By: Leila Hamouie
How much is a little girl worth?” questioned Olympic Gymnast Simone Byles before the Senate Judiciary Committee on September 15.[1]
Byles, joined by three other giants of gymnastics—McKayla Maroney, Maggie Nichols, and Aly Raisman—delivered a harrowing testimony of the institution-wide cover-up of former USA Gymnastics’ doctor Larry Nassar’s abuse.[2] The Nassar case, now the largest reported case of abuse in American sports, highlighted that abuse is endemic not just to gymnastics, but to American sports as a whole.[3]
Nassar’s case, along with countless others, revealed the institutional failures of the United States Olympic Committee (“USOPC”) and National Governing Bodies (“NGBs”) in protecting athletes from abuse. Unfortunately, there is currently little recourse for athletes seeking to hold these organizations accountable.
The Amateur Sports Act of 1978 empowered the United States Olympic Committee to be the sole governing body for Olympic sports in the United States, with various NGBs under its umbrella.[4] Unlike most nations that compete in the Olympics, the USOPC is not funded by the government.[5] Instead, it makes its money through its trademarks over the word “Olympics” and the five-ring logo and selling broadcasting rights to the Summer and Winter games.[6] Despite being created by the federal government and subject to mandatory annual reporting, the USOPC operates as an independent body.[7]
The 1998 amendments to the Amateur Sports Act eliminated any private rights of action against the USOPC.[8]Before its passage, there was one attempt to attribute state action to the USOPC.[9] In DeFrantz v. United States Olympic Committee, athletes argued that their due process rights were violated when the United States Olympic Committee passed a resolution barring American athletes from competing in the 1980 Games in Moscow.[10] The court held that the athletes failed to state a due process claim because the Olympic Committee and the government did not share the “symbiotic relationship” to qualify under the State Action Doctrine.[11] This was mostly attributed to the fact that the Olympic Committee did not receive federal funding.[12] Both the 1998 Amendments and DeFrantz illustrate the barriers in bringing a cause of action against the USOPC for any claim, let alone claims of abuse.
In 2017, Congress passed the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act (“Safe Sport Act”) to address the influx of abuse allegations following Nassar’s trial.[13] The Safe Sport Act created the United States Center for Safe Sport (“SafeSport”), an independent, non-governmental organization with exclusive jurisdiction to investigate and resolve reports of child abuse, sexual abuse, and other inappropriate conduct in amateur and Olympic sports.[14] SafeSport then handles these claims through a private arbitration process and delivers sanctions accordingly.[15]
Since its inception in 2017, SafeSport has investigated over 7,000 reports of misconduct and abuse in Olympic and amateur sports.[16] However, scathing testimonies from athletes have called SafeSport’s credibility into question. Aly Raisman characterized the SafeSport reporting process as “…playing hot potato, where somebody kicks it over to somebody else and [athletes reporting abuse] don’t hear back for a really long time.”[17]
Without a private cause of action, and the deficiencies in SafeSport, athletes, especially minors, are left with little to no recourse for mistreatment and abuse. It is high time for Olympic reform in this country to ensure that amateur athletes, especially minors, are safe to pursue their dreams. The first step is to create an avenue to hold not only individuals, but the USOPC and NGBs accountable. Congress should amend the Amateur Sports Act to provide greater federal funding and congressional oversight to the USOPC, the NGBs, and SafeSport. Allowing greater governmental control over the USOPC and the NGBs may create a sufficient “symbiotic relationship” to overcome the ruling in Defrantz and successfully allow survivors to bring state action claims.[18] Additionally, Congress should remove the 1998 Amendment to allow for certain private causes of action and allow for increased funding.[19]
In addition to needing greater funding, the SafeSport process requires reform to address current flaws that inhibits a survivors’ ability to get justice. First, there needs to be greater transparency as current SafeSport policy does not allow information to be released to the public about the resolution of cases protecting the identities of abusers and shielding SafeSport from public accountability.[20] Second, greater protections must be taken to ensure alleged abusers that are under active investigation cannot circumvent sanctions and continue to participate in the Olympics.[21] Finally, sanctions need to properly address the gravity of the alleged crimes and prioritize the survivor’s safety over the abuser’s chance to compete.[22] Addressing these institutional failures and implementing necessary changes are the only way forward in making strides towards bringing justice to survivors of abuse in sports.
[1] Dereliction of Duty: Examining the Inspector General’s Report on the FBI’s handling of the Larry Nassar Investigation: Hearing Before the S. Judiciary Comm., 117th Cong. (2021) (statement of Simone Biles, Team USA Gymnast) [hereinafter S. Judiciary Comm. Hearing].
[2] See id.
