Robert A. Boland, Esq.
Director of the MBA/Masters of Sports Administration Program and Executive in Residence in Sports Law, Ohio University.
Not One to Believe in Signs
Please forgive me if this is article is written from an unusually personal point of view. But the confluence of recent, seemingly unrelated, events in sports and on college campuses has me believing in signs. These include a breaking story from the University of North Carolina which surfaced just as this article was going to press, where a complainant came forward alleging police and university officials mishandled her complaints of sexual assault against a football player for months. What this case, along with a series of other cases, demonstrates is that there must be independent, neutral adjudication of Title IX cases on college campuses. By independent adjudication, that is explicitly a process where universities contract for a fixed period with neutral outsiders- alternative dispute resolution services, retired judges from outside the direct university community or even large law firms that do this kind of work- qualified third parties to render decisions on cases involving sexual violence. A comparatively small number of schools have taken this step to date. All should.
Simply put, campus sexual violence matters are too complex, too fraught with investigatory and procedural pitfalls to allow these kinds of cases to be handled via internal adjudicatory processes anymore. Moreover, there must be intermediate steps in place to deal with these kinds of cases specifically when athletes, the attendant pressures, the immediacy of high profile competition and institutional image are introduced into this already volatile equation.
The only clear solution suggested by these signs- all significant recent events in sports dispute adjudication- most dealing with sexual violence is the establishment of neutral third party adjudication everywhere as part of all universities’ response to Title IX sexual violence claims. This need is heightened when collegiate athletes are the accused perpetrators.
Signs, Signs Everywhere a Sign
The last six months have been replete with signs pointing toward the main thrust of this article.
First, I spent most of the spring working on a law review article calling for the NFL to finally adopt neutral third party arbitration to preserve the integrity of its disciplinary process and commissioner’s office that has been too often, too publicly and too expensively been called into question in a litany of cases from Deflategate; to Rice, Peterson, Ellis; to Bountygate.
Then at two different conferences, within weeks of one another in May, a question was asked about “what are and what should universities be doing about Title IX and sexual violence in the athletic setting?”
It certainly wasn’t what two of the panelists at the second conference suggested, which was to defend internalized processes, because as both said, internal reviewers were the ones best equipped and most concerned with these kinds outcomes. No matter how strongly or sincerely any institution believes that this is the right course, it is a roadmap showing the way to the same type of unending litigation that has engulfed the NFL and one where plaintiffs have been successful attacking failings in process in court.
Then, the Baylor Report was issued, condemning the institution for failing to have an effective process for handling claims of sexual violence. https://www.baylor.edu/rtsv/doc.php/266596.pdf
Next, the University of Tennessee settled a series of Title IX claims for $2.48 million dollars, perhaps reading similar signs, and have invested in resources to better handle this process. http://www.knoxnews.com/news/local/ut-adds-six-title-ix-related-positions-two-in-athletics-after-settling-lawsuit-36fb68b4-6ad0-6969-e0-385743771.html
Finally, at the end of July, the Second Circuit Court of Appeals vacated a district court’s entry of summary judgment in the case of John Doe v. Columbia University, on an action by a male collegiate athlete suspended for more than a year by that Ivy League school for unconsented sexual relations. The Second Circuit was highly critical of Columbia’s investigatory bias and many failures of process in reaching its decision. http://caselaw.findlaw.com/us-2nd-circuit/1744005.html
Whether as a matter of full disclosure, or perhaps explanation, I attended and worked at both Columbia and Tennessee. Then later in the summer, I fielded a call about possibly consulting for a group seeking to help former Baylor coach Art Briles with his public relations rehabilitation efforts. I didn’t take on that final role but I have been examining these events closely. So while this article hasn’t exactly written itself, there certainly have been signs pointing me toward writing it.
