[Congressional Record Volume 152, Number 132 (Tuesday, December 5, 2006)]
[House]
[Pages H8686-H8692]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NONPROFIT ATHLETIC ORGANIZATION PROTECTION ACT OF 2006
Mr. SENSENBRENNER. Madam Speaker, I move to suspend the rules and
pass the bill (H.R. 1176) to provide immunity for nonprofit athletic
organizations in lawsuits arising from claims of ordinary negligence
relating to the passage, adoption, or failure to adopt rules of play
for athletic competitions and practices, as amended.
The Clerk read as follows
H.R. 1176
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 2006''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Amateur Sports and education-based athletics are an
important part of our culture. Sports provide a tremendous
opportunity for the youth of America to learn the skills of
leadership, teamwork, and discipline. Studies have shown that
participation in these activities is directly connected to
academic achievement and overall social development.
(2) Amateur athletics are integral to the good health and
overall well-being of American society. Nonprofit
organizations put forward their best efforts to enact rules
that are in the best interests of young people. Injuries will
occur as a result of the inherent risks involved in sports.
These risks, however, should not work to the detriment of the
greater good served by amateur athletics.
(3) Young people who participate in school sports and other
amateur competition have lower levels of obesity.
(4) Young people who participate in sports tend to be
fitter adults, and suffer fewer health problems as they age.
(5) Playing rules in amateur sports are necessary to
provide the opportunity for young people to participate in
age- and skill level-appropriate competition.
(6) Sport involves intense physical activity. It also
involves a certain element of danger. Rule making is
anticipatory, and hence a difficult balancing act. Rules
committee members face a constant struggle to balance the
tradeoffs of limiting risk and preserving the key elements
and sound traditions of the sport. Rules makers must draw
unambiguous lines; they do not have the luxury of self-
protective vagueness. Given the large number of participants
and the risks inherent in sport, injuries cannot be avoided.
By deciding to partake in competition, athletes assume such
risks. Allowing lawsuits based merely on the good faith
development of the rules is wrong and unfair.
(7) Rules makers have been the target of an increasing
number of lawsuits claiming negligence due to the adoption,
or failure to adopt, particular rules for amateur sports.
[[Page H8687]]
(8) Repeatedly defending claims will have a detrimental
impact on the ability of rules makers to continue to provide
these services, and will discourage the best and brightest
coaches, officials, and administrators from serving on rules
committees. Additionally, some children may lose the
opportunity to participate in organized sports if higher
insurance premiums compel amateur athletic organizations to
raise fees.
SEC. 3. 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. 4. 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 of play 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.
(d) Nonapplicability to Certain Claims.--The limitation on
liability provided by subsection (a) does not apply to an
action or claim arising out of a Federal, State, or local
antitrust, labor, environmental, defamation, sexual assault,
fraud, sexual molestation, freedom of expression, sexual
harassment, tortious interference of contract law, or civil
rights law, or any other Federal, State, or local law
providing protection from discrimination.
SEC. 5. 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. 6. 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 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 Michigan (Mr.
Conyers) each will control 20 minutes.
The Chair recognizes the gentleman from Wisconsin.
General Leave
Mr. SENSENBRENNER. Madam Speaker, I ask unanimous consent that all
Members may have 5 legislative days in which to revise and extend their
remarks and include extraneous material on H.R. 1176 currently under
consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, I rise in support of H.R. 1176, the Nonprofit Athletic
Organization Protection Act of 2006. This bill is narrowly tailored to
correct specific liability exposure problems for nonprofit sports
rulemaking bodies, such as the National Federation of State High School
Associations. The nonprofit athletic rulemaking bodies covered by this
bill play a critical role in facilitating all levels and all types of
sports. Nonprofit rulemaking bodies use the expertise of experienced
volunteers to set forth rules for athletic competition and practices
that preserve sports traditions and minimize risks to participants.
However, this rulemaking function is a predictive endeavor without
the benefit of perfect foresight, and sports involve inherent risks
that cannot all be minimized with a rule. Thus, when inevitable
accidents do occur, nonprofit rulemaking bodies are often sued along
with the local school district, coach, and referees because such
organizations are presumed to have ``deep pockets.''
In 1997, Congress passed the Volunteer Protection Act to shield
volunteers from liability for some forms of negligence in response to
concerns that America's lawsuit culture was inhibiting this country's
risk tradition of volunteerism. However, because the Volunteer
Protection Act does not protect organizations, this growing trend of
lawsuits has led to a dramatic increase in the insurance premiums for
many rulemaking associations. For example, the National High School
Federation, which develops rules for 17 different sports, saw a 300
percent increase for insurance premiums in just over 3 years. This
increase means that insurance premiums now make up over 10 percent of
the Federation's annual budget. These trends deprive the Federation of
funds that should be directed towards vital resources, such as sports
equipment upgrades or routine field maintenance. If these insurance
premiums continue to skyrocket, the rulemaking authorities may be
unable to attract the quality of volunteers necessary to write
effective rules, or worse, they may be driven out of existence
entirely.
