Digging In On SafeSport’s Investigative Process, Ban Terminology

The U.S. Center for SafeSport took over last year as the sole authority in investigating allegations of coaching abuse and handing out multi-sport bans. But 20 months after the Center’s establishment, much of its inner workings and ban language remains somewhere between heavily secretive and wildly confusing.

We reported a number of details about the Center last spring, including a brief look at the investigative process. But as the bans have piled up (currently 33 names appear for the sport of swimming in the Center’s searchable database since March 2017) and different ban terms have appeared in the SafeSport database, questions have arisen as to where each name is in the overall investigative process. We’ve spent much of the time since our original profile connecting with SafeSport representatives to nail down more details about the process and the definitions of terms that appear in the data base. While discovering all the details of the system is still very much a work in progress, we’ll relay the important pieces we’ve uncovered so far.

Investigative Process

Part of what makes the process so difficult to understand is that the Center has been given a lot of flexibility within its system. A report of coaching misconduct can trigger the investigative process, but the Center can also initiate the process without a formal report. Being arrested or formally charged with a crime is by itself a violation of the SafeSport Code, and can start the investigative process. If someone is convicted of a crime, the Center can immediately end its investigation, conclude that a Code violation happened and issue a ban – but could still carry out its own investigation instead. If someone is found not guilty of a criminal charge, pleads guilty to a lower charge or has the charges against them dropped, the Center can take that into consideration regarding ongoing investigations or sanctions, but doesn’t have to.

All that is to say it’s hard to pin down a one-size-fits-all timeline for how investigations proceed. The Center has also been willing to answer lots of our questions about the process in general, but has also made clear it won’t comment at all on specific investigations, which has made it difficult to pin down where in the process a specific case is.

That said, from examining the SafeSport Code and asking Center reps, we’ve found the rough outline of the process to look like this:

1. Center Learns of a potential violation

This could be a formal report of abuse. It could also be criminal charges filed against a “covered individual” (the full covered individual definition is in our previous report), or an old criminal charge/conviction that is now brought to the Center’s attention.

The Center holds exclusive jurisdiction over allegations of sexual misconduct and retains ‘discretionary jurisdiction’ over non-sexual misconduct allegations, in concert with National Governing Bodies.

2. Preliminary Inquiry

The Center starts its proceedings with what is called a “preliminary inquiry” – essentially a three-step test to determine whether the matter should move on to a full investigation, in some ways like a Grand Jury hearing in the legal system. The preliminary inquiry has three pieces, essentially evidence, jurisdiction and the specifics of the code.

In a preliminary inquiry, the Center determines whether

• (a) there is reason to believe that
• (b) a covered individual
• (c) violated the SafeSport code

In more layman’s terms, the inquiry is looking at how much evidence there appears to be, whether the accused person falls under SafeSport’s authority and whether the accused action violates a piece of the Code.

3. Full Investigation

The Code says that the investigator(s) “may” follow a set of steps that include notifying both the accused (“responding party”) and the person who reported the potential violation (“reporting party”) of the investigation. Other steps listed include interviewing both parties and any witnesses, and documenting other investigative efforts.

A full investigation is the next step laid out in the SafeSport Code, but isn’t the only path from this point. The Code terms a full investigation as a “formal resolution“, but also allows the Center to reach an “informal resolution” at any point in the process. An informal resolution is an immediate, final disposition of the matter.

At any point during the process, the Center may also ask for “interim measures” – essentially interim sanctions against the accused while the investigation plays out. Seeking interim measures requires a separate hearing. Those with interim measures against them appear in the Center’s searchable database with more details on their interim measures, which can include full suspensions or specific restrictions.

For a name to be added to the SafeSport database, a formal resolution or informal resolution must be reached, or an interim measure must be handed out.

4. Decision

Once the investigation wraps up, the director of the investigation hands down a ruling. The Center itself operates on a different standard of evidence than a legal proceeding: the Center makes a decision based on the “preponderance of evidence” rather than a criminal proceeding’s more strict requirement to prove guilt beyond a reasonable doubt. The director’s decision includes whether the accused is found to have violated the Code and if so, what sanction will be imposed.

