Nancy Hogshead-Makar: Olympic Athletes Need Better Protections from Sexual Harassment and Assault
Getting Sexually Abusive Coaches Out of Sport
Reports of sexual abuse in Olympic sports are, regrettably, becoming common. In a typical case, a promising young athlete is groomed over a period of time for a sexual relationship with her coach. What legal protections do athletes competing on club and Olympic teams have from sexual harassment and assault? Title IX protects student-athletes, competing for their high school or university. Schools must identify possible threats of sexual assault and work to prevent the harm. Title IX requires schools to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects. Similarly, Title VII requires employers to protect employees from sexual harassment and assault in the work place and to address grievances quickly.
The Police Cannot Make Sports Safe
What about criminal law to weed out these molesters? Criminal law is adept at catching and locking up molesters who are particularly bad at grooming their victims, the coach who pulls an athlete into a weight room and rapes them. But most molesters prime the athlete over a long period of time, making them part of the molestation, getting their consent for sexual contact in order to do so repeatedly without being caught. This type of molester is rarely prosecuted criminally.
The Victim Cannot Make Sports Safe
The victim is typically not in a good position to make it safe for other athletes. The victim has been emotionally manipulated and typically wants no part of any public efforts to discipline the molester. Instead, she and her family want the abuser out of the victim’s life. Victims may wait many years to come forward, long after the statute of limitations has passed.
The surprising answer is that there is no statute that similarly protects Olympic athletes from coach or peer sexual harassment or assault. And tort law has proven to be inadequate to protect victims, because many National Governing Bodies (NGBs) have structured their insurance agreements to make them effectively judgment-proof.
Romantic and Sexual Relationships Between Coaches and the Athletes they Coach
A culture that condones sexual and romantic relationships between coach and athlete has been allowed to grow. Many professions flatly prohibit sexual relationships between those in a power imbalance, regardless of the age or the consent of the victim. Examples include attorney-client, clergy-parishioner, teacher-student, doctor-patient. The NCAA has taken a strong stand against any sexual relationships between coaches and their athletes.
While the USOC has an outstanding ethics policy that is in accord with the NCAA and the professions, it is optional, and most NGBs have not adopted it.
The Sports Act Does Protect Against Sex Discrimination, But…
The Ted Stevens Olympic and Amateur Sports Act, which governs all U.S. Olympic sports, does have a non-discrimination provision, but it is almost unenforceable against coaches or peers:
(8) provides an equal opportunity to amateur athletes, coaches, trainers, managers, administrators, and officials to participate in amateur athletic competition, without discrimination on the basis of race, color, religion, sex, age, or national origin, and with fair notice and opportunity for a hearing to any amateur athlete, coach, trainer, manager, administrator, or official before declaring the individual ineligible to participate; (Sexual harassment and assault are a type of sex discrimination.)
However, the Sports Act’s civil rights protections are unlike any other. It requires victims to go through AAA arbitration, rather than through a court. Currently, prevailing parties rarely get damages, and instead get injunctive relief. This is because the USOC’s AAA arbitration process was designed to settle disputes about Olympic team membership or to resolve positive drug testing results. It was not designed to get molesting coaches out of sport.
In addition, victims are not entitled to attorney’s fees as a matter of right the way that all civil rights violations are provided for in employment, in housing, in education, in voting, and public accommodations. Consequently, there is no impetus for an attorney to gain any expertise in the field, and no reason for victims to expend the emotional energy necessary to get the offending coach out. Preventative training is not done as it is in employment and in education.
The Women’s Sports Foundation is having discussions with the United States Olympic Committee, calling for the following changes to its by-laws:
• (1) Athletes need protections that are comparable to all other civil rights violations, as in employment, housing, education, voting, etc.
o Specifically, the AAA arbitration process needs to provide for damages against clubs, NGBS and the USOC, when they knew or should have known that there was sexual harassment occurring and not take action that would end the harassment.
o Also, the AAA arbitration process must provide for attorney’s fees for prevailing parties. Virtually all other civil rights provisions provide for attorney’s fees, in order to allow victims to enforce their civil rights.
• (2) Changes need to include giving the athlete an unbiased mechanism to get abusing coaches out of sport, much like what most schools under Title IX use in cases of acquaintance rape or intimate partner violence. There must be an investigatory/adjudication process that is free from the self-interest on the part of the NGB or their coaching association.
Changing the USOC by-laws would bring the USOC into accord with virtually all other areas of society. If we can protect middle-aged women in employment and education, surely we can protect young children from sexual harassment and assault. We know the value of a sports experience on our youth. The Women's Sports Foundation's work documents the impressive life-long educational, social and health benefits flowing directly from a sports experience for men and women. See Her Life Depends On It II
According to Wharton Economist Betsey Stevenson’s groundbreaking research, sports uniquely boost a student’s academic performance, employment and earning potential. The research suggests that the failure to provide girls with athletic and fitness opportunities endangers the public health and weakens our economy. We owe it to our children and fellow-athletes to make sports safe for all participants.