[Congressional Record (Bound Edition), Volume 152 (2006), Part 17]
[House]
[Pages 22273-22280]
[From the U.S. 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.
       (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

[[Page 22274]]

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.
  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

[[Page 22275]]

     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 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. 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

[[Page 22276]]

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, 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

[[Page 22277]]

     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 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

[[Page 22278]]

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 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

[[Page 22279]]

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.
  Mrs. MALONEY. Madam Speaker, I rise today in opposition to H.R. 1176, 
the ``Nonprofit Athletic Organization Protection Act of 2006.'' This 
legislation would provide broad immunity to nonprofit athletic 
associations which enact rules governing athletic competitions. In some 
cases, these rules have resulted in injuries to children and 
participants including serious head and spinal injuries because of 
swimming pools that were too shallow for diving. I also have strong 
concerns that passage of this legislation would preclude victims of 
sexual assault from bringing civil lawsuits against nonprofit athletic 
associations which have acted negligently.
  Unfortunately, the Majority, in its rush to adjourn, has brought a 
bill to the floor that leaves children vulnerable to abuse. I urge my 
colleagues to vote no.
  Mr. SHERMAN. Madam Speaker, today H.R. 1176, the Nonprofit Athletic 
Organization Protection Act of 2006, was brought to the floor on the 
suspension calendar. The suspension process should only be used for 
bills that are non-controversial. The Republican leadership has once 
again abused the suspension calendar in order to limit debate on 
divisive issues. Accordingly, I will not vote to suspend the rules.
  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 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

[[Page 22280]]

     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.

  Mr. SENSENBRENNER. 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.

                          ____________________