Athletic Departments Must Use Caution in Conducting Criminal Background Checks on Prospective Student-Athletes
By Linda A. Sharp, J.D., University of Northern Colorado and Holly K. Sheilley, Ph.D., University of Louisville*
The commission of crimes by college recruits, unfortunately, is a recurring fact of life.
For example, Corey Brown, a former Plant High School outfielder, pled guilty to felony battery which occurred during group sex with a 14-year-old. The University of Virginia rescinded its scholarship offer to Brown, but the Oklahoma State baseball coach decided he would take the risk with Brown (Johnston, 2005).
The well-publicized case of Willie Williams, a University of Miami prospect, who was arrested during a recruiting visit to Gainesville and who was found to have ten previous arrests (Auman, 2005) has also served as a clarion call to more closely evaluate character in the athletes recruited by universities.
Some universities, e.g., the University of Oklahoma and Baylor University, have begun to conduct criminal background checks of the athletes they are recruiting (Auman, 2005). The National Association of Collegiate Directors of Athletics (NACDA) has even contracted with a security management company to establish a background check protocol for universities that wish to screen recruits (Gardiner, 2005).
In regard to the University of Oklahoma’s decision to institute criminal background checks, Joe Castiglione, athletic director, said: “It doesn’t mean we would turn any and all away if we found some problems in their past. It just means we would like to know about it prior to their arrival. It will allow us, and them, to deal with it face to face and know how it affects their future (at Oklahoma)” (Timanus, 2005). This statement embodies a rather nebulous stance regarding the procedure—a stance which may be legally questionable for an institution.
Regarding those universities that choose to conduct criminal background checks for prospective student-athletes, what may be the institutional liability to a third party on campus (another student) who is injured by an athlete who had committed a prior crime of violence but was recruited and admitted regardless of that crime? There may be liability based on the tort of negligent admission. This tort, as with any tort based on negligence requires: 1) a duty of care owed; 2) a breach of the duty of care; 3) causation; and 4) damages.
Historically, it has been difficult to find a duty of care owed by a university to a student since there is no “special relationship” with students generally. In some cases students who have been assaulted on campus have successfully argued that the university owes a duty of care based on premises liability. For example, poor lighting near residence halls may be a dangerous condition enabling an assault.
Colleges that Conduct Background Checks Assume a Duty of Care
However, in the situation under discussion, a plaintiff has a considerable advantage in asserting that a duty of care exists since colleges that perform background checks assume a duty of care. Under Restatement (Second) Torts §323, if one undertakes a service for the protection of another’s safety then there is liability for the failure to exercise reasonable care to perform the service. Thus, a university that has undertaken the background check has assumed a duty of care.
Therefore, the discussion must focus on what is reasonable care in this situation? How does a university act reasonably in dealing with the information uncovered in the course of the background check? Part of this analysis is contextual—what is the mission of the university and the athletic department? To whom is the greater obligation owed—the student-athlete seeking a second chance or the university community seeking a safe environment?
Essentially then a university must balance redemption against the foreseeable risk of recidivism when it engages in a risk analysis seeking to decide whether to recruit/admit a particular student-athlete who has already committed a crime of violence. According to Stokes and Groves (1996) some factors to consider in conducting such a risk analysis would be:
• the nature of the crime including the level of violence and any mitigating factors surrounding it;
• evidence of rehabilitation since the crime, which includes the level of remorse shown by the offender and the acceptance of responsibility for what transpired;
• the amount of time since the crime was committed; and
• the likelihood of recidivism.
As to the last factor, it should be noted that recidivism rates for sexual misconduct are very high begging the question of whether a sexual assault can ever be characterized as an aberration.
Reasonable care would dictate that a university develop a risk analysis protocol incorporating the above factors. Further a university should not ignore pertinent information. Once relevant information about a prospective student-athlete is uncovered the risk analysis protocol must be followed regardless of whether the athlete is a “blue chip” recruit or a third-string linebacker. Experts who are competent to assess the relevant factors must be used in the analysis. Finally, coaches should not be involved in the process to avoid conflicts of interest.
If universities are truly concerned about the character of those who are recruited to the university to participate in athletics and wish to conduct criminal background checks then the procedure to do so must evidence a true commitment to the university community. The procedures must be well-developed and use a risk analysis protocol. To avoid a claim based on negligent admission, a university must act reasonably in implementing the background check. Reasonableness implies that action will be taken, when appropriate, to exclude those who may pose a danger to members of the university community.
References
Auman, G. (2005, March 6). Background checks vary; Schools fear surprises. St. Petersburg Times. Retrieved September 7, 2005 from http://www.sptimes.com/2005/03/06/Sports/Background_checks_var.shtmlon
Gardiner, A. (2005, July 15). Colleges look into background check options. USA Today, p. 14C.
Johnston, J. (2005, June 11). Cowboys make investment in Brown’s future. The Tampa Tribune. Retrieved September 7, 2005 from http://tampatrib.com/sportsnews/MGBSUGM5T9E.html
Timanus, E. (2005, March 4). Oklahoma investigates athletes’ backgrounds. USAToday, p. 6C.
Stokes, J.W.D., & Groves, A.W. (1996, February). Rescinding offers of admissions when prior criminality is revealed. West’s Education Law Reporter, 105, 855-876.
(Linda Sharp is a sports law professor at the University of Northern Colorado. Holly K. Sheilley teaches sports management at the University of Louisville. Sharp is a co-author of a soon to be published sports law book called Sport Law: A Managerial Approach, which is available through publisher Holcomb Hathaway.)
