[House Report 108-681]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-681

======================================================================
 
         NONPROFIT ATHLETIC ORGANIZATION PROTECTION ACT OF 2003

                                _______
                                

 September 13, 2004.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3369]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred 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, having considered the 
same, report favorably thereon without amendment and recommend 
that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     7
Committee Consideration..........................................     7
Vote of the Committee............................................     7
Committee Oversight Findings.....................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     8
Performance Goals and Objectives.................................     9
Constitutional Authority Statement...............................     9
Section-by-Section Analysis and Discussion.......................     9
Changes in Existing Law Made by the Bill, as Reported............    11
Markup Transcript................................................    11
Dissenting Views.................................................    24

                          Purpose and Summary

    H.R. 3369 was introduced by Representative Souder on 
October 21, 2003. The legislation is intended to stem the 
growing threat of lawsuits against organizations ranging from 
little leagues to high school sports rule-making bodies. The 
bill is designed to accomplish this by exempting non-profit 
athletic organizations and their officers and employees acting 
in their official capacity from liability for harm caused by an 
act or omission of such organization in the adoption of rules 
for sanctioned or approved athletic competitions or practices. 
The general protection preempts inconsistent State laws but 
makes exceptions for certain State laws requiring adherence to 
risk management and training procedures, State general 
respondeat superior laws, or State laws waiving liability 
limits in cases brought by an officer of the State or local 
government. The language mirrors provisions of the ``Volunteer 
Protection Act'' (``VPA'').\1\
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    \1\ 42 U.S.C. Sec. 14501 et. seq. (2003).
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                Background and Need for the Legislation

