By Dave Byrd, NSAA Director of Risk and Regulatory Affairs
This article was initially published in Ski Patrol Magazine, a publication that is a benefit for members of the National Ski Patrol. To learn more about membership, click here.
The Safe Sport Act recently passed by Congress is requiring big changes in protocols for the entire spectrum of youth amateur athletic programs. From now on, how ski areas, clubs, teams, athletic organizations — and the volunteers who support them — work is no longer business as usual.
Many of you — whether volunteer or pro patrollers — probably have not heard of new federal legislation that overwhelmingly passed Congress last year called the Safe Sport Act. The legislation stems from physical and sexual abuse within youth amateur athletic programs, and it will have profound impact on ski area operations — as well as tremendous legal exposure for non-compliance with the strict requirements of the law.
First, some background on how this powerful new law came into being.
In March 2018, a Michigan judge sentenced Larry Nassar, M.D., the national medical coordinator for USA Gymnastics, to 125 years in state prison for sexually assaulting athletes who were minors. This was just the tip of the iceberg. Additionally, there were criminal charges against Dr. Nassar involving more than 265 separate girls, an exposé on 60 Minutes, and an onslaught of international media scrutiny, not to mention the resignation of the entire board of directors for USA Gymnastics along with the resignation of both the president and athletic director of Michigan State University, where Dr. Nassar also worked.
In a separate federal criminal case, a federal court sentenced Dr. Nassar to 60 years of federal prison on separate child pornography charges, and there are now more than 150 separate state and federal lawsuits filed against Dr. Nassar, Michigan State University, USA Gymnastics, and the U.S. Olympic Committee.
While Dr. Nassar’s sexual molestation and abuse of young gymnasts is an extreme example, it is far from an isolated event. Jerry Sandusky, an assistant football coach under Joe Paterno at Penn State University, is serving a life sentence in state prison for sexually molesting dozens of boys involved in youth football events, including nonprofit organizations (staffed by scores of volunteers) that Sandusky championed to create opportunities for disadvantaged youth. Prosecutors claimed he really wanted to build parental trust and in turn create opportunities for molestation instead.
Such scandals even extend to ski racing. Several young Canadian female ski and snowboard racers competing under the auspices of Alpine Canada (the country’s national governing body for competitive skiing and boarding) raised claims of sexual abuse against the team’s women’s ski coach. In 2018, the coach was ultimately criminally charged with 57 claims of abuse — girls as young as 12 years old, including one who became pregnant — and he was sentenced to 12 years in prison.
The shocking extent of the abuse and molestation of young victims in amateur sports could have been limited if those in leadership positions across the full spectrum of athletics — coaches, assistant coaches, trainers, athletic boosters, medical providers, first responders, even day-to-day volunteers — had reported or encouraged the reporting of allegations and suspicions about Nassar and Sandusky to the authorities, but they didn’t, and the number of their victims — and the extent of physical and emotional damage they inflicted — is staggering.
In response, Congress passed new federal legislation earlier this year titled “The Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act” (commonly referred to as the Safe Sport Act). The impetus for the Safe Sport Act (SSA) was so compelling, it passed the U.S. House of Representatives 406 to 3, reflecting the level of outrage over abuses in youth athletics (by way of comparison, the vote to enter World War II was 388 to 1).
Congress’ enactment of the SSA will broadly impact the culture of youth athletics moving forward and could dramatically impact how ski areas interact with competitive athletes, day camps, special events, hosting facilities, school groups, country clubs, and possibly even our relationships with instructors and students in ski and snowboard lessons. It’s important to recognize how this law impacts ski patrol and first responders — both pro and volunteer —and their ski resorts.
The law incentivizes organizations to make sweeping changes to wider relationships in overall athletics and will expand the use of background checks across the sporting community, as well as with businesses, employees, and volunteers.
At a bare minimum, SSA will increase requirements for reporting of suspected abuse and will require covered entities to develop training and reporting protocols and adopt extensive policies to prevent abuses. The law has especially tough liability provisions for non-compliance, which Congress intentionally designed to force organizations, athletic groups, recreation providers, and businesses working with amateur youth groups to pay extremely close attention to this growing problem.
While the law has only been on the books for a year, without application or interpretation by the courts, the National Ski Areas Association (NSAA) has analyzed it and provides the following Q&As to help ski areas and volunteers understand the new changes and prepare for the ongoing evolution our sport — and all youth athletic programs — will undergo as a result of the new law.
What does Safe Sport mandate for those involved with youth athletics?
In short, the SSA will require mandatory reporting, mandatory prevention training, and mandatory abuse prevention policies. It also expands the list of those who will be deemed to be “mandatory reporters” under the law.
