SafeSport: Safe or Not?

By Dee Santrach

When it comes to federal legislation, what sometimes appears like a step in the right direction can sometimes be an underestimate the distance needed to truly achieve meaningful change. The intentions behind such policies may be admirable, but the resulting practical framework can contain severe legal issues. This gap can especially be seen when it comes to federal policies that are intended to protect people from harm. A prime example is the establishment of the United States Center for SafeSport (SafeSport), which was created following a long-standing sexual abuse scandal in Olympic Gymnastics. SafeSport’s status as a private entity rather than a government actor (or “state actor”), it is not bound by constitutional guidelines in its disciplinary processes. Looking past its private label, SafeSport should be classified as a state actor, and its current procedures are constitutionally deficient under the Fifth Amendment’s Due Process Clause.

1. BACKGROUND

SafeSport was born out of the horrific sexual abuse scandal involving the USA Women’s Gymnastics team and physician, Larry Nassar. For decades, Nassar utilized his positions at USA Gymnastics and Michigan State University to abuse more than 150 victims under the guise of “medical treatment,” a pattern of misconduct that investigations later revealed had been actively covered up by sports governing bodies as far back as 1998. Nassar ultimately pled guilty and received hundreds of years of sentencing in state and federal prison.⁵

In response to these systemic failures, Congress enacted the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017 (the Act). The Act formally established the SafeSport as the central authority for preventing abuse in Olympic sports. SafeSport exercises exclusive, mandatory jurisdiction over allegations of sexual misconduct within the Olympic movement. When SafeSport takes a case, individual National Governing Bodies (NGBs), like USA Gymnastics, are barred from investigating. While SafeSport cannot impose criminal penalties, its administrative sanctions can carry equally devastating implications. SafeSport possesses the unilateral authority to issue interim suspensions, permanently ban individuals from participating in their sports, and publicly log their names in a Centralized Disciplinary Database (CDD). In practice, SafeSport exercises a level of coercive, career-ending disciplinary authority that closely mirrors government regulatory bodies, yet it does so while completely evading constitutional due process guidelines.

2. ANALYSIS
   3. SAFESPORT IS A STATE ACTOR

The threshold question in determining when an entity must abide by the Constitution is whether it is a “private actor” or a “state actor” (also referred to as a “government actor”). Under the seminal case, Lebron, a private label does not allow an entity to evade constitutional scrutiny if such entity was created by special law to further governmental objectives, and the government controls its core mission. SafeSport satisfies this standard through its three main attributes of federal creation and policy mandate, its exclusive adjudicatory jurisdiction, and its functional similarity to recognized governmental disciplinary bodies.

First, SafeSport operates under federal policy, including its Congressional creation and federal funding. Unlike typical non-profits, SafeSport was created by a specific act of Congress through 36 U.S.C. § 220541 (the Act). Congress mandated the creation of the SafeSport to fulfill a public regulatory function deemed essential by the government following the Nassar scandal. SafeSport also receives millions in federal grants to execute this national mission, including $10 million from 2025 to 2030. Additionally, through Congressional mandate, SafeSport receives $20 million a year from the USOPC. This degree of “creation and control” suggests that SafeSport is a federally authorized regulator.

Next, SafeSport exercises “exclusive jurisdiction” over sexual abuse allegations within the USOPC. This jurisdiction stems from a congressionally authorized disciplinary structure, binding participants throughout Olympic sports. When SafeSport investigates a claim, it is exercising quasi-judicial authority that can result in a permanent ban from their entire profession or irreparable tarnishment of reputation. Thus, SafeSport exercises coercive authority closely resembling that of governmental disciplinary agencies.

Lastly, SafeSport’s status as a state actor is supported by comparison with other entities that are deemed state actors. In Lebron, the Supreme Court affirmed that Amtrak, a corporation created by Congress to operate a national railroad, despite Amtrak’s charter explicitly stating it was a “private, for-profit corporation,” it was a state actor because it was created by special law to achieve a national goal. SafeSport mirrors Amtrak in that it was created by the same type of special law to achieve a national safety goal, and although it is labeled private, its authority is contradictory. As Lebron recognized, Congress cannot avoid constitutional accountability simply by assigning governmental responsibilities to a nominally private entity.