This legislation limits liability exposure for these nonprofit
athletic rulemaking organizations in a very targeted manner. Modeled on
the Volunteer Protection Act, it does not confer blanket immunity.
Rather, liability will still attach for gross negligence or reckless,
willful or criminal misconduct.
This bill is targeted at liability stemming only from an
organization's promulgation of rules of play. During the committee's
consideration of the bill, some raised concerns about the extent of the
liability protections of the bill and claimed that it would protect,
among others, entities that hire child molesters without conducting a
background check. To ensure against such an unintended consequence, the
legislation adds sexual assault, sexual molestation, and sexual
harassment to the list of claims, including antitrust, labor, and civil
rights claims, that are specifically exempted from the liability
protections of this bill.
[[Page H8688]]
So, to be absolutely clear, this bill as it comes to the floor today
has been amended to meet every single objection to date about the scope
and extent of the liability protections of the bill. Consequently, this
bill should enjoy overwhelming bipartisan support.
Further, this bill does not prevent suits against nonrulemaking
entities, such as the owner of a field of play or an equipment
manufacturer, who are likely to be implicated in a sports-related
injury claim.
By curbing the worst excesses of the lawsuit culture Congress can
ensure that those who teach our children sports are more concerned
about fair play and good sportsmanship than their insurance rates or a
potential lawsuit. This bill is supported by the National Federation of
State High School Associations, the National Collegiate Athletic
Association, the National Council of Youth Sports, the Amateur Athletic
Union of the United States, and Little League Baseball, among others.
{time} 1130
Madam Speaker, I would like to submit for the Record a letter from
Robert Kanaby, executive director of the National Federation of State
High School Associations, showing the support of his organization and
each of the 50 individual State high school associations for this
legislation.
I hope that all my colleagues will join me in passing this bill.
National Federation of
State High School Associations,
Indianapolis, IN, March 15, 2006.
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 2005,'' H.R. 1176,
and urge you to vote for this legislation when it reaches the
House floor. On March 2, 2006, the Judiciary Committee voted
to support moving this bill forward, and we are looking for
your support when the bill reaches the House floor.
Amateur and education-based sports are an important part of
our society. These activities provide great benefits for
participants and spectators alike. It is widely acknowledged
that youth and interscholastic sports are a tremendous asset
to young people and an important part of the community. In
addition, they provide experiences for athletes that assist
them in becoming better human beings and citizens in our
society.
The National Federation of State High School Associations,
a non-profit organization that makes rules for high school
sports, 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 and operational impact on the NFHS and
could eventually affect our ability to continue to provide
these services to our nation's high schools.
While these claims are believed to be without merit, the
cost of defending claims and the uncertainty of judicial
proceedings have created significant challenges. It is
possible we will need to reconsider providing such rules or
guidelines in the future. This may be true of other amateur
sports rules makers. Without this legislation, we expect this
situation will continue to deteriorate and will further
jeopardize non-profit organizations that make rules for
amateur athletic competition.
For education-based athletics to continue in America,
nonprofit athletic organizations must have the ability to
make rules without the threat of these claims.
A list of state associations supporting this legislation by
their adoption of the enclosed resolution is attached.
Sincerely,
Robert F. Kanaby,
Executive Director.
RESOLUTION
Resolved, by the members of the National Council of the
National Federation of State High School Associations,
representing all 50 states and the District of Columbia, that
in the interest of the millions of young people who benefit
from participation in amateur sports, the United States
Congress be urged to adopt the ``Nonprofit Athletic
Organization Protection Act of 2004.''
Adopted this, 2nd day of July, 2004 in San Diego,
California.
