By Evie Oregon & Lauren McCoy, of Western Kentucky University, School of Kinesiology, Recreation and Sport
Abstract
Schools and universities often struggle with the balance of education, prevention, and due process related to sexual assault claims on campus. With this struggle comes increased scrutiny, most of which focuses on athletics. A series of high profile incidents in recent years have involved student-athletes with many wondering if schools are protecting those individuals to safeguard the business of college sports. As the leading institution for college sport governance, the public looks to the NCAA to set an example. Their current silence related to sexual assault claims sets a difficult precedent. Should the NCAA intervene and enforce rules related to concerns that go beyond sport and into the courtroom? This article will address whether the NCAA should impose sanctions on universities related to the mishandling of sexual assault complaints. An examination of NCAA rules will be conducted to determine if the NCAA could potentially punish these systemic failures and how the NCAA would have to proceed to implement these sanctions. Finally, the article will address the success of those potential claims by highlighting the results of previous NCAA involvement in potential civil liability or criminal activity conducted by student-athletes or those employed by athletics.
Sexual violence and the resulting efforts to educate and prevent these incidents continues to be a problem on college campuses. As of December 2016, there are 292 active sexual-violence investigations at 217 colleges and universities to determine if the institution properly met their responsibilities in reporting and adjudicating these cases (Chronicle of Higher Education, 2016). Sexual violence includes “attempted or completed rape or sexual assault, as well as sexual harassment, stalking, voyeurism, exhibitionism, verbal or physical sexuality-based threats or abuse, and intimate partner violence” (Know Your IX, n.d.). Title IX of the Education Amendments of 1972 provides that an institution must investigate a sexual violence claim as soon as they know or reasonably should know of the allegation, regardless of any other investigation related to the incident (U.S. Dept. of Education, 2011).
Increased scrutiny related to these investigations tends to fall squarely on student-athletes and the athletic department because their fame attracts sport media’s full attention. While there is no direct link between athletes and propensity towards sexual aggression (Davis & Parker, 1998), media attention continues to highlight the trend of athletes being accused of sexual assault on college campuses. This problem is further exacerbated by universities and associated individuals that seek to protect the student-athlete often to the detriment of another student and the institution’s responsibility under Title IX.
When these incidents are made public through lawsuits, police reports, or investigative journalism, public response is swift. Some seek justice for the victim, some question the truth of the claims, but all want to know the impact on athletics and how the institution plans to respond. In the fall of 2015, Baylor University came under scrutiny for their lack of response to sexual assault allegations. Two former Baylor football student-athletes are currently incarcerated after committing sexual assault (Luther, 2015). It is alleged that the university was aware of these incidents, but failed to comply with their obligations under Title IX. The fallout from these incidents included the head football coach, the university President, and the athletic director all being removed from their positions for a fundamental failure to implement Title IX in handling rape allegations (Baylor University, 2016; Wolken, 2016). The severity of the claims made and the repeated lack of response from the university calls into question the potential for involvement by the National Collegiate Athletic Association (NCAA). As the governing body for college athletics, the public looks to the NCAA to set an example. Their current silence related to these sexual assault claims sets a difficult precedent that will be subjected to public scrutiny. As a result, should the NCAA be accountable for enforcing rules and regulations that go beyond sport?
The NCAA is a membership-driven association governed by more than 150 committees with members from various intercollegiate institutions and conferences. Association-wide committees include individuals from all three divisions and consider issues that impact the NCAA by proposing rules to adjudicate college sports (National Collegiate Athletic Association, n.d.c). These rules, which cover everything from recruiting to academics and postseason play, are decided upon by the member institutions of the NCAA. A main duty of the NCAA is to assist with implementation and to ensure compliance with adopted rules. The Association’s core values of fairness, safety and equal opportunity for all student-athletes are a paramount focus within the governing structure of the NCAA (National Collegiate Athletic Association, n.d.b).
In August of 2013, the NCAA changed its enforcement structure and process. NCAA violations now fall under 4 levels of violations: Severe breach of conduct (Level I), Significant breach of conduct (Level II), Breach of conduct (Level III), and Incidental issues (Level IV). The new structure places more attention on activities that seriously undermine or threaten the integrity of the NCAA (National Collegiate Athletic Association, 2013). Repeated allegations involving student-athletes, and sometimes convictions, related to sexual violence is a cause for concern and could be viewed as a threat to the NCAA’s core values.
The NCAA is in a unique position as the governing body. Many look to this organization for guidance in applying legislation like Title IX to intercollegiate athletics. Article 2.3 of the NCAA Constitution specifically addresses gender equity to ensure compliance with Title IX and other related state and federal laws. Additionally, no NCAA legislation can be used to prevent member institutions from adhering to applicable gender equity laws (National Collegiate Athletic Association, 2016, Article 2, Section 3). There are no provisions related to sexual assault within NCAA rules beyond this provision on gender equity. This language highlights the limitations of the NCAA as an interested party because these rules are dependent on member institution agreement and applicable rule of law. There is only so much that the NCAA can do to govern member institutions in relation to state and federal law. Consideration must also be given to the NCAA’s responsibility to enforce certain legislation.