Why Neutral Third Party Resolution is the Best Solution
There is no essential dispute that an entity, whether a sports league or a university, should desire to control their own investigative and adjudicatory processes. However, there is more than a fair question as to whether trying to do so is smart, efficient, cost-effective or something either is even remotely equipped to do.
I have written extensively on the need for skilled neutral resolution in the NFL. http://www.newyorklawjournal.com/home/native-ad?mvi=b25dbb470e324d0787cb66b27031300f
The most recent, Stop Digging: the Pitfalls of the NFL’s Investigatory Procedures is due to appear in the upcoming issue of the American Journal of Trial Advocacy. That article asks in essence, what good is it to conduct disciplinary investigations, hold hearings, and make findings; if they are invariably fought in the courts and often overturned or reduced?
The NFL spent more than $12.5 million dollars in successfully, but just barely, defending the right of its commissioner to suspend a player over as trivial an issue as under inflated footballs used in a blow-out win where the amount of air in the balls made scarcely a wit of difference. http://www.cbssports.com/nfl/news/deflategate-legal-costs-potentially-could-reach-a-staggering-20-million/
The league certainly has spent exponentially more in preserving similar rights of the commissioner in a stream of domestic violence cases all of which have rocked the league and put the integrity of the commissioner on the line, perhaps unnecessarily. The NFL as a private enterprise with an estimated annual revenue of $13 billion dollars has the resources to indulge such a conceit but no university, anywhere, anything close to comparable resources to spend on inevitable court battles to defend flaws its internal disciplinary processes. The NFL fought to so hard to preserve the powers of its commissioner in large measure because they are of value in the zero sum, wrestling match that is collective bargaining.
But colleges, unlike the NFL, can’t abide “a to the last appeal is exhausted” resolution approach when dealing with sexual violence either financially or morally. They hold the lives, futures and well-being of both the alleged victim and the accused in the balance. This is why universities must have a fair and mistake free Title IX disciplinary process in place that is protective of all the parties’ interests.
An Absence of Clear Guidance
In 2014, the U.S. Department of Education’s Office of Civil Rights published “Questions and Answers on Title IX and Sexual Violence,” which laid out examples of complying process for hearing, decision and appeal, all in just about seven total pages. It left much of this process in the hands of the university to figure out and implement. To their credit, many universities have made a substantial commitment to education, training and staffing investigatory offices in this area. But the examples previously cited demonstrate that any outcome reached is only as reliable as the process from which it comes and all resolutions need to be free from questions about their integrity, neutrality and fairness. The Office of Civil Rights’ seven pages of process guidelines, which don’t even explicitly provide for appeals, are simply not enough to ensure that colleges have the requisite process safeguards to stand up not just internally, but to external review as was the case at Baylor, and in court where many of these cases will ultimately be reviewed.
The solution in the absence of clear standards must then be to replicate the procedural steps in non-judicial investigations and adjudications that courts will recognize and feel a sense of security with when they review them after a lawsuit is filed. The first of these steps is having a neutral, reliable arbitrator of these matters who is not affiliated with a party and who can deal with gaps or pitfalls in the process.
The Integrity of the Hearing Process
Elizabeth Bonina is a former justice of the New York State Supreme Court and has for the last several years been the top rated arbitrator in New York by the New York Law Journal. Her work is adjudicating disputes for a large private alternative dispute resolution service, National Arbitration and Mediation (NAM), one of a number of these services in the nation. Justice Bonina offers an even more compelling statement on the need for colleges to adopt neutral resolution saying that, “the gravamen of any litigation is the integrity of the hearing process itself.”
“Whether it is a proceeding as part of a college/university judicial process, or a lawsuit filed with a court system, there is a tremendous benefit to an adjudicatory process that is presided over by a former judge or other experienced neutral,” said Bonina. “They have extensive experience and background in civil and criminal proceedings and understand how internal investigations should be fairly conducted. An independent process will give the educational institution’s judicial system enhanced credibility at a time when these matters are coming under increased scrutiny, and thus, avoid or reduce unnecessary and costly litigation.”
