Today’s AES contribution (sorry it’s really long):
A Year in Review: SafeSport
December 1, 2019 through December 1, 2020
SafeSport 2020: A lack of progress on improvements increases calls for reform and a Congressional Commission to take action.
Over the past year, Athletes for Equity in Sport Inc. (AES) has continued to speak up and advocate on behalf of participants in Olympic sports, who are under the jurisdiction of the U.S. Center for Safe Sport (SafeSport), regarding concerns about the SafeSport resolution process and its impact on both complainants and respondents.
SafeSport representatives promised that in 2020, needed improvements would be made to the resolution process. Unfortunately, this did not happen. Furthermore, AES is concerned about a growing body of evidence that has emerged in recent months indicating mismanagement at SafeSport along with a lack of the focus needed to fix real and existing problems that still unfairly burden all involved.
By contrast, AES has used 2020 both to focus on the evidence for needed reforms and to build an effective capacity to implement the reforms identified. Our goal continues to be ensuring the safety and security of all athletes and related participants by using highly functional, fair, and uncompromised procedures consistent with the principles of due progress in the investigation of, and determination of effective resolutions to, reports of potential SafeSport code violations (i.e., complaints) filed by protected individuals.
In late 2019, AES sent many formal requests to SafeSport. These requests included queries regarding the fairness and integrity of the SafeSport resolution process. In addition, AES sought more information about the operations of the organization. Each and every inquiry from AES went unanswered by SafeSport.
AES further requested numerous times to meet with SafeSport representatives in order to ask questions about the SafeSport process as well as about information posted on social media pertaining to how SafeSport investigations are currently conducted. Those requests likewise received no response.
Instead, SafeSport designated Michael Henry, its Chief Officer of Response & Resolution, to represent SafeSport at USHJA’s annual meeting on December 11, 2019, and USEF’s annual meeting on January 8, 2020.
At these meetings, Michael Henry outlined the changes made by SafeSport to establish what he portrayed as a more fair and balanced process for both complainant (the person making the report) and respondent (the accused person: coach, trainer, fellow athlete). In particular, he touted a new method of investigation that consisted of layers of protection of fairness for all in the SafeSport resolution process.
One year later, Michael Henry left his position at SafeSport for unknown reasons. What’s more, AES has found no evidence of this supposedly new, fair, and balanced process being implemented as promised by Mr. Henry. In fact, evidence increasingly points toward burgeoning mismanagement and violations of due process at SafeSport.
Here is a summary of our mounting concerns:
A) SafeSport’s Promise to Increase Staffing to Manage Case Load vs. What Actually Happened
One promise that SafeSport made in 2020 was to substantially increase staffing at the organization so as to clear its backlog of pending cases and investigate and resolve complaints in a timely manner. In his presentations, Michael Henry pointed to the increased number of investigators that SafeSport employed or retained for the year 2020, boasting that these investigators came with a higher level of education and experience then was previously the case.
In addition, Mr. Henry reported that SafeSport also had hired numerous in-house lawyers to assist in the handling of cases. This was welcome news to AES, who had advocated for better trained and educated investigators to help ensure unbiased investigation.
Sadly, after hiring new staff earlier in 2020 in an effort to fulfil their promise, SafeSport backtracked last Fall, when it terminated many of the retained lawyers and investigators and released another 15 or so contracted investigators who had been hired to work through the backlog of SafeSport cases.
As a result, even though SafeSport pledged at the start of 2020 to improve its management of cases that are reported to SafeSport, one year later, the time frame for an average case from start to finish of an investigation reportedly exceeds 12 months. How can that be considered a prompt or fair resolution?
AES therefore remains very concerned about the impact of this reduction in professionally trained investigators, attorneys, and other staff on (1) SafeSport’s ability to carry out its mission competently, in a timely manner; and (2) its capacity to treat all participants fairly in the SafeSport resolution process.
AES has queried SafeSport about the recent personnel changes and SafeSport’s approach to fulfilling its mission going forward in light of these recent developments. As yet — again — SafeSport has not replied.
B) SafeSport’s Promise to Protect Confidentiality and Cybersecurity — Breached in 2020
At the start of 2020, SafeSport representatives gave assurances that the confidentiality of their programs was safe and secure. Yet in September 2020, SafeSport’s servers were hacked.
AES has written a letter to SafeSport, expressing concerns about the cybersecurity breach and seeking additional information about how the breach may negatively impact individuals who have been involved in the SafeSport resolution process and whose personal information may have been compromised.
In this letter, AES also asks how SafeSport intends to better protect and adequately secure its data to prevent future cyber breaches. For SafeSport to effectively fulfill its mission, individuals under SafeSport’s jurisdiction must be able to feel confident that the sensitive information they share with SafeSport is indeed safe.
While SafeSport has reportedly engaged two cybersecurity firms to investigate the breach and maintains no SafeSport information was compromised in the attack, AES has seen nothing to support that claim. Additionally, throughout the year, many confidential investigative files made their way from SafeSport to various news organizations, despite the confidentiality provision that prohibits publicly disclosing this type of information.
AES is concerned that SafeSport’s failure to properly maintain confidentiality in its investigations, along with the cyber breach that occurred in September, undermines faith and confidence in SafeSport, which will make individuals under its jurisdiction less willing to share information that SafeSport needs to fairly and effectively fulfill its mission and meet its obligations to all parties involved in its investigations.
C) Basic Due Process Standards Not Met
SafeSport further claimed, as stated by Michael Henry, that investigators would only collect evidence from all sides of the investigation, then summarize that evidence and present it to a committee to determine if a charge should be levied.
