Penny Testimony Not Surprising But Still Damaging

(ATR) Steve Penny's testimony, or lack thereof, before Congress this week shows there is potential for criminal liability against U.S. sport administrators, legal experts tell Around the Rings. It also shows changes could be coming to the law that established the United States Olympic Committee.

Penny was subpoenaed and compelled to testify before Congress this week as part of ongoing hearings into how sport bodies can protect athletes from abuse. He was called to testify along with former Michigan State University President Lou Anna Simon and former U.S. women’s national gymnastics team coach Rhonda Faehn.

All three figures were related to the ongoing Larry Nassar abuse scandal. Faehn had reported gymnasts' concerns with Nassar to Penny in her position as coach. Penny reported Nassar to the FBI, but not until days after first hearing allegations of abuse and warning Nassar that he was under investigation. Simon was president of MSU while Nassar worked there.

Both Faehn and Simon apologized to victims in their statements and took multiple rounds of questioning from Senators.

During the hearing Penny gave no opening statement, and invoked his Fifth Amendment rights during the first six questions asked to him. Subcommittee chair Senator Jerry Moran then released Penny after it was clear he would not be answering any questions.

"Respectfully, I would like to answer your question," Penny repeated just before his dismissal. "However, I’ve been instructed by attorney to assert my rights under the Fifth Amendment of the Constitution, and based upon on the advice of my attorney; I respectfully decline to answer your question."

Penny’s lack of testimony angered at least one of the survivors in attendance. Amy Compton, a former gymnast who was abused by Nassar, shouted "Shame!" at Penny as he walked out.

Paul Haagen, a Law Professor at Duke University and co-director of the Center for Sports Law and Policy, told ATR that Penny could not have taken the Fifth if there was no possibility of criminal liability in any of the Nassar investigations. He said it was not out of the ordinary that Penny chose to invoke his Fifth Amendment rights, as testimony could "create a basis on which somebody would pursue a criminal prosecution".

"That is not an admission of guilt; it can’t be used to suggest guilt," Haagen said. "It is merely a recognition that there is potential criminal liability and potential prosecution."

The ramifications of Penny’s silence were not lost on Haagen. Congress has inserted itself into the ongoing sex abuse crisis, and bringing Penny for public testimony was a way to show the American people it is taking the problem seriously.

"To have a head of a national federation refuse to answer questions to Congress on the grounds that they have potential criminal liability is saying a great deal about how serious the problem is," Haagen added.

Dionne Koller, a Law Professor at the University of Baltimore and director of the Center for Sport and the Law, told ATR that there were two ways of looking Penny’s testimony: through both a legal lens and a societal lens.

In a legal sense, it was the right call for Penny to invoke the Fifth Amendment because of potentialcriminal liability, according to Koller. However, it showed how institutions in the U.S. Olympic movement had too many grey areas that led to athletes being harmed, she added.

"Steve Penny taking the Fifth from a lawyer’s perspective I was not surprised by that," Killer said. "That wasn’t shocking, for me, I think that’s exactly what the legal advice should be."

When it comes to the U.S. Olympic movement, Penny’s testimony showed that the system, as it is set up, remains splintered, and that Congress could be compelled to act. Congress had to expect Penny to take the Fifth, Koller said, but having him duck questioning in a public manner showed the sporting community it was taking the matter seriously in its hearings.

Ultimately what Congress can do is limited to modification of the Ted Stevens Amateur Sports Act, which gave the USOC exclusive purview over Olympic sport, but delegated the training of athletes to National Governing Bodies. The USOC has said it is currently reviewing how it interacts with NGBs under the current set up.

Koeller said there is a valid legal argument that the USOC acted as it was expected by delegating autonomy to the NGBs, but Penny’s testimony showed the paralyzing ramifications of a "splintered and privatized" system.

"[The Nassar scandal] just touches too many people in too many positions and brings to light too many institutional problems with the way that we regulate Olympic sport in the U.S.," Koller said. "Congress can modify and pass new legislation and they did that with SafeSport, which forced the USOC and NGBs to give SafeSport exclusive jurisdiction over these matters, but otherwise this is the way amateur sport is set up in the United States."

Written by Aaron Bauer

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