By-Laws for Missouri Valley Swimming

Article 11

Article 11 -- Board of Review, Hearings, and Appeals

11.1  INTRODUCTION -- USAS was organized as the National Governing Body for the sport of swimming under the Amateur Sports act of 1978, a federal law. That law requires USAS to establish and maintain provisions for the swift and equitable resolution of all disputes involving any of its members. This Article, together with Section 2.2 and Article 10, and the USAS Code of Ethics, are intended to provide a clear statement of member responsibilities, liabilities for infractions thereof and a mechanism for resolving in an orderly and fair way all manner and kinds of disputes that may arise among its members in connection with the sport of swimming. Accordingly, MVS has established the Board of Review to hear complaints, protests and appeals regarding the administration and conduct (including acts and failures to act) of the sport of swimming in the Territory, conduct that may violate the USAS Code of Ethics or otherwise violate the policies, procedures, rules and regulations adopted by USAS or MVS, or conduct that may bring USAS, MVS, or the sport of swimming into disrepute. This Article is intended to provide a uniform method of appeal from any decision, act or failure to act to which a member of MVS or, where the conduct occurred in the Territory, another LSC, takes exception, and to provide an opportunity for a fair hearing before a group of impartial people. This Article shall be construed accordingly.

11.2  DEFINITIONS FOR ARTICLE 11 -- When used in the Article 11, the following terms shall have the meanings indicated in this Section and the definitions of such terms are equally applicable both to the singular and plural forms. Where a cross reference to another Section of the By-Laws appears within the definition, the definition is qualified by the more complete definition found in that Section.

11.2.1  "Answer" shall mean the written response to a Protest Filed in accordance with Section 11.6.1(c).

11.2.2  "Chair" when standing by itself shall mean the Chair of the Board of Review.

11.2.3  "Notice" shall mean the writing addressed to the Respondent advising that the Respondent has been named a respondent in a Protest and served in accordance with Section 11.10. The Notice sets the hearing date and procedures and establishes the schedule to be followed leading to the hearing, among other things. See Section 11.6.1.B.

11.2.4  "Presiding Officer" shall mean the Chair or another member of the Board of Review designated by the Chair to preside at a particular hearing or hearings. Where applicable, the term shall include an attorney so designated pursuant to Section 11.3.12(b).

11.2.5  "Protest" shall mean a written complaint filed in accordance with Section 11.6.1(a) by a Group Member, or an applicant for such status, or an Individual Members, or applicant for such status, against another member or constituent element of MVS relating to the reason for an applicant having been denied membership of the member's infraction against its responsibilities under Section 2.2 or about a decision or action by someone acting under the authority of MVS or USAS.

11.2.6  "Protestor" shall mean the Individual Member or Group Member that has filed a Protest with the Board of Review.

11.2.7  "Rebuttal" shall mean the written response to an Answer by a Protestor filed in accordance with Section 11.6.1(d) and served in the manner prescribed in Section 11.10.

11.2.8  "Respondent" shall mean the person against whom the Protest has been filed with the Board of Review or who may be affected by a decision of the Board of Review regarding the Protest.

11.2.9  "Vice-Chair" when used by itself shall mean the Vice-Chair of the Board of Review.

11.3  BOARD OF REVIEW ORGANIZATION

11.3.1  Establishment -- The MVS Board of Review shall be independent and impartial, separate from the Board of Directors, the divisions, committees and other bodies comprising MVS.

11.3.2  Members -- The Board of Review shall have at least seven (5) regular and five (3) alternate members. The House of Delegates may increase the number of members by resolution but subsequent to the adoption of these By-Laws may only decrease the number of members upon the expiration of the term of office of existing members.

11.3.3  Election, Eligibility; Terms of Office

(a)  Election -- The House of Delegates shall annually, at the spring LSC meeting, elect regular and alternate members of the Board of Review: Three regular and three alternate members shall be elected in even numbered years and four regular and two alternate members in odd numbered years.

(b)  Term of Office -- The term of office shall be two years. Each member shall assume office at the beginning of the fiscal year of MVS following their election and shall serve until a successor takes office.

(c)  Eligibility -- Each regular and alternate member of the Board of Review shall be a member of MVS and USAS. In no case shall elected members of the Board of Directors constitute a majority of the Board of Review.

11.3.4  Chair Elected by Board -- The Chair, who must be a regular member, but shall not be an LSC Board Member, shall be elected annually by a majority vote of the regular members of the Board of Review. 

11.3.5  Annual Meeting -- The Board of Review shall meet for administrative purposes at least once annually to elect the Chair to adopt rules and procedures and to conduct other business as may be helpful or necessary to achieve the purposes of the Board of Review and efficiently exercise its duties and powers. Other meetings may be called by the Chair or any three regular members. When meeting for administrative purposes those provisions of Article 7 that are specified in Section 7.18 shall apply to the Board of Review.