             VOLUNTEER ORGANIZATIONS AND THEIR LEGAL STATUS

Volunteerism and the Advent of the ``Lawsuit Culture''
    In the United States, a multitude of organizations exist 
solely for the purpose of helping their communities, both 
locally and nationally. These volunteer and nonprofit 
organizations make use of volunteers who selflessly give of 
their time and resources to benefit others. However, America's 
long tradition of volunteerism and generosity has been 
undermined by what has become a new American tradition: the 
lawsuit culture. In recent decades, actual lawsuits and fears 
of liability (both rational and irrational) have increasingly 
become a deterrent to people who might otherwise have given of 
their time or resources to better their community and country.
Congressional Efforts to Assess and Address Legal Attacks on Volunteer 
        Organizations
    The Judiciary Committee and Congress have previously 
recognized that the simple fear of liability, if left 
unchecked, would cause potential volunteers to stay home. The 
Committee has held hearings \2\ in recent years about various 
aspects of this problem and has advanced several pieces of 
legislation \3\ designed to limit liability for volunteers and 
volunteer, non-profit, or charitable organizations. Some of the 
evidence gathered during these hearings bears repeating. 
According to a report by the Independent Sector, a national 
coalition of 800 organizations, the percentage of Americans 
volunteering dropped from 54% in 1989 to 51% in 1991 and 48% in 
1993.\4\ Gallup polls have shown that 1 in 6 potential 
volunteers reported that they withheld their services due to 
fear of exposure to liability lawsuits.\5\ The Committee's 
hearings also brought to light how the general fear of 
liability is borne out by anecdotal examples of the types of 
lawsuits that have been brought. When a youth suffered a 
paralyzing injury in a volunteer supervised Boy Scout game of 
touch football, he filed a multimillion dollar lawsuit against 
the adult supervisors and the Boy Scouts.\6\ In California, a 
volunteer Mountain Rescue member helped paramedics aid a 
climber who had fallen and sustained injuries to his spine; his 
reward was a $12 million lawsuit for damages.\7\
---------------------------------------------------------------------------
    \2\ See, e.g., State and Local Implementation of Existing 
Charitable Choice Programs, 107th Cong. 13 (2001), Volunteer Liability 
Legislation, Hearing on H.R. 911 and H.R. 1167 Before the House 
Committee on the Judiciary, 105th Cong. 6 (1997), Health Care Reform 
Issues: Antitrust, Medical Malpractice Liability, and Volunteer 
Liability, Hearing on H.R. 911, H.R. 2925, H.R. 2938 Before the House 
Committee on the Judiciary, 104th Cong. 66 (1995).
    \3\ See, e.g. H.R. 911, 105th Cong. 6 (1997), H.R. 1167, 105th 
Cong. 6 (1997), H.R. 7, 107th Cong. 13 (2001).
    \4\ H. Rep. No. 105-101, Part 1 (1997).
    \5\ Id.
    \6\ Id. at 26.
    \7\ Id. at 23.
---------------------------------------------------------------------------
    In addition to causing potential volunteers to stay at home 
or refrain from certain needed activities, the Committee's 
hearings showed that the liability threat has had very real 
financial consequences. Many nonprofit organizations have 
encountered dramatically rising costs for liability insurance 
due to fears of litigation. The average reported increase for 
insurance premiums for nonprofits over the period of 1985-1988 
was 155%.\8\ The Executive Director of the Girl Scout Council 
of Washington, D.C. said in a February 1995 letter that 
``locally we must sell 87,000 boxes of . . . Girl Scout cookies 
each year to pay for [our] liability insurance.'' \9\ Dr. 
Thomas Jones, Managing Director of the Washington, D.C. office 
of Habitat for Humanity, testified that ``[t]here are Habitat 
affiliate boards for whom the largest single administrative 
cost is the perceived necessity of purchasing liability 
insurance to protect board members. These are moneys which 
otherwise would be used to build more houses [for] more persons 
in need.'' \10\
---------------------------------------------------------------------------
    \8\ H. Rep. No. 105-101, Part 1 (1997).
    \9\ Id.
    \10\ Volunteer Liability Legislation: Hearing on H.R. 911 and H.R. 
1167, supra, 105th Cong. at 56.
---------------------------------------------------------------------------
Volunteer Protection Act
    Based on the evidence gathered in such hearings, the 
Committee and Congress took actions to remedy the growing 
problem of liability fears for volunteers. The most notable 
action in recent years was consideration and passage of Federal 
legislation during the 105th Congress that became known as the 
``Volunteer Protection Act'' (``VPA'').\11\ The final 
legislation signed into law by President Clinton on June 18, 
1997 was identical to H.R. 911 as reported by the House 
Committee on the Judiciary earlier that year. The Federal 
legislation setting a uniform national standard for limiting 
the liability of volunteers was preceded by a patchwork of 
State laws with similar purposes, which the VPA largely 
preempted as well as preempting relevant State tort laws. 
However, these earlier State efforts to limit liability for 
volunteers are noteworthy because they reflected a pre-existing 
national consensus that volunteers and volunteer organizations 
ought to be encouraged by reducing the fear of legal liability.
---------------------------------------------------------------------------
    \11\ Pub. L. No. 105-19; codified at 42 U.S.C. Sec. 14503 et. seq. 
(2003).
---------------------------------------------------------------------------
    The common law of all fifty States allows individuals to 
collect monetary damages in tort for personal injury or 
property damage caused by another person's negligence or 
willful conduct. Almost all of these States, however, have 
limited the liability of volunteers and charitable 
organizations to some extent. New Jersey provides that 
charities and their volunteers are immune from liability for 
ordinary negligence.\12\ In Kansas, a volunteer or nonprofit 
organization is immune from liability for negligence if the 
organization carries general liability insurance coverage.\13\ 
Ohio offers broad immunity for volunteers of charitable 
organizations.\14\ Wisconsin State law limits the liability of 
volunteers of non-stock corporations organized under Chapter 
181.\15\ Georgia grants immunity for members, directors, 
officers, and trustees of charities from negligence claims 
asserted by beneficiaries of the charity.\16\ Each of these 
States and others have recognized the need to encourage good 
works and protect volunteers and nonprofit organizations from 
tort liability for accidents that arise in the normal course of 
their dealings.
---------------------------------------------------------------------------
    \12\ N.J. Stat. Ann. Sec. Sec. 2A: 53A-7 to 7.1 (West 1983).
    \13\ Kan. Stat. Ann. Sec. 60-3601 (1987).
    \14\ Ohio. Rev. Code Ann. Sec. 2305.38 (Anderson Supp. 1987).
    \15\ Wis. Stat. Sec. Sec. 181.297, 180.0828.
    \16\ Ga. Code Ann. Sec. 105-114 (Harrison 1984).
---------------------------------------------------------------------------
    The VPA was intended to encourage people to do necessary 
volunteer work for nonprofit and governmental entities by 
offering immunization from liability under State tort law for 
ordinary negligence. The VPA only protects ``volunteers'' \17\ 
for incidents that arise in the scope of their work, and it 
does not protect willful or criminal conduct and gross 
negligence. The VPA also limits punitive damages and non-
economic damages for those individuals found liable. However, 
the VPA does not protect nonprofit organizations and government 
entities themselves from liability for negligence of their 
volunteers unless State law provides ``charitable immunity'' 
for such organizations. Hence, under the common law doctrine of 
respondeat superior, volunteer organizations and entities are 
still generally vicariously liable for the negligence or their 
employees and volunteers.
---------------------------------------------------------------------------
    \17\ ``Volunteer'' is defined in the VPA as a person who perfoms 
services for a non-profit and who receives no more than $500 per year 
for such services.
---------------------------------------------------------------------------
    The VPA also allows States to declare affirmatively that 
the Act does not apply to suits in which all the parties to the 
action are citizens of the State. The VPA became effective on 
September 16, 1997, and did not apply retroactively to suits 
brought before that date. The VPA represents a great 
improvement by setting a comprehensive and consistent standard 
governing the tort liability of volunteers and thereby 
encouraging their good works. However, the fear of liability 
exposure still affects and hampers volunteer and non-profit 
organizations. Subsequent efforts in Congress since passage of 
the VPA have focused on some of the remaining gaps in liability 
protection for both volunteer organizations themselves and 
their donors. For example, in the 107th Congress H.R. 7, the 
``Charitable Choice Act of 2001'' as passed by the House 
contained provisions limiting liability for persons or entities 
who donated equipment to charitable organizations.

