How Whistleblower Laws Will Protect Competitive Youth Athletes
By Judie Saunders | January 28, 2021 at 12:00 PM
Originally Published in The New Jersey Law Journal
On December 10, 2020, Bob Birarda, coach of the Vancouver Whitecaps women's soccer team, was charged with sexually abusing several female athletes. The majority of athletes who trained under Birarda welcomed the filing of formal charges.
For more than 20 years, the Whitecap soccer players attempted to report the abuse to the team’s owner and governing body. Former player Ciara McCormack documented the abuse she and other athletes suffered in a series of blog posts. Ms. McCormack detailed how players lived in fear of their coach; the athletes knew they had no protection from Birarda’s power and complete control of professional Canadian women’s soccer, so they remained silent about the abuse.
Any protest or threat to report him was met with Birarda’s swift retaliation that ranged from denial to public humiliation that destroyed athletic careers. Birarda, the team’s owners and league officials comprised a powerful network who preferred to bury the abuse. The long-overdue prosecution of Birarda does not fully address the complete failure by Canada’s lawmakers, sporting associations and authority figures to protect athletes.
By way of the recently filed allegations, Birarda joins a crowded field of coaches who exploit athletes through sexual, physical and verbal violence. The U.S. Center for Safe Sport reports that the vast majority of complaints filed with their agency allege abuse of athletes by a coach.1 These coaches have access to young and often vulnerable players, opportunity to exploit them and power to keep victims silent. There are virtually no protections for young athletes and their parents in denouncing and prosecuting abuse by athletic coaches.
Parents and athletes who fear retaliation from a coach rarely report abuse to local law enforcement. Instead, parents report abuse to the U.S Center for Safe Sport and/or the sport’s national governing body, such as USA Gymnastics, US Lacrosse or USA Swimming. After filing complaints with these organizations, parents quickly realize the futility of such actions. Their reports are inadequately investigated, the denouncers face heavy bias in favor of coaches and the governing bodies almost universally fail to protect athletes who report abuse.2
Whistleblower laws should be implemented in competitive youth sports to remedy the lack of protection for athletes. Specifically, such laws would:
• Empower survivors to speak out against abusive coaches;
• Provide financial incentives for non-culpable parties and eyewitnesses to disclose abuse (i.e., award of attorney fees); and • Protect survivors alleging abuse from defamation lawsuits.
For decades, state legislators have instituted whistleblower protections in other American industries. Competitive youth sports are a business, one that provides significant revenue to communities and every state’s economy. It is estimated that competitive youth sports activities generate more than $17 billion dollars in annual revenue.3 As in other businesses, and especially one focused on the health and safety of children, whistleblower laws must be extended as an additional layer to protect young athletes.
I. History of Whistleblowing Laws
Whistleblower laws are not a new legal concept or public policy initiative. The first whistleblower laws in the United States were embodied in the 1863 False Claims Act (FCA) (revised in 1986).4 The FCA sought to end fraudulent practices used by manufacturers who provided supplies to the U.S. Government during the Civil War.5
The government encouraged whistleblowers who might expose wrongdoers. In exchange for disclosing government waste, whistleblowers were promised a portion of the money recovered. Whistleblowers were also granted protection against retaliatory conduct, such as job loss.6
In the financial services industry, whistleblower laws encourage employees to report unlawful acts by management and coworkers. The Internal Revenue Service and the Securities and Exchange Commission have recognized whistleblower programs.7
Across the United States, many legislatures acknowledge the necessity of whistleblower statutes to promote trust, deter public waste and discourage retaliation against individuals who speak out. Generally, state whistleblower laws seek to protect victims and witnesses from retaliation.8 Parents and young athletes need that same protection.
II. Current Whistleblower Laws in Sports
Dr. Jan Kemp was an English instructor at the University of Georgia. The New York Times helped bring national attention to Dr. Kemp’s reports on the exploitation of college football players.9 Specifically, Dr. Kemp uncovered a practice whereby University officials allowed football players to pass classes, even though they were illiterate, so they could play in high profile games. The University was reaping financial gain to the detriment of the student athletes’ wellbeing and education. There was immediate retaliation against Dr. Kemp by the University administration and the community. The University demoted Dr. Kemp and then fired her. She received death threats. The backlash against Dr. Kemp was so severe that she attempted suicide twice.10 Following Georgia’s whistleblower laws, a jury awarded Dr. Kemp $2.5 million in damages and she was also reinstated at the University.11
College athletes, faculty and staff are afforded whistleblowers status under federal Title IX laws.12 Similar whistleblower laws should also be extended at the competitive youth level to provide a layer of protection for parents and child athletes who report abuse.
Whistleblower Laws Protect Against Real Threats
Beyond providing an incentive to report violations, whistleblower laws offer individuals protection against threats of death and serious physical harm. Russian chemist and famous sports whistleblower Grigory Rodchenkov was able to find protection under American whistleblower laws. Mr. Rodchenkov reported Russia’s doping scheme, where athletes were given banned substances in an effort to win Olympic medals. Mr. Rodchenkov was repeatedly threatened with assassination.13 He sought refuge from the retaliation of the Russian Olympic community, as well as President Vladimir Putin.
