Representant Les Etats-Unis D'amerique: Reforming the USOC Charter

Vanderbilt Journal of Entertainment & Technology Law

Volume 7 Issue 2 Issue 2 - Spring 2005 Article 3

2005

Representant Les Etats-Unis d'Amerique: Reforming the USOC Charter

Christopher T. Murray

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Recommended Citation Christopher T. Murray, Representant Les Etats-Unis d'Amerique: Reforming the USOC Charter, 7 Vanderbilt Journal of Entertainment and Technology Law 233 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol7/iss2/3

This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Representant Les Etats-Unis d'Amerique: Reforming the USOC Charter

By Christopher T. Murray*

Games over the past twenty-five years: Los Due to disorganization in amateur Angeles in 1984, Atlanta in 1996,8 and Salt sports and poor performance by American Lake City in 2002.' The United States has also athletes in the 1970s, Congress enacted the excelled in international athletic competition Amateur Sports Act of 1978 (ASA) to facili- over the past quarter century, as evidenced tate organization and get better results. Un- by American athletes' accelerating medal col- der the ASA, the United States Olympic Com- lection at the Sydney Summer Games in mittee (USOC) became a federal corporation 2000,10 the Salt Lake Winter Games in 2002,11 responsible for the governance of both Olym- and the Athens Summer Games in 2004.12 pic movement in the United States and all 2 Despite hosting profitable Olympic Games domestic amateur sports. Congress often creates quasi- governmental agencies by Olympic Games and thriving in chartering federal corpora- "Despiteinternational hostingathletic competition,profitable tions. Federal the USOC experienced turmoil as corporations fall into one of a result of internal disorganization two categories: (1) the govern- and corruption":' ment corporation and (2) the patriotic organization.3 Government cor- and thriving in international athletic compe- porations were at the forefront of deregula- tition, the USOC experienced turmoil as a re- tion during the Reagan administration and the sult of internal disorganization and corrup- "reinventing government" of the Clinton ad- tion. ministration.4 Amtrak is the most common As the organization responsible for example of a government corporation.5 A gov- both the Olympic movement and amateur ernment corporation acts like a business, while sports, the USOC has an enormous breadth a patriotic organization does not. Under the of duties. During the past twenty-five years, ASA, Congress created the USOC as a patri- two milestones occurred that significantly otic organization akin to the Boy Scouts or the impacted the USOC. First, the Olympics American Legion. 6 emerged as a profit-driven business. 13 Sec- The USOC enjoyed great success after ond, participation in amateur sports in the its reformation in 1978. 7 The United States United States exploded. Recognizing that the hosted three profitable, well-run Olympic Olympics are now a complex business involv- SPORTS

ing millions of people, the USOC has expanded tion. beyond its chartered status as a patriotic orga- This Article prop oses a reorganization nization. The Olympic movement and ama- of Olympic and amateur sports in the United teur sports have changed so drastically in the States not yet entertain ed by Congress, the past twenty-five years that the USOC must be USOC, or the legal academy. Congress should re-examined, revoke the USOC's chart er as a patriotic orga- Corruption plagues the USOC.'4 Dis- nization. The USOC sh ould be divided and honesty infected the selection process for the reformed. The Olympic-related functions of host cities for the 1996 and 2002 Olympic the USOC should be recaist into a government Games and produced widely publicized corporation. Thus, the financial, political, and troubles for the USOC.' 5 Favors and gifts led legal functions of represeriting the United States to the selection of Atlanta for the 1996 Sum- in the Olympic movemeiit would be adminis- mer Games. 16 The Salt Lake Organizing Com- tered like those of a cor poration. The gover- mittee (SLOC) learned from a prior failed bid nance of amateur sports should be removed and from Atlanta's example that gifts and money from the USOC's charte r and privatized into would secure the 2002 Winter Games.17 The an association of the indi'vidual sports. subsequent Salt Lake scandal marred the Part I of this Article discusses the back- USOC's image and garnered media attention ground of the Olympic m ovement in the United throughout the world.' 8 States; the various atterripts at USOC reform As a result of the exposure of disarray in 2003; and the role of fe deral corporations as and corruption, the Senate and House of Rep- chartered by Congress. r)art II analyzes where resentatives drafted bills to reform the USOC the source of trouble for tf'e USOC; the changed charter in 2003.19 The USOC responded to context of the USOC ove r the past twenty-five Washington's efforts at reform in October 2003 years; the USOC's structLire and its failure; di- by proposing its own changes to its constitu- vision of the USOC's futnctions into two new tion.' The proposed USOC constitution pri- organizations; and the fu ture of the USOC. marily alters the composition of the USOC's board of directors.21 The current process of reforming the USOC does not adequately ad- I. Background dress the fundamental, systemic issue that looms over the organization: its classification A. History of the USOC: 1950- as a patriotic organization that no longer oper- 2002 ates as such. In late 2003, Congress decided to postpone its determination of the USOC's fu- 1. The Olymp ic Movement in ture.22 Until Congress acts, the USOC's inter- the United St ates nal reforms will proceed. For effective change Pierre de Coubert in began the modern to occur, Congress must review the entire Olympic movement with the intention of pro- USOC charter to address the systemic issue of moting peace by making "sport at the service where the USOC now fits as a federal corpora- of the harmonious devek)pment of man."2 3 In 1894, "the Con- gress of Paris established the In- "The proposed USOC ternational constitution primarily alters Olympic Com- mittee (IOC) for the composition of the the purpose of organizing and USOC's board of directors" supervising the 'Olympic movement' and resur- recting the Olympic

Spring 2005 234 Representant Les Etats-Unis d'Amerique games." 24 The IOC recognizes National Olym- teur sport in the United States.35 Several run- pic Committees (NOC) to "develop and pro- ners did not qualify for their events because tect the Olympic movement in their respective their coaches gave them improper start times. countr[ies]. 25 In 1896, the USOC was estab- A swimmer was stripped of a gold medal be- lished and recognized as the NOC for the "A swimmer was stripped United States.26 As a result of Hitler's domina- of a gold medal because the tion of the 1936 Berlin Games team doctor prescribed a and the begin- ning of the Cold banned substance." War, the Olym- pics became more politically symbolic. The USOC received its first federal cause the team doctor prescribed a banned sub- charter in 1950,27 when Congress gave the stance. Finally, American officials did not use USOC "sole dominion over amateur athletics the proper channels to appeal erroneous deci- that pertained to the Olympic games."' 28 Fed- sions by referees that led to the legendary men's erally chartering the USOC reflects the Ameri- basketball loss to the Soviet Union.3 6 These can politicization of the Olympics because the problems at the 1972 Olympics indicated federal government shepherded the once-pri- greater structural problems. The Commission vate organization into the government's sphere. examined the disorganization of amateur ath- The USOC's two principal functions emerged letics on the local level and the poor performance with the 1950 federal charter: (1) Congress so- of American athletes in international competi- lidified the USOC's domain over everything tion.37 The Commission suggested that Con- related to the Olympics and (2) the USOC re- gress pass legislation combining control of do- ceived control over a large portion of domestic mestic amateur sports with Olympic gover- 38 amateur sports. 29 However, the 1950 federal nance under the USOC. charter neither established the USOC as a fed- In heeding the Commissions' recom- eral corporation nor gave it control over all do- mendations and enacting the ASA, Congress mestic amateur sports. Amateur sports in the intended to prevent the factional disputes com- 1950s had relatively few athletes and sports. mon among the various amateur sports orga- Thus,. Thus, the USOC as chartered in the nizations.3 9 Congress' stated its objective in the 1950s no longer functioned well by the 1970s.30 ASA as follows:

2. The Amateur Sports Act of [The USOC should bring] amateur 1978 sports organizations together and estab- Disorganization beset American ama- lishing lines of communication in order teur sports in the 1970s. 1 The performance of that the mutual goals and priorities can American athletes in international competitions be realized and problems resolved. The floundered.3 2 "In the early to mid-1970s, bu- USOC should encourage amateur reaucracy, inefficiency, and incompetence sports organizations to settle differences, plagued the organization and management of to overcome shared deficiencies, and to amateur sport in the United States." 33 Con- produce more integrated programs so gress passed the ASA after a recommendation that a meaningful assembly of sports by President Ford's Commission on Olympic organizations will exist to respond to the Commission). 34 Sports (the needs4 of this Nation's amateur athlet- The 1972 Munich Games demonstrated ics. 0 the poor administration of Olympic and ama-