[3] See Dvora Meyers, Figure skating, John Coughlin, and the disturbing reality of athlete-on-athlete abuse, The Guardian, December 17, 2019, https://www.theguardian.com/sport/2019/dec/17/figure-skating-john-coughlin-and-the-disturbing-reality-of-athlete-on-athlete-abuse (discussing a figure skater who abused multiple women within the sport); see also Will Hobson & Steven Rich, Every six weeks for more than 36 years: When will sex abuse in Olympic sports end?, Washington Post, November 17, 2017, https://www.washingtonpost.com/sports/every-six-weeks-for-more-than-36-years-when-will-sex-abuse-in-olympic-sports-end/2017/11/17/286ae804-c88d-11e7-8321-481fd63f174d_story.html(detailing abuse claims in several Olympic sports that emerged following the Nassar case).
[4] See Amateur Sports Act of 1978, 92 Stat. 345 (1978).
[5] See Mark Conrad, The COVID-19 Pandemic, the Empowering Olympic, Paralympic and Amateur Athletes Act, and the Dawn of a New Age of U.S. Olympic Reform, 31 J. LEGAL Aspects Sport 1, 15 (2021) (explaining the USOPC’s funding scheme as compared to other countries).
[6] See id. (discussing the USOPC’s funding scheme).
[7] See Amateur Sports Act 1978, 92 Stat. 345 (1978).
[8] See 36 U.S.C. § 220505(b)(9) (explicitly removing the right to private action against the USOPC).
[9] See generally DeFrantz v. United States Olympic Committee, 492 F. Supp. 1181 (D.D.C. 1980)
[10] See id. at 1183 (explaining the athlete’s constitutional claims against the USOC).
[11] See id. at 1193 (holding that the USOC’s decision to not send the athletes to Russia for competition did not rise to the level of state action).
[12] See id. (arguing that the USOPC is independent from the state because it does not receive federal funding).
[13] See generally Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017, 132 Stat. 318 (2017)
[14] See id. at 202 (stating one of the obligations of The United States Center for Safe Sport is to “(4) maintain an office for response and resolution that shall establish mechanisms that allow for the reporting, investigation, and resolution, pursuant to subsection (c), of alleged sexual abuse in violation of the Center’s policies and procedures”).
[15] See Response and Resolution Process, U.S. Center for SafeSport, https://uscenterforsafesport.org/response-and-resolution-process/ (explaining the SafeSport code and rights of the claimant and respondent); see also SafeSport Code for the U.S. Olympic and Paralympic Movement, U.S. Center for SafeSport, 30-45 https://uscenterforsafesport.org/wp-content/uploads/2021/04/SafeSportCode2021_040121_V3.pdf (outlining the procedures for resolving disputes through arbitration).
[16] Our Story, U.S. Center for SafeSport, https://uscenterforsafesport.org/about/our-story/ (explaining the perceived success of SafeSport since its inception).
[17] See Louise Radnofsky, Amid Suspicion Over SafeSport, the Body That Investigates Abuse in Sports Wants to Grow, WSJ https://www.wsj.com/articles/safesport-olympics-abuse-in-sports-11633963737 (testifying before Congress about the negative experiences survivors experienced when using SafeSport).
[18] See Defrantz v. United States Olympic Committee, 492 F. Supp. 1181, 1193 (D.D.C. 1980) (determining there was no state action when the USOPC declined to send athletes to Russia to compete due to political tensions).
[19] See Rick Maese, Olympic sexual abuse prevention center needs federal funding help, USOC chief says, Washington Post, May 23, 2019, https://www.washingtonpost.com/sports/2019/05/23/olympic-sex-abuse-prevention-center-needs-federal-funding-help-usoc-chief-says/ (finding that SafeSport struggles to manage its caseload due to insufficient funds).
[20] SafeSport Code for the U.S. Olympic and Paralympic Movement, U.S. Center for SafeSport, 26-27https://uscenterforsafesport.org/wp-content/uploads/2021/04/SafeSportCode2021_040121_V3.pdf (indicating all decisions, investigation reports, and other work product are confidential under federal law).
[21] See Brianna Sacks & Melissa Segura, “Protected Again and Again”: How A Fencer Made It To The Tokyo Olympics Despite Sexual Assault Allegations, Buzzfeed News, July 23, 2021, https://www.buzzfeednews.com/article/briannasacks/olympics-fencers-safesport-abuse (discussing a case in which an Olympic fencer with multiple abuse allegations was able to appeal his SafeSport sanction and compete in the Summer 2021 games).
[22] See id. (explaining that an athlete sanctioned for sexual abuse was allowed to compete in the Olympics under the conditions of a “safety plan” that separated him from female athletes and housed him in separate accommodations); see also Olympic Talk, U.S. Olympic shooter suspended, ineligible for Tokyo Games, NBC Sports, June 23, 2021, https://olympics.nbcsports.com/2021/06/23/keith-sanderson-usa-shooting-suspension/ (discussing an athlete barred from competition for three months in response to a finding of sexual misconduct).