NFHS Member State Associations
Alabama High School Athletic Association; Alaska School
Activities Association, Inc.; Arizona Interscholastic
Association, Inc.; Arkansas Activities Association;
California Interscholastic Federation; Colorado High School
Activities Association; Connecticut Interscholastic Athletic
Conference, Inc.; Delaware Interscholastic Athletic
Association; District of Columbia Interscholastic Athletic
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 State High School Activities Association,
Inc.;
Kentucky High School Athletic Association; Louisiana High
School Athletic Association; Maine Principals' Association;
Maryland Public Secondary Schools Athletic Association;
Massachusetts Interscholastic Athletic Association, Inc.;
Michigan High School Athletic Association, Inc.; Minnesota
State High School League; Mississippi High School Activities
Association, Inc.; Missouri State High School Activities
Association; Montana High School Association; Nebraska School
Activities Association; Nevada Interscholastic Activities
Association; New Hampshire Interscholastic Athletic
Association, Inc.; New Jersey State Interscholastic Athletic
Association, Inc.;
New York State Public High School Athletic Association,
Inc.; North Carolina High School Athletic Association, Inc.;
North Dakota High School Activities Association; Ohio High
School Athletic Association; Oklahoma Secondary School
Activities Association; Oregon School Activities Association;
Pennsylvania Interscholastic Athletic Association, Inc.;
Rhode Island Interscholastic League, Inc.; South Carolina
High School League; S. Dakota High School Activities Assoc.;
Tennessee Secondary School Athletic Association; Texas
University Interscholastic League; Utah High School
Activities Association; Vermont Principals' Association,
Inc.; Virginia High School League; Washington Interscholastic
Activities Association; West Virginia Secondary School
Activities Commission; Wisconsin Interscholastic Athletic
Association; Wyoming High School Activities Association.
Madam Speaker, I reserve the balance of my time.
Mr. CONYERS. Madam Speaker, I yield myself such time as I may
consume.
I reluctantly oppose this legislation and spoil the hugely bipartisan
nature of the Judiciary Committee's appearance before the floor in the
House today.
The reason is that not only does H.R. 1176 provide broad immunity for
nonprofit athletic organizations from lawsuits in the adoption of rules
for sanctioned or approved athletic competition or practices, but it
would indirectly immunize these organizations which were cited as the
ones supporting the measure from claims of negligence regarding child
molestation.
This is a serious matter. And, by the way, this matter has been
before the House on suspension and failed earlier this year. The reason
is that the most problematic issue is the failure of the other side to
completely address the issue of sexual misconduct in their rush to
finish out the legislative year. Specifically, while matters of gross
negligence are exempted from immunity under the bill, the legislation
does provide immunity from lawsuits arising from claims of ordinary
negligence. This simply means that these nonprofit athletic
organizations are exempt from having to exercise reasonable care. And,
additionally, unless 1176 is amended to include an exemption for all
State common-law tort claims, this legislation would bar claims against
nonprofit athletic organizations based on negligent behavior.
Thus, if a nonprofit athletic organization negligently hired, failed
to assess the background of, or conducted negligent oversight of
individuals who may well do great physical or emotional or sexual harm
to child athletes, this legislation that we are considering would
prevent those child athletes from having their day in court. That is
the heart of the problem.
Additionally, the measure extends way beyond barring potential
frivolous lawsuits in the Federal judicial system. Although lawsuits
filed by parents because their child was not put on a team might
rightly be dismissed, cases with legal merit, such as a rule which
endangers the life of a child, would be dismissed. These lawsuits are
necessary, as they call attention to public safety hazards and are
needed to protect our Nation's children.
Madam Speaker, I would like to put in the Record the letters of the
National Alliance to End Sexual Violence, which urges us to carefully
examine this measure before us, and which continue to oppose the
legislation, as we have earlier; and as well, Madam Speaker, a letter
from the three organizations, Public Citizen, Center for Justice and
Democracy, and the Alliance for Justice, which urge opposition to H.R.
1176.
December 5, 2006.
Hon. John Conyers, Jr.,
Ranking Member, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Ranking Member Conyers: On behalf of the National
Alliance to End Sexual Violence (NAESV), we are writing to
express our
[[Page H8689]]
opposition to H.R. 1176, the Nonprofit Athletic Organization
Protection Act of 2006. We understand that the bill is being
brought up today for a vote on the House floor under
suspension of the rules. While changes have been made to the
original language of this piece of legislation. NAESV remains
concerned that this bill still precludes victims of sexual
assault from being able to bring a civil action against
nonprofit athletic organizations which have acted
negligently.
We are specifically concerned that a nonprofit athletic
association could fail to do a criminal background check on
an employee and then if that employee sexually assaulted a
player then that victim would be precluded from being able to
bring a civil suit against the organization for negligence.
Since victims would then have no civil remedy available to
them, we must strongly oppose this bill and ask that you not
support it as well.
As a leading national sexual assault victim advocacy
organization, the NAESV believes that passage of this bill
would create a serious problem for victims and would not
allow them to hold perpetrators and organizations
responsible.
We thank you for your consideration of this serious matter,
and we would be pleased to discuss this matter with you and/
or your staff if that would be helpful. Please feel free to
contact our Government Relations Specialist, Ellen Fern, with
any further questions.
Sincerely,
Monika Johnson Hostler,
President, The National Alliance
To End Sexual Violence.
____
December 5, 2006.
Dear Representative: On December 5, Congress is scheduled
to take up consideration of H.R. 1176--the Nonprofit Athletic
Organization Protection Act. This bill would threaten the
health and safety of our nation's athletes--especially
student and amateur athletes, including Olympians--by making
nonprofit athletic organizations unaccountable regardless of
whether or not their negligent acts caused serious injury to
an athlete.
