BEFORE THE AMERICAN ARBITRATION ASSOCIATION COMMERCIAL ARBITRATION PANEL ______________________________________________________________________________ AAA CASE NO.

77 190 E 00056 11 In the Matter of the Arbitration between Dong Sung Kim, Claimant and US 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 at the hearing were Dong Sung Kim (“Mr. Kim”), appearing pro se and through his representative S.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 Brent Rychener, 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 as follows:

1

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), and 2(h) (prohibiting fraudulent conduct regarding US Speedskating),1 supported by numerous witness 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 the

acts asserted, challenged the allegations on the basis of various procedural arguments, and asserted that the results of a state government investigation into the matters complained of should have been conclusive. In the event Mr. Kim was found to have violated any of the asserted US Speedskating 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 and

governing 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 physical abuse, that Mr. Kim’s membership in US Speedskating should be terminated immediately, and that Mr. Kim should be prohibited from applying for reinstatement as a member of US

It appears from the facts presented in this case that US Speedskating could have asserted other provisions of its Code of Conduct and its Coaching Code of Ethics but those sections were never asserted against Mr. Kim in this arbitration in the form required by the Fourth Amended and Restated Scheduling Order so the Arbitrator could not consider them. 2

1

Speedskating for at least 6 years, and then only after completing certain conditions as more fully set 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 Sports Act, US Speedskating agrees to submit to binding arbitration conducted in accordance with the commercial rules of the American Arbitration Association in any controversy . . . involving the opportunity of any . . . coach . . . to participate in amateur speedskating competition as provided for in Article IX of the USOC Constitution.” This provision echoes a requirement to this effect for all NGBs found in both the Ted Stevens Olympic and Amateur Sports Act and the USOC Bylaws. Mr. Kim initiated this arbitration by filing his claim with the American Arbitration Association pursuant to Section 9 of the USOC Bylaws. 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 this

arbitration would serve as the hearing procedure that would otherwise have applied under the US Speedskating Bylaws for Code of Conduct violations. As a result, this conferred a second and separate 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 confers another basis for jurisdiction. 2.4 III. Accordingly, the Arbitrator has jurisdiction to hear and determine this dispute.

PROCEDURAL HISTORY 3.1 The present action was filed with the AAA by Mr. Kim on March 9, 2011. 3

3.2

The initial preliminary conference was held by telephone on March 10, 2011 with

appearances by counsel for US Speedskating and Mr. Kim. 3.3 On May 31, 2011, the parties advised the Arbitrator and the Arbitrator determined

that the matter was not ripe for the Arbitrator’s consideration and the matter was determined to be in abeyance subject to further later updating by counsel. Throughout the summer of 2011, the parties provided monthly status updates to the Arbitrator, essentially continuing the proceedings. 3.4 In early November 2011, the parties advised the Arbitrator that the matter was

ripe for being decided. On November 30, 2011, a further preliminary hearing was held, at which counsel for US Speedskating appeared and Mr. Kim appeared pro se. Mr. Kim advised the Arbitrator at that preliminary hearing that his former counsel, Mr. Coburn, was no longer representing him in the case. Subsequent to this hearing, Mr. Coburn notified the Arbitrator that he was again representing Mr. Kim. A further revised scheduling order was issued as a result of this call. 3.5 A further preliminary hearing was held on January 19, 2012 by telephone. At this

hearing both parties were represented by counsel, but subsequent to this call Mr. Kim’s then counsel, Mr. Coburn, notified the Arbitrator that Mr. Kim would be proceeding in this case pro se. A further revised scheduling order was issued as a result of this call. 3.6 A further preliminary hearing was held on March 2, 2012, where Mr. Kim

appeared pro se and at which US Speedskating was represented by its counsel. The result of this further preliminary hearing was that the hearing in this matter was set for April 11, 2012 for three subsequent days, based on Mr. Kim’s availability and in his requested preferred location of

4

Washington, DC. The result was a fourth amended and restated scheduling order which was followed and is set forth below verbatim: 1. Exchange of Briefs/Exhibits. The parties have agreed to the following deadlines for providing information and their positions to the Panel and each other (since this is a disciplinary hearing the Respondent charging organization bears the burden of proof and will proceed first to establish its case): a. March 16, 2012: Respondent provided its opening brief on January 14, 2012. Respondent may update this brief by March 16, 2012. Likewise, Respondent shall provide copies of exhibits and evidence Respondent intends to rely upon at the hearing, and witness list in support of its claims by March 16, 2012 and shall also comply with Paragraph 2(d) of this Order; b. March 26, 2012: Claimant shall provide his opening brief, exhibits and evidence Claimant intends to rely upon at the hearing, and witness list in response to and defense of Respondent’s claims and shall also comply with Paragraph 2(d) of this Order; and c. April 2, 2012: Respondent shall provide its reply brief, if any, in support of its claims, limited to responding to the arguments made and positions taken in the opening brief of Claimant. d. The parties’ opening briefs shall set forth all significant disputed issues, claims, and defenses, stating the party’s position, and the supporting arguments and authorities, and provide copies of all authorities relied upon by each party in their opening brief. 2. Discovery/Disclosure. a. The Panel encourages the parties to work out discovery issues between them, but if they are unable to do so the Panel will undertake a review of any discovery issues and address them as appropriate, including the use of any appropriate discovery devices between the parties or between a party and any third parties (including but not limited to interrogatories, requests for admissions, requests for production of documents, depositions, subpoenas, and other methods). The Panel encourages the parties to undertake any necessary third party discovery immediately, and in that regard the Panel will require the propounding party to submit to the Panel for its consideration, and if appropriate signature, any documents necessary to effect third party discovery or to compel a third party witness to attend the hearing. b. By February 14, 2012, the parties shall serve on each other an initial disclosure of witnesses reasonably likely to be called to testify at the hearing (the Panel notes that both parties have already made such submissions but both are permitted to update this initial disclosure by the date set forth herein); the Panel and the parties understand that this list is subject to change and the final disclosure of witnesses shall occur in accordance with the remainder of this paragraph as well as the next paragraph. Pursuant to the direction of the Panel, 5

the parties shall serve a final disclosure of all witnesses reasonably expected to be called by that party at the hearing at the time each party files its respective opening brief in this matter (as set forth in paragraph 1 hereof). The disclosure of witnesses shall be without prejudice to a party’s ability to call other witnesses on rebuttal or for impeachment, provided said witnesses are reasonably related to the evidence sought to be rebutted or to the impeachment of a prior witness, and subject to the other party’s right to object to such witness(es). The parties have already done this. c. The final disclosure of fact witnesses shall include the full name of each witness, a short summary of anticipated testimony, and the basic areas regarding which each witness is expected to testify. The final disclosure of expert witnesses shall include a summary of the facts and opinions upon which the expert is expected to testify, and the written C.V. of any experts. If certain required information is not available, the disclosures shall so state and shall provide the reasons for such unavailability. Each party shall be responsible for updating its disclosures as such information becomes available. The duty to update this information continues up to and including the date that the hearing in this matter terminates. d. The parties shall make arrangements to schedule the attendance of witnesses at the hearing and in discovery so that the case can proceed with all due expedition and without any unnecessary delay or unreasonable burden on any party, witness, or the Panel. To expedite the proceedings, the Parties shall provide the direct testimony of their disclosed witnesses to the Panel in advance of the hearing at the time the Parties submit their respective initial hearing briefs so that at the hearing the examination of each party’s disclosed witnesses shall consist of cross-examination and redirect examination. e. Consistent with AAA Rule R-32 either party may submit evidence of witnesses who have testified under oath in prior proceedings or depositions by submitting a transcript or videotape of that testimony, provided such evidence is relevant and otherwise admissible under the applicable AAA rules. Nothing in this paragraph is intended to limit or otherwise restrict or prevent any party from objecting to the consideration of any evidence by the Panel on valid grounds at the time it is presented. f. Except as otherwise required by the disclosure of witnesses in this Order, each party shall give notice to the other party and the Panel no later than the start of the hearing of the names of the witnesses on its witness list who will be called to testify during its case in chief, the order in which the witnesses will be called, whether the witnesses will appear in person or by telephone, any restrictions on the ability or timing of the witnesses to testify, and the need for any special accommodations for any witness to testify. To the extent a witness is designated to appear by telephone, the party proffering such witness by telephone shall first seek agreement of the opposing party for such telephonic witness appearance, and if such agreement is not obtained the proffering party shall 6

present the issue to the Panel for its decision no later than April 5, 2012. The Panel will determine all issues relating to the disclosure or non-disclosure of testifying witnesses when their testimony is presented, if not earlier, and the Panel encourages the parties to raise any such issues at the earliest reasonable opportunity. g. Except as otherwise provided herein, the provisions, procedures, and standards for discovery contained in the AAA Commercial Arbitration Rules shall apply to this proceeding. The parties shall exchange all discovery no later than March 12, 2012, and the parties shall have until no later than March 16, 2012 to raise with the Panel any disputes regarding the agreed upon discovery to be exchanged or the failure of the other party to produce any properly requested discovery. Before any such dispute is brought to the attention of the Panel, the parties are required to reasonably meet and confer in good faith in advance on such issues with the aim being to narrow the issues in dispute that are raised with the Panel, and the Panel encourages the bringing of such motions as early as reasonably practical. Nothing herein shall restrict the ability of a party to raise any issues concerning the admissibility of discovery at the hearing based on the failure to produce in a timely fashion properly requested discovery. Any written discovery shall be responded to by the responding party within 7 days after service by the propounding party unless an extension is granted in writing by the propounding party. 3. Exhibits/Evidence. a. The parties shall attempt to agree upon and submit to the Panel a jointly prepared consolidated and comprehensive set of exhibits. Said set of joint exhibits shall be provided to the Panel at least one week in advance of the hearing in binders with side tabbed numerical, sequential exhibit designations. If a joint set is not possible, each party shall provide to the Panel in advance of the hearing their own separate binders with side tabbed exhibit designations, and the parties shall mutually agree upon which party will use letters and which party will use numbers for designating their respective exhibits. The exhibit binders referenced in this paragraph shall also be sent to the Panel in advance of the hearing at the addresses to be provided separately for the Panel members, at the time set for the exchange of each party’s initial brief. At least 2 extra sets of the exhibit binders referenced in this paragraph shall also be brought to the hearing for use at the hearing by witnesses, the Panel, and others as directed by the Panel. The pages in the exhibit binders shall be sequentially and consecutively numbered or Bates labeled. b. The language of this proceeding is English. Any party proffering a witness who needs interpretation, or proffering a document written in a foreign language requiring translation, shall arrange and pay the costs for the Panel and the other party to obtain an English language translation or interpretation, as appropriate. 7

c. The disclosure of evidence/exhibits shall be without prejudice to a party’s ability to provide other evidence/exhibits on cross-examination or redirect, provided said evidence/exhibits are reasonably related to the direct examination or cross-examination, as appropriate, and subject to the other party’s right to object to the admissibility of such evidence/exhibits at the time they are presented, including on the basis that they should have been produced earlier. Documents properly used for impeachment or rebuttal are not required to be disclosed in advance of the hearing if they are not otherwise required to be disclosed earlier pursuant to this Order or the applicable rules. 4. Pre-Hearing Non-Discovery Motions/Motions in Limine. The Panel encourages the parties to bring any dispositive motions as soon as reasonably practical but the last date for filing such dispositive motions shall be March 26, 2012, with any opposition papers to be filed by April 2, 2012, and any reply briefs to be filed by April 9, 2012. The Panel shall schedule a hearing as appropriate on such motions after receiving the papers. The parties shall file any motions in limine concerning the hearing no later than April 2, 2012, with opposition papers due 4 days thereafter and any reply due 4 days after filing of the opposition papers. The Panel will undertake decision on the motions in limine, if any, at the start of the hearing. 5. Hearing. Except as otherwise ordered by the Panel, the hearing in this matter will commence before the Panel in Washington, DC at a location to be arranged by the Respondent, or at such other location as the parties and the arbitrator, or the arbitrator, determine is appropriate, on April 11, 2012 at 9:00 am and continuing from day to day thereafter (the parties have estimated a hearing length of 3 days). A telephone speakerphone shall be provided in the hearing room to accommodate witnesses testifying by telephone. The parties agree to coordinate the testimony of any witnesses testifying by telephone to ensure their availability for the hearing. The tables in the hearing room shall be set up in a “U” configuration with appropriate accommodation to be made for a testifying witness and a court reporter, if any; the room should comfortably seat the Panel, the parties’ counsel and party representatives, the parties’ exhibits and documents, any court reporter, and at least 1 testifying witness at a time. 6. Court Reporter/Recording. To the extent the services of a court reporter are sought by any party, that party shall be responsible for making the arrangements for the court reporter and paying for the services of the court reporter. To the extent both parties seek a court reporter, they shall be equally responsible for arranging for the court reporter and paying for the services of the court reporter. Any party seeking to record or reduce to writing the proceedings in this matter, or to use a court reporter, shall so notify the other party and the Panel no later than April 4, 2012. 7. Other Disputes/Further Preliminary Hearing. Any other preliminary matters not otherwise provided for herein shall be raised with the Panel no later than April 2, 2012. The Panel will undertake a further preliminary 8

hearing and status/hearing readiness conference, and possibly consider oral argument on any pending motions or otherwise set any required briefing or oral argument schedule for any matters not specifically addressed herein, on April 4, 2012 at 9am Pacific Time. 8. Information Exchange/AAA Website. The parties have agreed to participate in the AAA’s accelerated exchange program. To the extent possible, the exhibits and all briefs, pleadings, discovery, and correspondence in this matter shall be provided electronically by email to the Panel and the other party at the email addresses already on file with the parties, with a copy simultaneously to the AAA at JenNilmeier@adr.org, in addition to the hard copies being provided in accordance with the other provisions of this Order. If such electronic exchange/delivery of documents or discovery occurs before the deadline time set forth in Paragraph 10 hereof on the appropriate date, it shall be deemed sufficient and timely service or delivery. The parties are not required to serve or deliver, and are requested to not so serve or deliver, discovery requests, discovery responses, or discovery document production to the Panel unless the Panel requests it or such discovery becomes the subject of a dispute between the parties that the Panel is called upon to address or is part of any party’s hearing brief or hearing exhibits. The parties shall also post on the AAA’s www.adr.org website their pleadings, briefs, and exhibits simultaneously with the provision of the briefs, pleadings, and exhibits by email to each other and the Panel. 9. Award. The form of award to be issued shall be a reasoned award issued within the time required by the applicable rules. The Panel may request post-hearing briefing or other materials from the parties. 10. Deadlines. Unless specified otherwise herein, for all deadlines for any party to take any action under this Order, the time by which such action shall be due for each such designated action shall be 5:00 PM Pacific Time on the date given. In light of the tight timeframe remaining in the case, the dates set forth herein are the dates by which action is required; there shall be no extensions or modifications for dates falling on a weekend or holiday unless specifically requested and specifically ordered for good cause shown. 11. Waiver. The parties were presented with a preliminary draft of this Order and were afforded an opportunity to comment upon or object to its contents. To the extent this Order does not comply strictly with any deadlines set forth in the AAA Commercial Arbitration Rules, and any consumer directed or expedited arbitration rules that apply to this proceeding, the parties intend to waive any such deadlines and to comply with this Order. Claimant has indicated his intention to proceed without counsel despite advice otherwise; should Claimant wish to proceed with representation by counsel, Claimant must notify the Panel and Respondent immediately, though the addition of counsel to represent Claimant shall not cause a modification of the dates herein unless good cause is shown to the Panel. 9