The SSA requires an extremely broad swath of individuals and organizations involved in youth athletics to develop new protocols for training on sexual, physical, and emotional abuse of youth athletes. This training is mandated for everyone involved in youth athletics — coaches, doctors, race officials, volunteers, chaperones, even school groups and hosting facilities and event venues. The SSA will also require the adoption of regulations or policies (as well as enforcement and auditing of these regulations) designed to prevent such abuse within an organization.
With all these new “mandates” under Safe Sport, there are equally important indirect changes that will broadly impact those involved with youth athletics.
Who is covered by Safe Sport?
Safe Sport expands the definition of who is considered a mandatory reporter of abuse to include any adult who is authorized to interact with youth athletes. That certainly will extend to coaches, race officials, technical delegates, judges, medical providers, first responders, employees of hosting facilities — and yes, even volunteers like ski patrol, parents, and travel chaperones, as long as they are “authorized to interact with the youth athletes” in organized competitions covered by the law.
U.S. Ski & Snowboard (USSA) — as America’s national governing body for skiing and snowboarding in national and international competitions — has already developed training tools, educational videos, background checks, rules, and codes of conduct for adults involved in their competitions and programs. Visit USSA’s Safe Sport page to learn more about the organization’s Code of Conduct, background screenings, and training and coaching tools for prevention and compliance with Safe Sport.
When must suspected abuse be reported?
Covered individuals, entities, employers, and hosting venues must report suspected abuse — and abuse is very broadly defined to include physical, sexual, and emotional abuse — to appropriate local law enforcement or social service agencies, as well as to the national governing body’s Safe Sport center for each sport, within 24 hours. Safe Sport does not dictate which local authority (sheriff, state child protection services, etc.) the abuse must be reported to, but most states have social services or child abuse prevention organizations and hotlines at the local and state level.
For patrollers and first responders, reporting the suspected abuse could be achieved by notifying a ski area general manager, patrol director, or human resources — most ski areas will want to manage any reporting by higher level management.
Must there be actual knowledge of abuse?
No, the law explicitly extends to any suspicions of abuse — even if unconfirmed — which is a crucial distinction. No longer can coaches or volunteers or others involved in protecting predators and abusers hide behind the notion that there was no definitive proof or evidence of abuse. In fact, SSA provides legal protections to reporting individuals and organizations for claims of defamation or slander from those alleging wrongful reporting and enacts rules to prohibit retaliation against anyone reporting such suspicions of abuse. The requirement to report any suspicion of abuse is intended to discourage organizations from, and penalize them for attempting to avoid the potential for scandal and protect the privacy of individuals or the organization, based on the fact that they do not have confirmed facts of abuse. It is now a crime to self-adjudicate sexual and physical abuse allegations “in house,” instead of going to local law enforcement authorities.
Here, the law is especially broad. Reporting requirements extend beyond suspected sexual and physical abuse to emotional abuse, harassment, bullying, and hazing. The intent of the law is to require those involved in youth athletics to err on the side of reporting such abuses.
Does this law extend to volunteers?
Yes, if the volunteer is authorized to interact with a minor amateur athlete, even if only providing first aid or medical treatment or general assistance to an amateur athletic event. This could create exposure for volunteer ski patrollers, race officials, parents, and chaperones if they have not been trained on the requirements of Safe Sport.
However, not every volunteer — especially those who step in at the last minute to assist in an event or competition — is going to have the requisite training completed if they are tagged to assist because another person does not show up or cancels.
Notably, USSA has adopted a policy for what they call “spontaneous volunteers:” If a last-minute parent or adult steps in to assist in a race in a singular, one-off type of occasion, USSA’s policies under Safe Sport would not require that adult or volunteer to go through Safe Sport abuse training and education prior to the event. This seems like a realistic, workable solution for these last-minute circumstances where many volunteers and parents pitch in to help without having gone through training or background checks.
Are there any limitations on Safe Sport’s jurisdiction?
Yes — the SSA only extends to amateur athletic organizations involved in interstate competitions and events (e.g., a New Hampshire competitor involved in a Vermont race or event). Generally speaking, since Congress passed this law there must be a component of interstate activity to give Congress jurisdiction to legislate in this manner. Many youth amateur athletic events will likely involve out-of-state participants. As a result, if a state high school group holds a race like the Colorado High School Skiing Championship (which does not allow competitors living in or attending Utah high schools), technically such an event is not covered by the law. Still, out of an abundance of caution, we anticipate many state events and competitions will incorporate similar requirements.
