PeterHuston
Super Anarchist
- 5,935
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Below is a copy of a letter I have started to circulate to the ISAF Council, and others, prior to the ISAF AGM which starts this coming weekend. It relates to the creation of the Disciplinary Commission, and the abject inability to remove a deficient, or corrupt, certified Race Official or ISAF representative.
Sailing Tyranny
Open Letter to members of ISAF Council:
As you prepare for the ISAF Annual Meeting next week, and knowing that you have something like 215 submissions to consider, it is time to take a pause and give serious consideration to the state of the Disciplinary Commission (DC) and Regulation 35. Submissions 37, 38, and 39 directly relate to the Disciplinary Commission. Instead, take a step back, and look at the bigger picture of sailor and race official discipline in a more comprehensive fashion.
The whole problem with the way the DC works starts with the Executive Committee. It was the Executive Committee who put forth the submission to create the DC. The Executive Committee set forth the parameters that the DC could write their own rules with exactly zero oversight from either the Executive Committee, or Council. It was if the Executive Committee allowed the Racing Rules Committee to re-write the racing rules in a vacuum. As members of the Council it is reasonable to presume you just missed that part when this submission was voted in. Just like with 215 submissions at the coming AGM, who can be expected to read every line of every submission? But, as members of Council, you can be certain that when the fur starts flying about what has happened as a consequence of the new disciplinary rules of procedure, and it will, that the Executive Committee and the Staff will point their fingers at you as having approved the opportunity for a handful of people to devise the disciplinary process for the whole sport, with exactly zero oversight.
Then we get to the part about empaneling the DC. Here’s the regulation about the requirements to empanel the DC:
8.15.2 Regulation 8.2 does not apply to the appointment or removal of members of the Commission. Council shall appoint the Chairman, Vice-Chairman and members of the Commission on the nomination of the Executive Committee for a specific term. The membership of the Commission shall include a sufficient number of legally qualified members to enable it to discharge it functions.
Having searched the ISAF Executive Committee minutes I found nothing about the required nomination by the Executive Committee of the DC members. I later learned that VP Scott Perry was given oversight of the DC working party. It seems what happened is that somehow the some members of (maybe all?) DC working party were put forth as the interim members of the DC. I asked Perry if he did this on his own, or if the ISAF staff did it without his knowledge. He has to date refused to answer my question.
However, ISAF in-house counsel jon napier responded to this question. He said that as a matter of Executive Committee work process Perry was assigned oversight of the DC, and therefore his recommendation constituted nomination. That is a pretty weak premise, particularly because nothing about the nomination comporting to the Regulations shows up in the Minutes of the Executive Committee. Ever. Anywhere.
On Aug 15, 2013 former ISAF CEO pels (via his assistant) wrote you in your capacity as a member of Council saying that on the advice of the Chairman of the Constitution Committee, Phillip Tolhurst, the members of the DC were put forth for a vote of the Council. To refresh your memory, the email from the former ISAF CEO is below:
Date: August 15, 2013
To: ISAF Council
Ladies and Gentlemen
In accordance with the new Regulations governing misconduct and discipline approved by Council in May, the members of the Disciplinary Commission need to be appointed to carry out ISAF’s disciplinary functions. I am writing to you today as there is now an urgent requirement for the Commission to be appointed without delay as ISAF has received rule 69 reports which must be processed.
The proposal is to appoint an interim Commission until the Annual Conference, at which time a fuller list of members can be considered. The Ethics Commission will also be appointed at that time.
All the proposed members below have agreed to be appointed on an interim basis.
The list has been drawn up in consultation with the Chairman of the Constitution Committee and the former Working Party that drew up the new disciplinary system approved by the Executive Committee. It is recognised that certain areas are not represented, but this will be addressed in November when the full Commission is appointed.
Proposed members:
Bryan Willis (GBR ) – Chairman
Jan Stage (DEN) – Vice-Chairman
Charlie Manzoni QC (HKG)
Ana Sanchez del Campo Ferrer (ESP)
Josje Hofland-Dominicus (NED)
David Tillett (AUS)
Lance Burger (RSA)
This is a formal Council vote to appoint the proposed members to form the Disciplinary Commission in accordance with ISAF Regulations and the Constitution.
Please reply with a clear vote by close of business Monday 19 August 2013
Yes: in favour
No against
Abstain
I look forward to receiving your votes.
Kind regards
Jerome Pels
CEO
Now ask yourself why the Regulations were not followed. Why is there nothing in the minutes of the Executive Committee about the nomination of the DC members by the Executive Committee? Now ask yourself if the Chairman of the Constitution Committee, Tolhurst, aided and abetted the violation of the Regulations. If Tolhurst did help the former CEO to violate the Regulations, should he be allowed to stay on as Chair of the Constitution Committee, or be part of any committee? And what of the ISAF staff’s involvement, particularly the parsing of the nomination process by the in-house counsel napier. Is this a lawyer that we are proud to have represent the interests of the sport?