12. Deviation. All deadlines stated herein will be strictly enforced; any deviation requires the permission of the Panel, good cause having been shown. To the extent this Order differs from the requirements of the AAA’s Commercial Arbitration Rules, the provisions of this Order shall apply. 13. Effectiveness. This Order shall continue in effect from the date executed by the Panel below unless and until amended by subsequent order of the Panel. Claimant and Respondent have agreed that this proceeding shall proceed as and in lieu of the disciplinary proceeding appeal provided for in the Respondent’s bylaws. The parties and the Panel are proceeding on that basis, and Claimant hereby waives any right to a hearing on the subject matter of this arbitration under Respondent’s bylaws. 14. Deposits. Deposits for the Panel’s and the AAA’s fees will be required throughout the pendency of the case depending on the extent of the involvement of the Panel and shall be due in accordance with AAA policy. Currently both parties’ fees remain outstanding and must be paid by the deadline set by the AAA, which is currently March 12, 2012. Cancellation or dismissal within 21 days of the scheduled hearing requires forfeiture of the arbitrator’s fee in accordance with the arbitrator’s filed Notice of Compensation Arrangements. 15. Non-Retaliation. The parties have agreed on the most recent hearing call to not retaliate against the participants in the proceedings for the other side. Further, the parties shall agree upon a written joint agreement of nonretaliation against witnesses and others who participate in these proceedings on behalf of either side. That agreement shall be reviewed by the arbitrator and signed as a stipulated order once the final form is achieved. US Speedskating has sent a draft and Mr. Kim is due to provide his comments on March 12, 2012. US Speedskating will be required to provide any further comments no later than March 14, 2012. 3.7 A further preliminary hearing was held on April 6, 2012 and the order

summarizing the results of that hearing is as follows: “Dear Parties and Counsel: I write to summarize the outcome of our 4.25 hour long further preliminary hearing/status conference call earlier today. This email shall be deemed to augment and amend the Fourth Amended and Restated Scheduling Order in this case as necessary/appropriate. 1. With respect to the motion to Motion for Sanctions brought by US Speedskating, the motion is denied without prejudice to be renewed in the event Mr. Kim appears with additional counsel who takes a position that modifies or moots the prior proceedings in this case. 10

2. With respect to the joint non-retaliation agreement, US Speedskating's counsel shall amend it to reflect Mr. Kim’s revisions/edits and present an original copy of same for each party and the arbitrator at the start of the hearing in this matter on April 11, 2012. 3. With respect to the Motion to Strike Evidence filed by Mr. Kim, the motion is denied, subject to each party being able to make an objection at the hearing to the use or offer of any evidence for any purpose which the arbitrator will consider at that time. 4. With respect to the Motion for Summary Judgment filed by Mr. Kim, the motion is taken under advisement to be considered by the arbitrator at a later time in the proceedings as appropriate. 5. With respect to the Motion to Seal the Proceedings filed by Mr. Kim, the motion is granted in accordance with the parties' agreement that the pleadings, witness testimony, and evidence presented in this proceeding are to remain private and confidential and not to be released to the public unless they were otherwise available to the public irrelevant to these proceedings, but that the arbitrator's ruling in this matter shall be public. In other words, the arbitration shall have present in it only those individuals necessary to the presentation of each party's case, one party representative, and counsel, unless otherwise ordered. 6. With respect to the Motion to Compel the outstanding discovery responses from US Speedskating filed by Mr. Kim, the motion is granted insofar as US Speedskating is ordered and has agreed to produce the investigation notes of Andrew Love and to request of the relevant member US Speedskating clubs and their officers production of any of the documents requested by Mr. Kim that might be in their possession and not otherwise produced, before 5pm PT on Tuesday, April 10, 2012. To the extent such documents are not produced, US Speedskating is to produce a writing signed under the penalties of perjury of the appropriate jurisdiction by an appropriate officer of US Speedskating that such documents are not within US Speedskating's possession, custody or control. 7. With respect to the Request for Telephonic Testimony filed by Mr. Kim, the request is granted though the parties are strongly encouraged by the arbitrator to produce their witnesses live at the hearing. In addition, the arbitrator orders that commercially reasonable efforts are to be undertaken by US Speedskating to produce Andrew Love by videoconference for his testimony but if such commercially reasonable efforts are unsuccessful then US Speedskating is to produce Andrew Love to testify by Skype on a reasonably large video screen at the hearing. 8. With respect to the service of Mr. Lim in these proceedings, the arbitrator has determined that Mr. Lim is too closely related to the proceedings as a witness or at least percipient participant to serve as the interpreter at the hearing in this matter. As a result, Mr. Lim and/or his wife may testify as witnesses in the hearing provided the appropriate witness statements have been filed on time. With respect to Mr. Lim, if he is to testify as a witness in this case as part of Mr. 11

Kim’s case in chief, his witness statement must be filed by 5pm PT on Sunday, April 8, 2012. In addition, as a result of the determination that Mr. Lim is unable to serve as interpreter for Mr. Kim in this case, Mr. Lim may assist Mr. Kim during the proceedings, though he will not be able to serve as counsel for Mr. Kim in this case since he is not an attorney. The parties and the arbitrator will address whether, and if so how, Mr. Lim must be excluded from the proceedings at any time as a result of any witness testimony he might offer in a manner that will accommodate the arbitrator's ruling. 9. With respect to an interpreter for Mr. Kim in this proceeding, US Speedskating has agreed to pay for one half the cost of a neutral interpreter mutually selected by US Speedskating and Mr. Kim. Mr. Kim shall be responsible for the other half of the cost of said interpreter. Mr. Kim has designated Mr. Lim on his behalf to work with US Speedskating's counsel to identify an appropriate preferably courtcertified or at least legally experienced jointly designated interpreter as soon as possible. The arbitrator determined that resolution of this is a key issue to the successful proceeding of the hearing in this matter. To that end, the parties or their representatives shall provide to the arbitrator a joint status report on their efforts in this regard at noon PT on each of Monday and Tuesday, April 9 and 10, 2012. In addition, the parties are ordered to provide their respective prehearing briefs to the selected interpreter in advance of the hearing and to jointly spend up to one hour before the hearing preparing the interpreter for the terminology and factual and legal context for the case in a non-argumentative fashion. 10. With respect to the testimony of Mr. Kim, to the extent Mr. Kim wishes to have his testimony be included in his case in chief, the arbitrator orders that Mr. Kim provide to the arbitrator and all counsel/parties a written witness statement in accordance with the scheduling order, as modified herein, no later than 5pm PT on Sunday, April 8, 2012. Mr. Kim shall provide either his witness statement or an email advising that he will not testify and provide a witness statement by the stated deadline. 11. With respect to certain procedural matters, the parties are ordered to provide to the arbitrator no later than 5pm PT on April 10, 2012, their views on the appropriate 1) choice of law that should apply to these proceedings and the arbitrator's decision along with reasons therefor, and 2) burden of proof that should apply to the parties in these proceedings. 12. The arbitrator determined that the order of the proceedings shall be as follows: a. Opening statement of US Speedskating (30 minutes) b. Opening statement of Mr. Kim (60 minutes including interpretation) c. Presentation of evidence by US Speedskating d. Presentation of evidence by Mr. Kim e. Closing arguments of US Speedskating (length to be determined) f. Closing arguments of Mr. Kim (length to be determined) 12

g. Rebuttal closing arguments of US Speedskating (length to be determined) 13. The arbitrator determined that the usual exclusionary rule for witnesses shall be applied here under which unless otherwise determined witnesses shall be excluded from the proceedings until after their testimony. Furthermore, given the motion for sealing these proceedings and the arbitrator's ruling thereon, the arbitrator shall determine which, if any, witnesses shall be permitted to remain in the proceedings after their testimony. The arbitrator has already noted the special circumstances of Mr. Lim, so to the extent that at the time of the hearing he is determined to be excluded the parties may be requested to consider going out of order to permit him to assist Mr. Kim to the maximum extent possible. 14. No later than noon PT on Tuesday, April 10, 2012, the parties are to provide to each other and the arbitrator their proposals for the order of each of their witnesses (including Mr. Kim if he submits his witness statement on time) who will testify at the hearing. 15. The parties are reminded that pursuant to the scheduling order now pending in this matter they are to be available from the scheduled start of the hearing for three full hearing days. The arbitrator will discuss the meaning of a full hearing day with the parties and their counsel upon the commencement of the hearing. All other terms of the Fourth Amended and Restated Scheduling Order remain in full force and effect. To the extent the parties are able to identify issues that were discussed on the recent conference call that are not addressed here or that are addressed here in a manner inconsistent with the manner that they were addressed on the call, the arbitrator requests that the parties bring such issues to the arbitrator's attention forthwith.” 3.8 The hearing commenced on April 11, 2012 at 9am ET in Washington, DC at the

offices of the law firm Bryan Cave. At the outset of the hearing the Arbitrator made the following prepared statement: “As the arbitrator, my ultimate responsibility is to make a decision that will settle all claims between you. You have granted me the authority to act in this capacity by agreeing to arbitrate under the rules of the American Arbitration Association. It is my desire to hear all the evidence that may be relevant, reliable, necessary and of value in resolving the issues between you. In order for me to make a just decision, I will do my best to provide both parties an impartial hearing. To the extent ethically permissible, I will provide you with whatever guidance and direction I deem necessary to insure that both parties receive a fair hearing. I will 13

not and cannot be an advocate for either party, nor can I offer legal advice or recommend a specific course of action. The AAA rules say that I can grant any remedy or relief that I deem just and equitable within the scope of your arbitration agreement. I can only decide the issues that you have brought before me. I cannot decide any other issues. My decision will be in the form of a written award. The terms of the award will be clear and definite, leaving no doubt as to the rights and responsibilities of each party. Also, once my decision has been issued, my authority ceases. I play no role in the enforcement of the award and I am not to be involved in any postaward activity unless directed to do so by either the AAA or the courts. Under the AAA Commercial Arbitration Rules, the decision will issue within 30 days after the hearing is closed, which date will be announced by the AAA.” 3.9 At the outset of the hearing, during the first few minutes of the first day, Mr. Kim

announced that he would only be available at the hearing for the first day because he had booked an engagement in Korea the next day and would be unable to stay. The Arbitrator pointed out that the hearing dates were set based on Mr. Kim’s stated availability, that the location was set based on Mr. Kim’s statements of convenience of Washington, DC, that Mr. Kim had repeatedly represented he would be available for this hearing on these dates and despite a further preliminary hearing the prior week that went for over four hours he never mentioned that he had booked another engagement in Korea in the middle of the scheduled hearing. Counsel for US Speedskating objected to allowing this new development to affect the hearing as scheduled and ordered. The Arbitrator stated that Mr. Kim’s actions were disrespectful to the other counsel in the case, to US Speedskating, to their witnesses who had scheduled their availability, and to the Arbitrator and the AAA. The Arbitrator stated that despite Mr. Kim’s absence the hearing would continue until concluded, as provided for the in the AAA Commercial Arbitration Rules and that if Mr. Kim would like to continue to be represented by his designated non-attorney representative Mr. Lim during the hearing during Mr. Kim’s absence that would be permitted. 14

The Arbitrator further encouraged Mr. Kim to make the necessary arrangements to stay for the hearing and Mr. Kim refused. Mr. Kim responded that he would like Mr. Lim, a lay person not a lawyer, to appear for him as his “representative” under the AAA Commercial Arbitration Rules during his absence from the hearing and that Mr. Kim would make himself available by telephone and vide conference from Korea. 3.10 At the outset of the first day of hearing, the parties entered into and signed a non-

retaliation agreement, which the Arbitrator accepted as an order, as follows: NON-RETALIATION AGREEMENT THIS NON-RETALIATION AGREEMENT (this "Agreement") is entered into as of the _______ day of April, 2012, by and between Dong Sung Kim ("Claimant") and US Speedskating, Inc. ("Respondent"). BACKGROUND: This matter involves a de novo hearing on a disciplinary matter brought by U.S. Speedskating, in which U.S. Speedskating has alleged that the Claimant violated the U.S. Speedskating Code of Conduct (the “Code of Conduct”), which the Claimant denies. Claimant has elected to have this matter heard before the AAA, and the hearing is scheduled to begin on April 11, 2012, in Washington, D.C. Claimant is an Olympic gold medal-winning speedskater who is considered a premier athlete in the sport and a national hero in South Korea. From 2007-2012, he served as the head coach of three speedskating clubs in the Washington, D.C. area (Wheaton Speedskating, Potomac Speedskating, and DS Speedskating), training skaters for local and national competitions. Respondent is a non-profit organization recognized by the United States Olympic Committee and the International Skating Union as the governing body for the sport of speedskating in the United States. Respondent is responsible for national training programs and supports athlete development camps. AGREEMENT: NOW, THEREFORE, the parties hereto agree as follows: 1. NON-RETALIATION. The parties agree not to retaliate against, interfere with, restrain, coerce, intimidate, or discriminate against any witness, or any other persons, including, but not limited to, family, friends, teammates, parents of teammates, coaches, or skating club members or officers, of any witness, or to deny any benefit or award to which such person is entitled, on account of their having testified, or aided in the testimony, in connection with the allegations 15

which led to this action, or on account of their having aided or encouraged any other person to testify, or aid in the testimony, in connection with the allegations. 2. THIRD PARTY NON-RETALIATION. The parties agree not to encourage, support, or direct any third party, including, but not limited to, family, friends, teammates, parents of teammates, coaches, skating club members or officers, to retaliate against, interfere with, restrain, coerce, intimidate, or discriminate against any witness, or any other persons, including, but not limited to, family, friends, teammates, coaches, or skating club members or officers, of any witness, or to deny any benefit or award to which such person is entitled, on account of their having testified, or aided in the testimony, in connection with the allegations which led to this action, or on account of their having aided or encouraged any other person to testify, or aid in the testimony, to the allegations. 3. REMEDIES. If the Arbitrator determines that a party has breached Sections 1 and/or 2 of this Agreement during the course of these proceedings, the Arbitrator shall take prompt corrective action. 4. GOVERNING LAW. This Agreement shall be construed in accordance with and governed by the laws of the District of Columbia, except to the extent that the applicability of any such laws may now or hereafter be preempted by federal law, in which case federal law shall govern and be controlling. 5. ENTIRE AGREEMENT; AMENDMENTS; SEVERABILITY. This Agreement contains the entire agreement between the parties respecting the matters herein set forth and supersedes any and all prior agreements, whether written or oral, between the parties respecting such matters. Any amendments or modifications hereto, in order to be effective, shall be in writing and executed by the parties hereto. A determination that any provision of this Agreement is unenforceable or invalid shall not affect the enforceability or validity of such provision as it may apply to any other persons or circumstances. 6. NOTICES. All notices, demands, requests and other communications made hereunder shall be in writing and shall be properly given and deemed delivered on the date of delivery if sent by email, personal delivery or nationally recognized overnight courier and on the third business day following mailing if sent by certified or registered mail, postage prepaid, return receipt requested, as follows: *** or to such other address as any party hereto may request by notice served as required hereunder. 7. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same instrument. 8. HEADINGS. The headings used in this Agreement are for convenience only and shall not be used in connection with the interpretation of any provision hereof.

