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Earlier Ruling

Earlier Ruling

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Published by mmemmott

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Published by: mmemmott on Sep 21, 2012
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09/21/2012

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1
BEFORE THE AMERICAN ARBITRATION ASSOCIATIONCOMMERCIAL ARBITRATION PANEL
 ______________________________________________________________________________ 
AAA CASE NO. 77 190 E 00056 11
In the Matter of the Arbitration betweenDong Sung Kim,ClaimantandUS Speedskating, Inc.Respondent
DECISIONANDREASONEDAWARD
 
Pursuant to the Commercial Arbitration Rules of the American Arbitration Association(“AAA”), a hearing was held in this matter in Washington, DC from April 11 through April 13,2012, before the sole arbitrator Jeffrey G. Benz (the “Panel” or the “Arbitrator”). Appearing atthe hearing were Dong Sung Kim (“Mr. Kim”), appearing
 pro se
and through his representativeS.K. Lim, and at times through his counsel, appearing for limited purposes at the latter stages of the hearing, Regina Hart, Esq., an individual attorney, and US Speedskating, Inc., through BrentRychener, Esq. and Lucinda McRoberts, Esq., of the law firm of Bryan Cave (collectively, “the parties” and individually “party”). The reasoned decision and award of the Arbitrator is asfollows:
 
2
I.
 
SUMMARY
1.1 In this case, US Speedskating asserted allegations of physical and other forms of abuse by Mr. Kim directed to athletes he coached as violations of the US Speedskating Code of Conduct Sections 2(d) (prohibiting sexual misconduct), 2(g) (prohibiting physical abuse), and2(h) (prohibiting fraudulent conduct regarding US Speedskating),
1
supported by numerouswitness statements detailing such allegations. US Speedskating sought an indefinite or lifetime ban of Mr. Kim from membership in US Speedskating.1.2 In response, Mr. Kim denied the allegations against him, denied that he did theacts asserted, challenged the allegations on the basis of various procedural arguments, andasserted that the results of a state government investigation into the matters complained of shouldhave been conclusive. In the event Mr. Kim was found to have violated any of the asserted USSpeedskating provisions, Mr. Kim argued that he should not be given a lifetime or indefinite ban but rather a shorter suspension.1.3 Having considered the evidence presented and the relevant authorities andgoverning provisions, and as more fully set forth below, the Arbitrator has determined that Mr.Kim has violated Section 2(g) of the US Speedskating Code of Conduct regarding physicalabuse, that Mr. Kim’s membership in US Speedskating should be terminated immediately, andthat Mr. Kim should be prohibited from applying for reinstatement as a member of US
1
It appears from the facts presented in this case that US Speedskating could haveasserted other provisions of its Code of Conduct and its Coaching Code of Ethics but thosesections were never asserted against Mr. Kim in this arbitration in the form required by theFourth Amended and Restated Scheduling Order so the Arbitrator could not consider them.
 
3Speedskating for at least 6 years, and then only after completing certain conditions as more fullyset forth herein.
II.
 
JURISDICTION
2.1
 
US Speedskating’s Bylaws provide in Article XXI that:“In accordance with the USOC Constitution and the Olympic and Amateur SportsAct, US Speedskating agrees to submit to binding arbitration conducted inaccordance with the commercial rules of the American Arbitration Association inany controversy . . . involving the opportunity of any . . . coach . . . to participatein amateur speedskating competition as provided for in Article IX of the USOCConstitution.”This provision echoes a requirement to this effect for all NGBs found in both the Ted StevensOlympic and Amateur Sports Act and the USOC Bylaws. Mr. Kim initiated this arbitration byfiling his claim with the American Arbitration Association pursuant to Section 9 of the USOCBylaws. Accordingly, on this basis alone the Arbitrator is seized with jurisdiction in this case.2.2
 
After the filing of this action, both Mr. Kim and US Speedskating agreed that thisarbitration would serve as the hearing procedure that would otherwise have applied under the USSpeedskating Bylaws for Code of Conduct violations. As a result, this conferred a second andseparate fount of jurisdiction on the Arbitrator and this proceeding.2.3
 
In addition, the parties have been actively participating in this arbitration at the pre-hearing phase and during the hearing so this active involvement without objection confersanother basis for jurisdiction.2.4
 
Accordingly, the Arbitrator has jurisdiction to hear and determine this dispute.
III.
 
PROCEDURAL HISTORY
3.1
 
The present action was filed with the AAA by Mr. Kim on March 9, 2011.

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