What Could Possibly Go Wrong?

We lawyers are often accused of thinking of the worst possible scenario. In my profession’s defense, this behavior is learned from decades of seeing all the things that can sometimes go wrong for our clients. This time of year SDPAA Members are especially busy maintaining public facilities that are used for outdoor activities such as baseball and softball. We never want to think that anything could go wrong, but it is Murphy’s Law—yes, something can go wrong.

SDPAA Members have been encouraged for years to have proper facility-use agreements for many good reasons. Another good reason has recently received more national attention. The activities taking place at our public facilities this time of year are often youth sports activities. Tragically our country is experiencing a silent epidemic of child sexual abuse where an estimated one in ten children will be the victim of sexual abuse before their 18th birthday. Last year the U.S. Congress passed and President Trump signed into law The Safe Sports Act of 2017, or the federal Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017 (“the Act”). The Act was primarily a response to the scandal involving U.S. Gymnastics’ former National Medical Director; however, the Act may directly or indirectly impact all amateur youth sports.

The Act essentially expands existing state laws on who is a “mandatory reporter” who must report any known or suspected child abuse or neglect. SDCL 26-8A-3 contains South Dakota’s list of mandatory reporters, who include anyone who has regular access or communication with children who has reason to believe a child has been abused or neglected, including teachers, medical providers, law enforcement officers, and any custody staff employed by any agency responsible for the rehabilitation or treatment of any adjudicated adult or juvenile. State law requires the mandatory reporter to report any known or suspected abuse or neglect to the State’s Attorney of the county where the child resides or is present, to the SD Department of Social Services, or to local law enforcement. All such reports and investigative case records are confidential, and any reporter is immune from liability as long as the report was made in good faith. SDCL 26-8A-14. The South Dakota Department of Social Services has a training video for mandatory reporters which can be found at https://apps.sd.gov/SS60Reporter VideoTraining, or accessed from the DSS website at dss.sd.gov. Mandatory and timely reporting is vital to prevent further abuse.

The Act’s mandatory reporters in the realm of youth sports now include “covered individuals” who are authorized by an amateur youth sports organization that participates in interstate or international amateur athletic competitions to interact with a minor amateur athlete at an amateur sport organization facility or at an event (including travel, practice, lodging, competition, and medical treatment) sanctioned by an amateur sports organization. The Act applies to those sports organizations known as the “National Governing Bodies (NGB)” such as U.S Gymnastics or Paralympics and their member organizations. It also affects non-NGBs such as teams, leagues, camps, sports facilities, tournament hosts, churches, and schools that participate in interstate or international amateur athletic competitions, and whose membership includes any adult who is in regular contact with an amateur athlete who is a minor. It is estimated that the Act will spark state-specific legislation that directly applies even to sports organizations that do not cross state lines. The Act creates civil and criminal liabilities for those who fail to report. The Act creates a standard of negligence, or “negligence per se” for a violation of the Act for those who fail to report. The report must also be made to the appropriate authorities as soon as possible or within twenty-four hours.

The Act requires due diligence for youth sports leagues, where most have now adopted requirements for criminal background checks for coaches and any adult volunteers. The youth sports leagues affected must also ensure preventative training occurs for all adults who are interacting with the minor participants. Most national youth sports leagues provide local sports teams with cost-effective access to training materials on how to identify and how to prevent child abuse or neglect.

Schools have already been operating under these requirements. The Act could also impact youth sports activities taking place at facilities owned by other local governments. Many local governments have constructed sports facilities and community centers that are able to host youth sports tournaments or activities for teams from other states. Local governments should require these youth sports leagues to execute proper facilities use agreements to use our public facilities. The SDPAA website provides recommendations for a proper facilities-use agreement at sdpaaonline.org, under the “resources” tab. These recommendations can form the basis of a proper agreement in consultation with your entity’s attorney. A public facilities use agreement with anyone, but especially a youth sports league, should require that the user fully comply with all applicable federal, state, and local laws, including the Act. The league should be required to indemnify and hold harmless the public entity for any causes of action arising from its use of public facilities.

Even with all those contractual protections, the public entity should take extra precautions to ensure any of its employees who may deal with children are subject to criminal background checks and are trained on how to identify possible signs of suspected child abuse. These training resources are readily available as part of the comprehensive library of training materials available to all SDPAA Members. SDPAA Members also have access to loss control surveys and advice through our Member Services staff as well as through our partnership with Safety Benefits, Inc. at no additional charge. If you would like to speak with someone about any of these services, please contact the SDPAA office at 800-658-3633 option 2 or by email at sdpaa@sdmunicipalleague.org.

David Pfeifle
SDPAA Executive Director