While SafeSport frequently points to the Supreme Court’s decision in San Francisco Arts & Athletics, Inc. to claim it shares the USOPC’s private status, that precedent primarily concerned commercial trademark authority, not the type of coercive disciplinary and adjudicatory authority exercised by SafeSport today. Given that SafeSport exercises coercive, career-altering authority that is fairly attributable to the government, it should be considered a state actor.

• 4. SAFESPORT PROCEDURES PROVIDE INADEQUATE DUE PROCESS

As a state actor, SafeSport must abide by the Fifth Amendment, which prohibits depriving individuals of liberty or property without due process of law. SafeSport’s current disciplinary framework deprives individuals of both a property and liberty interest, and does not adequately provide proper procedures to protect such interests.

Generally, a property interest exists when a person has a “legitimate claim of entitlement” to a benefit created by law or contract. Alternatively, a liberty interest is implicated when a state actor seriously damages a person’s reputation and causes a loss of legal status, as in the “stigma-plus” test. SafeSport’s disciplinary framework implicates both protected property and liberty interests.

First, SafeSport deprives athletes and coaches of a property interest. While sports participation is a privilege, NGB bylaws create contractual and professional rights directly tied to employment and licensing. A professional has a protected property interest in a license essential to their livelihood. Thus, SafeSport affects property interests that require the protection of the Due Process Clause.

Second, SafeSport also deprives individuals of a liberty interest. By placing an individual’s name on a public database, the CDD, alongside the label of sexual misconduct, SafeSport immediately and irreparably creates a severe reputational stigma. This stigma, combined with the fact that individuals are barred from their profession, constitutes a legitimate liberty interest. The Supreme Court has held that publicly posting an individual’s name in a degrading manner without a hearing is a per se deprivation of liberty.

Once the property or liberty interest is established, as it is here, courts will use a balancing test “between private interests, the government’s public interest, and the possibility of the government procedure’s erroneous deprivation of private interest” in evaluating the proper procedures required for due process.⁴⁶ The basic requirements of due process are notice and a hearing before an impartial tribunal.⁴⁷

In this case, the private interests at stake are given heavy weight because the survival of careers and reputational integrity are at risk. Additionally, the risk of erroneous deprivation under current procedures is alarmingly high. SafeSport frequently issues “Temporary Measures” and immediate interim suspensions based solely on internal investigative findings, before the accused ever sees the evidence or receives an evidentiary adjudication. Furthermore, SafeSport completely lacks a statute of limitations, forcing respondents to defend against claims spanning decades where evidence is stale and witnesses are unavailable. SafeSport’s sole defense is the urgent mandate of athlete safety. While protecting athletes is a compelling government interest, public safety objectives cannot justify procedures that eliminate basic, fundamentally fair safeguards like pre-deprivation hearings, institutional neutrality, and the right to cross-examine accusers. Therefore, because SafeSport proceedings implicate protected liberty and property interests and because the current procedures create a substantial risk of erroneous deprivation, SafeSport’s disciplinary framework requires additional procedural safeguards to satisfy constitutional due process requirements.

5. CONCLUSION

Protecting athletes from catastrophic institutional abuse is an undeniable public necessity, but that mission must coexist with the bedrock principles of constitutional fairness. To resolve the dangerous ambiguities currently being litigated in Navarro, reform must come from both SafeSport’s policies and federal statutory amendments. SafeSport must amend its code to restrict the public placement of names in the CDD until a respondent has received a meaningful opportunity to be heard, substituting unchecked interim suspensions with expedited post-deprivation hearings within a strict, fixed timeframe. To address the severe evidentiary risks of decades-old claims, the organization should implement heightened corroboration requirements for delayed allegations rather than relying on stale evidence. Moreover, Congress must step in to provide dedicated, stable funding directly targeted at reducing massive investigative delays, while formally amending the Act to clarify that when SafeSport exercises its congressionally authorized exclusive jurisdiction, it must provide minimum procedural due process, including timely notice, access to investigative evidence, and an impartial tribunal. SafeSport’s vital safety mission is not compromised by providing due process, but rather the integrity and trustworthiness of the entire system depend upon it.