Three Code of Conduct Changes Recommended by USA Swimming Rules Committee

  33 Braden Keith | August 28th, 2013 | Featured, National, News

pinit fg en rect gray 28 Three Code of Conduct Changes Recommended by USA Swimming Rules Committee

Location:               Page 96 – 304.3  Code of Conduct

Proposed by:        Safe Sport Committee

Purpose:                To comply with the Minimum Standards for Safe Sport mandated by the USOC; if not adopted by an NGB by 12/31/2013, the NGB risks losing USOC high performance funding.  USA Swimming meets or exceeds all of the Safe Sport Minimum Standards except the one regarding athlete-coach romantic or sexual relationships which began during the sport relationship and involves an imbalance of power.

Recommendation: The Rules and Regulations Committee recommends approval, subject to an investigation by the Safe Sport Committee regarding the minimum standards set by the USOC.

Effective Date:      Immediately

304.3  The following shall be considered violations of the USA Swimming Code of Conduct:

.8     A      [unchanged]

B      [unchanged]

C     Romantic or sexual relationships, even if it is a consensual relationship between adults, which began during the swimming relationship, between athletes or other participants and those individuals (i) having direct supervisory or evaluative control, or (ii) who are in a position of power and trust over the athlete or other participant. Except in circumstances where no imbalance of power exists, coaches have this direct supervisory or evaluative control and are in a position of power and trust over those athletes or participants they coach. The prohibition on romantic or sexual relationships does not include those relationships where it can be demonstrated that there is no imbalance of power. For example, this prohibition does not apply to a relationship between two spouses or life partners which existed prior to the swimming relationship. For factors that may be relevant to determining whether an imbalance of power exists, consult the USOC’s Athlete Protection Policy.

Our Discussion: This one was already voted down by the membership at the United States Aquatic Sports convention House of Delegates meeting in 2012, but it is back on the table in 2013.

Here’s where the big conflict between different groups lies in this rule. Most would think it’s a bad idea for a 45 year old coach to have a relationship with an 18 or 19 year old member of his or her team. It’s not healthy for their coach-athlete relationship, and it’s not good for the other members of that team who would not necessarily be treated with the same attention.

But is this rule even legal to implement, restricting relationships between consenting adults, given USA Swimming’s status as the holders of the key to the Olympics and other international-level meets in this country? Is the rule too over-reaching? Would it, say, keep Natalie Coughlin from swimming a practice with her husband Ethan Hall, who is a swim coach?

There’s lots of reasoning in the proposed rule to help protect against these situations, such as saying the rule doesn’t apply anymore if the two sides are married, but then suddenly enforcing the rules becomes incredibly complicated. Would it be better for a coach/athlete to get married in order to maintain their coach/athlete relationship? Who is going to prove when a relationship actually started, when the answer will probably so frequently become “the day before he or she started swimming for me”? Why should there be an issue if, say, a single coach and a single athlete, within the bounds of their jurisdiction (state, federal laws, etc.) wished to engage in a relationship while continuing to train one-on-one? Who is this harming?

This is one of those situations that is incredibly complex to legislate, because lines must be drawn somewhere, and there’s no clear consensus on where those lines should be. By its nature, this is by no means a bad rule, but it reaches a level of complexity that will make a lot of people uncomfortable with it existing.

On the other hand, at the moment, everyone’s hands are tied by the USOC decision. USA Swimming would lose a lot of funding if they didn’t follow. My guess is that the first time this comes up anywhere under the umbrella of USOC, it will end up in court, where we’ll get a better idea of its enforceability.

Location:               Page 97 – 304 Code of Conduct

Proposed by:        Safe Sport Committee

Purpose:                To add sexual abuse by a minor athlete against another minor athlete as a violation of the Code of Conduct.

Recommendation: The Rules and Regulations Committee recommends approval.

Effective Date:      Immediately

304.3  The following shall be considered violations of the USA Swimming Code of Conduct:

.1-7      [No changes]

.8     A      Any inappropriate sexual conduct or advance, or other inappropriate oral, written, visual, or physical conduct of a sexual nature directed towards an athlete by (i) a coach member or other non-athlete member, or (ii) any other adult participating in any capacity whatso­ever in the activities of USA Swimming (whether such adult is a member or not).