16

9. PRONOUNS. The pronouns used herein shall include when appropriate, either gender and both singular and plural and the grammatical construction of sentences shall conform thereto. IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the day and year first above written. 3.11 The hearing was adjourned on April 13, 2012 and the parties were advised by

letter from the AAA that the hearing was closed on April 16, 2012. IV. ISSUES FOR DECISION 4.1 The following issues were presented to the Arbitrator for decision: 4.1.1 Did Mr. Kim violate US Speedskating Code of Conduct Sections 2(d), 2(g), and/or 2(h)? 4.1.2 If Mr. Kim is found to have violated one or more of these sections of the US Speedskating Code of Conduct, what is the appropriate sanction to be applied? V. RELEVANT RULES US Speedskating Code of Conduct Paragraphs 2(d), 2(g), and 2(h) “The following shall be considered violations of the U.S. Speedskating Code of Conduct: . . . (d) any sexual contact or advance or other inappropriate sexually oriented behavior or action directed towards an athlete by a coach, official, trainer, or other person who, in the context of speedskating, is in a position of authority over that athlete; . . . (g) physical abuse or harm, mental abuse, intimidation, coercion, or the threat of physical abuse or harm to a U.S. Speedskating member by any person who, in the context of speedskating, is in a position of authority over that U.S. Speedskating member; . . . (h) The following shall be considered violations of the U.S. Speedskating Code of Conduct . . . any act of fraud, deception or dishonesty in connection with any U.S. Speedskating-related activity; . . . “ 17

VI.

THE FACTS PRESENTED 6.1 To make the proceedings more efficient, the Arbitrator ordered that the parties Each

present each of their witnesses’ direct testimony using prepared witness statements.

witness whose direct testimony was to be considered by the Arbitrator was required to be available for cross-examination by the other side. 6.2 US Speedskating presented the following witnesses in support of its claims each

of whom testified as indicated:2 6.2.1 Andrew Love: Mr. Love is a member of the Board of US Speedskating.

He testified that he is an investigator by trade and frequently collaborates with law enforcement. He volunteered to work with US Speedskating on the investigation

involving Mr. Kim. Because the interviews of the athletes involved could have become emotional they developed and followed a pre-written script for their witness interviews

The parties indicated that they both were concerned with the possibility of retaliation by the other party or those affiliated with the other party directed toward their witnesses. As a result, the parties agreed to enter into a non-retaliation agreement which the Arbitrator later made an order in this case, the text of which is set forth above. The Arbitrator is also making this nonretaliation agreement a part of the final award. In addition, US Speedskating requested and the Arbitrator agreed to make anonymous the names of most of the witnesses who might be participants in the sport of speedskating or the parents of those participating in the sport of speedskating. While the parties were aware of the identities of these witnesses so they could adequately cross-examine them, the proceedings were confidential and the witnesses’ identities were made anonymous in this decision and award. The Arbitrator is of the view that these practices are some of the best practices available for protecting the identities of those who come forward to seek redress for claims of inappropriate conduct against those in a position of authority relative to them and was happy to oblige the parties with their requests and these measures. 18

2

and were careful to not use any suggestive or prompting phrases instead asking questions like “what happened in your own words.” They interviewed approximately 8 individuals from February 24-26 2011, and the people interviewed were not made aware of the other participants. Mr. Love recommended to US Speedskating’s Board that they contact law enforcement because Utah, where US Speedskating is based, is a mandatory reporting state. Mr. Love spent several hours determining which agency was the correct agency to report to and he made contact with Maryland Child Protective Services in Montgomery County. He was advised by them that US Speedskating was not permitted to file a case as it was not the direct victim. They advised that Maryland law allows corporal

punishment but it is against the law to leave a bruise or a mark. They also required documentation of injuries by the parents and skaters and Mr. Love passed on the agency’s phone number to every minor that US Speedskating interviewed. Because the skaters had trained in multiple rinks between Maryland and Virginia there was some question of the correct jurisdiction over this. He and Mr. Greenwald completed their investigation and provided the results to the then-US Speedskating President Mr. Goskowicz who transitioned the matter to his successor Tom Frank. Mr. Frank provided to Mr. Kim a letter outlining the charges against him. Mr. Kim cross-examined this witness. Mr. Love testified that US Speedskating had a Board call the day after he sent his email to the Board after the interviews were completed. Mr. Kim was not interviewed as part of the investigation but Mr. Love noted that Mr. Kim also did not make contact with US Speedskating despite knowing about the investigation. Mr. Love testified that he could have interviewed a lot more skaters but stopped interviewing when he felt they 19

had enough to proceed. He realized there was a core group of complainants in one club so he endeavored to find witnesses who were outside of that core group so they would not simply hear from people who were closely related saying the same things. While they all at some point trained under Mr. Kim in the same rink, Mr. Love was more interested in where they went or where they were when they brought the allegations forward. The witnesses were all between 12 and 14 at the time they were interviewed except 2 were older. While the witnesses had differences in their stories there were basic consistencies in all of them. 6.2.2 Mark Greenwald: Mr. Greenwald is the CEO of US Speedskating and

was in that role when the investigation of Mr. Kim was conducted in early 2011. He testified he was asked by then-US Speedskating President Brad Goskowicz to conduct an investigation into the allegations made against Mr. Kim in February 2011. On February 22, 2011, a parent of skaters who also testified as a witness in this proceeding informed Mr. Greenwald that an athlete was prepared to come forward and speak with US Speedskating about the abuse he had experienced from Coach Kim. After a discussion with the tutor for this skater, who was a minor and not confident in his English so he spoke through this tutor, Mr. Love and Mr. Greenwald determined that the allegations were serious enough to bring them back to the US Speedskating Board for further direction and the US Speedskating Board determined to launch a formal investigation. Mr. Greenwald conducted that investigation along with Mr. Love. Mr. Greenwald

testified he was not trained or experienced in interviewing young kids but he was concerned about the impact of the process on the kids and not his own ability. Their 20

basic process is outlined above in the summary of the witness testimony of Mr. Love, and Mr. Greenwald testified consistent with that. On February 26, 2011, Mr. Greenwald and Mr. Love sent their report to the US Speedskating Board recommending that US Speedskating immediately suspend Mr. Kim’s coaching privileges because of his violation of the US Speedskating Code of Conduct. Shortly after this recommendation was made, the US Speedskating Board revoked Mr. Kim’s coaching credentials. Shortly after this, Mr. Kim acting through legal counsel sought and was given a relaxation of this sanction because of US Speedskating By Law requirements that Mr. Kim be given a hearing prior to being sanctioned. Mr. Kim cross-examined this witness. Mr. Greenwald testified that once they had gotten what they felt was overwhelming evidence on Mr. Kim they determined they needed to move it to the Board immediately and once Mr. Kim got his lawyers involved the investigation became more one of dialogue between the lawyers for US Speedskating and Mr. Kim. They also found that Mr. Goskowicz had previously warned Mr. Kim to cease his activities and found evidence that Mr. Kim was continuing to engage in similar conduct toward skaters. Mr. Greenwald received approximately 500 emails regarding this case, approximately 30 of which were from Mr. Kim’s club members expressing support for him, but there were many others not in support of him from various clubs and individuals. In addition, Mr. Greenwald knew there were 7 to 10 people who had evidence that was relevant to this proceeding who chose to not testify here, including adults and individuals with professional designations that would make them credible. He testified that Mr. Kim was suspended without a hearing for

approximately 7 to 10 days but he was able to coach at the 2011 Nationals. The 21

suspension was lifted because Mr. Kim’s counsel had sent a legal document and US Speedskating’s counsel recommended that they lift the suspension and Mr. Kim was not suspended thereafter. 6.2.3 Witness 1: This witness was the mother of a skater who trained with Mr.

Kim from at least 2008 through 2010 at various clubs. This witness testified that she saw Mr. Kim instruct the masters skaters to skate many laps then sent more than 10 children skaters to the locker room. Witness 1 walked into the locker room and saw he had all of the kids with their hands on the bench and their bodies bent over lined up one by one and Mr. Kim had a skate guard in his hand and at least 1 child was crying at the time. She yelled at the kids to stand up and at Mr. Kim to not touch the kids and then the nonKorean kids were released from the locker room and the Korean kids came out later looking “very sad.” She saw and heard that Mr. Kim hit kids with leather skate guards or a stick on their butts. After the club Board warned him to stop this, she observed Mr. Kim have skaters squat in their skates in a circle in the middle of the rink and then instruct the younger skaters hit the older skaters with a skate guard. She witnessed Mr. Kim hit a skater with a “corner belt”, which is like a seat belt, in the head. She testified that she saw Mr. Kim kick young skaters. She saw Mr. Kim grab a skater by the ear and pull it. She witnessed her son, who also testified, crying hard at the rink and her son advised her it was because Mr. Kim had struck him hard with a mallet. She testified that Mr. Kim had once “flattened” her son’s blades because he had gone to a ski trip and was not sufficiently focusing on his speedskating. At the end of the 2009 summer camp, this witness testified that Mr. Kim would award skaters with gifts and one was a man on his 22

knees leaning over with a hole in the back end and when a pencil was inserted it would make a screaming noise and that Mr. Kim had given this gift to young skaters as young as 7 or 8 as well as to her son who was 11. She testified that she witnessed a skater break his ankle and another skater dislocate her elbow while skating in Mr. Kim’s training sessions and Mr. Kim refused to acknowledge the seriousness of the injury or in the case of the dislocated elbow even that the person was injured. Mr. Kim did not cross-examine this witness. 6.2.4 Witness 2: This witness was a speedskating athlete, parent, and official

who was involved with Mr. Kim as a coach for her daughter as well as a club official during the period 2007 through 2010. This witness testified that she witnessed a number of examples of physical, emotional and psychological abuse directed at minor skaters and that on at least two occasion the relevant club officials addressed these abuse incidents with Mr. Kim and Mr. Kim promised to change his behavior thereafter. Specifically, this witness witnessed Mr. Kim order groups of skaters to leave the ice during practice and meet him in a locker room while master skaters were to skate their sets of laps. She testified that on at least two occasions an off ice parent or board member of the club caught Mr. Kim in the act of hitting skaters in their buttocks with a leather skate guard. She testified she routinely saw Mr. Kim kick skaters. She witnessed Mr. Kim instruct younger skaters to hit, slap or kick older skaters if their form was not meeting Mr. Kim’s approval. She witnessed him using his stopwatch as a weapon by swinging the lanyard and hitting skaters who failed to meet his expectations or follow his instructions. She witnessed that Mr. Kim had no regard for basic first aid or injury assessment, yelling at 23

skaters who fell to get up and keep skating without ascertaining the severity of their injuries which included a broken leg, two broken ankles, two broken ribs, one serious blade cut to the thigh, one slash to a cheekbone, and a dislocated elbow. She witnessed Mr. Kim ask skaters to perform push ups bare handed on the ice, have them remove their skates and run round the rink on the ice bare footed, and give top Olympic speed relay pushes to skaters who were not able to handle these speeds causing accidents. She testified that the club on at least two occasions conducted meetings with Mr. Kim to address his behavior. One such meeting occurred on January 10, 2009 and was called as a result of this witness hearing from her daughter’s sports psychologist that her daughter was unhappy with speedskating because her coach was emotionally and physically abusive to her and others. The sports psychologist threatened to turn the matter over to the authorities if this witness did not deal with it. At the January 2009 meeting with Mr. Kim, Mr. Kim was asked to refrain from engaging in abusive conduct and violent behavior toward skaters and Mr. Kim responded that he “didn't know how he could be an effective coach if he could not continue these practices.” Mr. Kim did not cross-examine this witness. 6.2.5 Witness 3: This witness was a club official from 2007 through 2008 at a

club that employed Mr. Kim. He testified that he witnessed an escalating pattern of inappropriate behavior which culminated in Coach Kim’s dismissal by a unanimous vote of the club board in April 2008. He also witnessed both physical and psychological abuse and threats of abuse of club skaters and parents by Mr. Kim. He witnessed Mr. Kim throwing rubber turn blocks at a high velocity at children when they were not 24

performing to his liking, whipping children with a stop watch lanyard when students would not perform to Mr. Kim’s standard, ordering children to remove their skates at center ice and simulate racing around the face-off circle with their feet only protected with socks, and swinging a broken hockey stick shaft in children’s faces in the manner and velocity of a baseball player swinging a bat (which this witness witnessed multiple times). This witness also witnessed Mr. Kim instructing children to deny that their

coach hit them if they were asked if hitting takes place. Specifically, Mr. Kim stated, “If anyone asks you if your coach hits you, say no.” This occurred in Mr. Kim’s hotel room at a club team meeting on the eve of the 2008 Age Group Nationals held at the Petit Center in West Allis, Wisconsin in March 2008. Shortly therafter, Mr. Kim was

dismissed by this club because of insubordination toward club management and rumors of the administration of corporal punishment by Mr. Kim. Mr. Kim initially indicated he would cross-examine this witness, forcing the witness to sit for several hours at the site of the hearing waiting to be called as a witness, and when the witness was called Mr. Kim announced that he did not intend to cross-examine this witness and he did not do so. 6.2.6 Witness 4: This witness was the father of a skater who trained under Mr.