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The ASA established a vertical structure to gov- 3.Olympic Committees in ern American amateur sport with the USOC at Other Nations the top. 41 Below the USOC is the National Gov- The composition of NOCs in other na- 42 erning Bodies (NGB) of each amateur sport. tions helps to contextualize the USOC's role as For example, United States Swimming is the NOC for the United States.5 2 However, to bet- NGB for swimming in the United States. 43 Prior ter comprehend NOCs, one must first under- to the ASA, several governing bodies existed stand the blueprint for the organization of in- for each sport; under the ASA, Congress gave ternational amateur sports. "The world of in- the USOC power to recognize only one NGB ternational [amateur] sports has historically per sport. " The vertical USOC- NGB structure "Without rules to address does not cap- ture the com- directly the intense competition plexity of the now present in host city power given to the USOC by selection, the selection process the ASA. The vertical struc- grew increasingly corrupt" ture addresses domestic amateur sports organization, but the USOC also governs repre- been built around the Olympic Games with the 5 3 sentation of the United States in international, IOC sitting atop a pyramid-like structure." 45 most notably Olympic, athletic competition. Below the IOC on that pyramid are the Inter- The USOC possesses exclusive control over all national Federations (IF) that govern each indi- matters relating to the Olympic movement in vidual sport.5 4 Below the IFs on the Olympic the United States, including participation in the pyramid are the NOCs, which organize Olym- Olympic Games. 46 Thus, the USOC has the pic sport within a nation; the USOC is the NOC dual role of organizing domestic amateur sports for the United States. 55 At the bottom of the and representing the United States within the pyramid are the NGBs, which oversee particu- Olympic movement. lar amateur sports at the domestic and local The USOC has additional, related func- level.5 6 For example, Federation Internationale tions conferred by the ASA.47 The USOC has de Natation (FINA) is the IF for swimming, and exclusive domain over the Olympic trademark United States Swimming (USS) is the NGB for and derives its financial viability from ensur- swimming in the United States; thus, the orga- ing the value of the Olympic trademark.48 The nization of swimming from the top-down is: USOC also monitors doping by American ath- IOC-FINA-USOC-United States Swimming. letes. 49 In 2000, the USOC created the United In practice, however, the entities within inter- States Anti-Doping Agency (USADA) to im- national amateur sports organization operate 7 prove and centralize the monitoring of doping. 0 fluidly, not in a strict vertical fashion. Under the ASA, Congress gave the The IOC permits leniency in the con- USOC broad, complex responsibilities.5 The struction of NOC and amateur sports structures two main functions of the USOC under the ASA within each nation.5 ' Australia has an umbrella are (1) domestic amateur sports organization NOC with state Olympic organizations that and (2) Olympic governance. However, the oversee amateur sport regionally. 9 France and Olympic role of the USOC is most often unre- Italy have complicated organizations: the NOC, lated to its other function of governing domes- amateur sports organizations, and regional tic amateur sports. Olympic organizations work together in a mesh-like structure. 60 Great Britain has a top- down NOC structure similar to the USOC-NGB

_ Spring 2005 236 Representant Les Etats-Unis d'Amerique relationship under the ASA. 61 Switzerland, gan the reorganization process. 77 "Senator Ben home of the IOC, has a government-sanctioned Nighthorse Campbell of Colorado, a 1964 NOC and a separate organization that governs Olympian in judo, compared the USOC's lack amateur sports.62 The norm among nations is of transparency and openness to Enron and de- to charter the NOC by statute.63 Thus, the IOC manded Congressional intervention. ' 7 Dur- recognizes the NOC as representative of a na- ing a speech at USOC headquarters in Colo- tion, while traditionally leaving internal domes- rado Springs, Senator Campbell revealed evi- tic structuring of Olympic and amateur sports dence of criminal fraud by USOC staff whistle- functions to the nations themselves. blowers.7 9 Later in 2003, the Equal Employ- ment Opportunity Commission pursued alle- 4. Profits, Success, and Corrup- gations of gender discrimination and filed suits tion: 1978-2003 in federal courts.8 0 The USOC imploded in The period between1978 and 2003 be- 2003 due to corruption, political jockeying, and gan with the enactment of the ASA and ended discrimination. with the implosion of the USOC's leadership. 64 Jim Scherr, the USOC CEO following The period began positively as America rein- Mankamyer's removal, faced a revenue short- vented the Olympics by making the 1984 Los fall of $10 million.81 The USOC chose Bill Mar- Angeles Games a business enterprise. 6 Once tin, athletic director at the University of Michi- American capitalism redefined the Olympics gan, as interim President to guide the organi- as a profit-generating venture, hosting the zation through "the most turbulent era in 66 Olympic games became financially desirable. USOC history."8 2 The new leaders pled for Without rules to address directly the intense funds to ensure the financial backing necessary competition now present in host city selection, for American athletes to compete in the 2004 however, the selection process grew increas- and 2006 Games; revenue swelled with new ingly corrupt.67 The Salt Lake Organizing Com- sponsors and private donors.8 3 The financial mittee, previously unsuccessful in an honest bid management of Scherr and organizational man- for the Winter Games, engaged in fraudulent agement of Martin provided a short-term res- activities common to host city selection.6 s cue of the USOC. Canadian IOC member Dick The Salt Lake scandal began when an Pound remained skeptical of the USOC's fu- IOC executive board member alleged vote-buy- ture, however, stating that "[w]hat the USOC ing in the host city bidding process, including has done so far may just be whistling past the 8 4 college scholarships and gifts. 69 As a result of graveyard. the Salt Lake scandal, ten IOC members resigned for accepting gifts that totaled approxi- 5. Tryin to Reinvent the mately $1 million. 70 In 2000, many SLOC lead- USOC in 2003 ers were indicted on counts of fraud and con- In late 2003, both the Senate and House spiracy.71 USOC officials called the IOC "a cul- of Representatives introduced bills to alter the ture of 'gift giving"' and urged a restructuring USOC charter.8 5 The Senate and House bills of the IOC; the IOC subsequently instituted a represent first attempts at reform, but both rigorous and detailed site selection process. 72 pieces of legislation are both small and short However, many IOC members blamed the on detail.8 6 Particularly vague in the House bill United States and USOC for tarnishing the is the "standards and compliance" section, 73 Olympic image. which creates an under-developed mechanism Accused of unlawfully giving $4.6 mil- for responding "to allegations of illegal or im- lion in business to his brother's company, proper activities and the enforcement of appro- 8 7 USOC CEO Lloyd Ward resigned in late 2002. 74 priate disciplinary action against" the USOC. Ward and his successor, Marty Mankamyer, The House bill notably mandates review of the 7 testified before Congress on January 28, 2003. 1 USOC every ten years by an independent com- Ward and Mankamyer described warring po- mission that would report to Congress; peri- litical factions at the USOC. 76 As the Senate odic review would be new to the USOC char- investigation began probing the USOC, several ter.88 However, Congress decided to delay re- USOC executives resigned and Congress be- forming the USOC charter; Senator Campbell

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"backed off" to allow the USOC to focus on facilities for governmental ends."' 100 Federal 89 preparations for the Athens Summer Games. corporations are an essential component of the Congress thus began the process of consider- modern American political economy; more fed- ing reform of the USOC's federal charter, but eral corporations exist in 2004 than ever be- must continue working towards an in-depth fore.101 reformation of the USOC. While Congress explored the failure of 1. Government Corporations the USOC in 2003, Bill Martin made structural The first category of federal corporations change the focus of his tenure as USOC presi- chartered by Congress is the government cor- dent.90 After a seven-month internal reform poration. Congress generally chooses to char- process, the USOC proposed a new constitu- ter a government corporation because the un- tion on October 3, 2003.91 The new constitu- derlying purpose is business-like, though a gov- tion attempts to refocus the structure of the ernment corporation can be for-profit or non- USOC by reducing the organization's board of profit.10 2 Government corporations can be ei- directors from 124 to 11, while simultaneously ther commercial or non-commercial. 0 3 They eliminating the executive board. 92 Paralympic, have varied functions that include the manage- college, and high school sports leaders oppose ment of satellites, museums, railroads, and elec- the new constitution because they do not have tricity.'0 4 When he urged Congress to create a seat on the proposed board of directors. 93 In the Tennessee Valley Authority, President addition to the change in the board of direc- Franklin D. Roosevelt noted the unique char- tors, the new constitution creates an advisory acter of the government corporation: "[it is] a board that consists of all member organiza- "Amtrak should not be tions. 94 The new constitu- heralded as an example of the tion seeks to administer the efficiency of government USOC with a compact group corporations because of its while providing many structural and capital an outlet for voices of other flaws" interested par- ties. 95 The USOC's internal reform thus focuses on the mi- corporation clothed with the power of govern- nutia of board position reallocation without con- ment but possessed of the flexibility and initia- sidering the over-arching issue of the USOC's tive of a private enterprise." 15 role as a federal corporation. Prominent examples of government corporations include Amtrak, the Tennessee Val- 106 B. Federal Corporations ley Authority, Fannie Mae, and Sallie Mae. "[Federal corporations] act as agencies Amtrak is the most commonly used example of the United States, but are regarded as sepa- of a government corporation.1 0 7 However, rate and distinct from the government. '96 Con- Amtrak should not be heralded as an example gress charters two types of federal corpora- of the efficiency of government corporations tions.9 7 First, government corporations are because of its many structural and capital similar to private corporations since they both flaws. 08 have a capital structure and a business pur- Government corporations should clothe pose.9 8 Second, patriotic organizations are a government agency with private sector struc- member organizations that do not have a busi- turing.0 9 In chartering a government corpora- ness purpose.99 Federal corporations have been tion, Congress assesses whether the organiza- used extensively "'as independent corporate tion in question would function best as a busi-