11.3.6  Meeting by Communications Equipment -- Members of the Board of Review may participate in a meeting or hearing of the Board of Review, and any hearing may be conducted, in whole or in part, through conference telephone or similar equipment by means of which all persons participating in the meeting can hear each other at the same time. Participation by these means shall constitute presence in person at such a meeting or hearing.

11.3.7  Quorum -- A quorum for any meeting of the Board of Review shall be fifty percent (50%) of its membership. (The rule prescribed in Section 11.5.1(c) governs the quorum for hearings and rehearings conducted by the Board of Review.)

11.3.8  Resignation -- Any regular or alternate member of the Board of Review may resign by orally advising the Chair or by submitting a written resignation to the Chair, the General Chair or the Board of Directors specifying an effective date of the resignation. In the absence of a specified effective date, any such resignation shall take when received.

11.3.9  Incapacities and Vacancies

(a)  Chair -- In the event of a vacancy in the office of the Chair, or of the Chairman's temporary or permanent incapacity, the Vice-chair shall become the Acting Chair until an election can be held at a meeting of the Board of Review to fill the remaining term, if any, of the former Chair, or until the Chair ceases to suffer from any temporary incapacity. If the Chair is going to be absent from the Territory, the Chair may designate the Vice-chair as Acting Chair for the duration of the absence.

(b)  Presiding Officer -- In the event of the death, resignation or permanent incapacity of a Presiding Officer, the Chair shall appoint another member, an alternate member or an attorney to serve until the completion of the hearings assigned to that Presiding Officer. Generally that event and appointment should have no impact on those pending hearings or rehearings other than delay for the benefit of the new Presiding Officer. The Chair or the new Presiding Officer may make such other orders as are in the interests of fairness, justice and the sport of swimming. In the case of a temporary incapacity of a Presiding Officer, the Chair shall have discretion regarding appointment of a new Presiding Officer, a delay of the hearing or rehearing or such other order as may serve the interests of fairness, justice and the sport of swimming.

(c)  Board Member -- In the event of a death, resignation or permanent incapacity of a member of the Board of Review, the General Chair shall appoint an Individual Member, with the advice and consent of the Board of Directors, to serve as a Board of Review member until the next regularly scheduled meeting of the House of Delegates. In the event of a temporary incapacity, the Chair shall designate another member or an alternate member to act for the incapacitated member for the duration of the incapacity. If there are no alternate members available to serve, the General Chair, with the advice and consent of the Board of Directors, shall appoint one or more Individual Members to serve as alternate members to serve until the next regularly scheduled meeting of the House of Delegates.

(d)  Determination of Vacancy -- The determination of when a membership on the Board of Review becomes vacant or a member becomes incapacitated shall be within the discretion of the Board of Review, subject to any subsequent action by the House of Delegates. The determination as to when the Chair is temporarily incapacitated shall be made, where the circumstances permit, by the Chair and otherwise shall be within the discretion of the Board of Review, subject to any subsequent action by the House of Delegates.

11.3.10  Temporary Replacement -- In the event that a member of the Board of Review or a Presiding Officer is unable or unwilling to promptly act for any reason, recuses herself or himself or is disqualified in any particular circumstance, the Chair (or, if the person so unable or unwilling to act or recused or disqualified is the Chair, the Vice-chair; or failing that, the General Chair) shall appoint another regular member or one of the alternate members or, if none of the alternate or regular members is available, a disinterested Individual Member to act in the member's place and stead in respect of that circumstance.

11.3 .11  Extensions -- The time by which any act is required to be taken pursuant to this Article 11 may be extended or foreshortened by the Chair, or the Presiding Officer for a particular hearing, for good cause. (A single exception to this rule is provided in Section 11.6.4.) A party's request for an extension of time prior to the time established without regard to the requested extension will be accorded greater deference than a request made later. The time, date and location of any hearing may be changed by the Chair or the Presiding Officer for a particular hearing on his or her own initiative, as required by the interests of the Board of Review or in the interests of justice.

11.3.12  Legal Assistance

(a)  Legal Advise -- Where appropriate or helpful, the Chair or Presiding Officer may consult the USAS General Counsel, any member of the USAS Counselors Committee, the Chairs of the USAS Legislation, Rules or Officials Committees or of the By-Laws Subcommittee or an attorney (who need not be a member of MVS, USAS or the Board of Review) retained by the Board of Review or the Chair regarding any issue raised by a proceeding.

(b)  Attorney as a Presiding Officer -- The Board of Review or the Chair may retain an attorney (who need not be a member of MVS, USAS or the Board of Review) to act as Presiding Officer at any hearing where it is appropriate or helpful. A Presiding Officer who is not a Board of Review member may participate in the deliberations of the Board of Review or the designated panel but shall not be counted in determining the existence of a quorum and shall not have a vote.

