[Congressional Record Volume 152, Number 135 (Friday, December 8, 2006)]
[Extensions of Remarks]
[Pages E2214-E2215]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         NONPROFIT ATHLETIC ORGANIZATION PROTECTION ACT OF 2006

                                 ______
                                 

                               speech of

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                       Tuesday, December 5, 2006

  Mr. CONYERS. Madam Speaker, the following letter from American 
University, Washington College of Law Professor Andrew F. Popper 
outlines the problems and concerns with this legislation.

                                              American University,


                                    Washington College of Law,

                                                   Washington, DC.
     Hon. John Conyers,
     Ranking Member, House Committee on the Judiciary, Washington, 
         DC.
       Dear Congressman Conyers, I recently learned that the House 
     of Representative is considering H.R. 1176, a bill that would 
     immunize major non-profits in the university sport/
     entertainment field and all non-profits involved in 
     children's activities generally. I have testified against 
     this bill in its earlier form and have seen the current 
     version. I very much hope this current version will be 
     rejected. It is an awful bill, as discussed below.
       The specific question posed to me was whether this bill 
     would carve out an exception for state tort common law claims 
     against organizations and officials who engaged in behaviors 
     that devastated children, athletes, and others who place 
     their trust in the non-profits that are the subject of this 
     bill. There is reason to think actions will not be possible 
     if this bill becomes law.
       State tort law holds out the promise of a real incentive to 
     exercise due care in precisely the kinds of programs this 
     bill describes in its opening sections, The tragedy is, this 
     bill would eliminate those state common law tort claims 
     required to produce those incentives.
       The argument has been made that while this bill provides 
     explicitly comprehensive immunity for non-profit 
     organizations in the sports/athletics and related fields, 
     somehow it preserves the necessary state common law tort 
     claims required to secure relief when organizations and their 
     employees and volunteers have failed to exercise that 
     requisite level of care required and a child or young adult 
     has been injured as a result. If the legislation stated 
     directly that it excluded from its unconscionable sweep of 
     liability all State common law tort claims, that argument 
     would have some validity. In fact, the bill does just the 
     opposite, listing precise fields where the immunity would be 
     inapplicable--and in that list, state common law tort claims 
     for negligence is nowhere to be found.
       Preservation of state common law tort claims for who those 
     who have been harmed, for children, families, athletes and 
     others swept into this bill, could occur either by direct 
     exclusion from the legislation such as

[[Page E2215]]

