[Congressional Record Volume 150, Number 109 (Tuesday, September 14, 2004)]
[House]
[Pages H7084-H7090]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NONPROFIT ATHLETIC ORGANIZATION PROTECTION ACT OF 2003
Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass
the bill (H.R. 3369 ) to provide immunity for nonprofit athletic
organizations in lawsuits arising from claims of ordinary negligence
relating to the passage or adoption of rules for athletic competitions
and practices.
The Clerk read as follows:
H.R. 3369
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Nonprofit Athletic
Organization Protection Act of 2003''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Economic loss.--The term ``economic loss'' means any
pecuniary loss resulting from harm (including the loss of
earnings or other benefits related to employment, medical
expense loss, replacement services loss, loss due to death,
burial costs, and loss of business or employment
opportunities) to the extent recovery for such loss is
allowed under applicable State law.
(2) Harm.--The term ``harm'' includes physical,
nonphysical, economic, and noneconomic losses.
(3) Noneconomic loss.--The term ``noneconomic loss'' means
any loss resulting from physical and emotional pain,
suffering, inconvenience, physical impairment, mental
anguish, disfigurement, loss of enjoyment of life, loss of
society and companionship, loss of consortium (other than
loss of domestic service), hedonic damages, injury to
reputation, and all other nonpecuniary losses of any kind or
nature.
(4) Nonprofit organization.--The term ``nonprofit
organization'' means--
(A) any organization which is described in section
501(c)(3) of the Internal Revenue Code of 1986 and exempt
from tax under section 501(a) of such Code; or
(B) any not-for-profit organization which is organized and
conducted for public benefit and operated primarily for
charitable, civic, educational, religious, welfare, or health
purposes.
(5) Nonprofit athletic organization.--The term ``nonprofit
athletic organization'' means a nonprofit organization that
has as one of its primary functions the adoption of rules for
sanctioned or approved athletic competitions and practices.
The term includes the employees, agents, and volunteers of
such organization, provided such individuals are acting
within the scope of their duties with the nonprofit athletic
organization.
(6) State.--The term ``State'' includes the District of
Columbia, and any commonwealth, territory, or possession of
the United States.
SEC. 3. LIMITATION ON LIABILITY FOR NONPROFIT ATHLETIC
ORGANIZATIONS.
(a) Liability Protection for Nonprofit Athletic
Organizations.--Except as provided in subsections (b) and
(c), a nonprofit athletic organization shall not be liable
for harm caused by an act or omission of the nonprofit
athletic organization in the adoption of rules for sanctioned
or approved athletic competitions or practices if--
(1) the nonprofit athletic organization was acting within
the scope of the organization's duties at the time of the
adoption of the rules at issue;
(2) the nonprofit athletic organization was, if required,
properly licensed, certified, or authorized by the
appropriate authorities for the competition or practice in
the State in which the harm occurred or where the competition
or practice was undertaken; and
(3) the harm was not caused by willful or criminal
misconduct, gross negligence, or reckless misconduct on the
part of the nonprofit athletic organization.
(b) Responsibility of Employees, Agents, and Volunteers to
Nonprofit Athletic Organizations.--Nothing in this section
shall be construed to affect any civil action brought by any
nonprofit athletic organization against any employee, agent,
or volunteer of such organization.
(c) Exceptions to Nonprofit Athletic Organization Liability
Protection.--If the laws of a State limit nonprofit athletic
organization liability subject to one or more of the
following conditions, such conditions shall not be construed
as inconsistent with this section:
(1) A State law that requires a nonprofit athletic
organization to adhere to risk management procedures,
including mandatory training of its employees, agents, or
volunteers.
(2) A State law that makes the nonprofit athletic
organization liable for the acts or omissions of its
employees, agents, and volunteers to the same extent as an
employer is liable for the acts or omissions of its
employees.
(3) A State law that makes a limitation of liability
inapplicable if the civil action was brought by an officer of
a State or local government pursuant to State or local law.
SEC. 4. PREEMPTION.
This Act preempts the laws of any State to the extent that
such laws are inconsistent with this Act, except that this
Act shall not preempt any State law that provides additional
protection from liability relating to the rule-making
activities of nonprofit athletic organizations.
SEC. 5. EFFECTIVE DATE.
(a) In General.--This Act shall take effect on the date of
enactment of this Act.
(b) Application.--This Act applies to any claim for harm
caused by an act or omission of a nonprofit athletic
organization that is filed on or after the effective date of
this Act
[[Page H7085]]
but only if the harm that is the subject of the claim or the
conduct that caused the harm occurred on or after such
effective date.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Wisconsin (Mr. Sensenbrenner) and the gentleman from Virginia (Mr.
Scott) each will control 20 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
General Leave
Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on H.R. 3369.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I urge my colleagues to join me in voting for H.R. 3369,
the Nonprofit Athletic Organization Protection Act of 2003. I would
like to thank the bill's sponsor, the gentleman from Indiana (Mr.
Souder) for bringing attention to this issue and offering this
legislation.
