### Authority of the United States Olympic Committee to Send

American Teams to the 1980 Summer Olympics

T he Am ateur Sports Act of 1978, 36 U.S.C. §371 el seq.. does not compel the United States Olym pic Com mittee to send A m erican teams to any Olympics.

T he United States Olympic Com mittee may w ithdraw its delegation at any time before final entries are made.

T he Am 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 Olympic.

April 10, 1980

T h e P r e s i d e n t

My 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 Act 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 argument that the USOC is legally bound to send an American team to the Moscow Games.1 One argument might be that the Amateur Sports Actof 1978 grants no discretion to the USOC to refuse to send an American team to any particular Olympic Games no matter what the circumstances might be. Another argument would be that the Amateur Sports Act 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 eliev 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 ich C ounsel to th e P resid en t L lo y d C u tle r's le tte r o f A p ril 9, 1980, refers, is relev an t. T h e O ly m p ic G am e s a re not co n d u c te d u n d er th e auspices o f th e natio n al g o v ern in g bodies an d need not m eet th e req u irem en ts o f § 202(b), 39 U .S .C . § 392(b).

8exclusive jurisdiction . . . over all matters pertaining to the participation 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 respective 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 addition, there is no sanction if a delegation withdraws before “final entries” 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 UnitedStates as its national Olympic committee in relations with the International Olympic Committee,” I believe that Congress intended in enacting 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 er § 105(a)(3), 36 U .S.C . § 375 (a)(3), th e U S O C is em p o w ered to “o rg an ize, finance, an d co n tro l th e rep resen tatio n o f th e U nited S tates in th e co m p etitio n s an d ev en ts o f th e O ly m p ic
G am es. . . .“ 3 36 U .S.C . § 378. 4 R ule 25 o f th e R ules o f th e In tern atio n al O ly m p ic C o m m ittee (1979) (IO C Rule). A lth o u g h “ final en tries” is n o t defined, it ap p ears to refer to th e en try form co n tain in g th e nam es an d num bers o f c o m p etito rs w h ich m ust be su b m itted to th e O rg an izin g C o m m ittee o f th e O ly m p ic G am es no later than 10 day s before th e relev an t O ly m p ic co m p etitio n s begin. IO C R ule 36, 4; B ylaw V , 8 to IO C
R ule 24. 5 B ylaw V , 7, to IO C R ule 24.

9any 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 anamateur athlete . . . to participate in the Olympic Games . . . .” (Emphasis added!) Although it might be argued that Art. IX, § 1 of the USOC Constitution,6 read literally, suggests the existence of a right ofindividual athletes to participate in particular Olympic Games “if selected,” the language of § 114 and its legislative history contradict thesuggestion that this “right” was to be viewed as a substantive restriction 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 expressly or implicitly qualified that understanding, I do not believe that a tenable argument can be made that the USOC is required by law tosend an American team to the Moscow Games. In reaching this conclusion, 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 j a m i n R. C i v i l e t t i

6 N o m em b er o f th e U S O C m ay d en y o r th re a te n to d en y any am ateu r ath lete th e o p p o rtu n ity to c o m p ete in th e O ly m p ic G am es, th e P an -A m erican G am es, a w o rld ch am p io n sh ip co m p etitio n , or o th e r such p ro te cted co m p etitio n as defined in A rtic le I, § 2(g); n o r m ay an y m em ber, subsequent to su ch co m p etitio n , cen su re, o r o th e rw ise penalize, (a) an y such ath lete w h o p articip ates in such c o m p etitio n , o r (b) an y o rg an izatio n w h ich th e ath lete represents. T h e U S O C shall, by all law ful m eans at its disposal, p ro te c t th e rig h t o f an am ateu r ath lete to p articip ate if selected (o r to attem p t to q ualify for selectio n to p articip ate) as an a th lete rep resen tin g th e U nited S tates in any o f th e aforesaid co m p etitio n s. 7 E v en if § 114 w ere v ie w e d as g ran tin g a su b stan tiv e rig h t to "sele cted ” ath letes to p articip ate in any p articu lar O ly m p ic G am es, th e legislative h isto ry o f th at p rovision indicates th at th e right co n fe rre d w o u ld be lim ited to p ro te ctio n from “an a rb itra ry rule w h ich , in its ap p licatio n , restricts, for no real p u rp o se, an a th le te 's o p p o rtu n ity to co m p e te ." S. R ep. N o. 770, at 6. 10