     that which is set out in 4(d) of the bill or by a preemption 
     analysis in which a court concludes that the overall meaning 
     of the federal law and its plain text do not preclude state 
     common law tort claims. That is unlikely for two reasons. 
     First, the plain meaning if the bill (congressional 
     intention) is the elimination of liability, and second, the 
     list of those areas that are ``preserved'' or carved out does 
     not include state common law tort claims.
       On the question of preemption, listed at the end of this 
     letter are citations to three fairly recent cases in which 
     federal courts have struggled with the question of whether a 
     federal bill has a preemptive effect on state tort claims. I 
     inserted footnote 14 from the Welding Fume Products Liability 
     case directly below to give you an idea of the complexity of 
     this field. The short of it is, as Richard Ausness said in 
     note 14: ``[T]he Court's preemption jurisprudence appears to 
     be bereft of any coherent theory or methodology'' and ``is in 
     a terrible state. . . .'' Therefore, one would not want to 
     leave to subsequent judicial interpretation whether state 
     common law tort claims for failure to exercise due care in 
     hiring coaches, investigating backgrounds, or overseeing 
     inappropriate activity would be actionable.
       If it is the intention of the drafters of this legislation 
     to exempt State common law tort claims from liability, they 
     must say so, or the obvious effect of the bill--what will be 
     seen as the clear intent of congress--will dominate.
       H.R. 1176 has only one purpose: limitation of liability. It 
     is hard to see any other purpose. As the case law makes 
     clear, the dominant analytical factor in exclusion (carve-
     out) and preemption cases is congressional intent. The more 
     elaborate interpretations, such as those in the cases below, 
     are required when the purpose of the legislation is 
     regulation of a field and the open question is the extent to 
     which that regulation and a state law can co-exist. Sadly, 
     will not be a question if this bill passes and becomes law.
       After reading the bill, I see no language that exempts 
     state common law tort claims. To the contrary, the specific 
     areas exempted (e.g. labor law, antitrust law, statutory 
     claims, etc.) suggest 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, failure to assess background, 
     negligent oversight of individuals who may well do great harm 
     to children, to athletes, to those most in need of 
     protection.
       A plain reading of Section 4(d) and Section 5 suggests that 
     those claims would be barred--and that is really quite 
     horrendous. Cutting off liability, arbitrarily, undermines 
     the incentives for better products and services. 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?
       During the earlier debates regarding the Volunteer Immunity 
     ACT, supporters contended that while the legislation 
     liberated coaches and volunteers from the risk of liability, 
     even when they were negligent, it left the organizations as 
     viable defendants in the event a plaintiff could fashion a 
     respondent superior theory or a general vicarious liability 
     claim under State law. H.R. 1176 would destroy that 
     protection.
       Although the three cases listed below hold out hope that a 
     State common law tort claim might survive, H.R. 1176 is not a 
     bill that regulates a field. Therefore, it would not give 
     rise to the question of whether the federal regulation can 
     co-exist with State law, or whether state law creates 
     obligation ``in addition to and different from'' federal 
     requirements.
       This is exactly the kind of tort reform that has been 
     proposed for the last 25 years: a limitation on liability, 
     blocking those who most need protection from access to the 
     civil justice system. It is clear to see why large nonprofits 
     want to limit liability. It is very hard to see why Congress 
     would give in to that demand when the consequence would be to 
     eviscerate an important set of incentives that protect those 
     likely to be victimized.
       Tort reform has always been an unfair fight. Think about 
     the alignment of forces. On the side of those seeking to 
     limit liability is the entire GNP. All of U.S. manufacturing, 
     all of retailing, the health care industry, the 
     pharmaceuticals, the insurance companies (who have as yet 
     produced a coherent reason why this protection is badly 
     needed based on anything resembling a juried study, 
     comprehensive payout or case list, or other credible 
     source), and, in this bill, all of U.S. higher education--
     every college and university, every athletic program, 
     indeed, every nonprofit involved in orchestrating sports 
     and entertainment for tens of millions of children and 
     young adults, and finally, much of the press who have 
     abandoned consumers on this issue, with the hope of never 
     having to pay punitive damages when they defame into 
     reputational oblivion a private citizen.
       On the other side, opposing these limits on accountability, 
     are the defenders of the tort system--under-funded and often 
     fragmented consumer groups, a few victims rights groups, some 
     of whom have been mocked as shameless seekers of undeserved 
     damage awards and, of course, trial lawyers. Trial lawyers--
     the architects of the consumer rights movement, the advocates 
     for you and me when we are injured, the lawyers who represent 
     the consumer perspective--who have been horribly vilified by 
     a decades long comprehensive campaign to undermine their 
     credibility, and in the shadow of this outrageous 
     legislation, student groups (who have a voice, presumably, 
     but are as yet unheard).
       This is hardly a fair fight.
       And then there is the term ``tort reform.'' Laws that 
     provide the protection for consumers, no incentive for 
     greater safety, and limit the rights of those who lack power 
     are hardly the stuff of reform.
       And the data--or lack thereof--regarding the current civil 
     justice system. From the CRS report forward, no credible 
     juried study documents a crisis in the tort or insurance 
     system or in the non-profit world that could conceivably 
     justify legislation that limits arbitrarily consumer rights, 
     as docs H.R. 1172.
       This is tort reform as I have come to understand it--a 
     series of bills that have but one meaning: reducing 
     accountability and giving consumers nothing in exchange. It 
     is not that it is incomprehensible. In fact, the reasoning is 
     all too understandable. Who would not like to be excused of 
     responsibility after they engaged in misconduct? The fact 
     that the reasoning underlying this bill is understandable, 
     however, does not mean that it is right, proper, just and 
     fair. It is none of those things.
       Let me know if you are interested in discussing this 
     further.
           Sincerely,
                                                 Andrew F. Popper,
                                                 Professor of Law.

     

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