Everyone can agree sexual assault is repugnant.
At the same time, the bedrock principle of American justice is innocent until proven guilty.
It’s unclear if that bedrock principle has found itself into the SafeSport rules.
The many tensions in the rules — if not some of their most vivid flaws — have come yet again into focus amid the emotions stirred by a SafeSport case involving the Lopez taekwondo clan.
Jean Lopez, left, and brother Steven at the Beijing Games // Getty Images
On Friday, as USA Today reported, SafeSport temporarily removed Jean Lopez from its database of sanctioned individuals; he reappeared Friday afternoon with an interim restriction.
His lawyer, Howard Jacobs, declining to discuss specifics of the SafeSport process, said Lopez is no longer banned from coaching but may not have contact with women alleging sexual misconduct.
In a separate process, Jean and Steven Lopez, a multiple Olympic medalist, were named in May in a would-be class-action lawsuit filed in federal court in Colorado. Also named: the U.S. Olympic Committee and USA Taekwondo.
In that story Friday and in another published Sunday in USA Today, and in a piece published Saturday in the Houston Chronicle, lawyers for the women did what they are supposed to do — advocate zealously for their clients, propounding sound bites for the court of public opinion. All good.
Process does not lend itself as readily, however, to sound bites.
Even so, process is what’s at issue here.
A struggle over process is why a potential SafeSport arbitration hearing for Jean Lopez could not and did not go forward, for instance — a conflict over, among other matters, whether the rules say the women accusing Lopez would have to testify in person and be available for cross-examination.
In Sunday’s USA Today story, attorney Stephen Estey told the paper, “I told them, postpone arbitration for two or three months until after we take the depositions for the civil case.” The theory: not having the women be subjected to potential trauma twice.
Again, all good, and especially for the casual reader — except that the federal lawsuit was just filed in May, it’s unclear if it will survive the dismissal stage, class-action certification (if it gets there) takes a good deal of time after that and then the lawyers might get around to depositions.
In the typical case: way longer, most probably, than two or three months.
At any rate:
It is entirely natural, and appropriate, for lawyers — particularly plaintiff’s lawyers — to seek to resort to emotional appeals. It also must be acknowledged that we are in the midst of the #MeToo movement and are being shaped in ways that perhaps only history can and will assess by the horrific revelations tied to Larry Nassar’s crimes.
All the same:
The SafeSport system, as it stands, holds certain fundamental, indeed disconcerting if not outright worrisome, concerns:
— Interview summaries have tended not to be under oath and not recorded.
— The "Reporting Party" has the option to say she or he will only answer questions from the arbitrator; the arbitrator is not required to ask every question that is submitted; the art of cross-examination, as every law student learns, is fundamental to notions of justice.
— It's presumed that minors don’t have to testify at all. Which means that the only evidence that might well be submitted would be that interview summary. There would be no ability for the accused or the accused’s lawyer to ask any questions of that minor.
— There’s no “discovery,” the legal term for fact-finding by lawyers around a case, “except in exceptional circumstances as ordered by the arbitrator.” This may keep costs down. But does it blunt the search for the truth?
— Unless there are “exceptional circumstances” — that phrase again — a hearing is “expected” to be done in a “single, eight-hour business day.” What complex legal proceeding has ever gotten done in one day? What shortcuts might or might not get taken to get that done?
As USA Today reported, though Safe Sport had been closing cases in an average of 63 days, it took more than a year to reach a decision in Jean Lopez’s case. Then, according to its rules, a hearing was going to get done in — eight hours?
A typical proceeding:
SafeSport issues its decision, which is permanent ineligibility. The accused can request a hearing. It’s solely up to SafeSport to decide whether to lift that suspension during the time the case is pending. Inevitably, that means the accused is suspended.
What, though, if SafeSport finds it has no witnesses?
If SafeSport decides its case is not strong enough to go to a hearing, what then?
When all the witnesses in the Jean Lopez matter said they wouldn’t testify, SafeSport had a choice: the agency could go forward with no witnesses and, in all likelihood, lose. Or it could try to delay the hearing for some indefinite period of time — but to get the arbirator to agree, it would almost certainly have to lift the suspension.
To reiterate: sexual assault is appalling.
But everyone deserves due process, even someone accused of the worst.
And SafeSport — if it is to become an institution in which everyone cannot just believe but rely — needs to do better. In the doping sphere, the rules were developed after all-in buy-in from stakeholders.
Here, these are reasonable questions:
Who designed, developed and put these procedures in place?
Who else should have been consulted?
And what needs to be done, now, to make this better?