Regulation 35 deals with the discipline of a race officer or representative of ISAF. What if an ISAF certified judge tampered with a witness in a hearing? What if a member of the staff actively ignored the Regulations? How would anyone complain? The Regulation below describes the process for filing a complaint:
When the DC was enabled in May of 2013 that instantly changed the discipline process within ISAF. Suddenly, there was no process for discipline. The enabling submission was slippery and sloppy; it left no room for transition from the then current disciplinary process to a new process. We have seen how the CEO trumped up a rouge interim DC. Here’s a question: Where any members of the interim DC then sitting as active judges in any sailing events where they knew, or reasonably suspected, a disciplinary case would be filed shortly. How is it “natural justice” (a legal term that does not have application universally around the world, but which ISAF likes to use when it serves their interest) when a commission writes rules of procedure and then retroactively applies them to prior cases? This begs the question; is the new ISAF DC process enforceable for Rule 69 cases that happened before the DC rules were put into place? And if not, are there potential legal and financial consequences to ISAF?
After a sailor, race official or ISAF representative has their hearing at the DC, they are then entitled to go before the Review Board. However, with all the interlocking committee members, how can anyone get a truly fair hearing in either body? There are simply too many conflicts between these overlapping committee members, even if they don’t serve on those panels. We all know far too many things in the sport are done with a nod and a wink between people who trade ISAF political, or sailing business, favors with each other.
However, because of this lack of oversight there is today still no statutory time requirements when the DC must rule on a sailors, or race official’s, penalty. How is that fair? It isn’t. It is a gross abuse of process, and power. Leaving open a statutory time requirement to give a sailor, or race official, a disciplinary ruling leaves open the opportunity for ISAF to delay justice. Under the exhaustion of remedy requirement without a ruling from the DC, the accused cannot move forward to a hearing by the Review Board and then the Court of Arbitration for Sport. Their competitive status remains in limbo. If they are a professional sailor, they will lose employment opportunities. Why is there no submission to remedy this?
To refresh: the common members of the interim DC and the Review Board are Bryan Willis, David Tillett, Josje Hofland and Charlie Manzoni. Do you recognize any other commonalities within this group?
Why as a sport are we letting the ISAF CEO, a hired hand, have so much control over complaints against race officials? I know many will answer “because the IOC wants more professional involvement in each International Federation”. To that I would reply, firstly, so what, who cares what the IOC wants? And secondarily, the IOC wants countries to bid on hosting the 2022 Winter Olympics. The only two interested countries are China and Kazakhstan. The list of demands asked for by the IOC is absurd. So, the IOC ends up with host countries that have extremely repressive human rights records as their only interested parties. It seems the ISAF process for removing race officials is as sketchy as is the judicial system in the only countries that are bidding to host the 2022 Olympics. Is that the type of professional consistency the IOC seeks, or what we as sailors want or deserve? While many people do not like the style of Sailing Anarchy, what has happened with the creation and implementation of the DC and the cross pollination of commission and committee members is really Sailing Tyranny.
Given all of this, is it appropriate for you to vote next week on any of the submissions related to the DC, or any that have any relationship to the powers of the CEO? Do we even need a Disciplinary Commission? If there is benefit to having a Disciplinary Commission and a Review Board, then it ought to be written into the Regulations that both hearings are de novo.
Instead, why doesn’t everyone take a deep breath, step back, and address these issues in a comprehensive fashion. What I would suggest is having a disciplinary process that is consistent for sailors, race officials, and ISAF staff. There should be an elimination of cross membership on various committees for these purposes. It is inconceivable to have someone be a judge one weekend, and then potentially sitting in judgment of fellow race officer the next.
The pool of members of the disciplinary commission, and/or review board, should come from both inside and outside the sport. All panels should be comprised of five people, two from sailing, and three from other sports. ISAF should lead the way creating an inter-sport pool of qualified people for this purpose. With only two people from sailing on a Disciplinary Commission and/or Review Board, and three from unrelated sports, the prospect of sailing politics over riding justice is reduced about as low as it can possibly go. Clearly, we currently have a staff, Committee Chairs, and members of the Executive Committee who seem to think it is ok to ignore the ISAF Regulations. The ISAF system of governance and justice is flawed, and has failed.
Next week at the ISAF Annual meeting, vote for one thing and one thing only. Stop this Sailing Tyranny by taking away all the arbitrary power from the CEO and rogue commissions and give sailing back to the sailors.