B      Any act of sexual harassment, including without limitation unwelcome sexual advances, requests for sexual favors, and other inappropriate oral, written, visual, or physical conduct of a sexual nature in connection with or incidental to a USA Swimming-related activity by any person participating in the affairs or activities of USA Swimming (whether such person is a member or not) directed toward any member or other person participating in the affairs or activities of USA Swimming.

C     Any peer-to-peer sexual abuse.  For the purposes of the Code of Conduct, the term “peer-to-peer sexual abuse” shall mean any unwelcome physical conduct of a sexual nature directed towards a minor athlete by another minor athlete.

Our Discussion: This rule would make sexual abuse by a minor athlete against another minor athlete a violation of the Code of Conduct. There’s at least one instance on the current banned list of an athlete who is banned for sexual abuse of another minor, but in that instance the person banned was tried in court, so he fell under other auspices of the code of conduct.

This rule would seem to extend the reach and definition of “sexual abuse” beyond simply cases that preceded in front of a court.

Location:               Page 96 – 304.3  Code of Conduct

Proposed by:        David Berkoff, Paris Jacobs, Tim Bauer, Stu Hixon, Mary Jo Swalley, Robert Broyles, Brandon Drawz, Dave Anderson, Ben Britten

Purpose:                                Enforcement of the USA Swimming list of Individuals Permanently Suspended or Ineligible (“Banned List”).

Persons currently listed on the USA Swimming Banned List are attempting to work with USA Swimming athlete members and/or their families and/or USA Swimming member clubs.  Proper protection of USA Swimming athlete members includes enforcement of the Banned List and the prohibition against banned coaches working with USA Swimming members.  Enforcement should include disciplinary action against any USA Swimming member club or coach who facilitates or aids and abets a person on the Banned List to be involved in any USA Swimming activities, including the coaching of current USA Swimming athlete members.

Recommendation: The Rules & Regulations Committee recommends approval.

304.3  The following shall be considered violations of the USA Swimming Code of Conduct:

[.1 -.13 No changes]

.14   For any USA Swimming member club or coach to

A      allow any person who has been placed on the USA Swimming list of “Individuals Permanently Suspended or Ineligible” to coach or instruct any of its athlete members,

B      aid or abet coaching or instruction of athletes by any person who has been placed on the USA Swimming list of “Individuals Permanently Suspended or Ineligible,” or

C     allow any person who has been placed on the USA Swimming list of “Individuals Permanently Suspended or Ineligible” to have an ownership interest in such USA Swimming club or its related entities.

[Note: Section citations in 403.1, 403.2, and 406.1 will be revised as necessary after the Convention so that this new item falls under NBOR jurisdiction.]

[re-number current .14 and remaining subsections]

Our Discussion: This rule would give more teeth to the definition of “permanent ban” and what is and is not allowed for these people. An athlete, completely independently of their club, could still swim for a coach, but no club could help that athlete do so, provide pool space, etc. It would also limit people on the banned list from having an ownership interest in a USA Swimming club or its related entities.

According to USA Swimming board member David  Berkoff, there are at least two instances in which a banned member has attempted to work with USA Swimming members, their families, or member clubs through a private enterprise, and in at least one instance, that of Rick Curl, a club (the Curl-Burke Swim Club, since restructured and reborn as NCAP) was partially owned by a banned coach.

Comments

  1. ME says:
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    These need to be approved! It was a shame that these rules were not passed last year because of a few big mouths who carry on stupid senseless discussions. Being at the USAS conference last year, it is amazing that anything happens in USA swimming for the good of the athlete. It is all about the coaches!

    • JB says:
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      Are you a parent? What is the definition of sexual harassment? What age are we talking about? What standard does it rise to? Keep in mind there are many different interpretations state by state of what it is and what it’s not. I see problems with the minors reporting on minors issues – if a 10 year old calls another 10 year old something inappropriate who determines the level of the infraction and the punishment? Will there be classes to the infractions, as there are in our legal system for felonies and misdemeanors? Are athletes allowed legal representation? Can athletes file claims against USA Swimming in Civil Court for suspensions in training?

