Safe sport series - The systemic problems in sport that leave athletes at risk of abuse

Published 25 May 2018 | Authored by: Nikki Dryden

This is the first piece in a LawInSport series examining the troubling issues of abuse in sport. The series aims to highlight the types of abuse suffered, the complexities of abuse due to power imbalances, and the governance structures that perpetuate the problems. It also examines how countries are now stepping-in to address the issues, and the roles played by key changemakers who have been actively campaigning against abuse.

This first article examines the different types of abuse in sport, before taking an in-depth look at sexual abuse of minors in the context of the USA Gymnastics case. In doing so, it examines how the governing autonomy enjoyed by sports organizations can contribute to creating systemic problems, and the need for greater athlete representation. Specifically, it looks at:

  • What types of abuse are present in sport?

  • The USA Gymnastics case:

    • First reports of abuse

    • FBI inaction

    • Threats and payments to keep quiet

    • The failures to notify

    • Michigan State’s knowledge in 2014

    • The mounting civil law suits

    • US Olympic Committee’s inaction

    • Nassar final conviction and sentence

  • Sports administration – the dangers of the autonomy principle

  • Sports administration – the need for greater athlete representation

  • Catalysts for reform:

    • Nancy Hogshead-Makar (Champion Women)

    • US Olympic Committee (USOC) SafeSport initiative

    • The legislative response

Introduction

The Olympics is something that brings people hope and joy. It inspires people to fight for their dreams because everything is possible with hard work and determination. I remember watching the 2004 Olympics. I was 8 years old, and I told myself that 1 day I would wear the red, white and blue leotard, and compete for my country.

Sure, from the outside looking in, it’s an amazing story. I did it. I got there, but not without a price.McKayla Mahoney, Olympic Gold Medalist.

While the Nassar case of a medical doctor sexually abusing and engaging in child pornography with young gymnasts in the US is one of the most egregious of crimes sport has seen, the news is filled with stories of abuse across all sports at all levels. Athlete on athlete abuse and abuse committed by athletes on others can be equally egregious, with athletes in positions of power committing unspeakable acts of sexual violence.

The common thread of these stories is that they are most often not unearthed from sports' ranks or broken in the sport pages where fandom and ink are reserved for revering athletes as Gods and coaches as Kings. Rather it is often from outside of sports that these tales are being heard, and action to end abuse in sport is being taken.

Athletes and victims who speak out are not always treated well. From American footballer Colin Kaepernick1 who it is alleged was not hired back into the NFL for speaking out about racial injustice in his sport to gymnast Dominque Moceanu2 who spoke out about physical abuse in USA Gymnastics 10 years ago, but was ostracized by the only community she knew. Other gymnasts were told to keep quiet3, athlete representatives are being penalized for speaking out4, and even some victims5 are mistreated by law enforcement entrenched in local sporting communities.

Sports organizations, their leaders6, and the circles of power around them have failed to protect these athletes and victims from abuse. From grassroots to elite, young to old, amateur to pro, it feels that after researching this topic, that no athlete is safe except the ones doing the abusing.

The culture of many sports creates an environment where sport administrators, sport writers and fans can dole out praise and adulation to those in power despite questions, rumors, and even truths about what is happening off the field. There are even coaches, parents and teammates who must take some responsibility for assisting in sports’ abuse problem, often in the pursuit of glory, sponsor dollars, and success.

But it is not just that we put sports on a pedestal, it is that we have allowed it to operate in isolation from the rest of society. For too long sport has operated under an autonomous principle, trading on the social license that in order for a team or athlete to be successful the sport must be allowed to self-govern. This paternalistic approach by sport to the rest of society has proven a failure.

However, real change is happening in places where governments are regulating and actors from outside the world of sport are providing oversight and guidance. Moving forward means holding sport leaders at international and national levels of governance to the same standards we all must measure to in the real world. Sport can no longer be allowed to manage sport on its own.

What is abuse in sport?

Sexual Abuse (including pedophilia or child sex abuse, sexual assault, un-consenting sexual relationships, organized child sexual abuse and child pornography) has dominated the headlines of late. However, abuse is much broader and more ubiquitous when defined to include:

  • sexual assault and sexual violence

  • sexual harassment

  • physical abuse (by both sport and family);

  • emotional abuse (including sexual harassment and bullying); and,

  • neglect.

