Authority of the United States Olympic Committee to Send American Teams to the 1980 Summer Olympics ( 1980 )

Authority of the United States Olympic Committee to Send
American Teams to the 1980 Summer Olympics
T h e A m ateur Sports A ct o f 1978, 36 U.S.C. §371 el seq.. does not com pel the United
States O lym pic Com m ittee to send A m erican team s to any Olym pics.
T h e United States O lym pic Com m ittee m ay w ithdraw its delegation at any time before
final entries are made.
T h e A m ateur Sports A ct o f 1978, 36 U.S.C. § 371 et seq.. does not create any substantive
right in an individual athlete to participate in a particular Olym pic.
April 10, 1980
T he P r e s id e n t
M y D e a r M r. P r e s i d e n t : Y o u have requested my opinion on the
question whether the United States Olympic Committee (USOC) has a
legal duty, under the Amateur Sports A ct of 1978, 36 U.S.C. § 371 et
seq., to send a team of American athletes to the Summer Olympic
Games in Moscow. For reasons stated below, it is my opinion that no
tenable argument can be made that the USOC is required to send an
American team to the Moscow Games. To the contrary, I believe that
the Amateur Sports Act gives the USOC discretion not to send a team
to any particular Olympic Games, including the Moscow Games.
There would appear to be only two conceivable bases for an argu­
ment that the USOC is legally bound to send an American team to the
Moscow Gam es.1 One argument might be that the Amateur Sports Act
of 1978 grants no discretion to the USOC to refuse to send an Ameri­
can team to any particular Olympic Games no matter what the circum­
stances might be. Another argument would be that the Amateur Sports
A ct of 1978 creates in individual athletes a substantive legal right to
compete in any particular Olympic Games if they otherwise qualify to
compete on the basis of their performance in competition with other
athletes for berths on our Olympic team. I will address each of these
arguments in turn.
The Amateur Sports Act of 1978 recognized and established the
USOC as a federally chartered corporation, inter alia, to “exercise
l W e d o n o t b e lie v e th a t § 202(a)(5) o f th e A m a te u r S p o rts A c t o f 1978, 36 U .S .C . § 392(a)(5), to
w h ic h C o u n sel to th e P re s id e n t L lo y d C u tle r's le tte r o f A p ril 9, 1980, refers, is re le v a n t. T h e O ly m p ic
G a m e s a r e n o t c o n d u c te d u n d e r th e a u sp ic e s o f th e n a tio n a l g o v e rn in g b o d ie s a n d n ee d n o t m e et th e
re q u ire m e n ts o f § 202(b), 39 U .S .C . § 392(b).
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exclusive jurisdiction . . . over all matters pertaining to the participa­
tion of the United States in the Olympic Games . . . ” § 104(3), 36
U.S.C. § 374(3).2 The creation of the USOC as a corporation rather
than a government agency is, I believe, important to an understanding
of its powers regarding the participation of an American team in any
particular Olympic Games. Although the USOC does not have all the
powers normally associated with a private corporation, such as the
power to issue capital stock,3 its creation as a corporation having most
of the powers associated with private corporations suggests quite
strongly a congressional intent to vest in it wide discretion to take any
action not specifically precluded by the Amateur Sports Act of 1978.
No provision of the Amateur Sports Act of 1978 expressly precludes
the USOC’s making a decision not to participate in any particular
Olympic Games. Nor does any provision of that Act, by implication,
preclude the USOC’s making such a decision. Indeed, I believe that the
1978 Act should be read to assume congressional awareness that under
the rules of the International Olympic Committee (IOC), national
Olympic committees established by countries to represent them on the
IOC could decide not to participate in any particular Olympic Games.
For example, in 1976 numerous African nations through their respec­
tive Olympic bodies declined to send teams to or withdrew teams from
the Summer Games in Montreal. Congress may be charged, I believe,
with enacting the 1978 Act with that recent history in mind. In addi­
tion, there is no sanction if a delegation withdraws before “final en­
tries” have been made.4 Moreover, the current IOC bylaws state that
national Olympic committees such as the USOC—
shall organize and supervise their country’s representation
at the Olympic Games. Representation covers the decision
to participate . . . .5
Given that § 105(a)(2) of the Amateur Sports Act of 1978, 36 U.S.C.
§ 375(a)(2), establishes the power of the USOC to “represent the United
States as its national Olympic committee in relations with the Interna­
tional Olympic Committee,” I believe that Congress intended in enact­
ing that Act that the USOC would be empowered to decide not to
participate in any particular Olympic Games.