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ness.110 While some government corporations ganization. 116 Congress created ninety-threepa- have a primarily economic purpose, others have triotic organizations under Title 36.117 Patriotic more public purposes."' The presence of gov- organizations are not federal agencies." 8 Ex- ernment corporations in the federal scheme amples of patriotic organizations include the indicates that some organizations will not op- Agriculture Hall of Fame, the American Sym- erate practically or efficiently as federal agen- phony Orchestra League, Girl Scouts of the cies. Congress has almost unlimited flexibility United States of America, Ladies of the Grand to confine and structure a government corpo- Army of the Republic, the National Society of ration in its charter. 1 2 the Daughters of the American Revolution, the Pearl Harbor Survivors Asso- .the USOC operates ciation, and the Society of transparencyAmerican Flo- with a lack of rists and Gina- and a reputation for HorticutI corruption:' JOf the ninety- three patriotic organizations under Title 36, nearly half are Government corporations should ideally related to the military. 2 Congress thus char- "increase accountability to government disci- tered a diverse variety of groups as patriotic pline and market discipline, ensure private par- organizations. However, the most prominent ties do not profit at public expense, and none- patriotic organizations are the American Red theless limit taxpayer's contingent liability if [it] Cross and the USOC. becomes insolvent."1 n 3 The liability of the fed- Recently, Congress and the administra- eral government for the actions of government tive law academy expressed concern that char- corporations is a complex issue based upon the tering a patriotic organization misleads the pub- legal relationship between the government cor- lic into thinking that the federal government poration and the federal government.1 4 Courts supervises that organization. 121 In truth, the must decide whether the government corpo- government exercises little federal supervision ration, in light of its charter and function, acts over patriotic organizations. The American Red more like a federal agency or a quasi-private Cross' difficulties with transparency and fiscal organization when addressing government cor- discipline evidence the problems that are often poration liability. For example, some charters characteristic of patriotic organizations. 122 for government corporations define them as While government corporations con- agencies and make them subject to portions of tinue to be a foundation of the modern Ameri- the Administrative Procedure Act, while other can political economy, Congress now disfavors charters create a much more attenuated rela- patriotic organizations.123 In 1992, Congress tionship with the federal government." 5 Ac- decided that it would no longer charter patri- countability, transparency, and liability depend otic organizations because they "served no use- on the government corporation's chartering ful public purpose." 124 Congress' suspension statute. The liability of the federal government of chartering patriotic organizations indicates for actions of government corporations illus- the failure of at least some patriotic organiza- trates the flexibility Congress has in chartering tions. Furthermore, Congress' low opinion of the government corporation. patriotic organizations demonstrates that important organizations like the American Red 2. Patriotic Organizations Cross and USOC demand special structural The second category of federal corpora- attention since patriotic organizations appear tions chartered by Congress is the patriotic or- to have outlived their purpose in the federal

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scheme. Of the static list of patriotic organizations in Title 36, the American Red Cross and II. Analysis USOC present notable examples of organizations that have become too large and too cor- A. Where Did the Trouble Be- porate. gin? 3. The ASA gave the USOC two primary The USOC as a Federal Cor- and often different functions. 35 First, the ASA poration renewed the USOC as the NOC for the United Like the American Red Cross, Congress States, meaning that the USOC governed all chartered the USOC as a patriotic organization issues related to the Olympic movement. 36 As under Title 36 of the United States Code.1 25 Also the NOC for the United States, the USOC con- like the American Red Cross, the USOC oper- fronts significant issues like protection of the ates with a lack of transparency and a reputa- Olympic trademark, doping, sponsorship, and tion for corruption. 12 6 Congress does little other promoting American cities as candidates to host than recognize the existence of the USOC. The the Games. 37 Second, the ASA gave the USOC Supreme Court upheld this distant relationship control of all amateur sports in the United in San Francisco Arts & Athletics, stating, "[t]he States. 38 For example, both ten-year-old chil- government may subsidize private entities dren playing organized soccer in Omaha and without assuming constitutional responsibility sixty-year-old adults swimming in a Boston for their actions. ' 127 Although it controls the league fall under the USOC's umbrella of con- domestic Olympic movement, represents the trol. Thus, the ASA combined the financial and United States in international athletic competi- international functions of Olympic governance tion, and governs domestic amateur sports, the with the coordination of millions of amateur USOC does not have to answer or report to the athletes under one federally chartered entity. federal government under its charter.128 The 129 As chartered in 1978 under the ASA, Congress USOC may act as it deems responsible. granted the USOC huge and varied responsi- Justice Brennan's dissent in San Francisco bilities. Arts & Athletics130 examines the history of the Within the context of the Olympics and USOC and explores its future. Justice Brennan amateur sports in the 1970s, Congress appro- observes that the USOC's congressional char- priately categorized the USOC as a patriotic or- ter was the result of frustration over the disorganization."39 Although large for a patriotic organization of amateur sport and that "no actor ganization, the USOC of the 1970s fits along- in the private sector had ever performed this side other patriotic organizations like the Boys function..., and the USOC has been endowed and Girls Clubs of America and the Girl by 140 the Federal Government with the exclusive Scouts. However, the Olympic movement power to serve a unique national, administra- '131 and amateur sports metamorphosed over the tive, adjudicative, and representational role." past twenty-five years as the Olympics became Justice Brennan stated his concern that Con- a business endeavor and participation in ama- gress chartered the USOC to increase transpar- teur sports exploded in the United States. ency and accountability in amateur sports; he In the past twenty-five years, the USOC interpreted the majority holding as too empow- 132 far outgrew the simple confines of a patriotic ering the USOC without proper restraint. organization. The USOC is no longer a patri- Justice Brennan's precise concerns would sub- otic organization in practice, though it remains sequently materialize with the USOC's ensu- a patriotic organization until Congress alters its ing disorganization and corruption. 3 By 2003, charter. Vast capital, in the range of billions of Congress reconsidered the USOC charter for dollars, runs through the USOC in its Olym- the same reasons that led to its formation un- pic-related functions. Tens of millions of Ameri- der the ASA: disorganization and lack of trans- cans now participate in amateur sports on many parency.14 Since the same issues have re- levels. From humble roots, a mammoth has emerged, the USOC must be thoroughly ex- arisen. amined and appropriately reformed.

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B. The USOC Charter in Con- Olympics into a corporate entity. In 2004, the text: Changed Perspectives, USOC is a corporate enterprise, not merely a Changed Needs membership patriotic organization. The USOC's 1978 charter reflected the When the IOC selected Atlanta as the shared desire of the White House and Congress to repair the disorganization of amateur sports "Now operating within a and improve performance in drastically different context, international 141 competition. the USOC must be All amateur sports and all reinvented and reformed, not Olympic functions merged bandaged" under the USOC's umbrella. In the landscape of the 1970s, govern- host city for the 1996 Centennial Games, whis- ing amateur sports and the Olympic movement pers of vote-trading and corruption sounded appears to fit rationally into one patriotic orga- in the press.'5 ° With the conclusion of the 1996 nization. Atlanta Games, the Olympic community Two primary events completely altered buzzed about the commercialism of the Olym- the context in which the USOC operates. First, pics. 151 The Atlanta Games demonstrated the Peter Ueberroth reinvigorated the Olympic dominance of money in the Olympic move- movement by making the 1984 Los Angeles 142 ment. In twelve years, 1984's triumph of en- Summer Games a profit-seeking enterprise. terprise had become a criticized commercial Second, encouraging equality in sport through venture with the USOC at the epicenter of the Title IX dramatically increased the breadth of controversy. Congress did not charter the domestic amateur sports. 143 A patently differ- USOC as an organization that would, by the ent world of amateur sports has emerged over 1990s, have billions of dollars flowing through the past twenty-five years. USOC's charter of it. For example, the lack of a reporting require- 1978 cannot withstand the new pressures. ment, present in the currently proposed House Montreal hosted the 1976 Olympic 144 bill, demonstrates that Congress did not include Summer Games and lost billions of dollars. precautions against corruption when it enacted Los Angeles was the only city to bid for the 1984 the ASA. Corruption begins with money, and Summer Games. 45 Ueberroth led the Los An- the ASA has no component that addresses the geles Olympic Organizing Committee; he for- USOC's role as a giant funnel of money. ever changed the Olympics by adding corpo- While the Olympic movement became rate sponsorship and capitalism to the Olym- a business, domestic amateur sports changed pics. 14 6 As a result of Ueberroth's influence, the spectacularly. Due to Title IX's passage in 1971, 1984 Games produced $225 million in rev- amateur sports welcomed enormous numbers enue. 147 The Olympics became a business in of women; participation boomed. 152 In 1971, 1984, and the American ingenuity of Ueberroth 290,000 girls participated in high school athlet- transformed the Olympics from a boondoggle ics; by 2002, participation jumped to 2.8 mil- to "a triumph of free enterprise."1 48 American lion girls. 53 During the same period, partici- capital is the foundation of the Olympic enter- pation by women in collegiate athletic programs prise, albeit through television broadcast rights grew fivefold. 154 Title IX's effect on society has or corporate sponsorship. 149 Much of the been far-reaching. For the USOC, Title IX cre- money that fuels the Olympic movement flows ated an explosion in participation of amateur through the USOC. Though created as a patri- athletes under its control. While corruption otic organization, the USOC grew alongside the became the dominant issue in the Olympic

