Sen. Chuck Grassley, R-Iowa, is raising the pressure on the U.S. Center for SafeSport, the nonprofit organization that Congress empowered in 2018 to protect youth athletes from sexual abuse in sport. Yet he is limited in what he can do, because the center was authorized by Congress to set and enforce its own rules without any government review.
Grassley had questioned the center’s CEO, Ju’Riese Colón, in February about media reports that SafeSport hired as an investigator a former Pennsylvania police officer who was under investigation — and has since been charged — for a series of felonies. In another letter to Colón this week, Grassley bluntly stated that Colón was “not entirely responsive to my inquiries, and the information [she] did provide caused additional concerns and prompted additional questions.” His dissatisfaction with Colón’s response prompted a similarly blunt letter to the chair of SafeSport’s executive committee, April Holmes, saying “[t]here appears to be a lack of oversight by the Board to adequately supervise [Colón] and other officers and directors in their duties to the organization.”
In February, a Florida state judge reprimanded SafeSport for perpetrating “a fraud” by withholding exculpatory evidence as part of a criminal investigation into a teenage athlete. In his letter, Grassley detailed numerous examples of questionable spending from the center’s most recent tax filing, starting with Colón’s $400,000 compensation. He called out $1.2 million in legal fees in 2023 to the law firm that was implicated in the Florida fraud. That firm, Zonies Law, has been the center’s highest-paid contractor since the center opened in 2017, receiving more than $5 million in contracts for legal services.
A spokesperson for Grassley said the senator “wants to ensure SafeSport is effectively protecting young athletes, while also acting as a good steward of taxpayer dollars.” But despite being the chair of the Senate Judiciary Committee, Grassley is already up against the limit of his — or anyone else’s — authority to effect change at SafeSport.
The Center for SafeSport takes its authority from the 2018 amendment to the Ted Stevens Olympic and Amateur Sport Act. Congress’s delegation of power to SafeSport is unique because no federal agency is assigned oversight of the center’s operations.
Congressional Delegation of Power
Last month, the Supreme Court heard a related case about delegation of power, FCC v. Consumers’ Research. Congress delegated power to the Federal Communications Commission (FCC) to determine communications carriers’ contributions to a universal service fund. The FCC then transferred authority to the Universal Service Administration Company (USAC), a private corporation, to make recommendations regarding those contributions.
One of the main questions before the court was whether the FCC truly retained oversight and decision-making authority over the rates that carriers were charged, or if they merely rubber-stamped the USAC’s proposals. Justice Samuel Alito, who has been waiting for years to address the private delegation doctrine, posed this question directly to Acting Solicitor General Sarah Harris. Alito and the other conservative justices have written in previous dissents that federal agencies need to provide more than nominal oversight of the private entities to which they delegate power. Harris responded to Alito by noting “four instances in which the FCC has, in fact, said USAC is not doing it right.”
However, even a rubber stamp may be better than nothing. As the Heritage Foundation’s Paul Larkin wrote, “Even where a public official engages in the ‘perfunctory’ ratification of a private decision, the presence of governmental action has benefits for both anyone injured and the public: It triggers federal constitutional protection that no legislature can evade [and] provides political accountability.” Larkin shows that the common factor in the few cases where the Supreme Court has ruled against a delegation of federal power was the lack of review by or accountability to a government entity.
Congress did not grant any government agency the power to regulate the Center for SafeSport; nor did Congress charge any agency with safeguarding America’s youth athletes. Congress conferred that power directly to a private nonprofit corporation, the Center for SafeSport.
The 2018 amendment to the Ted Stevens Olympic and Amateur Sports Act went even farther. Rather than simply giving the center unregulated and unreviewable authority to do as it sees fit, Congress delegated to the center its exclusive power to write laws.
The act directs the center to “develop training, oversight practices, policies, and procedures to prevent the abuse, including emotional, physical, and sexual abuse, of amateur athletes participating in amateur athletic activities through national governing bodies.” It goes on to say that those “policies and procedures … shall apply as though they were incorporated in and made a part of [this] title.”
Unprecedented Power
This is known as dynamic incorporation, whereby Congress gives some other entity a free hand to promulgate rules that take on the force of U.S. federal law. Most scholarship on dynamic incorporation deals with the risks and constitutionality of dynamically incorporating foreign law into U.S. law. The question of dynamic incorporation of a private entity’s rules into federal law almost never comes up, because normally those rules are formalized as regulations by the private entity’s parent agency.
The Center for SafeSport, therefore, is sitting on an unprecedented dual grant of government power: it can set and enforce its own rules without any government review, and those rules take on the force of federal law.
Five Supreme Court justices are on record in support of reviving the private delegation doctrine and halting Congress’s habit of outsourcing responsibility by delegating authority.
On the same day as oral arguments in FCC v. Consumers’ Research, lawyers in Navarro et al v. U.S. Center for SafeSport filed their opening brief with the Fourth Circuit Court of Appeals challenging Congress’s delegation of “Federal, Legislative, Executive, Administrative and Enforcement Authority to the Center.” Even if the court limits their ruling in FCC v. Consumers’ Research to the first delegation of power — from Congress to the FCC — the court will have their opportunity to address private delegation soon enough.
Grassley will need to start with these constitutional deficiencies in the Center for SafeSport’s design if he wants to do more than pressure the center’s leadership through letters and hearings. He will have to move quickly before things get worse for the center and the Ted Stevens Act in both the media and courtrooms.
George M. Perry is a sports performance coach, sports businessman, and writer. Before going into the sports industry, he was a submarine warfare officer in the United States Navy and briefly attended law school.
