January 2020

To the Chronicle of the Horse Editor:

The Executive Group of Athletes for Equity in Sport have read with interest a recent blog post by Ryan Lefkowitz. In this post, Ms. Lefkowitz takes issue with statements made by Diane Carney, President of Athletes for Equity in Sport,  in her Chronicle of the Horse interview dated December 9, 2019.

Athletes for Equity in Sport supports and concurs with many of Ms. Lefkowitz’s statements. Although Athletes for Equity was formed in response to the many alarming issues raised by SafeSport actions around the country, we have never wavered in our support for SafeSport’s primary mission of protecting athletes within the Olympic movement from exposure to threats from sexual predators.

The failure of national governing bodies (NGBs) and the USOPC to properly respond to credible reports of sexual abuse by trainers and officials; their failure to report these crimes to law enforcement; and their willingness to hide the extent of that abuse over decades all must be addressed.

We recognize the need for a standardized process across all NGBs with regard to adjudicating claims and disciplining NGB members. In addition, we agree that SafeSport is a necessary addition to the regulatory structure established by Congress to oversee our national sports teams and other athletes participating in Olympic sports.

That said, we do not believe that the process by which SafeSport currently implements its mandate will result in effective management of these problems.

As it has operated thus far, the process SafeSport uses to justify disciplinary actions against those under its jurisdiction violates our basic understanding of how adjudicatory proceedings should be managed.

Without a process that reflects a shared understanding of basic rights and responsibilities, the rules and processes established by SafeSport will rightly be viewed with contempt by those subject to them. Without the support of those who are subject to its jurisdiction, SafeSport will undoubtedly fail in its mandate, and athletes ultimately will be left without effective recourse against their abusers. This is a serious concern.

We could easily take issue with many of Ms. Lefkowitz’s statements characterizing the United States Criminal and Civil Courts and the constitutionally based processes that protect individuals from unreasonable state action. As with most issues regarding questions of law, there are never only two sides to a debate; to properly deal with all of the technical legal issues would make this reply many pages long.

However, we would like to raise three points herein so as to further advance the discussion.

First of all, SafeSport was designed from the start to work extrajudicially — i.e., outside of court — without any serious oversight, thus taking advantage of both the societal norms established by our constitutional courts and case law that allows SafeSport to ignore those norms at its convenience.

Yet regardless of what existing case law might imply, the question of whether SafeSport is or is not a state actor (meaning it is acting on behalf of a governmental body) and to what extent it owes fealty to the Bill of Rights has never been expressly decided.

This is a crucial question, because a state actor is subject to regulation under the Bill of Rights, including the First, Fourteenth, and Fifteenth amendments. These amendments prohibit the violation of certain rights and freedoms.

Created by Congress to perform a specific task in the oversight and management of our national Olympic sports teams, the U.S. Center for SafeSport regulates who may and may not represent the United States of America in international competition. Given that its purpose is to protect Olympic athletes from sexual abuse, it is hard to imagine that Congress would allow SafeSport to operate outside the established constitutional framework.

In fact, it seems likely that in hiding behind its view that it is immune from constitutional challenges, SafeSport is overreaching well outside the original legislative intent underlying its creation.

Additionally, while it is true that a private entity or individual cannot be held liable for actions that would be deemed unconstitutional if they were a state actor, that does not make acting in such a way acceptable. For example, a bigoted private entity or person may discriminate based on race, gender, or religion without infringing upon anyone’s constitutional rights. That does not make the private actor right in doing so.

The United States Constitution enshrines in law basic principles and values of fairness and equity. We believe that any organization with regulatory power over our U.S. teams should also reflect those principles and values, whether required to by law or not. Furthermore, as the members who have chosen to participate under its jurisdiction, we have every right to insist that SafeSport’s process reflects those long-held principles and values.

Second, in her blog post, Ms. Lefkowitz acknowledges that we “may need to improve” SafeSport, that its actions might result in “monetary loss”.  But to her, the primary goal of preventing perpetrators of abuse from having access to minors justifies “incidental and avoidable consequences and punishment.” In short, she believes the end justifies the means.

At the same time, Ms. Lefkowitz admits that “unlike a court, SafeSport does not evaluate the merits of a claim to determine punishment or compensation.” This statement begs the question of whether the claimant’s version of the truth is all that matters to SafeSport.

If this is in fact the case, then one wonders how and on what basis SafeSport justifies “keeping minors safe and creating a system that expels individuals” from member organizations.

If the truth of a claim — its merit — is not heard and evaluated by a trier of fact (i.e., a person or body responsible for investigating and judicially deciding a case), then how can we, as athletes, trainers, and coaches, trust that the actions taken by SafeSport in response to that claim are justified and proportionate to the evidence and will be likely to prevent future abuse?

Third and lastly, it is clear that Ms. Lefkowitz understands the differences between our civil court systems and SafeSport. It is equally clear that she is a passionate advocate for victims of sexual abuse.

However, her observations seem to be theoretical and grounded in her own experiences with the judicial system. They are not based on direct experience with actual SafeSport cases. Ms. Lefkowitz appears to accept SafeSport as it is in the hope that its good intentions will outweigh the collateral damage that has already begun piling up.

Unfortunately, as professionals who have worked on SafeSport issues with defendants and claimants alike, we cannot share or agree with her view, because our practical experience with SafeSport does not support her conclusions.

We hope that Ms. Lefkowitz and others who share her view will regard Athletes for Equity in Sport as a force that will improve SafeSport’s processes for everyone under its jurisdiction. Nothing educates a lawyer faster than working in depth on a legal issue; we would welcome Ms. Lefkowitz’s involvement in any of the many cases now being handled on a pro bono basis by attorneys all over the country.

Because we share a deep desire to create a safe and equitable space in which to deal with these very sensitive and difficult issues, we encourage all parties who are passionate about curbing sexual abuse in Olympic sports to work with us toward that end.

Athletes for Equity in Sport