The purpose of this Act is to restore and maintain the impeccable reputation of the American amateur athlete so that that athlete's success reflects only the athlete's skill, hard work, and training.

§ 2.  Establishment of Federal Amateur Sports Board (FASB): To effectuate this purpose, there is hereby established a new federal agency which shall be called the "Federal Amateur Sports Board" or "FASB."

§ 3.  Board members: [language omitted] 

§ 4.  Appointment of FASB Board members: [language omitted] 

§ 5.  Appointment of Special Amateur Sports Prosecutor: [language omitted] 

§ 6. Removal: [language omitted] 

§ 7.  Prohibition:  Athletes in amateur sporting competitions are hereby prohibited from using artificial means to enhance their performance.

§ 8.  Rulemaking: After a hearing at which oral statements shall be allowed, the FASB, in its discretion, shall promulgate any rule it deems appropriate to effectuate § 7.

§ 9. Enforcement: The Chief of Enforcement in FASB may file an administrative complaint against any person alleged to have violated § 7.

§ 10. Orders: [language omitted]

§ 11.  Administrative Appeals: [language omitted]

§ 12. Appeal to a Court of Law:  [language omitted]

§ 13.  Judicial Review:  [language omitted]

FACTUAL SCENARIO

As a result of the incident involving Frankie Smith, many sports activists are calling upon the Federal Amateur Sports Board (FASB) to do something to prevent drug use in amateur sporting competitions.

Pursuant to its authority under Section 8 of the Federal Amateur Sports Act (FASA), the FASB published a notice in the Federal Register proposing that sports organizations be subject to a "No doping / No Exceptions" requirement going forward.  In its proposal, the FASB stated that such a requirement is necessary to carry out the prohibition found in Section 7 of the FASA.  Under FASB's "No doping / No Exceptions" requirement, any sports organization sponsoring a competition must ensure that there is absolutely no doping by any athlete.  With respect to exactly what the organization needs to do in order to ensure no doping takes place, the proposed rule left that up to each organization to decide so long as any option they chose was "extremely effective." The agency stated that it was fine with organizations choosing to administer mandatory blood tests, to quarantine athletes before the competition, or to choose some other method that was "extremely effective" in meeting the "No doping/ No Exceptions" requirement.  In addition to the "No doping / No Exceptions" requirement, FASB also proposed some minor recordkeeping requirements.

The agency solicited only written comments on its proposed rule during a 60 day comment period.  Although several commenters requested an in-person or an online hearing where they could submit their comments orally, the agency refused, saying they had insufficient staffing levels to accommodate this request. 

Not surprisingly, the agency's proposal elicited strong reactions, both pro and con.  Many commenters decried the agency's proposal to allow sports organizations to police drug use through something other than mandatory blood-testing as being "soft on doping."  Others applauded the agency for being open to a variety of alternatives to eliminating drug use.

One evening, shortly after the close of the comment period, but before the agency promulgated its final rule, one of the FASB Board members happened to run into the Executive Director of the National Amateur Basketball Association, an old college friend.  This friend handed the FASB Administrator a copy of a report detailing the large monetary settlements entered into between athletes and sporting organizations who quarantined athletes prior to an athletic event.  The athletes receiving the settlements had sued the basketball association for false imprisonment. The FASB Board member read the report and told his fellow Board members about it, but did not place it in the official record of the athletic competition rulemaking. 

 Not long after this incident, the FASB published its final rule.  In the rule, FASB announced that it had decided to eliminate the "No doping / No Exceptions" requirement for sports organizations running amateur athletic competitions. The agency stated that, although drug use in amateur sporting events continues to be a problem, the potential liability costs associated with quarantining athletes before a race convinced it to drop the requirement altogether.  The agency did not discuss any of the other options that it had previously mentioned as meeting the anti-doping policy, such as administering mandatory drug testing. FASB's final rule instituted some minor recordkeeping requirements, but, to the great disappointment of some and the elation of others, did not require sports organizations to abide by a "No doping / No Exceptions" requirement when administering an amateur athletic competition.

Betsy is an avid fan of amateur cycling competitions. She has read the FASB's final rule and is not happy that the FASB dropped the "No doping / No Exceptions" requirement for amateur sports competitions.  Betsy claims that she will not be able to enjoy watching future cycling events due to her conviction that at least some of the competitions she will be witnessing will be influenced by the athlete's use of a performance-enhancing drug.  While Betsy has not purchased tickets for any upcoming cycling competition, she has purchased upwards of 10 tickets per year to amateur cycling events for the past several years and says she fully intends to purchase tickets to events in the future. 

Pharmaceutical Testing Laboratories, Inc. (PTL, Inc.), is a drug testing company that is also unhappy that the FASB decided not to impose the "No doping / No Exceptions" requirement upon the sponsors of future amateur sports competitions. PTL, Inc. alleges that the absence of the "No doping / No Exceptions" requirement will cause it economic harm as a result of the fewer number of athletes that will need PTL Inc.'s drug-testing services.

Questions:

1. Can Betsy get into court to challenge the FASB's final rule? what is her biggest hurdle in getting into court?

2. Does Pharmaceutical Testing Laboratories, Inc have a cause of action against FASB under APA § 702 so that it can get into court to challenge the FASB's final rule under APA §706? what is its biggest hurdle in establishing it can use § 702. 

3. Let's assume there is at least one plaintiff who has filed suit against FASB over its final rule and is able to get into court to sue the agency and they are asking the court to vacate the final rule under APA § 706. 

 (a) 

Does the plaintiff have an argument that the FASB has failed to follow the required procedures under APA § 706 (2)(D)? If so, what procedures? What would you expect the plaintiff to argue and how would you expect FASB to defend the procedures that it used? 

 (b)

Does the plaintiff have an argument that the FASB has violated any other provision(s) of APA § 706? If so, what provision(s)? What would you expect the plaintiff to argue and how would you expect FASB to defend itself? 

Answer rating: 100% (QA)

Betsys biggest hurdle in getting into court to challenge the FASBs final rule is standing To have standing to challenge the rule Betsy must demonstrate that she has suffered or will suffer a concrete ... View the full answer