(c)  Attorney's Fees -- Prior to retaining an attorney on any basis requiring the payment of fees to the attorney (the payment of expenses to an attorney providing services at no charge (pro bono publico) shall not be considered as a payment of fees for this purpose), the Chair or the Presiding Officer shall consult with the General Chair and the USAS General Counsel. The Treasurer is authorized and directed to pay any fee and expenses charged by the attorney and approved by the Chair.

11.3.13  Impartiality Responsibilities

(a)  Code of Conduct -- Members of the Board of Review shall:

(1)  uphold the integrity and independence of the Board of Review;
(2)  avoid any impropriety or even the appearance of impropriety in connection with service as  a Board of Review member and swimming-related activities generally; and
(3)  perform the duties of Board of Review membership impartially and diligently.

(b)  Grounds for Recusal -- Members of the Board of Review shall recuse themselves from participating in any matter pending before the Board of Review:

(1)  in which their impartiality might reasonably be questioned;
(2)  where they have a personal bias or prejudice concerning a party in the matter pending before the Board of Review or have personal knowledge of disputed evidentiary facts concerning the pending matter (other than knowledge obtained as a Board of Review member);
(3)  where they or a member of their household are a party or are likely to be a material witness in the pending matter;
(4)  where they or a member of their household have an interest that could be substantially affected by the outcome of the proceeding; or
(5)  where they or a member of their household have served or are serving as counsel in the pending matter or are members of a law firm that served or is serving as counsel in the pending matter.

(c)  Recusal by a Member -- Board of Review members shall recuse themselves as soon as they become aware of facts that give rise to the duty to do so by giving notice to the Chair, or in the case of the Chair, the Vice-chair.

(d)  Recusal/Disqualification Requested by Party -- By written notice to the Presiding Officer or the Chair, or, in the case in which the Chair is the subject of the notice, the Vice-chair, any party may request that the members recuse themselves or be disqualified from serving on the pending matter stating the reasons for recusal or disqualification. Such notice shall be given at least ten (10) Business Days prior to the scheduled date of the hearing on such matter or later if the party sustains the burden of proving good cause for the lateness of the notice. The named member shall reach a decision on the matter and notify the Chair or the Vice-chair of that decision within five (5) Business Days of receipt of the party's notice. If the member's decision is not in favor of recusal, then the Chair or the Vice-chair may, but is not required to, disqualify the member from participating in the pending matter. If there is no disqualification, the hearing shall be conducted and the party giving the notice may appeal the disqualification decision, together with the hearing decision, pursuant to Section 11.5.2.

(e)  Substitution for Recused or Disqualified Member -- In the event of a recusal or a disqualification, a substitute shall be appointed as provided in Section 11.3.10.

11.4  Powers and Jurisdiction

11.4.1  Administrative Powers -- The Board of Review shall have the powers and the duty to:

(a)  administer and conduct the affairs and achieve the purposes of the Board of Review,

(b)  establish policies, procedures and guidelines,

(c)  elect the Chair in accordance with Section 11.3.4,

(d)  elect or provide for the appointment of other officers, agents, committees or coordinators to hold office for terms, and to have the powers and duties, specified,

(e)  call regular or special meetings of the Board of Review,

(f)  retain attorneys, agents and independent contractors and employ those persons which the Board of Review may determine are appropriate, necessary or helpful in the administration and conduct of its affairs and

(g)  as may otherwise be appropriate, necessary or helpful in the administration and conduct of its affairs, the achievement of its purposes and the efficient exercise of its duties and powers.

11.4.2  Administrative Procedures -- The Board of Review shall have the power and the duty to promulgate rules and procedures with respect to any matter within its jurisdiction or appropriate, necessary or helpful in the administration and conduct of its affairs. The rules and procedures adopted by the Board of Review shall have the same force and effect as if they had been adopted as part of these By-Laws. 

11.4.3  Jurisdiction -- The Board of Review may investigate and conduct hearings, make and publish decisions and orders with regard to any matter affecting MVS, its status or conduct as a Local Swimming Committee or the administration of the sport of swimming in the Territory which involves:

(a)  MVS and (1) a member or members of MVS or (2) a member or members of another LSC solely with respect to conduct or events occurring within the Territory or a combination of persons described in clauses (1) and (2), or

(b)  only a member or members of MVS, or

(c)  with respect to conduct or events occurring outside the Territory, (1) MVS and a member or members of MVS or (2) only a member or members of MVS.

11.4.3.1  The jurisdiction of the Board of Review is limited in the case of matters described in sections 401.3.1 and 401.3.3 of the USAS Code (with regard to the original and exclusive jurisdiction of the National Board of Review) and may be further limited to the extent provided in an order issued pursuant to section 401.3.2 of the USAS Code (pertaining to certain discretionary jurisdiction of the National Board of Review).