Safe4Athletes, a US based organization that works to provide a safe space for sport, describes more particular types of sport-specific abuse including coach/athlete sexual abuse defined “as a pubescent athlete engaged in a sexual act with a coach.7

It can be a one-time act, but if the coach-athlete sexual abuse is ongoing, Safe4Athletes argues that it can “further develop into Athlete Domestic Violence (ADV), which is when an athlete is in a (perceived) "relationship" with a coach and can involve consenting age or not.8 The professional codes of conduct of most sports should, in the authors view, include a ban against romantic relationships between coach and athlete. USOC Coaching Code of Ethics states

Coaches do not engage in sexual/romantic relationships with athletes or other participants over whom the coach has evaluative, direct, or indirect authority, because such relationships are likely to impair judgement or be exploitative,9

Play By the Rules,10 an organization in Australia, provides detailed definitions of abuse in sport. Founded in 2001 as a state-based organization, today Play by the Rules is Australia's leader providing information for sports organizations about all aspects of abuse in sport. Providing guidelines and best practices they now have a unique multi-sector collaboration with the Australian Sports Commission, the Australian Human Rights Commission and other state-based sport agencies which could be a model for the rest of the world.

The 2016 IOC Consensus Statement on harassment and abuse in sport11 also does a thorough job of detailing abuse across sport and includes transnational issues of homophobia, hazing and negligence. The statement pays particular attention to those most vulnerable including athletes with disability and LGBTI athletes, which is an incredible addition to the International Olympic Committee’s (IOC) knowledge bank.

Sexual harassment and sexual violence (athlete on athlete and athlete to citizen) will be examined and illustrate another facet of abuse in sport.

Each of these forms of abuse will often have detrimental impacts to their athletic careers, but worse, it can create lasting damage to athletes, their peers and families, and their communities. Under today’s definitions my high school swim coach and the local university swim coach who also trained me both emotionally abused me and neglected me. I am not sure where eating disorder fits in but being “moo’ed” at by male teammates as I got weighed by my coach every morning of my teens fits somewhere in between.

Unfortunately for me there was no Play by the Rules or if there was something similar in Canada I never heard of it. In making the Canadian National swim team at 15 I was exposed to a highly sexualized team environment, complete with sexual harassment and sexual assault. An older national teammate tried to rape me at 15 (and I later heard he had succeeded with others). Taking/losing my virginity became a mission first by those boys and men around me, then for me personally. Sex was everywhere including at rookie initiations, in comments on the pool deck, and of course at the competition after parties. In university, while swimming in the NCAA, male teammates used my sexuality to try and bring me down just as I reached what would be the peak of my swimming career. A former sexual partner and other teammates spread false rumors that I was simultaneously sleeping with a female teammate and also sleeping with my male coach. It took decades for me to understand how my swimming success and powerful female friendships threatened him and that was an easy way to balance things between us. The main perpetrator of this sexual harassment became a swim coach himself and after repeated reports of misconduct received a lifetime coaching ban from USA Swimming for violating the code of conduct. My first NCAA coach is also on this list for historical sexual abuse12. It took thirty years after his code was known to be banned from coaching.

I like to think we have made some progress since the 90s when it comes to sexual harassment, but have protections against sexual abuse really gotten any better for athletes in 2018?

The USA Gymnastics case

It doesn’t seem necessary to detail the horrors of the Larry Nassar case as it has dominated both global sport and news headlines in 2017 and 2018. However, what is critical is looking at how USA Gymnastics (USAG), Michigan State University and even the US Federal Bureau of Investigations (FBI) responded to the sexual abuse, assault and pornography claims made by over 300 gymnasts and other athletes under Nassar’s medical care.

First reports of abuse

As early as June 2015, USAG knew there was a problem with Nassar, who was the doctor to USA Gymnastics, Michigan State University as well as a local gymnastics club and a local high school. USAG originally claimed13 to have reported him to the FBI as soon as they were first informed of allegations against Nassar and that they immediately dismissed him from employment. According to news reports14 USAG interviewed Olympic Gold medalist McKayla Maroney and another gymnast about Nassar in June 2015 after they reported abuse. However, it actually took five weeks for USAG to report the allegations to the FBI and discouraged the mother of the first gymnast not to go to the police.