Kim from 2007 to 2009. He testified that one evening when his son returned home from skating practice complaining about his back hurting he lifted up his shirt and the witness saw large red welts across his back. When the witness asked his son what had happened, the son said Mr. Kim had hit him with a hockey stick because the son was not bending low enough. This witness took pictures of his son’s back with the welts showing, which were accepted into evidence. This witness went to the rink the next day and told Mr. 25

Kim that if Mr. Kim ever hit his son again this witness would use the same instrument on Mr. Kim. Mr. Kim did not deny hitting his son and Mr. Kim did not hit his son after that. Mr. Kim initially indicated he intended to cross-examine this witness but then determined to not cross-examine this witness after the hearing had progressed. 6.2.7 Witness 5: This witness was a skater who trained with Mr. Kim for three

seasons until Mr. Kim left his club after the 2010 season. He testified that Mr. Kim had physically abused him and threatened to abuse him on a number of occasions. He testified that Mr. Kim was “pressure pointing” another skater and when Mr. Kim saw this witness laughing at a joke told by his friend Mr. Kim assumed this witness was laughing at Mr. Kim so he proceeded to push on a pressure point on this witness’ arm and shoulder causing him excruciating pain. On another occasion, Mr. Kim had this witness and other skaters go outside when it was cold and hold out their hands. Mr. Kim then proceeded to hit them on the hands with a rubber mallet “really hard.” He testified that Mr. Kim once piled sandbags on top of the skaters and made them do squat jumps and if anyone showed fatigue he hit them “on the butt very hard” with a hockey stick and this happened to him and to his teammates. He testified that on multiple occasions when Mr. Kim was angry with the witness or his mother Mr. Kim would manipulate with the witness’ skate blades so it would more difficult for him to skate and it would be more likely that he would fall. This witness testified that Mr. Kim would often whip skaters with the string of his stopwatch which had a bead on it that would hurt. He testified that Mr. Kim would require skaters to do pushups on the ice with bare hands without gloves. He testified that Mr. Kim made skaters run around the rink in their bare feet on the ice. In 2009, while 26

this witness was performing a workout at Mr. Kim’s house in his basement, this witness saw Mr. Kim get angry at a skater who was having difficulty with the exercise bike workout and proceeded to put that skater in a headlock while he was riding the bike, then started to punch the other skater hard in the stomach and ribs so that the skater started crying. Mr. Kim then made this skater get off the bike and started hitting this skater hard with a hockey stick repeatedly, which cause the other skater to cry more, and go to the bathroom and throw up. This witness testified that in late 2008 Mr. Kim was unhappy with the on ice performance of a group of skaters so Mr. Kim sent them to the locker room threatening to beat them with a skate guard; this witness’ mother then appeared in the locker room so Mr. Kim sent this witness and three other skaters who were not of Korean descent out of the locker room and this witness spoke with the Korean skaters who remained in the locker room and they told this witness that Mr. Kim hit them and kicked them after this witness and the other skaters had left the locker room. This witness saw Mr. Kim jab young skaters in the ribs with his keys “really hard.” This witness saw Mr. Kim pinch kids in the stomach “really hard” and “a lot.” This witness also saw Mr. Kim hit kids in the head while they were skating and sometimes this cracked the kids’ helmets. This witness saw Mr. Kim pick up another skater by the ears and carry him across the rink causing him to cry. This skater testified that Mr. Kim would have two kids face each other while he put his fist between their heads while they leaned against it and then he would pull his fist out so the kids would knock heads full force. He testified that Mr. Kim often twisted kids’ nipples hard. This witness testified that Mr. Kim made many inappropriate sexual comments to skaters, once asking another 27

skater and this witness “how big” their penises were, and asking skaters around the age of 11 or 12 how often they masturbated. He also witnessed Mr. Kim giving young skaters presents that included a pencil holder where you had to stick the pencil “in a guy’s butt” and when you did this the guy would scream. After initially indicating he would crossexamine this witness, Mr. Kim did not cross-examine this witness. 6.2.8 Witness 6: This witness was a skater who was coached by Mr. Kim for

three seasons. This witness testified that Mr. Kim hit and struck this witness multiple times and would whip him with the bead on the end of his stopwatch drawstring. Sometimes Mr. Kim would line up the skaters and order them to hold out their hands with the palms facing up and he would go down the line and hit each skater on the hands with a rubber mallet hard. He also hit this witness with a hockey stick and this witness saw him hit others several times with hockey sticks. He testified that Mr. Kim made them do pushups on the ice with no gloves which made their hands cold and could be hazardous since skaters could possibly step on their hands with their blades. He testified that Mr. Kim made him and other skaters run around the ice in their skating socks. He witnessed Mr. Kim hit a skater in his basement gym over and over again with a hockey stick. He saw Mr. Kim grab the other skater who could not keep up with a workout around his neck and started punching him in his ribs and stomach and yelled at the skater to go faster on the bike but the punches made the other skater cry and slow down. As a result, Mr. Kim yelled at the skater to get off the bike and get on the floor and while the skater was on the floor Mr. Kim started hitting him hard repeatedly with a hockey stick. He saw Mr. Kim hit skaters with the bead on his stop watch almost daily. He saw Mr. 28

Kim pinch skaters really hard in various places particularly their stomachs and would do so to this skater and leave bruises as a result. This witness also saw Mr. Kim throw the corner blocks at skaters a lot and he would occasionally hit skaters with them. He also saw Mr. Kim pinch and twist kids’ nipples on many occasions as well as their stomachs. He also saw Mr. Kim hit kids with hockey sticks a lot and would crack their helmets as a result of hitting them over the head, including to two skaters of Korean descent. Mr. Kim did not cross-examine this witness. 6.2.9 Witness 7: This witness skated with Mr. Kim as her coach for three

seasons. She testified that Mr. Kim would, “many times,” order skaters to go into the locker room, close the door, put their hands on the benches, and hit them in the butts with leather blade guards often leaving her with red marks on her butt and back. She also testified that Mr. Kim would hit kids of Korean descent even harder and those kids told her that they often had bruises from Mr. Kim’s beatings. She testified that Mr. Kim also hit her and other skaters with objects such as hockey sticks, mallets and the end of a stopwatch string “pretty frequently.” She also testified that Mr. Kim would pinch her and other skaters “a lot” and that his pinching was “really hard” and that one time he pinched her so hard in the stomach that it took her breath away. She also testified that he would relay push her until she fell or have other skaters push her down. She testified that Mr. Kim pushed another skater of Korean descent to go at uncomfortable speeds, crash and break his ankle. This witness testified that at one practice she had crashed and broken her leg bones and Mr. Kim made her take her skate off while she was on the ice and to try to get off the ice by herself even though it was clear she was badly injured. She testified 29

that as a punishment for being late Mr. Kim would hit them for the number of minutes they came to practice late. This witness also witnessed an incident where Mr. Kim punched and hit a skater with a hockey stick after grabbing that skater by the head and punching him the stomach such that the skater cried and vomited. cross-examine this witness. 6.2.10 2010. Witness 8: This witness was a skater with Mr. Kim from 2007 through Mr. Kim did not

During that time he testified that he witnessed countless beatings and other

physical and verbal abuse toward several members of the club. He testified that this abuse was implemented by hockey sticks, skate guards, rubber blocks, the plastic bead and whistle tied at the end of his stopwatch, a rubber hammer, tennis balls and his own hands. This witness testified about the event in Mr. Kim’s basement in which the skater found himself being unable to keep up with the workout and Mr. Kim punching him in the stomach and ribs to the point of making him cry and throw up. He also witnessed Mr. Kim throwing rubber blocks at skaters while they were skating. He testified that he witnessed Mr. Kim picking on a skater and then he would make the other skaters crowd around the skater on the ice while he would pinch the skater or twist their nipples. This witness saw Mr. Kim tell one witness in this proceeding to hold out his hands while waiting outside in the cold at which point Mr. Kim hit the skater repeatedly with a massive rubber hammer. He also testified that “countless times” Mr. Kim would hit skaters on their buttocks with a hockey stick while the were doing squats or other exercises. He also testified that Mr. Kim would hit skaters on the buttocks, helmets, hands, thighs, and back with thick plastic or leather skate guards. He also testified that 30

Mr. Kim hit the skaters’ heads with hockey sticks and in a few cases the impact was so severe that it cracked the skaters’ helmets. He also testified that numerous times he witnessed Mr. Kim take skaters off the ice and into the locker room and when the skaters exited they either had red puffy eyes or were crying. This witness testified that he witnessed a skater fall while skating, and he was crying and screaming in excruciating pain, and Mr. Kim kept yelling at him to get up and keep skating. The skater who had fallen obeyed and was barely able to move his foot and when an adult was comforting this skater off the ice, Mr. Kim said that the skater was over exaggerating and the skater was later diagnosed as having a broken ankle. This witness also testified that Mr. Kim would aim and throw tennis balls at skaters while they were jogging around a tennis court. Mr. Kim did not cross-examine this witness. 6.2.11 Witness 9: This witness was a skater coached by Mr. Kim from 2007 to

2008. He testified that during that time Mr. Kim “physically abused me many times.” He testified that, “There was [sic] lots of beatings of me, using many different implementations such as hockey sticks, leather skate guards, the whistle on the end of his stopwatch, a rubber hammer, and rubber blocks.” This witness testified that he and another skater were pulled by Mr. Kim into the locker room and Mr. Kim used all of his force to swing at their buttocks with a hockey stick “like he was swinging a bat,” repeatedly. This witness testified that Mr. Kim told him and others in a group not to say anything about these beatings while they were at Nationals in 2008. This witness also testified he saw Mr. Kim abuse others including “most of the Koreans on our team.” This witness testified that Mr. Kim would beat the skaters throughout training. He testified 31

that Mr. Kim pushed a skater so hard that the skater could not sustain it and fell on a corner and cut his own right thigh with his own blade. He testified that Mr. Kim would call skaters stupid or retarded in English and he would insult young skaters in Korean using the Korean words for terms such as “fucking bitch,” “asshole,” and “idiot.” He also testified to Mr. Kim making inappropriate sexual remarks to skaters, including asking this witness and another skater “how big” they were referring to their penises. He also testified that Mr. Kim gave toys of a sexual nature to young children. He said Mr. Kim also asked multiple male skaters as young as 12 how often they masturbated. He also testified that during a summer camp Mr. Kim called everyone into a locker room and told them to lie face down on some mats and proceeded to insert his foot between their butt cheeks. He also testified that during a summer retreat, late at night, when he was lying in bed trying to fall asleep, Mr. Kim entered this witness’ room in his underwear and laid on top of this witness for several seconds until the witness had to push Mr. Kim off of him. According to this witness, he also made skaters do the same thing to fellow teammates. Mr. Kim did not cross-examine this witness. 6.2.12 Witness 10: This skater trained with Mr. Kim from 2006 through 2008.

He testified that Mr. Kim made skaters run around the rink on the ice barefoot and some skaters were crying as a result. He also testified that Mr. Kim would take kids off the ice into the locker room and the kids would come back crying. He also remembered Mr. Kim hit one of his friends on his helmet with a skate guard and he hit the helmet so hard that it cracked. This witness testified that Mr. Kim told skaters that, “If anyone asks you if your coach hits you, say no” which occurred in Mr. Kim’s hotel room at a team 32

meeting during the 2008 Age Group National Championships held in West Allis, Wisconsin. This witness also testified that Mr. Kim once required them to skate in tight, revealing spandex which they would normally use under their shorts but Mr. Kim would not let them skate in their shorts and forced them to skate in the tight spandex which made them feel like “we were skating in our underwear” and “there were girls practicing there, too, and it was a very uncomfortable position to be in.” Mr. Kim did not crossexamine this witness. 6.2.13 Witness 11: This witness was the father of a skater who was coached by

Mr. Kim approximately 5 years ago. This witness testified that Mr. Kim made skaters remove their skates and run laps around the speed skating track on ice in their bare feet. He also witnessed instances where Mr. Kim would take young skaters separately into one of the rink’s “party rooms” and skaters would come out crying. He also testified that when parents complained about Mr. Kim’s tactics, Mr. Kim prohibited parents from attending practices for two weeks to a month. This witness testified that Mr. Kim was terminated by his club on April 30, 2008, and to the extent Mr. Kim reported to US Speedskating that Mr. Kim had resigned from this position it was untrue. Mr. Kim did not cross-examine this witness. 6.3 Mr. Kim presented the following witnesses in support of his defenses, each of

whom testified as indicated: 6.3.1 Witness A: This witness was the mother of a skater who Mr. Kim

coached from 2010 to 2011. She testified that Mr. Kim was a “demanding coach” but that she never saw Mr. Kim abuse or mistreat any skater though she had heard of a report 33

of abuse or mistreatment by one member of her child’s former skating club. She testified that parents were always present at practices and came to know each other as friends and there were many social events and get togethers and Mr. Kim and his family were central parts of those. She stated that Mr. Kim had a “demanding style” and ran a “disciplined practice.” The rest of her statement constituted pure character evidence that the

Arbitrator disregarded as irrelevant and not probative. US Speedskating did not cross examine this witness. 6.3.2 Witness B: This witness was the mother of a skater who was coached by

Mr. Kim for over a year between 2010 and 2011. She testified she never saw Mr. Kim engage in the activities that have been alleged against him in this case though she observed practices. Her witness statement does not say how often she observed the practices or where but she says she attended “all the practice sessions.” She stated that his methods “are tough, physically and mentally grueling at times” but she saw no abuse. The rest of her statement constituted pure character evidence that the Arbitrator disregarded as irrelevant and not probative. US Speedskating did not cross-examine this witness. 6.3.3 Witness C: This witness was a skater herself and a student of Mr. Kim

from 2007 through 2011. During her time under Mr. Kim’s tutelage she said she never saw him physically or mentally abuse any skaters, but he would yell during training to push skaters. She testified he also held out a hockey stick for skaters to skate under as a training exercise but it was not used to hit anyone and she never saw kids having a fearful attitude toward Mr. Kim. She testified she never saw kids emerge from the locker rooms 34

crying. She testified that Mr. Kim “added fun to our practices such as the Barefoot Relay in which we’d run around the ice track barefooted” and “kids and parents would be cheering and laughing as we all scooted around the rink.” She testified she never heard parents accuse him of abusive behavior, nor did the club leadership ever inform her as a member that Mr. Kim abused skaters. She testified that the same families that are now offering testimony against Mr. Kim had varying disputes with him but continued to bring their children to training. US Speedskating cross-examined this witness. On cross examination, this witness admitted that she was not at the rink as often as most of the competitive skaters, that she was not there when the incidents were alleged to have occurred, and that she had never attended special practice sessions in Mr. Kim’s basement. She also testified that to correct skater positions it would require some

element of physical maneuvering but not a slap. 6.3.4 Witness D: This witness was a skater who trained under Mr. Kim from

2007 through 2008. She testified that she never witnessed Mr. Kim do the things he was accused of doing. She also testified that she never witnessed Mr. Kim leave the ice with skaters and she never heard anything about corporal punishment being used by Mr. Kim. US Speedskating cross-examined this witness. On cross examination this witness

admitted she only participated in 3 practices a week while younger elite skaters participated in up to 6 practices per week, that she had no knowledge of anything after she went to college in August 2008, and that she had never attended any basement sessions or summer retreats with Mr. Kim.