While Tennessee has made an investment of six positions related to its Title IX compliance, perhaps to facilitate a better environment and treatment of potential victims, those hires aren’t in the most critical role in any adjudicatory process, the role of judge or referee. Tennessee has strengthened its capacity to respond to complaints and investigate but unless the hearing outcomes are fair, free of manipulation and sustainable by courts, this expenditure will provide as much real security for the university as the Maginot Line did for France.
Baylor and Tennessee
Having outside arbitrators hearing matters in Title IX cases is more than just a procedural safeguard, it may also help university officials keep their jobs. In the fallout of the Baylor Report, a successful, highly-paid football coach lost his job, along with a university president, who was once an often-mentioned potential nominee for the U.S. Supreme Court. Art Briles and Judge Kenneth Starr were removed in no small part because the processes that were in place at the school to address violence against women were deemed inadequate and too easily manipulated by powerful forces on campus.
In a contest of wills or desires between a modestly paid community standards investigator, or even a dean of students, and a highly-paid coach, trustee or donor, the people charged with carrying out the process for the good of all can often be overmatched and both justice and fairness delayed far too long. Tennessee six new hires at the combined expenditure of $700,000, doesn’t even equal what a well-paid assistant coach makes in a revenue sport on many campuses.
Another result of the University of Tennessee’s settlement of pending Title IX actions, where the allegations include the school’s athletic department helping suggest friendly local attorneys for athletes accused of serious acts of sexual violence against women while doing nothing to assist the victims, is that many of that school’s senior leaders have relinquished their leadership roles, or announced their intention to do so, or plans to retire, as Athletic Director Dave Hart did recently. Whether directly related to the Title IX settlement or not, so much change at the top of any institution can be unsettling. http://www.knoxnews.com/sports/vols/other/athletic-director-dave-hart-will-retire-from-ut-with-645454–3a735f8e-bd8f-73d6-e053-0100007fcebd-390804871.html
Second Circuit Decision in John Doe v. Columbia
The Second Circuit Court of Appeals, in its decision on July 29, 2016, in John Doe v. Columbia, vacating a win for Columbia on summary judgment in the district court, recounts a series of events where the accused, in a sexual encounter which was judged to violate the school’s policy on consent, a college athlete, was denied fair process in a possibly discriminatory manner.
This decision from a circuit that generally gives great deference to arbitration decisions, just ask Tom Brady about this point, means that courts are not willing to simply rubber stamp university disciplinary decisions. Contrasted with the Baylor Report, Doe v. Columbia demonstrates that universities can go too far in the administration of discipline and if the process is not fair to the accused, it will merit full judicial review in court. If this decision doesn’t send schools back to the drawing board to re-examine the sufficiency of their Title IX hearing procedures, what will?
When schools go to that drawing board it needs the right people in the right roles and specifically this means not just hiring counselors or advocates, it means engaging a team of skilled adjudicators to sit in review of these cases. There is a time for experts and is this one of those times. It is a time for lawyers and judges who can craft decisions that will stand up in future litigation. Simply looking at the messy litigation history of the last several years for the NFL as compared to other sports leagues that have neutral adjudication should demonstrate how much cleaner neutral adjudication is when reviewed by courts.
Special Concerns when Athletes are Involved
Almost all we have discussed here applies to actions by universities either in advance of the legal system or when the standards for criminal prosecution are not clearly. When an arrest has been made or a criminal indictment issued, universities have a much clearer path and may suspend a student during the pendency of any hearings but no uniform approach exists. Immediate arrests and indictments are rare in most jurisdictions and there may be a significant period of time where there is a vacuum in guidance coming from the legal system. This may be while a grand jury or police officials investigate or perhaps the case will not be prosecuted because of an inability to meet the “beyond a reasonable doubt” standard.