Volunteer athletic organizations play an important role in the lives
of children and communities throughout the country. Rulemaking bodies
that set standards and uniform rules for sports play a vital role in
facilitating a broad range of athletic competition. Nonprofit
rulemaking bodies, such as Little League baseball or Pop Warner
football, rely on the expertise of volunteers to establish rules for
athletic competition and training that promote sportsmanship, preserve
sports traditions, ensure fair and competitive play, and minimize risk
to participants.
As we know, almost all athletic competition carries risks to those
who participate, and accidents do occur when young men and women are
flying about on fields and courts and rinks. But rulemaking is a
predictive endeavor, and rulemakers do not have the advantage of 20-20
hindsight when they make rules for competition. Unfortunately, no rule
book can prevent injuries from occurring in the games that we play and
love.
What we also know after multiple lawsuits is that when those
accidents occur sometimes the very nonprofit athletic organizations
that seek to minimize risk to athletes have become the targets of
costly, protracted, and often frivolous litigation based on harm that
occurs in the course of a sporting event. Over the last several years
nonprofit athletic organizations have been subject to mounting legal
assault.
Egregious examples are all too common. One Little League organization
chose to avoid the threat of massive damages by settling a claim by a
parent who was hit by a ball her own child failed to catch. In another
example, lawyers for a youth who suffered an injury in a volunteer
sponsored and supervised Boy Scout game of touch football filed a
multimillion dollar lawsuit against the adult supervisors and the Boy
Scouts of America.
The explosion in the number of lawsuits against volunteer athletic
organizations has had a corresponding impact on the price of insurance
premiums these organizations are required to carry. According to the
National High School Federation, for example, liability insurance rates
for high school athletic organizations have spiked 300 percent over the
last 3 years.
In the short term, these increases divert resources from safety
programs and equipment that reduce the risk of these injuries to
athletes. If this trend continues to escalate, rulemaking authorities
may be driven out of existence.
H.R. 3369, the Nonprofit Athletic Organization Protection Act, would
stem the growing tide of lawsuits against the range of nonprofit youth
and high school athletic rulemaking bodies for rules that govern
competition on the field. The legislation merely protects nonprofit
athletic organizations from legal assault if harm was not caused by
that organization's misconduct.
Critically, this legislation would effect only a limited category of
claims against the nonprofit rulemaking organizations, and all claims
for willful misconduct, gross negligence or reckless misconduct would
still be actionable. Nothing in this legislation provides liability
relief for a school or a school district holding a competition or for
coaches or officials supervising or conducting a game.
The legislation also provides deference to States by preserving any
State law that affords additional protection from liability relating to
the rulemaking activities of the nonprofit athletic organization. The
bill is a narrowly tailored, common sense remedy to a very serious and
growing threat to volunteer athletic organizations.
If we fail to act, some of these valuable organizations will close up
shop. If we fail to act, youth sports and those who play them will
ultimately suffer. I urge my colleagues to support the legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I ask the gentleman if this is the same bill that was
reported from committee, because there were other drafts floating
around in the last couple of days.
Mr. SENSENBRENNER. Mr. Speaker, will the gentleman yield?
Mr. SCOTT of Virginia. I yield to the gentleman from Wisconsin.
Mr. SENSENBRENNER. Mr. Speaker, the answer is yes. This bill is in
the form that was reported from committee and it is also in the form
that it was introduced by the gentleman from Indiana (Mr. Souder).
Mr. SCOTT of Virginia. Reclaiming my time, Mr. Speaker, I oppose the
legislation that is drafted. H.R. 3369 provides immunity for nonprofit
athletic organizations from lawsuits in the adoption of rules for
sanctioned or approved athletic competitions or practices. This
legislation would virtually eliminate any valid claims from being
brought forth.
Specifically, the legislation does not differentiate between
meritorious lawsuits and frivolous lawsuits. H.R. 3369 prohibits civil
litigation of any grievance arising under the rules promulgated by the
nonprofit sporting organization. It exempts the athletic organization
from liability for harm caused by an act or omission of the adoption of
rules for sanctioned or approved athletic competitions or practices if
the organization was acting within the scope of its duties, the
organization was properly licensed, certified or authorized for the
competition or practice, and the harm was not caused by the
organization's willful or criminal misconduct, gross negligence, or
reckless misconduct.
So while lawsuits filed by parents because their child was not put on
a team may rightly be dismissed, cases with legal merit such as a rule
that endangers the life of a child would also be dismissed.
{time} 1100
In effect, this legislation would effectively bar them from their day
in court, and H.R. 3369 would dramatically obstruct valid
discrimination claims or other kinds of discrimination claims against
such athletic organizations. Such lawsuits call attention to public
safety hazards and discriminatory acts and need to be available for
litigation to protect our Nation's children.
As drafted, the broad immunity H.R. 3369 extends to nonprofit
organizations reaches far beyond the potential for frivolous lawsuits
in our Federal judicial system. H.R. 3369 prohibits civil litigation of
any grievance arising out of the rules promulgated by nonprofit
organizations.
