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On the Endless Folly of Sailors
by Cory E. Friedman
"The sky is falling." Chicken Licken, Henny Penny or Chicken Little, Jataka Tales of Buddhist Indian folklore.
(February 23, 2009) - It looks like the one thing sailors like a lot more than sailing is litigating. So, even if the America’s Cup litigation winds down, it seems there will always be opportunities for legal commentary on the legal follies of sailors. As many ‘Buttheads know, US Sailing just got a major thumping from the United States Olympic Committee (USOC) in Farrah Hall v. US Sailing Association. Buttheads can read the gory details themselves (click here). US Sailing is putting out press releases about how this decision changes the game and is proof that the sky is falling. Do not believe it. The effect on sailors will be minimal, if not benign. Besides, if that is what the Stevens Act, 36 U.S.C. §§ 22051 et seq., requires in the United States, it is the law. Get over it.
So, other than tossing the better part of $145,000.00 of dues money in the drink (see Board of Directors minutes), this dispute looks like little more than a very expensive dock measuring contest about who was right about something that is over and done with. What does the decision not affect? For starters, it has no effect on the 2008 Olympic boardsailing trials or the 2008 Olympic event. Nancy Rios still won the trials and did not exactly medal in the Olympic event. It has no effect on the substantive decisions of protest committees. They will continue to call them as they see them. Indeed, the only changes are prospective and procedural. ‘Buttheads (especially kids) who are not completely up on rules are less likely to get screwed by sea lawyers. Sounds pretty bad, huh.
What does US Sailing not what you to know? Start with how they managed to get so little for so much money. In the America’s Cup litigation, the parties have always made their papers available for review and, indeed, immediately have posted them on their respective websites for complete transparency. In that case, Ernesto and Larry are spending their own money. In this case, US Sailing is spending sailors’ money and is being completely opaque. Neither party will let me see any of the papers. Although the USOC does not consider the proceeding confidential, perhaps out of professional courtesy (you have all heard the lawyer jokes about sharks and professional courtesy), Farrah Hall’s lawyers are aiding in the cover up. (In a classic example of arrogant large firm partner condescension, her lawyer framed it as doing me (and ‘Buttheads) a favor by saving me from reading all the papers. What a guy.)
So why the sky allegedly falling? First of all, the decision requires that 20% of the composition of protest committees be “athletes.” US Sailing says that is impossible to meet. Well, what is the definition of an “athlete” in the Stevens Act? The Act does not define athlete, but § 220501 (b) (1) defines “amateur athlete” as: "’amateur athlete’ means an athlete who meets the eligibility standards established by the national governing body or paralympic sports organization for the sport in which the athlete competes.” So being an athlete is even easier than being an “amateur athlete.” If you have a pulse and have paid your memberships, we have a spot for you on a protest committee. Indeed, how in the world can you run a protest committee without at least one person who meets US Sailings non-existent eligibility standards for sailing? There may be a tougher definition in the USOC Bylaws, but the cite in the decision is wrong and I cannot find a definition in the USOC Bylaws.
For Olympic/Pan American Games level protest committees, the requirement is tougher. 20% of the Protest Committee has to be elite athletes, which seems to be:
“An athlete must have represented the United States in Olympic, Paralympic, Pan American or other major international competition, within the preceding ten years as measured from the first AAC meeting of the quadrennium. The term ‘other major international competition’ as used herein means only a competition designated by the USOC as an Operation Gold competition.” That is a lot tougher, but it only applies to the trials and should not be impossible to meet. US Sailing may need to pay some expenses and stipends, but it would be money well spent.
To mix metaphors, the next sky is falling argument is actually the “this will open the floodgates,” argument – that everyone will want to participate in protest hearings. Sure. Although Farrah Hall was an “interested party,” she was not a “party” in Nancy Rios’ request for redress. Thus, she was not invited and, indeed, might have been excluded had she requested to participate. Her remedy was to ask for redress herself after Nancy Rios was granted redress. I leave the form of redress to your imagination. (Cut the sailors in half anyone?) Apparently she was not sea lawyer enough and was too late. USOC’s remedy is that henceforth anyone who wants to can be a party, will be apprised of their rights, and can speak their piece. Thus, the floodgates will be open to anyone who wants to waste everyone’s time. Perhaps, but my experience is that no one wants to go to the room, unless there is a good chance of bettering their own score. If the offender finished after them, they have no interest in even the most flagrant fouls, because, once you are in the room, a misguided committee (which, of course, cannot happen in sailing) can DSQ you even if you are innocent. In this particular case, there were only two sailors with any interest at all, so one sailor would have passed through the floodgates.
