A Quick Analysis of Hope Solo’s Administrative Remedies

Yesterday, former US Women’s National Team goalkeeper and current United States Soccer Federation presidential candidate Hope Solo filed a complaint against the USSF with the United States Olympic Committee. Solo alleges the federation is in violation of four provisions of the Ted Stevens Amateur Sports Act, each stemming from its close relationship with Major League Soccer and the league’s marketing arm, Soccer United Marketing. For any US soccer fan, the complaint is provocative, filled with haymakers on almost every contentious issue in what may be the most contentious battleground in US sports.

But before these charges take the stage, Solo’s complaint faces a threshold question: whether she has exhausted her administrative remedies. Under the Stevens Act, to bring a complaint against a national governing body before the USOC, claimants must first exhaust their administrative remedies “within” the NGB. The Act provides an exception where “clear and convincing evidence” demonstrates that “those remedies would have resulted in unnecessary delay.”

Solo makes a two-pronged argument that the exhaustion requirement does not apply to her. First, she claims that, because the USSF’s by-laws cede grievances against the federation to the American Arbitration Association, those administrative remedies are not “within” the NGB. Therefore, the Act does not require Solo to exhaust them. Second, Solo contends the USSF’s grievance process would create “unnecessary delay” because the AAA also hears any appeal from the USOC’s ultimate decision. Thus, under the USSF’s procedure, the AAA could decide her case twice — once in the initial arbitration and again, following any adverse ruling from the USOC. These duplicative adjudications would create an “unnecessary delay.”

Given the dearth of case law interpreting the Stevens Act, both arguments are difficult to evaluate. That aside, they raise questions.

The first argument depends on what the Act means by “within” the NGB. The USSF’s by-laws set forth two grievance tracks — one for claims against the federation and one for all others. Relatively-speaking, when the federation is not a party, the process is internal. For each of these grievances, the USSF president selects the arbitrator from a standing panel that he appoints. The USSF staff handles all administrative functions. And any appeal of the final decision goes to the USSF Board of Directors. Conversely, when the federation is a party, the AAA selects the arbitrator and performs the administrative functions. Further, the AAA’s Optional Appellate Arbitration Rules, not the USSF Board, govern any appeal. Thus, where the USSF is a party, its grievance procedure delegates most of the adjudication to the AAA. So in that sense, it does not appear to be “within” the federation.

On the other hand, the definition of “within” an NGB is gray. For example, the Act does not specify how internal the procedure must be. In the USSF’s case, even where the federation is party, the AAA could still choose a non-AAA arbitrator (one who is only approved by the CAS). Moreover, there is no indication that the AAA’s procedural rules would govern the initial arbitration. With no clear definition of “within” in this context, all of these factors could weigh against Solo’s argument.

Another possibility, one raised by UCLA Law Professor Steven Blank, is that administrative remedies expand beyond the hearing itself and include “pre-grievance informal remedies, such as writing the Board.” These steps would occur within the federation. This may be enough to meet the Act’s definition.

Nonetheless, there is a logic in putting complaints against NGB’s directly in the USOC’s hands. NGB’s looking to create an impartial process are left with little choice but to farm the matter out to an organization like the AAA. After the outside organization makes its decision, the matter could then go before the USOC. It would seem more efficient to eliminate the first step and allow the USOC to be the impartial, outside organization. Still, while this may be more efficient, if the Act had wanted all of these claims to go directly to the USOC, it could have specified that.

In her second argument, Solo claims the USSF’s grievance procedure generates “unnecessary delay” because it could make the claimant bring the same issue to the AAA twice. Again, this is not necessarily true because the AAA could choose a non-AAA arbitrator. At the very least, this would mean the AAA would not be making any substantive decisions. Barring that, it is unclear whether inefficiency, which involving the AAA twice probably creates, is the same as “unnecessary delay.” On a practical level, in this instance, equating the two is persuasive. But often, in legal settings, “unnecessary delay” means an unnecessary span of time that prejudices a party. That is slightly different than Solo’s argument.

Going forward, the Stevens Act requires the USOC to resolve the exhaustion issue within 30 days of the complaint’s filing. Solo filed her complaint on January 29. So the USOC will make its determination by February 28.

If it decides she has not exhausted her remedies, the USOC can kick Solo’s complaint back to the USSF, which will run the complaint through its grievance procedure. If the USOC rules Solo has exhausted her remedies, it must conduct a hearing on her claim within the next 90 days.

Random Observations Unleashed

1. If Solo’s exhaustion arguments win out, the unintended consequence could be that NGB’s create less impartial grievance procedures for cases where they are parties.
2. US Men’s National Team and Philadelphia Union striker CJ Sapong is not a voter in the USSF presidential election. But if he were, all indications are that he would vote for Solo.