justice for all

justice for all

The Farrah Hall v US Sailing saga is over, with a successful conclusion for the betterment of the sport.  The press release here from US Sailing covers the basics of the agreement and what will happen in the future regarding redress issues.

While no one is ever really going to be make it up to Farrah for the way a very few people inside US Sailing abused the protest process to preclude her from going to the 2008 Olympics, the net result is the greater good of the sport as been served, and that shall be Farrah’s legacy.

How did this resolution, finally, happen?  First and foremost, it was through the perseverance of Farrah and her team, her advisor John Bertrand, and the legal help of lead attorney Doug Smith of Gibson Dunn & Crutcher, who represented Farrah on a pro bono basis. 

From the US Sailing viewpoint, the impasse was finally broken when Gary Jobson became President in late October 2009.  But prior to that, Jobson had done a lot of homework all last summer long to find the right solution once he became President.  Out as lawyer for US Sailing was Charlie Cook.  In as the new US Sailing lawyer was exactly nobody.  It turns out that Jobson, during the spring and summer of 2009 as the incoming President, was kept in the dark on almost everything related to the last ditch attempts by Cook and then US Sailing President Jim Capron as they tried to overturn the USOC directives which required US Sailing to change the redress procedure for Protected competitions.  There was a lot going on behind the scenes all last summer with US Sailing, in the form of Capron and Cook trying to get ISAF to help intervene with the USOC.  None of it worked.  To illustrate how little Capron was communicating with Jobson about the settlement with Farrah all summer, I knew what was being said by US Sailing to the USOC, or by ISAF to the USOC or ASOIF, before Jobson.

The Farrah Hall v US Sailing matter illustrates the conflict in which ISAF says the rules should be applied.  This case plays a key role in showing the duplicity of ISAF relative to the way the rules can be administered.  The US Olympic Committee has told US Sailing they must comply with the Stevens Act, yet ISAF says that US Sailing must adhere to their strict letter of the rules, which they believe override the requirements of the Stevens Act.  ISAF was so insistent and strident in this matter that Secretary General Jerome Pels wrote a letter to the ASOIF, which you can read here , asking them to intervene in this matter.  Essentially this says that the rules can not be changed. 

ISAF President Goran Petersson has some interesting observations on the role of ISAF as the global leader of the sport in a letter to USOC Chairman Larry Probst that you can read here .  Why is the President of ISAF getting involved in the way a National Governing Body selects, and administers justice, in matters relative to the selection of Olympic athletes for a specific country?  Did Peterrson and Pels really write these letters, or did someone at US Sailing write them and they just signed them?  Remember, the whole time this was going on ISAF was entering into the “secret agreement” with SNG for the 33rd America’s Cup, where the rules were changed, an agreement that was subsequently nullified to a large extent (with of course the exception of allowing engines to trim the sails).  These letters from Peterrson and Pels also proved to be worthless, if not momentarily counterproductive to image of sailing within the USOC.  The settlement process and result under Jobson has made US Sailing, finally, start to look good again to the USOC.

As part of doing his homework in the summer, Jobson sought out many different opinions, and expert advice as to how to deal with the USOC.  There is someone who was behind the scenes the whole time helping Jobson understand the requirements of the Stevens Act, and how to respond to the USOC.  That person is Ed Williams, of the firm of Stewart Occhipinti in New York City.  Jobson met with Williams in NYC in June. Williams’ resume speaks for itself on the topic of athlete’s rights.  Williams is also the attorney who represented Natalie Salk in 2008, and beat Charlie Cook representing US Sailing in that case.  Williams also advised US Sailing several years ago that they were not in compliance with the Stevens Act, the USOC Regulations, and certain aspects of NY State law, but the US Sailing legal committee ignored his advice.  Had the US Sailing legal committee accepted Williams’ advice prior to the 2007 Olympic Trails, it is highly likely this case never would have happened.  US Sailing ought to retain Williams to review the areas of the Stevens Act, the USOC Regulations, and NY State where they are still not in compliance.  It would be penny wise and pound foolish to continue to ignore this wisdom.

Jobson wanted the Hall issue sorted out fairly and quickly.  He knew that keeping Cook on as the lawyer for US Sailing would only add time and expense to the equation, and Cook was on the losing side anyway.  So, why keep Cook around, and why get another lawyer when the answer was obvious? In 2009 US Sailing had brought in additional legal firepower in the form of Jeff Benz, the former General Counsel for the USOC, to assist Cook.  Even given the prior relationship between Benz and the USOC, that was of no value to US Sailing as the USOC hearing panel ruled in favor of Farrah.  Jobson did not renew Benz’s contract upon becoming President.

