On June 20, 2018, USA Gymnastics (“USAG”) suspended Alex Naddour, member of the 2016 U.S. Olympics team in men’s gymnastics and a member of the current Senior National Team, pending the resolution of allegations of sexual misconduct. His suspension prohibits him from participating in any USAG activities.
The United States Olympic Committee (“USOC”) is responsible for, among other things, establishing programs to develop world class athletes in the Olympic sports. To that end, USOC has designated 47 organizations as national governing bodies (“NGBs”), each with responsibility for one or more sports. USAG, a nonprofit corporation headquartered in Indianapolis, is the NGB for several types of gymnastics.
USOC and several NGBs, particularly USAG, have come under fire over the last several years for failing to protect athletes, in particular to protect female athletes from sexual abuse. The best known case is that of Larry Nassar, formerly USAG’s national team doctor, who, earlier this year, was sentenced to 40 to 175 years in prison for criminal sexual misconduct against female gymnasts, most or all of whom were minors at the time.
Until 2017, each NGB was responsible for establishing codes of conduct, including rules regarding sexual misconduct, by its members; for investigating and adjudicating allegations of sexual misconduct; and for imposing sanctions, including lifetime bans from participation, on those found to have violated the codes of conduct. In response to a flood of sexual abuse allegations and convictions, which have arisen not only in gymnastics but also in swimming, taekwondo, and other sports, a nonprofit corporation known as the United States Center for Safe Sport (the “Safe Sport Center”) was created and charged with assuming those responsibilities.
In March 2017, the Safe Sport Center established a code of conduct, the SafeSport Code for the U.S. Olympic and Paralympic Movement (the “Code”) and a set of procedures governing the investigation and adjudication of allegations of sexual misconduct and sanctions against those found to have engaged in sexual misconduct, the SafeSport Practices and Procedures for the U.S. Olympic and Paralympic Movement (the “Practices and Procedures”). A key element of the Practices and Procedures is that the Safe Sport Center has exclusive authority to investigate and adjudicate allegations of sexual misconduct by “covered individuals” (consisting primarily of members of the NGBs) and to impose sanctions when it finds that sexual misconduct has occurred. The NGBs are prohibited from engaging in those activities. Specifically, section I.B.1 of the Practices and Procedures reads:
The Office [i.e., the Safe Sport Center’s Response and Resolution Office] or its duly appointed designee, has exclusive authority over (a) actual or suspected sexual misconduct by a Covered Individual; and (b) misconduct that it reasonably related to an underlying allegation of sexual misconduct, as set forth in the Code. Exclusive authority means that (a) only the Office will investigate and manage any related hearings involving sexual misconduct and (b) neither the NGB nor USOC will conduct its own investigation or arbitration with respect to possible sexual misconduct, except as otherwise provided.
In addition, Section I.C of the Practices and Procedures makes it clear that the Safe Sport Center has exclusive authority for sexual misconduct that occurred before the Safe Sport Center was created:
In resolving allegations of misconduct, the Office applies its currently effective procedures and the substantive standards in effect at the time of the alleged violation. If a report is made regarding conduct that occurred before the effective date of the Code, the Office will apply the relevant NGB’s substantive rules and regulations and/or other standards applicable at the time of the alleged conduct.
Because the Safe Sport Center has no inherent legal authority to impose its policies on the NGBs (which are typically independent nonprofit corporations), the USOC required the NGBs to amend their governing documents and policies to adopt the Safe Sport program and to transfer to the Safe Sport Center the exclusive authority over sexual misconduct. Presumably, the consequence of failing to do so would be decertification of the NGB by USOC.
Before the Safe Sport program was created, allegations of any type of misconduct by USAG members were governed by Articles 9 and 10 of USAG’s bylaws. Article 9 set forth the broad rules governing member misconduct, including sexual misconduct, and Article 10 prescribed specific procedural rules for investigation, adjudication, and sanctions.