US Sailing’s biggest argument is that US sailors will be at a disadvantage because the Racing Rules of Sailing (RRS) will be different in the US and they will have more rights in the US. I kid you not. I guess the idea is that they will get used to those rights and will not be prepared to compete outside the US where they will have fewer rights. Well, guess what, US citizens have to cope with that problem just about any time they travel anywhere the star spangled banner does not wave. Indeed, US Sailing had to add a prescription that you cannot be discriminated against because of race, religion, etc. in a US event. That prescription does not apply in the rest of the world. Should we get rid of that one as well and go back to discriminating?
Of course, the answer is that US Sailing has to comply with US law, including the Stevens Act, whether it likes it or not – unless, of course it wants to stop being the National Governing Body for sailing in the US. In that case, it does not have to comply with the Stevens act, but the new NGB will have to.
US Sailing seems to have a bunch of 19th century rules regarding forum and evidence which magnify the financial burden of presenting your case and keep out evidence that could be introduced in any normal proceeding. While US Sailing is making a big deal about allowing evidence in contravention of the rules, all that USOC ruled is that US Sailing has to join the 21st century. The net effect will be to make things easier and cheaper for sailors, which, of course, will hurt the sea lawyers who benefit from making everything difficult and expensive.
USOC ruled that US Sailing can make any changes necessary for compliance with US law by way of prescription, which US Sailing already does. Perhaps more importantly, from Harold Vanderbilt through Dick Rose, US Sailing has been a major player in the development of the RRS. One would think that benign or beneficial US required changes might be viewed as desirable by other MNA’s as well.
US Sailing seems to have made some near frivolous arguments, which USOC dismissed (calling some “hyper-technical” -- legalese for B.S.) and may be the reason US Sailing wants to hide its papers. One is that a redress hearing is a “field of play” call, like balls and strikes. First of all, the correctness of the Hall/Rios call is not in question. More importantly, sailing has “field of play” calls under Appendix P and redress hearings are obviously a different animal.
What is next? Under § 220529 of the Stevens Act, US Sailing, which is “considering its options,” can seek “review” in an arbitration before the AAA. There are no cases regarding what “review” means, but it is usually a standard more deferential to a body like the USOC than a de novo determination would be. Of course, in an arbitration, much like the knife fight in Butch Cassidy and the Sundance Kid, there are no rules, so just about anything can happen. Arbitration has the same root as arbitrary. The loser in arbitration can always fight confirmation of the arbitral award in court, which is a really tough uphill slog under the Federal Arbitration Act. US Sailing says it has no choice and has to fight, but, of course, if you fighting about nothing there is always the “s” word – settlement. Do not count on it. Sailors, get out your checkbooks, like the dentist or proctologist said, this may hurt a little.
So, if the sky is not falling, what in the world is going on? Like I said at the beginning, this is a dock measuring contest, pure and simple. Farrah Hall’s lawyers, who are neither getting paid by Farrah Hall nor doing this pro bono, want to prove that US Sailing screwed up and gave her a raw deal and want to rub US Sailing’s nose in it, even if nothing can be done about it. US Sailing wants to prove that it is the boss and can do whatever it pleases. Great stuff. Meanwhile, $145,000.00 that could have been used to get underprivileged kids into sailing or support US Olympic athletes is at the bottom of Davy Jones’ locker and more may be on the way. US Sailing may not know it, but there’s a major recession on and the sailing industry is headed down the tubes. Unless there is some stimulus money coming its way, it may have some more pressing problems in the near future. And people criticize Ernesto and Larry. Like I said, at least they spend their own money – and get pretty decent products for it.