The reach of this law technically only applies to sports organizations that travel across state or international lines (Canada, for example). However, even in non-intrastate competitions, Safe Sport dramatically expands the overall standard of care for youth athletic events everywhere.
Would Safe Sport cover a Dew Tour, Tough Mudder, or related sponsored events?
Arguably, yes, especially if there are minor athletes involved, including athletes from outside the state (interstate travel is a key component of the law). The law is especially broad and covers “amateur sports competitions,” which are defined by the law as “a contest, game, meet, match, tournament, regatta, or other event in which amateur athletes compete.”
As a result, Safe Sport would cover the hosting facility (e.g., a ski area), the event organizers, the coaches, the race and event officials, the medical providers, and so on. This would also cover ESPN’s X Games, the Burton Tour, Tough Mudders or Spartan Runs, mountain biking races and events, and other events that allow minors to be involved in organized competitions. Even your resort’s end-of-season pond skim could be covered if there are minors and participants from out of state.
As a result, hosting facilities like a ski area would be wise to include compliance with Safe Sport — as well as indemnification and additional insured status in claims for non-compliance—as part of their contracts and hosting agreements in a wide variety of events involving amateur youth athletes. In addition, seeking higher insurance coverage levels may be part of this equation.
What kind of training is required?
Safe Sport requires covered entities to provide ongoing and consistent training in “abuse prevention.” In fact, the training extends not only to sexual abuse, but physical and emotional abuse training for anyone in regular contact with amateur athletes who are minors. Moreover, this will require training of any minors involved with youth athletes (think teenagers assisting in coaching or officiating), as long as those minors have parental consent for such training.
Importantly, the training must include “preventative” measures — in addition to training on mandatory reporting, it will also need to include identifying such abuse, warning signs, prevention techniques, and understanding the abusive, predatory “grooming” practices used by abusers and pedophiles.
Much of this training already exists and has been developed by organizations like USSA, state and local scholastic athletic organizations, and insurance companies (if your ski area is insured by MountainGuard, they have a free service through a company called Praesidium that provides excellent video training specific on Safe Sport issues). Also, the U.S. Department of Health and Human Services has developed manuals for childcare providers to address their role in preventing and responding to child abuse.
What new policies will be required?
Safe Sport will require national governing bodies for sports, organizations, teams, athletic groups, and venue/hosting facilities to develop procedures and rules to limit one-on-one interactions between adults and minor athletes. The law specifically requires organizations to develop procedures to prevent interactions with a minor athlete and an adult “without being in an observable and interruptible distance from another adult, except in emergency circumstances.”
In addition to mandatory reporting and training requirements, the requirement to develop procedures and policies to limit opportunities for abuse is especially impactful for ski areas and their athletic programs, especially in lodging, travel, and changing facilities. This may encourage more resorts to consider background checks as one tool.
Covered entities should also develop oversight procedures, including auditing protocols for ensuring adherence and enforcement of these rules, as well as confidentiality and anti-retaliation rules protecting those reporting abuse from any sort of discipline or negative consequence for reporting suspicions of abuse.
What are penalties or consequences for non-compliance?
Safe Sport has especially strict criminal and civil penalties for non-compliance and will provide plaintiffs’ attorneys a new statute for pursuing claims against sporting and recreational providers. In fact, the SSA amends existing federal legislation called the Victims of Child Abuse Act, enacted in 1990. The federal Child Abuse Act did not result in sweeping changes to youth athletics as initially intended.
As a result, Safe Sport expands both civil and criminal penalties. For example, the law expands the statute of limitations for violations to 10 years from the date the victim discovers the violation and extends the ability of a youth to file a civil action up to 10 years after they turn 18. This is an unusually long statute of limitations; by comparison, most negligence tort claims for traditional physical injuries are typically two to four years in most states.
SSA also specifically authorizes victims to bring civil actions in federal court and to obtain a minimum of liquidated damages of $150,000 for non-compliance as well as other damages (medical, pain and suffering). More importantly, the SSA allows victims to also recover their attorney’s fees and punitive damages. This alone will incentivize not only victims, but also plaintiffs’ lawyers, to drive lawsuits against the large number of people and organizations at issue, especially those with deep pockets.
Notably, as professional or volunteer patrollers, the main insurance companies within the ski industry — MountainGuard, Safehold, Alpine Shield, and others — typically will extend the resort’s general liability insurance coverage to cover the resort’s patrollers, whether paid or volunteer. (This would also include providing costs of legal defenses or deposition preparation.)