As drafted, this legislation is so broad that it would bar legitimate
issues from being brought forth. Thus, such cases as discrimination,
antitrust, labor, environmental and other important claims would not be
allowed to go forward.
Additionally, H.R. 3369 protects the right of a nonprofit
organization to sue others. If the legislation is designed to suppress
unnecessary litigation altogether, how is an organization's grievance
legitimate but individual complaints are not?
Written to suppress only the outlets available for individual
citizens, this legislation simply overreaches. It is the height of
hypocrisy to suggest that these organizations should be allowed to have
their day in court while limiting the ability of individual athletes
and others to hold them accountable.
[[Page H7086]]
Mr. Speaker, previous immunity statutes like this would immunize
coaches, volunteers and board members, but the injured party, somebody
injured through no fault of their own, would have recourse against the
organization.
This bill leaves the injured party without any recourse at all.
There are serious problems with this legislation, so I would urge my
colleagues to oppose the bill.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield 5 minutes to the gentleman
from Indiana (Mr. Souder), the author of the bill.
(Mr. SOUDER asked and was given permission to revise and extend his
remarks.)
Mr. SOUDER. Mr. Speaker, I want to thank the chairman for moving this
bill. I very much appreciate his leadership in the whole area of tort
reform and particularly appreciate his willingness to move this bill.
I also would like to thank the original cosponsors of the bill, the
gentleman from Maryland (Mr. Wynn), the gentleman from Nebraska (Mr.
Osborne), the gentleman from Washington (Mr. Hastings), the gentlewoman
from New York (Mrs. Kelly) and the gentlewoman from Colorado (Mrs.
Musgrave).
My colleagues have heard some of the opening debate on this, and let
me say, to put this in realistic terms, in a new book by the gentleman
from Illinois (Speaker Hastert), he talks about how he injured his
shoulder off-season practicing wrestling. Then he wanted to play
football, and his coach and the association rules outfitted him in a
shoulder pad, and he played with pain. He goes through a number of
things that he and his good friend Tom Jarman did with that shoulder.
Then he went through the wrestling season. Then he had surgery.
The question is and the plain truth is, under today's society, he
could have sued the State of Illinois blind. He could have sued his
school. He could be as outrageous as some of these other people
because, in wrestling and football, occasionally people get hurt. And
it does not give people the right to sue the schools and to make it
hard for every other kid to play the sport.
What we have seen in this country, just recently, costs of lawsuits
have gone out of control. One provider has informed us that they have
gone up 300 percent; another one, 600 percent. One has dropped coverage
of all high school associations and Little Leagues and Pop Warners.
Three more are considering it.
Their costs are going up every year faster than they can charge
assessments. One governing body that provides for 5,000 athletes, some
of the elite athletes in the country, for an Olympic sport has had a
1,000 percent increase in their costs. How are they supposed to deal
with this? Who pays for this?
Often, it is the taxpayer, but in this case, the taxpayers are not
giving more money to the schools. So, if the Indiana State High School
Athletic Association has to absorb 300, 600 percent, 1,000 percent
increases in costs, they do not have anywhere to pass it. The kids pay
it. They will lose certain sports that are higher risk. They have
computers reduced in the schools, books reduced in the schools.
Sometimes even teachers, when they retire, are not replaced. And so we
have class size increase because the taxpayers are not giving the
schools more money.
So what happens when they increase their rates? Something has to
give. What happens when a Little League or a Pop Warner league has a
300 percent or a 600 percent or 1,000 percent increase in their costs?
Where do they get their money? They get it from the kids who are
playing.
If one is a mom or dad and you are working on a tight budget and you
wanted your kid to play Pee Wee Football or Little League and you want
to have them go and you just saw a 300 percent or 600 percent or 1,000
percent increase in the cost of playing and you do not have much money,
you are not going to let them play.
In many middle class families, I know in my family, we make the
judgment, boy, we have got spring soccer, fall soccer, summer, winter,
indoor, okay, you know, you start taking double, triple costs on these
type of things, even middle- and upper-income families are going to
restrict the amount.
At a time of rising obesity in this country, the last thing we need
to do right now is shut down high school sports.
The plain truth of the matter is that some of the objections my good
friend from Virginia raised, we have been trying to negotiate. We
offered amendments. They said that they still would not support the
bill. Then they came up with this last one on physical injury, because
the bill does not even relate to other things other than physical
injury. But we said, Okay, we will put them in, even though they are
extraneous. If you are worried about them, we have protections about
State laws. We have protection on civil rights laws, but if you want to
put that in, we will put it in.
Then they went physical injury. What is a pitcher supposed to do in
Little League? Unless you can throw it straight over the plate, you are
not allowed to pitch or the umpire is going to be held liable. The
coach is going to be held liable. The association is going to be held
liable.