H.R. 1176 does more than just immunize nonprofit athletic
organizations; it strips away important incentives for such
organizations to pay careful attention to the safety of the
rules, equipment, and infrastructure used in their events.
Current liability standards encourage organizations to follow
best practices and to correct dangerous conditions.
In one recent case, a Wisconsin student became a
quadriplegic after diving off of a starting block into a pool
that was too shallow during a high school swim meet. The
athletic association's standards for how deep a pool must be
to use a starting block were not in line with national
standards. After the student filed a claim against the
athletic association, it changed its standards to comply with
the standards published by the National Federation of State
High School Associations.
This bill creates a disturbing legal double-standard in
which the athletic organizations are shielded from suit,
while maintaining full access to the courts themselves. Our
nation has a proud tradition of amateur athletics through
which generations have learned about justice and fair play.
Creating one set of rules for one group, and another set of
rules for another group is anything but just. Our laws should
be at least as fair as our Little Leagues.
H.R. 1176 would deny our athletes vital legal protections.
For this reason, we respectfully ask you to oppose H.R 1176.
Sincerely,
Laura MacCleery,
Public Citizen.
Joanne Doroshow,
Center for Justice & Democracy.
Dick Woodruff,
Alliance for Justice.
Madam Speaker, I reserve the balance of my time
Parliamentary Inquiry
Mr. SENSENBRENNER. Madam Speaker, parliamentary inquiry. Is the House
considering a motion to suspend the rules of the bill, as amended?
The SPEAKER pro tempore. That is the form of the motion that the
Chair understands was intended and is pending at the desk.
Mr. SENSENBRENNER. Madam Speaker, I yield myself 2 minutes.
Madam Speaker, the gentleman from Michigan (Mr. Conyers), my good
friend, is simply incorrect in his statements that this bill does give
blanket immunity for various types of sexual harassment and sexual
molestation. Because the bill is being considered as amended, the
amended version of the bill that is before the House now, on the bottom
of page 7, says nonapplicability to certain claims. And it says: The
limitation on liability provided by subsection (a) does not apply to an
action or claim arising out of a Federal, State, or local antitrust,
labor, environmental, defamation, sexual assault, fraud, sexual
molestation, freedom of expression, sexual harassment, tortious
interference of contract law, or civil rights law or any other Federal,
State, or local law providing protection from discrimination.
So this exemption very clearly deals with the objection that has been
expressed by the gentleman from Michigan (Mr. Conyers). The bill does
not provide any immunity whatsoever for all of these types of
activities and claims that I have mentioned.
Madam Speaker, I yield 3 minutes to the gentleman from Indiana (Mr.
Souder).
(Mr. SOUDER asked and was given permission to revise and extend his
remarks.)
Mr. SOUDER. Madam Speaker, I have additional letters I would like to
insert for the Record from Myles Brand, NCAA president; and from the
National Council of Youth Sports, to go with the earlier letter from
the high school organizations.
Madam Speaker, I am going to dispense with most of my formal
statement to try to address the question before us. This bipartisan
bill was drafted just to deal with the rules-setting organizations, the
rules of play. And the chairman of the committee, whom I thank for
bringing this bill up, and the members of the committee were working
together to try to address what I believe were extraneous concerns, but
if they were real concerns of the House, we needed to address them even
though they were not, in my opinion, in the first draft of the bill.
Accidents are going to happen. The question is, will the injuries
associated with athletics be allowed at all? How can you play youth
football? How can you play youth soccer? How can you have swimming? How
can you have wrestling if you are going to make it so that there is no
risk?
The balance that all these organizations have to do in their
procedures to setting a rule is to balance the risk, the offense and
the defense, and the care of the children involved and the young people
involved in these sports. What this bill does is try to make it so that
the people who are making the rules can't get sued unless in drafting
the rules there was gross negligence. It has nothing to do with
negligence of how a coach applies a rule, whether there are things that
happen during the game that were judgment things. These are about the
rules themselves.
The net impact of not doing this has been that most of the major
people providing the insurance premiums are looking at dropping this.
Others have raised it by 400 percent. What this means for Peewee
football; what this means for IHSAA, the Indiana High School Athletic
Association; for the NAIA of Small Colleges, they are going to have to
drop sports. They aren't going to provide the rules. That means there
won't be different guidelines. There will be no different types of
youth leagues. There will be no coaches or people willing to draft the
rules as you bring these coaches together, because the costs will
escalate. They are escalating exponentially. The losses by the
different insurance companies are increasing so greatly that most of
them are looking at getting out of the business. I hope that the House
will carefully consider this so that the kids who so deeply want to
play can be involved in these sports.