Each college and university within the NCAA receiving federal funding has an obligation to comply with Title IX (Title IX, 1972). The NCAA, however, has no such requirement (NCAA v. Smith, 1999). Renee Smith, a graduate student at the University of Pittsburgh, sued the NCAA claiming their refusal to grant her athletic eligibility as a graduate student was a violation of Title IX. Her argument stated that the NCAA’s rules and policies should be considered for Title IX compliance because the Association receives dues money from federally funded member institutions (NCAA v. Smith, 1999). The U.S. Supreme Court, in a unanimous decision, found in favor of the NCAA because “the statute covers those who receive aid, but does not extend as far as those who benefit from it” (NCAA v. Smith, 1999 [citing U.S. Dept. of Transportation v. Paralyzed Veterans, 1986, p. 607]). With this decision, it became clear that the NCAA’s role under Title IX is that of a bystander, not a participant or enforcing body.
Additionally, the NCAA’s role as a governing body is limited because their punishments do not carry the rule of law, meaning an institution retains the option to leave the NCAA instead of complying (NCAA v. Tarkanian, 1988). Determining NCAA rules infractions depends largely on self-reporting and other sources including anonymous reporting to trigger investigations. Once credible information related to a potential major violation is received, NCAA enforcement staff begin an investigation into the issue and conducts interviews both on and off campus. Those directly associated with the NCAA (student-athletes and those employed by the institution) are required to comply with the investigation. However, the NCAA does not have subpoena power to compel participation by those not covered under the NCAA’s cooperative principle (National Collegiate Athletic Association, n.d.a). Title IX sexual assault cases could involve students not associated with the athletic department or local police departments who could not be compelled to provide evidence or testimony related to accusations against student-athletes.
Enforcement of NCAA rules and regulations allows for applying punishments to the member institution only, removing the possibility for direct punishment of employees associated with these institutions (NCAA v. Tarkanian, 1988). Further limitations of NCAA authority when issuing punishments became clear in NCAA v. Tarkanian. Jerry Tarkanian, former head men’s basketball coach at the University of Nevada — Las Vegas, was removed from his position after the NCAA provided a show cause order to the university related to recruiting violations. A “show cause” order requires the university to justify their decision to not suspend an employee accused of major violations without risking additional sanctions (NCAA v. Tarkanian, 1998, p. 181). While UNLV chose to comply and ultimately fired Tarkanian, the U.S. Supreme Court concluded that the threat of these punishments only goes so far because each institution retains the authority to withdraw from the NCAA should they refuse to comply (NCAA v. Tarkanian, 1988). The Tarkanian precedent establishes potential difficulties associated with applying NCAA legislation. Because each school ultimately retains the power to refuse sanctions, there must be established procedure agreed upon by all member institutions.
Often fans and the college sport community wonder why NCAA sanctions cannot be imposed on sexual assault cases based on a lack of institutional control. NCAA Bylaw 2.1.1 notes that it is the “responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the Association” (National Collegiate Athletic Association, 2016, Article 2, Section 1). The NCAA’s definition of “institutional control” is broadly written. When a school exercises control and responsibility over its intercollegiate athletics programs, it has institutional control. Accordingly, a school lacks institutional control if evidence shows that the school did not regulate the actions of its intercollegiate athletics programs (Zonder & Sulentic, 2014).
To determine if a designation of lack of institutional control is appropriate, an investigation must be completed. A primary factor in finding a lack of institutional control are the compliance measures in place at the time of the violation. Basically, an NCAA investigation is a process audit, and a charge of a lack of institutional control is a failing grade (Zonder & Sulentic, 2014). The majority of NCAA violations do not come from a lack of institutional control specifically, but from related rules violations. Although lack of institutional control is commonly used by the NCAA, using this measure in relation to Title IX sexual assault claims in athletics would require proof of fundamental failure and a connection to existing NCAA rules to be successful.
NCAA involvement in cases related to civil and/or criminal liability is a rare occurrence. Two of the more prominent examples surround incidents at Baylor University and Pennsylvania State University (Penn State). These two incidents set a framework for when NCAA involvement in these matters is appropriate.
In 2005, Baylor University was the subject of public scrutiny after a basketball scandal occurred when one player shot and killed another (Associated Press, 2005). This tragic incident also uncovered NCAA concerns when the girlfriend of the murdered player, Patrick Dennehy, informed the NCAA enforcement group of potential violations related to impermissible benefits given to players. Upon the conclusion of the investigation, the NCAA imposed a modified version of the death penalty. Baylor’s men’s basketball team was barred from playing all games outside its conference for one year. Their punishment also included scholarship reductions, recruiting limitations, and a five-year probationary period (the maximum length of an NCAA probation). Lastly four former Baylor men’s basketball coaches received restrictions, lasting 5 to 10 years, that made it nearly impossible for them to work at another NCAA institution (Associated Press, 2005). Although the impetus of this investigation was related to criminal charges, it was improper benefits that guided the NCAA’s role in this case.
