonably appear to have a personal or financial interest which could affect his ability to be impartial, or

(c )has a close personal interest in a decision.

This definition expands on the old definition of interested party by adding subparagraph ( b ) dealing with the appearance of having a personal or financial interest which could affect impartiality.

The 2017 rule dealing with Conflict of Interest and membership of protest committees is rule 63.4, which reads

63.4 Conflict of Interest

(a )A protest committee member shall declare any possible conflict of interest as soon as he is aware of it. A party to the hearing who believes a member of the protest committee has a conflict of interest shall object as soon as possible. A conflict of interest declared by a protest committee member shall be included in the written information provided under rule 65.2.

(b )A member of a protest committee with a conflict of interest shall not be a member of the committee for the hearing, unless

(1)all parties consent, or

(2)the protest committee decides that the conflict of interest is not significant.

(c )When deciding whether a conflict of interest is significant, the protest committee shall consider the views of the parties, the level of the conflict, the level of the event, the importance to each party, and the overall perception of fairness.

(d) However, for World Sailing major events, or for other events as prescribed by the national authority of the venue, rule 63.4(b ) does not apply and a person who has a conflict of interest shall not be a member of the protest committee.

This rule introduces:

• An approach involving informed consent or decision, based on a transparency obligation on protest committee members to declare any possible Conflict of Interest, and allowing:

-       the parties to consent to that member continuing to hear the protest (regardless of how significant or severe the Conflict of Interest may appear);  or

-       the protest committee to decide that the Conflict of Interest is not ‘significant’, and having the member continue to hear the protest.

• The notion of significance of a Conflict of Interest, so that only those members who the protest committee decides have a significant Conflict of Interest are excluded from hearing a protest.
• Mandatory considerations for protest committees in deciding whether a Conflict of Interest is significant;
• A requirement that Conflict of Interest declarations [and any consent by parties or protest committee decision on significance] shall be included in the protest committee’s written decision to facilitate review and appeal.
• A special provision for World Sailing major events or other major events, that significance shall not be considered and no person who has a Conflict of Interest shall be a member of the protest committee.

Rules 60.2 and 60.3 about the acceptance of reports as the basis of protests merely substitute the phrase ‘person with a conflict of interest’ or ‘interested party’, with no change in meaning.  Rule 60.4 now similarly prohibits a Technical Committee from relying on a report from a person with a Conflict of Interest

Reasons for Changes

The reasons for the changes are set out in WS Submission to Council 203-15, including:

…

2. A ‘hard line’ rule on conflict of interest is not practical at all events, especially for club events that depend on volunteer members and others who frequently have some degree of conflict. The submission reflects the reality and as is therefore a significant improvement over the current rule. The new rule will also cause protest committees to address the issue of conflict more frequently.

3. The current ISAF Conflict of Interest Guidance that applies to ISAF Race Officials recognises the need for some flexibility to suit different events. This submission is consistent with that guidance.

4. The proposal introduces the concept of the parties being able to consent to the protest committee members, having been fully informed of the conflict.

5. The protest committee may also decide that a conflict is not material, depending on the level of conflict and the level of the event. A Case will be drafted to help interpret ‘material’ as it would be too cumbersome to include all the considerations in the rule itself. Some of the concepts from the currently approved Conflicts of Interest Guidance administered by a working party of the ROC will be used to ensure consistency.

6. The definition of Conflict of Interest is not limited to protest committee members but applies to all race officials.

7. There is no doubt that this area is extremely difficult to be definitive. Except for very clear cut situations, almost every situation is different. The Rule 69 Working Party, who prepared this submission, firmly believe that the submission is far more aligned to the real situation than the current rule.

…

9. In 71.1 a higher, less flexible standard is applied to those deciding an appeal that might otherwise be permitted in the proposed rule 63.4. There is no change in standard from the current RRS.

Implementation by Protest Committees

The requirement for members of protest committees to declare any possible Conflicit of Interest (referred to as ‘self-interest’) was introduced into rule 63.4 in the 2013 rules, but may have been overlooked by protest committee members and chairs.  Under the now formalised consent or decision process, it assumes critical importance and must be complied with and documented.

2017 Rule M2.3 Assess Conflicts of Interest has been added to Appendix M Recommendations for Protest Committees, to support and guide protest committees.

The Protest Form in the 2017 rules has also been amended to include recording of objections and decisions about Conflict of Interest.

So, if protest committees use the current Appendix M and the Current Protest Form page 2, they will be guided through the requirements.

Note that WS intends to publish a case or cases amplifying Conflict of Interest issues in the near future.

Taking advantage of the Changes

The changes to the rules about Conflict of Interest are intended to provide a relaxation of a previously inflexible rule.

While race committees and organising authorities, in assembling protest committees and protest committee chairs (and indeed, desirably, all protest committee members) in preparing for hearings, should pay attention to requirements to identify and declare Conflicts of Interest, there is no requirement to devote significantly more resources or concern to the issue than previously, just because there are new words in the rules.

In particular, at club level the rules now permit, for example, an ‘elder statesman’ of the class or club, who the parties might be satisfied will act impartially, to, if the parties consent, sit on a protest, even though he or she competed in the race.  The same might apply to the parent or relative of a junior competitor.

If, however, a party objected, it would probably be unwise for a protest committee to decide that a competitor, or parent of a competitor did not have a significant Conflict of Interest, although a protest committee might decide that the Conflict of interest that a competitor who was well out of contention for race or series prizes was not significant.