The Safe Sport Authorization Act and Protecting Young Victims

Episode Notes

Transcript

The Insurance Law Podcast

The Safe Sport Authorization Act and Protecting Young Victims

06/21/2018

[Music]

Intro: This is the Insurance Law Podcast, brought to you by Best’s Recommended Insurance Attorneys.

John Czuba: Welcome to the Insurance Law Podcast, the broadcast about timely and important legal issues affecting the insurance industry. I am John Czuba, Managing Editor of Best’s Recommended Insurance Attorneys.

We are pleased to have with us today attorney Al Goldberger from the Law Offices of Alan S. Goldberger, with offices in Florham Park, New Jersey. Al is a nationally recognized authority on sports law and sports officiating. He is frequently retained by insurance carriers and claims administrators to defend sports officials, coaches, camps, officials associations and other sports industry insurers.

Al is the author of ‘Sports Officiating: A Legal Guide’, the recognized legal authority for game officials and co-author of ‘Sport, Physical Activity and the Law’, a college textbook now in its 3rd edition.

Al has also written numerous articles that have appeared in legal and athletic publications nationwide, and is a featured speaker at conferences, including the National Association of Sports Officials, the American Bar Association, the International Association of Approved Basketball Officials, Inc., and US Lacrosse. Al is also admitted to practice in New Jersey, New York and Maryland.

And Al, it’s our pleasure to have you with us as a guest again today.

Al Goldberger: Good morning John, always great to be with you.

John Czuba: Today’s discussion is on the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act, and Al, for our first question, can you tell us about this Act?

Al Goldberger: Sure John. Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017, quite a mouthful that it is, it signed into law a little more than three months ago. And I think that any fair reading of the law would yield the conclusion that both the tone and the substance clearly reflect congressional intent to deliver a message to persons involved in the delivery of sports programs. And that message is that the failure to proactively address sexual and other forms of abuse of amateur athletes, and particularly children, can result in severe consequences.

The statute contains a boatload of requirements that will profoundly impact day-to-day activities of wide range of sports organizations all across the country. And to benefit the young athletes served by those organizations, a virtual buffet of remedies is on the table to redress any form of child or sexual abuse of athletes and participants in amateur sports.

At the core of the new requirements we find the legal obligation of adults who interact with young athletes to report suspected child abuse, including sexual abuse within 24 hours of learning facts, giving reason to support such a claim.

Under the new law covered individuals encompasses an entire spectrum of adults who interact with athletes. This is going to include organization members, staff, independent contractors and volunteers; virtually anyone who is authorized to deal with underage or other athletes in sports with few exceptions.

John Czuba: Al, does the new law apply to all youth sports?

Al Goldberger: Well, almost. I mean the reporting requirements are only a part of the new law. Other provisions also serve to change the law regarding abusive athletes in several respects, in terms of civil remedies, criminal remedies and administrative remedies.

So as a result of one act of Congress, Federal Child Victims Act, the Federal Criminal Statutes and the scope of civil remedies for personal injuries, those provisions provided for violations have all changed in favor of like the law says young victims.

The second section of the law empowers an organization known as the United States Center for SafeSport to impose sanctions for abusive athletes affiliated with national governing body sports; also criminal penalties may be in store for those involved in sports programs look the other way when it appears that abuse is committed. The law also requires amateur sports organizations to put additional procedures and safeguards in place to protect athletes from sexual abuse.

Now, in terms of the application of the law, all amateur sports organizations that affiliate with a national governing body or participate in interstate or international competition are going to be included. To get your event a national governing body sanction to go forward, you will need to comply.

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And with travel teams being what they are and so popular, it’s not unusual at all for organizations to cross state lines for a tournament, a game or a meet, so the applicability of the law seems to be pretty wide.

That’s probably where the second part of the law comes into effect. And that second part is what they call the SafeSport Organization part. SafeSport has a mission. It is a nonprofit organization and its mission is to guide local sports organizations and national governing bodies to comply with the law in a number of ways.

Firstly, to establish procedures to limit one-on-one contact between the adults and the athletes. Secondly, to provide outreach to educate and train the members and the athletes as to what they call the level of conduct required by the law. And lastly, by mandating governing bodies to make sure that there are reasonable means for reporting violations.