One of the other byproducts, by the way, of raising insurance
premiums is to raise the costs of playing, and this is going to hurt
low-income kids the most because suburban kids may be able to afford
the higher premiums and they may be able to get coaches who will take
the risks or take personal liabilities to be on the things, but this is
going to hurt those who most need the sports, in the urban areas and
other places where they do not have this opportunity.
I hope that this House will pass, on behalf of small kids, the high
school kids, and the college kids of America, a bill that enables them
to play and will understand that all this bill does is deal with the
general rules of play. And thanks to the chairman's graciousness in
working with the minority in this bipartisan bill, we have addressed
what I don't believe was in the original bill but takes out all the
civil rights questions, all the child abuse questions, and says those
aren't relevant here. All it has to do with is rules of the game and
whether there was gross negligence in developing the rules of the game.
Madam Speaker, I rise today in strong support of H.R. 1176, the bi-
partisan Nonprofit Athletic Organization Protection Act of 2006,
[[Page H8690]]
which would help protect the ability of amateur athletic rule-making
organizations to do the job that they have done for years, and that is
to promulgate the rules of play for Little League Baseball, Pop Warner
Football, high school athletics, college athletics, including the NCAA
and NAIA, club teams and elite amateur sports teams.
I'd like to thank Chairman Sensenbrenner for moving this important
bi-partisan bill through the Judiciary Committee and bringing it to the
floor today. The bill before us has been modified since it passed
committee to address concerns raised by the minority, and I'd like to
thank the Chairman and his staff for their help in clarifying the
narrow intent of the legislation which is to ensure that sports rule-
makers are not held liable for athlete injuries (in which they had no
responsibility). The bill only exempts non-profit rule-making
organizations from liability for physical injury caused by an act or
omission of the organization in its adoption of rules of play. The bill
does not in any way prevent lawsuits from moving forward that claim
harm caused by other rules or guidelines or claim gross negligence on
the part of the rule-maker.
It is undeniable that amateur athletic teams make a valuable
contribution to the lives of young people. Active participation in
sports--particularly at a time when obesity among American youth has
reached an alarming level--encourages healthy lifestyles, while also
imparting important social qualities such as leadership, teamwork and
discipline.
Over the past decade, however, amateur athletic rule-making
organizations have been forced to defend themselves against a growing
number of questionable lawsuits based on claims of negligence for
passing or failing to pass rules to eliminate the risks of injury
inherent in athletic competition.
Unfortunately, accidents do happen. There will always be injuries
associated with athletics but this is nothing new. For decades rule-
makers have responded to changes in technology, coaching methods and
athletes by making alterations in athletic rules. Each sport is an
ever-moving target for rule-makers and no set of rules can ever make
participation in sports as we know it, completely ``safe.'' Thus, it
would be wrong to punish rule-makers, who in a good faith effort, have
sought to anticipate and prevent injuries to the best of their ability.
As liability costs for rule-making bodies have skyrocketed, these
legal claims have had a profound impact on the financial stability of
amateur and education-based athletic organizations. Several rule makers
are now paying double or triple their previous annual premiums. Others
have been forced to self-insure at rates significantly higher than
previous years. All of these rule-making organizations are finding it
more difficult to locate an insurance company to carry their insurance
policy since more and more companies are getting out of the amateur
athletic insurance business completely.
In testimony before the House Judiciary Committee, Robert Kanaby,
Executive Director of the National Association of State High School
Associations (NFHS), noted that NFHS had experienced a threefold
increase in their annual liability insurance premiums over the three
previous years. This organization, which serves over 7 million young
people, currently pays in excess of $1 million in annual liability
insurance out of a total operating budget of $9 million.
According to the testimony of Mr. Kanaby and other insurance industry
experts, the staggering premium increases affecting NFHS and similar
rule-making organizations are certain to continue. It is necessary that
Congress act now to raise the standard for liability from ordinary
negligence to gross negligence. This change in law would allow the
volunteer rule-makers--often coaches with knowledge and experience in a
particular sport--to continue doing the best job they can to mitigate
risk while keeping the game competitive.
If the status quo is maintained, the losers in this situation will be
our nation's kids. As premiums continue to rise and with no relief in
sight it is becoming increasingly difficult for amateur athletic
organizations to continue providing a sporting outlet for our nation's
young people. Moreover, it is highly probable that amateur athletic
organizations will shortly be forced to either adopt rules of play that
are not specifically crafted for a certain age category (for example,
adopting college rules for high school athletics) or increase fees
charged to participants in order to offset the liability costs. Both of
these scenarios are not desirable and would damage youth sport
participation.
I hope my colleagues will consider the importance of preserving
amateur athletics and join me in voting in favor of the bi-partisan
Non-Profit Athletic Organization Protection Act. All of America's young
athletes who participate in school-based athletics, Little League or
other club sport teams will be thankful for your support.