                    NONPROFIT ATHLETIC ORGANIZATIONS

    Volunteer athletic organizations play an important role in 
the lives of children and communities throughout the country. 
Rule-making bodies that set uniform rules for competition play 
a vital role in facilitating a broad range of athletic 
competition. Non-profit rule-making bodies, such as Little 
League Baseball, rely on the expertise of volunteers to 
establish rules for athletic competition and training that 
promote sportsmanship, preserve sports traditions, promote fair 
and competitive play, and minimize risk to participants. Many 
Americans have personally benefitted or know someone who has 
benefitted from the good work of these organizations and the 
people who work for them.
    All athletic competition carries risks to those who 
participate. However, over the last several years, the non-
profit organizations that seek to preserve fair competition and 
sports tradition while minimizing these risks to participants 
have become the targets of costly, protracted, and often 
frivolous litigation. 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.\18\ When a youth suffered 
a paralyzing injury in a volunteer supervised Boy Scout game of 
touch football, he filed a multimillion dollar lawsuit against 
the adult supervisors and the Boy Scouts.\19\
---------------------------------------------------------------------------
    \18\ Volunteer Liability Legislation: Hearing on H.R. 911 and H.R. 
1167 Before the House Committee on the Judiciary, 105th Cong. 6 at 21 
(1997).
    \19\ Id. at 26.
---------------------------------------------------------------------------
    The explosion in the number of lawsuits against volunteer 
athletic associations has had a corresponding impact on the 
price of insurance premiums these organizations are required to 
carry. According to the National High School Federation, 
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, rule making 
authorities may simply be driven out of existence.

           H.R. 3369, THE ``NONPROFIT ATHLETIC ORGANIZATION 
                            PROTECTION ACT''

    H.R. 3369, the ``Nonprofit Athletic Organization Protection 
Act,'' would stem the growing tide of lawsuits against a range 
of nonprofit youth and high school athletic rule making bodies. 
The legislation protects nonprofit athletic organizations from 
legal assault if harm was not caused by that organization's 
misconduct. Critically, this legislation would not eliminate 
all claims against non-profit rule making organizations--claims 
for willful misconduct, gross negligence, or reckless 
misconduct would still be actionable. The legislation also 
provides deference to States by preserving any State law that 
affords additional protection from liability relating to the 
rule making activities of nonprofit athletic organizations.
    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. H.R. 3369 is 
intended to be a narrowly-tailored, common sense remedy to a 
very serious and growing threat to volunteer athletic 
organizations mainly from lawsuits alleging bodily injury as a 
result of a rule or lack of a rule.
    During Committee consideration of H.R. 3369, Mr. Robert 
Kanaby, Executive Director of the National Federation of State 
High School Associations, delivered testimony concerning the 
growing liability crisis confronting nonprofit athletic 
organizations. According to Mr. Kanaby's testimony, rule making 
bodies play a critical role in facilitating all levels and all 
types of sports. Non-profit rule making bodies use the 
expertise of experienced volunteers to set forth rules for 
athletic competitions and practices that attempt to preserve 
sports traditions and minimize risks to participants. However, 
Mr. Kanaby testified that this rule making function is an 
inherently predictive endeavor without the benefit of perfect 
foresight, and though rules make sports as safe as possible, 
sports involve risks and unintended consequences and accidents 
do happen when young men and women are flying about on athletic 
fields and courts.
    When such accidents resulting in bodily injury do occur, 
according to Mr. Kanaby, non-profit rule making bodies are 
often brought into lawsuits that may also be brought against 
the local school district, coach, referee, etc. For example, 
the Committee was informed that in Arizona, a wrestler who was 
rendered quadriplegic filed suit maintaining the rule making 
body had not outlined a mandate to prevent a dangerous 
wrestling maneuver.\20\ Similar incidents have been reported in 
the sports of Tae kwon do, baseball, and field hockey, each 
time resulting in a lawsuit against the rule making body.
---------------------------------------------------------------------------
    \20\ Work v. National Federation of State High School Associations, 
Arizona--Maricopa County, AZ, Docket #CV00-008646.
---------------------------------------------------------------------------
    When Mr. Kanaby testified that this growing trend of 
lawsuits has led to a dramatic increase in the insurance 
renewal amount for many rule making associations, sometimes 
double and triple the previous annual amount. For example, the 
National High School Federation represented by Mr. Kanaby, 
which develops rules for 17 different high school sports, saw a 
300% increase for insurance premiums over just 3 years. Many 
associations, according to the testimony, are being forced to 
self-insure, and at significantly greater amounts than before. 
Other sports governing authorities have reportedly seen 
percentage increases in liability insurance rates from 121% up 
to 1000%. If this trend continues to escalate, according to Mr. 
Kanaby these rule making authorities may be driven out of 
existence and amateur sports would suffer.
    In his testimony and in response to Member questions at the 
hearing, Mr. Kanaby noted that H.R. 3369 is not intended to 
apply to lawsuits other than essentially bodily injury cases, 
and should not grant any liability relief or immunity, for 
instance, in discrimination lawsuits alleging unequal treatment 
based on gender, race, or disability. Mr. Kanaby also testified 
in response to questions that a typical bodily injury case in 
which his organization was sued and then eventually excused 
from the lawsuit still cost over $25,000 in legal fees and that 
2 years ago his organization could not find a single provider 
of insurance willing to offer them coverage because of his 
organization's exposure to millions of potential litigants. 
Finally, the liability protections have limiting exceptions to 
ensure the organization meets any certification or licensing 
requirements, and that the harm was not caused by willful or 
criminal misconduct or gross negligence on the part of the 
organization.

                                Hearings

    The full Committee on the Judiciary held a hearing on H.R. 
3369 and two related bills, H.R. 1787, and H.R. 1084, on July 
20, 2004. Testimony was received by Mr. Robert Kanaby, 
Executive Director of the National Federation of State High 
School Associations.