There are some significant differences between the Practices and Procedures and the procedures in the USAG bylaws. The most important is that a decision under the Practices and Procedures may be appealed to an arbitrator, but there is no express right to appeal a decision by USAG to any other authority. (There are some arguments that, notwithstanding the absence of an express right of appeal, a decision under the USAG bylaws may be appealed to a trial court, including an argument that the absence of such a provision would violate antitrust laws.)
In March 2017, shortly after the Safe Sport Center finalized the Code and the Practices and Procedures, USAG amended Articles 9 and 10 of its bylaws, granting exclusive authority of allegations of sexual misconduct to the Safe Sport Center; however, Articles 9 and 10 continue to govern other types of member misconduct. Section 9.3 of the USAG bylaws now reads in part:
The Corporation shall report and refer all allegations of sexual Misconduct to the Center, and all such matters will be within the Center’s exclusive jurisdiction. The Center shall investigate such allegations or reports, issue any interim suspension or other measures pending the conclusion of the investigation and any hearing(s), make recommendations of sanctions or disciplinary action as a result of such investigation, and fully adjudicate such matters.
Even so, USA Today recently reported that USAG has not referred all allegations of sexual misconduct to the Safe Sport Center. Instead, USAG has, with the apparent blessing of the Safe Sport Center, retained some cases that were reported to USAG prior to the amendment of its bylaws. That conflicts with a statement of an official of USOC who said that it “was, is and has always been our position that upon launch of the center that all cases should be submitted to the center.” [The emphasis is ours.] The same article quotes an official of the Safe Sport Center as saying, “To the best of our knowledge, we’re not aware of any sexual misconduct cases that were previously being handled by NGBs where they asked for the center to get involved and the center didn’t.” Even if the Safe Sport Center has agreed, either expressly or simply with a wink and a nod, to permit USAG to retain some cases in disregard of the Safe Sport Center’s own obligations, the fact remains that USAG no longer has any authority under its own bylaws to sanction members for sexual misconduct. Nonetheless, USAG recently announced that it had imposed a lifetime ban on a gymnastics coach for sexual misconduct that occurred 40 years ago.
The suspension of Naddour may be another case in which USAG has acted beyond its authority. According to the Orange County Register, allegations against Naddour were reported to USAG in 2012 and in 2016. The Register reported that it contacted USAG on June 19, 2018, to inquire about the allegations and that USAG was unfamiliar with them. The next day USAG suspended Naddour, apparently without contacting him first. In doing so, USAG did not cite for its authority either the Practices and Procedures or the USA Gymnastics SafeSport Policy (which incorporates the Practices and Procedures ), but rather Section 9.3 of its bylaws (quoted above) and Section 10.5 of its bylaws, which governs interim sanctions pending resolution of allegations under Article 10’s hearing procedures. However, as discussed above, Section 9.3 expressly states that interim suspensions are the responsibility of the Safe Sport Center — not USAG. Moreover, reliance on Section 10.5 is misplaced because sexual misconduct allegations are no longer resolved under Article 10. In addition, the Safe Sport Center’s website lists no disciplinary record for Naddour. Those circumstances imply one of two things: Either USAG either took it upon itself to suspend Naddour, rather than referring the case to the Safe Sport Center and allowing it to make the decision on interim sanctions as provided by the Practices and Procedures, or USAG and the Safe Sport Center had another agreement, either express or implied, for USAG to act on its own. Either way, USAG’s action is in contravention of its own bylaws and the Safe Sport Center’s Practices and Procedures.
It is not obvious why USAG would attempt to impose sanctions that are outside its corporate authority, or why the Safe Sport Center would not object to its doing so, rather than simply following their own bylaws and policies. Nonetheless, that appears to be what is happening.
[Revised July 2, 2018 to remove an erroneous statement that a hearing is not required under the USAG Bylaws for the imposition of interim sanctions.]