Within days, according to USA Gymnastics, [then USAG CEO Steve] Penny spoke with the coach and the [first] gymnast’s mother. According to [the gymnast's attorney] Manly, the gymnast's mother claimed Penny told her, “I don’t think the police need to be involved right now.” The mother felt Penny was discouraging her from reporting to police, Manly said.15

USAG denied this version of the events16 but admitted they hired an investigator instead of reporting the allegations immediately to the authorities. This was contrary to their legal obligations under US state law according to child rights’ attorney Shelley Haymaker:

Nowhere in the statute does it say to hire your own investigator,” said Haymaker to the Indianapolis Star. “It says to report immediately. Every state has laws requiring who must report allegations of child sexual abuse and when. Both Indiana, where USA Gymnastics is based, and Texas, where the allegation took place, require reports to be made immediately.17

The first athlete, whose mother is quoted above, later came forward as Maggie Nichols18, in Sports Illustrated. She told the magazine she wanted to be known for who she was not “Athlete A”. It was her female coach who overheard Nichols talking to another athlete about Nassar and first reported the allegations of abuse to USAG.

FBI inaction

News reports indicate the FBI did not interview Nichols, her mother or coach until the spring of 2016. The Indianapolis Star19 citing the Wall Street Journal20 reported that the FBI did not follow up on USAG's reports for 9 months and USAG says it was their leaders who reached back out to the FBI to follow up.

Sports Illustrated21 reported that “Requests for material from the FBI on the Nassar case through the Freedom of Information Act were denied by the Bureau because 'disclosure of law enforcement records concerning a third-party individual [Nassar] would constitute a clearly unwarranted invasion of personal privacy.'” The magazine also reported that 19 athletes were “treated” by Nassar between when USAG notified the FBI and the FBI interviewed Nichols.

In March 2018, the FBI opened an internal investigation22 into why the field office failed to take action on the Nassar case for over 1 year.

Threats and payments to keep quiet

Although it is unclear from news reports when she reported her abuse to USA Gymnastics, 2012 and 2016 Olympic Team Captain, Ali Raisman claims USA Gymnastics also threatened her not to go public, "I was told [by USA Gymnastics] to be quiet," Raisman told Outside the Lines about having first told the organization of the abuse by Nassar:

"And I think that when somebody in high power is telling you to be quiet, right when they realized you are abused, I think that that is a threat, and especially when their first concern should be to make sure I'm OK, to get information from me, to see if my other teammates were abused, to see what else I knew, to get to the bottom of it.

Raisman continued,

... USA Gymnastics just said, 'We're handling this. We got this. Like, stop asking us questions. Don't talk about it because you're going to tip off the investigation.' So I didn't want to jeopardize anything. Come to find out, [USA Gymnastics] didn't report it right away.23

As noted above, Maggie Nichols and her mother have claimed they too were told to keep quiet about their initial allegations.24

In December 2016, USAG settled a civil suit filed by another Jane Doe (later revealed as Maroney) to a reported US$1.25 million,25 which included a non-disclosure agreement (NDA) and non-defamation clause. A year later, she filed another suit that is pending. In that suit Maroney does not dispute the terms of the settlement agreement, but argues that it is illegal in California to settle cases involving sex crimes against children under an NDA, a claim disputed by USA Gymnastics.26 According to Maroney's lawyer John Manly ,"They were willing to engage in a systematic cover-up of the entire matter.27

Failure to notify

As noted above, Nassar resigned (or was fired) from his position as National Medical Director with USA Gymnastics in the summer of 2015 after the first concerns were raised privately. However, Nassar kept working at Michigan State University28 as well as the local gymnastics club for over one year because the USAG determined it had no obligation to disclose the circumstances of Nassar's resignation. He was not fired by Michigan State until 14 months later in September 2016 and only after the story had become public in the Indianapolis Star. According to investigative journalists this was not the first time USAG had acted in this manner:

[Our] investigation revealed that USA Gymnastics has followed a policy of not reporting all sexual abuse allegations against its coaches. That practice has enabled coaches to continuing preying on children despite repeated warning signs.29

According to the paper, their investigations also revealed “that at least 368 gymnasts have alleged sexual abuse over the past 20 years.

