Anatomy of an Anatomy of an AppealAppeal

North American FIS TD Working Group

©Gary Wright/Paul Van Slyke 2007

Jury ProblemJury Problem

This jury problem is different than most of the ones we This jury problem is different than most of the ones we review because the situation below is an appeal. Most review because the situation below is an appeal. Most of us will never serve on an appeal commission to of us will never serve on an appeal commission to review the propriety of a jury decision. However, I am review the propriety of a jury decision. However, I am hopeful that everyone will be able to identify the errors hopeful that everyone will be able to identify the errors made by the jury that led to the appeal. made by the jury that led to the appeal.

Keep in mind that just because the jury made a Keep in mind that just because the jury made a mistake, does not automatically mean the appeal mistake, does not automatically mean the appeal should be granted and the jury decision overturned. should be granted and the jury decision overturned. Here, this situation is loosely based on real events. The Here, this situation is loosely based on real events. The names have been changed to protect the guilty. names have been changed to protect the guilty.

  This appeal is from a jury decision from This appeal is from a jury decision from a regional FIS race, a Ladies’ SL, held in a regional FIS race, a Ladies’ SL, held in the southern hemisphere. The pertinent the southern hemisphere. The pertinent facts can be determined from the facts can be determined from the attached Appeal of Jury Decision. You attached Appeal of Jury Decision. You may assume that the appeal was timely may assume that the appeal was timely filed and all filing fees paid. Please filed and all filing fees paid. Please discuss and answer the following discuss and answer the following questions:   questions:  

1. 1. What documentary information What documentary information should the Appeal Commission should the Appeal Commission

request and obtain to use in its request and obtain to use in its evaluation of the appeal?evaluation of the appeal?

2. 2. Would you interview any Would you interview any individuals regarding this individuals regarding this situation? If so, who would you situation? If so, who would you interview and what would you ask interview and what would you ask them?them?

3. 3. What Rules Should You What Rules Should You Consider in Evaluating this Appeal?Consider in Evaluating this Appeal?

4. 4. What would you do differently?What would you do differently?

5. 5. What result do you think the What result do you think the Appeal Commission reached and Appeal Commission reached and why?why?

Jury Meeting NotesJury Meeting Notes During the second run of the Paraguay Cup, a slalom During the second run of the Paraguay Cup, a slalom

taking place on 4 August 2007. Racer 14 taking place on 4 August 2007. Racer 14 (representing the Bolivian Race Association) was not (representing the Bolivian Race Association) was not charged with a fault by the responsible gatekeeper. charged with a fault by the responsible gatekeeper. Shortly after the run there was a question regarding Shortly after the run there was a question regarding proper passage of gate 26 by racer 14 presented to proper passage of gate 26 by racer 14 presented to the Referee by Don “Eagle-eyes” Gringo the Referee by Don “Eagle-eyes” Gringo (representing Federation Argentina Groupe). The (representing Federation Argentina Groupe). The referee interviewed the gatekeeper responsible as referee interviewed the gatekeeper responsible as well as the keeper above and below. The gatekeeper well as the keeper above and below. The gatekeeper assigned to the gate had no notation of a fault for assigned to the gate had no notation of a fault for the racer. The gatekeepers above and below had no the racer. The gatekeepers above and below had no notation either notation either

Following the race and after the Referees Following the race and after the Referees Report was posted a protest was submitted Report was posted a protest was submitted by Juan Garcia (also representing by Juan Garcia (also representing Federation Argentina Group). The protest Federation Argentina Group). The protest was filed in a timely manner and the was filed in a timely manner and the protest fee was accepted. The Jury agreed protest fee was accepted. The Jury agreed to accept a fee of $40 and the protestor to accept a fee of $40 and the protestor had only one five hundred thousand-peso had only one five hundred thousand-peso bill and there was no change available.bill and there was no change available.

Testimony from: Juan Garcia and Dan Testimony from: Juan Garcia and Dan Eagle-eyes GringoEagle-eyes Gringo

Juan and Eagle-eyes testified that they Juan and Eagle-eyes testified that they were standing together at the finish line were standing together at the finish line approximately 50 meters from gate approximately 50 meters from gate #26, and observed racer 14 straddle the #26, and observed racer 14 straddle the gate. Both witnesses agreed that they gate. Both witnesses agreed that they had seen clearly and had no doubt of had seen clearly and had no doubt of their observation.their observation.

