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Who Governs the Governing Body: Institutional Liability After Nassar

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Who Governs the Governing Body: Institutional Liability After Nassar School of Kinesiology, Recreation, and Sport Who Governs the Governing Body: Institutional Liability after Nassar Lauren McCoy, J.D. Assistant Professor What Happened: Larry Nassar • Former USA Gymnastics team doctor/doctor at Michigan State University was sentenced to 40 to 175 years in prison • Pled guilty to sexual assault in November 2017 • More than 150 girls, women, and parents testified to Nassar’s abuses at his trial triggering a national outrage. Michigan State University • Fired Nassar in September 2016, a month after criminal complaint was filed • MSU President Lou Anna Simon resigned in January 2018 • Settled lawsuit with Nassar victims for $500 million in May 2018 • Calls have been made for the interim President John Engler to resign after his emails criticizing the first victim and the lawyers associated with the case in April USA Gymnastics • Cut ties with Nassar in the Summer of 2015 after receiving reports of allegations • Entire USA Gymnastics Board resigned in January 2018 – United States Olympic Committee made that resignation as a condition for not terminating USA Gymnastics as the governing body • Head of USA Gymnastics previously resigned in March 2017 • A report from former federal prosecutor Deborah Daniels included 70 recommendations and found that a complete culture change was needed US Olympic Committee • Committee was also made aware of allegations against Nassar in 2015 and failed to act according to the Wall Street Journal • Committee has said it followed proper procedures and the authorities were contacted • Chief Executive of USOC, Scott Blackmun, resigned under pressure from the Nassar scandal Current Safeguards • Title IX • NCAA 16 Principles for Conduct of Intercollegiate Athletics • IOC Code of Ethics/ USOC Coaching Code of Ethics • Safe Sport Title IX • Existing policies at the time included the 2011 Dear Colleague Letter and 2014 Q&A • Colleges are required to investigate after a victim has given notice to a “responsible employee” • Responsible employees include • Employees with authority to take action to redress harassment • Employees with duty to report sexual harassment • Employees who students could reasonably believe has the authority or responsibility NCAA’s 16 Principles • Codified as Article 2 of the NCAA Constitution • Includes Institutional Control, Student-Athlete Wellness, Gender Equity, Sportsmanship and Ethical Conduct, Sound Academic Standards, Nondiscrimination, Diversity Within Governance Structures, Rules Compliance, Amateurism, Competitive Equity, Recruiting, Eligibility, Financial Aid, Playing Rules, Postseason Competition, and Economy of Athletics Program Operation IOC Consensus Statement on Sexual Harassment and Abuse in Sport • First introduced in 2007; extended several times with most recent extension in 2016 • Recent additions expanded definitions related to abuse and harassment, including negligence related to failure to provide a safe physical training environment • Initial statement set the framework for how to develop policies to protect against abuse with later expansion highlighting recognition along with prevention strategies Institutional Liability • Basic legal argument in the now-settled MSU lawsuits focused on the university’s legal duty to supervise Nassar and failing to take reasonable steps like seriously investigating allegations of abuse. • USA Gymnastics lawsuits allege the organization was negligent, fraudulent and intentionally inflicted emotional distress by failing to warn or protect athletes from Nassar’s abuse Immunity Statutes/ State Law • As a state institution, MSU argued immunity from liability before settling the lawsuit; also stating that the case does not fit within the established exceptions • USA Gymnastics argued that the plaintiffs failed to “allege facts that would create a duty by USAG to protect any plaintiff from the criminal acts of Nassar.” i Title IX / 2017 Guidance • MSU argued that they were not deliberately indifferent after investigating Nassar in 2014; Further arguments highlighted a lack of standing for some victims under Title IX • Rescinds the 2011 Dear Colleague Letter and the 2014 Q&A • Provides new information about how the Dept. of Education assesses an educational institution’s compliance with Title IX • U.S. Dept. of Education has scaled back investigations of sexual violence NCAA Letter of Inquiry • NCAA cited Article 2.2 and Bylaw 20.9.1.6 as the basis for their investigation into MSU and Larry Nassar • Article 2.2 addresses institutional obligations to protect student- athletes’ well-being, including health and safety • This article does not address sexual harassment or assault • Bylaw 20.9.1.6 highlights requirements for the overall environment but no real measurable provisions related to sexual harassment or assault. U.S. Center for Safe Sport • Developed to address misconduct in sport and create a healthy, supportive environment for all participants by providing information, training, and resources. • Focus areas include: education and outreach along with response and resolution to reports of sexual misconduct • Area of concern highlighted in recent Congressional hearings: who is actually responsible for protecting young athletes Changes in the law post Nassar • USA Gymnastics Safe Sport Policy/ U.S. Center for Safe Sport Code for the U.S. Olympic and Paralympic Movement • Michigan legislation package • Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017 Additions to Safe Sport Program • Initial updates were made in 2017, but subsequent recommendations were adopted from Daniels report • Expanded list of banned coaching behaviors to include four additional types of abuse, including verbal and emotional • Includes mandatory reporting in connection with federal legislation • Creating an Athlete Task Force • Updates to the Participant Welfare Policy to adopt restriction on behavior and contact limitations between “Covered Adults” and minors Michigan Legislation • These bills: • Require informed consent • Increase penalties related to possession and distribution of child pornography • Require education on sexual assault and abuse in grades 6-12; create a Title IX ombudsman • Allows the governor to remove trustees at the state universities with elected boards • Provide training and expand the list of those whose are mandatory reporters • Expand statute of limitations from three to ten years. • Extends statute of limitations for childhood sexual abuse victims to the victim’s 28th birthday/15 years for prosecutor – signed into law June 2018 Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act • Creates a new standard of care for all youth sport organization participants • Provides for immediate mandatory reporting in youth sport to U.S. Center for Safe Sport and the appropriate law enforcement agencies as determined by state and federal law • All amateur sports organizations must provide consistent training related to prevention and reporting child abuse to all adult members who are in regular contact with amateur athletes who are minors and to members who are minors (subject to parental consent) Are these changes effective? • Changes focus on prevention and mandatory reporting already available through Title IX and through state law • Little research done to highlight the effectiveness of efforts to raise awareness in workplace and through sport • A report in the New York Times (2017) found that mandatory seminars or online training succeeds in teaching the basic information but fails to address the root problem of preventing sexual harassment • Use of legal language also leads those being trained to reject training as something that doesn’t apply to them Who Watches the Governing Body? • Changes may not improve institutional liability – governing bodies can still argue that they can only prevent and correct harassing behavior when aware • New federal legislation does not apply to organizations and individuals involved in youth sport that do not compete in interstate or international competition • Oversight requirements do put more onus on the institution to ensure these policies are effective, but challenging these strategies may only occur after another major incident.
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