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Safe sport series - The systemic problems in sport that leave

athletes at risk of abuse

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Published 25 May 2018 | Authored by: Nikki Dryden (/item/nikki-dryden-2)

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 Kaepernick (https://www.espn.com.au/nfl/story/_/id/21035352/colin-kaepernick-
files-grievance-nfl-owners-collusion)1 who it is alleged was not hired back into the NFL
for speaking out about racial injustice in his sport to gymnast Dominque Moceanu
(https://www.indystar.com/story/news/investigations/2017/02/26/dominique-moceanu-
says-usa-gymnastics-ceo-forefront-ignoring-abuse/98258474/)2 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 quiet
(https://www.espn.com/espn/otl/story/_/id/22122752/aly-raisman-says-usa-gymnastics-
threatened-quiet-larry-nassar-accusations)3, athlete representatives are being penalized
for speaking out (https://www.wsj.com/amp/articles/the-u-s-olympic-monopoly-needs-
accountability-1522364127)4, and even some victims
(https://www.abc.net.au/7.30/police-offer-hush-money-to-cover-bungled-rape-
case/2675208)5 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 (https://safe4athletes.org/), 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 (https://www.teamusa.org/About-the-USOC/Athlete-
Development/Coaching-Education/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 (https://www.playbytherules.net.au/got-an-issue/child-protection/types-

of-child-abuse),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 sport

(https://www.olympic.org/athlete365/wp-content/uploads/2015/11/IOC-Consensus-
Statement_Harassment-and-abuse-in-sport-2016.pdf)11 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
(https://www.usaswimming.org/utility/landing-pages/safe-sport/banned-member-list---
perm) 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 (https://www.bustle.com/p/how-the-safe-
sport-act-could-stop-the-next-larry-nassar-8162315) 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 claimed (https://usagym.org/pages/post.html?
PostID=21412&prog=h)13 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 reports (https://www.nbcnews.com/news/us-
news/mckayla-maroney-says-usa-gymnastics-tried-silence-her-abuse-story-n831416)14
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
(https://www.indystar.com/story/news/2017/02/16/larry-nassar-usa-gymnastics-fbi-child-
sexual-abuse/98002452/) 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 events

(https://www.indystar.com/story/news/2017/02/16/larry-nassar-usa-gymnastics-fbi-child-
sexual-abuse/98002452/)16 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 (https://www.indystar.com/story/news/2017/02/16/larry-nassar-
usa-gymnastics-fbi-child-sexual-abuse/98002452/). “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 Nichols
(https://www.si.com/olympics/2018/01/09/maggie-nichols-larry-nassar-sexual-abuse-usa-
gymnastics)18, 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 Star
(https://www.indystar.com/story/news/2017/02/16/larry-nassar-usa-gymnastics-fbi-child-
sexual-abuse/98002452/)19 citing the Wall Street Journal
(https://www.wsj.com/articles/fbi-interviews-top-u-s-gymnasts-in-intensifying-sexual-
abuse-investigation-1487267063)20 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 Illustrated (https://www.si.com/olympics/2018/01/09/maggie-nichols-larry-nassar-

sexual-abuse-usa-gymnastics)21 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 investigation (https://www.wsj.com/articles/fbi-

opens-internal-review-into-handling-of-nassar-allegations-1519900321)22 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 (https://www.espn.com/espn/otl/story/_/id/22122752/aly-
raisman-says-usa-gymnastics-threatened-quiet-larry-nassar-accusations) 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

(https://www.si.com/olympics/2018/01/09/maggie-nichols-larry-nassar-sexual-abuse-usa-
gymnastics) 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 (https://www.wsj.com/articles/usa-gymnastics-
reached-settlement-over-abuse-claims-with-gold-medalist-mckayla-maroney-
1513791179),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 (https://www.usagym.org/pages/post.html?PostID=21145).26 According
to Maroney's lawyer John Manly
(https://www.espn.com/olympics/gymnastics/story/_/id/21825575/usa-gymnastics-struck-
agreement-mckayla-maroney-keep-larry-nassar-abuse-quiet-lawyer-says) ,"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 University
(https://www.espn.com/espn/otl/story/_/id/22122752/aly-raisman-says-usa-gymnastics-
threatened-quiet-larry-nassar-accusations)28 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
(https://www.indystar.com/story/news/2016/09/20/larry-nassar-timeline/90733320/) 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

(https://www.indystar.com/story/news/2016/09/12/former-usa-gymnastics-doctor-
accused-abuse/89995734/),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

(https://www.indystar.com/story/news/investigations/2016/08/04/usa-gymnastics-sex-
abuse-protected-coaches/85829732/) 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
(https://www.documentcloud.org/documents/3001496-Colarossi-Kelly-on-
Hearsay.html).” 31

