USRowing threw a dead man overboard
The US Center for SafeSport did the right thing with the posthumous, 50-year old allegations against Ted Nash... until they didn't.
The rowing world lost Ted Nash twice: first when he died in 2021, and then again when he was cancelled in 2023 and 2024.
After winning Olympic gold in 1960 and a bronze in 1964, Ted Nash spent nearly 60 years on the Schuylkill River in Philadelphia, coaching thousands of rowers—from area youth and senior citizens to elite rowers training for the Olympics. Amongst the more well-known from the latter category are tech and finance entrepreneurs Tyler and Cameron Winklevoss. By the end, he was coaching the grandchildren of rowers he once (and sometimes still) coached.
Two years after his death, The New York Times published an interview that accused Nash of grooming and sexually assaulting a teenage girl in 1973.
When the Times’ article came out, an investigation into these allegations was already underway. The law firm Shearman & Sterling (now A&O Shearman) conducted the investigation pro bono at the behest of USRowing, the national governing body for the sport.
Shearman & Sterling acknowledged that their investigation was “complicated by several factors,” namely the passage of 50 years and the fact that the accused and the primary witness to events from the summer in question (although, notably, not to the alleged assault) were dead. Their final report, released in April 2024, explicitly disclaimed any evidentiary standard. It offered no conclusion about the specific accusation of assault. Shearman’s investigators found “[the accuser] credible, our investigation corroborated many of her allegations against Mr. Nash, and we did not uncover evidence that expressly refutes [her] claims or suggests a motive for [her] to fabricate her account of abuse.”
Investigating the process behind and propriety of the governing bodies’ actions are the only inquiries relevant to Nash that can be resolved with clarity, fairness, and justice. The Shearman report itself provides the best evidence that it is, itself, the fruit of a poisonous tree.
The investigation into Ted Nash started less than a year after his death, in May 2022, with a claim filed with the US Center for SafeSport.
Governing bodies collude in scull-duggery
The US Center for SafeSport emerged out of the Larry Nassar sexual abuse scandal at USA Gymnastics. The 2018 amendment to the Ted Stevens Olympic and Amateur Sports Act delegated to the Center jurisdiction “over the [USOPC] and each national governing body with regard to safeguarding amateur athletes against abuse, including emotional, physical, and sexual abuse, in sports.”
Congress gave the Center sole authority to write all of its own bylaws and the SafeSport Code, which would “apply as though they were incorporated in and made a part of [this legislation].”
The SafeSport Code has never wavered from asserting “exclusive jurisdiction to investigate and resolve allegations that a Participant engaged in... Sexual Misconduct, including without limitation child sexual abuse.”
Once the Center accepts exclusive jurisdiction over a complaint, all other governing bodies are prohibited from taking any action on the matter, other than enforcing the center’s determination. Citing almost verbatim the Ted Stevens Act, the Code prohibits governing bodies and the USOPC from “interfering in, attempting to interfere in, or influencing the outcome of the Center’s investigations.”
“[T]hey would not be allowed to investigate or resolve the allegations... If they did so, they would likely be investigated for Abuse of Process.” - Process Navigator for US Center for SafeSport
Two weeks after receiving the complaint against Ted Nash, the Center informed the complainant and USRowing that they had accepted exclusive jurisdiction over the complaint and had “administratively closed” the matter. Administrative closures were an option for situations of “insufficient evidence, a Claimant(s) who elects not to participate in the resolution process, or other factors as determined by the Center.”
By law, that should have been the end of the matter. But a representative from the Center for SafeSport told the alleged victim “that she could raise her allegations directly with USRowing.” She pursued this option, submitting a written statement and additional documents to USRowing in October 2022.
USRowing sought independent counsel to investigate these claims. A spokesperson for USRowing said the USOPC recommended the law firm Shearman & Sterling, which began work in December 2022.
Neither the SafeSport Code nor the Ted Stevens Act authorizes the Center to devolve its authority to a national governing body to conduct investigations. Quite the opposite: they explicitly forbid national governing bodies from picking up where the Center leaves off.
