27 March 2017

South African Sailing Rule 69 Investigation

The L26 Class Owners Association and the Lipton Cup Trustees referred anallegationof an infringement of the Racing Rules of Sailingto South African Sailing (SAS)shortlybeforethe Lipton Cup last year.SAS undertook a Rule 69 investigation. The exercisetooka long timeas the incidenthad takenplace many yearsbeforeand multiple parties made submissions. Time had to be allowed for answeringresponses to positions taken. The investigation was concluded in late October and subsequently was reviewed by World Sailing. Finally, the SAS findings were communicated to all the relevant parties inDecember before the Christmas recess.

The initial report of the investigating panel was questioned in relation to the interpretation of an aspect of rule 69. The matter was again referred to World Sailing for guidance. At issue was whether SAScould impose a sanction on the sailors without a hearing being conducted. The guidance was that SAS could not do so. Accordingly, the wording of the SAS communication was amended to accord withthe World Sailing interpretation of the rule and the findings were communicated to the parties on the 1stof February 2017.

It is important to note that the final outcome for the reported sailors is the same. The sailors themselvesstated that they intended to retireand return their titles. Such outcome reflects the effectiveoutcome recommended by the investigators.

The uncontested facts established by the Investigation werethat:

  • The reported parties, Messrs. AndreaGiovanni and Markus Progli,were the co-skippers of L26 from 2010.
  • During 2010, modifications were made to the boat which included the use of two metal inserts under the mast step, in breach of the class rules. This is a substantial breach of the Rules.
  • The reported parties sailed the L26 007 in competition on a number of occasions, with the modifications in place, most notably in the 2011 and 2013 Lipton Challenge Cup Regattas, both of whichwere won by L26 007.
  • The onus for compliance with the rules rests firmly on the reported parties. The sailorswerein breach ofat leastRule 78.1 of the Racing Rules of Sailing and Rule 2.3.6 of the Class Rules.

Therewasno indication of direct intent to breach the rules. In fact, the sailors raised the issue with the Technical Committee of the L26 Class themselves in the course of planning boat alterations for the2016 Lipton Cup. But for this information freely volunteered the transgression would not have become public knowledge. However,the onus is clear, and at the very least, the reported parties werenegligent in not properly monitoring the modifications to ensure compliance. This negligence does not amount to gross misconduct as envisaged in the Racing Rules of Sailing.

SAS was tasked with an investigation into potential gross misconduct by the reported parties. Having found that no gross misconduct was present, SAS haddischarged its mandate. The sailors hadexpressed their intention to retireand return their titles. The matter was referred back to the reported parties, the Trustees and the L26 Class to formalize the retirements. The retirements have nowbeen lodged and the aftermath isbeing dealt with bythe Trustees.

With regard to the reliance on an International Judge outside of South Africa no disrespect is implied to South Africa’s own IJ’s. We referred the matter to World Sailing for two reasons. Firstly, Rule 69 is arule under development with precedent setting case law still being built. South Africa would like to be seen as a responsible MNA (Member Nation Authority) playing a leading role in our InternationalFederation open to input and leadership from others. A criticism is that too many MNA’s hold contentious issues to themselves and leadership is lost In addition, our sailing community is so small that itwas seen as an advantage to have a completely arm’s length assessment of our process. Indeed, it is often the case that our own IJ’s, given the high regard with which they are held in international circles,adjudicate matters involving sailors in other MNA’s.

This process has taken far too long. Furthermore, SAS made a mistake in imposing a sanction without a hearing. For this we apologize. Lessons have been learnt and the exercise has been salutary.

Philip Baum

President

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