                        Committee Consideration

    On September 8, 2004, the full Committee on the Judiciary 
met in open session and ordered favorably reported the bill 
H.R. 3369, without amendment, by a rollcall vote of 14 to 7, a 
quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall vote occurred during the Committee's 
consideration of H.R. 3369.
    1. Motion to report H.R. 3369 was agreed to by a rollcall 
vote of 14 yeas to 7 noes.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................              X
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................
Mr. Bachus......................................................
Mr. Hostettler..................................................
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan......................................................
Mr. Delahunt....................................................                              X
Mr. Wexler......................................................
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................
Mr. Schiff......................................................
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             14               7
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1084, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                                September 13, 2004.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3369, the 
Nonprofit Athletic Organization Protection Act of 2003.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Lanette J. 
Walker (for federal costs) and Melissa Merrell (for the state 
and local impact).
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                         Director. 
    Enclosure.

H.R. 3369--Nonprofit Athletic Organization Protection Act of 2003

    H.R. 3369 would provide immunity to nonprofit athletic 
organizations such as Little League and school sports programs 
from liability in certain civil suits alleging harm from an act 
or omission of such an organization in the adoption of rules 
for athletic competitions or practices.
    CBO estimates that enacting the legislation would result in 
no costs to the federal government. H.R. 3369 would not affect 
direct spending or revenues.
    H.R. 3369 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act, but CBO estimates that the 
costs, if any, would not be significant and would be well below 
the threshold established in that act ($60 million in 2004, 
adjusted annually for inflation). Specifically, the bill would 
exempt nonprofit athletic organizations from liability under 
state tort laws for certain injuries that may occur during 
practice or competitions. The bill contains no new private-
sector mandates.
    The CBO staff contacts for this estimate are Lanette J. 
Walker (for federal costs) and Melissa Merrell (for the state 
and local impact). This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
3369 will provide limited liability protection for nonprofit 
athletic organizations and their officers operating within the 
scope of their official capacity.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representative Congress finds the authority for this 
legislation in article I, Sec. 8 of the Constitution.

               Section-by-Section Analysis and Discussion


Section 1--Short Title

    Section 1 provides that H.R. 3369 may be cited as the 
``Nonprofit Athletic Organization Protection Act of 2003.''

Section 2--Definitions

    Section 2 defines the following terms used in the bill:
    (1) ``Economic loss'' means any pecuniary loss resulting 
from harm (including loss of earnings, medical expenses, etc.) 
to the extent recovery for such loss is allowed under 
applicable State law.
    (2) ``Harm'' includes physical, nonphysical, economic, and 
non-economic losses.
    (3) ``Noneconomic loss'' means any loss resulting from 
physical and emotional pain, suffering, inconvenience, anguish, 
disfigurement, loss of enjoyment of life, loss of society and 
companionship, loss of consortium, etc., and all other 
nonpecuniary losses of any kind.
    (4) ``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'' 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 non-profit athletic organization.
    (6) ``State'' includes the 50 States, the District of 
Columbia and all other territories or possessions of the United 
States.

Section 3--Limitation on Liability for Nonprofit Athletic Organizations

    Section 3 creates liability protection for non-profit 
athletic organizations for lawsuits arising out of their rule 
making function in setting the rules for athletic competitions. 
This protection does not apply when harm was caused by gross 
negligence, or willful, criminal, or reckless misconduct by the 
organization. The protection also does not apply when certain 
State law requirements are in effect unless these are met.
    (a) LIABILITY PROTECTION FOR NONPROFIT ATHLETIC 
ORGANIZATIONS--Subsection 3(a) provides that a non-profit 
athletic organization shall not be liable for harm caused by an 
act or omission of such an organization in the adoption of 
rules for sanctioned or approved athletic competitions or 
practices if--

        (1)  the organization was acting within the scope of 
        its duties at the time of the adoption of the rules.

        (2)  the nonprofit athletic organization met applicable 
        licensing, certification, or authorization requirements 
        in the State in which either the harm, competition, or 
        practice occurred; 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--Subsection 3(b) provides that 
nothing in the act shall be construed to affect a lawsuit 
brought by a covered non-profit athletic organization against 
any employee, agent, or volunteer of the organization.
    (c) EXCEPTIONS TO NONPROFIT ATHLETIC ORGANIZATION LIABILITY 
PROTECTION--Subsection 3(c) provides that if the laws of a 
State limit the liability of a nonprofit athletic organization 
subject to the following conditions, such required conditions 
are not inconsistent with the Act and therefore must still be 
met by the organization to enjoy protection:

        (1)  A State law that requires such organization to 
        adhere to risk management procedures.

        (2)  A State respondeat superior law that makes such an 
        organization liable for the acts or omissions of its 
        employees, agents, and volunteers to the same extent 
        any employer is liable for acts or omissions of its 
        employees.

        (3)  A State law that makes a limitation on liability 
        inapplicable if the civil action was brought by an 
        officer of a State or local government pursuant to 
        State or local law.

Section 4--Preemption

    Section 4 provides that this Act preempts the laws of any 
State to the extent such laws are inconsistent with the Act, 
but shall not preempt any State law that affords additional 
protection from liability relating to the rule making 
activities of nonprofit athletic organizations.

Section 5--Effective Date

    Section 5 provides that the Act shall take effect on the 
date of enactment and will apply to any claim for harm caused 
by a nonprofit athletic organization that is filed on or after 
the effective date, but only if the harm that is the subject of 
the claim occurred on or after the effective date.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that H.R. 
3369 makes no changes to existing law.

