Moscow as part of a presidential and congressional decision. Id. at
551-552, 107 S.Ct. at 2988 (1987) (Brennan, J., dissenting). San
Francisco Arts must be limited to its peculiar facts. While the Supreme
Court found that the "choice of how to enforce its exclusive right to use
the word `Olympic' simply is not a governmental decision," Id. at 547,
107 S.Ct. at 2986 (1987), withdrawal of an official United States team
from World Championships for reasons of gender discrimination athlete may
Private entities may be held to constitutional standards if their
actions are "fairly attributable" to the government. See, e.g., Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482
(1982). In Malesko v. Correctional Services Corporation, for example, the
court of appeals for the Second Circuit held that a Bivens claim based
upon a constitutional violation could be brought not only against an
individual federal agent, but also against private corporations acting
under the color of federal law. Malesko v. Correctional Services
Corporation, 229 F.3d 374, 377 (2d Cir. 2000). The court found that
"extending Bivens liability to reach private corporations furthers
Biven's overriding purpose: providing redress for violations of
constitutional rights." Id. at 380.
Conduct that constitutes state action must be determined on a
case-by-case basis by "sifting facts and weighing circumstances." Evans
v. Newton, 382 U.S. 296, 299-300, 86 S.Ct. 486, 488-489, 15 L.Ed.2d 373
(1966); See also, e.g., Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102
S.Ct. 2777, 73 L.Ed.2d 534 (1982) (setting forth criteria for determining
state action). While the Karate Federation does not receive any direct
federal funding, the Olympic Committee did provide a total of over forty
million dollars to all national governing sports bodies, including the
Karate Federation, in 1999. Without specifying an exact amount, Plaintiff
alleges that the Karate Federation received direct and indirect funding
from the Olympic Committee, and thus from the United States government,
and in fact was carrying out a federal program. Without further
development of the facts, it is not possible to conclude that the Karate
Federation was not acting under the color of federal law.
D. Ted Stevens Olympic and Amateur 1978 Amateur Sports Act of 1978
(36 U.S.C. § 220501 et. seq.) ("Sports Act")
One of the primary purposes of the 1978 Amateur Sports Act is to
"encourage and provide assistance to women in amateur athletic activity."
36 U.S.C.A. § 220503 (1994). As a national governing body, the Karate
Federation has a duty, without regard to gender, to provide amateur
athletes with an equal opportunity to participate in amateur athletic
competition; discrimination on the basis of sex is forbidden. See
36 U.S.C.A. § 220522(a)(8) ("an equal opportunity to amateur athletes,
coaches, trainers, managers, administrators, and officials to participate
in amateur athletic competition, without discrimination on the basis of
race, color, religion, sex, age, or national origin"). The duties of the
Federation as "a national governing body" include providing "equitable
support and encouragement for participation by women where separate
programs for male and female athletes are conducted on a national basis."
36 U.S.C.A. § 220524(6). The Federation must designate individuals
to represent the United States in international amateur athletic
competitions and allow such individuals to compete in such competitions,
provided that the organization conducting the competition meets the
requirements of the Sports Act. See 36 U.S.C.A. § 220523(a)(7)
(governing body may "designate individuals and teams to represent the
United States in international amateur athletic competition)" and
36 U.S.C.A. § 220524(5) (governing body shall "allow an amateur athlete
to compete in any international amateur athletic competition
conducted by any amateur sports organization or person" unless the body
demonstrates denial comports with the Sports Act). It is not contested
that the Karate Federation is a national sports governing body subject to
the Sports Act and to its anti-discrimination provisions.
1. Private Right of Action under the Sports Act
Even if a statute does not specifically provide for a private cause of
action, one may be implied. See Cannon v. University of Chicago,
441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979); Cort v.
Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). In deciding
whether Congress designed the Sports Act to permit a private remedy for
violations the following four Cort factors must be considered:
1) whether the plaintiff is "one of the class for
whose especial benefit the statute was enacted. . .
— that is, does the statute create a federal
right in favor of the plaintiff"; 2) whether there is
"any indication of legislative intent, explicit or
implicit, to create such a remedy or deny one"; 3)
whether it is "consistent with the underlying purposes
of the legislative scheme to imply such a remedy for
the plaintiff"; and 4) whether the cause of action is
"one traditionally relegated to state law, in an area
basically the concern of the States, so that it would
be inappropriate to infer a cause of action based
solely on federal law."