National Collegiate
Athletic Association,
Indianapolis, IN, March 31, 2005.
Hon. Mark Souder,
U.S. House of Representatives,
Washington, DC.
Dear Congressman Souder: The NCAA believes that amateur and
education-based sports play a valuable role in the
development of our nation's youth. The organizations that
provide amateur athletics opportunities for America's youth
make every attempt to adopt playing rules that will provide
participants with a safe and fair experience. However, there
remains an inherent risk of injury when participating in
sports activities, which constantly puts these organizations
at risk of liability. As a result, the viability of these
organizations is being threatened due to the escalating cost
of liability insurance. Therefore, the NCAA stands in support
of your efforts to provide much needed protection for these
nonprofit organizations through the ``Nonprofit Athletic
Organization Protection Act of 2005.''
Sincerely,
Myles Brand,
President.
____
Endorsement of H.R. 1176 and S. 567, the Non-Profit Athletic
Association Protection Act of 2005, by the National Council of Youth
Sports
We are writing to voice our support for the ``Non-Profit
Athletic Association Protection Act'' of 2005.
This is an important issue with respect to amateur sports
and those who make playing rules governing amateur athletics.
Education-based and community-based athletics are an
important part of our culture. They provide a tremendous
opportunity to the youth of America by teaching leadership,
teamwork, and discipline skills. Studies have shown that
participation in these activities is directly tied to
academic achievement and overall social development.
Non-profit organizations that administer these activities
have been the target of an increasing number of claims and
lawsuits in sports injury cases claiming negligence due to
the passage or adoption of rules of play for amateur sports.
Repeatedly defending claims will have a detrimental impact on
their ability to continue to provide these services.
This legislation would shield theses organizations, their
directors, officers, employees, representatives, and agents
from liability for claims of negligence in sports injury
cases involving the passage, failure to pass, adoption, or
failure to adopt rules concerning athletic competition.
We the undersigned fully support this legislation and urge
its passage. These organizations provide an important service
to our nation's youth and have developed a good system to
write rules and administer competitions.
Signed, National Federation of State High School
Associations (NFHS), National Collegiate Athletic Association
(NCAA), National Council of Youth Sports (NCYS), Amateur
Athletic Union of the United States (AAU), Amateur Athletic
Union (AAU) Baseball, Amateur Softball Association of
America, American Amateur Baseball Congress, American Youth
Football (AYF), Catholic Youth Organization (Seattle), Dixie
Softball, Inc., Dixie Youth Baseball Inc., Excel Sports
Network Athletic Association (ESNAA), Georgia State Soccer
Association (GSSA), Ice Skating Institute Iowa AAU, Little
League Baseball, Magazines4OurTroops, Michigan State Youth
Soccer Association, Inc., Mt. Olive Recreation, North
American Youth Sport Institute, PBG Police Athletic League,
PONY Baseball/Softball, Pop Warner Little Scholars, Inc.,
TeeBall USA, Sport in Society at Northeastern University, USA
Baseball, USA Roller Sports, USA Softball, Women's Sports
Foundation
Mr. CONYERS. Madam Speaker, I am glad someone mentioned poor kids
will need to be protected more in athletic events, and that is
precisely the reason I am opposing this measure, because we are
eliminating State civil claims, and I think there has been some
confusion on the other side about criminal and civil liabilities.
Madam Speaker, I yield such time as she may consume to the
distinguished gentlewoman from California, Zoe Lofgren.
Ms. ZOE LOFGREN of California. Madam Speaker, I thank the gentleman
for yielding.
This bill, I believe, is trying to protect sports organizations, but,
unfortunately, it does leave children unprotected from child molesters.
We know that sexual predators volunteer to be involved with
children's sports programs and pedophiles routinely use the bond
between coach and athlete to prey on children.
A Seattle Times investigation uncovered 159 coaches who had been
reprimanded or fired for sexual misconduct between 1993 and 2003, and
of those coaches, 98 continued to coach or teach children. An
investigation in Texas uncovered 60 incidents of high school coaches
being fired or reprimanded as a result of allegations of sexual
misconduct with minors. And last month a Maryland high school
basketball coach was charged with abusing three minors.
This amendment, the amendment to the bill that has been mentioned,
does not fix the problem of providing liability relief to these
nonprofits. The bill
[[Page H8691]]
exempts claims based on Federal, State, and local statutes concerning
sexual assault, molestation, or harassment. But the bill grants
complete immunity for claims of negligence in establishing rules
related to adult supervision. I have here a letter from a scholar,
Professor Andy Popper, a professor at the American University School of
Law, and I would like to read just a small portion of his letter:
``Common-law tort claims for failure to exercise due care in hiring
coaches, investigating backgrounds, or overseeing inappropriate
activity would be actionable, but I think a plain reading of section
4(d) and section 5 suggests that those claims would be barred, and that
is really quite horrendous from the perspective of children who might
be victimized by adults treated in ways that are patently destructive
from an emotional or psychological vantage point. What possible reason
could there be to pass this bill?''
