Jayson13 wrote:
Update from Derek
https://www.marathoninvestigation.com/2019/06/frank-meza-additional-evidence-la-marathon-course-cutting.html
This is excellent work. And it does lead me to wonder if the LA marathon, in failing to enforce its own published rules on course-cutting, may now be breaching legal duties to participants, particularly if it committed to issuing awards to, among others,the fastest male finisher in the 70-74 age group.
Acccording to Derek's article, the marathon's own rules on course-cutting state, in pertinent part:
Participants who intentionally shorten the route of the race (“course-cutting”) will be disqualified. Any participant leaving the race course for any reason must re-enter the race course where he or she left it or be disqualified for course-cutting. Course-cutting may be determined by eye-witness reports, by surveillance equipment and video, or by the participant failing to register times at timing mats or appearing in race photography. Participants with missing or irregular mile split times at official timing checkpoints will be reviewed and may be disqualified.
Under well-known rules of textual construction, "will" is language of requirement or mandate, whereas "may" is language of permission or discretion. The marathon's rules of course-cutting appear to require ("will") disqualification of course-cutters, and then describe various permissible ("may") means of determining course-cutting. Moreover, the rules distinguish between cases in which course-cutting has been determined, which require ("will) disqualification, and cases in which there are merely "missing or irregular mile split times at official timing checkpoints," which merely permit ("may") disqualification.
Here, I haven't yet seen any indication that the LA marathon disputes that Frank has cut its course (and this latest evidence looks far more damning than some of the means that the LA marathon recognizes as acceptable for determining course-cutting ). Rather, the marathon simply states that "We’ve decided to take a different tact: Next time Frank runs one of our races there will be an official observer in place. This is a great opportunity for him to confirm his past performances and end the conversation. Pending any additional information, this is the best solution for all." But the marathon's own rules do not permit it to "take a different tact" in cases of course-cutting.
Of course, the marathon could simply say that it has not made, and need not make, a determination of course-cutting here. But where the evidence appears conclusive as to course-cutting, there is, I believe, a strong argument that the marathon cannot evade its obligation to disqualify a course-cutter simply by refusing to make a determination about whether the evidence establishes course-cutting. (Without getting too deep in the weeds, the implied duty of good faith and fair dealing inherent in contractual relationships constrains a party's ability to evade contractual obligations by refusing to take certain discretionary actions.)
I'm extremely mindful of the problems that could arise if the marathon were required to review and adjudicaate every hint or allegation of improper conduct. That burden, however, is lessened by the principle of standing, which requires that complainants have some cognizable legal interest at stake. Here, the obvious person with standing to complain is the guy who has allegedly been cheated out of first place in the 70-74 age group.
I set forth all of this not because I believe that the LA marathon should take action based solely or principally upon any legal obligation. I'd prefer that it do so because it cares about the integrity of its event, and because the circumstances and consequences in this particular case warrant its exercising its right to act.