Notre Dame athletic director advised USA Gymnastics on sex abuse policy

Two former USA Gymnastics presidents have cited a longtime power player in Indiana sports as one of the key people involved in advising USA Gymnastics on policies related to sexual abuse: Notre Dame athletic director Jack Swarbrick.

In an interview with IndyStar, Mike Jacki, USA Gymnastics president from 1983 to 1994, said Swarbrick discouraged the organization from distributing a booklet on child abuse to its members.

And former President Steve Penny, who served from 2005 to 2017, cited Swarbrick as the organization's legal counsel in a 2015 deposition and said sexual abuse issues were "managed by our attorney." Ultimately, however, USA Gymnastics' board is responsible for setting policy. 

In written responses to questions submitted by IndyStar, Swarbrick, who also was chairman of the Indiana Sports Corp from 1992 to 2001, declined to answer specific questions about his advice to the organization, citing attorney-client privilege. But he did discuss his role generally. He also declined an IndyStar request for an interview in 2016 on the subject.

The issue has sparked message-board discussion, including this comment from ndnation.com: "The core questions are, what did Swarbrick know and what did he do in response to that knowledge?" 

Before becoming Notre Dame's athletic director in 2008, Swarbrick played important roles in bringing the NCAA headquarters to Indianapolis and in attracting the Super Bowl to Indianapolis in 2012. He also helped run the 1987 Pan American Games.

Swarbrick characterized his former firm, then called Baker & Daniels, as the entity representing USA Gymnastics and giving advice. He described himself as someone who moved in and out of working with the organization from 1984 to 2008. 

Faegre Baker Daniels, as the firm is known now, declined comment through a spokesman.

Questions concerning USA Gymnastics policies arose after a 2016 IndyStar investigation revealed that the national governing body did not report all allegations of sexual abuse to authorities.

Instead, it followed a policy that enabled predators to abuse gymnasts long after USA Gymnastics had received warnings. That investigation also revealed allegations against former Olympic team doctor Larry Nassar and broke open the biggest sexual abuse case in American sports history.

The national governing body kept complaint files on 54 coaches accused of sexual abuse from 1996 to 2006. Some of the files were kept in a drawer and not reported to law enforcement, according to court records.

IndyStar successfully intervened in a Georgia lawsuit to open the files to the public. They were heavily redacted but revealed that Swarbrick was copied on several letters in the files. Those letters generally involved a coach being added to the banned list or a coach being invited to participate in a hearing related to an abuse complaint.

Swarbrick said his "most significant period of engagement" with USA Gymnastics was from 1984 to 1996 and that "there are significant periods of time within the scope of your inquiry about which I have no knowledge."

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Swarbrick said he doesn't recall advising against distribution of a booklet about sexual abuse in 1988. To the contrary, he said, USA Gymnastics made a "principled choice" to even take on the issue of sexual abuse, exposing itself to legal liability.

He said he pushed the organization to become a pioneer among Olympic sports national governing bodies by using a retired FBI agent to investigate coaches accused of sexual abuse, banning some coaches for life and publishing a list of banned coaches. 

"Your investigation to date offers evidence USA Gymnastics may have been able to do a better job of implementing the system it created, and I am hopeful that the new leadership of USA Gymnastics will use the information you and others have provided to improve the system," Swarbrick said.

Swarbrick said he didn't know about the 54 files unsealed in the Georgia case.

"I am not aware of 'complaint files at USA Gymnastics,' but ... I do not doubt that Baker & Daniels would have been consulted on matters related to at least some of the complaints themselves," Swarbrick said. "...As you are aware, I am not able to comment on what 'advice' the firm might have offered to its client."

IndyStar's reporting revealed that USA Gymnastics followed a policy of dismissing complaints as "hearsay" unless there was a signed complaint by a witness, an athlete or an athlete's parent. Robert Colarossi, USA Gymnastics' president from 1998 to 2005, said in a deposition that he inherited the policy from his predecessor.

In a deposition, Penny expressed concern about false accusations "because the coach is as much a member as the athlete."

Child welfare advocates criticized that policy for ignoring laws requiring reporting to law enforcement. Even internal investigations are flawed, they said, because of conflict of interest and the potential to compromise a law enforcement investigation. 

"I am aware of no instance in which any complaint was evaluated on the basis of 'hearsay,'" Swarbrick said. "I was aware that USA Gymnastics adopted rules reflecting its conclusion that it would not process anonymous complaints or situations where the alleged victim would not corroborate the allegation."

In a legal deposition, Penny appeared to suggest Swarbrick was acting as more than an advisor. Penny, who became president in 2005 and resigned last year, said of sexual abuse: "Jack Swarbrick was legal counsel for USA Gymnastics, and so much of the activities around these types of issues was managed by our attorney, and it still is today, because the investigative process and things like that are all done through legal counsel."

In an interview with IndyStar, the other former president, Jacki, recalled Swarbrick's reaction when he wanted to distribute a booklet on child abuse to members in 1988.

"Basically, Jack was very opposed to it," Jacki said. "He said I think you’re opening yourself up to areas you don’t want to be involved in. I don’t think he felt this was something (a national governing body) ought to do."

Swarbrick said he did not recall what Jacki described and noted that he had written magazine articles about child sexual abuse.

Jacki said he clashed with Swarbrick on the extent to which USA Gymnastics could discipline members.

"The one issue that came up on a regular basis with Jack on the child abuse issue," Jacki said, "was forcing me to accept that the only way we could terminate a member is if he was formally charged and prosecuted and convicted (in a court of law). Or charged and pleaded no contest."

Swarbrick said to IndyStar, "I never identified that as a requirement." He said Jacki hired Baker & Daniels when he left USA Gymnastics to become CEO of USA Skiing.

In a 2012 deposition involving a civil sexual abuse case at USA Swimming, Swarbrick said he had also done legal work for Olympic national governing bodies in synchronized swimming, rowing, canoe/kayak, swimming, diving and skiing.  

Swarbrick told IndyStar he didn't recall being consulted about any alleged victim in gymnastics who had not already gone to law enforcement or had made an allegation in court. 

"In the vast majority of the matters on which Baker & Daniels was consulted during the period I was involved, the professional member against whom a complaint had been filed was in the process of being prosecuted or had been convicted," Swarbrick said. 

"The firm’s role in this instance was to confirm the nature and fact of the criminal process and/or conviction. In the few instances where a criminal process had not already been initiated, it was my understanding the Federation encouraged the complainant also to pursue a criminal charge."

Asked if he ever advised USA Gymnastics on how to proceed if it received an allegation of sexual abuse that had not been reported to law enforcement, Swarbrick said he couldn't comment on advice "the firm might have offered to its client."

Call IndyStar reporter Mark Alesia at (317) 444-6311. Follow him on Twitter: @markalesia.

Call IndyStar reporter Marisa Kwiatkowski at (317) 444-6135. Follow her on Twitter: @IndyMarisaK.

Call IndyStar reporter Tim Evans at (317) 444-6204. Follow him on Twitter: @starwatchtim.