Testimony from: Pablo Martinez and Testimony from: Pablo Martinez and Luis Limonade Luis Limonade

Pablo and Luis were standing two gates Pablo and Luis were standing two gates below gate 26 and both stated that below gate 26 and both stated that they clearly saw racer 14 straddle gate they clearly saw racer 14 straddle gate #26. They further stated that they #26. They further stated that they commented to each other at the time commented to each other at the time that the racer had straddled the gate.that the racer had straddled the gate.

Acting on the statement from Eagle-Acting on the statement from Eagle-eyes immediately following racer 14's eyes immediately following racer 14's run, the gate judge for the gate in run, the gate judge for the gate in question was interviewed by the question was interviewed by the Referee and found to be a new gate Referee and found to be a new gate keeper, with no experience, who asked keeper, with no experience, who asked for help and clarification of faults for help and clarification of faults during the process of the interview. during the process of the interview.

It was the Referees observation that It was the Referees observation that the gatekeeper was very nervous the gatekeeper was very nervous and unsure of her job. She also and unsure of her job. She also stated that she did not want “to get stated that she did not want “to get in trouble with any of the parents” in trouble with any of the parents” and that “many of the parents are and that “many of the parents are armed.”armed.”

No representative for the athlete was No representative for the athlete was available to be interviewed or represent available to be interviewed or represent the athlete. All members of the athletes’ the athlete. All members of the athletes’ home organization had left the venue. home organization had left the venue. The Jury attempted to locate anyone to The Jury attempted to locate anyone to represent the athlete by going through represent the athlete by going through the lodge asking for anyone from the the lodge asking for anyone from the organization. In addition, no video organization. In addition, no video evidence could be located.evidence could be located.

Jury found that all of the evidence Jury found that all of the evidence presented supported granting the presented supported granting the protest and disqualifying racer #14 protest and disqualifying racer #14 for incorrect passage of gate #26 on for incorrect passage of gate #26 on second run. second run.

Paraguay Cup Slalom #4Paraguay Cup Slalom #4

Blue Sky Mountain Ski AreaBlue Sky Mountain Ski Area

FIS Codex P22334FIS Codex P22334

Appeal of Jury DecisionAppeal of Jury Decision

The racer wearing bib 14 (“Appellant”) The racer wearing bib 14 (“Appellant”) finished her first run 3 seconds ahead of the finished her first run 3 seconds ahead of the second place finisher. The Appellant finished second place finisher. The Appellant finished the second run and received a valid finish the second run and received a valid finish time. The valid time placed her in first place time. The valid time placed her in first place for the overall race. All gate judges recorded for the overall race. All gate judges recorded that bib 14 passed correctly through each that bib 14 passed correctly through each gate. The posted Report of the Referee did gate. The posted Report of the Referee did not list bib 14 as a DSQ.not list bib 14 as a DSQ.

A team captain representing another A team captain representing another competitor subsequently protested competitor subsequently protested the referee report. The basis for the referee report. The basis for protest was that in the coaches’ protest was that in the coaches’ opinion, bib 14 faulted, but was not opinion, bib 14 faulted, but was not listed on the referee report. listed on the referee report.

IRC 641 describes types of protests that are IRC 641 describes types of protests that are permitted. While the rule provides for a permitted. While the rule provides for a protest “against disqualification” (641.4), the protest “against disqualification” (641.4), the rule does not provide for a protest against rule does not provide for a protest against non-disqualification. On this basis alone the non-disqualification. On this basis alone the protest was invalid to begin with and should protest was invalid to begin with and should not have been allowed. Furthermore, if non-not have been allowed. Furthermore, if non-disqualifications could be protested, arguably disqualifications could be protested, arguably every racer in every race with a clean gate every racer in every race with a clean gate judge card would be subject to a protest..judge card would be subject to a protest..

The jury not only allowed the protest The jury not only allowed the protest to come in, but also upheld the to come in, but also upheld the protest based solely on the verbal protest based solely on the verbal testimony from third-party testimony from third-party interveners, all of who had a vested interveners, all of who had a vested interest in the outcome. interest in the outcome.

