The Executive Suite: After Nassar: Protecting Athletes by Regulating Sports Medicine

Sexual abuse of young athletes has been a persistent problem in Olympic and amateur sports. Most recently, hundreds of allegations surfaced against Dr. Larry Nassar, a team physician for Michigan State University and USA Gymnastics, the national governing body (NGB) for the sport. Victims claimthat USA Gymnastics and Michigan State did not do enough to address numerous reports that Nassar's purported medical treatment was in fact sexual assault. Nassar was sentenced to sixty years in prison on federal charges, and up to 175 years after accepting a plea deal for the state charges. He also faces civil claims brought by some of his victims, including former Olympic gymnast McKayla Maroney. Maroney's suit asserts claims against Michigan State University, the United States Olympic Committee (USOC), and USA Gymnastics, and include allegations of negligent hiring, retention, and supervision, failure to warn, and intentional infliction of emotional distress.

The ultimate resolution of Maroney's suit is unclear (though it is likely that at least some of the defendants will settle). However, the larger effects of Nassar's abuse will be felt across Olympic and amateur sports. To begin, Congress is soon expected to enact the Protecting Young Victims from Sexual Abuse Act (Protecting Young Victims Act). The Act would require, among other things, that sport NGBs report allegations of sexual abuse of a minor to law enforcement and the newly established United States Center for SafeSport. The Center for SafeSport will have jurisdiction over all allegations of abuse--including sexual, physical, and emotional--concerning US Olympic Movement sports. SafeSport is charged with developing policies to prevent and respond to allegations of abuse. SafeSport opened its headquarters in Colorado and promulgated the SafeSport Code in 2017.

While the SafeSport initiative is an important step to remedy a long-standing problem in Olympic Movement sports, its impact across youth sports may be limited. This is illustrated by the fact that Nassar was aided in his ability to conceal the full impact of his crimes because he committed them across sports contexts. The US takes a unique approach to regulating youth and amateur sports. We are one of the few countries in the Olympic Movement that does not have a "sports ministry" or similar government entity responsible for centralized regulation and coordination of Olympic and amateur sport. Instead, sport in the US is regulated by level, setting up a patchwork of policies and norms tailored to the particular sports setting. Thus, interscholastic sports are regulated at the state level, intercollegiate sports are regulated by the National Collegiate Athletic Association (NCAA), Olympic sports are regulated by the USOC and applicable NGBs (such as USA Gymnastics or USA Swimming) and professional sports are regulated by their respective leagues. Sports regulation also primarily occurs through private sector entities, and not a government agency. With the exception of some high school athletic associations, which are affiliated with the state, the USOC and NCAA are private, and not state actors.

An advantage of this type of regulation is that rules and procedures are tailored for the needs of the specific context. Education-based sports programs (a uniquely American phenomenon) operate differently from Olympic Movement sport, which ultimately answers to the International Olympic Committee and International Federations for sport. Athletes may move freely between these different settings (so that, for instance, an NCAA swimmer or track and field athlete may also compete for Team USA in the Olympics). However, the patchwork approach to regulation undoubtedly contributed to the lack of timely and effective information sharing about Dr. Nassar between Michigan State and USA Gymnastics. Without a centralized, coordinating body for all amateur sport in the United States, it is easier for acts such as those perpetrated by Dr. Nassar to continue.

The absence of any centralized coordinating body for amateur sports also means that amending the Protecting Young Victims Act will not fully address the problem. The statute is aimed at protecting minors and those who train and compete in settings over which the USOC and NGBs have jurisdiction--which does not include intercollegiate sports. While USA Gymnastics has been the focus of the media attention around Dr. Nassar's crimes, Michigan State's role has thus far been less examined (though the NCAA has opened an investigation). NCAA regulations generally focus on sports-related rules to preserve its conception of "amateurism" and competitive balance. Moreover, institutions, not athletes, are members of the NCAA. Michigan State gymnasts abused by Dr. Nassar therefore would not have a remedy through the NCAA. The NCAA's only potential response, as it did with Penn State in response to Jerry Sandusky's sex crimes, is to sanction the institution. Since the NCAA and its member institutions are not covered by legislation aimed at the US Olympic Movement, the promise of SafeSport may not fully benefit intercollegiate athletes.

Yet beyond the technical legal questions over what sports entities have jurisdiction to take action--and what action can be taken--in the wake of Nassar's crimes, a critical issue raised by Nassar's abuse that has been largely ignored is the question of what, exactly, is "sports medicine," who are appropriate "team physicians," and what steps Congress and/or sports regulators should take to protect athletes.

A key theme in the narratives around Nassar's abuse was that he was a respected team physician who claimed to be providing legitimate medical care. His accusers were discounted, or in many cases did not fully comprehend the nature of the abuse, because he claimed his actions were medical treatment. In addition, a significant part of the Nassar story was the fact that coaches and administrators were quite happy and impressed by him, readily requiring athletes to use Nassar's services as a condition of being a member of the team. All of this despite the fact that many of the athletes have said that Nassar's "treatments" did not work.

"Sports medicine" has been an increasingly important part of sports, but it occurs largely in the shadows. The term itself has no specific legal significance. A variety of health care professionals claim to practice in this area--from chiropractors, physical therapists, and osteopathic physicians (like Dr. Nassar) to primary care physicians and orthopedic surgeons. Often, "sports medicine" practice is performed by one who takes the role of a team physician, providing medical care to athletes who train and perform for a particular team. Some medical specialties have fellowship training and additional qualifications that may be earned to reflect specialization in this area. Various medical groups have articulated best practices and made efforts to publish research and advance "sports medicine" as a discipline. However, there has been little effort by sports regulators such as the USOC or NCAA to clearly define what types of sports medicine providers may affiliate with athletes under their jurisdiction, and what the expectations for "sports medicine" care in these contexts would be.

The troubling issues raised by "sports medicine" and team physicians have been discussed in the context of professional sports. Specifically, athletes and commentators have expressed concerns over team physicians' potentially conflicting loyalties. Thus, a team physician serving at the pleasure of the team may have an incentive to "clear" even injured athletes to play. Keeping coaches and owners happy would help guarantee a team physician's continued affiliation with the program and its personal and professional rewards. In short, at the professional level, the concern has been that team physicians' potentially conflicting loyalties could work to the detriment of athletes.

The concern is even greater in the case of youth and amateur sports. Notably, Dr. Nassar has been referred to as a "volunteer" physician for USA Gymnastics. In fact, many Olympic and intercollegiate team physicians are volunteers, as are other "sports medicine" providers. By volunteering to cover games and treat athletes, these providers can greatly contribute to athletes' health and wellbeing. At its worst, however, these individuals can easily affiliate themselves with young athletes who have little choice or knowledge of what to expect from the "sports medicine" experience. By keeping coaches and team administrators happy (by clearing athletes to participate, for example), the divided loyalty problem can be even more problematic. Without the rights and resources of professional athletes, Olympic and amateur athletes can be particularly at risk.

It is in this way that the Protecting Young Victims Act and the SafeSport initiative fall short. The original Amateur Sports Act which established the modern US Olympic Movement envisioned the USOC as being a pioneer in sports medicine research and care. Decades later, the Larry Nassar case illustrates that serious, urgent questions remain about how the USOC selects and monitors those who claim to provide care to athletes, many of whom are children. Similarly, the NCAA has had little to say about how its member institutions provide sports medicine care to their athletes. Without standards or meaningful supervision, it is far too easy for providers to gain access to athletes and engage in treatments that are tainted by conflicting loyalties, are potentially ineffective, and at worst, are criminal assault.