The Empowering Athletes Act: A Welcome High-Water Mark in Amateur Sport Accountability

16 December 2020 SportBusiness Publication
Authors: Andrew L. Lee Gregory A. Marino

This article was originally published in SportBusiness, and is republished here with permission.

On October 30, President Trump signed into law the Empowering Olympic, Paralympic and Amateur Athletes Act, which establishes new safeguards and powers to protect American amateur athletes from abuse. Athlete abuse has been an area of significant congressional attention since the Larry Nassar-USA Gymnastics scandal rocked the amateur sports world in 2017, on the heels of several other high-profile cases in college and youth sports. The Empowering Athletes Act builds on the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017 (SafeSport Act), which established the United States Center for SafeSport as an independent investigative body tasked with combatting abuse in the world of amateur sports. This latest bill signals a more active approach by Congress, in that it articulates new federal authority over the institutional power structures in amateur sports by imposing certain reforms meant to empower athlete voices, impose congressional oversight, and generate much-needed funding for the Center for SafeSport to operate as a powerful investigative authority. The amateur sports community has largely met these reforms with open arms, but it is too early to tell whether the new law strikes the right balance between federal oversight and federal overreach.

Building on SafeSport

The United States Center for SafeSport is a centralized authority with jurisdiction over reports of abuse and misconduct in the communities of the United States Olympic and Paralympic Committee (USOPC) and the National Governing Bodies (NGB) and Paralympic Sports Organizations (PSO) representing individual amateur sports in the United States. In the case of sexual abuse or misconduct, the Center’s jurisdiction is exclusive, such that none of these Olympic or Paralympic organizations have authority to investigate sexual misconduct in their own ranks. In addition, the Center provides educational resources for sports organizations of all levels, including guidance for identifying, investigating and combatting all forms of abuse. Beyond establishing the Center, the SafeSport Act also imposes significant oversight and reporting requirements on NGB and PSO member organizations, requiring these organizations to take affirmative steps in combating athlete abuse on a grassroots level through mandatory education and internal compliance measures. Since its formation in 2017, the Center has already had a major impact on amateur athlete safety, having formally investigated more than 6,000 abuse complaints, and disciplining more than 600 perpetrators in the past three years alone.

The nature of the Center’s investigative work, however, is both expansive and expensive. As part of its mandate, the Center acts as a national clearing house for all complaints of sexual, emotional and physical abuse in the amateur sports world, as well as bullying, harassment and hazing occurring in hundreds of thousands of amateur sports organizations. Despite its bold and critical objective, the SafeSport Act did not provide the Center with any form of federal funding with which to pursue its congressional directive. Instead, since its founding, the Center has been financed by undetermined donations contributions from the USOPC and various NGBs—none of which receive direct congressional funding themselves. With the Center receiving thousands of complaints per year, and the volume of complaints seeming to expand exponentially, the Center’s finite team of investigators faced the challenging task of resolving cases in a timely fashion without sacrificing the quality or thoroughness of their investigations. It became clear

that more resources were necessary to investigate and prosecute effectively abusive practices in amateur sports. This meant empowering the Center with more funding, as well as a broader investigator mandate. The Empowering Athletes Act is meant to do both.

A Bold New Agenda

The Empowering Athletes Act seeks to expand the efficacy of the Center, impose heightened oversight on the USOPC and NGBs, and empower athletes’ voices in the governance of amateur athletics.

First, the Act is designed to address the Center’s funding issues, which have largely arisen as a consequence of the Center’s success. It would be wrong to say that the Act provides funding to the Center for SafeSport, as the Act does not itself appropriate a single federal dollar to the Center. Instead, the Act imposes a mandate on the USOPC to provide at least $20 million in annual grants to the Center starting in 2021.

This change will result in a significant—and mandatory—commitment from the USOPC, which contributed $7.5 million to the Center in 2019 and $11.5 million in 2020. The USOPC, which itself receives no federal funds, will look to draw on increased support from individual NGBs in meeting the $20 million mark—a tall order for organizations that have been financially decimated by the cancellation of the 2020 Tokyo Olympics, leaving them hard-pressed to increase contributions beyond the $2.05 million they donated to the Center in 2019.