IRC 662.2 allows for written notes IRC 662.2 allows for written notes from other gates judges, a member of from other gates judges, a member of the jury, or an official video controller the jury, or an official video controller to be interpreted by the jury in view to be interpreted by the jury in view of a decision concerning a protest. of a decision concerning a protest. None of the third party interveners None of the third party interveners were other gate judges, members of were other gate judges, members of the jury, or official video controllers.the jury, or official video controllers.

Neither the Appellant-Athlete, nor her Neither the Appellant-Athlete, nor her coach were ever contacted or called coach were ever contacted or called upon to give testimony regarding the upon to give testimony regarding the protest seeking her disqualification. protest seeking her disqualification. Two of the Appellant- Athletes’ Coaches Two of the Appellant- Athletes’ Coaches Jose Cuervo and Timmy Tequila were Jose Cuervo and Timmy Tequila were present in the ski lodge after the race present in the ski lodge after the race was complete, around 2 p.m. was complete, around 2 p.m.

A team captain representing another A team captain representing another competitor subsequently protested competitor subsequently protested the referee report. The basis for the referee report. The basis for protest was that in the coaches’ protest was that in the coaches’ opinion, bib 14 faulted, but was not opinion, bib 14 faulted, but was not listed on the referee report. listed on the referee report.

Jose Cuervo assisted the host mountain in Jose Cuervo assisted the host mountain in dismantling the course. At no time during dismantling the course. At no time during this period were either Jose or Timmy this period were either Jose or Timmy contacted or made aware that there may be contacted or made aware that there may be an issue with one of the Appellant- Athlete an issue with one of the Appellant- Athlete who was one of their athletes. Jose and who was one of their athletes. Jose and Timmy saw many coaches of other teams Timmy saw many coaches of other teams as well as race officials around the venue as well as race officials around the venue for more than an hour after the Ladies race. for more than an hour after the Ladies race.

Neither Jose, Timmy nor the Athlete-Neither Jose, Timmy nor the Athlete-Appellant were notified that a protest Appellant were notified that a protest had been filed against bib 14 or that had been filed against bib 14 or that the jury would meet to consider a the jury would meet to consider a protest against bib 14's successful protest against bib 14's successful 2nd run. 2nd run.

In fact, Jose and Timmy were notified by In fact, Jose and Timmy were notified by telephone later that evening that bib 14 telephone later that evening that bib 14 was disqualified. Yet, no phone calls was disqualified. Yet, no phone calls were made to Neither Jose, Timmy nor were made to Neither Jose, Timmy nor the Athlete-Appellant earlier while the the Athlete-Appellant earlier while the jury was considering the protest. We jury was considering the protest. We believe that this jury decision is grossly believe that this jury decision is grossly unfair and should be reversed for the unfair and should be reversed for the following reasons:following reasons:

The protest was invalid. Rule 641 does The protest was invalid. Rule 641 does not provide for a protest against a non-not provide for a protest against a non-disqualification and the athlete was not disqualification and the athlete was not disqualified on the course.disqualified on the course.

All of the gate judges accounts and All of the gate judges accounts and written records show absolute correct written records show absolute correct passage at every gate on the course in passage at every gate on the course in accordance with Rules 662.3, 662.4, and accordance with Rules 662.3, 662.4, and 662.4.1.662.4.1.

The athlete was not listed on the The athlete was not listed on the original DSQ list and would not have original DSQ list and would not have known that a protest was filed.known that a protest was filed.

None of the third party None of the third party interveners were other gate judges, interveners were other gate judges, members of the jury, or official video members of the jury, or official video controllers as discussed in Rule 662.2. controllers as discussed in Rule 662.2.

A team captain representing another A team captain representing another competitor subsequently protested competitor subsequently protested the referee report. The basis for the referee report. The basis for protest was that in the coaches’ protest was that in the coaches’ opinion, bib 14 faulted, but was not opinion, bib 14 faulted, but was not listed on the referee report. listed on the referee report.

The jury meeting was conducted The jury meeting was conducted without representation for the without representation for the athlete, although two of her coaches, athlete, although two of her coaches, Jose and Timmy were present at the Jose and Timmy were present at the venue.venue.

For these reasons we strongly urge For these reasons we strongly urge you to reverse the jury’s decision and you to reverse the jury’s decision and allow this athlete’s originally allow this athlete’s originally recorded time to stand.recorded time to stand.