In football, when a linebacker's coming up, does he have to say,
Excuse me, brace yourself, I am going to hit you at the knees, I am
going to hit you in your back? In wrestling, are you supposed to say,
before a take-down in the State rules, Uh-oh, I am going to go for a
pin now, be ready? How does this actually work?
The way we have governing bodies is, they have to take into account
the risk to the individual plus the historic purpose of the sport. They
have governing bodies that change these rules every year to try to make
them safer, but you know what? Sports are not always safe. If we are
going to have these ridiculous suits that go for millions of dollars,
nobody's doing physical damages, hospital costs. This is for nonrelated
to physical costs. If this is what we are going to do in our society,
what we are going to have is silly sports or no sports, and everybody's
going to be playing Frisbee unless the Frisbee hits somebody in the
head, and then there will be a lawsuit off that, too.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
(Mr. SCOTT of Virginia asked and was given permission to revise and
extend his remarks, and include extraneous material.)
Mr. SCOTT of Virginia. Mr. Speaker, the gentleman has made all these
statements that somebody can sue, somebody can sue, somebody can sue.
What he has not related is anyone who has filed suit and actually
recovered a judgment.
I would like to introduce for the Record at this point a letter from
the Leadership Conference on Civil Rights which outlines several civil
rights claims that would be barred by this legislation.
September 13, 2004.
Dear Representative: On behalf of the Leadership Conference
on Civil Rights (LCCR), the nation's oldest, largest, and
most diverse civil rights coalition representing people of
color, women, children, older Americans, persons with
disabilities, gays and lesbians, major religious
organizations, labor unions, and civil and human rights
groups, we urge you to vote against H.R. 3369, the
``Nonprofit Athletic Organization Protection Act of 2003.''
If enacted, this bill could set a dangerous precedent for the
enforcement of civil rights laws generally and could
specifically allow nonprofit athletic organizations to evade
civil rights laws and unlawfully discriminate on the basis of
race, sex, disability, or other characteristics protected by
federal and/or state law.
While the preamble suggests that the bill's intent is to
protect nonprofit athletic organizations from liability
arising from claims of ordinary negligence relating to the
adoption of rules for competitions/practices, the actual text
of the bill is much broader and creates the risk that such
organizations could evade their obligations under laws
unrelated to negligence, such as federal and state civil
rights laws. More specifically, the bill provides that ``a
nonprofit athletic organization [which includes the
employees, agents, and volunteers of such organization] shall
not be liable for harm caused by an act or omission of the .
. . organization in the adoption of rules for sanction or
approved athletic competitions or practices. . . . This
language creates the risk of eliminating valid discrimination
claims such as those found in the following cases:
In Cureton v. NCAA, a class action lawsuit filed by
African-American student athletes challenged the National
Collegiate Athletic Association's rule requiring all
potential student-athletes to achieve a minimum score on the
SAT or the ACT as having a disparate impact on African-
American students, in
[[Page H7087]]
violation of Title VI of the Civil Rights Act of 1964. Early
on, the Educational Testing Services (ETS), which designed
the SAT, criticized the NCAA's then-proposed use of a fixed
cut-off score and warned that such a rule would have such a
disproportionate impact, and it did. But only in the face of
a lawsuit did the NCAA change its rule so that student
athletes could be eligible for Division I schools on the
basis of their grades, not just their test scores.
In Michigan High School Athletic Association v. Communities
for Equity, federal district and appellate courts in the
Sixth Circuit have ruled that the state high school athletic
association's practice of scheduling six girls' sports,
and no boys' sports, in nontraditional and/or
disadvantageous seasons discriminated against female
athletes in violation of Title IX of the Education
Amendments of 1972 and the U.S. Constitution. The court
found that the association's scheduling decisions harmed
girls by limiting their opportunities for athletic
scholarships and collegiate recruitment, limiting their
opportunities to play in club or Olympic development
programs, and causing them to miss opportunities for
awards and recognition.
In PGA Tour, Inc. v. Martin, the U.S. Supreme Court ruled
that the Americans with Disabilities Act requires the PGA
Tour to allow professional golfer Casey Martin, who suffers
from a circulatory disorder making it painful to walk long
distances, to ride in a golf cart between shots at Tour
events. The nonprofit PGA had ruled that walking the course
in an integral part of golf, and Martin would gain an unfair
advantage using the cart. In a 7-2 decision, the Supreme
Court decided that the PGA could not deny Martin equal access
to its tours on the basis of his disability.
In addition, H.R. 3369 allows nonprofit athletic
organizations to sue, but not be sued. It is the height of
hypocrisy to suggest that these organizations should be
allowed to have their day in court while limiting the ability
of individual athletes and others to hold them accountable.
Finally, the bill preempts state law that provides less
liability protection to nonprofit athletic organizations but
not state law that gives additional protection to nonprofit
athletic organizations. There is no need for Congress to
preempt state law at all. If states want to protect certain
state athletic organizations, they can do so right now
without any action by Congress.
