Headquartered in Colorado, SafeSport is a 501(c)(3) organization focused on investigating and stopping emotional, physical, and sexual abuse in various sports organizations. Authorized in 2017 by the Safe Sport Authorization Act, SafeSport “exercise[s] jurisdiction over the corporation, each national governing body, and each paralympic sports organization with regard to safeguarding amateur athletes against abuse, including emotional, physical, and sexual abuse, in sports.”
In 2018, four women sued the United States Olympic Committee contending that the USOC and USA Taekwondo ignored allegations that two coaches had engaged in sexual misconduct with complaints dating back to 1996. The women contend that SafeSport is a creation of the USOC that also failed to investigate and follow-up no the complaints, thereby essentially allowing the coaches to continue their misconduct.
A SafeSport lawyer has contended that because it was only authorized to begin investigations in March 2017, it cannot be held responsible for any failure to act before 2017. In addition, SafeSport contends that it operates independently from the USOC.
However, a privilege log provided as part of the civil discovery process in this lawsuit shows that SafeSport had nearly a dozen employees even before March 2017, and that employees of the USOC and SafeSport were in communication as early as 2016. In addition, other evidence suggests that SafeSport is essentially a creation of the USOC – that SafeSport is not independent – including indications that even the term SafeSport was registered as a trademark by the USOC in 2012.
Even so the magistrate judge in the lawsuit recommended that SafeSport’s motion to dismiss the four athletes’ claims against the newly-formed organization on the grounds that SafeSport, a congressionally-created organization, enjoys absolute immunity from lawsuits of this sort. [Ultimately, for procedural reasons, the plaintiffs dismissed their lawsuit with SafeSport before the magistrate judge’s recommendation could become final.]
The magistrate judge wrote:
It contends that immunity is essential to allow it to effectuate its duty to impartially and fairly resolve complaints of misconduct within its jurisdiction. SafeSport argues “Plaintiffs are suing [it] because they disagree with its… decision on when and how to conduct arbitration over Jean Lopez’s lifetime ban.” But it argues it cannot be subject to suit for its eligibility decisions, because immunity serves to protect it for acts in its adjudicatory and prosecutorial capacity. I agree. The policy considerations that determine whether a party is protected by absolute immunity are squarely aligned with the issues that are presented by Plaintiffs’ claims.
SafeSport Due Process
SafeSport’s assertion of absolute immunity may allow it an escape clause in cases like this. But the implications are important for both the accused and the accusers.
In particular, SafeSport’s approaches to resolving reports of harassment have been criticized for their failure to provide due process to the accused.
SafeSport cannot on the one hand claim it enjoys legal protections of immunity that are reserved for governmental and quasi-governmental organizations, but on the other hand fail to provide due process to people accused of sexual harassment.