                           Markup Transcript



                            BUSINESS MEETING

                      WEDNESDAY, SEPTEMBER 8, 2004

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr., [Chairman of the Committee] Presiding.
    [Intervening business.]
    Chairman Sensenbrenner. Now, pursuant to notice, I call up 
the bill H.R. 3369, the ``Nonprofit Athletic Organization 
Protection Act of 2003'' for purpose of markup and move its 
favorable recommendation to the house.
    Without objection, the bill will be considered as read and 
open for amendment at any point.
    [The bill, H.R. 3369, follows:]
    
    
    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Texas, Mr. Carter for 5 minutes to explain the bill.
    Mr. Carter. Thank you, Mr. Chairman.
    I urge my colleagues to join me in favorably reporting H.R. 
3369, the ``Nonprofit Athletic Organization Protection Act of 
2003.'' The voluntary athletic organization played--these 
organizations play an important part in the lives of children 
and communities throughout this country.
    Rulemaking bodies that set eligibility standards and 
uniform rules of play, play a vital role in the facilitating a 
broad range of athletic competition. Nonprofit rulemaking 
bodies such as little league baseball relay on the expertise of 
volunteers to establish rules for athletic competition and 
training that promote sportsmanship, preserve sports tradition, 
promotes fair and competitive play and minimizes risk to 
participants. Each of us has personally benefited or knows 
someone who has benefited from the good work of these 
organizations.
    I have a son who is a high school baseball coach and has 
benefited from these organizations all of his life as did all 
of my four other children. I asked at the hearing to give an 
example of what in this would entail. If a rulemaking authority 
decided that a kid has to slide into home plate, they make that 
authority because they know that collisions at home plate cause 
more injuries than sliding.
    Though the results of what is going on presently with our 
liability insurance is that if the kid slides and breaks his 
ankle, he sues the rulemaking authority for making a rule that 
required him to slide. That rule was made to protect the vast 
majority of people because a collision would have resulted in 
more injure than the slide. But if they hadn't had the rule, 
they would get sued for the collision that took place at home 
plate.
    These are organizations that are trying to come up with the 
safest possible means for these kids to be playing competitive 
ball. As we all know, almost all of athletic competition 
carries risks for those who participate. What we could not have 
known is that these very volunteer organizations that seek to 
minimize these risks would become the targets of costly, 
protracted and all too frivolous litigation. Over the last 
several years these volunteer organization have been subjected 
to mounting legal as a results. An egregious example is 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. Another example, lawyers 
for a youth who suffered an injury in a volunteer 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 associations has had a corresponding impact on the 
price of insurance premiums on these organizations and what 
they are required to carry. According to the National High 
School Federation, 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 injuries 
to athletes. If this trend continues to escalate, the 
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 a range of 
nonprofit youth and high school athletic rulemaking bodies. The 
legislation merely protects nonprofit athletic organizations 
from legal assault if harm was not caused by that 
organization's misconduct.
    Critically, this legislation would not eliminate all claims 
against nonprofit rulemaking organizations. Claims for willful 
misconduct, gross negligence and reckless misconduct would 
still be actionable.
    The legislation also provides deference to States by 
preserving any State law that affords additional protection 
from liability relating to the rulemaking activities of 
nonprofit athletic organizations. H.R. 3369 is a narrowly 
tailored, commonsense remedy to a very serious and growing 
threat to voluntary athletic organizations; and I urge support 
for this legislation.
    I yield back my time
    Chairman Sensenbrenner. Who wishes to give the Democratic 
opening statement?
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott, is recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, I would just say a couple of 
points, that the bill is overbroad. It not only covers what the 
gentleman from Texas just indicated is covered. It also appears 
to cover civil rights actions. Defamation, negligence, 
antitrust, labor disputes, insurance claims, freedom of 
expression, first amendment claims and everything else would be 
exempted by this legislation. It is clearly overly broad, and I 
think that it needs a lot more work than we have got time to do 
now. I would hope we would not pass the bill, and if we are 
going to consider it, fix it up so that it covers only what we 
are thinking about covering.
    Ms. Lofgren. Would the gentleman yield?
    Mr. Scott. I yield.
    Ms. Lofgren. I have the same concern, and I say this as one 
who spent my entire youth at Little League baseball games when 
my father was a manager and my brother was on the team and I 
understand the point being made.
    But, as I look at this, I think we really do need to 
tighten up the language. We all know that there is a problem 
with sexual predators preying on young children in supporting 
endeavors. It has been in the papers in my hometown and the 
like.
    And as I am thinking about that issue, I think the way--on 
page--well, three--theoretically, if you had a rule providing 
for adult supervision at, you know, the practice game, you 
could insulate from liability sexual assault, which is 
something that, you know, because of the litigation in 
California, these nonprofit groups have had to become very 
sensitive to the fact that this is a well-known situation 
where, you know, sexual predators actually volunteer to be on 
these sports teams. Now, in California at least, we have the 
ability for nonprofits to do a criminal records search to make 
sure that they haven't, you know, allowed some pedophile to 
come on and be a manager or a coach at the team; and that has 
really been a very positive thing. I think that, although it is 
not intended, there is an opportunity here to really undercut 
that; and I know you would not want that. I do not either. But 
I think the drafting leaves that open.
    I don't have the time. I yield back to Mr. Scott.
    Mr. Carter. Would the gentlelady yield--or would the 
gentleman yield?
    Mr. Scott. Let me just make one more comment.
    The other immunizations we have given in the past have 
immunized all the volunteers, but because the organization was 