And he goes on to say: ``After reading the bill, I see no language
that exempts State common-law tort claims. To the contrary, the
specific areas exempted, labor law, antitrust law, statutory claims, et
cetera, suggests that Congress intends to exempt very specific areas
only. Given that list in 4(d), unless the bill were amended to include
an exemption for all State common-law tort claims, the bill will be
seen as a bar to cases involving negligent hiring, failing to assess
background, negligent oversight of individuals who may well do great
harm to children, to athletes, to those most in need of protection.''
I would like to note that the National Alliance to End Sexual
Violence has asked us to vote against this bill, as amended.
{time} 1145
And the reason why, and I quote from President Hostler's letter, as
the leading national sexual assault victim advocacy organization, we
believe the passage of this bill would create serious problems for
victims and would not allow them to hold perpetrators and organizations
responsible.
Now, the amended bill tells athletic organizations that they owe
children no duty of care. The bill takes away any incentive to take
reasonable steps to keep child molesters out and to keep children safe.
Do I suggest that the authors of this bill intend to protect child
molesters? I can't imagine that they do. But intent doesn't matter. We
are writing law here. And the impact of adopting this bill would, in
fact, be to protect child molesters.
Now, I am someone who really believes in Little League. My dad was a
Little League manager my entire young life. I have strong memories of
sitting in the stands day after day, month after month, watching my
brother catch the ball. I believe in Little League. But I also know
that my dad, were he alive today, would say, I don't believe in
protecting child molesters.
Mr. SENSENBRENNER. Madam Speaker, I yield myself 2 minutes, and I ask
the gentlewoman from California to yield.
Ms. ZOE LOFGREN of California. I yield.
Mr. SENSENBRENNER. What were the dates of those two letters that you
cited in your previous speech?
Ms. ZOE LOFGREN of California. The letter from the National Alliance
to End Sexual Violence is dated December 5 of this year, and the letter
from the law professor is dated December 4 of this year.
Mr. SENSENBRENNER. Madam Speaker, I think both of these letters have
reached the wrong conclusion. And again, I will quote from the section
that does make the nonapplicability to certain claims. That says the
limitation on liability provided by subsection (a) does not apply to an
action or claim arising out of a Federal, State or local antitrust,
labor, defamation, sexual assault, fraud, sexual molestation, freedom
of expression, sexual harassment, tortious interference of contract
law, or civil rights law or any other Federal, State, or local law
providing protection from discrimination.
Now, I don't know how more broadly this exemption could be drafted
than that. It is very clear that the complaint about the original bill
providing a limitation on liability for sexual molestation or
harassment or sexual assault was a legitimate one. So that is why the
nonapplicability of certain claims provision was put in here.
This is a red herring. It is not the original bill that people were
complaining about. This is a bill that has dealt with that objection,
and it should pass.
Madam Speaker, I now yield 2 minutes to the gentlewoman from Texas
(Ms. Sekula Gibbs).
Ms. SEKULA GIBBS. Madam Speaker, I rise in support of H.R. 1176, and
I say that because of the experience in my district where we are seeing
an increase in children who are suffering from obesity and an increase
in propensity to see dropouts in school. And youth athletics is an
opportunity for children to stay in school and to stay active and stay
fit.
We need to support more opportunities for youth athletics and youth
sports. And one of the deterrents for those youth activities in sports
is the increase in lawsuits that are being lodged against board members
who are in rulemaking positions.
This resolution will go a great distance in protecting parents and
grandparents and family members who want to join in and to provide
athletic opportunities for their children and who are fearful of being
caught up in lawsuits that stem, not from intentional criminal
activities, but from inadvertent rulemaking problems.
So protecting and immunizing parents, grandparents and family members
who want to participate in setting standards and rules for their
children is the right thing to do. It will help our children, in the
long run, stay in school, stay fit, and become good American citizens.
So I think that we should not lose sight of the goal of this bill and
make sure that we see that it is in the best interests of our children
to pass it.
Mr. CONYERS. Madam Speaker, I yield myself as much time as I may
consume.
This is an unusual situation that has arisen here. Here we come back
in the closing days of the 109th session, and I would think that
everything that has occurred before now, that this Congress would be
very sensitive and careful not to protect sex predators.
This is not business as usual. We have had a lot of problems in the
109th session of Congress. And yesterday, at 9:30 a.m., we received
this change. And we are now told that we don't understand it, and that
it has all been taken care of and everything is okay. Well, everything
is not okay.
