Nancy Hogshead-Makar: How USOC’s Power Games Hobbled Athletes’ Ombudsman

Nancy Hogshead Makar at the San Jose Words To Action session

The SwimVortex Safe Sport Series

The San Jose State University’s Institute for study of Sport, Society and Social Change, held a Words to Action: Gender, Sport and Society Town Hall gathering yesterday, with Nancy Hogshead Makar as keynote speaker.

Her answers to the question “how could Larry Nassar happen?”, in reference to the USA Gym doctor who just went to jail for 175 years for decades of sexual abuse against more than 150 women, highlight fundamental flaws in the Olympic model of governance, swimming among sports that are going to have to make changes to the way things have been done.

Here, we listen in on a key section of Hogshead-Makar’s presentation during a four-hour session in San Jose.

Long an advocate for victims of abuse and women’s rights in college and sport, the head of Champion Women, starts by noting the guts required for the Animal Lane and then advocates the need for those who want essential change to happen “to the able to say the same thing over and over and over again with the same enthusiasm”, a point this site understands well.

Hogshead-Makar says that the first response to hearing a story of sexual abuse is often “kill him, jail him for life and chop off his testicles”. She notes, however, that “Nassar is an outliner who got 175 years” and very much a rare case, though one that demonstrated that sometime “we are so freaked out by the issue that we can’t move into the thinking part of the brain to really look at the issues and what do we do about it, how do we empower children, how do we protect children and how to we protect athletes.”

“I’m not just interested in the child; I’m also interested in the 24-year-old who is just as liable [vulnerable] to someone with Weinstein-like power.”

She notes the Valentine’s Card she got on February 14 this year: “… we just got a new statute: the Safe Sports Act“.

It was carried by 535 votes, 3 against. Hogshead-Makar wrote the first draft of what would become the Safe Sports Act in 2013. Such times take time – and undeniable scandal, perhaps – for the Act was signed by Trump soon after Nassar went down. It would have been impossible not to sign.

When dealing with sexual abuse, Hogshead-Makar invites her audience to think about:

“Power: How did Larry Nasser happen?” Well, because of “a number of decisions that happened at the Olympic level” she says, such as:

  • The 1978 Amateur Sports Act – the Olympic Movement is governed by a statute. That gives the United States Olympic Committee “a lot of power over all these different national governing bodies” (there are 47 of them, including USA Swimming).

It also means that:

  • 20% of all committees are to made up of athletes
  • the Athletes’ Ombudsman is supposed to represent athletes when there is any conflict between athletes and their national governing body.

Money, facilities, injury, working conditions – and many other issues are a part of the normal experience of conflict among humans in any realm, sport no different in many regards barring a few things unique to sport, including the specifics of children at work, under-age and senior athletes at work under the guardianship of an entourage of professionals and professions, including coaches, doctors, masseurs, nutritionists, sports scientists and others.

Having noted the Ombudsman role, Hogshead-Makar asks ‘what happened to those sources of power for those athletes’? She answers her own question:

“Scott Blackmun [who quit as CEO of USOC last month] and the Board of the United States Olympic Committee systematically took away those sources of power for athletes to be able to get help.” She lists how:

  1. “Rather than having the athlete ombudsman report directly to the athletes, the athlete ombudsman now reported to Scott Blackmun and the Board of the USOC. So, the athlete ombudsman was unable to have a position that was separate from the corporation of the USOC… so when there was a conflict between them …”. No need for further explanation, the reporting line already running in the wrong direction.
  2. “The USOC picked who this 20% was, so the athlete weren’t able to say we want our people to be on the board, so it wasn’t someone who would be an athlete advocate but a corporation advocate – and then that person got reappointed without any input from the AAC ( … the athlete representatives from all the different governing bodies).”
  3. “Then Scott Blackmun and the Olympic committee turned USOPA (the U.S. Olympians & Paralympians Association) into a fund-raising arm – rather than a source of wisdom and a source of wise experience that comes from being an older athlete. So, they had already fought these battles, in the 70s, the 80s, right … they knew where the power conflicts were and they literally took that power away saying ‘we will not fund you… or threatened not to… they were not quite so obvious about it, right, but the threat was there that ‘we won;’t fund you if this continues’.
  4. “And 4th – and most alarmingly, what [the experience] of gymnastics taught us, they allowed GBs (governing bodies) to have more and more subjective criteria for whom made the Olympics.”