still on the hook a victim would still have recourse. This--you 
have immunized all the volunteers, the coaches and everybody 
else, and this will immunize the organization so there will be 
no recourse at all.
    And I will yield to whoever asked for time and if not----
    Mr. Carter. I thank you for yielding.
    This, what you are describing, is willful misconduct. But, 
remember, this goes to the rulemaking authority and the rules 
that are set up under that rulemaking authority. That--it is 
limited to the rulemaking authority for--if you write the rules 
for Little League and somebody gets hurt as a result of those 
rules, you don't get sued for the rules that you wrote. That is 
what this is all about. And on the sexual predators, that is 
certainly willful misconduct and clearly would not fall in the 
limitations of this bill.
    Ms. Lofgren. Would the gentleman, Mr. Scott, yield?
    Mr. Scott. I am trying to figure out where that--a non--on 
page three, line 22, it says a nonprofit athletic organization 
shall not be liable for harm caused by acts or omissions and 
adoption of rules for sanction and approved competitions. I 
think the rules that the gentlelady from California just 
mentioned would certainly fall under that category, and I will 
yield to her.
    Ms. Lofgren. That is what I--I understand what the 
gentleman is trying to accomplish with this bill, and I don't 
disagree with what he is trying to accomplish with this bill. 
My concern is, since we are writing legislation, is that if 
you--the organization shall not be liable for harm caused by an 
act or in this case it would be an omission of the nonprofit 
athletic organization and the adoption of rules for sanctioned 
or approved athletic competitions.
    Well, if the rule is that--they adopt a rule that you have 
got to have a coach at every practice, batting practice, that 
is a rule. And if they omit what any athletic organization 
should know now, that you have got to do a screen of your 
volunteers through the pedophile check, that is an omission. 
And if the pedophile molests a kid, this provides for immunity 
from liability. And it is not willful on the part of Little 
League. It is an omission. It is negligence. And really the 
fact that there has been litigation has raised the 
understanding of these--I mean----
    Chairman Sensenbrenner. The gentlelady's time has expired.
    Without objection, all Members may place opening statements 
into the record.
    At this point, are there amendments?
    If there are no amendments, a reporting quorum----
    Mr. Watt. Mr. Chairman.
    Chairman Sensenbrenner. Gentleman from North Carolina, Mr. 
Watt.
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. I understand that there has been some discussion 
about another concern that has been raised but apparently not 
yet addressed and that is the exercise of rulemaking authority 
to, in some ways, discriminate against various categories of 
athletes, which doesn't seem to be excluded from coverage here 
either.
    Mr. Carter. If the gentleman would yield for just a moment.
    Mr. Watt. Yes, I would be happy yield to you.
    Mr. Carter. I thank you for yielding.
    We have been working with the minority on this issue. In 
fact, we were anticipating an amendment to that effect to cover 
civil rights to be offered, but the Member who was going to 
offer that amendment is not here. We are perfectly willing to 
work and accept an amendment that would cover what you are 
discussing right now.
    Mr. Watt. But if you have got a bill and you acknowledge 
that it has a problem, just as you acknowledged that the 
problem that was raised by Ms. Lofgren was a real problem----
    Mr. Carter. Well, I don't acknowledge that as a real 
problem. I disagree with her interpretation.
    Mr. Watt. Okay. Well, you acknowledge this one as a real 
problem.
    Mr. Carter. Potentially.
    Mr. Watt. Is there some expectation that this is going to 
be corrected?
    Mr. Carter. We can work between now and offering the--to 
get that amended, to get that amendment accepted. And I came 
ready and willing to accept that amendment.
    Mr. Watt. All right. Well----
    Chairman Sensenbrenner. Does the gentleman yield back.
    Mr. Watt. I yield back, yeah.
    Chairman Sensenbrenner. Other amendments?
    If there are no amendments, a reporting quorum is present. 
A question occurs on the motion to report the bill, H.R. 3369, 
favorably. All in favor, say aye. Opposed, no.
    The ayes appear to have it.
    Ms. Lofgren. I would like a recorded vote on that, Mr. 
Chairman.
    Chairman Sensenbrenner. A recorded vote will be ordered. 
Those in favor of reporting the bill H.R. 3369 favorably will, 
as your names are called, answer aye. Those opposed, no. And 
the clerk will call the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde, aye.
    Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye.
    Mr. Gallegly.
    [No response.]
    The Clerk. Mr. Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Mr. Chabot.
    [No response.]
    The Clerk. Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Cannon.
    [no response.]
    The Clerk. Mr. Bachus.
    [no response.]
    The Clerk. Mr. Hostettler.
    [no response.]
    The Clerk. Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Mr. Keller.
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye.
    Ms. Hart.
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye.
    Mr. Flake.
    [no response.]
    The Clerk. Mr. Pence.
    [no response.]
    The Clerk. Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King, aye.
    Mr. Carter.
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye.
    Mrs. Blackburn.
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye.
    Mr. Conyers.
    [no response.]
    The Clerk. Mr. Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman, no.
    Mr. Boucher.
    [no response.]
    The Clerk. Mr. Nadler.
    [no response].
    The Clerk. Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott, no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no.
    Ms. Jackson Lee.
    [no response.]
    The Clerk. Ms. Waters.
    [no response.]
    The Clerk. Mr. Meehan.
    [no response.]
    The Clerk. Mr. Delahunt.
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt, no.
    Mr. Wexler.
    [no response.]
    The Clerk. Ms. Baldwin.
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin, no.
    Mr. Weiner.
    [no response.]
    The Clerk. Mr. Schiff.
    [no response.]
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change their votes? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 14 ayes and 7 nos.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to.
    Without objection, the Chairman is authorized to move to go 
to conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes; 
and all Members will be given 2 days as provided by the House 
rules in which to submit additional dissenting supplemental or 
minority views.

