World Sailing: Second Misconduct case fails in 14 months
by Richard Gladwell/Sail-World.com/nz 2 Mar 2019 02:06 NZDT
1 March 2019
Iker Martinez on the helm with crew Olga Maslivets - Nacra 17 at the Sailing World Cup Marseille earlier in 2018 © Sailing Energy / World Sailing
Almost six months after a measuring incident at the Nacra 17 World Championships, World Sailing has released a report on what it calls a "Disciplinary Process" against high profile Spanish sailor Iker Martinez.
The action was started after a measurement discrepancy was found on a Nacra 17 presented by Iker Martinez, where a daggerboard bearing was found to be elongated and was 4mm out of the specified position in the class rules.
The effect of the change was said to have allowed the daggerboard to be able to reduce its angle of attack by half a degree, which it was claimed would produce a significant speed advantage through reduced drag in light winds.
It was claimed that all the fleet of 60 (in the first report to the Jury), or a sample of 45 boats (in the latest report) measure to within half a millimetre. In the samples, it was confirmed that the variation in the specified position was in the range of 74.5 to 75.00mm. The Spanish boat was measured at 79.5mm.
Between 2 August and 5 August 2018 (inclusive), ESP 70 was inspected by the Technical Committee and the maximum distance that the daggerboard bearing could move (between the back of the bearing and the front of the worm drive) was measured.
"On ESP 70, this distance was measured to be 79.5mm on both hulls. In addition, the round holes for the fitting in the stainless steel tracks had been elongated. This could not have been caused by damage or normal wear" the initial report stated.
World Sailing's Judicial Board appointed a World Sailing employee Alistair Fox as the EDIO (Event Disciplinary Investigating Officer). Fox is Director of Events for World Sailing.
In the SHK Scallywag case in December 2017, John Doerr, a veteran international judge who was not on the World Sailing payroll was appointed as the Event Disciplinary Investigating Officer.
However that appointment was not without its issues either. “At no stage did John Doerr talk to any of us. How could he, we were at sea on Leg 2. We were charged with a Rule 69 breach before we had even finished the leg to Cape Town”, Scallywag skipper David Witt told Sail-World.
“We were interviewed at the Hearing itself, but not in the Investigation phase. We were charged without being interviewed."
"Tell the Truth"
It can be inferred from the various statements and reports that the International Jury had determined that Olympic Gold medalist and Volvo Ocean Race skipper, Iker Martinez (ESP) had infringed points 11 and 12 of Case 138 of the Case book for the Racing Rules of Sailing.
These relate to "not telling the truth or whole truth at a hearing; ...falsifying personal, class or measurement documents or entering a boat known not to measure...".
In its report produced after a Hearing in Aarhus the International Jury wrote, in part:
17. On August 4 2018, Mr Iker Martinez was interviewed by the Event Disciplinary Investigating Officer (EDIO) in relation to an investigation about the modifications on ESP 70. At the start of the interview, the EDIO explained to Mr. Iker Martinez that he must tell the truth and he may be subject to disciplinary action if he stated anything false or he did not believe to be true.
18. During the interview Mr. Iker Martinez denied several times that he altered ESP 70. He was asked "Did you alter the boat, as the Jury found in the protest decision?" The answer was "No. I said that to the Jury". Mr. Iker Martinez signed the interview record as a true and accurate record of what was said.
Conclusion
19. The international jury is comfortably satisfied, bearing in mind the seriousness of the alleged misconduct, that Mr. Iker Martinez deliberately modified ESP 70 in breach of the class rules and he concealed the modification. Thereby, Mr. Iker Martinez committed a breach of good sportsmanship contrary to RRS 69.1(a).
20. The international jury is comfortably satisfied, bearing in mind the seriousness of the alleged misconduct, that Mr. Iker Martinez did not tell the truth to the EDIO. Thereby, Mr. Iker Martinez committed a breach of good sportsmanship and unethical behaviour contrary to RRS 69.1(a).
21. The international jury is comfortably satisfied, bearing in mind the seriousness of the alleged misconduct, that Mr. Iker Martinez did not tell the truth to the International Jury during this hearing. Thereby, Mr. Iker Martinez committed a breach of good sportsmanship and unethical behaviour contrary to RRS 69.1(a).
Use of the words "the international jury is comfortably satisfied" is a reference to one of three standards of proof which are discussed in detail in Case 122. Most will be familiar with the term "beyond reasonable doubt" which is used in serious criminal cases. "Comfortable satisfaction" is a mid-level standard not really explained in the case other than to say that it lies between the lowest level "balance of probabilities" used in protest decisions and "beyond reasonable doubt". Or in its English meaning if one were "uncomfortable" with decision, then by definition it had not met the "comfortable satisfaction".
The Case Book carries on for several pages on the three standards of proof tests - and clearly it is an exercise which would "comfortably" fill a wet afternoon in a rules seminar, without coming to a definite conclusion.
The full reports from the August Hearing can be read by clicking here and click here
Following such a report the matter is reported up to World Sailing and also the sailor's Member National Authority (MNA).
EDIO becomes DIO
In the second phase of the process, Alistair Fox, the World Sailing employee who was used as the Event Disciplinary Investigating Officer (EDIO) was switched out and a new Disciplinary Investigating Officer (DIO) was appointed. Tom Schubert (FIN) an experienced International Judge was appointed to the role. Sail-World is advised that he is neither an employee or contractor to World Sailing.
In the report on the World Sailing Process, released on February 27, 2019, it says: "The DIO reviewed the report submitted by the International Jury (including the evidence and recording of the hearings). The DIO also received a submission and evidence from the Real Federacion Espanola de Vela (RFEV) which explained an investigation it had carried out. As part of this, the DIO has been presented with a statement from a third party, affirmed before a notary public, that they carried out the modifications to ESP 70 and not Mr Martinez."