Olympic gold medalist and darling of the 1996 Atlanta Olympics, Dominique Moceanu
spoke up (https://www.indystar.com/story/news/investigations/2017/02/26/dominique-
moceanu-says-usa-gymnastics-ceo-forefront-ignoring-abuse/98258474/) 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
(https://www.documentcloud.org/documents/3475266-2-24-17-USA-Gymnastics-
Response-to-Indy-Star.html) 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 (https://www.espn.com/olympics/story/_/id/21361729/aly-raisman-says-

was-abused-former-usa-gymnastics-doctor-larry-nassar) 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 inaction
(https://www.theblaze.com/news/2018/03/26/second-arrest-connected-to-usa-
gymnastics-doctors-abuse-boss-at-michigan-state-held-by-authorities/amp)34. 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 that (https://edition.cnn.com/2018/03/27/us/william-

strampel-charge-nassar/index.html)35 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 lawsuit
(https://www.documentcloud.org/documents/3189553-Jane-LM-Doe-Complaint-FILED-
10-27-16.html)36 against USAG and also named the most famous gymnastics coaching
duo Bela and Martha Karolyi,
(https://www.indystar.com/story/news/investigations/2016/10/27/new-lawsuit-claims-usa-
gymnastics-ignored-abuse/92823764/) 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 claims (https://edition.cnn.com/2018/03/28/us/karolyi-

depositions/index.html?
utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fcnn_us+
(RSS%3A+CNN+-+U.S.)&utm_content=Yahoo+Search+Results)38 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
Blackman (https://www.teamusa.org/Media/News/USOC/022818-USOC-announces-
significant-changes-to-further-protect-athletes)39 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 Journal (https://www.wsj.com/articles/olympics-officials-
didnt-act-on-gymnasts-abuse-allegations-in-2015-1517484720)40 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 (https://www.abc.net.au/news/2018-02-06/larry-nassar-
sentenced-to-another-40-to-125-years-in-prison/9399118).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 Principles
(https://stillmed.olympic.org/Documents/olympic_charter_en.pdf)42 of Olympism 5 in
the Olympic Charter.
The autonomy principle is reiterated in the mission
(https://stillmed.olympic.org/Documents/olympic_charter_en.pdf) 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
(https://stillmed.olympic.org/Documents/olympic_charter_en.pdf).

“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 as (https://www.tas-cas.org/en/general-information/frequently-asked-
questions.html) “an 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

(https://www.wsj.com/amp/articles/the-u-s-olympic-monopoly-needs-accountability-
1522364127) 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 (https://www.gpo.gov/fdsys/pkg/CHRG-
108shrg99965/pdf/CHRG-108shrg99965.pdf)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 (https://canoe.org.au/wp-content/uploads/2015/03/ATHLETES-
2016-Australian-Olympic-Team-Membership-Agreement-FINAL-w-Schedules.pdf) 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
(https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf),
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),

(https://stillmed.olympic.org/Documents/olympic_charter_en.pdf) 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),

(https://stillmed.olympic.org/Documents/olympic_charter_en.pdf) 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 constitution (https://aoc-
cdn.s3.amazonaws.com/corporate/live/files/dmfile/AOC-Constitution-6-May-20172.pdf)44
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
(https://www.uniglobalunion.org/sites/default/files/imce/world_players_udpr_1-
page_0.pdf) 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
Alliance (https://www.sportandhumanrights.org/wordpress/)45 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 corporate
(https://www.newsobserver.com/sports/college/acc/article177858321.html)”46 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
(https://www.temple.edu/tempress/titles/1831_reg.html).

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 (https://www.safesportinternational.com/ssi-
board/) 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 broke
(https://www.indystar.com/story/news/2017/03/08/safesport-center-answer-athlete-sex-
abuse/98775554/)48. 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 (https://www.indystar.com/story/news/2017/03/08/safesport-center-answer-athlete-
sex-abuse/98775554/). "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

(https://www.indystar.com/story/news/2017/03/08/safesport-center-answer-athlete-sex-
abuse/98775554/) 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
(/topics/articles/item/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
2017 (https://www.congress.gov/bill/115th-congress/senate-bill/534/text?format=txt)51
(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 (https://www.wada-
ama.org/sites/default/files/resources/files/wada_contributions_2018_update_en_0315.pdf)
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 media (https://www.bustle.com/p/how-the-safe-sport-act-could-stop-the-next-larry-
nassar-8162315)52 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 changes

(https://www.govtrack.us/congress/bills/115/s534)53:

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.