35

6.3.5

Witness E: This witness was an adult skater who was trained by Mr. Kim

approximately 2-3 times per week from 2007 through 2011. This witness testified that she never observed Mr. Kim engaging in any of the activities in which he was alleged to have abused skaters. This witness testified about what she perceived as a lot

rumormongering and efforts by club officials to at first get Mr. Kim removed as a coach from the club and then later efforts after he had been removed to have him rejoin the club. US Speedskating cross-examined this witness. On cross-examination, this witness testified that she was a professional in a major US Government agency and had been for over 20 years and that she had assisted Mr. Kim in his defense including in the preparation of witness statements in support of his case. She testified she did not observe any sessions in Mr. Kim’s basement and did not go on summer retreats and was not in the locker rooms when the events in question were alleged to have occurred. She stated that she did not believe that the allegations about the skater whose father had seen welts on his son’s back after a training session with Mr. Kim and submitted photos thereof had occurred. She testified that in her view no one takes back someone they believe is a child abuser because it just does not make sense to do so. She said that the allegations against Mr. Kim were first brought up at the club by 2 individuals who had wanted to fire Mr. Kim from the club but were unable to do so under the bylaws unless they had a code of conduct violation because they lacked the votes. Nobody in the clubs with which Mr. Kim was involved ever told anyone that Mr. Kim had beat skaters until April of 2011. There were numerous emails on fees charged, gossip, etc., but nothing about him abusing skaters. She admitted that she was not on the club board in 2008 and 2009 so if 36

something had been raised at a club board meeting then she would not have known unless someone advised about it, yet the club president sent a letter about abuse of skaters in 2009. 6.3.6 Witness F: This witness was the mother of a skater coached by Mr. Kim

twice a week for a couple of months each year during the period 2009 through 2011. She testified that she was never advised that there were allegations of physical or verbal impropriety involving Mr. Kim before a day on an unspecified date when she drove her son to the Wheaton rink and was advised shortly thereafter that the club had split apart. The rest of her statement constituted either character evidence or non-specific statements and they were disregarded by the Arbitrator as irrelevant or non-probative. Speedskating did not cross-examine this witness. 6.3.7 Witness G: This witness was the father of a skater who was coached by US

Mr. Kim from 2010 to 2011 roughly three days per week. This witness testified that he did not observe Mr. Kim engaging in any of the acts of which he is accused. US Speedskating did not cross-examine this witness. 6.3.8 Mr. Kim: After declining numerous times despite being invited to do so,

Mr. Kim submitted a witness statement after the close of the second day of the hearing on April 12, 2012. US Speedskating objected to this submission but the Arbitrator overruled those objections and allowed the submission of the statement provided it was submitted by a time certain that evening and that Mr. Kim was available to be cross-examined as the first witness the next morning. Mr. Kim’s witness statement simply denied each factual allegation against him and did not provide any additional explanation for most of 37

the significant allegations. US Speedskating cross-examined this witness and in his cross-examination Mr. Kim continued to deny the allegations other than that for the pencil sharpener. Mr. Kim made the point that these skaters stayed with him at his house and were coached by him regularly and if he was so bad how could their parents allow that to happen. When asked why so many people had come forward with so many allegations about him, he responded that some skaters were not good enough to succeed and this frustrated them and their parents and they had to blame someone. Of note, Mr. Kim testified that he did not care about his coaching license or his ability to coach in the US, that he only cared about his reputation especially in Korea where he stated he was famous. VII. SCOPE OF REVIEW/BURDEN OF PROOF/CHOICE OF LAW/LANGUAGE 7.1 The Arbitrator determined and the parties agreed that this hearing would be a de

novo hearing, as if it were brought under the US Speedskating procedures and in lieu of it being brought thereunder. 7.2 The Arbitrator heard argument from the parties on the applicable burden of proof

to be borne by US Speedskating in presenting its case. Mr. Kim argued that the clear and convincing evidence standard should apply since this case involved allegations and penalties that made this proceeding akin to criminal proceedings. US Speedskating argued that it should have to prove its case by a preponderance of the evidence since this was a civil case, and prior precedent in NGB disciplinary arbitrations require NGBs to bear the burden of proof by a preponderance of the evidence, Nadmichettu v. US Table Tennis Association (AAA Case No. 77 190 169 10 JENF) at p. 4 ¶4.2 (April 23, 2010). Placing the burden of proof on the accused in a 38

disciplinary proceeding would lead to the impossible burden of the accused having to prove a negative, that the accused did not commit a violation of the appropriate standard. Because this case is a civil case and not a criminal matter, and in light of Nadmichettu and the requirement in the USOC Due Process Checklist that the “burden of proof shall be on the proponent of the charge, which burden shall be at least a ‘preponderance of the evidence’ unless the NGB requires or provides for a higher burden of proof,” and the absence of a contrary burden of proof in US Speedskating’s governing documents, the Arbitrator determined that the burden of proof should be on US Speedskating to prove its case by a preponderance of the evidence. 7.3 The Arbitrator heard argument from the parties on the applicable law that should

apply to the merits of this case. Mr. Kim argued that the law of Washington DC should apply to this case because that was the location of the hearing and the witnesses were largely from Washington DC or the Washington DC area. US Speedskating argued that the law of Missouri, the state of its incorporation, should apply. Neither party could demonstrate that there was any relevant substantive difference between the laws of Washington, DC and Missouri on any mater that would be relevant to this case. The Arbitrator determined that the internal affairs doctrine, which provides that the “internal affairs” of a corporation will be governed by the corporate law of the state in which the corporation is incorporated, also referred to as the lex incorporationicis, applied here, so the applicable law to the substance and the procedure of this case shall be the law of the State of Missouri.3

Notably, after being advised of the Arbitrator’s ruling on choice of law, no party made any specific allegations or arguments about the law of the State of Missouri or its unique application to this case. 39

3

7.4

The Arbitrator determined that the language of the proceedings would be English.

VIII. SUMMARY OF ARGUMENTS 8.1 US Speedskating argued in its written submissions that there were violations of

Sections 2(d), 2(g), and 2(h) of the US Speedskating Code of Conduct that were evidenced by the testimony of numerous witnesses. 8.2 US Speedskating argued in its written submissions that the evidence of violations

of Section 2(d) included multiple witnesses testifying that Mr. Kim: a) asked male skaters how big their penises were, b) asked skaters how often they masturbated, c) gave skaters who were very young a toy pencil sharpener that involved inserting the pencil into the anus of a male character’s exposed butt and the character would scream when the pencil was inserted, d) put his foot between the buttocks of a skater, and e) during a training camp one night entered the room of two skaters and laid on top of one while wearing only his underwear. 8.3 US Speedskating argued in its written submissions that the evidence of violations

of Section 2(g) of the US Speedskating Code of Conduct included multiple witnesses testifying that Mr. Kim a) repeatedly hit minor skaters with hockey sticks often with great force, b) frequently hit skaters on the hands with a rubber mallet, c) regularly hit skaters with his stopwatch/whistle/a bead at the end of the stopwatch lanyard/string, d) frequently beat skaters with skate guards, e) grabbed a skater by the neck and punched him in the stomach and/or ribs then hit him with a hockey stick when he could not keep up with a workout, f) forced skaters to do pushups on the ice with their bare hands causing them great pain in their hands, g) required

40

skaters to run laps on the rink in their bare or stocking feet causing them great pain, h) pinched skaters in the stomach area very hard even causing one skater to lose her breath, i) threw rubber blocks at skaters while they were skating, k) pinched and twisted skaters’ nipples, l) picked up one skater by his ears and carried him across the rink, m) frequently jabbed skaters in the ribs with keys, n) manipulated skaters’ skate blades causing them not to be able to skate well and/or to be more prone to falling, o) pushed hard on the pressure points of the arm and shoulder of one athlete causing him great pain, p) forced two skaters to lean with most of their weight against his fist and then pulled out his hand causing the skaters to bump heads hard, q) did relay pushes on skaters too hard for their ability causing them to fall down and even injure themselves, r) threw at and hit skaters with tennis balls, and s) on several occasions ignored serious injuries such as broken ankles and legs and demanded that skaters walk with those injuries. 8.4 US Speedskating argued in its written submissions that the evidence of violation

of Section 2(h) of the US Speedskating Code of Conduct included multiple witnesses writing to US Speedskating that Mr. Kim filed a lawsuit in Federal Court against US Speedskating listing a number of co-plaintiffs who had not given their consent to be so listed. 8.5 In response, Mr. Kim argued in his written submissions that because the

Montgomery County, Maryland Child Protective Services had investigated the allegations of abuse against Mr. Kim and found no violation of Maryland law that these allegations should not be part of this proceeding. 8.6 Mr. Kim also argued in his written submissions that the foundation of US

Speedskating’s case was inherently incredible because there were no contemporaneous emails, written reports, police reports, or medical records documenting what the witnesses were now 41

alleging, that numerous skaters and club officials who witnessed or participated in Mr. Kim’s workouts did not report similar conduct or activity, and that no parent or official would try to hire back to their club a coach they reasonably believed to be causing physical harm or other forms of abuse toward club members or their children. 8.7 Mr. Kim also argued in his written submissions that US Speedskating failed to

maintain and apply equitable dispute resolution procedures to Mr. Kim’s case as required by law. According to Mr. Kim, not only did US Speedskating not offer him a hearing before initially suspending him, but US Speedskating also did not conduct an adequate investigation. Mr. Kim also argued in his submissions separately that US Speedskating failed to observe fundamental principles of due process because it attempted to try this case in the media and failed to advise Mr. Kim with any specificity of the alllegations against him and the supporting facts until the deadline set for doing so in this arbitration proceeding. 8.8 Mr. Kim also argued in his written submissions that US Speedskating failed to

exercise autonomy in the governance of its sport as required under the Ted Stevens Olympic and Amateur Sports because it took direction and instruction from officials of subordinate US Speedskating member clubs on how to conduct its investigation and how to collect evidence. 8.9 Mr. Kim also argued in his written submissions that US Speedskating seeks to

discipline him in this arbitration proceeding simply for contesting US Speedskating’s actions in court as a result of the filing of his Federal Court complaint. 8.10 In response, US Speedskating argued in its written submissions that Speedskating

and the arbitrator are not bound by the results of the Maryland Child Protective Services of Montgomery County review. US Speedskating argues that Maryland Child Protective Services 42

and US Speedskating have different purposes and different rules and standards, and that Maryland Child Protective Services advised one of US Speedskating’s witnesses that because the physical abuse described by witnesses occurred more than one year ago and there were no live bruises nor any medical records the standard for pursuing criminal charges would not be able to be met. Maryland Child Protective Services apparently made clear to this witness that their finding of no evidence of physical abuse did not mean that no abuse had occurred or that the claims were invalid or not credible. 8.11 US Speedskating also argued in its responsive written submissions that the

foundation of its case was both credible and compelling because the stated rationale for firing Mr. Kim by the club is irrelevant since the investigation has focused on whether Mr. Kim violated the US Speedskating Code of Conduct, not on the grounds for his dismissal, Mr. Kim was confronted about his behavior, promised to change, and then failed to do so which explains why he was given a second chance. Some skaters continued to return to Mr. Kim despite the abuse for a variety of reasons including his notoriety and success as skater and coach, a belief that he would change his ways, and fear of retaliation from other supporters of Mr. Kim, while other skaters left the club as a result of his abuse. While Mr. Kim is adamant that no parent would turn a blind eye to abuse he provides no motive for parents and skaters to come forward today especially those now unaffiliated with any DC-area skating clubs. 8.12 US Speedskating further argued in its responsive written submissions that it had

maintained and applied adequate procedures for a prompt and equitable resolution of this matter, including taking impartial witness interviews of individuals with firsthand information regarding allegations of abuse by an individual experienced in taking such witness interviews, providing 43

notice and a hearing to Mr. Kim to respond to the allegations, and Mr. Kim later requested that the case be heard by this Arbitrator. 8.13 US Speedskating further argued in its responsive written submissions that it had

exercised autonomy in the governance of its sport as required by law because US Speedskating had to call upon its member clubs and their members to conduct its investigation and that contact with its clubs is a necessary part of US Speedskating’s governance process and was required for its investigation. 8.14 US Speedskating further argued in its responsive written submissions that it has

observed fundamental principles of due process because they sent him correspondence detailing in writing the charges against Mr. Kim, setting forth his hearing rights, and addressing the impacts of any findings against Mr. Kim should the allegations be found to be true. 8.15 US Speedskating also argued in its responsive written submissions that it sought

to discipline Mr. Kim for violations of section 2(h) of US Speedskating’s Code of Conduct, not simply because Mr. Kim filed a Federal Court lawsuit, but because he named certain US Speedskating members as co-plaintiffs without their consent which constituted an act “of fraud, deception or dishonesty in connection with any US Speedskating-related activity.” 8.16 It was not until after the second day of the hearing in this matter that Mr. Kim, for

the first time, expressly denied the factual allegations against him. 8.17 In its closing arguments, US Speedskating argued as follows: Mr. Kim wants to make this case about him and his reputation and

8.17.1

marketing. But this case is about young skaters who trusted him as a coach and idolized him as a champion and who suffered physical pain and humiliation at hand 44

of person who they trusted. This case is about sport sending the message that it will not tolerate these kinds of abusive relationships. 8.17.2 Mr. Kim chose not to submit a written statement until he returned to

