INTRODUCTION
The form of the LSC Bylaws was
revised by USS in September of 1995. However, the basic structure used for
resolving disputes has not changed. Members of USS who disagree with a decision
or an action of taken by a meet official or any other LSC officer or who have a
swimming-related dispute with another member may appeal those decision, or may
submit those disputes, for resolution to the LSC Board of Review (formerly, the
Review Section). The Board of Review is responsible for resolving these
disputes quickly, fairly and with due process.
The purpose of this Appendix is to
help with the details of preparing and filing protests and appeals, and
handling a protest as a Board of Review member. Violation and interpretations
of the rules and regulations of USS and the LSC can have serious consequences
or involve relatively minor matters. The consequences can range from being
barred from Olympic competition for drug use to whether a club should be
penalized for being slow in distributing final meet results. Yet, to the people
involved, each dispute, each incident is just as important as the other.
Because serious matters are being
handled by the Board of Review, the Bylaws have been expanded and made more
comprehensive. Many of the sections may appear to be written in
"legalese," but that was done to insure that--as much as
possible--they would be interpreted uniformly, consistently and correctly.
While the language may be technical, the ideas behind the ByLaws'
Board of Review provisions are simple and basic. Anyone with a problem should
get a fair, impartial hearing and have the problem resolved promptly and with
due process.
The rules and procedures in Article
610 of the Bylaws are meant to provide:
·
a quick and effective remedy for the
Protestor and the Respondent;
·
a hearing by objective unbiased persons, at
first a panel of the elected members of the Board of Review, consisting of at
least three people (Article 610.5.1B);
·
several levels of appeal are provided; from
the initial Board of Review panel to a rehearing by all the members of the
Board of Review (or at least seven people, Section 610.5.2); from a rehearing decision to a National Board of
Review (Section 610.9); to an appeal to the United States Olympic Committee
under its Constitution in cases where an athlete is denied the right to compete
in international competition.
COMMON
QUESTIONS ASKED ABOUT PROTESTS AND THE BOARD OF REVIEW PROCESS
WHAT IS
DUE PROCESS?
Due process is the administration of
applicable rules and regulations so that no member is denied his or her legal
rights and the application of those rules and regulations in conformance with
the fundamental and accepted legal principles. It is the way you would want to
be treated if you were charged with misconduct. It includes:
·
Notice, in writing, if at all possible, of
the specific things that you are being charged with doing or not doing;
·
The opportunity to defend yourself against
the charges;
·
A reasonable amount of time to prepare and
present your position;
·
The right to have an attorney represent
you, if you wish;
·
A hearing before disinterested, fair and
knowledgeable persons at a time and under circumstances that give everyone a
full and fair opportunity to present their position;
·
Notice of how to appeal from a decision
that you feel is wrong.
WHAT KIND
OF PROTESTS CAN BE DECIDED BY THE LSC BOARD OF REVIEW?
The responsibility of the Board of
Review is broad but does not cover every possible dispute that might come up.
If a decision is made which affects your ability to compete in swim meets or
how you place in swim meets and you think the decision is wrong you may appeal
to the Board of Review. If you are prevented from participating in the
administration of the sport of swimming or being an official you may appeal to
the Board of Review. If a decision is made by the LSC that affects your ability
to coach swimmers you may appeal to the Board of Review. There are some matters
that should be submitted directly to the National Board of Review. Read Sections
610.4.1, 610.4.2, and 610.1 and Sections 401.2 and 401.3 of Part Four of the USS
Code to determine where your appeal should go. Remember that the Board of
Review does not involve itself in disputes involving the administration of
individual clubs unless it affects the ability of members to participate in
competition.
WHAT KIND
OF PROTESTS WILL BE DECIDED BY THE NATIONAL BOARD OF REVIEW?
Section 401.3 lists the kinds of protests
that may, or in some cases, must go directly to the National Board of Review.
They include, most matters where members of more than one LSC are involved,
matters which come up at a regional, national or international swimming
competition; matters involving moral turpitude, and matters in which the
National Board of Review determines that a fair hearing will not be held
quickly enough at the LSC Board of Review level to do justice to the affected
parties.
HOW DO I
CONDUCT A BOARD OF REVIEW HEARING?
