Do sports organizations, academies, universities, professional sports teams, national sports leagues, players’ unions, and international sports federations know the precise means by which their athletes arrive at their facilities? Do they know how the equipment and merchandise branded with their logos is manufactured? Do they know who the workers are laboring at their stadiums and how those workers are getting to their stadiums? Are they aware of the large influx of sex trafficking that surrounds marquee sporting events, such as the Super Bowl and Olympics, that they are involved with? Are they benefitting financially from human trafficking, directly or indirectly? Have they implemented policies and procedures to combat human trafficking? Sports organizations, academies, universities, professional sports teams, national sports leagues, players’ unions, and international sports federations need to ask themselves these questions. Depending on the answers, they may have civil liability exposure to lawsuits from human trafficking victim plaintiffs.3
The 2008 amendment to the Trafficking Victims Protection Act has been at the center of the recent wave of successful lawsuits against major hotel brands, casinos, social media platforms, the chocolate industry, massage parlors, and garment manufacturers under the theory that these companies should have known human trafficking was occurring within their sphere of influence and they failed to act. The sports world is potentially the next major arena for zealous plaintiffs’ attorneys and government enforcement agents seeking to hold industry accountable for trafficking.
II. The Trafficking Victims Protection Act and Reauthorization Acts
In 2000, the 106th United States Congress enacted the Trafficking Victims Protection Act (“TVPA”) to combat trafficking in persons. The TVPA was the first comprehensive legislation designed to protect human trafficking victims, to ensure the just and effective prosecution of traffickers, and to combat human trafficking both domestically and abroad.4 This legislation defines severe forms of trafficking in persons as: (1) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act is a minor; or (2) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”5
The TVPA effectively penalizes a range of offenses which may constitute, further, or facilitate human trafficking.6 Until this point, existing legislation and enforcement in the United States had failed to reflect the extent and gravity of the range of offenses involved in trafficking thus proving ineffective and inadequate in deterring trafficking and bringing traffickers to justice.7 Among the enumerated findings stated in furtherance of the enactment of the TVPA, Congress stated that “trafficking in persons is not limited to the sex industry” and that “this growing transnational crime also includes forced labor and involves significant violations of labor, public health, and human rights standards worldwide.” 8
Since its enactment in 2000, the Trafficking Victims Protection Act has been amended and expanded by several subsequent Trafficking Victims Protection Reauthorization Acts. In 2003, Congress created a civil cause of action, which allowed victims of trafficking to bring a civil action against their perpetrators in federal court for money damages.9 In 2005, Congress expanded victim assistance programs and related measures to U.S. citizens and aliens admitted for permanent residence who are subjected to trafficking, in whole or in part, within the territorial jurisdiction of the United States.10
In 2008, Congress significantly expanded the scope of the term “perpetrator” for purposes of civil liability for human trafficking.11 The enumerated violations of the TVPRA currently range from traffickers directly involved in the recruitment and exploitation of victims to anyone who knowingly benefits, financially or otherwise, from a venture engaged in trafficking crimes. In 2013, Congress went a step further and amended 18 U.S.C. § 1597 to make it unlawful “for any person to knowingly destroy, conceal, remove, confiscate, or possess, an actual or purported passport or other immigration document of another individual.”12 The confiscation and withholding of passports and other immigration documents is a known and widespread form of coercion used by traffickers to exploit their victims and is a blatant violation of Fraud in Foreign Labor Contracting.13 Such violations are increasingly becoming the subject of civil litigation as the law progresses and evolves and increasingly acknowledges that forced labor is as much a part of ‘human trafficking’ as sex trafficking is.
III. Impacts of TVPRA on Civil Litigation and Emerging Trends
Congress’ creation and implementation of a private right of action in 2003 confirmed its commitment to addressing the issue of human trafficking by filling in the gaps left behind by the criminal justice system. Moreover, the 2008 reauthorization of TVPRA single-handedly impacted the manner in which civil litigation in this area of the law has since proceeded. The redefining of the term “perpetrator” to include any person “who knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known [was] engaged in an act in violation of [Chapter 77 of 18 U.S.C. § 1595]” was pivotal and gave traction to the prosecution of traffickers.14
Since inception, the number of federal civil trafficking cases has increased significantly.15 In fact, the number of civil cases filed in 2017 was more than six times the number of civil cases filed in 2004.16 Also worth noting is the fact that every civil case filed under 18 U.S.C. § 1595 between 2004 and 2009 included only allegations of forced labor.17 This trend has persisted and sex trafficking cases continue to make up only a small fraction of the overall number of civil cases filed under the TVPRA.18 Needless to say, Congress’ conclusion that “the additional enforcement activity resulting from private civil actions is worthwhile”19 has been proven.