Then there was money.  Under Capron, US Sailing spent something more than $150,000 against the Hall matter, and lost.  Not just lost, US Sailing got its head handed to it on a silver platter by the USOC hearing panel.   Once Jobson took over as President, he spent about $1,500 to make the settlement happen.  Jobson has told me an accounting of these expenditures will be forthcoming.  That was money spent in the form of bringing people like Dave Perry and Katie Kelly to Annapolis for the first settlement conference.  What an amazing idea, sailors sitting around talking about how to solve a sailing problem.

How this case ever got to this point will remain a mystery.  There isn’t a single experienced and respected judge or top level competitor that I know who thought redress should have been granted for a 4 inch slice in a sail – not Dave Ullman, not Carl Eichenlaub, not John Bonds, not Tom Ehman.  Behind the scenes within US Sailing, a lot of rules experts who are household names would mutter quietly that they thought what was going on with Farrah’s case was wrong, but no one would really stepped up and try to stop it.  Capron and Cook seem to have run the litigation in secrecy, and only told the Board about things after the fact.  There is a serious question about the expenditure of more than $150,000, which was never approved by the Board.  The US Sailing Board has vulnerability to further legal challenges regarding this expenditure and needs to answer as to why this was never properly authorized.

There is really no value in continuing to expose the way that Capron and Cook ran roughshod over Farrah, and the sport, all of which has been previously detailed in Sailing Anarchy.  Both of their legacies will be tied forever to what they did to Farrah, and knowing they have to live with that burden is penalty enough.  How anyone at ISAF can give either Capron or Cook any level of responsibility after they made such a huge issue out of this case, spent so much money, and then lost so badly is beyond a reasonable person’s comprehension.  As certified Judges, their judgment is obviously highly flawed.

So let’s forgive Capron and Cook.  Let’s hope they learned a lesson from all of this, and hope that they reform themselves and become more temperate in their conduct as judges within the sport.  Let’s hope that they have the courtesy and dignity to apologize to Farrah in writing, for all the world to see.

Beyond the need to comply with the requirements of the Stevens Act, there are other elements of this case that have brought to light some issues within the rules that need to be tightened up.  These are things not required by the Stevens Act, but some of the following suggestions all played a role in the abuse of process by a very select few people within US Sailing.

Time line for RAF – one of the things that became necessary to sustain a claim of “serious damage” in the later stages of Farrah’s case was that Monica Wilson, who fouled Nancy Rios which led to the 4” slice in Rois’ sail, was somehow rescored as RAF five months after the Olympic Trials were over.  Wilson had done her penalty turn immediately after the incident, but yet somehow five months later she wakes up one morning and has a pang of consciousness that says she must now ask the Race Committee to rescore her as RAF.  There seems to be no statute of limitations as to when someone can be scored RAF.  If this case does not call out the need for such a statute, then the rules should explain why it is acceptable to both do penalty turns and then five months later ask to be scored RAF.  This seems really simple – just like there is a usual time horizon for filing a protest, there should also be a defined time as to when a sailor can be scored RAF.  Why not make those time horizons the same?

Easier way to educate and certify judges – At least within the US, we need an easier process to both educate and certify Judges.  The system we have right now is fraught with a premium placed on both time and money for certification (and recertification) of Judges.  Much of this education could be done on the internet.   I can name more than a few top quality judges who are not getting recertified simply because of the time, even more than the money, it takes for recertification.  

Judicial review panel – Just like in the real legal world there is a judicial review panel, it seems that we need a Judicial review panel in sailing.  If certifying judges is difficult, getting bad judges removed is even harder.

The Judging Manual – Ironically, it is Capron and Cook who in the April 2003 of the ISAF Judges Manual are credited by Giorgio F. Lauro with playing a large role in writing that document, which they parsed to the nth degree to abuse Farrah.  Capron and Cook were able to use the inconsistencies within the Judges manual, largely in the way the word “may” and “should” is used to ignore things that would have made for a more fair process, or to abuse the process in their favor when it was convenient for them to do so.    A tighter US Sailing Judges manual that eliminates the gray areas of “should” and “may”, and makes the judging process easier to understand and implement should be created, and codified as part of the protest procedure.   This isn’t a murder trial, it is a simple sport, and yet too often we see the rules being written by lawyers in lawyer-speak, and administered by Judges who are at a disadvantage in understanding the way the process can be parsed by the lawyers who write the rules.  And if the people who are certified in all of this can make huge errors in judgment that result in the threat of sanction by the US Olympic Committee, how on earth does this sort of process lend itself well to trying to get more people to want to race more sailboats more often?

The long saga of Farrah Hall’s ordeal with US Sailing is over.  It is only over because of the way Gary Jobson as the new President of US Sailing managed to end the legal drama and just deal with the issue straight on.  The long and tortured process will give the net result of more fair protest hearings, especially in the area of redress.  Through Farrah’s resolve, we have Justice for All. – Peter Huston. Discuss.