"Having considered this further evidence the DIO concluded that further action was not warranted because it was likely the Independent Panel appointed to consider further charges would not be comfortably satisfied that a case for further disciplinary action had been made out."
The effect of that admission of responsibility by a third party is that the case against Iker Martinez proceeded no further. In the statement there is no apology from World Sailing nor a retraction of the negative commentary about the Olympic Gold medalist and Volvo Ocean Race skipper
It is not clear whether Iker Martinez had offered the explanation mentioned in the affidavit to the International Jury or Alastair Fox, back in Aarhus in August 2018. It is difficult to see how an action could be made to stick with the affidavit by a third party admitting responsibility. In other words, the response from Martinez to the EDIO was correct and truthful.
The decision of the DIO to proceed no further is binding on all parties and is non-appealable.
World Sailing responded: "Following this decision, World Sailing’s Board of Directors has requested the Executive Office to appoint a review group to examine improvements in the investigation and prosecution of equipment cheating, the use of discretionary penalties for equipment infringements, and the consequences for sailors who present boats at inspection which do not comply with the rules."
Instead, maybe what is really needed are a few chill-pills.
Expensive misfires
The Martinez case is the second RRS69 case that has fallen over in the past 14 months.
The first was brought against David Witt and others on the crew of the Volvo Ocean Race entry SHK Scallywag, over a video shot on board on Leg 1 of the 2017/18 race, to which a race fan sitting in Australia, took exception and triggered a full hearing under the same RRS69 Misconduct. Despite only receiving two emails of complaint
The full story can be read by clicking here
The take-out is that defending a frivolous complaint cost David Witt USD40,000, it also forced them to put off making key changes at the end of Leg 1 because they would have been misconstrued, and there is an implied competitive penalty.
The effect of World Sailing's penalties is that they are far more harsh for professional sailors than for those who commit the same offence but are not earning their living from racing sailboats.
The World Sailing Regulations require each party to be responsible for its own legal costs - which can be very substantial even for an initial process. David Witt says he ran up a USD$40,000 legal bill in just a week.
While an accountant may get a 24-month ban from the sport - he/she does not lose their livelihood as a result. While a professional sailor is prohibited from competing and loses their livelihood for the period of the ban. For that reason, professional sailors have no option but to lawyer-up very quickly in the event of a charge, trumped up or otherwise, because of the very serious consequences for them. Of course, as with any corporate body which takes action against an individual, it is not the individuals within the corporate who pay the legal and other charges. It is too easy to bring serious charges when there is individual financial immunity.
The other issue is that once a Misconduct action has commenced then the sailor is effectively on Remand, and cannot compete in any regatta until the matter is determined. In this case it has meant six months out of the sport for Iker Martinez, for a matter that has now been dropped, without apology or compensation.
For the professional sailor the ramifications can continue for many years as potential sponsors and others Google the sailor's name and retrieve some very negative information from the internet. The smelly baggage has a life of its own, and doors that were once open for the professional sailor close as a result of the false allegations.
As David Witt reflected on his Hearing which was held in South Africa. "The rule (RRS69) used to be called Gross Misconduct, but it has now been re-written and is now called Misconduct. This charge still carries the stigma that I am sexually harassing a crew member. Guilty or innocent - I always lose," he said. “The whole thing is so twisted around, it is crazy.”
Change of tack
World Sailing's response to the latest failed misconduct charge appears to be embarking on a path of guilty until proven innocent. In a rider to the report on the cessation of action against Iker Martinez it says:
"Following this decision, World Sailing’s Board of Directors has requested the Executive Office to appoint a review group to examine improvements in the investigation and prosecution of equipment cheating, the use of discretionary penalties for equipment infringements, and the consequences for sailors who present boats at inspection which do not comply with the rules."
Case 122 of the Racing Rules of Sailing makes it clear:"It is also a fundamental principle in disciplinary proceedings that a person must be regarded as innocent until any allegation is proven."
The point seems to be missed that having a boat not pass scrutineering/measure at a regatta is not a desirable outcome for any crew. Usually, they will go the back of the measurement queue. If the issue is serious, they may miss the regatta, and will undoubtedly miss valuable practice and set up time.
The consequences of getting picked up in a spot measurement check are even more serious, as usually all races sailed to date will be lost.
The better approach is to invest more heavily in measurement expertise and equipment to ensure that deviations, inadvertent as a result of a repair by the crew, a boat shop or a manufacturer are picked up and resolved without an automatic presumption of cheating.
Working or not?
One view is that World Sailing's processes for handling Misconduct have now been found wanting on two occasions. The Guidance booklet runs to almost 60 pages, while World Sailing's Regulations on the matter cover another 15 pages. It seem to be a stretch to argue that more words/regulations are the answer.
Both documents attempt to address issues raised by the Court of Arbitration for Sport in the case of Dirk de Ridder vs ISAF (World Sailing's previous name) where in Article 109 the Court said "The way in which the Appellant's case was handled below has prompted the Panel, at the agitation of the Appellant and with the acquiescence of the Respondent, to set out certain non-exhaustive propositions .... which underpin the essential requirements of fairness and ensure that not is justice done but is seen to be done." click here to view and go to page 20. The creation of the EDIO and EIO roles was a response to the first of the principles outlined by CAS and perceived as being an area where World Sailing fell short of the required standard.
The alternate view is that in bringing both cases that have been stopped/dismissed, World Sailing has shown that its procedures are working. However that view ignores the collateral damage that is being caused to the professional sailors.
Iker Martinez competed in the Sailing World Cup in Miami, in early February - the first sign that his case had been dropped. He finished in a creditable seventh place after six months on the sidelines.
The full report by World Sailing can be read by clicking here.