A review of TVPRA lawsuits demonstrates that initially cases were brought against the traffickers themselves, who were always bad civil defendants because they were unlikely to pay civil judgments. The more recent surge of cases shows that trafficking victims have increasingly begun citing the 2008 reauthorization of TVPRA in order to lodge civil claims against a range of entities with much deeper pockets – i.e. Marriott International, Facebook, CraigsList, Salesforce etc. These various cases all seem to culminate at a common juncture – they argue that these entities knew or should have known about human trafficking within their sphere of influence, which they were benefitting from financially, but failed to take adequate measures to prevent the trafficking.
For obvious reasons, this creates marked vulnerability, particularly for global brands and large-scale entities where oversight is made challenging by the sheer size and complexity of the enterprise. These recent civil suits shine a spotlight on the critical need for the implementation of anti-human trafficking policies and procedures and to fundamentally embrace compliance for the sake of their reputation and financial well-being (in addition to it being the right thing to do).
IV. Vulnerability of the Sports Industry
In 2018, the global sports market was estimated to be worth nearly $488.5 billion and was projected to grow to nearly $614.1 billion by 2022.20 The strong financial health of the sports industry combined with its global nature, public spotlight, multiple levels of skill, and the vast range of associated activities and events make this industry particularly vulnerable to civil liability under the TVPRA. The hazards and pitfalls abound in every sport and at seemingly every level.
According to the “2020 Trafficking in Persons Report” published by the U.S. Department of State, “a number of human trafficking cases in sports have been reported by news outlets and in documentaries.”21 There are an estimated 15,000 human trafficking victims each year stemming from Europe’s soccer industry alone.22 “The migration patterns vary by sport, but the exploitative scheme of recruiting, building trust and dependency, and taking control upon a job offer is universal.”23 For purposes of streamlining this discussion, we will separate these cases into four groups – recruitment, employment, daily operations, and marquee sporting events.
- Recruitment. According to the “2020 Trafficking in Persons Report,” the “growing number of young players aspiring to become professional athletes and the potential to sign the next greatest deal inevitably draws human traffickers looking to profit from the exploitation of players’ dreams.”24 The report goes on to discuss the various forms in which this exploitation takes place – most commonly, at this stage, the exploitive behaviors take the form of a sports agents targeting children from poor or rural families and promising them opportunities to train at certain facilities with the promise of signing with a professional teams in exchange for exploitive fees. Sadly, it doesn’t end there. Sometimes the agent (or trafficker) will abandon the child while in transit or upon arrival at the promised destination and other times the agent has a ‘longer-term’ scheme in mind.25 In these circumstances, the agent often positions themselves within the athlete’s ‘circle of trust’ and instills a sense of dependency that ultimately leaves the child vulnerable and subject to the agenda of the agent.26 In situations where the child is unable to continue to advance to the next level or compete at the level intended, agents often abandon them without any resources or means to return home and quickly turn to their next prospect.27 “The confluence of athletes’ desire to play, their families’ hopes of escaping poverty, agents’ desire to profit, leagues’ interest in marketing competitive players and games, and teams’ eagerness to find young talent all create an environment that, if left unregulated, could be ripe for traffickers to exploit.”28
- Employment. Agents are viewed as the bridges between athletes and sports teams. Often times, agents have longstanding relationships with teams and sports organizations involving multiple athletes. In some instances, agents and teams or sports organizations are actually working hand-in-hand. For those athletes who secure a position on a team, “the traffickers posing as agents have already established a relationship with the athlete and are well-positioned to control the course of the athlete’s career.”29 This phase of exploitation is often characterized by exploitive contracts containing major kickback schemes, relinquishment of control over travel and identity documents, and even debt-based coercion.30 More often than not, “for the athletes who have dedicated their lives to sign a contract, the fear of losing the opportunity by questioning the terms of that contract or their so-called agent can be insurmountable.”31 This pattern of vulnerability on the athlete’s side combined with an enticing predatory scheme carried out by an ill-intending agent are the perfect makings of a parasitic relationship. These situations are further complicated and even more compelling when they involve immigration to countries that do not offer legal migration opportunities.32
