[Congressional Record (Bound Edition), Volume 150 (2004), Part 13]
[House]
[Pages 18333-18339]
[From the U.S. 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:

[[Page 18334]]

       (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 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

[[Page 18335]]

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.
  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. 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. 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

[[Page 18336]]

     (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 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. 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

[[Page 18337]]

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 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

[[Page 18338]]

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 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

[[Page 18339]]

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.''
  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.

                          ____________________