                            DISSENTING VIEWS

    We strongly oppose H.R. 3369, the ``Nonprofit Athletic 
Organization Protection Act of 2003,'' which would extend 
immunity to nonprofit athletic organizations in lawsuits 
arising from claims of ordinary negligence to the passage or 
adoption of rules for athletic competitions and practices. 
While proponents maintain this legislation was designed to 
protect nonprofit athletic organizations from unnecessary 
litigation relating to physical safety regulations, its effects 
would all but eliminate any valid claims brought against such 
organizations, including civil rights claims. This is why the 
legislation is so strongly opposed by civil rights groups, such 
as the NAACP, Alliance for Justice, American Association of 
People with Disabilities (AAPD), Lawyers' Committee for Civil 
Rights Under Law, National Association for the Advancement of 
Colored People (NAACP), National Partnership for Women, 
National Women's Law Center, People For the American Way, and 
U.S. Public Interest Research Group (U.S. PIRG).
    H.R. 3369 is problematic for several reasons. First, under 
H.R. 3369, valid cases would be affected as well as frivolous 
claims. Second, this legislation is overly broad. It would go 
beyond the ``physical harm'' claims the sponsors state are 
intended to be encompassed by the legislation and would affect 
discrimination (including, significantly, Title IX claims), 
labor, and any other matter that arises from nonprofit athletic 
organizations' rules for practices and competitions. Third, 
this legislation provides one-way immunity--the nonprofit 
athlete organization would receive immunity yet retain its 
right to sue.
A. The legislation does not differentiate between meritorious lawsuits 
        and frivolous claims
    The broad immunity that is extended to nonprofit athletic 
organizations reaches far beyond the potential for 
``frivolous'' lawsuits. H.R. 3369 prohibits civil litigation of 
any grievance arising under the rules promulgated by a 
nonprofit sporting organization. Specifically, H.R. 3369 
exempts a nonprofit athletic organization from liability for 
harm caused by an act or omission in the adoption of rules for 
sanctioned or approved athletic competitions or practices if: 
(1) the organization was acting within the scope of its duties; 
(2) the organization was properly licensed, certified, or 
authorized for the competition or practice; and (3) the harm 
was not caused by the organization's willful or criminal 
misconduct, gross negligence, or reckless misconduct.
    So while a lawsuit filed by parents because their child was 
not put on a team may rightly be dismissed (and would be 
dismissed under current law without the benefit of this 
legislation), cases with legal merit, such as a case 
challenging a rule that endangers the life of a child, would 
also be dismissed. In effect, this legislation will bar young 
athletes and their families from having their day in court for 
an entire range of legal actions--frivolous as well as non-
frivolous. H.R. 3369 would dramatically obstruct valid, 
meritorious claims that call attention to public safety 
hazards, discriminatory practices, and are needed to protect 
our nation's children.
B. H.R. 3369 goes far beyond cases involving physical harm and impacts 
        civil rights and other cases
    Proponents of the legislation claim that it is designed to 
narrowly limit a nonprofit athletic organizations' immunity in 
``physical harm'' claims. However, the effect of the bill is 
vast and far reaching.
    First and foremost, H.R. 3369 would provide broad immunity 
to nonprofit athletic organizations in civil rights matters. As 
Professor Andrew Popper stated in his testimony before the 
Committee, ``If passed, the bill would block anti-
discrimination cases that have been used to address race, 
disability, and gender discrimination. In addition to 
destroying the opportunity for an athlete to challenge 
discriminatory practices (while placing no limit on an 
organizations ability to use courts), the bill would preempt 
state laws for no discernible reason.'' \1\
---------------------------------------------------------------------------
    \1\ Legislative Hearing on H.R. 3369, ``Nonprofit Athletic 
Organization Protection Act of 2003'': Hearing before the House Comm. 
On the Judiciary 108th Cong. 4 (2004)[hereinafter Hearings](written 
testimony of Andrew Popper, Professor of Law, American University, 
Washington College of Law)
---------------------------------------------------------------------------
    Consider the following civil rights actions brought against 
athletic organizations that would have been precluded had H.R. 
3369 been law:
     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. Educational Testing Services (ETS), designers of the SAT, 
had long cautioned the NCAA that use of a fixed cut-off score 
would have a disproportionate impact on African-American 
students. Only when African-Americans 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.\2\
---------------------------------------------------------------------------
    \2\ Cureton v. NCAA, 198 F.3d 107 (3rd Cir. 1999).
---------------------------------------------------------------------------
     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 to ride 
in a golf cart between shots at Tour events. Martin suffers 
from a circulatory disorder making it painful for him to walk 
long distances; despite appeal after appeal, the nonprofit PGA 
continued to rule that walking the course is an integral part 
of golf, and that 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. It took a lawsuit to enforce ``what 
Congress described as a `compelling need' for a `clear and 
comprehensive national mandate' to eliminate discrimination 
against disabled individuals.'' \3\ Under H.R. 3369, a 
comparable case brought against a non-profit athletic 
association would be banned.
---------------------------------------------------------------------------
    \3\ PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).
---------------------------------------------------------------------------
     In Michigan High School Athletic Association v. 
Communities for Equity, a federal district court found that 
scheduling the women's athletics 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 for female athletes. It was only through 
civil litigation that this practice of discrimination was 
publicly identified, addressed by the legal system, and 
corrected to level the playing field for all involved.
     In Williams v. Eaton, 468 F.2d 1079 (10th Cir. 
1972), several black athletes were dismissed from the 
University of Wyoming football team following a dispute over 
their plan to wear black armbands during a game with Brigham 
Young University. Under the terms of this bill, the athletes 
would not be permitted to bring the suit forward.\4\
---------------------------------------------------------------------------
    \4\ The court ultimately found that permitting the armbands would 
have been a violation of ``the First Amendment establishment clause and 
its requirement of neutrality on expressions relating to religion.''
---------------------------------------------------------------------------
     In Williams v. the School District of Bethlehem, 
PA, 998 F.2d 168, Mr. Williams wanted to try out for the field 
hockey team but was banned because the field hockey team was an 
all female team. Damages were sought by Williams under title IX 
of the Education Amendments of 1972. The 3rd Circuit court 
remanded to the lower court to find whether there were real 
differences between the males and females, which warranted 
different treatment. Had H.R. 3369 been law, this type of 
action would be precluded.
     In Pryor v. NCAA, 288 F.3d 548, the NCAA adopted a 
policy that raised academic standards for student athletes in 
their freshman year. The complaint alleged that the policy's 
real goal was to ``screen out'' more black student athletes 
from ever receiving athletic scholarships in the first place. 
The Court held that the Title VI and 42 USCS Sec. 1981 
allegations were sufficient to withstand a motion to dismiss. 
The association had considered race as one of its reasons for 
adopting the policy and the complaint alleged that the 
association purposefully discriminated against black student 
athletes because it knew policy would prevent more black 
athletes from ever receiving athletic scholarship aid. The 
association could not avoid Sec. 1981 liability simply because 
the condition of not meeting academic standards was not 
satisfied, if that condition was an alleged produce of 
purposeful discrimination.
     In Horner v. Kentucky High School Athletic 
Association, 43 F.3d 265, female athletes, filed an action 
against the state board of education and the state high school 
athletic association, alleging that defendants discriminated 
against them on the basis of sex by sanctioning fewer sports 
for girls than for boys and by refusing to sanction girls' 
interscholastic fast-pitch softball. The complaint asserted 
claims under the Equal Protection Clause and Title IX of the 
Education Amendments of 1972.
    H.R. 3369 would immunize nonprofit athletics in several 
other claims including antitrust, labor, environmental, 
defamation, fraud and numerous other actions not based on 
physical harm. The following are examples of claims that would 
not be permitted under this legislation:
     In NCAA v. Board of Regents of the University of 
Oklahoma, 486 U.S. 85, the Athletic Association adopted a rule 
to reduce the number of football games that could be televised. 
The University of Oklahoma objected to the rule and negotiated 
a contract to allow a liberal number of games to be televised. 
NCAA took disciplinary action, and a suit followed stating that 
the NCAA engaged in Sherman Act violations. The Supreme Court 
held that the NCAA plan constituted a restrain upon the 
operations of the free market and that its television plan had 
a significant anti-competitive effect.
     In Tiffany v. Arizona Interscholastic Association, 
Inc., 726 P.2d 231, a student filed a suit against the Arizona 
interscholastic association competition requesting that the 
associations be enjoined from disqualifying Tiffany from 
interscholastic athletic competition and that the association's 
actions be declared unconstitutional as a denial of due 
process. The lower court granted a preliminary injunction and 
found that the association acted unreasonably in considering 
Tiffany's waiver from disqualifications and that Tiffany had a 
sufficient liberty interest in high school athletics so as to 
have rendered associations's denial a constitutional violation. 
The court held that the association did act arbitrarily in 
exercising its discretion in denying Tiffany's waiver because 
although the association's bylaws allowed for a waiver of 
disqualification upon the showing of hardship, the association 
also had a policy of not making any exception to an age 
eligibility requirement under which Tiffany took exception.
    This legislation would 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. While the sponsors claim their 
true intent was to eliminate physical harm claims, the 
legislation, as drafted, eliminates any and all civil actions 
relating to practices and procedures of a non-profit athletic 
organization.