If there’s a sanction, the violator’s name now appears in the SafeSport database with their violation and their sanction.

5. Arbitration

After a decision, either side has a right to request arbitration, which is essentially the appeals process. Either side has five business days to request an arbitration hearing. One arbitrator hears both sides and ultimately issues a final and binding decision.

6. Reopening a case

The Center also has the ability to reopen a case at any time after an informal resolution, decision or arbitration. But whoever requests that the case be reopened must summarize any new evidence and how it could impact the case. The director of the investigation has the sole decision of whether or not to reopen a case.

Understanding the Banned Database

All violations since March of 2017 are included in the Center for SafeSport’s database. Older violations are still tracked on USA Swimming’s banned list, which should also reflect any names added to SafeSport’s database. You can search by sport to see all the swimming names listed.

However, there’s been some confusion as to what each designation means. We reached out to the Center for clarification on some key terms:

Official sanctions, listed in red:

• Permanently ineligible – the person has been banned, either through the entire investigative process above or based on a criminal conviction.
• Suspension – the person has been suspended for a specific period of time. (Usually the specific time frame is listed on USA Swimming’s temporary banned list)
• Interim Measures – the person has an interim sanction against them while the Center’s investigative process continues
• Ineligible – the person has been banned, but the window for arbitration is still open. Once the arbitration window closes, their sanction will be changed to “permanently ineligible”

Specific violations, listed under the person’s name:

• (subject to appeal / not yet final) – this one has been particularly confusing for readers at times. SafeSport reps have explained to us that it means very much the same thing as the “ineligible” tag. The person has been investigated and banned (through step 4 above). During the five days the arbitration window is open, the database should show the “subject to appeal / not yet final” tag. After the arbitration window closes, we’re told the tag should go away. In some cases, though, the “subject to appeal / not yet final” tag has remained well past five days. We asked if that implied that the arbitration process was ongoing, and were told that is a possibility: “an individual may have requested an arbitration, so it would remain in the database accordingly,” a spokesperson told us of the “subject to appeal / not yet final” tag.

The Center did pass along some data on its overall decisions, showing that of 1,368 reports (in all sports) since March of 2017, 381 led to disciplinary actions of some sort. 222 were permanent suspensions. Here are the numbers as provided to us by the Center:

• Total reports: 1,368
• Reports found to be under the Center’s exclusive authority: 76%
• Disciplinary actions taken (suspensions, full bans, interim measures): 381
• Permanent bans: 222
• Cases still open: 800
• Cases closed: 568

The Center wasn’t able to provide data on how many cases see interim measures taken during the process.

What it means for SwimSwam’s Coverage

Understanding the Center’s process is essential to crafting our own policy of how to report on abuse allegations and investigations of swimming-related figures. It’s also important for our readers to understand the process and what the various sanction definitions mean.

Gaining clarity on specific cases has been difficult. As a policy, the Center for SafeSport won’t comment on specific cases, even to clarify how a banned member was involved in the sport (coach, athlete, official) or if their ban is in regards to a current legal matter or allegation or a criminal matter or allegation from the past. The database only lists a name, a city and a violation, though we’ve been told the Center will continue to update their database based on feedback.

Previously, we’ve worked to uncover more details (court records, arrests, public allegations) before reporting on names with interim sanctions or sanctions listed as “not yet final.” Previously, when USA Swimming managed all SafeSport violations, the lines were more clear-cut. A coach was added to the publicly-banned list when the appeal process was completed. The best parallel we could draw was the US Center for Safe Sport’s “Permanently ineligible tag,” and so that’s where our reporting focused, in the absence of a specific accusation that we could point to or a criminal charge.

However, with a better understanding of the process involved before an interim measure is handed down (and with the clarification on “subject to appeal” designators), we now have a better understanding of what these different designations mean. Moving forward, we now will be better-equipped to report these interim suspensions and explain to our readers what they mean.