The series of investigative reports about USAG by the Indianapolis Star,30 actually led to the Nassar story being broken in September 2016 by the newspaper after a retired gymnast read the abuse stories and came forward publicly to talk about Nassar. The series also uncovered a pattern and practice of covering up abuse, not just about Nassar:

In August [2016], an IndyStar investigation revealed that USA Gymnastics executives repeatedly failed to forward allegations of sexual abuse at its member clubs to law enforcement authorities. The organization relied on a policy of not alerting authorities unless allegations came directly from an athlete or an athlete’s parent or guardian, according to testimony in court records.31

Olympic gold medalist and darling of the 1996 Atlanta Olympics, Dominique Moceanu spoke up about the “culture of intimidation and silence” at USAG back in 2008 and believes there would be fewer victims if the organization had listened to her and others who had called for help years earlier:

"The image and the reputation [of US gymnastics] was placed above abusive actions. And that's where the problem lies," she said. "You cannot put the reputation and the financial dollars ahead of the gymnasts' well-being and try to cover it up when they come and talk to you."32

Early on in the Nassar abuse case and before a series of resignations, USAG took "strong exception to [Moceanu's] characterization [of USAG]." In a written statement in response to questions from the Indianapolis Star, then USAG board Vice Chairman Jay Binder and Treasurer Bitsy Kelley defended the organization's child-protection efforts, and the leadership of then CEO Steve Penny and board chairman Paul Parilla. Those leaders are all now long gone at USAG.

ESPN outlines that USAG finally launched an independent review of its policies in the summer of 2016 in response to the Nassar case and other allegations raised by the Indianapolis Star investigative series. A year after the review began, in 2017 USAG adopted 70 recommendations made by the review. “The new guidelines require member gyms to go to authorities immediately,33 guidance which finally complied with US state law.

Michigan State knew in 2014

Michigan State University is also under investigation and is conducting its own internal investigations. A now fired dean at Michigan State has been arrested for inaction34. William Strample was first alerted to problems with Nassar as early as 2014 when he was part of an investigation into Nassar's then conduct. The result of that inquiry resulted in Strampel directing Nassar to have a third-party present during patient exams involving “anything close to a sensitive area.” Strample admitted to authorities in 2017 that he never followed up on his own directive.

In late March 2017, CNN reported that35 Strample has also been charged with sexual assault, groping and pornography related to medical students under his supervision at Michigan State.

Civil Law Suits mount

As the story unfolded in 2016, athletes started turning to US civil court for relief. Nassar’s abuse survivors (as well as their parents, siblings, and partners), who joined sport to pursue excellence and had dreams of Olympic glory are now asking if those in power did enough to stop them from being abused.

Over 150 athletes have filed law suits against USAG, USOC Nassar and a combination of the above, claiming a range of allegations including negligence by the sports' administrators, coaches and leaders.

In October 2016, Jane Doe filed a lawsuit36 against USAG and also named the most famous gymnastics coaching duo Bela and Martha Karolyi, alleging that their abuse and the abusive culture in US gymnastics allowed Nassar to thrive:

The California lawsuit claims the Karolyis created an oppressive, abusive environment at the [Karolyi] Ranch [USAG's training center] that included scratching children until they bled, depriving them of food and water, screaming obscenities and encouraging parents to hit their children, according to court records. The suit alleges that environment enabled Nassar to "groom" children by sneaking them food and acting as their friend in order to sexually abuse then”.37

The lawsuit also claims the “Karolyis 'turned a blind-eye to the sexual abuse being perpetrated' by Nassar, who in turn kept quiet about the couple’s 'regime of fear, intimidation, and physical and emotional abuse' of young gymnasts.

The Karolyis deny these claims38 in court depositions, but more athletes have come forward against their style of coaching at the ranch.

USOC’s action and inaction

With USAG in upheaval, the USOC stepped in to demand reform including the complete resignation of the USAG Board of Directors. That happened on January 31, 2018. The USOC's threats of decertification also included demands to change the culture of the sport, change the leadership, and change the governance structure.

The USOC was not immune from the abuse allegations at USAG and USOC head Scott Blackman39 also stepped down citing health reasons, but the press release included a host of actions the USOC would take to protect children in sport. The Wall Street Journal40 also reported that the USOC was informed about the Nassar allegations by the USAG on two occasions in 2015, but did not take any actions.

Nassar’s conviction and jail term

Nassar will die in prison.41 he is currently serving three sets of jail terms: 60 years for child pornography convictions, 40-175 years for convictions in one Michigan county and 40-125 years for convictions in another county for child abuse and sexual assault on over 300 victims.