Still universities must act in this vacuum. They must protect the rights of the victim and accused, if also a student, and strive to meet the 60-day investigatory window established by the Department of Education. This is a bit less of a problem where normal students are concerned. No contact orders, changing dorm rooms and class schedules, even freezing tuition responsibilities all can place a student accused of sexual violence in a reasonably fair position should they be favorably adjudicated, even if some time is lost getting to a fair decision.
But what happens to an athlete accused of sexual violence with a ticking eligibility clock and perhaps serious aspirations of playing a professional sport where a loss of playing opportunities can equal the loss of millions, potentially to both the athlete and the institution?
Moreover, the Baylor and Tennessee situations illustrate a climate my fellow Ohio University professor, Dr. B. David Ridpath, describes as one where “situational ethics will too often prevail.” Making a decision infavor of playing an accused athlete and possibly working to keep that athlete eligible will be the expedient choice of powerful interests on the campus because of the attention and revenue college sports create and without regard for what is right. Ridpath, who is a former NCAA Division I compliance director, director of campus judicial process, and the current president of the Drake Group, a major reform group in college athletics, is co-author of a significant position paper on the issue of campus sexual violence in college athletics. This report describes universities as frozen by self-interest to address situations involving athletes until it is has become a crisis. https://thedrakegroup.org/2016/09/11/drake-group-calls-for-strong-actions-to-address-collegiate-athlete-sexual-and-other-violence/
Universities have usually addressed this issue by trying to take the athletic department out of consideration of the Title IX judicial resolution process. But this approach ignores the time pressures inherent in the athlete’s career as university investigations move either too slowly to produce a clear result or are the subject of manipulation by other forces on campus. As was the case at Baylor, these forces may be within the athletic infrastructure of coaches, donors and administrators and overwhelm the institution’s Title IX response. Or as was the case at Columbia, it may be the investigators and investigatory process that is accused of bias against a male athlete.
A Delicate Balance
Dana Drew Shaw is an attorney with Shumaker Loop & Kendrick based in Nashville and advises universities on Title IX compliance. She is a former college basketball player, who comes from a family of college athletes and coaches, including her father and two brothers, one of whom is Scott Drew, the current Baylor University head coach men’s basketball coach.
“There is a delicate balance in determining the immediate eligibility of a student-athletes who is the focus of a Title IX allegation, says Shaw. “The process must be objective on an expedited basis. A “neutral” third party, not a current staff/faculty member or alumnus, would be best positioned to review facts and information and determine if suspension is warranted before a complaint can be thoroughly investigated.”
What this suggests is the need for an intermediate process that is triggered when an athlete is accused of sexual violence with a neutral third party evaluating whether that athlete can or should play in an immediate hearing. The standard for summary hearings such as these generally turn on whether the athlete poses a danger to the team or his community based on the allegation. This would take the decision on the matter out of the hands of both the athletic department and the internal campus investigators effectively immunizing all of them including the university, and allow the criminal and university adjudication processes to play out on their own timelines not subject to the pressures Dr. Ridpath identifies.
Having a neutral eligibility hearing process for athletes would protect the interests and integrity of all by maintaining fairness and proportionality and being as free as possible from community pressures that can be substantial. It would also help manage the complex interface of the criminal justice system, as it applies to both domestic violence and educational rights with insight from highly experienced adjudicators.
Conclusions
If the last several years of NFL litigation, much of it in and around domestic violence, and the events on many college campuses demonstrate that sexual and gender violence are all too common and present a complex set of challenges. While many groups are earnestly working to help solve the underlying issues, which continue to be a tragic societal concern, there is a clear and reasonably simple way to provide greater fairness, cost effectiveness and finality to the adjudication of Title IX cases on campuses. That is through the creation of a judicial process that involves the contracting with established experienced neutrals to hear and adjudicate these cases. Having fair, neutral judges hear these matters won’t prevent campus violence. But it can help universities allocate more of their precious resources toward education, prevention and support of victims, and not on unending litigation.
