(Editor’s Note: What follows is an excerpt from More Than Play: How Law, Policy, and Politics Shape American Youth Sport, published by the University of California Press and written by Dionne Koller, Professor of Law and Director of the Center for Sport and the Law at the University of Baltimore. The book can be published at https://www.ucpress.edu/books/more-than-play/paper or https://www.amazon.com/More-Than-Play-Politics-American/dp/0520399269/ref=tmm_pap_swatch_0?_encoding=UTF8&qid=)
Youth sport operates at the crossroads of the law of the child and family and the law of sport. As the previous chapters explain, these two areas are shaped by formidable assumptions that impact children’s sport experience. The law assumes that sport sponsors are entitled to deference because they are the stewards of what makes the games special. Moreover, while the law assumes parents act in the best interests of their children, as explained below, the law also assumes that the interests of children are advanced by and aligned with the interests of sport sponsors. With these understandings, we can appreciate the final piece of the law and policy that greenlight our current approach. This is the preference for encouraging participation in, but generally not funding or regulating, grassroots youth sport.
To begin, as chapter 1 explains, no single entity has jurisdiction over youth sport. Therefore, just as it is difficult even to define youth sport, it is also challenging to map in full the legal and policy terrain. It is perhaps most useful to start with what, from a law and policy standpoint, grassroots youth sport is not. Broadly speaking, law and policy aimed at grassroots youth sport may target two areas: providing opportunities to participate and regulating the experience. Federal and state governments, by and large, do little of either.
Without a sports ministry or similar government agency overseeing U.S. sport, there is no federal entity charged with funding, regulating, or setting a uniform standard for youth sport. Indeed, researchers have noted that the U.S. federal government has had little interest in funding or regulating the safety of children’s sport or otherwise ensuring the availability of youth sport opportunities. Moreover, while states regulate in a host of areas involving children, they too generally have no overall policy or strategy to ensure widespread, safe, developmentally appropriate grassroots youth sport participation.
This is not due to lack of power. The federal government has ample authority to regulate grassroots youth sport through, for instance, its powers under the Constitution’s Commerce Clause, which permits Congress to regulate matters that affect interstate commerce, as much of youth sport does. Indeed, with this power Congress has enacted statutes instructing federal agencies to regulate a host of products aimed at children, such as toys and other children’s items, television programming, and the internet. Congress could further shape sports participation in schools by also using its spending power, as it did with prohibitions on sex discrimination through Title IX, race discrimination through Title VI, and discrimination against individuals with disabilities under the Rehabilitation Act. Through this power, Congress could condition receipt of federal financial assistance on meeting minimum safety or participation goals. The federal government instead chooses to limit its youth sport efforts to collecting data, promoting participation “through public figures,” and providing some grant funding.
States also may regulate youth sport through their general police and parens patrie powers (explained in chapter 2). In addition, both the federal government and states certainly have the authority to fund grassroots youth sports expansively (and, in the case of sport occurring in public schools, states do). As with other areas where federal and state law regulates children’s experiences and products, legislatures would have strong policy justifications for setting at least some standards for the youth sport experience. As explained below, however, the presumptive hands-off policy approach to sport generally has been applied to youth sport, revealing that, in the eyes of the law, the activity is more sport than youth.
Our Youth Sport Policy
While there is no public entity setting policy for youth sport, there is no shortage of government enthusiasm for the activity. As explained in chapter 1, high-profile federal government promotion of youth sport began in 1953, when President Dwight Eisenhower created the President’s Council on Youth Fitness in response to reports of the poor state of youth physical fitness in the United States. The council was to be a “catalytic agent” focused on creating public awareness of the benefits of youth physical fitness. President Lyndon Johnson continued this effort, changing the name to the President’s Council on Physical Fitness and Sports to encourage greater youth fitness through participation in sports. Subsequent administrations established the “Presidential Sports Award” to spur children’s participation in physical activity, issued executive orders seeking to encourage participation in youth sport, and provided grant funding for the National Youth Sports Program. More recent presidential administrations have continued to promote awareness and involvement in youth sport to enhance physical fitness, and in 2002 President George W. Bush issued an executive order directing the Department of Health and Human Services (HHS) to “develop and coordinate” a national program to stimulate sports participation and physical fitness as well as good nutrition. The goals of the President’s Council have largely been limited to promoting awareness and generating interest in sports participation. The council does not have the authority to create a youth sports structure that would ensure greater access or regulate the opportunities that are currently provided.