While we understand that those who oppose this bill might
be accused of fueling litigation, we urge you to consider the
risk that this bill could be used to exempt nonprofit
athletic organizations, which exercise control over the lives
of student-athletes, coaches, and many others, from treating
these individuals fairly and in accordance with our nation's
civil rights laws. Moreover, this bill would create
additional litigation regarding who is covered by the bill
and what types of claims it precludes.
LCCR strongly urges you to oppose the ``Nonprofit Athletic
Organization Protection Act of 2003.'' If you have any
questions, or would like additional information, please
contact Nancy Zirkin at 202/263-2880, or Julie Fernandes,
Senior Policy Analyst, at 202/263-2856.
Thank you in advance for your support.
Sincerely,
Wade Henderson,
Executive Director.
Nancy Zirkin,
Deputy Director.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman
from Virginia (Mr. Cantor).
Mr. CANTOR. Mr. Speaker, I thank the chairman for the time.
The increased cost of insuring youth athletic leagues is of great
concern to me and the constituents of the Seventh Congressional
District of Virginia. Millions of youngsters around the country
participate in soccer, football, baseball, basketball, lacrosse and
other sports. They learn discipline and teamwork, and most importantly,
they have fun.
As a parent of three, I have spent countless hours on the football,
soccer, lacrosse fields and other athletic facilities watching my
children compete and grow from their athletic experience. It is
something that I am very concerned about.
As has been said, we are now facing a very real prospect of a
chilling of the desire for parents to form athletic associations to
give their children an opportunity to compete on the athletic field.
This bill takes on the prospects of this chilling.
It addresses the fact that there is increasing costs playing sports
in a voluntary way, cost-prohibitive for American families. That is why
I am here.
I thank the gentleman from Indiana for his sponsorship of this
important legislation. I urge its passage and return to common sense so
that we can see our children continue to play on the fields.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 3 minutes to the
gentlewoman from Texas (Ms. Jackson-Lee).
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the distinguished
ranking member for the time, and I not only stand here as a mother of
two who spent many countless hours in soccer and Little League and a
variety of other sports, basketball and others, I agree with my
colleagues who express their concern for the validity and support of
these nonprofit athletic organizations.
But I also say that we are going at our concern in the wrong manner
and wrong-headed way.
All of us enjoy the mementos and the various awards that our young
people get in the playing of competitive voluntary sports as children,
but the problem with this legislation, H.R. 3369, frankly, is that it
does not differentiate between meritorious lawsuits and frivolous
claims. It allows the organizations to sue but not to be sued and,
thereby, I think, finds us in a very bad dilemma.
There are a number of suits involving civil rights, discrimination,
disabled issues, disabled Americans that would not have gotten the
attention if we had not allowed them to sue these various
organizations.
In the Cureton v. NCAA, a class of African American student athletes
challenged the National Collegiate Athletic Association's rule
regarding national testing. They deserve their day in court.
The PGA Tour, Inc., v. Martin was a case dealing with the Americans
with Disabilities Act which would suggest that the organization was
antiquated in its understanding of the rights of disabled Americans.
Why would my colleagues deny these rights? And why would they deny
the rights of Americans to provide themselves with some sort of relief?
I believe this legislation preempts State law unnecessarily. If
States want to protect certain State athletic organizations, they can
do so right now without any action by Congress. They can do so right
now.
Unfortunately, H.R. 3369 does not just preempt State law. It preempts
State law that gives more protections to athletes and leaves in place
States that give additional liability protections to nonprofit athletic
organizations.
I believe that this bill goes too far in the desire that we have,
which is to make sure that we have a free or an open playing field, if
you will, for our young people of America to develop their character
skills, their leadership skills and their athletic ability.
Why are we interfering? I believe that we can look at the record and
find a number of lawsuits did not generate into judgment, and so we
understand that frivolous lawsuits are taken care of by the legal
system, the judicial system that we put in place. Why are we putting
our heavy hand to deny those parents and students and players on the
field, those young people and others, the opportunity to engage when
their rights have been deprived?
I would ask my colleagues to, one, appreciate the desire of my good
friend the gentleman from Indiana (Mr. Souder) on this bill but
recognize that laws are already in place to protect these nonprofit
athletic organizations, and I ask them to reject this legislation at
this time.
Mr. Speaker, I rise in opposition of this legislation, H.R. 3369, the
``Nonprofit Athletic Organization Protection Act.'' This bill provides
immunity for nonprofit athletic organizations in lawsuits arising from
claims of ordinary negligence relating to the passage or adoption of
rules for athletic competitions and practices. As a member of the House
Judiciary Committee, many of my colleagues have reservations about the
broad sweep of immunity that this bill will give to certain
organizations and eliminate valid discrimination claims.
H.R. 3369 would provide immunity for any act or omission of a
nonprofit athletic organization and its employees in the adoption of
rules for sanctioned or approved athletic competitions or practices.