The new Bylaws have expanded the
sections that explain hearing procedures. The By- Laws now provide a step by
step outline of the steps to be taken and procedures to be used when a protest
occurs (Sections 610.5 and 610.6). The purpose of the Article remains the same, i.e.,
to give due process to any individual or any entity, club or organization
participating in any activity of any kind of the LSC or United States Swimming
- not just athletes, but coaches, officers, committee chairmen and members,
officials, clubs and all classes of members as well.
The process can be summarized as
follows:
A.
The Protestor must give a written protest
to the Chairman of the Board of Review. (See Section 610.6.1A.) [If the LSC has a filing fee, this should be noted
here.] (Check to see if your LSC has an office that
will transmit the protest to the Chairman of the Review Section and follow up
to find out when the Chairman actually received the protest.)
B.
The Chairman of Board of Review may have an
investigation made to see if the dispute can be resolved before a hearing. It
is not unusual to have disputes cleared up when an impartial party listens to
both sides and tries to mediate a dispute. This kind of informal resolution is
to be encouraged.
C.
A written Notice must be prepared and
delivered by the Chairman to the Respondent. (See Section 610.6.1B and the suggested form of Notice which is in Appendix
B.)
D.
Written statements of position may be filed
by all parties to the appeal. (See Sections 610.6.1C and 610.6.1D.)
E.
A hearing must be scheduled by the Chairman
to take place within 74 days from the date when the Chairman of the Board of
Review received the Protest.
F.
A hearing may be held (if everyone involved
agrees the protest can be considered on the written statements that have been
submitted without a formal hearing). Use common sense in conducting the
hearing. (See Sections 610.5.1D and 610.6.1E.) Make all parties feel that they have a fair chance
to state their position and that the Board has an open mind as it listens to
their position. In all events give the athlete the benefit of the doubt!
G.
The Board of Review must decide the matter
within ten (10) Business Days of the conclusion of the hearing. (If time is not
critical, it may be advantageous to delay the decision for a few days after the
hearing to give full consideration to all the facts presented in a hearing
rather than making a ruling immediately upon conclusion of the hearing.)
H.
The Board must send copies of its decision
to the parties involved and certain administrators. See Section 310.6.1 F of
Part Three of the USS Code and Section 610.6.2D of the Bylaws as to who must get copies of the
decision.
I.
The parties must be given a statement
telling them what they must do to appeal the Board of Review's decision and how
long they have to appeal.
THE MEET
DIRECTOR JUST TOLD ME THAT MY SWIMMER'S PROOF OF TIME IS NOT ADEQUATE AND THE
SWIMMER WON'T BE IN THE EVENT LATER THIS MORNING. THE MEET DIRECTOR IS WRONG
AND WE CAN'T WAIT FOR A HEARING FROM THE BOARD OF REVIEW. WHAT DO I DO?
First, you should review the meet
information to see if it provides for any kind of appeal such as the
Eligibility Jury provided for at the National Championships. (Article 206.5,
Part Two of the USS Code.) If you still believe your swimmer is being
improperly kept out of the meet you should ask for an emergency hearing from
the Board of Review. The Bylaws give the Board of Review a great deal of
flexibility in handling emergency situations. Get on the telephone to the
Chairman of the Board of Review or the LSC General Chairman and make
arrangements to set up an emergency hearing under Section 610.6.2 of the Bylaws.
The Federal law which created
National Sports Governing Bodies such as United States Swimming states that an
athlete cannot be suspended from competition, even temporarily, without a
hearing.
Members of the Board of Review
should keep in mind their responsibility to conduct emergency hearings whenever
they are at a swim meet and should alert the Meet Manager of their presence.
The Chairman of the Board of Review should always make arrangements in advance
to see that a panel can be available at championship meets.
A meeting
at the swim meet or an exchange of information by telephone
and fax can be arranged to permit a timely decision even if the athlete must
compete under protest. (See Section 102.11 of Part One of the
USS Code.)
After the meet is
concluded, a full formal hearing may be conducted at the request of the
Protestor or the Respondent.