Sports governance – the dangers of the autonomy principle

As an Olympic sport, gymnastics is governed at the highest level by the International Olympic Committee (IOC). All the International Federations (IFs) which set the rules, tone, and competitions for these sports must obey the IOC and follow their rules (think FIG, FIFA, IAAF). All the National Olympic Committees (NOCs) which govern all Olympic sport at the country level (think USOC, AOC) must obey the IOC and follow their rules. And all the National Sports Organizations (NSOs) which govern each Olympic sport at the national level must obey the IOC and follow their rules (think USAG or FA).

The IOC and the Olympic Movement it governs repeatedly claims a principle of autonomy, whereby NOCs like the USOC, sport organizations like USAG and the IOC itself are not subject to interference by other laws and entities including national governments:

Recognising that sport occurs within the framework of society, sports organisations within the Olympic Movement shall have the rights and obligations of autonomy, which include freely establishing and controlling the rules of sport, determining the structure and governance of their organisations, enjoying the right of elections free from any outside influence and the responsibility for ensuring that principles of good governance be applied...” See the Fundamental Principles42 of Olympism 5 in the Olympic Charter.

The autonomy principle is reiterated in the mission of the IOC, which is “to take action to...protect [the Olympic Movement's] independence and to preserve the autonomy of sport.

However, in attempts to protect the separate culture of Olympic sport the autonomy principle shields Olympic sports from outside legal jurisdictions or influence over internal policy and rule making, including (for example) contracts with athletes. This is reiterated in the domestic context at Rule 27.6.

The NOCs must preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious, or economic pressures which may prevent them from complying with the Olympic Charter,” (emphasis added).

A key component of sports' autonomy is the creation and use of an independent arbitration system that keeps many sporting disputes out of domestic courts. The Court of Arbitration for Sport (CAS) is where most sporting disputes are adjudicated. It identifies asan institution independent of any sports organisation...” and reaffirms the autonomous principles, “by means of procedural rules adapted to the specific needs of the sports world.” The 330 arbitrators from 90 countries are “chosen for their specialist knowledge of arbitration and sports law,” but not human or athlete rights, work and safety, or sexual abuse or sexual violence.

A former US triathlete's OpEd in the Wall Street Journal explains how this works in the US where the USOC exists as a monopoly granted the absolute power to govern Olympic sport by the US government akin to an electric utility which has a Congressional commission to provide oversight:

No such commission oversees the USOC to guarantee athletes’ safety and rights, or even to maximize Team USA’s medal haul in each Olympics. The Senate Committee on Commerce, Science, and Transportation is charged with supervising the USOC but hasn’t held hearings on the subject since 2003. The current rules governing Olympic sports in the U.S. are sufficient only if the USOC and sport administrators can be trusted not to put their own power, wealth and prestige above the interests of Team USA athletes. They can’t. Too many suffer from “five ring fever”—the condition that infects sports leaders carried away by illusions of their own importance...43

He continues

Athletes are also supposed to be protected by an ombudsman, but the office is accountable to and funded by the USOC. So when Mr. Sanderson [an athlete removed for speaking out] appeals his removal, the case will be heard by a committee selected by his accusers within USA Shooting. With the paltry stipend he earns as an Olympian, he can only hope to have a pro bono attorney or a handful of law students in his corner. His accusers will use the organization’s relatively vast funds to fight him—funds that could otherwise be used to realize more Olympic dreams.

Just like in the US, the governments of most countries have granted sport a monopoly to rule their Olympic sports. This allows NOCs to subvert national laws and force athletes to use sport arbitration such as the CAS instead of taking their cases to domestic courts.

Another example comes from Australia (but is replicated across the developed world), where in 2016 Olympic athletes were forced to sign an Athlete Agreement which mandated arbitration in the CAS (see Section 18) thus subverting Australian courts. Each NOC creates an agreement with its athletes that conforms to the Olympic Charter and is how the IOC gives effect to the Olympic Charter in each nation-state.

The autonomy that sport has enjoyed is not absolute and as sport continues to lose its social license, nation-states are challenging this fundamental principle of sport governance. Sport is also voluntarily giving up this autonomy as it joins international and national legal regimes such as WADA, the United Nations (UN) and the UN Guiding Principles on Human Rights and Business, which call for human rights protections from both government and enterprise, as well as the establishment of effective remedial mechanisms as a critical component of upholding human rights.

Sports administration and the athlete representative

The IOC encourages the use of athlete representatives; however, both the Olympic Charter and many domestic charters specifically indicate that the role of the athlete representative is not to represent athletes.