This broad sweep of immunity would virtually eliminate valid
discrimination claims such as those found in the following cases:
In Cureton v. NCAA, a class of African-American student-athletes
challenged the National Collegiate Athletic Association's rule
requiring all potential student-athletes to achieve a minimum score on
the SAT or the ACT. Early on, the Educational Testing Services (ETS),
which designed the SAT, criticized the NCAA's then-proposed use of a
fixed cut-off
[[Page H7088]]
score and warned such a rule would have a disproportionate impact on
African-American students. It did in fact have such an impact, but the
NCAA did not change its rule. Only when this class brought a civil
action did the NCAA change its rule so that student athletes could be
eligible for Division I schools on the basis of their grades, not just
their test scores.
In PGA Tour, Inc. v. Martin, the U.S. Supreme Court ruled that the
Americans with Disabilities Act requires the PGA Tour to allow
professional golfer Casey Martin, who suffers from a circulatory
disorder making it painful to walk long distances, to ride in a golf
cart between shots at Tour events. The nonprofit PGA had ruled that
walking the course is an integral part of golf, and Martin would gain
an unfair advantage using the cart. In a 7-2 decision, the Supreme
Court decided that the PGA could not deny Martin equal access to its
tours on the basis of his disability.
Moreover, in Michigan High School Athletic Association v. Communities
for Equity, a Federal district court ruled that the State's high school
athletic association practice of scheduling its female teams during
nontraditional seasons discriminated against female athletes. The court
found that scheduling the girls' sports, but not boys' sports, during
nontraditional seasons resulted in limited opportunities for athletic
scholarships and collegiate recruitment, limited opportunities to play
in club or Olympic development programs, and missed opportunities for
awards and recognition.
H.R. 3369 allows nonprofit athletic organizations to sue, but not be
sued. It is the height of hypocrisy to suggest that these organization
be allowed to have their day in court while limiting the ability of
individual athletes and others to hold them accountable.
There is no need for Congress to preempt State law. If States want to
protect certain State athletic organizations, they can do so right not
without any action by Congress. Unfortunately, H.R. 3369 doesn't just
preempt State law. It preempts State law that gives more protections to
athletes and leaves in places States that give additional liability
protections to nonprofit athletic organizations.
I urge my colleagues to see this bill for what it really does,
catering to special interests. Please join me in voting against H.R.
3369.
Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman
from Nebraska (Mr. Osborne).
Mr. OSBORNE. Mr. Speaker, I rise in support of H.R. 3369.
There is no question there has been a huge increase in personal
injury lawsuits targeted at rulemaking bodies in recent years, such as
Pop Warner, Little League, high school athletic associations and on and
on.
Sports-governing authorities' premiums have risen, as has been stated
previously, from about 120 percent to about 1,000 percent. At least one
known carrier has completely dropped providing general liability
coverage, while three others are looking at nonrenewing all policies.
So this is a concern, and so the rulemaking bodies will be driven out
of existence if they, number one, cannot afford the premium or, number
two, if they just simply cannot get coverage. This would take roughly 7
million high school athletes right off the field, and I think that the
good that is done by college athletics and amateur sports far outweighs
what we might see in terms of lawsuits.
The legal attack against all rulemaking bodies relies on the
presumption that rules should eliminate all risk in athletic
competition. In 1905, the NCAA was formed to eliminate the flying
wedge. Recently, in football, a person cannot block with their head.
They cannot chop block; clipping; practice in sweat clothes during the
early season; water breaks; spring practice rules and so on. Yet if
some young man decides to go out and tackle with his head down or has a
spinal injury, there is absolutely no way we can prevent that. The
rules have all been written, that I know of, that would provide safety
in football. So accidents will happen.
So this rule, I think, is a good one because it would allow the
rulemaking bodies to be protected from frivolous lawsuits by raising
the standard of liability from negligence to gross negligence. And if
we do not do something like this, a great number of young people will
simply be taken off the field. I do not think that is a viable
alternative.
{time} 1115
Mr. SCOTT of Virginia. Mr. Speaker, can you tell us how much time
remains on both sides?
The SPEAKER pro tempore (Mr. Ose). The gentleman from Virginia (Mr.
Scott) has 12\1/2\ minutes remaining, and the gentleman from Wisconsin
(Mr. Sensenbrenner) has 7\1/2\ minutes remaining.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 3 minutes to the
gentlewoman from California (Ms. Woolsey).
Ms. WOOLSEY. Mr. Speaker, the Nonprofit Athletic Organization
Protection Act before us today I believe sets a very dangerous civil
rights precedent. I take this personally, because I raised four, now
grown, children, and each and every one of them was an athlete, from
competitive skater to All American football player, and I cannot
imagine what our family would have been like if they had not been able
to use their energy in sports. I cannot imagine the learning experience
they would have missed if they had been faced with some unfair practice
or decision that I could not challenge if that would have kept them out
of athletics.
So I think what we are setting up here is the possibility of unfair
practices and policies when I do not believe there is a need. This bill
attempts to protect nonprofit athletic organizations from liability
arising from claims of negligence, but I believe it could do more than
that. What I believe it does is protect organizations from actual
legitimate lawsuits.