SAMPLE
NOTICE OF HEARING UNDER SECTION 610.6.1B
(Form may, and
should, be modified to fit the actual circumstances)
NOTICE OF HEARING
To:
[INSERT RESPONDENT'S NAME AND
MAILING ADDRESS]
SUBJECT:
You are charged with having
committed the following acts [or with having failed to act in circumstances]
which are detrimental to the objectives, programs or ideals of United States
Swimming and which tend to bring disrepute upon the sport of swimming:
[Insert details of charge; may be a
summary if Protest is unnecessarily lengthy.]
This charge is based upon a protest
that was filed by
[Insert Protestor's name and address
and the name and address of Protestor's counsel, if any).] Attached hereto is a
copy of the Protest filed with the XX Swimming, Inc. Board of Review.
ANSWER:
You are
requested to file an answer in writing to these charges with the Presiding
Officer of the Board of Review whose mailing address is
[Insert Name and Address of the
Chairman of the Board of Review or other person designated as the Presiding
Officer in this case]
and to
[Insert Protestor's name and address
or that of its counsel, if so requested.]
at least ten
(10) days prior to the date of hearing that is set in this Notice of Hearing.
The hearing will proceed whether or not you file this reply. (See
Sections 610.6.1C and 610.10.2.)
HEARING
DATE, TIME AND PLACE:
The initial date set for the formal
[or other type - see Section 610.5.1D] hearing is (insert date, time and place of hearing)
or to such other date, time or place as the Presiding Officer continues,
adjourns or reschedules the hearing. You are requested to appear at that time
with counsel and any witnesses. [This part would need to be rephrased if the
proceeding were to be conducted entirely in writing or in writing with only
oral argument at a hearing.]
HEARING
AUTHORITY:
The
power and authority of the North Dakota Swimming, Inc. Board of Review is
established, and this hearing shall be held pursuant to, Article 610 of the
Bylaws of North Dakota Swimming, Inc. A copy of Article 610 is enclosed for
your information.
HEARING
BODY:
The
hearing body will be the three member panel of the Board of Review of North
Dakota Swimming, Inc. [insert names of members of the Board of Review
designated to serve on this panel] or such other persons as are appointed
pursuant to the Bylaws of North Dakota Swimming, Inc.
[This should be rephrased if the
initial panel is of more than three or is the full Board of Review.]
POSSIBLE
PENALTIES:
The Protestor has requested that
(here insert what the protestor has asked for). In addition the Board of Review
has a broad range of sanctions, penalties and suspensions that it may impose on
you if it believes that such are appropriate either in addition to or in lieu
of those that the protestor is seeking. (See Section 610.4.7A.)
APPEAL:
If you are dissatisfied with the
decision, you must file a request for a rehearing before the full Board of
Review within ten (10) Business Days of your receipt of the decision, unless
the initial panel was the full Board of Review or had seven members. (See
Section 610.5.2) The request must be filed with the Chairman of the
Board of Review [here give name and address]. [If your LSC has imposed a filing
fee applicable to a request for a rehearing, this should be noted here.] Your
request must be granted if the decision was rendered by a panel of fewer than
seven members and the decision was not unanimous. Otherwise the Board of Review
may either grant or deny a rehearing in its discretion. If the decision is not
subject to a request for a rehearing, a rehearing request is denied or the
decision is the decision on a rehearing, an appeal may be made to the National
Board of Review. The appeal must be filed with the USS Executive Director along
with an appellate filing fee of $50.00 within thirty (30) Business Days after
the postmark date of written notice of the decision of the Board of Review. (Section 610.9.) The address of the USS Executive Director is
United States Swimming, Inc., One Olympic Plaza, Colorado Springs, CO
80909-5770.
GENERAL
INFORMATION:
You are entitled to be represented
by counsel at your own cost, or by such other
representative as you may choose, to have witnesses testify in your behalf, to
question witnesses testifying at the hearing and to submit any and all evidence
in your defense, including hearsay and documentary evidence, so long as it is
relevant to the issues. You are entitled to ask that the hearing date be
rescheduled so that you may attend, secure witnesses or otherwise respond.
Please direct all questions or correspondence to Chairman of the Board of
Review of North Dakota Swimming, Inc., [insert name] at [insert mailing
address].
Dated (Insert date on which notice
is mailed)
Signed
________________________________________
Chairman of the Board of Review
[If the notice is signed by the designated Presiding Officer, the title line should be changed accordingly.]