- Daily Operations. In this stage, trafficking may take on the form of exploitive recruitment for employment opportunities at sports stadiums, the operation of sporting academies abroad, or illegal or child labor in the manufacturing of uniforms and merchandise. Although, in the past, large entities have been able to create ample space between themselves and the questionable practices generally acceptable in the countries in which these acts occur, these connections and large supply chains are being examined much more closely in recent years. For example, ESPN completed an investigation and published an exposé which alleged various human rights concerns inside an NBA youth development program located in Xinjiang, China. The statement provided by the National Basketball Association’s deputy commissioner and chief operating officer, Mark Tatum, was simply: “We did everything we could, given the limited oversight that we had.”33 In the days following, it was revealed that “most American NBA China employees have little to no influence over their Chinese counterparts who were responsible for the abuse, and those who did swept problems under the rug to avoid confrontations with Beijing.”34 As such, it appears that despite the fact that several employees had knowledge of the events that were transpiring, they failed to sound the alarm and instead relied on plausible deniability.35
- Marquee Sporting Events. “Human trafficking occurs year-round and worldwide, from major cities to small towns, and it can spike during major events.”36 Major sporting events increase temporary labor opportunities and attract large audiences, most of which are from out of town, which creates an environment ripe for human trafficking.37 For example, according to human trafficking data compiled by the Institute for Sport and Social Justice’s “Shut Out Trafficking” program, there is consistently a spike in reported human trafficking incidents in the United States between January and February – when the Super Bowl takes place – with a subsequent drop in March. Similar patterns across various host cities have been alleged during similar special events such as the Winter and Summer Olympic Games, FIFA World Cup, NBA All-Star Weekend, NCAA Final Four, MLB All-Star Game, the Masters Tournament, and the Kentucky Derby. “It is often found that criminally organized sex rings will travel from one location to another to meet the demand of large sporting events.”38
V. How Sports Organizations Can Avoid Being a Target
This year, more than ever, we have seen examples of the extent of the social influence of athletes, the positive power of sports, and the ability it has to actually change the world. This is a multi-billion dollar industry with yet another opportunity to be at the forefront of a global issue, while simultaneously protecting themselves from significant civil liability. The wide range of pitfalls stemming from both active and passive activities related to recruitment, employment, daily operations, and marquee sporting events proves that there is an urgent need for attention to these issues. “Proactively engaging an TVPA-focused anti-human trafficking compliance is necessary from both corporate social responsibility and risk management perspectives.”39
So, what needs to be done? A successful response requires a multi-faceted approach consisting of an emphasis on due diligence, employee training and accountability, increased transparency, and proactive employee training. Traditionally, businesses have avoided asking questions they don’t want to know the answers to but this is no longer an acceptable approach. There is increasing governmental oversight and scrutiny into how businesses are responding to human trafficking concerns, which in turn puts pressure on businesses to implement policies and procedures in place in response to these issues.
A few specific measures which can be taken include: (1) increasing pressure on leagues and teams to conduct more due diligence on the agents they work with to ensure that talent acquisition is free of exploitation,40 (2) proactive employee training to sight and report any signs of trafficking,41 (3) internal audits of existing policies and procedures (particularly in employee handbooks) to identify areas that may be exploited by traffickers; (5) internal audits and investigations to all laborers working for and around sports organization (in particular, but not limited to, stadium workers); (6) taking measures to stop human trafficking at major sporting events; and (7) detailed review of supply chains to identify vulnerabilities due to either geographic location or the nature of the type of work.42 That being said, due to the global nature of the sports industry and decentralized structure of many associations and leagues, a more systematic and standardized approach which can be applied across the board would likely prove most effective.43
VI. Conclusion
In conclusion, the 2008 reauthorization of the TVPRA reinvigorated the legislation in a manner that was previously unforeseeable. Plaintiffs’ attorneys now have a financial incentive to find human trafficking victims and file lawsuits on their behalf. The redefining of the term “perpetrator” knocked down the false wall companies previously hid behind and now companies who knew or should have known that human trafficking was occurring within their sphere of influence are being held responsible. The sports world is likely the next major arena for zealous plaintiffs’ attorneys seeking to hold defendants accountable for trafficking and they should begin taking action to prevent future litigation now. In coming years, civil liability will continue to surge and it is imperative that the sports industry be at the forefront of the movement to both effectuate global change and mitigate exposure to civil liability.