Korea, chose not to cross-examine the witnesses or the parents who he claims organized a false campaign against him, learned that he is willing to play games with the arbitrator and parties and witnesses. He announced on the first day of the hearing that these allegations are not as important as his media obligations and other engagements in Korea. If he is willing to play games with this proceeding then he is willing to play games with facts. To Mr. Kim it is still all about him. He does not care about his ability to coach here only about his reputation in Korea. 8.17.3 Only 2 possibilities exist here: Either Mr. Kim seriously did this and

refused to acknowledge his conduct, or there was a massive conspiracy on a grand scale extending from Maryland to California and Korea that caused 7 skates and 4 parents to perjure themselves. Which is more likely? 8.17.4 US Speedskating Exhibit 12 stated that a skater and his parents were afraid

for their safety and wanted to speak to the board at the club about incidents that occurred, but they were fearful for the safety of the skater at future competitions if others found out. This was not written by anyone in the conspiracy—this was written by the skater’s tutor who Mr Kim did not know and would not know has anything against him. In US Speedskating Exhibit 13 a parent said that her son was afraid to meet Mr. Kim at competitions, nervous to go to snack bar parking lot, etc, and was

45

worried that Mr. Kim not be around him. Both of these emails demonstrate that this was not some cultural misunderstanding because both were written by Koreans. 8.17.5 About one person who wrote an email against him, the professor with

professional designations, Mr. Kim said he was good and reasonable person and had no reason to believe he would lie, and this person said in an email that Mr. Kim would hit skaters with a wrench or hold the wrench in front of their faces threatening to hit them. These kinds of evidence strongly support that Mr. Kim crossed line and rebut his grand conspiracy theory. 8.17.6 The West Allis, Wisconsin hotel room testimony, where Mr. Kim warned

skaters that if anyone asks you if Mr. Kim hit his skaters you say no, was recounted in multiple statements and not refuted by Mr. Kim in his witness statement or otherwise. 8.17.7 Mr. Kim testified that the allegations against him emanated from parents

of kids who were not performing well because only one skater can be at the top. But at least one of the skaters who said there were many beatings of him with hockey sticks, leather skate guards, and a rubber hammer is a top ranked skater nationally and has competed internationally. 8.17.8 There were telling statements when in response to his question Mr. Kim

tried to suggest he was never alone with young skaters in his basement. He then said the skaters were at his house alone with him when they were there for in his basement. This is inconsistent. 8.17.9 There was evidence presented of countless episodes of abuse. There was

uncontradicted testimony about skaters being hit. 46

8.17.10

Parents and club leaders may not be blameless, and may have hoped too

long that Mr. Kim would change his habits. In April 2009, at least one witness statement makes clear that Mr. Kim’s habits toward skaters were found to be a problem by the club and that this subject was addressed to Coach Kim directly. But any error in judgment in parents or club leaders cannot absolve him for the consequences of his own actions. 8.17.11 Tellingly, Mr. Kim concludes his brief by saying his actions could not

tarnish sport of speedskating because his coaching produced national champions and records in the sport. To him, apparently the ends justify the means even if it meant physical and mental abuse of those in his charge. 8.17.12 Due to the extent of the abuse and the period of time involved, a lifetime

ban is the only appropriate remedy. If not, it means the arbitrator must conclude that each skater and parent was lying and committing perjury and would mean that young abused athletes would be left without a voice because their testimony could be recounted as incredible and that any gold medal reputation coach could act with impunity, and that attacks on motives of abuse victims could successfully deflect blame. It would mean that Mr. Kim made a mockery of these proceedings and should be rewarded for it, that sport honors winning at all costs even if it means harming others, and would mean that in the future others could get away with anything as coaches because they would be inviolable. 8.18 Mr. Kim’s counsel argued in closing arguments as follows:

47

8.18.1

This is a case about angry people who are so angry that they are not going

to stop until they see what will happen, about bitter parents who thought their kids would be shining stars and that did not happen for them. 8.18.2 Nothing was a mystery. When Mr. Kim came it was clear that his

coaching used positioning, that he spoke directly and used a hockey stick, and that he was a handful and kind of difficult. 8.18.3 One witness worked with Mr. Kim for a while but threw up his hands in

despair. That witness was in a room in West Allis, Wisconsin where Mr. Kim said tell people I don’t hit you and so this witness fired Mr. Kim from the club and sent and email saying Mr. Kim was hard to deal with. This witness did not mention physical abuse, etc. He just left club and went somewhere else. 8.18.4 After that a couple of parents who testified for US Speedskating tried to

keep the club together, and saw him physically correcting skaters, informed everyone that he did it, and their kids skated for that club without incident for over 2 years. One of these witnesses was on ice for every practice and the other was in the rink. But their kids did not become shining stars and Mr. Kim was tough and their kids did not like him. So to extricate them from this, these individuals realized that if they said Mr. Kim violated the code of conduct they could make a change, even if what you said was there was physical abuse and even if you never told anyone what it was and had not told anyone what happened and just let people wonder and gossip and guess about it. And within a year these two parents and the prior mentioned witness

48

started stirring up serious allegations of abuse about various things. They did not make any effort to pull out the seriousness of what they were alleging. 8.18.5 When it came to US Speedskating’s attention in 2011 right before

Nationals, the biggest competition of the year, when Mr. Kim was to have been taken away from coaching skaters and suddenly have to face allegations of abuse. And people said if you have allegations of abuse like this you go to the police so US Speedskating realized that they were looking bad because there were news articles saying that they didn’t do anything, so as Mr. Love said “could you people please talk to us so we don’t get sued” and he talked to everyone who would talk to him. There were scores of people who communicated. Mr. Love interviewed them based on a template he came up with himself where would ask open-ended questions of witnesses like what didn’t you like about Coach Kim. And Mr. Love said they all told the same story. Some kids were on phone during the interview with their parents who had an agenda. Mr. Greenwald said well possibly that creates an issue for their testimony. They all remembered the basement punching and hitting story and all told that story. Except one says doesn’t remember he threw up. Another says he was in a headlock, gets punched, throws up, and then on the floor and Mr. Kim beat him with a hockey stick, but some did not remember the hockey stick part, so their stories were not consistent. Mr. Love’s notes show everyone says stuff about hockey sticks, etc. but they don’t show anything about people in underwear, pencil holders, sexual issues, etc. Everyone remembers the hockey stick because Mr. Kim used it as a training tool. 49

One witness says he remembers Mr. Kim hit heads with sticks. Another says skate guards. Another says he had me in the locker room with no one else except one another athlete and he wielded it like a baseball bat. But no one else ever saw it and other athletes did not come forward. The major university professor says Mr. Kim carried a wrench around in his pocket and he would hit skaters with a wrench, but not one of the kids said he hit me with a wrench. 8.18.6 US Speedskating referred the matter to Maryland Child Protective

Services and sent letters to all skaters to talk to them. A number of skaters did go and they did a full investigation and talked to Mr. Kim extensively and made a finding of no evidence of physical abuse. Maryland Child Protective Services has professional investigators who do this every day and they have standards so that you know whether testimony is correct or not. If no physical evidence there is a reason for that because it is hard to evaluate if a kid hit was hit from 3 years ago. These kids are not all liars but they are skaters who skate together and talk together. 8.18.7 They all remember them in kind of the same way, but not really in way

you would remember if someone were in a basement beating you with a hockey stick. So we have to look at allegations fresh and how they got here and much of it got here from two parents. They testified they sat for years and watched this and let it go on and did nothing about it. All throughout this they had a meeting with the club president and Mr. Kim about it but no one in the club was ever told that there were bad things going on. But there were no notes of the conversation with the club president and Mr. Kim. 50

8.18.8

What parent sees this and doesn’t do anything? Why keep bringing kids

back day after day? Why not go to one of the 5 other clubs in DC? No one says well maybe it’s ok for my kid, and I don’t have to tell anyone else because it’s really not that bad. 8.18.9 Both clubs after they fired Mr. Kim wanted him back. You don’t do that No responsible official does these things. You have an

with a child abuser.

obligation if you see anything like what they say they saw to say don’t come here; instead they launched a media campaign to try to bring in more skaters after the Olympics so these kids can work with a child abuser. This is unbelievable. 8.18.10 Some are asserting that Mr. Kim committed fraud because he used their

names as part of a lawsuit and because there is money in there he committed fraud. Nothing happened in that lawsuit, and there was no evidence, and no money ever changed hands. And the moment this person asked Mr. Kim to withdraw their name or the lawsuit it was withdrawn. 8.18.11 This case is about I am mad about Coach Kim, he must have done

something wrong, my kid didn’t win, my club fell apart that I worked on for hours and he took most of the skaters with him, etc. so it must have been Coach Kim. But US Speedskating has been used by these parents. Both parties have been used in this case. While US Speedskating is a large organization and will continue on, Mr. Kim’s reputation has been ruined forever and nothing gets that back. We ask that the Arbitrator find him to still be a member in good standing of US Speedskating so he can coach should he ever come back to the United States. 51

8.19

US Speedskating’s rebuttal closing argument can be summarized as follows: Mr. Kim is essentially arguing that there is a shining stars conspiracy by

8.19.1

certain limited individuals with a vendetta against him. But the witness statements from 7 skaters, 4 parents, and initial statements by others in the US Speedskating investigation, show that dozens of people were apparently all willing to perjure themselves because a couple of kids were not the shining stars their parents wanted them to be. How does that explain a top ranked skater of Korean descent submitting a sworn statement? What possible motive could a major university professor have for submitting a statement about abuse he witnessed? Why would the parent of a skater who has been gone from the sport for the past couple of years and now lives in a foreign country have a motive to submit a false sworn statement if he did not believe it to be true and backed up by a photo he took at the time? Why would 3 people recall a statement made by Mr. Kim in 2008 that was not refuted in any argument or by evidence? Why would Mr. Kim choose to not cross-examine the sworn statements of almost all of the fact witnesses in this case? Why would Mr. Kim never deny that a meeting with him and club officials about his conduct toward skaters happened in 2009? Basically Mr. Kim’s counsel argued that the Arbitrator should disbelieve the stories of everyone because everyone other than Mr. Kim and his witnesses are lying because they are kids or their stories have minor inconsistencies, or the like. 8.19.2 Mr. Kim’s counsel suggested that the US Speedskating investigators were

prompting kids to tell them about the basement punching, hitting and hockey stick 52

beating episode, but Mr. Love testified he did not know the name of that skater and asked open ended questions and got that name and episode from several athletes independently. 8.19.3 It is undisputed that Maryland Child Protective Services was proceeding

under a one year statute of limitations that required evidence of fresh bruising to proceed. 8.19.4 Mr. Kim’s counsel continues to put before us that it is somehow

determinative that the club board members considered keeping him with the club but in their opening statement they characterized that they were willing to bring Mr. Kim back if they could resolve some monetary issues, which ignores that the critical thing to board members was they would have written assurance Mr. Kim would no longer engage in this abusive violent conduct and that the first time it happened in the future he would be gone—to characterize this as a money issue is totally false in light of the testimony and documents, and Mr. Kim never cross examined any witness on this. 8.19.5 Numerous witnesses who were not the children of the two parents Mr.

Kim has identified as the conspiracy ringleaders have come forward and put statements under oath and none of these were challenged by cross examination or other means. There simply is no basis to accept the grand conspiracy shining stars theory over the truth being told under oath by these witnesses. IX. ANALYSIS A. The Alleged Code of Conduct Violations 53

i. 9.1

Violation of US Speedskating Code of Conduct Section 2(d)

US Speedskating Code of Conduct Section 2(d) provides that, “The following

shall be considered violations of the U.S. Speedskating Code of Conduct: . . . (d) any sexual contact or advance or other inappropriate sexually oriented behavior or action directed towards an athlete by a coach, official, trainer, or other person who, in the context of speedskating, is in a position of authority over that athlete.” 9.2 The US Speedskating Code of Conduct does not provide a definition of the key

terms used in this provision so we have to examine other sources to understand the nature of this section of the US Speedskating Code of Conduct.4 9.3 Under Missouri Revised statutes section 566.010(3), “sexual contact” is defined

as, “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.” This definition mirrors medical definitions. See, e.g., http://medical-dictionary.thefreedictionary.com/Sexual+Contact. There do not appear to be any consistent reliable definitions of “sexual advance” or “sexually oriented behavior” so the Arbitrator must interpret their plain meaning. 9.4 US Speedskating alleges that Mr. Kim violated Section 2(d) based on the

following conduct (the witness statements relied upon for these allegations, as made anonymous in this decision, are set forth in parentheses after each allegation):

US Speedskating is not alone on this. The USOC’s own documents that repeatedly reference sexual and physical abuse, such as its Coaching Code of Conduct and the report of its recent work group on safe sport training environments, do not provide any definitions. 54

4

9.4.1

He asked male skaters under his tutelage how big their penises were (witness statements of witnesses 5 and 8);

9.4.2

He asked male skaters under his tutelage how often they masturbated (witness statements of witnesses 5, 8, and 1);

9.4.3

He gave skaters who were very young a toy pencil sharpener that involved inserting the pencil into the anus of a male character’s exposed butt and the character would scream when the pencil was inserted (witness statements of witnesses 5, 8, and 1);

9.4.4

He put his foot between the buttocks of a skater under his tutelage (witness statement of witness 8); and

9.4.5

During a training camp one night he entered the room of two skaters under his tutelage and laid on top of one while wearing only his underwear (witness statement of witness 8).

The Arbitrator found all of the testimony from the witnesses on this subject to be reliable and probative. 9.5 Mr. Kim ultimately denied that any of this happened, though he did admit in his

testimony that he gave the unique pencil sharpeners as gifts to parents of certain skaters. 9.6 While Mr. Kim’s conduct as set forth above can certainly be said to be

inappropriate under the circumstances, the Arbitrator does not find a violation of Section 2(d) of the US Speedskating Code of Conduct. The provisions of this section of the US Speedskating Code of Conduct when interpreted in light of the plain language definitions do not appear to apply to the conduct in which Mr. Kim engaged and which US Speedskating asserted formed the 55

basis for a violation. The definitions require that Mr. Kim engage in the sexual contact while receiving some form of sexual gratification as a result. Nothing in the allegations of US Speedskating assert that he was sexually gratified as a result of his conduct, nor do they allege he did these things for that purpose, and the Arbitrator cannot read into section 2(d) of the US Speedskating Code of Conduct that making inappropriate comments about things of a sexual nature constitute a violation based on the plain language of that section. Of course, US

Speedskating could amend the language of this provision to more broadly encompass this kind of conduct but on its face it does not appear to address conduct of the sort at issue in this case. 9.7 While the conduct detailed in paragraphs 9.4.4 and 9.4.5 hereof could constitute

violations of section 2(g) of the US Speedskating Code of Conduct as constituting physical abuse, US Speedskating did not make such allegations and it would be wrong for the Arbitrator to consider them under this other section when Mr. Kim was not put on notice of such a charge. 9.8 For the reasons set forth above, the Arbitrator determines that Mr. Kim did not

violate section 2(d) of the US Speedskating Code of Conduct. ii. 9.9 Violation of US Speedskating Code of Conduct Section 2(g)

US Speedskating Code of Conduct Section 2(g) provides that, “The following

shall be considered violations of the U.S. Speedskating Code of Conduct: . . . (g) physical abuse or harm, mental abuse, intimidation, coercion, or the threat of physical abuse or harm to a U.S. Speedskating member by any person who, in the context of speedskating, is in a position of authority over that U.S. Speedskating member.”

