LANE ONE: USOPC tries self-vaccination to ward off possible Congressional surgery over governance

Over the last 150 years, medical science has created solutions for many diseases which have plagued people for centuries. We often take these miracles of research for granted, but most Americans receive vaccinations against all kinds of threats almost from the day we were born.

It’s much better to ward off potential killers like diphtheria, polio, hepatitis and many others before they become a problem. So the United States Olympic and Paralympic Committee (USOPC) took steps on Tuesday to protect itself against invasive surgery by future Congressional legislation by proposing a lengthy list of changes to its by-laws that will align it with the desires expressed by the Empowering Olympic and Amateur Athletes Act of 2019 created by Senators Jerry Moran (R-Kansas) and Richard Blumenthal (D-Connecticut).

In addition, the USOPC-commissioned Borders Commission Report also suggested many changes in structure, policies and procedures and some of these were included as well.

The USOPC’s Public Notice and draft text runs to 92 pages and the introduction spells out the limitations of what changes to the USOPC’s governing documents can do:

“[N]early 200 recommendations have been compiled in three significant areas:

“- Curating an athletes-first culture
“- Ensuring athlete safety and well-being
“- Requiring accountability for the USOPC and its member organizations.

“Not all of the recommendations are governance-related, nor are all immediately actionable, but a consensus has emerged on those that are both. These are reflected in the proposed amendments below.”

The text of the proposed changes – quite dull, but now in a public comment period for 60 days – includes:

Board Structure

The Borders Commission called for a 13-member USOPC Board, with three athletes elected by the Athletes Advisory Council, two former athletes elected by the U.S. Olympians and Paralympians Association, three reps from the NGBs and five independent directors. That’s exactly what is proposed, with additions of ex-officio members including the U.S. members of the International Olympic Committee, the International Paralympic Committee, the chair of the U.S. Olympic and Paralympic Foundation (non-voting) and the USOPC Chief Executive (non-voting).

With five athletes – three “current” athletes from the AAC and two older athletes from the Olympians & Paralympians Association – on the Board, a voting share of 33% is mandated, as recommended in the Moran-Blumenthal bill.

The selection of Board members from the Athletes Advisory Council, the National Governing Bodies and the U.S. Olympic and Paralympic Association will be up those bodies, but with specific election procedures. The Board members from the USOPA may have been Olympic or Paralympic athletes “at some point in their lives,” instead of the current reference in the Ted Stevens Olympic and Amateur Sports Act defining “athletes” as those who have represented the U.S. within the preceding 10 years. This provision was also in the Moran-Blumenthal bill, but applied more widely to the Athletes Advisory Council; this is not in the proposed changes.

A program of Board member training and evaluation of the performance of Board members is to be instituted through the Nominating and Governance Committee; this has also been suggested by Congressional witnesses as a way to better hold the USOPC Board accountable.

● National Governing Bodies

A long list of changes to the responsibilities of the NGBs is included, creating much tighter oversight by the USOPC as required by the Moran-Blumenthal bill and as recommended by the Borders Commission.

National Governing Bodies are explicitly required to maintain good governance practices, have a code of conduct for employees, ethics policies, “demonstrate an organizational commitment to diversity and inclusion,” post financial statements and IRS Form 990 tax returns (for non-profit corporations), and comply with the U.S. Center for SafeSport and U.S. Anti-Doping Agency regulations. Grievance procedures and whistleblower protections are also mandatory.

NGBs are charged with creating and implementing “a strategic plan that is capable of supporting athletes in achieving sustained competitive excellence, and in growing the sport,” “establish clear athlete, team, and team official selection procedures” and “maintain and implement effective plans for successfully training Olympic, Paralympic and Pan American Games athletes.” These elements are not further defined in the proposal and, as written, are sure to lead to challenges to NGB certifications by members – athletes, coaches and others – who are not satisfied with the standing, funding or profile of their sport in the U.S.

Many of these items were listed before, but there is greater detail here and a notice that “These standards and the particular measures to be used in evaluating compliance with them will be set out in the corporation’s NGB Certification Standards Policy approved by the Board and administered by the corporation’s NGB Audit team.” The USOPC’s “NGB Compliance Team” will be responsible to oversee “potential or actual failures of any NGB” with these regulations.

Audits will be annual, with requirements phased in during 2020 and fully applicable in 2021. This is much more aggressive than in the Moran-Blumenthal bill, which required audits of all 50 NGBs within each four-year period.

Also, anyone within an NGB, or affected by an NGB, can ask the USOPC to investigate and take action concerning NGB compliance.

Athlete representation on NGBs Boards and committees was maintained at 20%, which is somewhat surprising given the Moran-Blumenthal suggestion of 33%. However, the proposed regulations do provide more independence to the Athletes Advisory Council, except, of course, where more money is involved.

● Athlete Grievances

Minor changes were made to the grievance procedure, but they will now be handled by a USOPC “dispute resolution team” rather than the legal division. Arbitrations do not need to be handled by offices of the American Arbitration Association, but can be any designated arbitrator.

The USOPC’s “office of Athlete Ombudsman” is defined to provide “information, support and guidance to athlete members of NGBs.” To further this, the bylaws require the USOPC to provide a fund for use by athletes “lacking adequate resources” to file disputes against an NGB. This was a specific request made by Athletes Advisory Council Han Xiao in his Congressional testimony and should be welcomed by athletes. However, there is no amount specified in the proposed Bylaws.

● Reports to Congress

The new language requires the USOPC to submit reports to the Congress annually instead quadrennially, and allows the Athletes’ Advisory Council and the National Governing Bodies Council to submit their own supplements. This is as listed in the Moran-Blumenthal bill.

Will all this really make a difference?

In some ways, yes. The changes which are proposed meet many of the requests of Xiao – representing the Athletes Advisory Council – in his Congressional testimony, but certainly not all. The compliance requirements for NGBs are much higher and there will be turmoil somewhere until one or more compliance complaints about whether a specific NGB is developing athletes or promoting its sport properly.

There is more independence for the AAC and more funding to support athlete grievance complaints, also a specific request of Xiao and included in the Moran-Blumenthal bill.

Many suggestions of the Borders Commission were also included, although their approach to multiple issues concerned funding and support and are not addressed by changed in the by-laws.

There are already loud critics of the proposed by-law changes out there, but the only reviewers who count are Senators Moran and Blumenthal, and the House of Representatives sub-committee which is still to consider the USOPC’s future under new chair Diana DeGette (D-Colorado).

This is a good first step for the USOPC; it could have taken a stronger vaccine … and may have to in the coming months. But for now, it can truthfully say that it has listened and proposed change. That’s good.

Rich Perelman