11.4.4  Judicial Authority -- Except for authority and power granted to the Chair or the Presiding Officer, the exercise of the authority and powers of the Board of Review and the decision of matters which are the subject of a hearing shall be decided by a majority vote of the panel, the rehearing panel or the regular membership of the Board of Review. The views of any dissenters shall be included in the record of the proceeding if requested by the dissenters. The exercise of the Board of Review's authority and power shall lie solely in its discretion and the interests of justice and the sport of swimming. However, the Board of Review shall exercise its power in response to a timely Protest filed with it, subject, in appropriate circumstances, to the power and discretion of the Chair or Presiding Officer to dismiss a Protest with permission to refile for a stated period. In connection with any preliminary investigation, the Chair or Presiding Officer may offer the services of a Board of Review member to act as a mediator or similar positions under other alternative dispute resolution mechanisms.

11.4.5  Timeliness of Protests -- The Board of Review need not exercise its jurisdiction with respect to a Protest the subject matter of which occurred, or concerns or is founded on events which occurred, more than ninety (90) days prior to the date the Protest is received (as determined under Section 11.10), or in the case of subject matter that relates to a conviction, or actions which could be the basis of a conviction, for a crime (including felony, misdemeanor and lesser crimes) involving sexual misconduct, child abuse, violation of a law specifically designed to protect minors or similar offenses, more than five (5) years prior to that date. A determination not to exercise its jurisdiction as a result of the untimeliness of a Protest may be the subject of a request for rehearing and, thereafter, appeal to the National Board of Review pursuant to Section 11.9.

11.4.6  Filing Fees -- The Board of Directors or the House of Delegates may impose a schedule of generally applicable fees to be collected at the time a Protest, Request for a Rehearing or Request for Formal Hearing following an Emergency Hearing is filed with the Board of Review. If, on its own initiative or upon written request, the Board of Review determines it to be in the interest of justice and the sport of swimming, the filing fee may be waived on a case-by-case basis.

11.4.7  Power of the Board to Devise Remedies and Impose Penalties

(a)  Remedies and Penalties -- The Board of Review, after conducting such hearings as it may determine to be necessary or appropriate may:

(1)  dismiss the Protest with or without permission to refile;
(2)  censure or fine;
(3)  establish a period of probation;
(4)  prohibit or mandate future actions; inaction or conduct
(5)  determine the results of, or require a rerun of, any election held by MVS or any constituent element thereof
(6)  vacate, modify, sustain, reverse remand or stay any decision or order of a smaller panel of the Board of Review, the House of Delegates, the Board of Directors, any officer, division or committee, coordinator or official of MVS.
(7)  interpret any provision of the FINA rules and regulations to the extent not pre-preempted by FINA, the USAS Code (except for Part One), the USAS Code of Ethics, these By-Laws, other policies, rules, regulations and procedures of USAS or MVS, the Amateur Sports Act of 1978, a federal law, and other applicable laws, rules and regulations and adjudicate alleged inconsistencies and claims of supremacy and invalidity.
(8)  deny, grant, suspend or restore the eligibility or right to compete of an Athlete Member of MVS and USAS
(9)  deny, grant, suspend or restore membership in MVS and USAS for a definite or indefinite period of time, with or without terms of probation, or expel any Group Member or Individual Member of MVS and USAS, including any administrator, athlete, coach, trainer, manager, meet director, official, officer, Board Member, House of Delegates representative of a Group Member, coordinator or chair or member of any committee, or any other person participating in any capacity whatsoever in the affairs of MVS.
(10) prohibit for a definite or indefinite period of time the participation by a non-member volunteer or other person in any capacity whatsoever in the affairs of USAS, MVS, its Group Members or other LSC's and their Group Members;
(11) assess costs, including any filing fee and attorneys fees and expenses, to the prevailing party or refund any filing fee paid by the prevailing party; and
(12) any combination of any of the foregoing or any other remedies deemed appropriate in the circumstances.

(b)  In appropriate cases, the Board of Review, after initial investigation and/or a preliminary hearing, may make in its discretion temporary orders for the good of the sport of swimming. The temporary order may encompass any remedy or order permissible in a final decision and may include, by way of example, suspending membership, the right to participate or coach in a competition, permitting the athlete to swim subject to protest or offering or ordering the parties to attempt to resolve their differences pursuant to mediation or other alternative dispute resolution mechanisms prior to any hearing before the Board of Review. These orders may be made effective pending full hearings by the Board of Review or the conclusion of administrative or judicial proceedings of other bodies addressing the same or similar issues or on other terms as determined by the Board of Review. Instances in which such temporary orders might be made include cases where a member has been indicted or otherwise formally charged with or accused of committing a crime (including felony, specifically designed to protect minors or similar offenses. Temporary orders may not be separately appealed prior to the decision being issued in the proceeding unless the Chair or the Chair of the National Board of Review in their discretion grant permission to an aggrieved party to appeal the temporary orders prior to the final Board of Review decision in the matter.

