CASE 122

Rule 69.2(g), Misconduct: Action by a Protest Committee

An interpretation of the term ‘comfortable satisfaction’ and an example of its use.

Facts for Question 1

Based on a report that the protest committee received, it believes that a person (competitor, boat owner or support person) may have broken rule 69.1(a). It has called a hearing and taken the evidence of the party and witnesses.

Question 1

Rule 69.2(g) requires that, before the committee warns or penalizes the person, it shall be established to ‘the comfortable satisfaction of the protest committee, bearing in mind the seriousness of the alleged misconduct’, that the person has broken rule 69.1(a).

What is the meaning of ‘comfortable satisfaction’ as used in rule 69.2(g)?

Answer 1

‘Comfortable satisfaction’ is one of three standards of proof commonly used in courts of law or arbitration hearings. The other two standards are ‘proof beyond a reasonable doubt’ and ‘balance of probabilities’. The ‘proof beyond a reasonable doubt’ standard is the strictest of the three standards. It is usually reserved for serious criminal cases. The ‘balance of probabilities’ standard (also sometimes referred to as the ‘preponderance of the evidence’ standard) is the least strict of the three, and it is widely used in civil legal proceedings.

Both the World Anti-Doping Agency and the Court of Arbitration for Sport use the ‘comfortable satisfaction’ standard. The World Anti-Doping Agency uses that standard in hearings to determine whether or not an athlete has violated the World Anti-Doping Code. Article 3.1 of the code states that, bearing in mind the seriousness of the allegation, it shall be established to the ‘comfortable satisfaction’ of the hearing panel that a violation occurred. Article 3.1 goes on to state, ‘This standard of proof in all cases is greater than a mere balance of probabilities but less than proof beyond a reasonable doubt.’

Rule 64.1(a) states that a protest committee shall make its decisions based on the ‘balance of probabilities’ standard, unless provided for otherwise in the rule alleged to have been broken. The ‘balance of probabilities’ standard is whether it is more likely than not that the rule was broken.

Rule 69.2(g) specifically requires that in a rule 69 hearing the protest committee use the more strict ‘comfortable satisfaction’ standard. The rule further requires the seriousness of the alleged conduct to be considered as an important factor when the committee is addressing whether or not it is ‘comfortably satisfied’ that the alleged offence was committed. The ‘comfortable satisfaction’ standard is always more strict than the ‘balance of probabilities’ standard but is less strict than the standard of ‘beyond a reasonable doubt’. In between these two limits, the standard of proof is a sliding scale, based on the seriousness of the allegations before the committee.

It is also a fundamental principle in disciplinary proceedings that a person must be regarded as innocent until any allegation is proven. Therefore part of the ‘comfortable satisfaction’ test is whether or not the evidence presented to the committee is sufficient to mean the person is no longer presumed to be innocent.

The last sentence of the Terminology section of the Introduction implies that the words ‘comfortable’ and ‘satisfaction’ are used in rule 69.2(g) in ‘the sense ordinarily understood in . . . general use.’ Both ‘comfortable’ and ‘satisfaction’ are frequently used in everyday speech, and so most judges will be familiar with how they are generally used. Judges could also consider whether they feel ‘uncomfortable’ with any conclusion reached. If they are uncomfortable, then they are not ‘comfortably satisfied’.

Note that in a rule 69 hearing, the protest committee must answer ‘Yes’ to both of the following questions before it warns or penalizes a competitor or boat under rule 69.2(h) or 69.2(i):

• Is the committee comfortably satisfied that the facts found establish that the alleged conduct occurred?
• Is the committee comfortably satisfied that the conduct that occurred was misconduct sufficiently serious to warrant the warning or penalty?

As rule 69.1(b) states, an act of misconduct may be a breach of good manners or sportsmanship, unethical behaviour, or conduct that may bring the sport into disrepute.

Question 2

Please provide a plausible example of a report of an incident alleging misconduct and a report of a hearing under rule 69.2 in which the ‘comfortable satisfaction’ standard is used.

Answer 2

Boat A had been presented for pre-event measurement and a required corrector weight was properly attached under a floorboard that was held in place by several screws. During the event, A was spot checked by a member of the technical committee, and the corrector weight was missing. The technical committee protested the boat for breaking rule 78.1 and rule 2, and at the conclusion of a hearing of that protest, the protest committee disqualified A for breaking those rules.

Acting under rule 69.2(b) and (e), the protest committee then decided to call a hearing and, in its notice to A’s crew, it alleged that the crew had removed the corrector weight, and that that action was an act of misconduct and, therefore, a breach of rule 69.1(a). Boat A was represented at the hearing by P, who was the helmsman of A and the person in charge of A. P denied having any knowledge of the missing corrector weight. He explained that the boat was left unlocked and unattended every night. He alleged that somebody else had removed the corrector weight during the night. A’s crew were called as witnesses. They also testified that they had no knowledge of the missing weight and that they had seen no evidence that the floorboard had been removed and replaced.

Nearly all the evidence supported the allegation that a member of A’s crew had removed the corrector weight. Because tools were needed to remove the weight, the committee concluded that the weight had been removed deliberately (not accidentally). A gained an advantage by the weight’s removal, and its removal was not likely to be discovered because the floorboard was screwed into place. The only contradictory evidence was that each member of the crew denied having removed the weight. The protest committee concluded that it was comfortably satisfied that a member of A’s crew had removed the weight and that that action constituted an act of misconduct and, therefore, a breach of rule 69.1(a). A was penalized under rule 69.2(h)(2) by being scored DNE for all races in the event.

Because nearly all the evidence supported the allegation, the committee would have reached the same conclusion had it used the ‘balance of probabilities’ standard of proof. However, if the committee had used the ‘beyond a reasonable doubt’ standard, it might well have reached a different conclusion. No member of A’s crew ever admitted removing the weight, and it was, in principle, possible that someone else could have removed it because the boat was often left unattended and unlocked. Therefore, there was a possibility that the weight could have been removed without the knowledge of A’s crew. Consequently, if the standard of proof had been ‘beyond a reasonable doubt’, the committee probably would not have concluded that a member of A’s crew removed the weight.

World Sailing 2012