Respectfully submitted, Respectfully submitted, Jose Cuervo Jose Cuervo and Timmy Tequilaand Timmy Tequila

Back to the original Questions…….Back to the original Questions…….

1. 1. What documentary What documentary information should the Appeal information should the Appeal Commission request and obtain Commission request and obtain to use in its evaluation of the to use in its evaluation of the appeal?appeal?

Written protest, first and second start Written protest, first and second start lists, official results including penalty lists, official results including penalty calculation, first and second run calculation, first and second run Report by the Referee, Minutes of Report by the Referee, Minutes of Jury Decision (with protest), Gate Jury Decision (with protest), Gate Judge Card, Start and Finish Referee Judge Card, Start and Finish Referee Recording Forms, and Technical Recording Forms, and Technical Delegate Report. Delegate Report.

2. 2. Would you interview any Would you interview any individuals regarding this individuals regarding this situation? If so, who would you situation? If so, who would you interview and what would you interview and what would you ask them?ask them?

Coach or Team CaptainCoach or Team Captain - questions:- questions:

1. 1. Location at time of athlete’s 2nd run.Location at time of athlete’s 2nd run.

2. 2. What did you see and specifically, did What did you see and specifically, did youyou

see the athlete’s run?see the athlete’s run?

33. . When did you review the referee report When did you review the referee report for this run?for this run?

4.4. When and how did you become aware When and how did you become aware of of any protest relating to this run? any protest relating to this run?

5.5. When and how did you become When and how did you become aware that aware that racer 14 had been racer 14 had been disqualified based on a disqualified based on a protest filed protest filed with the jury?with the jury?

6.6. Anything else you want to tell me? Anything else you want to tell me? If so, If so, what? what?

The Athlete - questions:The Athlete - questions:

1.1.Tell me about your 2nd run of the slalom. Tell me about your 2nd run of the slalom. Did you think you missed any Did you think you missed any gates or gates or have any close calls? If so, what have any close calls? If so, what happened?happened?

2.2.Did you check the referee report or did Did you check the referee report or did you rely on your coach?you rely on your coach?

3.3.When did you become aware that there When did you become aware that there had been a protest which sought and had been a protest which sought and obtained your disqualification?obtained your disqualification?

To the Jury as a Whole: To the Jury as a Whole:

1.1. Was the protest against racer 14's Was the protest against racer 14's correct passage filed in a timely correct passage filed in a timely manner and if so, when?manner and if so, when?

2.2. When was the jury convened? When was the jury convened?

3.3. Was there a delay and what Was there a delay and what information was obtained from the information was obtained from the racer or racer’s team captain?racer or racer’s team captain?

4.4. What time did the jury make its What time did the jury make its decision? decision?

5.5. How was it published?How was it published?

6.6. What did you do to obtain as many What did you do to obtain as many witnesses as possible for the protest?witnesses as possible for the protest?

7.7. What witnesses did you interview for What witnesses did you interview for the the protest?protest?

8.8. Did you confirm their location and Did you confirm their location and proximity to the gate that racer 14 proximity to the gate that racer 14

allegedly missed? allegedly missed?

To the Technical Delegate:To the Technical Delegate:

1.1. Please explain how your jury satisfied Please explain how your jury satisfied the the requirements of 224.7 “the person requirements of 224.7 “the person accused accused of an offense shall be given an of an offense shall be given an opportunity opportunity to present a defense at a to present a defense at a hearing, orally or hearing, orally or in writing?”.in writing?”.

2.2. Under what circumstances can the jury Under what circumstances can the jury waive this requirement?waive this requirement?

3.3. What constituted an opportunity What constituted an opportunity for for the person accused of an offense the person accused of an offense in in this situation?this situation?

4.4. What discussion occurred among What discussion occurred among the the jury regarding due process?jury regarding due process?

3. 3. What Rules Should You What Rules Should You Consider Consider in Evaluating this in Evaluating this Appeal? Appeal?

224.7, 601.4.4.2, 644.3, 224.7, 601.4.4.2, 644.3, 645,645,

647, 662.3, 666.2, 668, and 670.647, 662.3, 666.2, 668, and 670.

4. 4. What would you do What would you do differently?differently?

5. 5. What result do you think the What result do you think the Appeal Commission reached Appeal Commission reached

and and why?why?

Remember Where

It All Begins!