Alaji Salahuddin v. Alaji, 232 F.3d 305 (2d Cir. 2000) (citing Cort v.
Ash, 422 U.S. at 78, 95 S.Ct. 2080) (emphasis added).
In analyzing these factors, cases subsequent to Cort have refined the
inquiry looking to the "dispositive question" of Congressional design to
create a private right of action. Alaji Salahuddin v. Alaji, 232 F.3d 305
(2d Cir. 2000); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99
S.Ct. 2479, 61 L.Ed.2d 82 (1979) ("[T]he first three factors discussed in
Cort `the language and focus of the statute, its legislative history, and
its purpose' are ones traditionally relied upon in determining
legislative intent"). Plaintiff's case meets the first, third and fourth
prongs of the Cort inquiry. Cort, 422 U.S. at 78, 95 S.Ct. 2080.
The plaintiff is a female, "one of the class for whose especial benefit
the statute was created." Id. The purpose of the Sports Act includes
encouraging and providing "assistance to amateur athletic activities for
women." 36 U.S.C.A. § 220503 (12). The language of this statute
— which expressly identifies the class Congress intended to benefit
— is consistent with that found in statutes enacted to protect
specific classes of people. See Cannon, 441 U.S. at 690, 99 S.Ct. 1946
(implied right of action proper for Title VI, Title IX, and Voting Rights
Act when statutory language expressly identified class Congress intended
to benefit). The statute dictates that national sports governing bodies
provide an equal opportunity to amateur athletes to participate in amateur
athletic competition without discrimination on the basis of sex.
Plaintiff is a female amateur athlete seeking redress for violation of
that duty of non-discrimination.
A private remedy is consistent with the "underlying purposes of the
legislative scheme". Alaji Salahuddin v. Alaji, 232 F.3d at 308. One of
the primary goals of the Sports Act is to "encourage and provide
assistance to women in amateur athletic activity." 36 U.S.C.A. §
220503 (1994). The duties of the Federation include providing "equitable
support and encouragement for participation by women where separate
programs for male and female athletes are conducted on a national basis."
36 U.S.C.A. § 220524(6). Like Title VI and Title IX, the Sports Act
seeks to accomplish two related objectives — to "avoid the use of
federal resources to support discriminatory practices" and "protect
individual citizens against those practices." Cannon, 441 U.S. at 703, 99
S.Ct. 1946. Private federal enforcement furthers these purposes. Cf.
Alaji Salahuddin v. Alaji,
232 F.3d 305, 308 (2d Cir.2000). It is the athlete who suffers the
discrimination who has a strong incentive to sue on her own behalf,
thus giving practical and effective content to the statute. Congress's
words were not purely precatory.
The subject matter does not involve an area traditionally relegated
to the States. See Cort, 422 U.S. at 78, 95 S.Ct. 2080. As pointed out
in Cannon, "the Federal Government and the federal courts have been the
`primary and powerful reliances' in protecting citizens against
[discrimination on the basis of sex]." Cannon v. University of Chicago,
441 U.S. 677, 708, 99 S.Ct. 1946, 1964, 60 L.Ed.2d 560 (1979) (citing
Steffel v. Thompson, 415 U.S. 452, 464, 94 S.Ct. 1209, 1218, 39 L.Ed.2d
505 (1974), quoting F. Frankfurther & J. Landis, The Business of the
Supreme Court 65 (1928)).
Critical is the second Cort factor — the design of Congress to
provide a private remedy. An "explicit legislative purpose" to deny a
private cause of action is controlling. See Cannon v. University of
Chicago, 441 U.S. 677, 694, 99 S.Ct. 1946, 1956, 60 L.Ed.2d 560 (1979)
(citing Cort v. Ash, 422 U.S. at 82, 95 S.Ct. 2080). Here there is no
congressional expression. Nonetheless, a private right of action may
still be implied from a statute prohibiting conduct deleterious to
individuals. See Touche Ross & Co. v. Redington, 442 U.S. at 569,
99 S.Ct. 2479 (citing Cannon v. University of Chicago, supra
(20 U.S.C. § 1671), Johnson v. Railway Express Agency, Inc.,
421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (42 U.S.C. § 1981)).
The legislative history of the Sports Act does not indicate that
Congress wished to foreclose a private right of action. Prior to
passage of the Sports Act, Congress removed the athlete's "bill of
rights," which would have explicitly granted a private right of action
to anyone who was discriminatorialy denied the right to participate
in specific events. This history has led some courts to conclude that
plaintiffs have no private right of action under the Sports Act.
