Recipient: U.S. House of Representatives
H.R. 3369 Sets A Dangerous Civil Rights Precedent – Vote NO
September 13, 2004
On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil rights coalition representing people of color, women, children, older Americans, persons with disabilities, gays and lesbians, major religious organizations, labor unions, and civil and human rights groups, we urge you to vote against H.R. 3369, the “Nonprofit Athletic Organization Protection Act of 2003.” If enacted, this bill could set a dangerous precedent for the enforcement of civil rights laws generally and could specifically allow nonprofit athletic organizations to evade civil rights laws and unlawfully discriminate on the basis of race, sex, disability, or other characteristics protected by federal and/or state law.
While the preamble suggests that the bill’s intent is to protect nonprofit athletic organizations from liability arising from claims of ordinary negligence relating to the adoption of rules for competitions/practices, the actual text of the bill is much broader and creates the risk that such organizations could evade their obligations under laws unrelated to negligence, such as federal and state civil rights laws. More specifically, the bill provides that “a nonprofit athletic organization [which includes the employees, agents, and volunteers of such organization] shall not be liable for harm caused by an act or omission of the . . . organization in the adoption of rules for sanction or approved athletic competitions or practices . . . .” This language creates the risk of eliminating valid discrimination claims such as those found in the following cases:
- In Cureton v. NCAA, a class action lawsuit filed by African-American student athletes challenged the National Collegiate Athletic Association’s rule requiring all potential student-athletes to achieve a minimum score on the SAT or the ACT as having a disparate impact on African-American students, in violation of Title VI of the Civil Rights Act of 1964. Early on, the Educational Testing Services (ETS), which designed the SAT, criticized the NCAA’s then-proposed use of a fixed cut-off score and warned that such a rule would have such a disproportionate impact, and it did. But only in the face of a lawsuit did the NCAA change its rule so that student athletes could be eligible for Division I schools on the basis of their grades, not just their test scores.
- In Michigan High School Athletic Association v. Communities for Equity, federal district and appellate courts in the Sixth Circuit have ruled that the state high school athletic association’s practice of scheduling six girls’ sports, and no boys’ sports, in nontraditional and/or disadvantageous seasons discriminated against female athletes in violation of Title IX of the Education Amendments of 1972 and the U.S. Constitution. The court found that the association’s scheduling decisions harmed girls by limiting their opportunities for athletic scholarships and collegiate recruitment, limiting their opportunities to play in club or Olympic development programs, and causing them to miss opportunities for awards and recognition.
- In PGA Tour, Inc. v. Martin, the U.S. Supreme Court ruled that the Americans with Disabilities Act requires the PGA Tour to allow professional golfer Casey Martin , who suffers from a circulatory disorder making it painful to walk long distances, to ride in a golf cart between shots at Tour events. The nonprofit PGA had ruled that walking the course is an integral part of golf, and Martin would gain an unfair advantage using the cart. In a 7-2 decision, the Supreme Court decided that the PGA could not deny Martin equal access to its tours on the basis of his disability.
In addition, H.R. 3369 allows nonprofit athletic organizations to sue, but not be sued. It is the height of hypocrisy to suggest that these organizations should be allowed to have their day in court while limiting the ability of individual athletes and others to hold them accountable.
Finally, the bill preempts state law that provides less liability protection to nonprofit athletic organizations but not state law that gives additional protection to nonprofit athletic organizations. There is no need for Congress to preempt state law at all. If states want to protect certain state athletic organizations, they can do so right now without any action by Congress.
While we understand that those who oppose this bill might be accused of fueling litigation, we urge you to consider the risk that this bill could be used to exempt nonprofit athletic organizations, which exercise control over the lives of student-athletes, coaches, and many others, from treating these individuals fairly and in accordance with our nation’s civil rights laws. Moreover, this bill would create additional litigation regarding who is covered by the bill and what types of claims it precludes.
LCCR strongly urges you to oppose the “Nonprofit Athletic Organization Protection Act of 2003.” If you have any questions, or would like additional information, please contact Nancy Zirkin at 202/263-2880, or Julie Fernandes, Senior Policy Analyst, at 202/263-2856.
Thank you in advance for your support.