As outlined in the Olympic Charter Rule 21(1), the IOC Athletes' Commission is made up by a majority of active athletes, i.e. those elected by the athletes participating in the Olympic Games. The Charter at Rule 28(1)(3) also mandates that NOCs must include elected representatives of Olympic athletes.

The role of the IOC outlined at Rule 16 (1.4), including the 15 active athlete members on the Athletes' Commission, is to “represent and promote the interests of the IOC and the Olympic Movement in their countries and in the organisations of the Olympic Movement in which they serve.” This means a loyalty to the Olympic Movement as whole over the individual constituent, such as the athlete.

Active athletes and all members must according to Rule 16 (1.5) “not accept from governments, organisations, or other parties, any mandate or instructions liable to interfere with the freedom of their action and vote.

For example, the Australian Olympic Committee (AOC) in their constitution44 at sec 9.11-9.12 indicates that the athlete's role is not to speak on behalf of all athletes, but instead to “advise” the AOC executive and “act solely in the best interests of the [AOC] and its members as a whole.

So, in practice neither the IOC Athlete Representatives or the NOC athletes are the voice of athletes. If anything, their inclusion creates a false sense among the athlete population that someone is speaking on their behalf.

Fortunately, athletes are finally banding together, and outside actors are coming to their support. The World Player’s Association Universal Declaration of Player Rights includes the right of all athletes to pursue sport free “of discrimination, harassment and violence.” It also highlights the rights of child athletes who have a right to “to freely pursue sport in an inclusive, adapted and safe manner, and to have his or her rights as a child protected, respected and guaranteed.The Sports and Rights Alliance45 is a powerful human rights collaborative that is leading the charge on wide array of human rights abuses connected to sport, including athlete’s human rights.

Keys to change and reform in the USA

Nancy Hogshead-Makar (Champion Women)

For years and even decades, there have been several women at the forefront of tackling abuse in sport and are finally changing it. With a diverse set of backgrounds these women have led the way fighting for women’s rights in sport from discrimination to abuse, participation to administration, these changemakers have the skills, background and knowledge to put in place lasting change for children and athletes worldwide.

Nancy Hogshead-Makar has spent her life working for women’s sport. While with the US based Women’s Sport Foundation she was a tireless legal advocate for Title IX (US federal law that prohibits discrimination in any educational activity, including sport, on the basis of sex), but found it was “too corporate46 and so she founded her own organization, Champion Women, which spearheaded recent legal change in the US that will make sexual abuse mandatory reporting for sport organizations.

A three-time Olympic gold medalist in swimming at the 1984 Los Angeles Games, Hogshead-Makar was also a tenured professor at Florida Coastal School of Law in from 2001 to 2013 where she also founded their Sports Law Center. Hogshead-Makar has testified in Congress numerous times and has served on two Presidential committees on gender in sports and co-edited the book Equal Play; Title IX and Social Change.

Hogshead-Makar’s fight has always been about using outside laws to keep sport in line. She fought hard for the USOC’s SafeSport to be created as a distinct entity from the USOC and as outlined below, she won with the passage in late 2017 of the Safe Sport Act.

USOC’s SafeSport initiative

In 2012, the USOC tasked Malia Arrington with creating the USOC's SafeSport initiative, which

imposed safeguards and provided training and education related to emotional, physical and sexual misconduct – including bullying, hazing, harassment and abuse – throughout the Olympic and Paralympic Movement.47

In 2017, the USOC launched the US Center for SafeSport, which was set up to independently investigate and resolve allegations of sexual misconduct for all US Olympic sports rather than individual sports having to do it themselves. Although in the works since 2010, the Center only launched after the gymnastics abuse story broke48. However, the project grew immediate criticism from Hogshead-Makar and others for not being significantly independent from sport.

SafeSport right now is still in the position of protecting the adults and not adequately protecting the children," said Marci Hamilton the CEO of Child USA to the Indianapolis Star. "And it has quite a way to go to make that switch over to the culture of child protection.”49

The Center’s CEO Shellie Pfohl said the center would be independent from the USOC and “will not allow anyone who previously worked for the USOC or a NSO to be involved in the handling of complaints or in arbitration of disputes.50

During its first week in operation, the same news report said that the center received nine cases and Pfohl said the center will act as a "mandatory reporter," and will "immediately" pass allegations of suspected criminal abuse to law enforcement. The report also noted that Pfohl said the center's response and resolution office will not attempt to substantiate allegations of criminal abuse before notifying police in the jurisdiction where the alleged incident occurred.

