Legal Updates

New "Protecting Young Victims Act" May Impact Independent Schools

In the wake of the sentencing hearing of former USA Gymnastics doctor and convicted child abuser Larry Nassar, and the heart-wrenching testimony of a number of Nassar’s victims, President Donald Trump recently signed into law a bill designed to increase federal protections related to the prevention and the reporting of abuse of amateur athletes who are minors.

The “Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act” (the “Act”) had overwhelming bipartisan support in both the Senate and the House, and was nearly identical to a bill passed by the Senate in late 2017. The bill was presented to President Trump on February 7, 2018, and was signed into law a week later.

The Act will have wide-ranging implications for amateur athletics throughout the country. In particular, though it is too soon to be certain what impact various provisions of the Act will have on the independent school world, school administrators, particularly Heads of School and Athletic Directors, would be well advised to consider the Act’s potential impact in at least three respects: (1) the legislation arguably creates additional mandated reporting duties for some school employees; (2) certain provisions of the Act might – in the near future – be adopted at the state level and/or by athletic leagues in a way that would affect independent schools; and (3) certain provisions of the Act might eventually be considered “best practices” and, as such, might provide useful guidance for drafting and revising schools’ athletic and other policies.

Key Provisions

The Act has three main parts, each of which has the potential to impact independent schools, either directly or indirectly.

Mandated Reporting.

First, the Act expands upon an existing federal law that imposes reporting requirements upon certain professionals who learn of suspected child abuse while engaged in professional activities on federal land or in a federally operated facility.

The Act greatly expands this reporting requirement by mandating that a wide range of “covered individuals” report suspected child abuse regardless of location. The broad definition of “covered individuals” includes, but is not limited to, individuals authorized to interact with minor amateur athletes by “amateur sports organizations” that participate in interstate athletic competitions. Arguably, many independent schools would be considered part of amateur sports organizations that participate in interstate competitions. If so, coaches and athletic administrators of such schools likely fall within the sweep of the statute.

Under the Act, “covered individuals” who learn of facts that give them reason to suspect that a child has suffered an incident of child abuse are required to report that suspicion to a federal or non-federal agency to be identified by the U.S. Attorney General. This, of course, is in addition to any reporting responsibilities that coaches and athletic administrators have under state law and/or school policy.

Civil Remedy For Personal Injuries.

The Act also amends the section of the U.S. Code that allows individuals who were victims of certain specific offenses (such as federal laws related to forced labor, child sexual abuse, and child pornography) to sue in federal court for money damages.

In particular, the Act expands the tolling rules for the statute of limitations related to such offenses, such that a plaintiff is now able to sue within ten years after the latest of the following: (1) the date on which the plaintiff reasonably discovers the violation that forms the basis for the claim; (2) the date on which the plaintiff reasonably discovers the injury that forms the basis for the claim; and (3) the date on which the plaintiff reaches eighteen years of age.

This provision, which applies to a wide swath of crimes committed against any minor – i.e., not only a minor athlete – also provides for the potential for increased damage awards. Most significantly, the provision allows a victim to be awarded punitive damages, in addition to the actual damages (or liquidated damages in the amount of $150,000) and attorney’s fees which were already available under federal law.

Under the Act, a school’s potential financial exposure could be greater in the event it were named as a defendant in a lawsuit involving any of the delineated federal statutes.

Designation Of United States Center For Safe Sport.

Finally, and most expansively, the Act creates a U.S. Center for Safe Sport (the “Center”), which will have wide-ranging responsibilities aimed at “safeguarding amateur athletes against abuse, including emotional, physical, and sexual abuse in sports . . .” Among those responsibilities are:

• Maintaining an office for education and outreach that will develop training, oversight practices, policies, and procedures aimed at preventing abuse in all national athletic governing bodies and paralympic sports organizations.
• Maintaining an office to establish mechanisms allowing for the reporting, investigation, and resolution of allegations of sexual abuse in national athletic governing bodies and paralympic sports organizations.
• Requiring that the following persons report any allegation of abuse of a minor amateur athlete to the Center and to law enforcement: all adult members of a national governing body, a paralympic sports organization or any facility under the jurisdiction of either a national governing body or paralympic sports organization, and all adults authorized by such members to interact with a minor amateur athlete.
• Developing reasonable procedures to limit private, one-on-one interactions between an athlete who is a minor and an adult (other than the athlete’s parent or guardian) at a facility under the jurisdiction of either a national athletic governing body or a paralympic sports organization.
• Developing procedures for prohibiting retaliation against individuals who make reports under the statute.
• Formulating an independent audit process to make sure that national governing bodies and paralympic sports organizations are following the mandates of the statute (including staff training, proper reporting of suspected abuse, etc.)
• Creating a mechanism for sharing confidential reports of suspected child abuse with the appropriate governing body and for prohibiting an adult who is suspected of child abuse from interacting with amateur athletes who are minors, until the allegations are resolved.

Because they are chiefly focused upon national entities, the provisions of the Act related to the Center are unlikely to directly affect the independent school world. However, in light of their breadth and specificity, these provisions may nonetheless have a major impact on independent school policies and procedures.

For example, in its outlining of standards limiting one-on-one interactions between athletes and coaches, creating a mechanism for reporting all allegations of abuse, and creating a procedure for conducting external audits of an organization’s child abuse prevention practices, the Act may well lead to a shift in best practices in these areas in the interscholastic sports world. Thus, schools may want to evaluate their own policies in light of the standards outlined in the Act, and in light of the training programs that will be developed by national-level governing bodies.

Recommendations For Schools

For a variety of reasons, independent schools might want to wait before revamping their mandated reporting policies based on the provisions of the Act, as it remains unclear whether the Act’s mandated reporting requirements will be interpreted to apply to independent schools in general or to some subset of them.

However, schools should understand that the issue of abuse – and, particularly, sexual abuse – of minors has the attention of lawmakers. Thus, schools would be wise to anticipate further legislation in this area, at the federal and state level, as well as additional rules that may be instituted by athletic conferences.

What is certain is that best practices with regard to the training of coaches and the supervision of athletes continue to evolve. Having state-of-the-art policies and protocols in this area is essential in order to keep and maintain the trust of students and their families, to minimize schools’ legal exposure, and, most importantly, to support the mission of keeping students safe from harm.