      Many of these things seem somewhat unenforceable, and if that is the case why have them on the books? Why not just call the police if there is an issue that a club, LSC, or USA Swimming feels rises to the level of local harassment or assault?

      • Brian says:
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        JB has it nailed. You have to answer these sub questions that are brought up. They are currently too broad as is.

  2. coach says:
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    304.3 seems so hard to enforce and often define. I would think some wordsmith could come up with a way to word it so that it fits our goals.

    It could just be that I’m not bright enough to follow, but what is the statute of limitations on such an issue. Would a fifty-something year old member of USA Swimming who has been married to their 36 yr old former swimmer for 10 years already be in violation of the rule? Would those in that position be banned or fired? Or would this just apply in the future? And if those questions are unaswerable, how do we vote?

  3. Jg says:
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    Thank god Miley Cyrus does not being to a swim club.

  4. Jg says:
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    ‘Belong’.

    Top down or bottom up ? If there are economic theories how about cultural & sexual norms – where does this stuff begin ? Can you hold back the tide in a little sport or is it all over?

  5. Francene says:
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    Doesn’t USA Swimming have a legal staff???? I have not read the USOC standards but the way they are implied here they are not only unenforceable but illegal as well (as in, this would make the USOC liable for damages from a suit). As they clearly fall under the category of an organization that controls the representation of the United States as a nation, they may not infringe upon any state laws, except where federal laws supersedes the law, including that of a relationship between two consenting adults.

    Likewise, USA Swimming may not infringe on rights granted to individuals by the states as well.

    The issue of “power over another individual” has varying restrictions across the states, including no restrictions in some states (and many of them are only related to cases of non-consensual relations).

  6. 0
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    304.3.14 as written still seems to allow clubs to allow individuals on the banned list to work with a club team as a paid or volunteer staff member in a non-coaching/non-instructional roles (i.e. club administration, meet operations support, etc.). It hardly seems like a through safety measure if you are still going to allow banned members to participate in a club setting at practices, swim meets and or even administrative positions with a club team where they will have access to swimmers. Seem like a gaping loophole or am I missing something?

  7. WHOKNOWS says:
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    How does Track and Field (Athletics) handle this… there are many female athletes married to their coaches over the years!

    • Jg says:
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      Athletes often marry each other & one takes on the coaching role.

      Abusive relations are epidemic in some teams – particularly the African ones where the women are expected to do the men’s washing.

      So I you see a lady running real real fast it is because she gets up the food chain & the washing is given to a newer / slower member.

  8. 0
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    304.3.8.C
    Consider this scenario. A male and a female swimmer on a college swim team develop a romantic relationship. One swimmer is ahead of the other in terms of graduation. Say the female swimmer graduates and decides to attend graduate school at the same school, and I decide to give her a Graduate Assistant Coach position to help her pay for graduate school. By these rules, the female coach would be in violation of the USA Swimming Code of Conduct if both were members of USA Swimming (highly likely) and would have to choose between her relationship and the GA position.

    I realize that this is a difficult issue, but that is just plain overreach and actually does harm to two consenting adults who were involved in a perfectly reasonable relationship prior to the coaching relationship and they should not have to forego their relationship or the financial benefits of a GA position (nor should I have to pass on a qualified coach who I know well).

    It is important to have rules that protect athletes from abuse, but it is abusive to deny opportunities to coach to someone who is in an existing, perfectly reasonable relationship. Perhaps the loophole would be that they just call themselves life partners?

  9. WTF says:
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    Soooo- USA Swimming cannot hold clubs and individuals accountable for violating state criminal laws, but they want to hold adults accountable for having a consensual legal relationship?

  10. David Berkoff says:
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    USA Swimming is a membership organization. Constitutional rights do not apply to private organizations like they do to public institutions. So long as USAS provides due process that comports with the ASA the organization can make rules restricting eligibility where a coach and swimmer are in a relationship.

    • Coach says:
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      David – First off – thank you for trying to do your best for our organization. Some of us do really appreciate that change is tough to affect overnight.

      Secondly – can you answer my question? If I’m a 40-something coach and 10 years ago I married a woman who I coached as a 13-18 yr old, where do I stand when this legislation passes?