In addition to the work of the President’s Council, other executive branch initiatives promote the benefits of youth sport. For instance, the Council of Economic Advisers issued a report in 2018 encouraging youth sport participation because of the potential it could foster for long-term positive “labor market outcomes.” More recently, the HHS Office of Disease Prevention and Health Promotion, through its Healthy People 2030 program, set a national objective to “increase the proportion of children and adolescents who play sports.” The report sets a target participation rate of 63.3%, which it states will generate health benefits and increase children’s academic, social, and long-term economic prospects. The National Youth Sports Strategy (NYSS), released by the HHS in 2019, states that the government’s goal is
to increase “youth engagement” with areas of sport showing lower rates of participation and otherwise support “U.S. youth sports culture” so that, ultimately, all children “have the opportunity” and “motivation” to participate.
In addition to these executive branch efforts, members of Congress have introduced countless bills and resolutions to encourage youth sport participation. There exists a “Congressional Caucus on Youth Sports,” and members of Congress have introduced numerous resolutions to endorse the benefits of youth sport. Legislation has provided grant funding for youth sport programs as part of, for instance, the war on drugs and as a strategy to assist “low-income youth.” Congress has recognized “National Youth Sports Week,” “Youth Sports Safety Month,” and the contributions of adults who are involved in youth sport. Members of Congress have also introduced bills to provide tax incentives to enroll children in sport. In addition, Congress has supported youth sport through initiatives such as incorporating Little League baseball and granting liability protections for volunteers who serve in nonprofit and other associations, including youth sport organizations. Youth sport is even promoted through the tax code. The Internal Revenue Code grants tax-exempt status to “amateur sports organizations.” Most recently, members of Congress introduced the PLAYS in Youth Sports Act, which would direct the HHS to establish a $75 million annual grant program to support and encourage youth sport participation.
States also strongly encourage participation in grassroots youth sport. As discussed more fully in chapter 7, this encouragement often comes in the form of promoting youth sport tourism. Reflecting this trend, the Illinois legislature enacted the Commission on Amateur Sports Act, establishing a state commission to ensure the “promotion, development, expansion, hosting, and fostering of amateur sports . . . events and tournaments.” The commission is charged with creating “business opportunities” and “economic development” relating to “amateur sports” and, to meet this goal, is tasked with holding “workshops, training, and conferences” to “increase youth participation in [sport]” and “support[ing] and encourag[ing] the development of sports tourism.” Similarly, the Maryland legislature created the “Youth and Amateur Sports Grants Program,” which offers state funding to help offset the costs of bringing “new youth and amateur sporting events to the state,” as well as to “attract sports fans, participants, and tourists.” Other states, such as Indiana and Florida, have also invested heavily in supporting youth sport tourism, while some encourage participation through mentoring or other programs meant to draw children into sport.
A Privatized System
The government’s policy to encourage children to participate in sport has long been accompanied by a heavy reliance on the private sector to provide the opportunity, and youth sport participation has grown steadily over the past several decades. This growth has led to greater privatization, so that today, as previously explained, most youth sport programs are operated by private, not government, entities through a “pay-to-play model.”
Congress endorsed a privatized approach to youth sport in 1978 through the Ted Stevens Act. Policy discussions around the statute demonstrate that sport advocates and policy makers thought of widespread grassroots youth sport participation as a key way to ensure U.S. international sporting success. At the time, the vision was to develop Olympic talent through a pyramid structure of sports settings, with the base being grassroots youth sport, so as to bring large numbers of children into the system and help the most talented to emerge and ascend.
The executive director of the USOPC lobbied Congress for federal funding, arguing that it was necessary to the development of a “successful amateur sports program” that could “provide broad-scale . . . opportunities for a maximum number of individuals at all ages and all levels of ability” and that such a program would be a “deterrent to many of our current social problems” and would help develop “the individual” and “society.” However, while grassroots youth sport participation was viewed as necessary for U.S. Olympic success, Congress rejected the recommendation to fund widespread sport participation, choosing to allow the existing youth sport system—with a host of private and some public providers, including schools—to continue.