Hogshead-Makar continued her point, a good one that offers insight into bad things at the heart of the Olympic Movement, at the heart of the top-dog of the league of Olympic nations and far from those ‘developing nations’ the ‘serious problems’, some leading sports nations would have you believe, are confined to:

“So, if you want compliance and obedience from an athlete the way to do it is to take away their power: they are dependent on the coach ‘liking’ them. The sport of swimming: Olympic trials, first or second, even if you’ve won … before, it doesn’t matter how successful the person is, they have to finish first or second at the Olympic trials [the USA has long operated what is widely regarded as the fairest and most objective/non-subjective selection system in sport: first two home to the wall go, provided all stacks up with anti-doping. End of story.]

“Gymnastics? You can be 10th at Olympic trials and still be placed in that top 5 and be on the team. So, you have to ingratiate, you have to be liked, and if you have to be that obedient, how much power does somebody have?

“The mantra, which sounds good – and was Blackmun’s idea – was ‘One Team’, so ‘we’re altogether, we’re all in this together’ but what that actually ended up doing was squashing decent.”

A case in point this week relates to a USA shooter banned on the basis of allegations of 32 Code of Conduct violations and says he is being targeted because he called for Blackmun’s resignation as an athlete representative. His appeal will be heard by … the federation that slapped him with the code violations and ban.

The one team/one message theme was on show recently when a “reputation strategist” was brought into talk to the Board of USA Swimming, according to some of those present who were not impressed.

Back to Hogshead-Makar: “So, an athlete now can’t get help inside the Olympic Committee. Okay, so, how about outside the Olympic Committee, who do you get to help you?”

Hogshead-Makar lists the place an athlete might still turn to, including:

  • Triple AAA arbitration provision
  • Bringing a Section 9/10 complaint

“But, guess what – there’s a big problem with that: there’s no attorney’s fee provision, which means that you either have to find an attorney that can do it pro-bono (no fee) … a section 10 complaint is about a quarter-of-a-million-dollar complaint … or … you have to be independently wealthy. Let me assure you, those athletes are few and far between.

“While the Act is technically there, it’s hard to use, so now we get to civil liability, where you just bring a law suit, where you say ‘you, national governing body, you were negligent in taking care of me, and so I got hurt as a result of it, so I’m suing you under [for] negligence: you didn’t exercise reasonable care on my behalf, so, you owe me money.”

Tort Law Principles and Negligence

“When the USOC knew there were problems within the national governing bodies, when they KNEW they were not complying with the Sports Act, which guaranteeing the athletes to have certain rights… they were thinking ‘we’ll just let the athlete bring as section 9 or section 10 complaint‘.

“So instead of then using their own authority and power to go and say ‘hey, NGB, you can’t treat athletes that way, the thinking was … or the PR that they’ve been selling you all is that ‘these are independent businesses and we can’t do anything about it’.”

As she talks, Hogshead-Makar makes a gesture that screams “hands-off … we just don’t have the power”.

“I’m here to tell you as an attorney – that’s not true!”

“The Sports Act already gives them all the authority they need to be able to go in an remedy these problems – but they’re not doing it.

“Under Tort law … you’ll see first-year law-school students going around saying ‘duty, breach, causation, damages’ … that’s what you need to have for you to have a cause of action for a negligence claim. Somebody else’s negligence cause you harm and to be able to recover from that you need to have those four elements.”

What the USOC did was to use the ‘No Duty’ rules. She shows a picture of her own family and notes that she has a duty of care to them if walking across the street and a car comes but she, as the mother, does nothing to attempt to avoid an accident in which a child gets hurt. The scenario, is missing a key aspect for her children, under Tort law, for any children who get hurt to be able to sue her for negligence. At no point did the mother say ‘hey, this is a dangerous junction, so let me help supervise this crossing because I know how to do that’.

