by Irvin Muchnick
One of the legislative debate fault lines in the wake of the passage of the SafeSport Act is whether the U.S. Olympic Committee now has all the necessary tools for holding USA Swimming and other national sport governing bodies (NGBs) to heel.
Nancy Hogshead-Makar, 1984 swimming gold medalist and now CEO of the advocacy group Champion Women, was the driving force behind the act. Her answer to this question is an emphatic “yes.”
In anticipation of last week’s hearing by the House Energy and Commerce Committee, at which USOC and NGB heads had their first public grillings post-USA Gymnastics’ Larry Nassar sexual abuse scandal, Hogshead-Makar’s ad hoc group, the Committee to Restore Integrity to the USOC, had issued a legal memorandum headlined “The USOC Currently Has the Authority to Mandate NGB Compliance With the Sports Act and USOC Policies.” Concussion Inc. is publishing the full text of the memo at the bottom of this article.
I’m doing so because Hogshead-Makar makes excellent points from a platform of great credibility. I’m not doing so because I completely agree with the way mainstream reformers frame this question.
Basically, you can count me in the minority of critics who do not perceive a mission or a priority of saving the Olympic movement from itself. We view the passivity with which the USOC and NGBs fight abuse as more a matter of will and values, not of legalities. Still, it’s important to nail the Lords of the Rings on both fronts.
The reason some of us want a new Amateur Sports Act is not so much to tighten things up at the USOC but to move the nation’s youth-serving sports programs altogether out from under the hegemony of the Olympic system. This is a tricky argument, since the Olympics are an entrenched institution and some form of practical synergy with it is inevitable. Those less interested in the Olympics as the fulcrum of youth sports tend not to have any personal history with the positive aspects of such a partnership, nor stake in their survival.
Last point in this connection: Where the USOC — or a national sports ministry, or some other form of more ambitious federal government oversight regime — fails in the scope of its jurisdiction is not in its power over the sanctioning of NGBs. Rather, it is in ambiguous jurisdiction over child abusers outside, as well as inside, NGBs. The great example here is swimming, where the vast numbers of participants can be easily seen to spill over from USA Swimming clubs into non-sanctioned rec clubs, YMCA programs, and high schools. (Not to mention U.S. Masters Swimming, the unofficial retirement home of old perverts who were banned or “flagged” by USA Swimming.)
So when I talk about enhancing the USOC’s and the NGBs’ clout to curb abuse, I’m talking about the need to make official national bodies truly comprehensive in scope — not willy-nilly 501(c)(3) nonprofits that get anointed for branding and marketing purposes.
With this disclaimer, I am happy to reproduce here the full memo from the Committee to Restore Integrity to the USOC. Ed Williams, another prominent attorney on this issue, was a principal author of this document.
THE COMMITTEE TO RESTORE INTEGRITY TO THE USOC
MEMORANDUM FOR THE RECORD RE: The USOC Currently Has the Authority to Mandate NGB Compliance With the Sports Act and USOC Policies
Good governance, proper sport management, and appropriate support of athletic programs are necessary for National Governing Bodies (NGBs) to serve the Olympic Movement and America’s athletes. As provided in the Ted Stevens Olympic and Amateur Sports Act [footnote * below] and the United States Olympic Committee Bylaws, [footnote ** below] the USOC currently has the authority to conduct a compliance review of all matters related to the continued recognition of an NGB. This authority includes expressly imposing a range of sanctions on a non-compliant NGB, including decertification and withdrawing USOC funding. The USOC can accomplish NGB compliance through a number of different strategies. Therefore, the USOC does not need any further grant of authority from Congress under the Sports Act or its own Bylaws to require NGBs to be in compliance.
II. The USOC’s Authority Over NGBs is Sweeping, and is Derived From the Sports Act and the USOC Bylaws.
The USOC is the Congressionally-designated “umbrella organization” over NGBs. [footnote *** below] As such, the USOC may direct an NGB to make any change to comply with the Sports Act and all USOC Bylaws and policies. Indeed, Congress has already well-equipped the USOC with the authority and responsibility to mandate NGB compliance, as it deems appropriate, as part of its oversight functions under the Sports Act and the USOC Bylaws. Applicable provisions in the Sports Act and USOC Bylaws include:
1. Section 220521(d) of the Sports Act provides that the USOC with broad authority. It states that the USOC “may review all matters related to the continued recognition of an organization as a national governing body and may take such action it considers appropriate, including placing conditions on the continued recognition.”