      • Turk says:
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        Coach,

        Based on my reading of that rule you’d be OK so long as she doesn’t swim for you in the present or future. At least thats what Im hoping it means. It would be ludicrous (and, IMO, legally indefensible) for USA Swimmming to try and regulate what an adult, non-swimmer does with a current coaching member so long as it is within the laws of the land. This is a very poorly worded and written rule. I need to look up “balance of power” and what that means in this context as well.

    • CCZ says:
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      Is this the problem with USA Swimming and the LSC’s? You all feel that people loose their constitutional rights by joining the organization?

      Aren’t 501(c) corporations non-profit public benefit corporations?

      Does corporate personhood not apply to USA swimming?

  11. swimmer24 says:
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    Just a question. The way the first rule suggestion is worded, doesn’t it banned athlete to athlete relationships where one athlete is a captain. Technically that athlete has “who are in a position of power and trust over the athlete or other participant”. However, both these athletes could be the same age. I think this rule even needs a revamping or be thrown out. What happens when the swimmer is older than the coach? Is that acceptable?

  12. JB says:
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    David –

    Does that free you from Civil claims? Not just USA Swimming, but LsC’s and Clubs as well? Doesn’t that vary significantly from state to state?

  13. David Berkoff says:
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    Swimmer and coach:

    I think the point of the legislation is intended to prevent coaches (who are in a position of authority over the swimmer) from taking advantage or using their power over the swimmer to coerce a relationship–even if the athlete is technically the age of majority. It’s not a legal issue, it’s an ethical issue.

    The legislation as I understand it wouldn’t mean that established relationships would be subject to the rule. It certainly is not my intention to promote a rule that would bar coaches who are currently married to former swimmers. The rule would simply set the bar going forward.

    I think most of us know what an inappropriate relationship is and is not, and as one Supreme Court justice once said about pornography, he might not know how define it but he knows it when he sees it.”

    Thanks for your support. Despite what some noisy gadflies say, are those of us in the organization who are trying hard to make a difference.

    D

    • Steve Schaffer says:
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      David, the hard work is appreciated. However in the cases I have pointed out above, based on present wording, I think harder work is needed. In one case you have not gone far enough to ensure that individuals on the banned list are prevented from having access to swimmers through member clubs, and in another you overreach.

      I am not sure who you are referring to with your “gadflies” comment, but hopefully you understand that criticism and commentary should be a welcome part of the process, and that resorting to pejoratives is not helpful.

    • coacherik says:
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      I would think this is going to be a matter of one persons word against another and evidence is going to be murky. If you are investigating a case for 304.3.8C, and you ask the “victim” if the relationship was coerced, and they say no, is it then case closed?

      I totally agree with athletes of any age being protected, but I don’t see this working.

      Isn’t something like better suited for the best common practices portion of the rule book? Being forced to be in a relationship or forced to stay in a relationship, if it is sexual in nature, doesn’t that classify as sexual assault or rape? Don’t we have bylaws for those already?

  14. JB says:
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    D –

    The problem is that in family court litigation something like this could be used against a mother or father in the future. For example, does a Senior in college have implied seniority over a freshman? Does a grad student who is a trainer have implied seniority over an athlete? I also disagree with the pornography assessment – we both know that many of these relationships are viewed differently by all kinds of people. In your home state a judge recently ruled that a rapist should only serve 30 days for an assault on a 14 year old girl. Most people know that’s not right when they see it, but it still happened and it can’t be overturned.

    I applaud the effort you are putting into this, but it’s not the present on many of these issues I’m concerned about and I agree with you – common sense should dictate a community norm in many of these instances. It’s the unforeseen future I’m concerned about, and I don’t believe that these ideas have been properly vetted by experts. I think it would help your case dramatically if you were to cite legal verification/interpretation from people outside USA Swimming. Just my two cents.

  15. coach says:
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    304.3.c did not pass last year because in the legislation presented, the author was not willing to amend to allow adults of legal age, i.e. 18 years and older, to pursue and/or continue a relationship.

    the bottom line is the only way to prevent an adult coach from dating an adult swimmer is for an individual team to put into it’s employment policy some level of a non-fraternization clause which could lead to either the termination of the employee, the dismissal of the athlete, or both.