That ‘no duty opt out’ in Tort law is key. Hogshead-Makar points to a picture of Anita de Frantz, the USA member of the IOC (an d mentor of the swimmer’s in her youth), IOC member Prince Albert of Monaco, and IOC president Thomas Bach.

The Rings – by Patrick B. Kraemer

She asks her audience to imagine that she’s helping Bach and Cross the street, an accident happens but even if she said she would help them, she has no duty in law… BUT if she were to have said to Bach and Co ‘hey, this is a dangerous inter-section, let me help you’ and then does a bad job of it, then they can sue her.

She then explains:

“So, what the Olympic Committee did and what governing bodies did was to say ‘not our job’. They used ‘no duty’ to be able to avoid liability.”

She then notes that sports clubs had to buy their insurance policies from national governing bodies and the national governing bodies had separate policies just for sexual abuse.

In swimming, she notes, it was a “wasting policy” set at $100,000, in which the defendant’s fees came off the top. That meant that the lawyers of plaintiffs worked out quickly that there was nothing they could do for their clients [if they wanted to be paid for their work].

In effect, notes Hogshead-Makar, the that provision that makes people take care of others was absent: “Civil liability, wasn’t there.”

Aly Raisman – video still from her testimony at the Larry Nassar trial

A slide on the overhead notes in the case of Nassar Vs Gymnasts who were sexually abused a phrase on legal documents reading that the case should “… fail as a matter of law because USA Gymnastics did not owe a legal duty to these plaintiffs”.

“It was not until the Larry Nassar case that people woke up!”

Then two things happened, says Hogshead-Makar:

  1. “When the #MeToo movement happened, everybody recognised how ubiquitous sexual harassment, sexual abuse and sexual assault was.
  2. “The livestream of the Nassar case, with its 250 victims coming forward to give evidence, we all got to experience just how damaging sexual abuse it. It was very different for all these women … to have it live-streamed and have people able to go and see it, this was something we had never seen in the culture before.”

She summed up the two points thus:

“1. Wow it happens to a lot of women; and 2. Wow, it really interferes with their lives.”

The Safe Sports Act was passed soon after Nassar went down for 175 years.

The Act “established a separate entity, like USADA (United States Anti-Doping Agency) that will do the investigation, the sanctioning [on any found guilty of abuse], so we had to find another way because the child, victim of sexual abuse takes an average of 21 years to come forward. Meanwhile, that coach is still coaching. We have to get him out of sport.”

Hogshead-Makar described the efforts of talking to people, advocating and writing the draft for the new Act so that it would have a greater impact on discussion, as “like being in the Animal Lane for a very long time.”

She concluded her presentation by saying:

“We have come an awful long way but the passage of a statue and getting this kind of recognition is really the starting point.

“We are just now recognising ‘how do we give the athletes power over their athletic careers so that they can predict and prevent sexual abuse. How do you take that away from coaches, who are accustomed to having Weinstein-like power, and still allow them to enable these athletes to be amazing athletes – how do you do that?”

She then introduces a video from Brenda Tracy, who was gang-raped by four men in college 20 years ago and tells of the trauma upon trauma and hurt upon hurt of a community that treated her badly all over again rather than seek to bring the law down on those who committed the crime.

The video includes disturbing recollections of cases in which victims of rape and assault committed suicide because, violated by those who committed the crime, they were hurt all over again by a system and culture that erred on the side of doubt and ‘deal with it’.

The SwimVortex Safe Sport Series – so far:

Questions sent out this week to pertinent parties:

Answers provided:

The San Jose State University’s Institute for study of Sport, Society and Social Change, held a Words to Action: Gender, Sport and Society Town Hall gathering yesterday, with Nancy Hogshead Makar as keynote speaker. Her answers to the question “how could Larry Nassar happen?”, in reference to the USA Gym doctor who just went to jail for 175 years for decades of sexual abuse against more than 150 women, highlight fundamental flaws in the Olympic model of governance, swimming among sports that are going to have to make changes to the way things have been done. Here’s a key section of Hogshead-Makar’s presentation in San Jose – and why it is relevant to all Olympic sports, including the need to empower athletes with independent representation beyond the control and power of those who govern sport, often in their own interests not those of athletes

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