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movement and at the USOC, little note was contentiousness that often occurs within the taken that the USOC charter had not been de- NCAA tends to maintain honesty and transpar- signed to govern amateur sports at the scope ency. Further, the NCAA rigidly enforces its that presently exists. Congress must thus de- rules to promote compliance while efficiently termine whether the USOC under the ASA has changing its rules as needed.5 9 Organization the capability to organize the number of girls, of professional leagues has remained high, boys, men, and women currently participating which is likely a result of competing and con- in amateur sports in America. spicuous interests of owners, players, and fans. The capitalistic rise of the Olympics and The glare of fan attention promotes organiza- the women's sports revolution make the USOC's tion in both the NCAA and professional functional context significantly different in 2004 leagues.6 ° In addition, the professional leagues than it was in 1978. Now operating within a are businesses that fold when they are no longer drastically different context, the USOC must profitable. 161 The NCAA and professional be reinvented and reformed, not bandaged. leagues will continue to evolve through criti- Combined with the anti-American criticism cism and debate, but both generally possess following the Atlanta Games, the USOC implo- transparent, stable organization. sion began in 1998 with the Salt Lake scandal. 2. Collapse in 2003 By 2003, the USOC had a 124-member C. The USOC's Structure board. 62 As a Senate investigation began prob- Fails: 1998-2003 ing the USOC in early-2003, "more than a The USOC's structure failed, in large dozen USOC executives resigned" and Con- part, because its framework cannot support the gress began reorganizing the USOC. 163 Cur- massive strains placed upon it over the past rently, the USOC has a new constitution, which twenty-five years. The USOC outgrew its sta- provides for an eleven-member board and a tus as a patriotic organization. Before propos- larger advisory board."6 The advisory board ing how the USOC should be deconstructed appears to be a reallocation of power from the and reconstructed, the USOC's structural fail- 124-member board. In determining member- ure must be explored to avoid similar problems ship for the new board, the USOC places a from arising in the future. value on the participation of certain organizations over others. 165 For example, governing 1. Other Sports Structures paralympic sport is a key role of the USOC Sports organization in the United States under the ASA, but the new constitution does 166 generally falls into three categories: (1) amateur not provide a paralympic seat on the board. sports with the USOC, (2) collegiate sports with The new board appears to concentrate power the National Collegiate Athletic Association in the board, but it remains unclear how a (NCAA), (3) and the professional sports reconcentration of power will directly increase leagues.155 These categories overlap; for ex- transparency, improve organization, and reduce ample, the NCAA, USOC, and professional corruption. leagues often have athletes who compete in A key problem in the new USOC con- more than one category.5 6 The interaction stitution is that it hopes for good leadership but among the categories is complicated. While does not provide for the possibility of poor lead- each has learned from the others in maximiz- ership. 67 In what appears to be an effort to ing profits from television rights, each regulates solidify the new USOC constitution, the USOC doping independently.157 The USOC, NCAA, appointed Peter Ueberroth as chairman of the and professional leagues are each billion-dollar USOC board in June 2004.168 Though Mr. enterprises. The USOC uniquely oversees far Ueberroth has been a seminal and positive force more athletes and represents the United States in the Olympic movement, the USOC has thus in international competition. far avoided addressing its systemic structural Despite criticism, the NCAA and professional problems. The procedures for removal, inde- 8 leagues have strong organizational structures. 5 pendence, term, and retention do not depart As a consortium of its member universities, the notably from the current procedures. 69 Little

Spring 2005 Representant Les Etats-Unis d'Amerique in the new USOC constitution indicates that 1. Re orminy the USOC Char- change will occur, transparency will increase, ter Withouf Reinventing Fed- and corruption will be minimized. Reconcen- eral corporations trating power with the hope of good leadership Both the American Red Cross and the does not address the USOC's systemic failure USOC are federal corporations chartered as as a patriotic organization. patriotic organizations that function like gov- The new constitution does not recognize ernment corporations. Congress could choose the various pressures on the USOC that have to define the category in which the American emerged since 1978. In the new constitution, Red Cross and USOC exist as a third type of the USOC did not address the question of federal corporation. However, changing the whether the USOC should remain a patriotic categories of federal corporations does not ap- organization. The USOC did not examine the pear to be necessary or useful to effectuate practicality of governing both the Olympic change at the USOC. Creating a third type of movement and amateur sports. The realloca- federal corporation, essentially creating a cat- tion of power of the USOC leadership is a ban- "...changing the categories of dage. The USOC should federal corporations does have analyzed its fundamental not appear to be necessary makeup, i.e., whether the or useful to effectuate USOC should be a patriotic change at the USOC." organization and whether complete reorganization is possible and appro- egory for the USOC and Red Cross, does not priate. address the USOC's fundamental problem that The USOC reform process has just be- it is an organization with too many functions. gun. Given the vague language and small size Instead, the USOC can be reformed by using of theSenate and House bills, they represent the existing parameters of public and private only the first step in USOC reform. Despite structuring. the new USOC constitution, Congress charters A traditional, uninspired approach the USOC and will make the ultimate deter- would view public and private structuring 170 mination of its future. along those lines: the choice for the USOC would be between a federal agency and a pri- D. Division of Purpose: Ama- vate corporation. Lack of transparency has teur Athletics & the Olympics plagued the USOC, and making it a full-fledged In recent years, Congress has reorga- agency is a tempting first instinct. Given the nized the federal government. Examples in- trends of the past twenty years, though, gov- clude deregulation under President Reagan, ernment does not necessarily provide the best President Clinton's "reinventing government," answer to organizational problems.'72 The and the creation of the Department of Home- USOC's primary problem is that it has too land Security under President Bush.17' .Con- many different functions; making it an agency gress thus should continue the trend of review- would not solve that problem. Further, giving ing and restructuring government as it deter- the federal government domain over all ama- mines the future of the USOC's charter. teur sports appears to be too extreme a solution for Congress to accept. A purely private route is another option. Again, given the trends of the past twenty years, privatization would appear to be an adequate solution as a first in-