  16. PAC12BACKER says:
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    The parochial, insesuous nature of swimming results in these fraternal relationships. Just follow my advice; it’s simple. Get your frick’in tail out of the pool complex and find a romantic partner somewhere else!

    • Brian says:
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      Hope that’s not a Pac 12 Education at work…you mean incestuous?

      (Just kidding, had to make a jab though)

      • PAC12BACKER says:
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        There’s no editing available in SwimSwam. Being a little anal retentive aren’t you? Too bad you couldn’t make it in the PAC 12 brother.

  17. ColKlink says:
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    How about rules about the NBR actually following the rules as approved by the House of Delegates and the Rule of Law instead of going after whistleblowers. It has become more of kill the messenger, especially with Bryan Cave and the recently departed members.

    • Sam says:
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      I agree with COLKLINK. USA Swimming should follow the rules and regulations already on the books (including the power to act on state and federal laws). There is no point to continually create new violations when they won’t hold offenders accountable for current violations.

      How many people have been banned under 304.3.14 – Any act of fraud, deception, or dishonesty in connection with any USA Swimming-related activity?

      I think all three of these recommendations will fail. Adult relationships are not illegal. Peer to peer sexual abuse is too subjective. Many schools learned this with the zero tolerance policy (it’s pretty bad when a 6 year old boy gets suspended for saying his teacher was “cute”). Would it be considered aiding and abetting if a coach gave an athlete the phone number of a banned coach?

      I feel that these recommendations give clubs more power to discriminate against individuals and do little to protect the athletes.

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        Sam,

        Under what kind of circumstance do you imagine it would be ok, or even wise, for a coach to give ANY contact information to a banned coach? And to what possible end? The role of a coach/USA Swimming should alway be to protect swimmers from such people. That is why the gaping hole in the proposed 304.3.14 is so negligent. It still allows for the continued involvement of banned individuals in USA Swimming.

        • Sam says:
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          Steve,

          The discussion above states that an athlete could still swim for a banned coach independently of their club. What if an athlete wants to get in touch with a banned member and asks a coach for the phone number of the banned member? I didn’t say that the coach should give contact information about an athlete to a banned member.

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            Sam,

            The proposed 304.3.14.B states:
            “B aid or abet coaching or instruction of athletes by any person who has been placed on the USA Swimming list of “Individuals Permanently Suspended or Ineligible,” or”

            It seems clear that for a USA Swimming member to provide contact information to assist a swimmer to be coached by a banned USA Swimming member would be a violation – as it should be. Why would anyone want to encourage or help a swimmer to work with someone who has been banned by USA Swimming? Think of the liability the the coach and the club would be opening themselves up to should anything happen to that athlete while working with the banned coach. There is a lot of this that is complicated, but that part seems to be a clear no-brainer. USA Swimming members (clubs, coaches, non-athletes, athletes) should be making sure that banned members have no access to USA Swimming athletes – otherwise, what is the point of a permanent ban?

            Currently and even under the proposed changes above, banned individuals can still be part of USA Swimming clubs and meets, including Grand Prix and National level events as volunteers and sub-contractors in non coaching/nstructional roles.

          • Braden Keith Braden Keith says:
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            I think the point being made is: “will this be a legislation of intent”.

            If someone asks for their info but doesn’t say why, is that aiding or abeting them to coach?

            All of a sudden, it becomes a nerve-wrecking situation for anybody who happens to know a banned coach. Questions about whether or not you’re doing something wrong…I can understand why that would be stressful.

            Like the rule, I just think there’s some fair room for clarification before it’s passed.

  18. sandy says:
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    The way I read the sexual relationship proposal – it seems that if an athlete and a coach wanted a relationship, the athlete can swim with a different coach within the club or the coach can coach a different group. This still does not prevent the fifty year old coach from dating an eighteen year old girl who swims in the club but does not swim in this coach’s group.

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About Braden Keith

The most common question asked about Braden Keith is "when does he sleep?" That's because Braden has, in two years in the game, become one of the most prolific writers in swimming at a level that has earned him the nickname "the machine" in some circles. He first got his feet …

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