56

9.10

The US Speedskating Code of Conduct does not provide a definition of the key

terms used in this provision so we have to examine other sources to understand the nature of this section of the US Speedskating Code of Conduct.5 9.11 According to Black’s Law Dictionary, “abuse” means, among other things,

“Everything which is contrary to good order established by usage . . . Physical or mental maltreatment. . . .” Black’s Law Dictionary 10 (Special Deluxe 5th Ed. 1979). At least one source defines “physical abuse” in the context of pediatrics as: “Inflicting bodily injury through excessive force or forcing a child to engage in physically harmful activity, such as excessive exercise.” http://medical-dictionary.thefreedictionary.com/physical+abuse. 9.12 “Intimidation” is fundamentally the noun form of “intimidate”, which is defined 2. To coerce or inhibit by or as if by threats.”

as, “1. To make timid; fill with fear.

http://www.thefreedictionary.com/intimidation. 9.13 “Coercion is fundamentally the noun form of “coerce,” which is defined as,

“1. To force to act or think in a certain way by use of pressure, threats, or intimidation; compel.

The USOC’s SafeSport website, www.safesport.org, defines physical abuse as “any activity that physically harms an athlete – such as direct contact with coaches or teammates, disciplinary actions or punishment” and that it “is unacceptable”. On another area of that site it states: “Physical misconduct involves contact or non-contact behavior that can cause physical harm to an athlete or other sport participants. It also includes any act or conduct described as physical abuse or misconduct under federal or state law (e.g., child abuse, child neglect and assault).” The site then gives examples of physical abuse, which notably include the following: “Punching, beating, biting, striking, choking or slapping an athlete”, “Intentionally hitting an athlete with objects or sporting equipment”, “Encouraging or permitting an athlete to return to play prematurely or without the clearance of a medical professional, following a serious injury”, and “Forcing an athlete to assume a painful stance or position for no athletic purpose (e.g. requiring an athlete to kneel on a harmful surface)”. http://safesport.org/pdf/misconduct/Physical-Misconduct.pdf. 57

5

2. To dominate, restrain, or control forcibly . . . 3. To bring about by force or threat . . .” http://www.thefreedictionary.com/coerce. 9.14 US Speedskating alleges that Mr. Kim violated Section 2(g) based on the

following conduct (the witness statements relied upon for these allegations, as made anonymous in this decision, are set forth in parentheses after each allegation): 9.14.1 repeatedly hit minor skaters with hockey sticks often with great force (witness statements 3, 4, 5, 6, 7, 8, 9, 10, and 11); 9.14.2 frequently hit skaters on the hands with a rubber mallet (witness statements 5, 6, 7, 8, and 9); 9.14.3 regularly hit skaters with his stopwatch/whistle/a bead at the end of the stopwatch lanyard/string (witness statements 2, 3, 5, 6, 7, 8, and 9); 9.14.4 frequently beat skaters with skate guards (witness statements 1, 2, 5, 7, 8, 9, and 10); 9.14.5 grabbed a skater by the neck and punched him in the stomach and/or ribs then hit him with a hockey stick when he could not keep up with a workout (witness statements 1, 5, 6, 7, and 8); 9.14.6 forced skaters to do pushups on the ice with their bare hands causing them great pain in their hands (witness statements 2, 5, and 6); 9.14.7 required skaters to run laps on the rink in their bare or stocking feet causing them great pain (witness statements 3, 5, 6, 10, and 11); 9.14.8 pinched skaters in the stomach area very hard even causing one skater to lose her breath (witness statements 5, 6, and 7); 58

9.14.9 threw rubber blocks at skaters while they were skating (witness statements 3, 5, 6, 8, and 9); 9.14.10 9.14.11 pinched and twisted skaters’ nipples (witness statements 5, 6, and 8); picked up one skater by his ears and carried him across the rink (witness statements 1 and 5); 9.14.12 9.14.13 frequently jabbed skaters in the ribs with keys (witness 5); manipulated skaters’ skate blades causing them not to be able to skate well and/or to be more prone to falling (witness statements 1, 5, and 7); 9.14.14 pushed hard on the pressure points of the arm and shoulder of one athlete causing him great pain (witness statement 5); 9.14.15 forced two skaters to lean with most of their weight against his fist and then pulled out his hand causing the skaters to bump heads hard (witness statement 5); 9.14.16 did relay pushes on skaters too hard for their ability causing them to fall down and even injure themselves (witness statements 7 and 8); 9.14.17 9.14.18 threw at and hit skaters with tennis balls (witness statement 8); and on several occasions ignored serious injuries such as broken ankles and legs and demanded that skaters walk with those injuries (witness statements 7 and 8). 9.15 In addition to the above witness statements, the Arbitrator received into evidence

without objection emails from an individual who declined to offer witness testimony but who holds the professional degrees of MD and MPH and is a professor at a major local medical 59

school. This individual wrote that, “Instead of determining whether a skater had been seriously injured or not, Kim Dong-Sung would scream at the injured skaters to resume skating. This occurred repeatedly and was witnessed by many people. Some of these young skaters had sustained serious fractures and were taken off the ice by concerned parents while the coach did nothing.” This same individual also wrote that, “Kim Dong-Sung was an intimidating figure to everyone in the club” and that, “The coach usually carried a skate wrench in his pocket when he was on the ice. On numerous occasions, when he was angry with the young skaters, he would hit them on the top or front of their helmets with the wrench. Or he would hold the wrench in front of their faces, threatening to hit them with the wrench. This happened so frequently that it just seemed like a regular part of his coaching.” Mr. Kim himself testified that he did not believe this witness had any reason to lie or misstate the facts as he saw them. 9.16 In addition, the Arbitrator received into evidence various emails from and among

the club members where Mr. Kim was coaching detailing the concern of club members from 2009 onward with Mr. Kim’s abusive behavior toward skaters and his confrontational communications with parents. 9.17 Mr. Kim’s response to all of this was to simply deny that any of it had occurred

and to attack the credibility of the eyewitnesses making the statements by asserting at the hearing that there was a conspiracy to “get” Mr. Kim among a few skaters at the clubs in Washington DC. While that might be persuasive if there were just a few witness statements evidencing all of this, that is not the case here. The Arbitrator wishes to make clear that the witness statements submitted on behalf of Mr. Kim lacked probative value to the issues at hand, namely whether

60

Mr. Kim committed the violations or not, not that Mr. Kim’s witnesses were unbelievable or not credible. 9.18 There are at least 11 different witnesses providing evidence that Mr. Kim engaged

in treatment of skaters under his instruction in a manner that can only be characterized as maltreatment, mistreatment, abusive, intimidating, coercive, tremendously inappropriate, and frankly simply unbecoming of an Olympian, Olympic medal winner, and coach and teacher of young people and young athletes in this country. Mr. Kim has abused his position of trust and leadership and the tremendous position of influence he had over these skaters in question when they were under his care. Mr. Kim crossed the line from coach to the realm of the inappropriate, behaving as he saw fit at that moment with no sense of context or of his position, and completely unaware of the impact his actions would have on others both at that time and into the future. By his actions it was uncontroverted that he drove some skaters away from the sport to which they had previously been devoted, which is not only a loss to those skaters but also to the sport. Mr. Kim is fortunate that no parent or skater has attempted to assert civil claims against Mr. Kim for the physical abuse he waged on the skaters under his coaching and that he escaped criminal liability in Maryland. The Arbitrator, and anyone else in a position of fact-finding or decisionmaking authority in this case, would have to be wearing blinders to not find violations of the US Speedskating Code of Conduct on these facts. 9.19 The Arbitrator determines that Mr. Kim violated US Speedskating’s Code of

Conduct Section 2(g) in at least 18 separate ways on at least 18 separate occasions, if not more, by engaging in physical abuse or harm, threat of physical abuse or harm, intimidation, coercion, and mental abuse. 61

iii. 9.20

Violation of US Speedskating Code of Conduct Section 2(h)

US Speedskating Code of Conduct Section 2(h) provides that, “The following

shall be considered violations of the U.S. Speedskating Code of Conduct: . . . (h) any act of fraud, deception or dishonesty in connection with any U.S. Speedskating-related activity.” 9.21 The US Speedskating Code of Conduct does not provide a definition of the key

terms used in this provision so the Arbitrator would have to examine other sources to understand the nature of this section of the US Speedskating Code of Conduct, but for the reasons set forth below the Arbitrator does not need to undertake an analysis of the meaning of “fraud, deception or dishonesty.” 9.22 A key element of this provision of the Code of Conduct is that the acts US

complained of must be “in connection with any U.S. Speedskating-related activity.”

Speedskating asserts that the by filing his Federal Court complaint with the names of skaters who did not expressly consent to being named as co-plaintiffs Mr. Kim violated this Code of Conduct provision. 9.23 The Arbitrator declines to find that by bringing a lawsuit against US Speedskating

Mr. Kim is engaged in any form “in connection with any U.S. Speedskating-related activity.” Mr. Kim brought a lawsuit in the United States District Court against US Speedskating. If Mr. Kim misled the Court or otherwise engaged in conduct that was prohibited by the requisite court rules the proper venue to address this conduct is with the Court itself. But it can hardly be said that by filing a litigation against US Speedskating he is somehow doing something in connection with US Speedskating-related activity. To interpret this provision of the Code of Conduct this broadly would in essence be to determine that anyone who brings a litigation against US 62

Speedskating to vindicate their rights could face expulsion from US Speedskating simply because they did not prevail or simply dismissed their case. determines there was no violation of this provision. B. 9.24 Mr. Kim’s Due Process Arguments Mr. Kim argued repeatedly both in his submissions and his opening and closing Accordingly, the Arbitrator

arguments that US Speedskating had violated his due process rights and so therefore the lack of due process should somehow affect the outcome of this case and provide him with a complete defense. Mr. Kim cited no authorities in support of this proposition. The Arbitrator pointed out at the hearing that there were no such authorities in support of this and in fact there were contrary authorities and Mr. Kim had no response. The Arbitrator is of the view that US Speedskating initially failed to provide Mr. Kim with the due process that is guaranteed him by the Ted Stevens Olympic Amateur Sports Act and the United States Olympic Committee’s Due Process Checklist, which standards the Arbitrator takes judicial notice of are widely and well known by the Olympic governing bodies and sports community, and by the US Speedskating Bylaws, by not providing him with a hearing prior to suspending him.6 The Arbitrator has determined that the due process arguments fail to afford Mr. Kim any shelter from having to address head on the

The remedy for a coach, who under the Ted Stevens Olympic and Amateur Sports Act and the USOC Bylaws is treated the same as an athlete, trainer, and official insofar as due process goes, who is the subject of a due process violation is either to get the process that is due them from the offending sports body or some other process or to bring the situation to the attention of the USOC through a complaint under Sections 9 through 11 of the USOC Bylaws seeking to compel the offending National Governing Body to comply with the due process requirement. 63

6

merits of the allegations of violations of the US Speedskating Code of Conduct that have been asserted against him. 9.25 Numerous cases have held in sports and elsewhere that when a party brings a

claim of failure of due process the remedy is simply giving that party the process that is due. See, e.g., H v. FIM (CAS Case No. 2000/A/81) (December 22, 2000) ¶9 (holding that, “According to Article R57 of the Code, the panel shall have full power to review the facts and the law. The panel will consequently hear the case de novo and is not limited to considerations of the evidence that was adduced before FIM either in the first instance or at the appellate stage. The panel can consider all new evidence produced before it. This implies that, even if a violation of the principle of due process occurred in prior proceedings it may be cured by a full appeal to the CAS.” (CAS 94/129 USA Shooting & Q. v/ UIT, CAS Digest, p. 187, 203)); McKinney v. Pate, 20 F3d 1550, 1557 (11th Cir. 1994) (recognizing that a state actor generally may cure a procedural deprivation by providing a later procedural remedy). 9.26 Here, Mr. Kim was given a full, de novo hearing over the course of three days,

that had been rescheduled multiple times to accommodate his situation. Mr. Kim was provided in writing in advance the specific charges against him, the factual bases for those charges, and the consequences if those charges are established. Mr. Kim was given a reasonable time in advance of the hearing to respond to the charges against him, which time frame he himself agreed to. Mr. Kim was given the opportunity to be assisted in the presentation of his case by counsel which at varying times he availed himself of. Mr. Kim was given the opportunity to present witnesses and oral and written testimony in support of his position, he was given the right to cross examine adverse witnesses, all of which he availed himself of. Mr. Kim was given 64

he right to have a record made of the hearing if he so desired, though he opted to not have that record made. US Speedskating was required to meet its burden of proof by a preponderance of the evidence to prove its alleged Code of Conduct violations. Mr. Kim was given the

opportunity to select and did select a neutral and impartial fact finder. Mr. Kim was given this written decision based on the evidence presented in the time required. In sum, after the initial, wrongful suspension by US Speedskating and its later lifting, Mr. Kim was given all of the procedural protections set forth in the USOC Due Process Checklist. 9.27 In addition, despite Mr. Kim proceeding pro se the Arbitrator made a number of Among other things, the Arbitrator set the hearing in

accommodations for Mr. Kim.