The imperative for new funding is bolstering the Center’s investigative capacity while also allowing it to meet new audit and reporting requirements imposed by Congress in its expanded new oversight role. In particular, Section 8 of the Act requires the Center to undertake SafeSport compliance audits of every NGB in the country as well as the USOPC on an annual basis. These reports will be provided to Congress for review.

Congressional review of the Center’s annual audits is part of the Act’s broad increase in congressional oversight, some of which Congress will undertake directly. Section XI of the Act creates a 16-member congressional commission called the “Commission on the State of the U.S. Olympics and Paralympics” which has been tasked with completing a 9-month review of the USOPC and all of its operations—including its athlete abuse reforms, diversity initiatives, and even commercial licensing agreements. Additionally, the Commission will report on the efficacy of individual NGBs’ measures to ensure athlete safety. Critically, Congress has given the Commission full congressional subpoena power in fulfilling this review, the results of which will be made public.

The Act goes further than simply reporting and analyzing the efforts made by the USOPC and various NGBs—it packs an executive punch as well. Section 5 of the Act gives Congress the power to directly dissolve the board of directors of the USOPC, and even terminate federal recognition of individual NGBs. This particular expression of congressional authority represents a high-water mark in federal oversight into amateur athletics. This sea change will be applauded by reformers, though there is some risk that critics may consider Congress’ newly active role synonymous with politicization of the mission of Olympic/Paralympic and amateur athletics generally.

From a governance perspective, the Act imposes several new structural regulations on the USOPC and individual NGBs in the name of increasing the voices of athletes in both. Section 5 of the Act requires that USOPC and NGB boards and committees be composed of at least 33% athletes. Additionally, the Act mandates that the USOPC and the NGBs must put into place non-retaliation policies to protect whistleblowers, who more often than not are either athletes or former athletes themselves.

Potential Obstacles

The Empowering Athletes Act has been met with broad praise by those in the amateur athletic community, who see it as an important step for athlete empowerment and institutional accountability. An unintended consequence of the Act, however, could be a chilly reception from the International Olympic Committee (IOC), the international body that organizes the Olympic Games. The IOC demands fierce independence from its National Olympic Committee (NOC) members (such as the USOPC), with Rule 28.9 of its charter allowing withdrawal of recognition from an NOC where government action “causes the activity of the NOC or the making or expression of its will to be hampered.” This provision is meant to preserve athletic autonomy by maintaining a firewall between national politics and amateur sport, which, in the wrong hands, could be used as a tool for political agendas.

In recent years, the IOC has aggressively pursued its “autonomy” mandate, most notably by suspending India’s NOC in 2012 and Kuwait’s in 2015—in both cases as a response to perceived governmental overreach following domestic legislative action. Most recently, the IOC expressed concern in Italy after the Italian parliament preempted its NOC’s financial autonomy in advance of the 2026 Winter Olympics.

Despite the IOC’s aggressive policing of NOC autonomy, however, it is highly unlikely that the IOC would take such action over the passage of the Empowering Athletes Act. Unlike the governmental actions in Kuwait, India and Italy, the Empowering Athletes Act is almost singularly focused on athlete safety, which its authors believe can only be effectuated through increased federal oversight. Given this laudable intent, not to mention the largesse of the American broadcast and advertising market and its impact on IOC Olympic revenues, it appears highly unlikely that the IOC would take action that would limit American Olympic team participation based on this legislation.

Instead, one can expect the IOC to accept the Empowering Athlete Act’s muscular approach to athlete safety, and for the Act to spark structural change in the USOPC and NGBs all over the United States. The Act’s reforms, including its funding requirements, will not be easily met, but the bill signals a significant shift in accountability, which is a positive sign for the amateur athletics community and the Olympic movement at large.

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