When asked what authority they had to conduct an investigation after the Center had closed the matter, USRowing’s spokesperson sidestepped the question of the SafeSport Code, replying: “USRowing initiated this investigation because we determined that the gravity of [these] claims outweighed Mr. Nash’s inability to respond to these allegations as he has passed away.” The spokesperson declined to explain the process leading to that determination.
The USOPC and US Center for SafeSport did not respond to requests for comment.
However, the Center employs “Process Navigators“ to answer questions and provide clarification on matters pertaining to the Center’s authority, jurisdiction, processes, and case updates, in addition to assisting with mental health, legal, and educational support.
Presented with this chain of events—minus any identification of the governing body—a Process Navigator cited the SafeSport Code to confirm that “any allegations that the Center exercises jurisdiction over, regardless of how the case is resolved, remain within the Center’s jurisdiction, and NGBs are prohibited from any further investigation... [T]hey would not be allowed to investigate or resolve the allegations the Center exercised jurisdiction over. If they did so, they would likely be investigated for Abuse of Process.”
Dynamic incorporation: Legalese for “Feel free to make it up as you go”
The most recent version of the SafeSport Code—released a month after the Shearman report—suggests that the center recognizes the game they all played.
The Code now specifies that an administrative closure is the appropriate outcome when the accused is deceased. It also states that a “case that is Administratively Closed will not be reopened, absent extraordinary circumstances.”
Most tellingly, though, is a new footnote: “Nothing in this provision authorizes [a governing body] to conduct a parallel investigation involving allegations falling within the Center’s exclusive jurisdiction... Such conduct may constitute Interference.”
These are clarifications and additions, not modifications. USRowing can claim ambiguity or omissions in the 2022 Code, but the impropriety of their actions is the same under both versions. If anything, the 2024 Code is a tacit acknowledgment of USRowing’s wrongdoing.
The US Center for SafeSport did the right thing by administratively closing the Nash investigation.
But by enabling an end-run on its own Code and authorizing legislation, the Center undermined any claim it has of protecting American sportspeople from either sexual abuse or institutional abuse of process.
Even safeguarding theatre has its limits
The strongest sanction the Center can deliver is to declare someone permanently ineligible from participating in any event, activity, or organization under the USOPC umbrella. That covers everything from a local track & field meet up through Team USA.
The real damage, though, comes from the Ted Stevens Act’s requirement that the Center “publish and maintain a publicly accessible internet website that contains a comprehensive list of adults who are barred by the Center.” This comes to life as the Centralized Disciplinary Database.
The ostensible purpose of the Centralized Disciplinary Database is to prevent an abusive sportsperson from moving from one team, city, or sport to another and preying on people who don’t know their past—a quick and easy background check, so to speak. In practice, though, it’s the ultimate blacklist. The general public only knows about that list because of Larry Nassar, and associates the list with him and his crimes. Being on that list—regardless of what you did and despite the lack of due process—connects you with the notorious serial pedophile who is only a few scrolls away.
Even at the peak of #MeToo or any of the other cancelation-justifying moral panics, it would have been a bit too on the nose to add a dead man to the Centralized Disciplinary Database. Permanently banning a dead man from sport and placing his name on a public blacklist do nothing to protect anyone.
If such actions send a message, it’s that the system is a tool of destruction rather than protection.
The Center’s partner entities had no qualms about performative responses. In the press release announcing the Shearman report, USRowing CEO Amanda Kraus declared that the organization was rescinding all of Nash’s USRowing honors, and that he would be ineligible for any future awards. Within a day, Nash’s achievements were scrubbed from USRowing’s website. The spokesperson told me that these decisions “were made with the full support of USRowing’s Board.”
Nothing that the governing bodies did regarding Ted Nash will protect a single youth or amateur athlete.
When widows are collateral damage
One of Nash’s athletes is still trying to wrap his head around a “movement that waits for the man to die to destroy him.” This rower kept coming back to thoughts about Nash’s widow, Jan. “Had any of this come out when Ted was alive, he could at least have had this conversation with Jan, and face whatever consequences, private or public. But with Ted gone, it’s like Jan was the only person left to destroy.