(c)  Grounds (Reasons) for Imposition -- The Board of Review may fashion remedies and orders and impose penalties with respect to any Group or Individual Member or non-member volunteer of MVS or of any Group Member (1) who has violated any of the regulations, rules, policies or procedures of MVS, USAS or FINA, including any of the responsibilities of membership set forth in Section 2.2, (2) who aids abets, instigates or encourages another to violate any of such regulations, rules or policies, (3) who is responsible for any such violation by another under Section 2.2.2, (4) who has been convicted of a crime (including felony, misdemeanor and lesser crimes) involving sexual misconduct, child abuse, violation of a law specifically designed to protect minors or similar offenses, or who is found by the Board of Review to have committed which would be the basis for a conviction, or (5) who has acted in a manner which brings, or may bring, into disrepute MVS, USAS, or the sport of swimming.

(d) Power to Impose Conditional Remedies and Penalties, Etc. -- The Board of Review shall have the power, but not the duty, to stay its decision, in whole or in part, subject to specified conditions, with the decision taking effect automatically if such connotations occur.

11.5 Hearings

11.5.1 Initial Hearings

(a)  Hearings Conducted by Chair, Etc. -- Hearings of the Board of Review shall be conducted by the Chair or a presiding officer designated by the Chair.

(b)  Hearing by Panel -- The Board of Review, may in the discretion of the Chair, conduct hearings either before the full Board of Review or before panels of its members, provided that in any event each such panel shall consist of at least three (3) members. Any such panel shall have all of the powers of the Board of Review solely with respect to the matter(s) assigned to it.

(c)  Minimum Panel Participation -- At least three (3) members of an designated panel (or of the full Board of Review) must be present at any initial hearing before the panel and at least the lesser of the full regular membership or five (5) regular members must be present at any rehearing.

(d)  Method of Conducting Hearings -- A hearing before the Board of Review may be conducted through the receipt of procedural or other written statements or a hearing at which the parties may appear in person or by means of communications equipment described in Section 11.3.6 and testimony may be taken and other forms of pertinent information presented in addition to oral argument by the parties or their counsel, as determined by the Chair or Presiding. In the discretion of the Chair or the Presiding Officer, the hearing may be conducted in part through written means and in part by testimony and oral argument.

(e)  Right to Counsel -- The Protester, the Respondent and any other person participating in a hearing conducted by the Board of Review shall be entitled to be represented by counsel of their choice at their own expense.

(f)  Rules of Evidence -- Judicial rules, regarding admissibility of evidence shall not apply to the Board of Review; hearsay, letters, affidavits, news media articles and reports, etc. as well as direct testimony taken from witnesses present at a hearing, are all admissible to the extent the Board of Review or the panel is satisfied as to the relevance and non-repetitive nature of the evidence. Proper weight shall be given to each type of evidence considering the source and other common sense factors.

11.5.2 Rehearings

(a)  Circumstances Permitting Rehearing Body -- At the request of the Protestor, Respondent, or any other interested party, any matter which was decided by a panel of less than five (5) members may be reheard by the full Board of Review. Members of the initial hearing panel may be members of the rehearing panel.

(b)  Of Right or Discretionary -- A rehearing will be granted as a matter of right in instances in which the panel consisted of less than five (5) members and the decision was not unanimous and in the discretion of the Chair in all other instances.

(c)  Time within which Rehearing may be Requested -- The Protester, the Respondent or other party may request, within ten (10) business days of the date of the written decision, that the decision of the Board of Review panel be reheard.

(d)  Failure to Request a Bar to Appeal -- An appeal of a decision by a panel of less than five (5) members pursuant to Section 11.9 may not be filed without first making a timely request for a rehearing.

(e)  Nature of Rehearings

(1)  Discretionary Rehearings -- With respect to requests for a rehearing that are discretionary, the Chair, in the same manner in which decisions are rendered, shall either grant or deny the request within ten (10) Business Days of receipt of the request.
(2)  Non-Discretionary Rehearings -- With respect to requests for rehearing that are not discretionary,  within ten (10) Business days of the receipt of the request, the Chair shall schedule a rehearing.
(3)  Rehearing Notice -- Affect of Inaction - In either case, the Chair shall notify all parties to the initial hearing of the rehearing, its time and date and location and the method by which the rehearing will be conducted. If the Chair does not take action within ten (10) Business days, the decision of the panel shall be considered final and any parties may appeal the decision in accordance with Section 11.9.

(f)  Fresh Start Hearing or On the Record Rehearing -- The rehearing panel at the discretion of the Chair or the Presiding Officer may conduct an entirely new hearing or may make its decision based on the record created by the initial panel supplemented by what ever written memoranda or oral argument requested by the Chair or the Presiding Officer. The record shall include the Protest, the Notice of Charges, the Answer, the Rebuttal, any temporary orders or partial decisions made and the Notice of Decision, together with any additional memoranda and written evidence filed by the parties. To the extent applicable, the procedures applicable to the formal hearing shall apply to a rehearing. See Section 11.5.1 and 11.6.1(e).