Congress instead made a gesture toward at least some coordination of grassroots youth sport and development of youth sport participation opportunities by including it in the USOPC’s purposes. The statute lists among the USOPC’s purposes that it must “establish national goals for amateur athletic activities,” “promote and encourage physical fitness and public participation” in sports, and “assist . . . in the development of amateur athletic programs” and “foster the development of amateur athletic facilities.” To achieve its objectives, the Ted Stevens Act provided that the USOPC would recognize private NGBs for each Olympic sport, and charged these entities to develop grassroots youth participation.
The legislative history of the Ted Stevens Act, both at the time Congress originally enacted it and through subsequent hearings and revisions, reinforces the notion that Congress intended the USOPC to have significant responsibility for developing grassroots youth sport. However, Congress did not provide the USOPC with the power and funding to enable it to carry out that responsibility. Although the act granted the USOPC “exclusive jurisdiction” over U.S. participation in the Olympic, Paralympic, Pan-American, and Parapan-American Games, it did not give the USOPC similar power over grassroots youth sport. Thus, youth sport that occurs outside the NGB structure, through private groups such as the AAU, are not within the USOPC’s purview, and the USOPC has no authority to regulate their activities. Similarly, the USOPC does not have authority over school sports, which are left to state high school athletic associations and their member institutions. Rather, Congress tasked the USOPC with simply encouraging youth sport participation.
Accordingly, without clear direction or government funding, the USOPC has, over time, effectively limited its mission to developing elite Olympic (and later Paralympic) talent and has done relatively little to support grassroots youth sport. Congress acquiesced to this approach by not acting on numerous pleas to provide the USOPC with adequate funding to support the effort. For example, in 1995 congressional hearings on issues in the U.S. Olympic and Paralympic Movement, then USOPC president LeRoy T. Walker testified: “The other major issue . . . which has become critical in the years since the passage of the Amateur Sports Act of 1978, is the grassroots programs and opportunities for youth across this nation. The [USOPC] has never shirked this responsibility, nor have we ignored this mandate. . . . The fact remains, however, that we cannot be all things to all people with a limit to our financial resources.”
Walker went on to say that no other nation’s Olympic committee faced the task of also supporting grassroots youth sport. At the same hearing, Tom McMillen, co-chair of what was then known as the President’s Council on Physical Fitness and Sports, pointedly testified to the way law and policy shaped the current state of grassroots youth sport and challenged the notion that the government, in fact, took a hands-off approach to sport:
As a nation, we have done little more than pay lip service to grassroots sports opportunities. . . . Our government policies have helped develop and maintain an elite sports structure of significant support for the Olympic Games, professional sports monopolies, tax breaks for mega-stadiums, and antitrust exemptions for pro teams. In contrast, our government is doing next to nothing for the masses. . . . Some argue that the government should have no role in sports. . . . In fact, . . . our government has created our upside down priorities that are skewed to elite athletes.
Little has changed since McMillen’s testimony. While the federal and state governments urge children to participate in sports, policy makers have largely refrained from using public authority to build a system that would ensure such a result.
Little Regulation
In addition to a largely privatized system for furnishing youth sport participation opportunities, the federal and state governments have allowed for a heavily privatized system of youth sport regulation. This approach amounts to courts and policy makers taking the somewhat curious position that, because sport for children is so important, we cannot take significant law and policy steps to ensure the well-being of children who engage in it.
Like athletes in other settings, children who participate in sport are highly regulated. Their eligibility and other terms of participation are determined by the particular sport provider, such as Little League baseball and Pop Warner football. Yet, whereas athletes are regulated within sport, youth sport providers are subject to relatively little external government oversight or regulation. The choice to rely primarily on the private sector to provide youth sport opportunities has, therefore, resulted in a law and policy approach that purportedly seeks to incentivize private providers to sponsor the activity by promising limited government regulation and, in many cases, at least some measure of tort immunity. Thus, the law emphasizes the supply side of youth sport: creating conditions believed necessary for youth sport sponsors to provide opportunities. The law and policy of sport is less focused on creating favorable conditions for children to participate.