Conversely, in 2012, the NCAA handed out one of the most severe punishments unconnected to NCAA rules violations to Penn State after Jerry Sandusky, a retired football assistant coach, was accused of sexually abusing boys, some of them on Penn State’s campus (CNN Library). NCAA action here was motivated by public concern and the report from an independent investigator hired by the institution. The NCAA enforcement staff did not go through their procedure for investigation before punishments were announced. Instead, the NCAA and Penn State came to a unique settlement to move on from this scandal. The punishments given to Penn State, included massive scholarship losses (40 over four years), free transfers for current players, a four-year postseason ban and a $60 million fine. NCAA President, Dr. Mark Emmert, also vacated all of Penn States victories from 1998 through 2011(CNN Library, 2016).
Some former NCAA investigators and infraction committee chairmen noted that “it was rare, if not unprecedented, for the Association to address the Penn State case because it involved a cover-up of criminal activity rather than a violation of traditional NCAA bylaws” (Prisbell, 2012). Dr. Emmert bypassed all investigative protocol and instead went to the NCAA executive committee and Division I Board of Directors to authorize punishment for Penn State. Dr. Emmert seemingly had full support to apply these sanctions even though there was no specific NCAA rule violated through Sandusky’s conduct on campus (Prisbell, 2012).
Although the NCAA sanctioned Penn State for their role in the Sandusky incident, these sanctions were based on a criminal case and public outrage alone unlike the Baylor case where the criminal issue lead to specific NCAA violations. This lack of applicable rules violations associated with Penn State’s punishments highlights why the NCAA reversed their position 14 months later. After the NCAA levied unprecedented sanctions against Penn State’s Football program, the executive committee made the decision to slowly restore postseason opportunities and lost scholarships for football players. The only punishment to remain in effect was the $60 million fine, which was changed to a $60 million donation to child abuse prevention charities instead (CNN Library, 2016).
When the NCAA has allowed for sanctions based on criminal and civil liability alone in response to public outrage, many questioned if the Association overstepped its authority. Some called the Penn State sanctions a huge loss for the NCAA that underscored the Association’s dysfunctional approach to crisis management. The Paterno family, in a statement regarding Penn State’s settlement with the NCAA stated,”It was a grievously wrong action, precipitated by panic, rather than a thoughtful and careful examination of the facts” (Paterno Family, 2015). Sanctions associated with crisis management need to be thoroughly examined and considered under the same rule making process used to develop all NCAA regulations. Thus, any consideration of sexual assault regulations by the NCAA cannot be done on a case-by-case basis.
It is unlikely that member institutions would agree to this rule change. The investigation process for NCAA violations is already a cost-burdensome process. Using resources to adjudicate concerns handled by state or federal law could be better handled through other resources at an institution. While the connection of these alleged incidents of sexual violence to the athletic department is a cause for concern, public scrutiny should not deter the NCAA from its mission in governing intercollegiate athletics.
NCAA rules and enforcement of these rules should stick to issues that are fundamental in the eyes of NCAA members, e.g. eligibility, recruiting, academic performance, playing and practice seasons, scholarships and extra benefits (National Collegiate Athletic Association, n.d.d). Further, the Department of Education through the Office of Civil Rights is already tasked with addressing and remedying sexual assault issues on campus (U.S Dept. of Education, 2014). The Department of Education’s potential threat to remove federal funding on college campuses is more than the NCAA could do as punishment. If the institutions comply with their requirements under Title IX, this does not have to be a public issue surrounding athletics. It will not be the responsibility of the NCAA or the individual athletic department, but rather the institution’s judicial body.
Adding athletic responsibility for sexual violence through rule changes would be better suited for the conference level instead of NCAA guidance. Each conference has the authority to provide limitations and rules for their own member institutions. For example, the Southeastern Conference (SEC) and the Pacific-12 Conference (PAC-12) recently approved rule changes related to transfer students entering their schools. Should a potential transfer student have a criminal record related to sexual assault, harassment, or domestic violence, schools are barred from allowing these student-athletes to participate in their athletic programs (Spies-Gans, 2016). A similar rule has been proposed by the Big 12 conference after the conference’s athletic directors unanimously recommended adopting this policy (Werner, 2015).
While adding Title IX related limitations similar to this rule would be complicated, the conferences are better suited to understanding the needs and obligations of their member institutions than the NCAA because it is a smaller group to control. Furthermore, these rule changes at the conference level would not require fiscal or investigative responsibility by the conference or the institution. This change would simply address those concerns previously adjudicated. Even this possibility is not free from conflict because schools still must consider the rights of accused students and not automatically find guilt without due process. The effort to prevent and quickly remedy allegations of sexual violence on college campuses should not be deterred. However, NCAA involvement must be limited. The Association would be better equipped to educate and provide a unified voice for all member institutions to address the problem without the threat of additional punishment.
References
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