What safeguarding lessons can we learn from the Larry Nassar case?

Sports organisations face unique safeguarding challenges. The often-close relationship between coaching staff and athletes, the self-sacrificing win at all cost mentality, the potential rewards of fame and fortune for those who make it, and the necessitated long periods of absence away from home leave athletes particularly vulnerable to abusive behaviour.

One recent very public example of this is the abuse perpetrated by Dr Larry Nassar. On the surface, Larry Nassar was a well-respected family man at the forefront of his field. He was employed by Michigan State University at the school of osteopathic medicine and was the USA Gymnastics national team doctor. Since 1994, he used this position and power to perform medically inappropriate exams for his sexual gratification. Despite numerous disclosures from victims, Nassar was left unchallenged and abused up to 400 individuals over three decades.

With the release of Netflix’s new documentary Athlete A, the focus has rightly shifted away from Larry Nassar as a perpetrator of abuse, towards the institutions and organisations that gave him access to adolescent girls and failed to protect the athletes in their care. In this article, we will discuss how Nassar abused his position of power to sexually abuse athletes, the importance of an organisational commitment to safeguarding, and offer insight into how organisations should respond to disclosures of abuse.

"If just one adult had listened, believed, and acted, the people standing before you on this stage would have never met him."
Aly Raisman (Survivor)

What went wrong?

After his conviction, the United States Olympic Committee commissioned an independent law firm led investigation. The report drew upon over 100 witness interviews and reviewed over 1.3 million documents. It concluded that numerous institutions and individuals enabled his abuse, ignored warning signs and failed to recognise textbook grooming behaviours. Such behaviours included his direct use of authority to offend, providing support to isolated and vulnerable athletes, and eroding boundaries with victims to normalise inappropriate touching.

The report also concluded that the high-performance gymnastics environment was particularly conducive to abuse. The overwhelming presence of young girls, the accepted intimate physical contact between athletes and trainers, and the social isolation of athletes due to the high demands of training created cultural norms that eroded normal impediments to abuse. It is clear that in this environment there needed to be an implementation of, and rigorous adherence to, formal structures and policies reflecting the highest standard of care and that these high standards and expectations about behaviour and conduct should have been embedded into the culture of the organisations in which Nassar was working. However, the organisations around Nassar clearly failed in their endeavours to create a culture that protected young and vulnerable athletes.

The need for organisational leadership

It is apparent that the organisations granting Nassar access and opportunity to abuse were negligent in their approach to protecting athletes. The United States Olympic Committee (USOC) outsourced any decisions regarding on-the-ground child-protective practices to the National Governing Bodies. They maintained minimal oversight and peripheral involvement in safeguarding. The United States of America Gymnastics (USAG) had implemented an array of sexual misconduct policies that ranged from the proactive and well-intentioned to the convoluted and detrimental. USAG repeatedly declined to respond adequately to concrete reports of specific misconduct, and instead erected a series of procedural obstacles that inhibited their ability to respond in a timely fashion and effectively report abuse.

"These institutions and individuals ignored warning signs, failed to recognise textbook grooming behaviours, and on occasion dismissed clear calls for help from those being abused by Dr.Nassar. Multiple law enforcement agencies, in turn, failed effectively to intervene when presented with opportunities to do so."
The Constellation of Factors Underlying Larry Nassar’s Abuse of Athletes New York, Ropes and Gray

One of the key takeaways from the Nassar case is the importance of organisational accountability. Safeguarding is ultimately everyone’s responsibility. In order for sport to be safe, enjoyable and inclusive, a culture of care is required that must penetrate every level of an organisation’s hierarchy. Senior leadership must take an interest and be actively involved in the shaping of a child safe environment. They must adopt a proactive approach, led by example, collaborate with organisations that have subject expertise, and remove the taboos by talking publicly about the subject.

Leadership involvement can help create a top-down culture of care which puts safeguarding at the top of the agenda. It is therefore essential that safeguarding educational efforts must also be aimed at an organisation’s senior team and key stakeholders. By learning about their safeguarding responsibilities, their organisation’s specific safeguarding vulnerabilities, and the safeguarding standards and tools available, organisations can be better positioned to give child and athlete protection the focus it requires.

Education will ultimately lead to both wider and organisational safeguarding awareness. This could manifest itself as a recognition of organisational weaknesses and an appropriate safeguarding strategy, which could include bringing in external individuals with skills and experience in safeguarding to fill in the gaps that exist within the board structure. It should also include creating clear mandated policies, systems and mechanisms for reporting concerns that focus on the athletes and have a seamless sense of safeguarding that impacts all level of the sport.

With ongoing safeguarding educational efforts and a constant monitoring of safeguarding risks and vulnerabilities at a senior level, organisations can provide victims with the confidence that abuse will be appropriately investigated and acted upon. The Nassar case demonstrates that ignorance is not an appropriate excuse for lacklustre and ineffective child protection measures.

Responding appropriately to disclosures

Disclosures concerning Nassar’s abuse had been made by various victims to coaches, trainers and other adults since 1998. However, the responses to these disclosures were overly dismissive and often gave the benefit of the doubt to Nassar as an Olympic doctor. As a result, more young people were abused, no support was provided to survivors coming forward, and Nassar evaded justice for decades. Not enough care was given to the vulnerable victims coming forward which ultimately must have discouraged others from doing so.

Given the failure by the responsible sporting organisations to respond properly to survivor accounts, it is worth noting the following points which should be kept in mind when receiving a disclosure of inappropriate conduct or sexual abuse:

1. Listen to the disclosure and allow the individual to use their own words. Judgemental and assumptive language should be avoided, and personal opinions should not be shared. The individual receiving the disclosure should ask open questions, record what has been communicated, and acknowledge how difficult it must have been for the victim to come forward.
   
   
2. Do not ask for evidence in the preliminary disclosure conversations. It is incredibly rare to see physical documentary evidence during this initial stage. Just because evidence may not be shared does not mean that the disclosure should not be taken seriously.
   
   
3. Explain to the victim what will be done with the shared information. Do not promise unrestricted confidentiality as it is unlikely that you will be able to keep it.
   
   
4. Report the disclosure to the safeguarding lead and seek advice from child protection authorities. They can assess any immediate safeguarding risks and take appropriate action to mitigate the chance of further abuse. It is therefore important to develop a good working relationship with the police and other statutory agencies.
   
   
5. Instigate an appropriate investigation. This will require hiring an experienced and independent investigator who will instil confidence in the process and ensure a fair but proportionate response.
   
   
6. Follow your organisation’s safeguarding policies. Having a mandated procedure in place is vital, but they must be enacted and adhered to.

"If we don’t learn from what went wrong with the Nassar case and with so many coaches who were allowed to abuse in various forms, not just sexual but emotional and physical, it leaves the next generation at risk and these cycles just keep perpetuating."
Rachel Denhollander (Survivor)

It is ultimately a good thing if individuals feel safe enough to make disclosures and raise concerns as part of a “speak up” culture. It shows the system is working. If an organisation’s culture encourages athletes to do so by responding appropriately to concerns, by offering suitable support, and by positioning safeguarding at the forefront of senior level considerations, individuals like Larry Nassar will not be allowed to operate unchallenged.

If you require further information about anything covered in this briefing, please contact Katie Fudakowski, or Maria Strauss, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2020