243 Vanderbilt Journal of Entertainment Law & Practice SPORTS

stinct. However, corruption has recently domi- should re-categorize the Olympic function as a nated corporate America. Senator Campbell government corporation. With direct oversight likened the USOC to Enron, and releasing a from Congress, similar to the ten-year report- corrupt and mismanaged organization into the ing requirement in the House bill, the USOC's private sector would not appear to be a plau- Olympic function should exist in the sphere of sible option for Congress. The USOC should Amtrak and the Tennessee Valley Authority. As no be made into a federal agency or a private the representative of the United States in inter- entity because neither option addresses its com- national competition, the USOC will continue plex functions and intricate problems. Thank- its important relationship to the government fully, Congress has long enter- "Being recognized as a funnel of tained a nu- anced view of money and a business-like enterprise the structuring is the first step in reducing of organizations as government corruption; ignoring the fiscal reality corporations. 73 of the USOC had allowed the Just as Congress organization to handle funds without should not form a third type of restraint" federal corporation, it should not force the USOC into a cat- by remaining a federal corporation. Govern- egory in which it does not belong. In 1992, ment corporations provide precisely what the Congress decided to halt the creation of patri- enterprise of Olympic governance requires: the otic organizations, making that category freedom of business with government associa- static. 174 Government corporations are a var- tion. The USOC's Olympic function should ied lot of organizations under constant scrutiny, become its sole focus. The amateur sports func- making that category fluid. President Franklin tion of the USOC should be privatized. D. Roosevelt's assertion that a government cor- Examples of good and bad sports orga- poration is "a corporation clothed with the nization abound. Despite criticism, the NCAA power of government but possessed of the flex- functions well as a consortium of its members. ibility and initiative of a private enterprise" re- The NCAA has well-developed rules that are 175 flects the fluidity of government corporations. strictly followed, and college sports evolves The Olympic games became a business in 1984; through participation and rulemaking. The many of the Olympic-related concerns of the National Association of Intercollegiate Athlet- USOC, like liability and trademark protection, ics (NAIA) and the now-defunct Extreme Foot- are business concerns. Part of the USOC's cur- ball League (XFL) both demonstrate that the rent function is business-like. The business sports economy weeds out poor sports organi- 17 6 functions of the USOC would fit well within zation. the fluid category of government corporations, A new, private organization should be and those business functions would operate well established as a consortium of the NGBs. As as a government corporation. The USOC's the NCAA is a consortium of colleges and uni- other function, however, of governing amateur versities, this new organization would be a con- sports governance is not business-like; it does sortium of amateur sports. A possible name not have attributes that would fit well as a gov- for this new organization is the Amateur Sport ernment corporation. Council (ASC).77 The ASC would govern all The USOC has two distinct functions: domestic amateur sports. Freedom from the Olympic and amateur sports. The Olympic USOC would allow the NGBs to concentrate function has become business-like, and the on the promotion and development of amateur money that flows through the USOC is the basis sports at the local level. The business concerns of the corruption that has developed. Congress of the USOC are inconsistent with the daily

Spring 2005 244 Representant Les Etats-Unis d'Amerique administration of amateur sports. As opposed government corporation in its current form, to those in the 1970s, modern Olympic athletes though not chartered as such. Changing the do not always come from amateur sports; the USOC from patriotic organization to govern- progression of athletes from amateur sports to 17 ment corporation will require, at minimum, the Olympics no longer exists as it did. As major revisions to the ASA. 8' Title IX infused amateur sports in the United The new USOC will be able to concen- States with millions of additional athletes, ama- trate on seven core functions: (1) sponsorship, teur sports developed a need for its own, sepa- (2) trademark infringement, (3) liability, (4) rate organization. As focused solely on ama- hosting, (5) doping, (6) media rights, and (7) teur sports, the ASC would likely produce bet- participation. Though the seven core functions ter athletes for the NCAA, the professional are not new duties for the USOC, making the leagues, and the USOC. USOC's core functions clear in the new USOC Given that the IOC has allowed nations charter represents the first step in constraining to organize their NOCs in varied manners, the the USOC's operation. new USOC should be well received by the First, sponsors pay large amounts to be IOC. 179 In addition, the new USOC-ASA associated with the USOC, and the USOC ex- framework closely mimics the Swiss NOC-NGB cels at fundraising because it has trademark model, which gives a template in the interna- rights to the Olympics. 18 2 Second, Congress tional athletic community that already exists in gave the USOC exclusive control of the Olym- support of such systemic change. Though pic trademark, which the Supreme Court up- Senator Campbell has backed off in 2004, the held in San Francisco Arts & Athletics.183 A key USOC does not have the power to make such provision of the new USOC's charter as a gov- dramatic changes to its organization because it 180 ernment corporation will be a renewal of the requires fundamental structural change. No USOC's trademark rights. Third, the USOC's matter what changes the USOC attempts, the liabilities have been questioned in suits on sev- USOC charter would remain the same because eral occasions since 1978; DeFrantz v. United Olympic governance and amateur sports will States Olympic Committee was the seminal case fall under the USOC as classified as a patriotic that upheld the USOC's decision to boycott the organization. The USOC can make changes to 1980 Moscow Games against a legal challenge its constitution, but only Congress can cast the from the athletes.'84 Given the emerging role different functions of the USOC into a govern- of arbitration in international sport and the cre- ment corporation. ation of the Court of Arbitration for Sport in The USOC should remain in the gov- Switzerland, the new USOC charter should ernment, but its purpose as a government cor- promote arbitration to make challenges uni- 85 poration should be limited to the Olympics. form and shield the USOC from liability.1 Accountability would increase at the USOC Fourth, hosting the Olympics is a sensitive in- it would operate within the confines because ternational political issue with billions at stake of a monitored government business. The or- for local American economies, and the USOC ganization of amateur sports should be priva- 8 6 must aggressively promote American cities. 1 of NGBs. tized and governed by a consortium Fifth, monitoring doping has become an essen- have been overshadowed and Amateur sports tial element of international athletics, and the ignored by the Olympics at the USOC, and the USOC must remain steadfast in pursuing ath- federal government should not administer letes using banned substances so that Ameri- sports. Two new sports organizations amateur can athletes continue to have a positive reputa- thus emerge from a systemic overhaul of the tion in the international community. With the USOC and the ASC. USOC: the new creation of the USADA in October 2000, the USOC reinvented the tenuous and uncertain 2. The New USOC system of testing and pursuing athletes engaged In its new charter, the USOC will no in doping. 187 Sixth, television broadcast rights longer be a patriotic organization; instead, it will to the Olympic Games total billions of dollars, government corporation. The Olympic be a and the USOC is the broker between Ameri- essentially acts as a function of the USOC can broadcast companies and the IOC 88 Sev-

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enth, the U.S. Olympic team draws from the sports can and should embody the ideals of our NGBs, the NCAA, and the professional leagues, society, including equality, competition, and and the USOC must coordinate among these teamwork. organizations to maximize American perfor- The ASC should be created as a new pri- mance in international competition." 9 vate organization. 9' The ASC would be an as- The American public likely perceives the sociation that consists of its member NGBs and USOC's role as governing Olympic-related is- would be similar to the corresponding organi- sues for the United States. These seven func- zation in Switzerland. As a private consortium, tions of the new USOC limit the USOC's power the NCAA provides the natural model for the to the Olympic movement. Thus, the public's ASC. 192 The NCAA will be most useful to the perception of the USOC's purpose would be ASC in determining a rulemaking process, and consistent with its powers, which is a good start- the ASC should mimic the NCAA's rulemaking ing point for a government corporation desir- system so that it can begin to operate efficiently. ous of transparency and accountability. If the The ASC should also follow the NCAA's liabil- government, the public, and the USOC know ity model. Transparency and corruption have what the USOC should be doing, transparency dominated the Olympic-related function of the increases. As transparency increases, corrup- current USOC. History thus indicates that tion should concurrently decrease. In addition, amateur sports governance, for a variety of rea- the new USOC charter as a government cor- sons, has not been dominated by corruption to poration must have specific and detailed finan- the same extent as Olympic governance. The cial reporting requirements. ASC will be focused on domestic amateur ath- The new USOC will continue perform- letics without the distraction of Olympic issues; ing the functions it already oversees; its seven the result will be better organization and per- core functions have not been reinvented as formance. much as they have been restated. Being recognized as a funnel of money and a business-like E. The USOC Beyond 2005 enterprise is the first step in reducing corrup- Reform in 2005 will be a delicate pro- tion; ignoring the fiscal reality of the USOC had cess because New York City currently has a allowed the organization to handle funds with- positive and praised bid for the 2012 Olympic out restraint. Transparency increases because Summer Games. 193 New York City stands to the USOC will know what it must and can do; gain the motivation and capital to rebuild and corruption decreases because safeguards will be expand as the IOC selects its host city for the created so that the new USOC operates as a 2012 Games. The IOC makes its final selection responsible enterprise. The new USOC will in July 2005. As a signal to the international undergo systemic change by being recast as a community of the United States' commitment government corporation. to keep the Olympic games honest and well organized, the USOC charter should be altered 3. The Amateur Sports Council to make it a government corporation and the The USOC ignored amateur sports, at ASC should be created. Thus, a positive, timely least in part, because it focused on the crises of message will be sent to the IOC that will assist mismanagement and corruption. The atten- New York City's bid as the host city for the 2012 194 tion on the USOC's scandals and its reforma- Games. tion has necessarily taken time and energy away from the daily organization of amateur sports. Amateur sports should not have the Olympic III. Conclusion brand attached to it. Amateur sports serve The USOC has outgrown the ASA, many social functions unrelated to Olympic which established it as a patriotic organization competition. Nations have been free to admin- in 1978. With the growth of the Olympic move- ister sports per the needs and stresses of the ment into a business enterprise and the immer- given society. 90 On the ground, amateur sports sion of women into sports, the USOC's struc- comprise an enormous endeavor in the United ture under the ASA no longer can support the States with millions of participants. Amateur varied new pressures on the organization. The