See, e.g. Martinez v. United States Olympic Committee, 802 F.2d 1275
(10th Cir.1986), Michels v. United States Olympic Committee,
741 F.2d 155 (7th Cir.1984), DeFrantz v. United States Olympic
Committee, 492 F. Supp. 1181 (D.D.C.), aff'd. without opinion,
701 F.2d 221 (D.C.Cir.1980); but see United States Wrestling
Federation v. Wrestling Division of AAU, Inc., 545 F. Supp. 1053
(N.D.Ohio 1982), aff'd, 711 F.2d 1060 (6th Cir.1983). Yet, the
"bill of rights" might have been eliminated because it was too
detailed and Congress was reluctant to interject itself too deeply
into sports concepts that were still developing. The court of
appeals for the Second Circuit has not yet addressed the matter.
Arguably, Congress struck the "bill of rights" to prevent countless
lawsuits from disgruntled would-be athletes. Cf. DeFrantz v. United
States Olympic Committee, 492 F. Supp. 1181, 1188-89 (1980) ("The
provision on which plaintiffs place reliance by analogy is
specifically concerned with eliminating the feuding between various
amateur athletic organizations and national governing bodies which
for so long characterized amateur athletics."). Fear of such
lawsuits could hinder teams from making decisions based purely on
athletic ability. Thus, Congress might simply have sought to
eliminate a broad private right of action. There is no indication,
however, that the athlete's "bill of rights" was removed from the
legislation to prevent women from exercising a private right of
action under the Sports Act in cases involving gross gender
discrimination of the type plaintiff alleges. Such suits would be
limited in scope since, for example, they would not involve
competition between males on men's teams or between females on
Congress has enunciated a strong policy against discrimination on
the basis of gender. See Santa Clara Pueblo v. Martinez, 436 U.S. 49,
98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (recognizing the "propriety of
inferring a federal cause of action for the enforcement of civil
rights, even when Congress has spoken purely in declarative
terms") (citations omitted). Where the conduct involves discrimination
between men and women, there is a strong presumption that this national
policy is reflected in the creation of a private right of action. Cf.
Cannon, 441 U.S. 677, 693 n. 13, 99 S.Ct. 1946, 60 L.Ed.2d 560 ("because
the right to be free of discrimination is a `personal' one, a statute
conferring such a right will almost have to be phrased in terms on the
The legislative history does not demonstrate that the athlete's "bill
of rights" was removed to prevent women from exercising a private right
of action under the Sports Act in cases involving discrimination. The
other three Cort factors point toward an implied private right of
action. Cf. Touche Ross & Co. v. Redington, 442 U.S. at 569 (silence
of legislative history considered along with plain language and purpose
of statute to determine private remedy). A narrow right of action
regarding sex discrimination by national governing sports bodies may
2. Failure To Exhaust Administrative Remedies
A member of a national governing body may seek to compel the
national governing body to comply with the Sports Act by filing a
written complaint to the Olympic Committee. See 36 U.S.C.A. § 220527(a).
If the party disagrees with the disposition of her complaint, she
"may" now obtain review by the American Arbitration Association. See
36 U.S.C.A. § 220529. Thus, the statute allows for arbitration, but
does not require it. Plaintiff alleges the Karate Federation's Bylaws
do not require one of the members to seek binding arbitration to
resolve a controversy involving her opportunity as an amateur athlete;
they do require the Federation to submit to binding arbitration to
resolve such a controversy.
If administrative remedies will not address a plaintiff's claim for
monetary damages, exhaustion of administrative remedies is not
required. See Barbara v. New York Stock Exchange, 99 F.3d 49, 57 (2d
Cir. 1996). When the administrative body has demonstrated a bias or a
predetermination of issues before it, the exhaustion of administrative
remedies is not required. See McCarthy v. Madigan, 503 U.S. 140,
146-147, 112 S.Ct. 1081, 1087-1088, 117 L.Ed.2d 291 (1992).
Administrative remedies will not address Plaintiff's claim for
monetary damages since neither the grievance procedure of the Karate
Federation nor that of the Sports Act provide for monetary damages.
In addition, Plaintiff alleges that the administrative body of the
grievance procedure demonstrated an inability to process her grievance
in a fair and impartial manner. These factual issues may be developed
through discovery. Plaintiff may be able to demonstrate that exhaustion
of administrative remedies is not a prerequisite to her bringing this
Sports Act claim.
The motion to dismiss the complaint is denied.
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