11.5.3  Closed Hearings -- Any hearing, or a part thereof may be closed to everyone except Members of the Board of Review, the Presiding Officer, an attorney advising the Presiding Officer, the Protestor, the Respondent, their counsel and any witnesses at the discretion of the Chair or the Presiding Officer, at the request of one of the parties or at the discretion of the Chairman's or Presiding Officer's own initiative, as being in the best interests of justice and the sport of swimming. If a hearing was closed, the Board of Review may in its discretion direct the participants to keep the proceedings confidential and all or parts of the record of a hearing to be kept confidential by MVS and USAS.

11.5.4  Extension of Time -- The general rule regarding extensions of time which any act is required to be taken pursuant to this Article 11. appears in Section 11.3.11. Nevertheless, the time within which the Notice required by Section 10.2.3 must be transmitted may not be extended without the consent of the Protestor or the USAS General Counsel.

11.5.5  Accelerated Hearings -- With the agreement of all parties to a hearing, the Chair, or the Presiding Officer for the hearing, may order an accelerated hearing schedule in the interest of justice and the sport of swimming. In the event of an accelerated hearing, the need for thorough and complete notification of all parties of hearing schedules shall be a paramount consideration.

11.6  HEARING PROCEDURES -- The procedures to be followed in connection with all hearings shall be as follows

11.6.1  Formal Hearing

(a)  The Protest -- The Protestor shall submit to the Chair of the Board of Review (if submitted to the General Chair the statement is not defective, but the allowable period of time for the Notice shall not commence until the statement is received by the Chair) a written statement setting forth a description of the action, inaction or conduct that is believed to have been improper or incorrect, and the name of the person or group believed to have acted improperly or the circumstances believed to require answers, explanation or clarification. This written statement becomes the Protest under Section 11.2.5. The Protest shall be accompanied by any filing fee due under Section 11.4.6 or by an application for waiver of the fee.

(b)  Notice -- Each Respondent shall be given a written notice of the Protest. This written notice becomes the Notice under Section 11.2.3. The Notice shall be sent to each Respondent's last known address (determined in accordance with the provisions of Section 11.10) by certified or express mail, return receipt requested, signature required, or by personal service The Notice shall be given as soon as practical following the conclusion of any preliminary investigation made by or on behalf of the Board of Review, but in no event later than fourteen (14) Business Days (twenty (20) Business Days if advice is sought under Section 11.3.12) after the receipt of the Protest by the Chair. The form of Notice (an example of which can be found in Appendix B to these By-Laws) shall include:

(1)  a statement in reasonable detail of the charges against each Respondent, or of the circumstances that are believed to require answers, explanation or clarification. A copy of the Protest received by the Board of Review, if any, shall be attached to the Notice;
(2)  a statement that the Respondent has the right to have counsel of his own choice to represent him, at his own expense, at any hearing;
(3)  a description of the type of hearing to be held. In the case of an in-person hearing, the Notice shall request each Respondent to appear before the Board of Review with counsel and witnesses, if any;
(4)  a date, time and location at which the hearing will be held. The date of the hearing shall be not less than thirty (30) days nor more than sixty (60) days after the date of transmission of the Notice;
(5)  a request that each Respondent answer in writing all of the charges set forth in the Notice. The Notice shall state that this answer is to be delivered at least ten (10) Business Days prior to the date of the hearing, to the Presiding Officer designated in the Notice, at the specified address, with a copy to the Protestor and the Protestor's counsel, if any, and anyone else specified in the Notice at the addresses designated in the Notice with delivery in accordance with Section 11.10; and
(6)  a statement of the right of appellate review (including the right, if any, to a rehearing) in the event the decision is rendered against the Respondent.

(c)  Each Respondent's response to the Notice and Protest shall be in writing and delivered to the Presiding Officer designated in the Notice, at least ten (10) Business Days prior to the date of the hearing, with a copy to the Protestor and his counsel and anyone else specified in the Notice at the addresses designated in the Notice. This written statement becomes the Answer under Section 11.2.1. The Answer shall be delivered in accordance with Section 11.10.2.

(d)  The Protestor may, but is not required to, offer a rebuttal to the Respondent's Answer. Any rebuttal shall be in writing and delivered to the Presiding Officer designated in the Notice, at least five (5) Business Days prior to the date of the hearing, with copies to each Respondent and his counsel at the addresses specified in the Answer and to anyone else specified in the Notice at the addresses designated in the Notice. This written statement becomes the Rebuttal under Section 11.2.7. The Rebuttal shall be delivered in accordance with Section 11.10.2.