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Salt Lake scandal and the implosion of the Appendix A USOC's leadership in 2003 demonstrate that The following is a list of acronyms used in this the Olympic movement in the United States Note: needs to be analyzed and reformed. International Olympic & Amateur The USOC attempted its own reform Sports Organizations: in late-2003 by introducing a new constitution, - IOC: International Olympic Commit- and the Senate and House introduced bills that tee would alter the USOC's structure. Congress - IF: International Federation controls the USOC charter, and any reform of - NOC: National Olympic Committee the charter requires congressional approval. - NGB: National Governing Body Thus, Congress will decide the USOC's future - FINA: Federation Internationale de Na- in 2005. It should not accept the USOC's mea- tation (Swimming) ger attempt at reform with its new constitution. Olympic & Amateur Sports Organiza- The USOC currently has two primary tions in the United States: functions: (1) managing the Olympic move- - USOC: United States Olympic Com- ment and (2) administering all domestic ama- mittee teur sports. Though currently chartered as a - ASC: Amateur Sports Council (PRO- patriotic organization in name, the USOC has POSED) drastically outgrown that category in practice. - USADA: United States Anti-Doping As a government corporation, the USOC will Agency be better suited to address the business of - SLOC: Salt Lake Organizing Commit- Olympic governance. The USOC's amateur tee sports function has taken a subservient role to - LAOOC: Los Angeles Olympic Orga- the Olympic function due to the scandal and nizing Committee corruption that have plagued the organization. Effectively administering millions of amateur Statute: athletes in the United States is an important - ASA: The Ted Stevens Amateur Sports task that requires focused attention. Thus, the Act of 1978 organization of the Olympic movement in the United States should be concentrated in a new Miscellaneous: United States Olympic Committee that is a - NCAA: National Collegiate Athletic government corporation. Amateur sports gov- Association ernance should be spun off into a private orga- - NAIA: National Association of Inter- nization called the Amateur Sports Council that collegiate Athletics will operate akin to the NCAA as an association - XFL: Extreme Football League of the individual NGB sports. The forces behind amateur sports and Olympic competition are no longer those that Appendix B existed in 1978. Indeed, the dramatic changes in the sporting world in the past twenty-five The following graphic demonstrates the pyra- years have made the current USOC charter mid-like structure of international amateur sport entirely inadequate. Organizing the Olympic organization: movement and managing amateur sports are two divergent endeavors that should be sepa- rated. Congress currently has the opportunity to alter the marred image of the USOC and solidify the United States as the world's leader in sport by reorganizing Olympic and amateur sports.

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IFs

NOCs (USOC)

NGBs

6 Moe, supra note 1, at 35; see infra app. A (a ENDNOTES complete list of acronyms used in this Article). * J.D., Vanderbilt University Law School, 2005;

B.A., Georgetown University, 2001. Special 7 36 U.S.C. § 220501 (1998). thanks to Katherine Todd, Phillip Riblett, Melinda Creasman, Anne Sivigila, David Will- 8 Jack Wilkinson, Olympic Flashback, THE AT- iams, Steve Bull, and the editorial board and LANTA JOURNAL-CONSTITUTION, July 27, 1996, at members of JELP. 03S. The 1980 Lake Placid Games were not included in this list because this Article high- 1 Ronald C. Moe, Congressionally Chartered Cor- lights 1984 Los Angeles Games as the turning porate Organizations (Title 36 Corporations), 46 point for the Olympic movement as an enter- FED. LAW. 35 (1999), available at http:// prise. See infra Part II.B. www.napawash.org/aa e-o-management/ moejtitle_36.pdf. I See Lisa Riley Roche & Brady Snyder, Games Reap Big Profitsfor Salt Lake, DESERET NEWS (Salt 2 See also 36 U.S.C. §§ 220501-220503 (1998). Lake City, UT) (May 3, 2002), available at http:/ /deseretnews.com/oly/view 3 Id. See generally A. Michael Froomkin, Rein- 0,3949,80000018,00.html. venting the Government Corporation, 1995 U. ILL. L. REV. 543, 634 n.14 (1995); Moe, supra note 1, 10 Medals Awarded, 2000 Summer Olympics, at 35. at http://www.fact-index.com/2/20/ 2000_summer_olympics.html#Medals% 20awarded 4 Froomkin, supra note 3, at 543; see infra note (last visited Mar. 11, 2005). 176 and accompanying text. 11Medals Awarded, 2002 Winter Olympics, at I Froomkin, supra note 3, at 543; see infra Part http://www.fact-index.com/2/20/ I.B.1. 2002_winterolympics.html#Medals%20awarded (last visited Mar. 11, 2005).

Spring 2005 248 Representant Les Etats-Unis d'Amerique

www.athens2004.com/en/results/results (last visited Mar. II, 2005). 29 See infra Part I.C.

'1 See Wilkinson, supra note 8. 30 See infra Part Il.B.

Jo-AnnJ4 Barnas, Martin's Gift to the USOC Lasting, 31 Yiannopoulos, supra note 23, at 387. ORLANDO SENTINEL, Oct. 20, 2003, at C4. 32 Id. at 387 n.3. 1s Id. 33 Id. at 387-88. 16 Id.

14 Id. at 387. 17 Id. 31 Id. at 393 n. 40. 8 Aram Roston, Olympic Bribery Scandal Threatens to Shrink 2002 Olympic Games, at http:// 36 Id. at 394 n.42. www.cnn.com/US/9901 /1 3/olympic.sponsors/ (Jan. 13, 1999). 37 See id.

19 H.R. 3144, 108th Cong. (2003); S. 1404, 108th 38 Id. Cong. (2003). See infra Part I.A.4. 39 H.R. REP. No. 95-1627, at 8 (1978). 20 Barnas, supra note 14. 40 S. REP. No. 95-770, at 4 (1978);Yiannopoulos, su- 21 Id. pro note 23, at 394 n.44.

22 Id. 41 Yiannopoulous, supra note 23, at 393-94; see infra app.A (a complete list of acronyms used in this 23 Konstantinos Yiannopoulos, Save Amateur Sports: Article). Protection from Liability Under the Amateur Sports Act in Eleven Line v. North Texas Soccer Ass'n, 8 VILL. 42 Id.; see also FINA Constitution, available at http:// SPORTS & ENT. L.J. 387, 392-93 n.40 (2002); Interna- www.fina.org/const.html (last visited Mar. II, 2005). tional Olympic Committee Charter, Fundamental International Federations (IF) organize sports in- Principles 2, available at http:// ternationally. Federation Internationale de Natation multimedia.olympic.org/pdf/enreport I 22.pdf (last (FINA) is the IF for swimming, located in Lausanne, visited Mar. II, 2005). Switzerland. Within each nation, National Govern- ing Bodies (NGB) organize sports on the national 24 iannopoulos, supra note 23, at 392-93 n.40; David and local level. United States Swimming is the United B. Mack, Reynolds v. International Amateur Athletic States NGB for swimming. For further clarification Federation: The Need for an Independent Tribunal in on how these organizations work together, see infra International Athletic Disputes, 10 COMM.J. INT'L L. 657 Part I.A.3. See infra app. B (a graphic demonstrating (1995). the organization of international amateur sport).

2 1 Yiannopoulos, supra note 23, at 392-93 n.40; IOC 41 Yiannopoulous, supra note 23, at 393-95. Charter, supra note 23. 4 Michael S.Straubel, Doping Due Process:A Critique 26 Yiannopoulos, supra note 23, at 392-93 n.40. of the Doping Control Process in International Sport, 106 DIcK. L. REV. 523, 53 1-35 (2002). 27 Id. 41 See Yiannopoulous, supra note 23, at 393-95.This 28 DeFrantz v. United States Olympic Comm., 492 F. is the "primary" function of the USOC in name and Supp 1181, 1187 (D.D.C. 1980). practice. Since the enactment of the ASA, the

249 Vanderbilt Journal of Entertainment Law & Practice SPORTS

ample NOCs were selected at random, though 12 Results, Athens 2004, at http://USOC's main the examples mentioned are prominent in the concern has been its Olympic function, not its IOC community. role over domestic amateur sport. 19 State Olympic Councils, Australian Olympic 46 36 U.S.C. § 220503(3)(A) (1998). Committee (AOC), at http:// w w w . o 1 y m p i c s . c o m . a u / 47 See infra Part II.E.2.a-g. Default.asp?pg=home&spg=socs (last visited Mar. 11, 2005). 48 Noelle K. Nish, How Far Have We Come? A Look at the Olympic and Amateur Sports Act of 60 See Formation, Comite Nationale Olympique 1998, The United States Olympic Committee, and et Sportif Francais, at http:// the Winter Olympic Games of 2002, 13 SETON www.franceolympique.com (last visited Mar. HALL J. SPORTS L. 53, 56 (2003); 36 U.S.C. § 11, 2005); see Territorio, Comitato Olympico 220506 (1998). The ASA gives the USOC ex- Nazionale Italiano, at http://www.coni.it/ (last clusive rights to the use and distribution of visited Mar. 11, 2005). Olympic symbols in the United States. See San Francisco Arts & Athletics, Inc. v. United States 61 See This Is the BOA, British Olympic Associa- Olympic Comm., 483 U.S. 522 (1987). tion, at http://www.olympics.org.uk/ thisistheboa/thisistheboa.asp (last visited Mar. 49 Straubel, supra note 44, at 559. In order to 11, 2005). combat doping by American athletes, the USOC created the USADA. 62 Formation, Swiss Olympic Association, at http://www.swissolympic.ch/f/ausbildung (last 50 Id. visited Mar. 11, 2005). What is proposed in this Article closely resembles the existing Swiss 51 See infra Part II.E.2.a-g. Structure.