REFERENCES
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6This article will focus on professional sport leaders when using the term sport
administrators. A key problem with sport is the voluntarily nature of it. So many hard
working parents (my own included) dedicate hundreds of hours to make their children's
sport function. It comes at a cost when time is stretched and volunteering functions
occur at night and on weekends. As a volunteer board member of a national level sport
myself, researching this article shattered me. How could I possibly do my job to ensure
the safety of the athletes in my sport when I could barely check emails and make sure
the organization operates. There is no easy solution to this, but certainly if the
professional administrators take the lead to provide training, best practice toolkits,
oversight, and an open collaborative environment then the volunteers among us may be
able to work towards implementing and fulfilling basic best practices for our children and
our athletes.

7 Safe4Athletes website, https://safe4athletes.org/ (https://safe4athletes.org/) (last

accessed 25 May 2018)

8 Ibid

9 The U.S. Olympic Committee Coaching Code of Ethics is intended to provide standards
of professional conduct that can be applied by the USOC and its member organizations
that choose to adopt them.

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12 Banned Member List, USA Swimming.org,

https://www.usaswimming.org/utility/landing-pages/safe-sport/banned-member-list---
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2018, last accessed 25 May 2018, https://usagym.org/pages/post.html?
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16 Ibid

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21 See Footnote 18, above

22 ‘FBI Opens Internal Review of Handling of Gymnasts’ Sex-Abuse Allegations’,
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23 See footnote 3, above

24 See Footnote 18 above

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31 Ibid

32 ‘Dominique Moceanu says USA Gymnastics CEO 'at the forefront' of ignoring abuse’,
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36 Jane Doe v Larry Nassar, BC638724, 27 Oct 2016,

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41 ‘Larry Nassar sentenced to another 40 to 125 years' jail for sexual abuse of gymnasts’,
abc.net.au, 6 Feb 2018, last accessed 25 May 2018, https://www.abc.net.au/news/2018-
02-06/larry-nassar-sentenced-to-another-40-to-125-years-in-prison/9399118

42 ‘Olympic charter, 2 AUG 2015, last accessed 21 May 2018

43 The U.S. Olympic Monopoly Needs Accountability’, wsj.com, 29 Mar 2018, last
accessed 21 May 2018, https://www.wsj.com/amp/articles/the-u-s-olympic-monopoly-
needs-accountability-1522364127 (https://www.wsj.com/amp/articles/the-u-s-olympic-
monopoly-needs-accountability-1522364127)

44 ‘AOC Constitution’, 6 May 2017, last accessed 21 May 2018, https://aoc-

cdn.s3.amazonaws.com/corporate/live/files/dmfile/AOC-Constitution-6-May-20172.pdf
(https://aoc-cdn.s3.amazonaws.com/corporate/live/files/dmfile/AOC-Constitution-6-May-
20172.pdf)

45Sportandhumanrights homepage, last accessed 21 May 2018,

https://www.sportandhumanrights.org/wordpress/
(https://www.sportandhumanrights.org/wordpress/)

46 ‘This former Duke Olympian was raped – and became an advocate for women's
rights’, newsobserver.com, 9 Oct 2017, last accessed 21 May 2018,
https://www.newsobserver.com/sports/college/acc/article177858321.html
(https://www.newsobserver.com/sports/college/acc/article177858321.html)

47 SafeSport International Homepage, https://www.safesportinternational.com/ssi-board/

(https://www.safesportinternational.com/ssi-board/) (last accessed 21 May 2018)

48‘ SafeSport Center: Is it the answer to athlete sex abuse?’, indystar.com, 8 Mar 2017,
last accessed 21 May 2018

49 ‘SafeSport Center: Is it the answer to athlete sex abuse?’, indystar.com, 22 March

2017, last accessed 25 May 2018,
https://www.indystar.com/story/news/2017/03/08/safesport-center-answer-athlete-sex-
abuse/98775554/ (https://www.indystar.com/story/news/2017/03/08/safesport-center-
answer-athlete-sex-abuse/98775554/)

50 Ibid

51 S.534 - Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act
of 2017,

https://www.congress.gov/bill/115th-congress/senate-bill/534/text?format=txt
(https://www.congress.gov/bill/115th-congress/senate-bill/534/text?format=txt) (last
accessed 25 May 2018)

52 ‘How The Safe Sport Act Could Stop The Next Larry Nassar’, bustle.com, 10 Feb 2018,
last accessed 25 May 2018, https://www.bustle.com/p/how-the-safe-sport-act-could-
stop-the-next-larry-nassar-8162315 (https://www.bustle.com/p/how-the-safe-sport-act-
could-stop-the-next-larry-nassar-8162315)

53 ‘S. 534: Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act
of 2017’,

https://www.govtrack.us/congress/bills/115/s534
(https://www.govtrack.us/congress/bills/115/s534) (last accessed 25 May 2018)
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