(e)  Hearing Conduct

(1)  Generally -- Hearings shall be conducted in an orderly fashion, but without regard for the formalities of traditional court room procedures. The hearing shall be conducted in a manner conducive to the establishment of the truth and the interests of fairness, justice and the sport of swimming. The Presiding Officer is responsible for keeping the parties and their counsel, if any, focused on the issues at hand and the necessary elements of proof and for enforcing the ordinal rule that no one may speak who has not been recognized by the Presiding Officer. For hearings conducted other than entirely through the receipt of written statements, the Board of Review shall cause a recording or transcription to be made of the hearing. No record of the deliberations of the Board of Review need be kept and, if kept, shall not be available to anyone other than the members of the Board of Review, the Presiding Officer and counsel to the Board of Review.
(2)  Absence of a Party -- The hearing may proceed in the absence of any party who fails to be available at the appointed time and judgment shall not be reached merely because of that person's absence. If the Presiding Officer determines that in the interests of justice and the sport of swimming, the hearing cannot proceed without the absent party, the Presiding Officer may adjourn the hearing and reschedule it for such time as the absent party can be present. Any subsequent absence may be taken into account by the Board of Review in reaching its decision.
(3)  Sequence -- The hearing shall be opened by the recording of the place, time and date of the hearing and the presence of the members of the Board of Review, the parties, counsel, if any, and any other witnesses or observers. Each party (Protestor first, Respondent second) may then present a brief opening statement setting forth the party's view of the issues in dispute, the relief sought and what they hope to prove by the presentation of evidence. The Protestor's claims, evidence and witnesses shall be presented. The Respondent's defenses, claims, evidence and witnesses shall then be presented. In the discretion of the Presiding Officer, the Protestor may then be allowed to rebut any testimony or evidence presented by the Respondent after the Respondent's initial presentation. In the discretion of the Presiding Officer, the Respondent may be permitted to rebut any testimony or evidence presented by the Protestor during the Protestor's rebuttal presentation. Finally, each party (in the same order) shall be entitled to make a brief summation of that party's case.
(4)  Rules of Evidence - Witnesses' Testimony -- The rules of evidence governing the hearing are set forth in Section 11.5.1(f). Each witness may present testimony initially either in the form of questions and answers between the witness and counsel or in uninterrupted narrative. The Presiding Officer and the members of the Board of Review may question any person at any time during the hearing. Thus, for example, in an exercise of discretion, the Presiding Officer could call a witness who has not yet been called or whom no party intended to call and propound questions to, or elicit narrative testimony from, that witness. Witnesses shall be subject to cross examination by the other party and to questioning by the Presiding Officer and members of the Board of Review. All parties will be expected to be available for questioning by the Board of Review, whether or not they may have given other testimony at the hearing.
(5)  Variance of Procedures -- The Presiding Officer shall have wide discretion to vary these procedures in the interests of justice, the sport of swimming and efficiency, but in doing so shall afford all parties a full and substantially equal opportunity to present any material or relevant proofs. A hearing may be adjourned by the Presiding Officer at the request of a party or on the Presiding Officer's initiative where an adjournment will serve the interests of fairness, justice and the sport of swimming. If a hearing is adjourned, the continuance shall be scheduled for any early date of mutual convenience, but in the discretion of the Presiding Officer. Justice and the sport of swimming ordinarily will be best served by an expeditious resumption and conclusion to the hearing.

(f)  Decision of the Board of Review -- The decision of the Board of Review may be rendered at the time of the hearing and, if not so rendered, as soon as possible thereafter and in no event more than ten (10) Business Days after the conclusion of the hearing. The decision shall include findings of facts and a statement of remedies ordered or penalties imposed, if any, and a statement setting forth the rights of the parties to appeal the decision. The decision shall be in writing, or in case of a decision rendered at the hearing, reduced to writing promptly, and delivered to the Protestor, each Respondent, their respective counsel, any other party to the proceeding, the General Chair and the Secretary of MVS, the Chair of the National Board of Review and the General Counsel of USAS in accordance with Section 11.10.2.

11.6.2 Emergency Hearing

(a)  Reasons for Emergency Hearing -- When compliance with the formal hearing procedures would be likely not to produce a sufficiently early decision to provide justice to the affected parties or to be in the best interest of the sport of swimming, the Board of Review is authorized to summarily hear and decide any matter relating to a scheduled competition or other matter of similar urgency.

(b)  Notice of Emergency Hearing -- Each Respondent shall be given such notice of the hearing as time and circumstances may reasonably dictate. The notice may be oral or in writing, and shall substantially comply with the notice requirements set forth in Section 11.5.1 insofar as the emergent nature of the issue permits.

(c)  Conduct of Emergency Hearing -- The hearing may be conducted at any location likely to contribute to expeditious resolution of the Protest, including the site of a swimming competition, and with all or some of the participants therein participating by telephone conference equipment, but in any event under such circumstances so as to fairly protect the right of procedural due process of the Respondent(s). All or some of the participants in the hearing may participate by telephone conference equipment. If at least three regular or alternate members of the Board of Review are not available due to time constraints, the Chair, the Vice-chair or the General Chair is authorized to appoint one or more Individual Members to serve as the Board of Review solely for the purpose of conducting this emergency hearing. The hearing shall substantially comply with the hearing procedures set forth in Section 11.6.1(e) insofar as the emergent nature of the hearing permits.