However, AES learned that this process was in no way happening. Instead, investigators were not only collecting evidence; they also were tasked with finding and outlining suggested charges, which would then be sent to “a reviewer” to either approve or send back for more evidence to be collected until a charge was found.
AES believes strongly that under our system of jurisprudence, basic due process requires a clear separation between an investigator, who is trained to gather relevant facts; another official, or a group of individuals akin to a grand jury, qualified to review the evidence submitted by the investigator and recommend a formal allegation, if supported by the evidence; and a third party, who only after an open and fair hearing conducted in a manner consistent with the principles of due process determines the outcome of the case and the sanction, if appropriate, that is imposed.
This basic structure of due process is ingrained in the American legal system; anything less undermines fairness and raises questions about the legitimacy of the SafeSport process.
In an important step toward making improvements at SafeSport, AES is encouraged that this past Fall, Congress approved S. 2330, the Empowering Olympic, Paralympic, and Amateur Athletes Act of 2020.
AES supported the passage of S. 2330. The $20 million in annual funding for SafeSport approved by Congress in S. 2330 will provide a new stream of funds to afford full and fair investigations plus, where warranted, other appropriate actions to protect all participating and/or affected athletes.
This is the intention of the original Congressional action to authorize SafeSport. It is a strong statement by our legislators that the horrific behaviors associated with the 2017 gymnastics scandal (Nasser) should never reoccur.
Athletes should not be ignored when they express fear and concern. Nor should their sports’ governing body (NGB or LAO) administrations and related entities be sheltered when they fail to take action on reports, resulting in further harm to the athletes they are supposed to protect.
In this context, the oversight implied by the funding and other provisions of S. 2330 strengthen the safeguards for athletes and are intended to supply much-needed equity and fairness to all involved. In addition, this Congressional oversight brings equally essential accountability for the management, policy, and procedures used by SafeSport to carry out its mission.
AES is also encouraged that S. 2330 established a 16-member Commission on the State of U.S. Olympics and Paralympics. This task force will conduct a top-to-bottom review of all aspects of Olympic and Paralympic sports, then make recommendations to Congress regarding policy improvements to strengthen the Olympic sporting community in the United States.
Specifically, AES understands that Congress created this Commission to gain a more detailed and independent evaluation of the USOPC (U.S. Olympic & Paralympic Committee) and SafeSport processes, effectiveness, and standards currently being utilized, as well as to garner recommendations for improvements.
Because of this increased attention and funding from Congress, AES has added professional advocacy and lobbying expertise to its team. This has greatly enhanced AES’ strategy of using legislation, litigation, and education to ensure that athletes and all other parties engaged in Olympic sports are safe and the process to protect them is not further blemished.
Under this new legislation, the Commission will have nine months to conduct its work and submit a written report to Congress. AES has recommended candidates to be considered to serve on the Commission to members of Congress responsible for selecting the Commission’s 16 members.
AES also is working in partnership with other like-minded organizations to promote knowledgeable and experienced individuals for appointment to the Commission. The goal is to ensure that the most qualified candidates are appointed, which will help ensure the success of the Commission in promoting necessary changes.
AES has spent the last year building the capacity to evaluate SafeSport’s performance and effectiveness. Now, AES fully intends to take advantage of the opportunity presented by this new Olympic Commission to share valid concerns and raise serious questions about existing SafeSport processes and procedures. The Commission should carefully examine these issues.
Once the Commission is established and up and running, AES will engage with the Commission to educate its members about AES’ concerns. Furthermore, AES will present questions about SafeSport’s operations and procedures in support of reforms that will improve them. Only then can SafeSport properly fulfill its mission as Congress intended.
AES also will engage with members of Congress who have oversight of SafeSport to raise questions about SafeSport’s management and current effectiveness in fulfilling its mission. This will enable Congress to discover for themselves the problems that exist at SafeSport and understand the reforms needed to fix them, so that SafeSport can do its job of protecting athletes from abuse fairly and competently in the future.
AES Positioned for Additional Outreach, Expanded Membership, and Enhanced Influence in 2021
At the start of 2020, AES promised multiple outreach presentations to ensure that questions from the athletic and coaching public could be answered. These presentations included participants with legal knowledge and experience along with individuals who had been through the SafeSport process both as victims and as persons accused of wrongdoing.
AES completed five in-person sessions and one online session before the pandemic struck. Now, a year later, AES is dedicated to restarting those programs in January 2021.
At the start of 2020, AES significantly increased its executive board and related committees to facilitate better outreach. While AES initially started with a few sports’ representatives, AES currently has representatives from more than 20 different sports attending AES meetings and events.
As of this time last year, AES had a handful of attorneys who would participate in educating AES on how SafeSport cases are really handled. Twelve months later, more than 25 attorneys who have had up-close and firsthand experience with the handling of SafeSport cases — assisting both victims and persons who have been accused of wrongdoing — have made themselves available to AES.
They are doing so to help make improvements at SafeSport that will ensure all participants in the SafeSport resolution process are treated fairly and that the power inherent in SafeSport’s mission is not corrupted by abuse or mismanagement.
AES is proud of what it has accomplished in 2020. Our growth and progress to date have enabled AES to hire a government affairs firm in Washington, D.C., as well as a professional media relations firm and to assemble a team of experienced attorneys. They are all working together with AES toward making essential improvements to SafeSport, so that the Center for Safe Sport can fulfill the mission Congress intended in a way that treats all of those under SafeSport’s jurisdiction fairly and equitably.
We are excited about the opportunities ahead for continued growth, progress, and ultimately, success. As we move into 2021, AES is ready to get to work on behalf of all those involved in Olympic sports.