What position does this put a parent in, when and if their daughter
is told she cannot play soccer because she is not a boy? What does a
parent do when their handicapped child is told they cannot be on a golf
team because they cannot walk the course, but they could certainly get
around the course in a wheelchair?
While my children are now grown, they join me in wanting to have
their children have every opportunity to play any sport. They know the
value of their experience and they want all children, every child in
this country, to have the same experiences that they had.
Mr. Speaker, this legislation will prevent athletes from fighting for
their rights to play, and that is just plain wrong. I urge my
colleagues to oppose H.R. 3369.
Mr. SENSENBRENNER. Mr. Speaker, I yield 30 seconds to the gentleman
from Indiana (Mr. Souder).
Mr. SOUDER. Mr. Speaker, the bill relates specifically to harm on the
athletic field. We offered the Democrats this amendment, and they still
opposed the bill.
Mr. Speaker, every single State high school athletic association
supports this bill. So Members of Congress, if we have a recorded vote
on this, need to know their high school association is already on
record, including California, including Virginia, including Texas,
every single State high school athletic association supports this bill.
Mr. Speaker, I will insert the list of these State associations into
the Record.
National Federation of State
High School Associations,
Indianapolis, IN, September 10, 2004.
Dear Member of Congress: On behalf of the National
Federation of State High School Associations (NFHS), I am
writing to voice our strong support for the ``Nonprofit
Athletic Organization Protection Act of 2003'', H.R. 3369,
and urge you to vote for this legislation when it reaches the
House floor. On September 8, the Judiciary Committee voted to
support moving this bill forward and we understand it will
reach the House floor soon.
The National Federation of State High School Associations,
a non-profit organization that administers education-based
athletic competitions, has been the target of liability
claims alleging negligence due to the passage or adoption of
rules for sanctioned or approved competitions. These
allegations have resulted in an increase in the number of
liability claims against this organization. The claims are
beginning to have a detrimental financial impact on the NFHS
and could affect our ability to continue to provide services
to the nation's 20,000 high schools.
While these claims are believed to be without merit, the
cost of defending claims and the uncertainty of judicial
proceedings have caused significant financial challenges. It
is possible we will need to reconsider providing such rules
or guidelines in the future. This may also be true of other
amateur sports rule makers. Without this legislation, we
expect this will continue to deteriorate and will further
jeopardize non-profit organizations that administer athletic
competition and publish rules.
For education-based athletics to continue in America,
nonprofit athletic organizations must have the ability to
make rules without the constant threat of litigation.
Earlier this summer, the Federation adopted a resolution
supporting H.R. 3369. A list of
[[Page H7089]]
each state association supporting this legislation is
attached.
Sincerely,
Robert Kanaby,
Executive Director.
State High School Athletic Associations Supporting H.R. 3369--The Non
Profit Athletic Association Protection Act
Alabama High School Athletic Association
Alaska School Activities Association
Arizona Interscholastic Association
Arkansas Activities Association
California Interscholastic Federation
Colorado High School Activities Association
Connecticut Interscholastic Athletic Conference
Delaware Secondary School Association
District of Columbia Interscholastic Athletic Association
Florida High School Activities Association
Georgia High School Association
Hawaii High School Athletic Association
Idaho High School Activities Association
Illinois High School Association
Indiana High School Athletic Association
Iowa High School Athletic Association
Kansas High Activities Association
Kentucky High School Athletic Association
Louisiana High School Athletic Association
Maine Principals' Association
Maryland Public Secondary Schools Athletic Association
Massachusetts Interscholastic Athletic Association
Michigan High School Athletic Association
Minnesota State High School League
Mississippi High School Activities Association
Missouri High School Activities Association
Montana High School Association
Nebraska School Activities Association
Nevada Interscholastic Activities Association
New Hampshire Interscholastic Athletic Association
New Jersey State Interscholastic Athletic Association
New Mexico Activities Association
New York State Public High School Athletic Association
North Carolina High School Athletic Association
North Dakota High School Activities Association
Ohio High School Athletic Association
Oklahoma Secondary School Activities Association
Oregon School Activities Association
Pennsylvania Interscholastic Athletic Association
Rhode Island Interscholastic League
South Carolina High School League
South Dakota High School Activities Association
Tennessee Secondary School Athletic Association
Texas University Interscholastic League
Utah High School Activities Association
Vermont Principals' Association
Virginia High School League
Washington Interscholastic Activities Association
West Virginia Secondary School Activities Commission
Wisconsin Interscholastic Athletic Association
Wyoming High School Activities Association
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume, and I would point out to the gentleman from Indiana that I
would assume that anyone who has been immunized from liability would
support the legislation. I would like to see a list of people who have
been injured by negligence, victims of discrimination, victims of
violations of labor law. Let us get some of those to see what they
think about it.
Mr. Speaker, as I said, we have immunized the volunteers, so in terms
of running the organization, the volunteers have been immunized. A lot
of places do not have problems with insurance. This mandates there is a
blanket for everybody, State, local, everybody else, whether there are
insurance problems or not.