52 See app. A (a complete list of acronyms used 63 Organisation of the NOCs, National Olym- in this Article). pic Committees at http://www.olympic.org/uk/ organisation/noc/index-uk.asp (last visited Mar. 53 Straubel, supra note 44, at 532; see app. B (a 11, 2005). graphic demonstrating international amateur sport organization). 64 See infra Part II.B.

54 Straubel, supra note 44, at 532 ("Without the 65 See id. IOC's blessing, the IF's sport will not be a part of the Olympic Games. Each IF sets the rules 66 See id.; see also Cathy Harasta, Federal Judge of its sport, conducts competitions outside the Rules on Scandal, DALLAS MORNING NEWS, Nov. Olympics, and determines the qualifications for 16, 2001, at lB. the Olympics."). 67 Harasta, supra note 66. 55Id. 68 Id. 56 Id. at 532-35. 69 Id. 57 Id. Note that the perception exists that "NGBs have three masters: IFs, the IOC, and 70 Id. NOCs." Id. 71 Id. The indictments were dismissed just prior 58 This is evidenced by the different structures to the 2002 Winter Games. across nations by each NOC's constitution. Ex-

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The USOC had a 124-member board by 2003. Remaking the USOC, PLAIN DEALER, Oct. 25, 2003, at 91Barnas, supra note 14. BI0. 92 Id. "The composition of the board shall be as " Briggs, supra note 74. follows: four independent members ('independent directors') selected by the Nominating and Gover- 76 Id. Ward and Mankamyer were the heads of the nance Committee, two members selected by the USOC's two warring political factions. Nominating and Governance Committee from among individuals nominated by the National Gov- 77 Straubel, supra note 44, at 523. erning Bodies Council ('NGB Council'), two members selected by the Nominating and Governance 78 Barnas, supra note 14. Committee nominated by the Athletes Advisory Council ('AAC'), and the United States members of 79 Briggs, supra note 74. the IOC who shall be ex officio directors on the board, i.e. they assume their positions as directors 80 Id. on the corporation's Board by virtue of, and for the same term as, their IOC membership:" USOC CONST. 81 Id. ("Scherr had three strategies: regain the public's § 3.2 (proposed Oct. 2003), available at http:// confidence; fix the finances; and put the athletes www.usoc.org/ASA2000.pdf (last visited Mar. II, first."). 2005). Of particular importance is that the position held by Bill Martin would be eliminated under 82 Barnas, supra note 14. the new USOC constitution.

83 Briggs, supra note 74. 13 USOC CONST. § 3.2 (proposed Oct. 2003), available at http://www.usoc.org/ASA2000.pdf (last vis- 84 Id. ited Mar. II, 2005).

85 H.R. 3144, 108th Cong. (2003); S. 1404, 108th 94 Id. Cong. (2003). 95 Id. 86 H.R. 3144, 108th Cong. (2003); S. 1404, 108th

Cong. (2003). The Senate bill is smaller and less 96 Christina Maistrellis, American Red Cross v. S.G. detailed than the House bill. & A.E.: An Open Door to the Federal Courts for Feder- ally Chartered Corporations, 45 EMoRY L.J. 771, 772 87 H.R. 3144, 108th Cong. § 220505 (2003). (1996).

88 Id. 97 Id.

89 Briggs, supra note 74. Congress allowed the 98 Id. at 774. USOC's internal reform process to continue, but Congress ultimately controls reform as it determines 99 Id. the parameters of the USOC charter. Id. 100 Id. at 773. 90 Id. Bill Martin was praised for his performance in leading the USOC. "Perhaps Martin's best moment 10' Froomkin, supra note 3, at 547. came behind closed doors in Lausanne, Switzerland, when he confirmed for the International Olympic 102 Id. at 543. The purpose of a government corpo- Committee the identity of a U.S. sprinter who had ration may be business-like. However, though many tested positive for a banned steroid a year before government corporations are not profitable, their winning a gold medal at the 2000 Sydney Olympics. natural composition is that of a business-like entity. The action went a long way in dispelling suspicions Again,Amtrak is an example of this type of govern- of a cover-up." Id. ment corporation.

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72 Id. at lB. The IOC approved all fifty reforms government corporations, though essential to that a reform group had presented to the full the new USOC, is beyond the scope of this Ar- membership in 1999. ticle.

73 Id. 116 Moe, supra note 1, at 35. Patriotic organizations are usually nonprofit membership orga- 71 Id; Bill Briggs, Keeping the Flame Alive After nizations. Watching the USOC Crumble, DENVER POST, Jan. 11, 1004, at C22. 117 Id. 103 Id. at 580. 118 Id. 104 Id. at 549. 119 Id. at 39 (a complete list of federally char- 105 Id. at 580 n.191. tered patriotic organizations).

106 Id. at 543, 568. 120 Id. In the list provided, forty-two of the organizations were affiliated with the military. 107 See Larry Laurelo, Concentratingon Running Trains - A Necessary Solution - Railway Track 121 Id. at 35. and Structures, available at http:// www.findarticles.com/p/articles/mi_m0BFW/ 122 Id.; see supra Part I.A.3. Like the USOC, the is_5_99/ai102695366 (May 13, 2003). Red Cross exemplifies a federally chartered patriotic organization with large amounts of 108 See Transportation Development Association capital flowing through it. Also, like the USOC, of Wisconsin, The Future of Amtrak: Options in recent years, the Red Cross has been heavily Pursued, available at http:// criticized for financial mismanagement and a www. tdawisconsin. org/resources/ lack of transparency which has led to corrup- member-pdfs/0401news.pdf (Apr. 2001). tion.

109 See id. Amtrak has failed at this because its 123 See Moe, supra note 1, at 39. financial losses essentially make the federal government responsible for paying for the contin- 124 See id. ued operation of the passenger railroad in the United States. 125 Moe, supra note 1, at 35-39; Maistrellis, supra note 96, at 771. "Patriotic society" and "fed- 110 Froomkin, supra note 3, at 548. erally chartered patriotic organization" and "federal corporate organization" will be here- "I Id. inafter referred to as "patriotic organizations." Congress intended for such organizations to be 112 Id. at 612. "Different accountability mecha- "membership corporations" through which nisms appear appropriate depending on subsidiary groups can be created. whether an FGC is treated as public, private, or as a hybrid." For example, private directors of 126 Barnas, supra note 14, at C4. government corporations are typically account- able to shareholders instead of the corporation 127 San Francisco Arts & Athletics, Inc. v. United President. States Olympic Comm., 483 U.S. 522, 544 [hereinafter San FranciscoArts & Athletics]. San 113 Id. at 549. Francisco Arts & Athletics is a seminal case in many areas of the law. Of primary concern to 114 Id. at 554. the USOC in San Francisco Arts & Athletics is the Supreme Court's holding that the USOC is 115 Id. at 554-55. The agency relationship of not a state actor and thus not required to ad-

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"4 See Richard Sandomir, NBC Left Its Competitors 32 See id. No Chance, N.Y.TIMES, June 10, 2003, at D7. See also Robert Alan Garrett & Philip R. Hochberg, Sports 133 Id. Broadcasting and the Law, 59 IND. L.J. 155 (I 984);Anne M.WalI, Sports Marketing and the Law: Protecting Pro- 134 See infra Part III.C.2. prietary Interests in Sports Entertainment Events, 7 MARQ. SPORTS L.J. 77 (1996). 13 See supra Part I.A.2. '10 Wilkinson, supra note 8. 136 See id. 's Briggs, supra note 74. 17 Id.; see infra Part II.E.2.a-g. 12 White, supra note 143; Nelson, supra note 148. 138 Id. "I White, supra note 143. 39 See Moe, supra note I, at 39. 114 Id. Though opportunities for women expanded 140 Id. at the Olympic Games in a number of sports, the work of organizing millions of additional amateur 141 See supra Part I.A.2. athletes at the local level is a significantly more complex task then merely adding sports to the Olym- 142 Wilkinson, supra note 8. pic program.