H.R. 1176 provides a carve-out for claims arising from State or
Federal assault and harassment laws, a carve-out. The problem is that
none of the suits by children against an athletic organization, based
on the actions of a coach, sex predator, would arise under these laws.
The intentions may have been to correct it, but it is not corrected.
And that is the reason that we continue to oppose H.R. 1176.
This is not new information. And those who have been working on this
with us in the public sector are all in agreement that the so-called
fix that has been referred to is not really a fix at all. It may have
been meant to be a fix, but it is not a fix. And it is as simple as
that. That is why we are still opposed to this proposal as we were when
it came up under suspension earlier in the 108th session.
Madam Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Madam Speaker, I am prepared to close if the
gentleman will yield back.
Mr. CONYERS. Madam Speaker, I yield as much time as the gentlewoman
from California may need, and then we will be ready to close.
Ms. ZOE LOFGREN of California. Madam Speaker, I will be brief.
This bill, or its predecessor bill, H.R. 3369, was not approved when
it was brought before the Congress in 2004. It was defeated. And the
reason why I believe it was defeated was the concern that, although
probably well intentioned, it provided liability relief from predators,
from child molesters.
Now, I believe the law professor when he did the analysis. And as the
letter is in the record, he cites the cases and does a proper analysis
that negligence that results in child molestation would be protected
under this bill. We surely cannot be wanting to do that here as this
Congress closes.
Now, I have raised this issue in committee. I was, frankly, rather
shocked
[[Page H8692]]
to see this bill on the Suspension Calendar.
As Mr. Conyers has mentioned, we have not had a wonderful record here
in the 109th Congress of doing the right thing to protect children from
sexual predators. Let's not compound that problem by enacting this bill
today. I urge all of us to vote against it.
And I will say also that in the 110th Congress we should work in a
proper way to achieve the goals of supporting Little League and the
other organizations, while not letting down the children of our Nation
and letting them be victimized by child molesters and sexual predators.
Mr. CONYERS. Madam Speaker, I yield back the balance of my time.
Mr. SENSENBRENNER. Madam Speaker, I yield myself the balance of the
time.
Madam Speaker, I think this is an example about the way this place
does business. On a bipartisan basis we passed the Adam Walsh Bill and
that was signed into law by the President at the end of July. And that
was the single greatest protection of children law that had been passed
by the Congress in decades. And I was the author of that legislation. I
worked with people on both sides of the aisle and on both sides of the
Capitol, and I think that this was a really great accomplishment of
this Congress. And it shows what can happen when people work in a
bipartisan manner.
Now, we get to this bill after the election is over with, and there
has been a change of control on both sides of the Capitol. I don't
think that it can be disputed that the volunteers who set the rules of
play should be exempted from liability. Now, these are the people that
write the rule book. You know, they are not the people that actually
coach the kids. They are not the people who make the equipment. They
are not the people who provide the playing fields and either maintain
them properly or don't maintain them properly. They are the ones that
write the rule book. And a lot of the rules for amateur sports, whether
it is at the high school or college or intramural level or whatever,
those rules are designed to protect to the greatest extent possible the
kids who compete in those sports, and that is what this bill is
designed to protect.
Now, I think that the complaints that were made by my friends on the
other side of the aisle, that this bill could have been interpreted to
provide immunity or a limitation of liability on those who commit acts
of sexual assault or sexual molestation or sexual harassment against
the kids were legitimate. And that is why the bill is amended.
Now, when this bill was put on the Suspension Calendar last week by
the leadership, we circulated an amendment to the minority party. We
gave them the proposed language that is being debated and disputed
early yesterday morning, and we never heard from them. And we followed
up several times yesterday by staff to get their comments, and we never
got any comments. We tried again this morning before this bill came up
and never got any comments as well. The first we heard about their
opposition to the legislation and the letters that have been cited by
the gentlewoman from California (Ms. Zoe Lofgren) was when we got to
the floor today.
Now, that is their prerogative to do that, as it is the prerogative
of any Member of this House, whether in the majority or in the
minority. But the fact is that what we have heard from the other side
of the aisle is designed to defeat this legislation altogether, as it
was in the 108th Congress. And that would be a shame, because defeating
this legislation is only going to hurt the volunteers who are making
rules to protect children, rather than to protect people who might
commit sexual offenses against them. We ought to protect the volunteers
who make those rules, those volunteers who write the rule book, and the
associations that bring those volunteers together so that kids can
enjoy sports and play and learn the value of competition and the value
of fair play. And if you can't get volunteers to write the rule book,
then you are not going to be able to have kids' sports at all. So let's
put the kids first and pass this bill.
Madam 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. 1176, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of
those voting have responded in the affirmative.
Mr. CONYERS. Madam 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 question will
be postponed.
____________________