[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\
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\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.
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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\
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\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.
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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.
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\11\ Pub. L. No. 105-19; codified at 42 U.S.C. Sec. 14503 et. seq.
(2003).
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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.
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\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).
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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.
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\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.
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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\
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\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.
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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.
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\20\ Work v. National Federation of State High School Associations,
Arizona--Maricopa County, AZ, Docket #CV00-008646.
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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
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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\
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\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.