However, while individual policy language may vary by insurer, to trigger coverage most insurance policies generally require that volunteers were acting within the scope of the volunteer’s certification or training, and some policies may not provide coverage for criminal charges, so always check with your ski areas to clarify how insurance coverage applies to ski patrollers and Safe Sport issues.
Does Safe Sport require background checks?
Background checks are not required by Safe Sport. However, because of their protective value as a risk management tool, particularly with claims for negligent hiring and negligent supervision claims with employees, more businesses are using them. While they are not required under the SSA, they are required by many state laws, particularly for child care centers and others who work directly with children.
In fact, more and more businesses and organizations are resorting to these as one tool — of many — of a broader program for child abuse prevention. Even Uber, Lyft, and Angie’s List are touting their use of background checks as part of their corporate cultures and outreach to consumers. In fact, expect more organizations to use or expand their number of background checks in response to the Safe Sport’s broader efforts to improve the culture of abuse prevention with youth athletics. USSA and other sporting organizations have been using background checks with coaches, race officials, and TDs for years.
Background checks are not a silver bullet. According to federal statistics, only 5 percent of sexual offenders have criminal histories; for the remaining 95 percent of abusers, they have yet to be reported, charged, or convicted. Also, it is important to understand that the Fair Credit Reporting Act (FCRA) requires that organizations obtain written consent from an individual before conducting a background check.
Be careful — there are exposures when using background checks, including misusing the information, incomplete record checks, and slander from the release of one’s sensitive information to others in an organization. Therefore, it’s important to maintain strict confidentiality of all records and information. Pursuant to the FCRA, someone denied a job due to screening must be provided a copy of the background check. These are just some of the many exposure issues with the use of background checks, and there are many other considerations.
That said, expect more organizations to embrace a broader use of background checks. They may become required by new state laws down the road, or increasingly pervasive among businesses and sporting organizations. While they are not required under Safe Sport, background checks are growing in significance and should be part of the conversation for developing protocols for child abuse prevention and mitigation.
Would this new law apply to ski school lessons?
No, for several reasons. A ski lesson is not an organized youth athletic event or competition and often would not involve interstate travel — both key aspects of the law. As states rush to adopt similar legislation, it will be important for NSAA and state and regional ski area associations to carve out exemptions at the state level to limit exposures for ski school and lessons. When states adopted concussion awareness laws (all 50 states adopted such laws a few years ago), ski lessons and related recreational instruction programs were exempted from such concussion training laws.
Would Safe Sport apply to NSP’s Young Adult Program?
Arguably, no. First, NSP’s Young Adult Program (YAP) does not appear to be any sort of “competition” or “athletic event” as defined under the Safe Sport law. Remember, Safe Sport only covers “amateur sports competitions,” which are defined by the law as “a contest, game, meet, match, tournament, regatta, or other event in which amateur athletes compete.” The interactions between adult ski patrollers and YAP members do not constitute such competitions or athletic contests.
Safe Sport should not discourage ski patrols from embracing young adult patrollers. However, from a broader societal standpoint, the SSA will certainly encourage the adoption of equivalent Safe Sport legislation at the state level. More importantly, the general societal consensus — including the #MeToo movement — has rightfully created an atmosphere of overall sensitivity to concerns when adults act with youths, particularly male/female interactions.
While there would arguably be no criminal or civil consequences under Safe Sport emanating from inappropriate relationships or abuse between adult and youth patrollers, there may be other important considerations and laws that could legally impact such relationship, including criminal assault, labor and employment laws, and discrimination, not to mention the media or reputational damage to yourselves or your ski area. Adopting policies and ethical codes of conduct with your YAP patrol would be wise.
Are there separate laws for U.S. Forest Service ski areas?
Pursuant to the Crime Control Act of 1990, the U.S. Forest Service issued rules in 2014 requiring entities operating under special use permits on Forest Service land (including the 122 ski areas in the U.S.) to incorporate training and child abuse prevention for anyone who works with children under 18, including coaches, instructors, and childcare employees.
Notably, the Forest Service rules only mandate training on child abuse prevention. Unlike the Safe Sport, the USFS’s child abuse training mandate does not include mandatory reporting requirements. Similarly, Forest Service rules do not require background checks, unless such background checks are required by state law. To learn more, visit NSAA’s website to read about the child supervision rules from the Forest Service.
Given that the Safe Sport is so new, many issues remain unresolved, and it will take time to clarify parts of the law through the courts. The essential point is that Congress, most states, nearly every major sporting and athletic group — and especially the athletes and their families — are demanding much more serious attention be paid to the issues of abuse in sports. This evolution will require a total reconsideration of overall operations, procedures, and policies with youth athletics at your resort.