C. H.R. 3369 provides one way immunity

    Significantly, while immunizing nonprofit athletic 
organizations from civil claims, H.R. 3369 protects the right 
of a nonprofit athletic organization to sue others.\5\ If this 
legislation is designed to suppress unnecessary litigation 
altogether, it fails to describe how an organization's 
grievances are legitimate but individual complaints are not. 
Written to suppress the only outlets available to athletes and 
their families, this legislation is overreaching. It is unfair 
to provide that these organizations be allowed to have their 
day in court while limiting the ability of individual athletes 
and others to hold them accountable.
---------------------------------------------------------------------------
    \5\ H.R. 3369, sec. 3(b).
---------------------------------------------------------------------------

                               CONCLUSION

    As we have in the past, we are willing to work with the 
Majority to develop reasonable legislation that protects non-
profit groups from unnecessary litigation while insuring that 
meritorious claims are protected. H.R. 3369 however, does not 
meet this test. Instead of protecting good faith and reasonable 
actions by non-profit athletic associations designed to protect 
athletes from physical harm, the bill massively overreaches and 
cuts of legitimate actions for civil rights and other matters 
having nothing to do with physical harm.

                                   John Conyers, Jr.
                                   Bobby Scott.
                                   Maxine Waters.
                                   Tammy Baldwin.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Robert Wexler.
                                   Linda T. Sanchez.

                                  
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