(d)  Decision of the Board of Review -- The decision of the Board of Review shall be rendered at the time of the hearing or as soon as possible thereafter in keeping with the emergent circumstances. The decision shall include findings of facts and a statement of remedies ordered, if any, and a statement of the right to request a subsequent formal hearing. The decision shall be in writing, or in case of a decision rendered orally at the hearing, reduced to writing within ten (10) Business Days thereafter and delivered to the Protestor, the Respondent, their counsel, any other parties to the proceeding, the Chair, the General Chair and the Secretary of MVS, the Chair of the National Board of Review and the General Counsel of USAS.

(e)  Right to a Subsequent Formal Hearing -- If either the Protestor or the Respondent shall deliver to the Chair a written request for a further hearing within ten (10) Business Days of the date of receipt of the written decision resulting from the emergency hearing, a formal hearing shall be held as a new proceeding in accordance with Section 11.6.1, as though the emergency hearing had not taken place. Failure to make this request in a timely manner shall preclude the aggrieved party from making an appeal as provided in Section 11.9.

11.6.3  Stay of Decision Pending Appeal -- The Board of Review shall have the authority and discretion, but not the duty, to stay its decision, in whole or in part, subject to specified conditions, during the time allowed to demand a further hearing after an emergency hearing, a rehearing or to appeal as provided in Section 11.9, with the decision going into effect automatically if those conditions occur or if no demand or appeal is filed during the allowable period or at such time as a perfected appeal is terminated without the decision being modified by the appellate authority.

11.6.4  Requests for Extensions of Appeal -- The general rule regarding extensions of time within which any act is required to be taken pursuant to this Article 11 appears in Section 11.3.11. Nevertheless, the time within which the Notice required by Section 11.2.3 must be transmitted may not be extended without the consent of the Protestor or the USAS General Counsel.

11.7  BOARD OF REVIEW DECISIONS FINAL-- Except as otherwise provided in this Article 11 with regard to rehearings, appeals and emergency hearings or in Article Nine of the Constitution of the United States Olympic Committee and in Chapter Nine of its By-Laws with respect to binding arbitration in disputes involving the rights of certain individuals to participate in competition, the decision of the Board of Review shall be final in all cases.

11.8  FULL FAITH AND CREDIT TO BOARD OF REVIEW DECISIONS -- Final decisions of the Board of Review of another Local Swimming Committee or the National Board of Review shall, where relevant and necessary, be recognized and fully enforced by MVS. Those final decisions may not be attacked or reopened in any proceeding before the MVS Board of Review other than one seeking enforcement of that decision.

11.9  APPEAL FROM BOARD OF REVIEW DECISIONS -- Except to the extent that any appeal is precluded by Sections 11.5.2(d) or 11.6.2(e), any person, including the Protestor and the Respondent, having an actual, direct interest in any matter decided by the Board of Review under this Article may appeal the decision to the National Board of Review. An appeal must be taken within thirty (30) Business Days from the date of the written notice of the decision of the Board of Review. The appeal to the National Board of Review must be in writing, timely filed with the USAS Executive Director and accompanied by the appellate filing fee established by USAS. Upon timely request to the Chair of the National Board of Review and upon a showing of good cause, the time for appeal from the decision of the Board of Review may be extended.

11.10  NOTICE TO HEARING PARTICIPANTS AND DETERMINATIONS OF TIMELINESS

11.10.1  Notice to Hearing Participants Who are Members of MVS

(a)  Active Individual and Club Members -- In each case, where notices or other hearing-related documents are to be delivered to a member of MVS, it shall be sufficient to deliver the notice or other document to the member's last known address in accordance with Section 17.1.5.

(b)  Minors -- In the case of notices directed to MVS members less than eighteen (18) years of age on the date of the alleged infraction (determined by reference to the member's latest registration application), a second copy shall sent by registered mail with delivery restricted to the attention of the member's parents or guardian at the same address or such other address as can reasonably be ascertained

11.10.2  Delivery Methods -- With the exception of the Notice [See Sections 11.2.3 and 11.6.2(b)], all documents transmitted pursuant to this Article 11 shall be transmitted to each of the parties, their respective counsel, if any, the Presiding Officer and anyone else specified in the Notice. Documents shall be delivered to the persons specified at the addresses specified in the Notice or later documents or as determined in accordance with Section 11.10. Documents may be delivered by any of the following methods or service: by personal service, or certified or express mail, return receipt requested, signature required, by electronic mail or facsimile transmission with receipt of the transmission confirmed orally or by other methods of transmission permitted by this paragraph.

11.10.3  Determination of Timeliness -- The rules provided in Section 17.1.4 shall apply in the determination of the timeliness of any notice or other action under this Article 11.