Endnotes
1. U.S. Department of State. June 2020. https://www.state.gov/reports/2020-trafficking-in-persons-report/. Accessed 1 Sept. 2020.
2. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386 § 102(a), 114 Stat. 1466 (2000).
3. Of course, if there is direct involvement in human trafficking then the participants will face criminal exposure. Such behavior is not, however, the purview of this article.
4. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386 § 102(a), 114 Stat. 1466 (2000).
5. U.S. Department of State. June 2020. https://www.state.gov/reports/2020-trafficking-in-persons-report/. Accessed 1 Sept. 2020.
6. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386 § 102(b)(14), 114 Stat. 1467 (2000).
7. Id.
8. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386 § 102(b)(3), 114 Stat. 1466 (2000).
9. 18 U.S.C. § 1595; See also Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, § 4(a)(4)(A), 117 Stat. 2878 (2003).
10. See Victims of Trafficking and Violence Protection Act of 2005, Pub. L. No. 109-164, § 202(a), 119 Stat. 3569 (2005).
11. See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. § 5067, Title II, § 221(2)(2008), 117 Stat. 2875, 2878 (2003), amended by Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, 129 Stat. 247, title I, § 120 (2015).
12. 18 U.S.C. § 1597; See also Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, § 1211(c)(1), 127 Stat. 143 (2013).
13. See 18 U.S.C. §§ 1592.
14. See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. § 5067, Title II, § 221(2)(2008), 117 Stat. 2875, 2878 (2003), amended by Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, 129 Stat. 247, title I, § 120 (2015).
15. The Human Trafficking Legal Center. “Federal human Trafficking Civil Litigation: 15 Years of the Private Right of Action.” (2018), available at https://www.htlegalcenter.org/wp-content/uploads/Federal-Human-Trafficking-Civil-Litigation-1.pdf.
16. Id.
17. Id.
18. Id.
19. 8 H.R. Rept. 108–264, pt. 2, at 16 (2003), available at https://www.congress.gov/108/crpt/hrpt264/CRPT-108hrpt264-pt2.pdf
20. Business Wire. “$614 Billion Global Market Opportunities & Strategies to 2022.” (2019), available at https://www.businesswire.com/news/home/20190514005472/en/Sports---614-Billion-Global-Market-Opportunities-Strategies-to-2022---ResearchAndMarkets.com.
21. U.S. Department of State. June 2020. https://www.state.gov/reports/2020-trafficking-in-persons-report/. Accessed 1 Sept. 2020.
22. Id.
23. Id.
24. Id.
25. Id.
26. Id.
27. Id.
28. Id.
29. Id.
30. Id.
31. Id.
32. Id.
33. Wall Street Journal. “The NBA’s Moral Failure in China.” (2020), available at https://www.wsj.com/articles/the-nbas-moral-failure-in-china-11596836028.
34. Id.
35. Id.
36. ESPN. “The state of human trafficking and sports.” (2019), available at https://www.espn.com/espn/story/_/id/25876477/the-rise-exposure-human-trafficking-sports-world.
37. Id.
38. ESPN. “The Super Bowl remains target for human trafficking.” (2020), available at https://www.espn.com/nfl/story/_/id/28607449/the-super-bowl-remains-target-human-trafficking
39. Sullivan, Jr., William M. and Leonardi, Fabio. “Prosecuting Corporations that Benefit Financially from Human Trafficking.” (2019), available at https://www.pillsburylaw.com/en/news-and-insights/prosecuting-corporations-that-benefit-financially-from-human-trafficking.html.
40. U.S. Department of State. June 2020. https://www.state.gov/reports/2020-trafficking-in-persons-report/. Accessed 1 Sept. 2020.
41. ESPN. “The Super Bowl remains target for human trafficking.” (2020), available at https://www.espn.com/nfl/story/_/id/28607449/the-super-bowl-remains-target-human-trafficking
42. Shepherd, William and Schacknow, Jeff. “How Human Trafficking Laws Can Shut You Down.” EHS Today, 27 Feb. 2018, https://www.ehstoday.com/safety/article/21919520/how-human-trafficking-laws-can-shut-you-down. Accessed 1 Sept. 2020.
43. U.S. Department of State. June 2020. https://www.state.gov/reports/2020-trafficking-in-persons-report/. Accessed 1 Sept. 2020.