113 Joseph White, Title IX Hearing Headed Toward "' RAY YASSER ET AL., SPORTS LAw: CASES AND MATERIALS Combative Finish, THE ADVOCATE (Baton Rouge, LA),Jan. 911-14 (5th ed. 2003). Congress charted the 30, 2003, at 3C. USOC under the ASA to govern all domestic amateur sport. 4 Wilkinson, supra note 8. Montreal continues to pay debts related to the 1976 Games. 516 Overlap usually occurs at the highest level of competition. NCAA athletes often compete for the 14s Id. United States at the Olympics. In recent years, professional athletes compete for the United States at 146 Id; see supra Part II.A.2 and Part II.A.4; see infra the Olympics, depending on the rules of the indi- note 170 and accompanying text. Further, the de- vidual professional sports league. The NCAA often sire to defeat communist rivals led President Ford feeds athletes into the professional leagues. In re- to form the Commission. Amateur sport during the cent years, amateur sport has been feeding athletes Cold War was a war of politics and image in the to the professional leagues in increasing numbers. rink, field, pool, and track. The Commission believed that poor performance by American athletes in the 117 Straubel, supra note 44, at 523. Given the reor- 1970s reflected unfavorably on capitalism. Having ganization of the USOC's doping organization and one centralized Olympic unit that, at least in part, the international role that organization is taking, in could help the fight against communism reflected the future, the USOC may emerge as the leader in the mindset of the 1970s. With the Cold War no the United States on doping issues. longer in the background of the Olympic equation, the United States dominates international sport. 518See YASSER Er AL., supra note 155, at 53. Examples of criticism against the NCAA are the recruiting 147 Id. The 1984 Games netted the USOC $100 process and the results of the Bowl Championship million and $225 million overall. Series. Examples of criticism against the professional leagues are player salaries and doping. 148Jack Nelson, A Publicity Goldmine: Clinton Stands to Win at Olympics, BERGEN RECORD, May 27, 1996, atA06. "s See generally id. at 8 1. Though far from perfect, the NCAA tends to be an organization where

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here to the Constitution. Thus, the Supreme represents the best kind of leadership. How- Court determined that the USOC had exclu- ever, the new USOC constitution has the ap- sive domain over the use of the word "Olym- pearance of assuming that it will be lead by pic," which means that the USOC's property someone of Martin's repute when that is un- right, rooted in the ASA, does not violate the likely. First Amendment. Id. 168 Press Release, United States Olympic Com- 128 Id. at 544-45. mittee, USOC: Peter Ueberroth, Chair of the USOC, says New York City has a "Winning 129 Id. Bid,"(Nov. 15, 2004), available at http:// usocpressbox.org. 130 Id. at 548-72 (Brennan, J. dissenting). Jus- tice Brennan's dissent was the inspiration for 169 USOC CONST. § 3 (proposed Oct. 2003). this Article. The majority held that the USOC is not a state actor and, instead, is merely rec- 170 Briggs, supra note 74. ognized by the government of the United States. 171 Froomkin, supra note 3, at 543-51. Presi- dent Clinton's "reinventing government," a 131 Id. at 553, 555. program spear-headed by Vice President Gore change occurs frequently via rulemaking. during Clinton's two terms, was an attempt to promote efficiency in the operation of the fed- 160 For example, if the Yankees or Notre Dame eral government. Support for and creation of were subject to needless rules or the respective federal corporations was critical to the reinvent- umbrella organization diminished perfor- ing government program. mance, change would be demanded by avid fans. 172 See Froomkin, supra note3, at 543. The trend from Reagan to Clinton was to privatize and 161 The pressures of business tend to promote restructure. solid organization; the XFL failed due to business pressure. 173 See id.; see also Moe, supra note 1, at 35.

162 Remaking the USOC, supra note 74. 174 See supra Part I.B.2 and accompanying notes.

163 Id. 175 Froomkin, supra note 3, at 580 n.191; see supra Part I.B.1. 164 See supra Part I.A.5. 176 YASSER ET AL., supra note 155, at 7. The NAIA 165 USOC CONST. § 3 (proposed Oct. 2003). The and NCAA used to both be governing forces in new USOC constitution guarantees seats on the collegiate athletics. Strong rulemaking, in part, board for NGBs and Athlete's Advisory Coun- resulted in the ascent of the NCAA and the de- cil. cline of the NAIA.

166 See supra Part I.A.5, see supra note 93. 177 This Article proposes the ASC in theory and name. 167 See supra Part I.A.5 and accompanying notes. The USOC benefited significantly from the 178 See supra note 156. leadership of Bill Martin that infused a purpose and honesty missing in previous USOC lead- 179 See supra Part I.A.3. ers. Martin's forthrightness in his interaction with the IOC when questioned in Switzerland 180 Id.

1l Parts of the ASA are hopelessly outdated.

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For example, the ASA refers to the Olympics IND. L.J. 155, at 159 (1984); Wall, supra note 149, and the Pan Am games, but the Pan Am games at 77; Queenie Ng, United States and Canadian no longer play a significant role in international Olympic Television Coverage: A Tale of Two Mo- sports competition. However, whether the ASA nopolists, 8 Sw. J. L. & TRADE AM. 251 (2002); see should be entirely rewritten is a procedural Sandomir, supra note 149. In 2003, NBC signed question for Congress. a record-breaking contract for the broadcast rights to the 2012 Summer Games worth $2.2 182 Briggs, supra note 74. In the past few months billion. The majority of Western nations, like with the leadership of Jim Scherr, the USOC Canada, broadcast the Olympics on their pub- erased a $10 million loss by signing six new lic television network, and those television mo- sponsorship agreements and renewing almost nopolies prevent the IOC from negotiating large all of its old ones. contracts. In 2000, the IOC had a choice between a large and lucrative deal with Fox's Sky 183 36 U.S.C. § 220506 (1998); San Francisco Networks for the Olympic rights in Europe and Arts & Athletics, Inc. v. United States Olympic chose to go with the much less lucrative state Comm., 483 U.S. 522, 546; Nish, supra note cooperative monopolies. Thus, it appears that 48, at 57. The ASA gave the USOC exclusive the IOC was clearly favoring European televi- control over the Olympic trademark, the Olym- sion over American television in this situation, pic rings, and the "faster, higher, stronger" in a context where the US is the backbone of Olympic theme. Indeed, the ASA and its 1998 the Olympic economy. revisions arm the USOC "with a powerful means of combating unauthorized use of their 189 YASSER ET AL., supra note 155, at 2. Amateur- protected words and marks." ism has grown to become incredibly sport-specific: what may be an amateur in track may 184 DeFrantz v. United States Olympic Comm., not be an amateur in tennis. Combined with 492 F. Supp 1181, 1181. Under President the qualifications in the NCAA for amateurism, Carter, the United States boycotted the 1980 the line currently is blurrier than ever. Moscow Games in protest of the Soviet Union's invasion of Afghanistan. 190 See supra Part I.A.3.

185 Athletes dissatisfied with USOC decisions 191 Since the thrust of this article is to should be provided with something similar to deconstruct and reinvent the USOC, the struc- a thirty-day appeal to the American Arbitration ture of the ASC is not discussed further. As a Association. private organization, it would be left to the NGBs to decide the structure of the ASC. Thus, 186 Angela Saloufakos-Parsons, Going for the a defined structure for the USOC is important 'Gold': An Application of the OECD Bribery Con- as a model for Congress in rewriting the char- vention to the Olympic Games Scandal, 31 CAL. ter, but a defined structure for the ASC is less W. INT'L L.J. 297, at 299 (2001); see Harasta, su- important because Congress will not be writ- pra note 66; supra Part I.A.4. Hosting the Olym- ing its charter. pics must be a priority of the new USOC, and the new USOC must maintain its focus in abid- 192 The organizational structure of the ASC will ing by the rules that the IOC has set in its selec- differ from the NCAA because there are far tion process. fewer NGBs than there are colleges and universities. 187 Straubel, supra note 44, at 559, 570. The USADA has a defined and developed system 193 See NYC2012 Home, available at http:// for monitoring and policing doping that is "far www.nyc20l2.com/index-flash.aspx (last vis- superior to [any in] the international system." ited Mar. 11, 2005) (web site laying out New York City's plan for its bid for the 2012 Olym- 188 Robert Alan Garrett & Philip R. Hochberg, pic Games). Sports Broadcasting and the Law, 59

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194 Organizational issues may impact American performance at the 2006 Olympic Winter Games in Turin, Italy. However, the Olympic Winter Games is traditionally a significantly smaller endeavor at which American athletes do not dominate the way they do in the Olym- pic Summer Games. The period from 2005 to 2008 will be a good time-frame for the newly- organized USOC to work out the difficulties that occur in such a massive reorganization. By the 2008 Beijing Summer Games, organization should be strong, and, as a result, American athletes should succeed.

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