Charlotte Anrig*
In 2017, the American public learned that the USA Gymnastics national team doctor, Larry Nassar, had sexually abused hundreds of his young female patients over the course of at least a decade. In response to this scandal and comparable incidents within other US Olympic sports, Congress enacted the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act. This Act made all certified members of national sport organizations mandated reporters, and it authorized a national independent organization (“Safe Sport”) to regulate child-adult contact within Olympic sports, adjudicate sexual abuse allegations through arbitration, and issue sanctions per its discretion. Safe Sport has been particularly active and controversial in the world of equestrian sports, where riders have both criticized it as an unconstitutional violation of due process rights and praised it as a necessary measure to stop widespread, horrific abuse. The controversy raises an as-of-yet-unaddressed question of constitutional law as well as big-picture questions about ethical adjudication of sexual assault claims in the era of #MeToo.
Safe Sport’s primary function is to adjudicate sexual misconduct claims, particularly those involving the abuse of minors, through arbitration. The process begins as soon as an adult registered with the national governing body for an Olympic sport—here, the United States Equestrian Federation (USEF)—reasonably suspects an incident of child abuse. Per the Congressional Act and the Safe Sport Code, they must report their concerns to both law enforcement and Safe Sport. Safe Sport then has automatic jurisdiction over the claim and can immediately issue temporary measures against the accused at its discretion, potentially extending to a complete suspension from all USEF-affiliated activity. Safe Sport then conducts an investigation where both parties may present information and evidence (although they may not conduct discovery), identify witnesses, and submit questions that they think should be directed to each other or to any witness. Each party may have an attorney, but their attorney may only provide “advice and support”— they may not speak for their client. At arbitration, a Safe Sport arbitrator possesses broad discretion about what evidence to accept, and they ultimately issue a ruling based on a preponderance of evidence standard—meaning it is more likely than not that the alleged conduct occurred. The arbitrator will then determine appropriate sanctions at their discretion. Here, their options include restricting the party’s USEF membership up to the point of permanently banning them from the sport; they cannot impose other criminal or civil sanctions. The arbitrator’s ruling and sanctions are completely independent from any criminal or civil proceedings about the relevant conduct, and only the final result—not any details of the investigation or arbitration proceedings—may be made public.
Perhaps the most distinctive feature of the Safe Sport system is the complete absence of a statute of limitations. The Code states: “The Center assesses a Participant’s fitness to participate in sport. As past conduct informs current fitness, no criminal, civil, or rules-based statutes of limitations or time bars of any kind prevent the Center from investigating, assessing, considering and adjudicating any relevant conduct regardless of when it occurred.” In 2019, SafeSport issued a permanent ban from the sport in response to an investigation of abuse that took place in 1968.
Within the equestrian community, Safe Sport proceedings are hardly a rare formality. Safe Sport’s public database indicates that as of November 2019, 30 people have been found guilty of abuse, 20 of whom received a lifetime ban on participating in the sport. And crucially, Safe Sport acts against a terrible backdrop of normalized abuse. One of the most revered equestrian trainers of all time, Jimmy Williams, sexually assaulted many of his young students for years; George Morris, former head of the US Olympic show jumping team and sport legend, recently received a Safe Sport lifetime ban for his “relationships” with young students. Anne Kursinski, a famous Olympian rider and trainer, has publically explained that her trainer sexually abused her when she was a young rider, and Jennifer Fox’s recent movie The Tale chronicles the sexual abuse she endured as a young rider at the hands of her trainers. Ask any rider: they probably have at least one story about something that happened to a friend of a friend.
Safe Sport’s equestrian supporters—a minority group—hail the organization as a necessarily powerful response to a subculture that tolerates sexual violence and discourages reporting through norms of cultish devotion to trainers, respect for male authority, and general values of toughness, stoicism, and resistance to outsiders. Its vast number of detractors respond with vociferous claims that Safe Sport proceedings violate due process rights and are deeply unconstitutional, taking particular issue with the opacity of the proceedings, the potential for immediate temporary measures, and the organization’s indifference to the age of the allegations. As Robert Dover, a famous international male rider put it, “The ‘70’s especially were a crazy time and men and women, gay and straight, did crazy things…But retroactively attempting to judge one’s behavior in today’s world based on those times…is not only impossible but unfair.”
Both groups’ reactions speak to two intertwined questions: is Safe Sport legal, and should it be? To answer the first, Safe Sport’s website cites a Tenth Circuit Case from 1989 in support of the proposition that neither National Governing Bodies (like USEF) nor the United States Olympic Committee (USOC) qualify as governmental actors. As such, the Fifth Amendment right to due process—which only protects individuals from government action—has no application. To at least some extent, though, Safe Sport operates independently from both organizations. And while the Tenth Circuit does suggest that a congressional charter and regulatory power alone are not sufficient to make an organization governmental, much of its reasoning rests on the idea that regulating a sport is not a traditionally governmental function. However, passing judgment on whether or not a crime occurred, which is arguably what Safe Sport does, is both a significant departure from previous NGB operations and a traditionally governmental function. Still, Safe Sport does not have the power to impose criminal or civil sanctions beyond the jurisdiction of the NGBs, and no current litigation against Safe Sport—very little of which even exists—has presented a constitutional argument.
The second question—should Safe Sport be legal—poses a difficult and crucial problem for thinking about adjudicating sexual assault claims in 2020. Undoubtedly, the Center sets aside some fundamental protections for the accused that are central to the American criminal and civil systems: the right to a jury trial, full representation, discovery, cross-examination, procedural transparence, appeal, statutes of limitations, and so on. But, as equestrian supporters of Safe Sport have emphasized along with many other #MeToo advocates, these protections have historically served to shelter abusers, re-traumatize and discredit survivors, and deter survivors from pressing charges in the first place. Claimants do wield power in their ability to initiate an investigation, but the broader picture reveals that the balance of power overwhelmingly lies on the side of the abusers—most of whom are older, famous, wealthy, revered men who retain virtually all of their status and influence even in the aftermath of lifetime bans. Witness the enormously popular petitions that went out in support of George Morris after Safe Sport banned him, contrasted with virtually no public support for the former student accusing him of abuse. Who, then, needs protection? What’s fair when an accuser wields enormous legal power but minimal cultural power, and the accused wields the opposite? Do parallel regulatory systems like Safe Sport provide a good answer to a flawed legal system, or are they mere kangaroo courts? To put it briefly—what does justice look like in a deeply unjust society?
*Charlotte is a 1L at Harvard Law School.