Whistleblower policies are also considered necessary and valid by the World-Anti-Doping Agency (WADA).14 WADA monitors drug testing in Olympic sport and enforces anti-doping rules for athletes worldwide.
The Netflix documentary Athlete A provides another example of child athlete abuse and the retaliation suffered by survivors who spoke out against coaches.15 Athlete A clearly shows how young elite gymnasts, and their parents, had no recourse against abusive coaches, team doctors and institutional actors.
Whistleblower laws are recognized by governments, the private sector and partially in sports. Yet child athletes participating in sports at local gyms, travel team clubs and the elite level have no whistleblower laws to address their concerns. Neither the current polices of the National Collegiate Athletic Association nor federal Title IX statutes offer protection to athletes who participate in elite level pre-college athletic sports.
This gap in protection results in added fear, legal expense and continued silence among parents, non-culpable coaches and athletes, who fear retaliation if they report an abusive coach.
III. Proposed Structure of a Whistle Blower Law
Can whistleblower laws really offer young athletes protection against an abusive coach? A new law to protect athletes must focus on grassroots education and enforcement. Local coaches must be trained and subject to regulation, similar to attorneys, accountants and other licensed professionals. People in many occupations undergo state examinations and have independent review boards to ensure industry standards are met and complied with. Similar measures should be enacted for youth coaches.
Society should value the mental and physical health of its children. The regulation of local gyms would start with requiring coaches to successfully complete educational certification that includes coursework on whistleblowing laws, retaliation and the penalties for breaking these rules.
New whistleblower laws must provide reimbursement for legal fees and a cause of action for athletes that suffer career interruption and missed athletic opportunity, due to abusive coaches and collusive sporting associations.
Further, financial incentives under the proposed laws should provide that parents or athletes, who are forced to defend against defamation lawsuits, will be awarded legal fees.16
Enforcement of new whistleblower laws will be achieved through trauma informed education that requires employees of youth-centered sport organizations to enroll in programing created by groups, such as Safe4Athletes.17 Safe4Athletes’ clubs provide parents and child a clear indication that a club employs trained coaching staff who strive to maintain healthy coach, athlete and parent relationships.
Enforcement can also include the use of body cameras or audio recorders located inside athletic facilities. The use of body cameras, which may be considered extreme, is necessary to slow the epidemic of abuse in competitive youth sports. Similar measures are now being implemented nationwide in response to abuse of power by agents of law enforcement.
The implementation and enforcement of a new law is complex and will be opposed by the targeted wrongdoer and others. However, the impact new whistleblower laws would have on the overall psychological well-being of players would more than compensate for the pushback and skepticism. Young athletes will benefit from a law that:
• Emboldens innocent parties to speak out;
• Provides a clear line for what is unacceptable coaching practice; and
• De-normalizes physical, emotional and verbal abuse as an acceptable coaching practice.
Greater protection of child athletes pursuing sports is important to individuals and our society as a whole. Whistleblower laws are one way to add a much needed layer of protection for young athletes and their parents who allege abuse by a coach. After decades of such abuse being silenced, the only way to address child abuse in youth sports is to enact whistleblower laws that will serve to empower athletes, educate coaches and punish willful wrongdoers.
2 See Azarian Gym https://www.ocregister.com/2020/09/16/investigation-gymnasts-parents-recount-abuse-by coaches-at-azarian-gymnastics/. Legacy Elite Gym https://www.ocregister.com/2019/08/02/mistreatment-of young-gymnasts-alleged-against-anna-li-usa-gymnastics-new-athletes-rep-and-her-mom/.
4 Epstein, Adam, The NCAA and Whistleblowers: 30-40 Years of Wrongdoing and College Sport and Possible Solutions (March 3, 2018). Southern Law Journal, Vol. 28 (1), pp. 65-84, 2018, Available at SSRN: https://ssrn.com/abstract=3133628
5 Id. at 65-88.
6 Id. at 65-88.
7 Id at 65-88.
8 Id. 65-88.
12 Epstein, Adam, The NCAA and Whistleblowers: 30-40 Years of Wrongdoing and College Sport and Possible Solutions (March 3, 2018). Southern Law Journal, Vol. 28 (1), pp. 65-84, 2018, Available at SSRN: https://ssrn.com/abstract=3133628
13 https://www.espn.com/olympics/story/_/id/29638553/russian-whistleblower-grigory-rodchenkov-opens physical-threats-assassinated
14 Epstein, Adam, The NCAA and Whistleblowers: 30-40 Years of Wrongdoing and College Sport and Possible Solutions (March 3, 2018). Southern Law Journal, Vol. 28 (1), pp. 65-84, 2018, Available at SSRN: https://ssrn.com/abstract=3133628
16 Id. at 65-88.