Thanks to urging from an interested Anarchist with some legal knowledge, we’ve finally delved into the full text of ISAF’s Disciplinary Commission Rules of Procedure - the rules that govern Rule 69 hearings. And having gone through the entire thing a couple of times, we’ve stopped counting all the instances of incompetence, ignorance, unethicalness, and outright illegality of some of the procedures. Even leaving aside a basic numerical error in the definitions that hasn’t been corrected despite the rules being final for nearly a year, we find a few things especially egregious:
Firstly, the Notice provisions in sec. 4.4 and 4.5 are illogical and fundamentally unfair. Whilst those being disciplined and other interested parties are required to be ‘served’ with notice, ISAF somehow allows e-mail, fax, and telex (telex?) notices to suffice without any proof that the notice was received by anyone, and we can’t find a provision to dispute the notice if, say, the e-mail ends up in your junk mail folder, or the snail mail gets swallowed up by the post office or a flood or ice storm or any other reason. Here is the applicable text from the Rules:
4.4. Notices delivered by hand are served immediately. Notices sent by telex, facsimile or e-mail shall be deemed to have been served two hours after they are sent (provided that if a notice would be deemed to have been served after 17:00 hours in the place of receipt, it shall instead be deemed served at 09:00hrs on the next day in the place of receipt).
4.5 Notices sent by post shall be deemed to have been served on the seventh day following that on which the letter containing the same is put into the post, and in proving such service, it shall be sufficient to prove that the letter containing the notice was properly addressed to the Respondent or Participant and was put into the post office as a prepaid first class letter (or prepaid first class airmail letter where appropriate).
Except, of course, ISAF is not bound by these provisions. 4.6 provides that Notice to an ISAF Commission “shall be deemed served when actually received by ISAF.”
Okay – so ISAF isn’t worried about imposing serious sanctions against someone who might never have seen any notice that they were getting disciplined. But that’s nothing compared to what follows – and remember that ISAF can and frequently does ban sailors from competing for periods of a year or more, sometimes to the detriment of careers and livelihoods – under these standards. Check out the rule on evidence:
12.3 The Commission is not bound by any rules of civil evidence or procedure and may give such weight and credibility to evidence, including hearsay evidence, as it may think fit.
Hearsay? No rules of evidence whatsoever? And no one has a problem with this? We are quite certain that neither the notice provision nor the evidentiary standards would ever stand up to a challenge launched in a US or Canadian court, and we’re confident most first world countries would easily agree that these rules violate due process and the basic right to a fair trial for any important restriction on a person’s freedom to continue with their pastime or job. US Sailing learned this lesson very expensively in the Farrah Hall case after being nearly decertified by the USOC over a lack of due process, but apparently no one has taken ISAF to task yet for their own disciplinary shortcomings.
Finally, we note that the one check on this unfettered power to destroy a sailor’s life is subject to the requirement of any disciplinary commission to release a full decision to the public for every hearing - something that should keep them from doing anything completely idiotic. Except, of course, when they don’t want to. Check this one out:
13.2 Decisions of the Panel shall be public, except that the Panel may determine that its decision (or any part of it) shall not be published and remain confidential if it believes there is good reason to do so. If the Panel directs that the full decision is not to be published, it shall issue a short statement for publication confirming any offenses committed.
Read the full text of the Rules here, and let the Disciplinary Commission know what you think about this joke of a quasi-judicial body of rules by sending them an e-mail here. Just don’t expect them to ever admit they received it!
Chat about it in the forum here.
February 20th, 2014