2. Section 8.1 of the USOC Bylaws goes further. It states that “the [USOC] Board… has the power to review all matters relating to the continued recognition of an NGB… and may take such action as it considers appropriate, including, but not limited to, placing conditions upon the continued recognition of an NGB…, placing an NGB… on probation, suspending an NGB … or terminating the recognition of an NGB…”
3. Section 8.20 of the USOC Bylaws clarifies the authority vested in the USOC CEO. It states that “Any action by the [USOC] to suspend, revoke, or otherwise take action with respect to the membership and recognition of an Olympic, Pan American or Paralympic Sport Organization pursuant to the provisions of Section 220521(d) of the Act and Section 8.1 of these Bylaws shall be taken at the initiative of the CEO and shall be finally determined by the Board. Such action may be taken because of a compliance review undertaken by the [USOC] or pursuant to other information known to the [USOC].”
III. The Sports Act and USOC Bylaws Establish Specific Requirements on NGBs.
The requirements for a sports organization to be recognized by the USOC as one of our country’s National Governing Bodies are set forth in the Sports Act and the USOC Bylaws as follows:
1. To be recognized, and to continue to be recognized, an NGB must meet those requirements and duties set forth in Sections 220522, 220523, 220524 and 220525 of the Sports Act. (See also, USOC Bylaw Section 8.3.
2. In addition, to be eligible for membership in the USOC as an Olympic or Pan American Sport NGB, a sports organization must meet those requirements and duties set forth in Section 8.7 and 8.8 of the USOC Bylaws, including the need “to satisfy such other requirements as set forth by the [USOC]” (See USOC 8.7(w))
3. Pursuant to existing USOC Bylaws 8.7(v); “permit the corporation, at its request, to have reasonable access to all files, records and personnel necessary to make such membership and governance reviews as the corporation deems necessary or appropriate;”
4. Specifically, under USOC Bylaw Section 8.7 NGB “…Membership Requirements, NGBs must comply with the safe sport policies of the corporation and with the policies and procedures of the independent safe sport organization designated by the corporation to enhance safe sport practices and to investigate and resolve safe sport violations.”
Accordingly, the USOC presently has the absolute right under the Sports Act and USOC Bylaws to conduct compliance reviews of NGBs, and to impose a broad range of sanctions. The USOC does not need any further grant of authority from Congress under the Sports Act or its own Bylaws to initiate an NGB compliance review.
IV. The Sports Act and USOC Bylaws Specify Actions that the USOC and CEO can Undertake to Gain Compliance.
Under current USOC Bylaws, the USOC CEO has the authority to initiate any action to suspend, revoke or otherwise take action with respect to the membership and recognition of an Olympic, Pan American or Paralympic Sport Organization on any compliance irregularity. The USOC CEO also has the authority to determine what action should be taken; provided that the determination to decertify an NGB due to compliance failures shall require a vote of the USOC Board of Directors. (USOC Bylaw, Section 8.20).
If information comes to the USOC’s attention that an NGB is out of compliance with Sports Act, USOC Policies, or is otherwise not complying with legal or other standards that would put athletes in jeopardy, the USOC, by its CEO, has the authority to authorize a compliance review. (Id.) Under current USOC authority, USOC compliance related actions may include, without limitation:
1) directing staff-to-staff conversations between the USOC and the NGB;
2) undertaking direct USOC CEO-to-NGB CEO conversations;
3) conditioning USOC funding of an NGB on compliance-related changes;
4) undertaking a full compliance review of the NGB; and /or
5) recommending to the USOC Board of Directors that an NGB be decertified for Sports Act and / or USOC Policy compliance failures.
* 36 U.S.C. Sec. 220501 et seq., available at: https://www.teamusa.org/Footer/Legal/Governance-Documents
** See, “USOC Bylaws Effective Date October 13, 2017” available at: https://www.teamusa.org/Footer/Legal/Governance-Documents
*** See legislative history of the Amateur Sports Act of 1978, as amended and re-named the Ted Stevens Olympic and Amateur Sports Act in 1998.