We hear so much from the other side about States rights. Well, here
we are, whether there is a problem in the State or not, here we come
with a Federal mandate changing all their tort laws. Whether or not you
disagree or agree with the Americans for Disabilities Act, or whether
you agree or disagree with civil rights laws or labor laws, people
ought to have the right to bring these cases in appropriate
circumstances. Otherwise, the agency has no responsibility in any of
these areas.
Now, accidents happen. We are not talking about accidents. What we
are talking about is when an organization violates good common sense
and someone is injured as a direct result of negligence. Should there
be a recourse? Who should be responsible for the damage? If there is
insurance, if you can get insurance, then certainly you should not
immunize everybody. This can be done on a State-by-State basis. If
Indiana cannot get insurance, then maybe Indiana can deal with that the
best way Indiana feels Indiana can deal with it. If Virginia wants to
deal with it in a different way, they can deal with it in a different
way based on the availability of insurance.
But, Mr. Speaker, this bill goes too far. It immunizes more than is
needed and it immunizes more causes of action. Now, the gentleman has
talked about what kinds of negotiations were going back and forth. That
is true. But we are not talking about the negotiations, we are talking
about what is in the bill. The fact is, because of what is in the bill
discrimination cases are thrown out; because of the bill, labor
disputes are thrown out; all kinds of Americans with disabilities and
everything else are thrown out because of the legislation. It is
clearly overbroad and should be defeated.
Mr. Speaker, I yield back the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my
time.
With all due respect, Mr. Speaker, I believe the arguments advanced
by the gentleman from Virginia are wrong. This bill defines a nonprofit
athletic organization as one whose primary function is ``the adoption
of rules for sanctioned or approved athletic competitions and
practices.'' And the bill only provides liability protection for an act
or omission in the adoption of rules for such competitions and
practices.
This language is very clear, and it should be interpreted only to
deal with on-the-field rules that govern such competitions and the
injuries that arise from them. It does not cover civil rights cases
alleging discrimination or other off-the-field harms.
Now, I am a little bit puzzled about these objections coming up at
this late date. This bill went through the regular committee process.
There was a full committee hearing on July 20 and a full committee
markup on September 8. The bill was open for amendment at the markup,
and had the gentleman from Virginia or anybody else on either side of
the aisle been concerned about the aspect that has been complained
about, they had the opportunity to offer an amendment and to have the
amendment voted on. They chose not to do so.
I do not think that the amendment would have been necessary, because
what this bill does is it says that if a State athletic association,
like the Wisconsin Interscholastic Athletic Association, decides to
adopt a rule for competition that means that everybody who competes in
a sanctioned high school competition has to have a certain piece of
equipment on, they cannot be sued merely for adopting that rule if the
equipment failed. That is what the protection is all about.
Now, if this bill goes down, with the huge increases in insurance
premiums that have been recounted by many of the Members here, one of
two things is going to happen. One is that there will be an increase in
premiums that are passed on to the schools involved, both public
schools and private schools; or, alternatively, if there is no coverage
that is available, then the State athletic association or the Little
League governing bodies or the Pop Warner governing body will simply
cease to exist and there will not be any rules that are adopted that
are designed to protect athletes from injury to the greatest extent
humanly possible.
This is a good bill. This is a narrow bill. It should be passed.
Mr. UDALL of Colorado. Mr. Speaker, I think this bill is well-
intentioned but I must reluctantly oppose it because I think it goes
further than it should and because the House will have no opportunity
to consider amendments that would narrow its scope.
As it stands, the bill would not only prevent lawsuits related to
personal injuries, but also evidently would apply to complains that
rules adopted by these organizations unfairly discriminate against
women or otherwise violate civil rights protected by the constitution
or by federal laws.
That this is a real possibility is made clear by the Judiciary
Committee's report, which notes that ``To further clarify that this
legislation only applies to a limited category of claims that arise out
of activities on the field in sanctioned athletic competitions, an
amendment may be added to this legislation before House floor action to
further clarify that the liability relief is not intended to apply to
civil rights and discrimination cases that challenge eligibility rules
set by such organizations.''
[[Page H7090]]
Unfortunately, no such clarifying change was included--and now the
bill is being considered under a procedure that prevents the House from
considering any amendment.
I also am concerned that the bill as it stands might also
inadvertently protect individuals who could potentially harm children.
During the Judiciary Committee markup, Representative Lofgren remarked
that if a poor hiring rule was in place that did not screen out
pedophiles, parents would be barred from suing the athletic association
regarding that rule. Here again I think it would have been better for
the House to be able to at least consider an amendment to address this
point.
Because of these problems, and because the only choice before us is
to approve or disapprove the bill as it stands, I will vote against
this measure in the hope that it can be reconsidered under a procedure
that permits more extensive debate and consideration of amendments.
Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Wisconsin (Mr. Sensenbrenner) that the House suspend the
rules and pass the bill, H.R. 3369.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of
those present have voted in the affirmative.
Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
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