Peter Huston
Sailing Tyranny
Open Letter to members of ISAF Council:
As you prepare for the ISAF Annual Meeting next week, and knowing that you have something like 215 submissions to consider, it is time to take a pause and give serious consideration to the state of the Disciplinary Commission (DC) and Regulation 35. Submissions 37, 38, and 39 directly relate to the Disciplinary Commission. Instead, take a step back, and look at the bigger picture of sailor and race official discipline in a more comprehensive fashion.
The whole problem with the way the DC works starts with the Executive Committee. It was the Executive Committee who put forth the submission to create the DC. The Executive Committee set forth the parameters that the DC could write their own rules with exactly zero oversight from either the Executive Committee, or Council. It was if the Executive Committee allowed the Racing Rules Committee to re-write the racing rules in a vacuum. As members of the Council it is reasonable to presume you just missed that part when this submission was voted in. Just like with 215 submissions at the coming AGM, who can be expected to read every line of every submission? But, as members of Council, you can be certain that when the fur starts flying about what has happened as a consequence of the new disciplinary rules of procedure, and it will, that the Executive Committee and the Staff will point their fingers at you as having approved the opportunity for a handful of people to devise the disciplinary process for the whole sport, with exactly zero oversight.
Then we get to the part about empaneling the DC. Here’s the regulation about the requirements to empanel the DC:
8.15.2 Regulation 8.2 does not apply to the appointment or removal of members of the Commission. Council shall appoint the Chairman, Vice-Chairman and members of the Commission on the nomination of the Executive Committee for a specific term. The membership of the Commission shall include a sufficient number of legally qualified members to enable it to discharge it functions.
Having searched the ISAF Executive Committee minutes I found nothing about the required nomination by the Executive Committee of the DC members. I later learned that VP Scott Perry was given oversight of the DC working party. It seems what happened is that somehow the some members of (maybe all?) DC working party were put forth as the interim members of the DC. I asked Perry if he did this on his own, or if the ISAF staff did it without his knowledge. He has to date refused to answer my question.
However, ISAF in-house counsel jon napier responded to this question. He said that as a matter of Executive Committee work process Perry was assigned oversight of the DC, and therefore his recommendation constituted nomination. That is a pretty weak premise, particularly because nothing about the nomination comporting to the Regulations shows up in the Minutes of the Executive Committee. Ever. Anywhere.
On Aug 15, 2013 former ISAF CEO pels (via his assistant) wrote you in your capacity as a member of Council saying that on the advice of the Chairman of the Constitution Committee, Phillip Tolhurst, the members of the DC were put forth for a vote of the Council. To refresh your memory, the email from the former ISAF CEO is below:
Date: August 15, 2013
To: ISAF Council
Ladies and Gentlemen
In accordance with the new Regulations governing misconduct and discipline approved by Council in May, the members of the Disciplinary Commission need to be appointed to carry out ISAF’s disciplinary functions. I am writing to you today as there is now an urgent requirement for the Commission to be appointed without delay as ISAF has received rule 69 reports which must be processed.
The proposal is to appoint an interim Commission until the Annual Conference, at which time a fuller list of members can be considered. The Ethics Commission will also be appointed at that time.
All the proposed members below have agreed to be appointed on an interim basis.
The list has been drawn up in consultation with the Chairman of the Constitution Committee and the former Working Party that drew up the new disciplinary system approved by the Executive Committee. It is recognised that certain areas are not represented, but this will be addressed in November when the full Commission is appointed.
Proposed members:
Bryan Willis (GBR ) – Chairman
Jan Stage (DEN) – Vice-Chairman
Charlie Manzoni QC (HKG)
Ana Sanchez del Campo Ferrer (ESP)
Josje Hofland-Dominicus (NED)
David Tillett (AUS)
Lance Burger (RSA)
This is a formal Council vote to appoint the proposed members to form the Disciplinary Commission in accordance with ISAF Regulations and the Constitution.
Please reply with a clear vote by close of business Monday 19 August 2013
Yes: in favour
No against
Abstain
I look forward to receiving your votes.
Kind regards
Jerome Pels
CEO
Now ask yourself why the Regulations were not followed. Why is there nothing in the minutes of the Executive Committee about the nomination of the DC members by the Executive Committee? Now ask yourself if the Chairman of the Constitution Committee, Tolhurst, aided and abetted the violation of the Regulations. If Tolhurst did help the former CEO to violate the Regulations, should he be allowed to stay on as Chair of the Constitution Committee, or be part of any committee? And what of the ISAF staff’s involvement, particularly the parsing of the nomination process by the in-house counsel napier. Is this a lawyer that we are proud to have represent the interests of the sport?