Washington, DC to accommodate Mr. Kim, and his counsel, representatives, and witnesses, on dates that Mr. Kim indicated he was available. The Arbitrator permitted Mr. Kim, at varying times throughout the proceedings, to be represented by counsel and to appear pro se, going back and forth multiple times. Despite Mr. Kim being advised multiple times of his right to provide a witness statement on his own behalf and his verbal statements to the Arbitrator and opposing counsel multiple times that he would not submit such a statement in advance of the hearing as required by the Initial Scheduling Order, when Mr. Kim sought on the second day of the hearing to make such a submission the Arbitrator allowed it over the objection of US Speedskating. Similarly, when Mr. Kim announced at the beginning of the hearing that he would have to be absent from days two and three of the scheduled hearing, the Arbitrator permitted him to be represented by a non-lawyer as his “representative” under the AAA Commercial Arbitration Rules, and then later when Mr. Kim sought to have counsel represent him just hours before the closing arguments were to begin the Arbitrator permitted it even though that counsel had also 65

appeared as a witness in the case. The number and amount of efforts made to allow Mr. Kim as a pro se litigant to conduct his case, despite his prior comments, commitments, agreements, or otherwise, were, to be frank, tremendous. 9.28 At the end of the hearing Mr. Kim’s representatives and counsel orally agreed and

acknowledged in front of the Arbitrator and opposing counsel that Mr. Kim had been provided with a full and fair opportunity to present his case. 9.29 Accordingly, the Arbitrator finds that Mr. Kim was ultimately given all of the

process that was due him, and then some, in this proceeding. Accordingly, his due process arguments are rejected. C. 9.30 Mr. Kim’s Autonomy Arguments Mr. Kim argues that by considering and acting upon the evidence and argument

provided by US Speedskating member club officials and members US Speedskating has somehow violated the autonomy principle required of all NGBs set forth in the Ted Stevens Olympic and Amateur Sports Act. Mr. Kim’s argument is misplaced. The Ted Stevens Olympic and Amateur Sports Act and US Speedskating’s own bylaws require US Speedskating to consider the input of its members in its decisionmaking. Furthermore, the Ted Stevens Olympic and Amateur Sports Act provision raised by Mr. Kim is directed to organizations separate from the NGB, not to constituent members of the NGB. That situation is simply not present where a member club of US Speedskating provides evidence and argument to US Speedskating about a matter of concern to that club in accordance with the US Speedskating Bylaws. Accordingly, the Arbitrator rejects this argument as providing any relief to Mr. Kim from the charges asserted by US Speedskating against him. 66

D. 9.31

Mr. Kim’s Maryland Child Protective Services Investigation Arguments Mr. Kim argues that because the Maryland Child Protective Services of

Montgomery County investigation was resolved finding no charges against Mr. Kim then US Speedskating cannot bring similar charges against Mr. Kim. 9.32 The Arbitrator determines that this argument is misplaced. Maryland Child

Protective Services had to review the Maryland criminal statute and other appropriate legal standards, and burdens of proof, dealing with child abuse, which are completely different standards with their own burdens of proof separate and apart from the provisions of the US Speedskating Code of Conduct. Interestingly, neither party submitted evidence of the statute or criminal standard that was being investigated by Maryland Child Protective Services, but such a statute would simply not assist in the analysis here because it undoubtedly involved a different standard that the US Speedskating Code of Conduct, especially since the relevant provisions of the US Speedskating Code of Conduct make no reference to any Maryland statute. 9.33 Accordingly, the Arbitrator determines that the outcome of the investigation of

Maryland Child Protective Services provides no assistance to a determination of whether Mr. Kim violated the provisions of the US Speedskating Code of Conduct and it is irrelevant. E. 9.34 Length of Ban/Reinstatement US Speedskating seeks a lifetime or indefinite suspension of Mr. Kim. At times

its documents refer to it as expulsion. The Arbitrator is of the view that the distinction between the terms is not important; the thrust is that the request being made that Mr. Kim lose his ability to coach in US Speedskating activities for an extended period of time, either indefinitely or for the rest of his life. 67

9.35

The US Speedskating Bylaws refer to the right of the US Speedskating Board to

terminate membership of an individual. Section 4.3. The US Speedskating Bylaws also provide that in the event of a violation of the US Speedskating Code of Conduct “US Speedskating shall have the right to sanction, suspend for a definite or indefinite period of time, or declare ineligible to participate in one or more athletic competitions” the member who commits the violation. Section 18.2(D). US Speedskating in its opening brief and again in its reply brief requests that the Arbitrator expel Mr. Kim from US Speedskating for life. 9.36 The Arbitrator has determined that US Speedskating established that Mr. Kim has

committed multiple violations of the US Speedskating Code of Conduct as more fully set forth above. As a result, the Arbitrator must determine the appropriate penalty. There is no guidance on this exercise contained in the US Speedskating Bylaws or in the relevant USOC authorities, but the Arbitrator feels compelled to take into consideration the seriousness of the offenses, the impact on the accused of any punishment, and the requirements of fundamental fairness and due process. 9.37 There is no question that offenses involving a coach physically abusing skaters

are of the most serious kind. For a coach to use the authority of his or her position as a coach to inflict physical harm on athletes means the coach is abusing the nature of the position of trust between the two parties to the transaction. Future generations of athletes must be protected from this kind of abuse and from the individual who perpetrates and perpetuates such conduct. Accordingly, the Arbitrator finds that the conduct at issue is of the most serious kind and warrants expulsion from US Speedskating membership for an extended period of time.

68

9.38

There is no question that the impact of expulsion from US Speedskating

membership for life or for an indefinite period will have a negative impact on Mr. Kim. He will be unable to coach in US Speedskating events or activities or at clubs recognized by US Speedskating. In addition, the finding of these violations based on abuse will have a negative impact on his reputation. That the punishment the Arbitrator issues would have these effects is not wrong per se and some may see it is as providing justice. 9.39 While the Arbitrator is willing to expel him from membership in US

Speedskating, the Arbitrator is not willing to do so indefinitely or for life without affording Mr. Kim the opportunity to demonstrate that he is worthy of being considered for membership again. We live in a society where all but those who commit the most heinous crimes are afforded an opportunity for remediation, and the Arbitrator has determined that such considerations are warranted here. As a result, the Arbitrator determines that while Mr. Kim should be expelled from US Speedskating effectively immediately, he should be given the opportunity after 6 years have passed to reapply for membership on condition that he 1) successfully completes a program of study in anger management, reasonably approved by US Speedskating, within the year prior to his application for membership, 2) demonstrates that he is free from any violations of any provisions of any speedskating association, club, or similar membership organization codes of ethics and codes of conduct during the time prior to his reinstatement by US Speedskating, and 3) demonstrates that he is free of any criminal record during the time between now and his reapplication for membership. All of the above determinations shall only be made after the conduct of a timely hearing by the US Speedskating Board of Directors on the subject of any future application by Mr. Kim, at which hearing Mr. Kim shall be permitted to present witnesses, 69

cross-examine witnesses presented against him, and which hearing shall otherwise be subject to the requirements of the USOC Due Process Checklist. At this hearing, US Speedskating’s Board shall consider the usual criteria for membership in US Speedskating, whether Mr. Kim has otherwise met the requirements for membership, whether Mr. Kim has satisfied the requirements in this decision and award, and whether Mr. Kim has shown sufficient recognizance of and remorse for his actions that resulted in his expulsion. F. 9.40 Confidentiality of Award After the hearing, at the request of the Arbitrator after discussion with the parties

at the hearing, the parties addressed by email briefs the subject of the confidentiality of the arbitration award in this case. 9.41 Mr. Kim argued that any award should be maintained as confidential without

citing to any authority in support. Mr. Kim argued that at very least the award should be split into two, with one section being the reasoning which should remain confidential and one section being the operative part of the award which can be made public. 9.42 US Speedskating argued that the award should be made public without citing to

any authority in support. US Speedskating requested that the Arbitrator be sensitive to the interests in non-retaliation against the witnesses in this case, particularly the minor witnesses, and that the Arbitrator make references to such witnesses in this award in an anonymous fashion to protect their identities. 9.43 In the most usual case of arbitral award disclosure regulation, parties will include

a confidentiality provision in their arbitration agreement or in the text of their rules or contracts otherwise giving rise to arbitration jurisdiction; in the absence of such language, the parties are 70

subject to the content of the applicable arbitration rules of the arbitral institution administering the arbitration. The rules of US Speedskating are silent on the confidentiality of any arbitration award. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, does not require confidentiality. The AAA Commercial Arbitration Rules are silent on whether an award is confidential and do not require it.7 Certainly the AAA itself does not publicly issue awards, and it restricts arbitrators in what they can disclose about a proceeding, but it also does not restrain parties from doing anything with the award after the award is issued. The pattern and practice in these arbitrations arising in the Olympic movement in the United States, as administered by the AAA is to copy the USOC on the award and the USOC maintains an online database of published awards of relevance to it and its member organizations. See http://www.teamusa.org/About-the-

USOC/Organization/Legal/Arbitration-and-Hearing-Panel-Cases.aspx.8 9.44 Missouri, like many states, has adopted the Uniform Arbitration Act. The only

provisions of the Missouri Uniform Arbitration Act governing disclosure of information related to the arbitration proceedings deal with the ability of a party in a subsequent proceeding to subpoena or otherwise compel a neutral to testify or disclose any matter disclosed in the arbitration and that arbitration proceedings shall be regarded as settlement negotiations such that By contrast, the AAA’s ICDR International Dispute Resolution Procedures provide expressly in Article 27(3) that, “An award may be made public only with the consent of all parties or as required by law.” In addition, there now exist cases that suggest that in highly regulated industries, perhaps like those involving Olympic sports, there is a public policy interest in transparency in proceedings implicating matters of public interest. See, e.g., http://newenglandinhouse.com/2011/02/02/judge-confidentiality-clause-in-arbitration-award-toobroad/. 71
8 7

statements made therein shall be discoverable or admissible as evidence or subject to discovery later.9 The Missouri statute does not restrict the publication of an award by any party after its issuance in the absence of any other express confidentiality protection. 9.45 The Arbitrator has determined that this decision and award need not be

maintained as confidential unless the parties mutually agree that it should be. 9.46 The Arbitrator rejects Mr. Kim’s request that the award be divided into two

sections with the reasons being maintained as confidential and the operative part of the award being public. Administering such an award, disclosing only the operative part without the reasoning, could lead to confusion, speculation, innuendo, and otherwise inaccurate interpretation or use of the operative part of the award. The Arbitrator hereby adopts the position of US Speedskating and determines that either party may disclose the fully reasoned decision and award along with its operative part after it is issued. The referenced provisions of the Missouri Revised Statutes enactment of the Uniform Arbitration Act are as follows: “435.014. Arbitrators, may not be subpoenaed--proceedings regarded as settlement negotiations, communications confidential. 1. If all the parties to a dispute agree in writing to submit their dispute to any forum for arbitration, conciliation or mediation, then no person who serves as arbitrator, conciliator or mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the arbitration, conciliation or mediation. 2. Arbitration, conciliation and mediation proceedings shall be regarded as settlement negotiations. Any communication relating to the subject matter of such disputes made during the resolution process by any participant, mediator, conciliator, arbitrator or any other person present at the dispute resolution shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such proceedings not otherwise discoverable or obtainable shall be admissible as evidence or subject to discovery.” 72
9

9.47

Given the small world that is Olympic-eligible speedskating and the tremendous

effort that was made to protect the various witnesses testifying at the hearing or otherwise providing evidence from retaliation by any other party, as evidenced by the negotiation and signing of a comprehensive non-retaliation agreement by the parties hereto at the start of the hearing in this arbitration, the Arbitrator is concerned with protecting the identity of the witnesses in this proceeding and has opted to obscure the names and certain identifying information of every witness in this case, other than the two US Speedskating proffered witnesses Andrew Love and Mark Greenwald, by referring to these witnesses by letter or number depending on whose behalf they testified, with letters being used for Mr. Kim’s witnesses and numbers being used for US Speedskating’s witnesses. 9.48 Accordingly, the AAA is hereby directed to distribute this decision and award in

accordance with its operative rules and practice. G. 9.49 Allocation of AAA Costs and Arbitrator Fees and Costs Normally, the Arbitrator would consider allocating the administrative fees and

expenses of the AAA and the expenses and fees of the Arbitrator to the losing party absent a contractual provision saying otherwise. But here, US Speedskating bears some fault for this proceeding being before the AAA. As the Arbitrator determined above, US Speedskating failed to follow its own bylaws and the requirements of the Ted Stevens Olympic and Amateur Sports Act and the USOC Due Process Checklist by affording Mr. Kim a hearing prior to suspending him initially (Mr. Greenwald admitted this in his testimony); had US Speedskating done that it is very likely that this proceeding before the AAA would have been unnecessary and the matter could have been heard before the US Speedskating hearing body that would not have incurred 73

such costs or expenses. Accordingly, the administrative fees and expenses of the AAA and the expenses and fees of the Arbitrator shall be shared equally. X. AWARD On the basis of the foregoing facts and legal aspects, this Panel renders the following decision: 10.1 Mr. Kim has committed numerous violations of section 2(g) of the US

Speedskating Code of Conduct. 10.2. The following sanction shall be imposed on Mr. Kim: Immediate expulsion from

membership in US Speedskating and ineligibility for reapplication and membership for a period of six years from today’s date, and then not until after the following conditions are met: a. Mr. Kim successfully completes a program of study in anger management,

reasonably approved by US Speedskating, within the year prior to his application for membership; b. Mr. Kim demonstrates that he is free from any violations of any provisions

of any speedskating association, club, or similar membership organization codes of ethics and codes of conduct during the time prior to his reinstatement by US Speedskating; and c. Mr. Kim demonstrates that he is free of any criminal record during the

time between now and his reapplication for membership. d. All of the above determinations shall only be made after the conduct of a

timely hearing by the US Speedskating Board of Directors on the subject of any future application by Mr. Kim, at which hearing Mr. Kim shall be permitted to present witnesses, cross-examine witnesses presented against him, and which hearing shall 74

otherwise be subject to the requirements of the USOC Due Process Checklist. At this hearing, US Speedskating’s Board shall consider the usual criteria for membership in US Speedskating, whether Mr. Kim has otherwise met the requirements for membership, whether Mr. Kim has satisfied the requirements in this decision and award, and whether Mr. Kim has shown sufficient recognizance of and remorse for his actions that resulted in his expulsion. 10.3 The non-retaliation agreement agreed to by the parties and accepted as an order of

the Arbitrator in this proceeding, as referenced in paragraph 3.10 of this award, is incorporated by reference in this award and shall be enforceable as part of this award. 10.4 arbitration. 10.5 The Administrative fees and expenses of the American Arbitration Association, The parties shall bear their own attorney’s fees and costs associated with this

and the compensation and expenses of the Panel, shall be borne equally by the parties. 10.6 This Award is in full and final settlement of all claims and counterclaims

submitted to this Arbitration. All claims not expressly granted herein are hereby denied.

Dated: May 14, 2012 Jeffrey G. Benz Arbitrator

75