That has not always been the case with complaints made to national governing bodies. USA Gymnastics acknowledged earlier this year that it waited five weeks, while conducting its own investigation, before telling the FBI that it had received allegations of inappropriate conduct by former doctor Larry Nassar, the organization's longtime team physician.

For more on the SafeSport Initiative, please see this LawInSport article by Paul Greene: How the USOC’s SafeSport policies are tackling athlete abuse and harassment.

Legislative response

The Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 201751 (Safe Sport Act) was passed into law in the US in February 2018 after efforts by Hogshead-Makar and advocates at Champion Women including many of Nassar's abuse survivors. The Act expands mandatory reporting requirements to sports organizations, creates a civil remedy for survivors, extends the statute of limitations, and designates the US Center for SafeSport as an independent organization to handle abuse allegations with funding from government and independent of the USOC.

The US Center for SafeSport was already created under the auspices of the USOC in response to the Nassar abuse case. However, advocates, including Hogshead-Makar, demanded SafeSport exercise greater independence from the USOC and the Act now does that.

As noted above, the US Center for SafeSport is authorized to create its own form of neutral arbitration but importantly it preserves the right of survivors to pursue civil remedy outside of sport. The Act also authorizes SafeSport to create mechanisms for reporting and mechanisms and sharing confidential reports of abuse allegations.

SafeSport will be provided with a budget of US$1million annually. In comparison, WADA invoiced the US government $2.3mn in 2018 for its allocated contribution to the international anti-doping agency.

Before the Safe Sport Act, Hogshead-Makar says the USOC depended on 'no duty' rules. Legally speaking, she says that meant as long as they stayed completely out of any situation involving accusations of abuse, they couldn't be held liable. “The less they did, the less likely it was that a court would hold them responsible for sexual abuse,'she told media52 after passage of the Act.

The Act also instructs SafeSport to create:

  • reasonable procedures to limit one-on-one interactions between an amateur athlete who is a minor and an adult (who is not the minor’s legal guardian) at a facility under the jurisdiction of a national governing body or paralympic sports organization without being in an observable and interruptible distance from another adult, except under emergency circumstances;

  • procedures to prohibit retaliation, by any national governing body or paralympic sports organization, against any individual who makes a report...

  • ...oversight procedures, including regular and random audits conducted by subject matter experts unaffiliated with, and independent of, a national governing body or a paralympic sports organization of each national governing body and paralympic sports organization to ensure that policies and procedures developed under that section are followed correctly and that consistent training is offered and given to all adult members who are in regular contact with amateur athletes who are minors, and subject to parental consent, to members...”

The Act also creates key legal changes53:

  • It mandates that any adult, authorized to interact with a minor or amateur athlete at an amateur sports organization in the US during any event (travel, lodging, practice, competition, health or medical treatment), report sexual abuse allegations within 24 hours to local law enforcement. Internal investigations not reported within 24 hours are not longer lawful.

  • It creates a mechanism so that victims of sexual abuse will be compensated with a mandatory minimum of US$150,000USD (this would be a civil remedy for personal damages action against the violator of the SafeSport Act)

It also lengthened the Statute of Limitations for reporting sexual abuse is extended and starts only when a person realizes they were abused

Not later than 10 years after the date on which the plaintiff reasonably discovers the later of— ‘‘(A) the violation that forms the basis for the claim; or ‘‘(B) the injury that forms the basis for the claim; or ‘‘(2) not later than 10 years after the date on which the victim reaches 18 years of age.’’

The Nassar case has come full circle with all entities, USAG, USOC, and US Congress making huge steps to change the culture of gymnastics in the US and ensure that sport more broadly is protecting children in the US. But what about the international players? What have the International Gymnastics Federation and the IOC done? There is still room for much need improvement.

This concludes the first article in the series. LawInSport will also be running a seminar to discuss the issues raised herein in due course.

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About the Author

Nikki Dryden

Nikki Dryden

Nikki is a two-time Olympic swimmer from Canada and a human-rights and immigration attorney in New York. She competed at the 1992 and 1996 Olympic Games, with a top finish of 6th place, and covered the 2004 and 2008 Olympics for SwimNews Magazine. She has a BA in International Relations from Brown University and a J.D. from Brooklyn Law School.

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