Also, Safe Sport can bar abusers permanently from access to athletes in a covered program. Also, there’s a requirement to offer training regarding prevention of athlete abuse to adults involved and if parents consent to the athletes as well and the required training also includes reporting protocols for those who disregard the prevention part.

As far as barring defenders on the part of Safe Sport, there are some who would argue that the due process element leaves something to be desired, but the authority of Safe Sport is in the statute and it’s documented.

John Czuba: So Al, how is someone coaching a league supposed to be aware of these new requirements?

Al Goldberger: Well, basically through the educational requirements John of the law and the requirements imposed on organizations to basically offer training and to educate all of their workers, including coaches, volunteers, independent contractors, and so forth as to what’s proper and what isn’t in terms of contact and as to the requirement for reporting.

A covered individual is really going to be anyone who is authorized to interact with young athletes or amateur athletes by either a national governing body or an affiliated group or a group that competes in interstate play. So this applies to a lot of different people and really most of the amateur sports community is on a scholastic level and even then there are some issues.

John Czuba: Who else is affected by this new law?

Al Goldberger: Well, I think some municipal recreation teams, if they have a travel component, particularly in our urban areas and more populated areas, it’s not at all unusual for even the rec travel teams in a number of sports to cross state lines. And right away, whether there’s a governing body affiliation or not, you have a situation where you have the law applying just by its broad definitions.

John Czuba: And can you comment on typical types of insurance coverages?

Al Goldberger: Well, I think John, the coverages can be found in a number of places. There are endorsements covering third-party claims, saddled up to ride on the employment practices liability policies, directors and officers’ coverage and even possibly a homeowners or an umbrella contract could be called into play.

With this type of claim, issues can arise as to vicarious liability as well as the garden variety claim of direct negligence, as to child abuse, as distinct from sexual abuse, coverages can vary on that issue. In terms of the new law, it certainly has a reach that extends to child abuse even of a non-sexual nature.

John Czuba: So how do you see this act potentially impacting claims? Is there anything insurance carriers need to be made aware of?

Al Goldberger: There are a number of things John as far as damages, although the sky is the limit under the law. There is also a liquidated damages alternative, which is 150,000 just in case. So this obviously is quite significant.

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Also, as is typical in federal statute, litigation fee shifting in favor of the prevailing party is applicable. Costs and expenses in some cases punitive damages are available too.

And finally, believe it or not, courts are empowered under this statute to grant injunctive relief as well as preliminary relief which will increase the defense tab obviously if those claims are wheeled out for any reason.

Choice of occurrence or claims made will raise other issues under the Act as to Statute of Limitations. Plaintiffs have a long time to bring civil claims, up to 10 years after the later of either reasonable discovery of the violation or the injury itself, or 10 years after the victim’s 18^th birthday. So that retroactive dates may become significant in terms of coverage issues in a claims-made policy situation.

There is also the question of dealing with exclusions for intentional acts. Some contracts will have a robust provision on that, some not.

The cost of defense, will it reduce coverage or be outside of the limits for these claims. Obviously, there’s counsel, experts, investigation, costs can be significant.

As to other items impacting claims, and it’s the usual suspect, how is the contract defined and insured, employed, staff, volunteers, members of a Board of Directors or trustees of a sports organization, governing body officers or subsidiaries or other affiliated groups. And lastly, maybe or almost lastly, do we have one occurrence or are there many occurrences, how does this affect the aggregate? Are their client on client exclusions?

And the trigger issues; what did the insured know, when did they know it? If there is more than one policy, which oftentimes as you know there may be, how is coverage going to be divvied up?

So I think those are some of the major issues in terms of carriers’ concerns.

John Czuba: Al, thank you very much for joining us today.

Alan Goldberger: My pleasure John. Always good to be with you.

John Czuba: Same here Al. That was Al Goldberger from the Law Offices of Alan S. Goldberger with offices in Florham Park, New Jersey. And special thanks to today’s Producer Frank Vowinkel.

And thank you all for joining us for The Insurance Law Podcast.

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