Regulation 35 deals with the discipline of a race officer or representative of ISAF. What if an ISAF certified judge tampered with a witness in a hearing? What if a member of the staff actively ignored the Regulations? How would anyone complain? The Regulation below describes the process for filing a complaint:
- 35.5 On receipt of a report under Regulation 35.4, the Chief Executive Officer shall acknowledge receipt. The Chief Executive Officer and two Vice-Presidents shall assess the report and decide whether or not there is a case to answer. If a majority of them decide there is a case to answer, the Chief Executive Officer shall forward the report to the Disciplinary Commission for investigation, and if appropriate, a hearing. If a report concerns the President, or a Vice-President, the Chief Executive Officer shall forward the report directly to the Disciplinary Commission.
When the DC was enabled in May of 2013 that instantly changed the discipline process within ISAF. Suddenly, there was no process for discipline. The enabling submission was slippery and sloppy; it left no room for transition from the then current disciplinary process to a new process. We have seen how the CEO trumped up a rouge interim DC. Here’s a question: Where any members of the interim DC then sitting as active judges in any sailing events where they knew, or reasonably suspected, a disciplinary case would be filed shortly. How is it “natural justice” (a legal term that does not have application universally around the world, but which ISAF likes to use when it serves their interest) when a commission writes rules of procedure and then retroactively applies them to prior cases? This begs the question; is the new ISAF DC process enforceable for Rule 69 cases that happened before the DC rules were put into place? And if not, are there potential legal and financial consequences to ISAF?
After a sailor, race official or ISAF representative has their hearing at the DC, they are then entitled to go before the Review Board. However, with all the interlocking committee members, how can anyone get a truly fair hearing in either body? There are simply too many conflicts between these overlapping committee members, even if they don’t serve on those panels. We all know far too many things in the sport are done with a nod and a wink between people who trade ISAF political, or sailing business, favors with each other.
However, because of this lack of oversight there is today still no statutory time requirements when the DC must rule on a sailors, or race official’s, penalty. How is that fair? It isn’t. It is a gross abuse of process, and power. Leaving open a statutory time requirement to give a sailor, or race official, a disciplinary ruling leaves open the opportunity for ISAF to delay justice. Under the exhaustion of remedy requirement without a ruling from the DC, the accused cannot move forward to a hearing by the Review Board and then the Court of Arbitration for Sport. Their competitive status remains in limbo. If they are a professional sailor, they will lose employment opportunities. Why is there no submission to remedy this?
To refresh: the common members of the interim DC and the Review Board are Bryan Willis, David Tillett, Josje Hofland and Charlie Manzoni. Do you recognize any other commonalities within this group?
Why as a sport are we letting the ISAF CEO, a hired hand, have so much control over complaints against race officials? I know many will answer “because the IOC wants more professional involvement in each International Federation”. To that I would reply, firstly, so what, who cares what the IOC wants? And secondarily, the IOC wants countries to bid on hosting the 2022 Winter Olympics. The only two interested countries are China and Kazakhstan. The list of demands asked for by the IOC is absurd. So, the IOC ends up with host countries that have extremely repressive human rights records as their only interested parties. It seems the ISAF process for removing race officials is as sketchy as is the judicial system in the only countries that are bidding to host the 2022 Olympics. Is that the type of professional consistency the IOC seeks, or what we as sailors want or deserve? While many people do not like the style of Sailing Anarchy, what has happened with the creation and implementation of the DC and the cross pollination of commission and committee members is really Sailing Tyranny.
Given all of this, is it appropriate for you to vote next week on any of the submissions related to the DC, or any that have any relationship to the powers of the CEO? Do we even need a Disciplinary Commission? If there is benefit to having a Disciplinary Commission and a Review Board, then it ought to be written into the Regulations that both hearings are de novo.
Instead, why doesn’t everyone take a deep breath, step back, and address these issues in a comprehensive fashion. What I would suggest is having a disciplinary process that is consistent for sailors, race officials, and ISAF staff. There should be an elimination of cross membership on various committees for these purposes. It is inconceivable to have someone be a judge one weekend, and then potentially sitting in judgment of fellow race officer the next.
The pool of members of the disciplinary commission, and/or review board, should come from both inside and outside the sport. All panels should be comprised of five people, two from sailing, and three from other sports. ISAF should lead the way creating an inter-sport pool of qualified people for this purpose. With only two people from sailing on a Disciplinary Commission and/or Review Board, and three from unrelated sports, the prospect of sailing politics over riding justice is reduced about as low as it can possibly go. Clearly, we currently have a staff, Committee Chairs, and members of the Executive Committee who seem to think it is ok to ignore the ISAF Regulations. The ISAF system of governance and justice is flawed, and has failed.
Next week at the ISAF Annual meeting, vote for one thing and one thing only. Stop this Sailing Tyranny by taking away all the arbitrary power from the CEO and rogue commissions and give sailing back to the sailors.
Peter Huston