“From talking to Ted and being at his house, I knew how much Jan gave Ted to us. Her own time, energy, and money, in addition to Ted himself. You almost felt guilty about the amount of effort they both put in.”
Many of Ted Nash’s athletes have similar memories and perspectives about Jan. Even if she wasn’t physically present, she was part of each boat, shared some credit for each college scholarship, regatta win, or Olympic medal. Ted’s project was hers, too. But neither she nor Ted Nash’s estate nor other survivors have any recourse due to an unusual fissure in the law.
Bring out your dead (and defame them)!
Desecrate a corpse and you go to jail. Botch an embalming and lose your mortuary license. Disregard someone’s last will and find out just how far our civil courts will go to protect and enforce each person’s final wishes.
Defame the deceased... and carry on with your day.
That disparity is the heart of Defaming the Dead by Don Herzog, professor of law at the University of Michigan. He opens the book at a fictional funeral where one attendee speaks ill of the dead to another: “Embezzled money at work. Diddled children in the park. Popped kittens in the microwave for fun.”
Herzog argues that we all have interests that outlive us. Reputation is one, which he bolsters by talking about how our reputation is essential for the projects that we initiate during life that we intend or hope will continue after we’re gone. Presenting a hypothetical about someone spearheading an effort to revitalize city parks, he says “You die when work is just getting underway—and someone at your funeral whispers that you’ve embezzled, diddled, and popped. The story gets around. Who wants to keep working on what’s mordantly dubbed the Child Molester Park Project?”
That might be the pseudonym attached to the park on social media. But most likely, the name at the entrance to the park would be covered up—as the University of Pennsylvania did to the Coach Ted A. Nash Land Rowing Center—or erased, as USRowing did to their list of Medal of Honor awardees the same day they released the Shearman report.
Herzog’s closing argument for extending legal protections for reputation to the deceased echoes the rower quoted above.
“Your reputation after death is a final settling of accounts, unlike your reputation while alive, ordinarily in flux as you continue to act. When that account is damaged by defamation, it’s all too likely to stay that way. ‘This will always be there.’ Ordinarily, that’s the most pressing injury to reputation a dead person can suffer. It isn’t illusory.”
“This will always be there” comes from a mob moral panic and cancellation from the 1980s. It’s the pre-digital version of “the internet is forever,” which has become the epitaph for every cancelled person.
Other cases—with living respondents—better exemplify the lack of due process afforded the accused, and the devastating effects this has. Those cases testify to the deficiencies in the letter of the law. The Ted Nash case—starting with the fact of his being dead—illustrates the lack of concern with the spirit of the laws, to include their purpose.
Recall what the USRowing spokesperson told me: “the gravity of [these] claims outweighed Mr. Nash’s inability to respond.”
This statement is multiple levels of meaningless.
The Center routinely imposes temporary sanctions on (living) individuals based on nothing more than “the seriousness of the allegations” (see also: Desyatov, Ivan). They do not provide the accused the opportunity to respond to the allegations before imposing those sanctions, because they are not required to. In a dark abuse of language, the Code refers to the accused as “Respondents.” Yet they can only respond to a decision—not an accusation—and only after paying the $5,000 price of admission to an arbitrator’s tribunal. And all that after their career and reputation have been permanently damaged.
The spokesperson’s justification for their ad hoc, Code-violating, legally dubious actions against the deceased Ted Nash is nothing more than standing operating procedure for the US sport safeguarding apparatus.
Amongst the living, the US Center for SafeSport has the quasi-judicial authority to end careers and destroy lives.
When it came to Ted Nash, the Center, USRowing, the USOPC, and Shearman & Sterling combined to extend their power into the afterlife. If they managed to provide a few people and entities with a measure of validation, they did so at the expense of providing justice for anyone.
Related:
The Limits of Delegation to the Private Sector (The American Spectator)
The Private Delegation Doctrine (Florida Law Review)
No ‘Morning After’ for Victims of Cancellation (Reality’s Last Stand)
Temporary punishments permanently damage athletes’ careers (Abuse of Process)
Photo credit: josieshowaa / Flickr, under CC BY-SA 2.0.