Under my analysis above, I believe the argument that the 1978 Act
created substantive legal rights in individual athletes to participate in
2 U n d e r § 105(a)(3), 36 U .S .C . § 375 (a)(3), th e U S O C is e m p o w e re d to “ o rg a n iz e , fin a n ce, a n d
c o n tro l th e re p re s e n ta tio n o f th e U n ite d S ta te s in th e c o m p e titio n s a n d e v e n ts o f th e O ly m p ic
G am e s. . . .“
3 36 U .S .C . § 378.
4 R u le 25 o f th e R ules o f th e In te rn a tio n a l O ly m p ic C o m m itte e (1979) (IO C R u le). A lth o u g h “ final
e n trie s ” is n o t defin ed , it a p p e a rs to re fe r to th e e n try fo rm c o n ta in in g th e n am es a n d n u m b e rs o f
c o m p e tito rs w h ic h m ust b e s u b m itte d to th e O rg a n iz in g C o m m itte e o f th e O ly m p ic G a m e s n o la te r
th a n 10 d a y s b efo re th e re le v a n t O ly m p ic c o m p e titio n s begin. IO C R u le 36, 4; B y la w V , 8 to IO C
R u le 24.
5 B y la w V , 7, to IO C R ule 24.
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any particular Olympic Games may be disposed of summarily. Under
§ 114 of the Act, 36 U.S.C. § 382(b), the USOC “shall establish and
maintain provisions for the swift and equitable resolution of disputes
involving any of its members and relating to the opportunity of an
amateur athlete . . . to participate in the Olympic Games . . . .” (Em­
phasis added!) Although it might be argued that Art. IX, § 1 of the
USOC Constitution,6 read literally, suggests the existence of a right of
individual athletes to participate in particular Olympic Games “if se­
lected,” the language of § 114 and its legislative history contradict the
suggestion that this “right” was to be viewed as a substantive restric­
tion on the USOC’s power to make the participation decision. Thus,
while the report issued by the Senate committee recognized a “right to
take part in the Olympic Games,” the context in which that “right”
was described demonstrates that Congress’ concern in §114 was to
prevent athletes from being “used as pawns by one organization to gain
advantage over another.” S. Rep. No. 770, 95th Cong., 2d Sess. 6
(1978).7 See also H.R. Rep. No. 1627, 95th Cong., 2d Sess. 15 (1978).
In view of the historical understanding and practice regarding the
power of national Olympic committees to make participation decisions,
and given that no provision of the Amateur Sports Act of 1978 ex­
pressly or implicitly qualified that understanding, I do not believe that a
tenable argument can be made that the USOC is required by law to
send an American team to the Moscow Games. In reaching this conclu­
sion, I do not mean to suggest that Congress could not, by statute,
accomplish that end or otherwise dictate the course the USOC is to
follow in this matter. I merely conclude that in enacting the 1978 Act,
Congress implicitly recognized the preexisting understanding that the
USOC, as our country’s national Olympic committee, would have the
power to make a decision whether to participate in particular Olympic
Games.
Sincerely,
B e n ja m in R. C iv ile tti
6 N o m e m b e r o f th e U S O C m ay d e n y o r th re a te n to d e n y an y a m a te u r a th le te th e o p p o rtu n ity to
c o m p e te in th e O ly m p ic G a m e s, th e P a n -A m e ric a n G a m e s, a w o rld c h a m p io n s h ip c o m p e titio n , o r
o th e r su ch p ro te c te d c o m p e titio n as d e fin e d in A rtic le I, § 2(g); n o r m ay a n y m em b er, su b se q u en t to
s u c h c o m p e titio n , ce n su re , o r o th e rw is e pen a lize , (a) a n y su ch a th le te w h o p a rtic ip a te s in su ch
c o m p e titio n , o r (b) a n y o rg a n iz a tio n w h ic h th e a th le te re p re se n ts. T h e U S O C sh all, b y all law fu l
m e a n s a t its d isp o sal, p r o te c t th e rig h t o f an a m a te u r a th le te to p a rtic ip a te if se le c te d (o r to a tte m p t to
q u a lify fo r s e le c tio n to p a rtic ip a te ) as an a th le te re p re s e n tin g th e U n ite d S ta te s in an y o f th e afo resaid
c o m p e titio n s .
7 E v e n if § 114 w e re v ie w e d as g ra n tin g a s u b sta n tiv e rig h t to " s e le c te d ” a th le te s to p a rtic ip a te in
an y p a rtic u la r O ly m p ic G a m e s, th e le g isla tiv e h is to ry o f th a t p ro v isio n in d ic a te s th a t th e rig h t
c o n f e r re d w o u ld be lim ited to p ro te c tio n fro m “ a n a rb itra r y ru le w h ic h , in its a p p lic a tio n , re stric ts, fo r
n o real p u rp o s e , an a th le te 's o p p o rtu n ity to c o m p e te ." S. R ep. N o. 770, at 6.
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