By Ellen J. Staurowsky, Ed.D., Professor, Sport Management, Drexel University, firstname.lastname@example.org
On April 12, 2017, the Faculty Athletics Committee (FAC) at Indiana University (Bloomington) approved a policy that disqualifies prospective athletes with records of sexual violence from being awarded athletic scholarships at the University and bars them from practicing or competing on a University-sponsored team. According to the policy, the definition of sexual violence is drawn from the Indiana University Policy on Sexual Misconduct and includes dating violence, domestic violence, rape, sexual assault, or sexual violence. The scope of the policy pertains to athletes transferring from other colleges and universities or those entering college for the first time from high school or athletes with other statuses.
As stated in the IU Athletics Policy, athletes are subject to disqualification if they have been “convicted of or pled guilty or no contest to a felony involving sexual violence” (FAC, 2017, para. 1) or if they were disciplined through a formal institutional hearing process at a college or university or secondary school. Fact finding regarding the status of prospective athletes is done in several ways.
As codified in the IU Athletics Department Student Conduct Policy, prospective athletes are subjected to mandatory background checks and internet searches. In addition to recruits being asked directly about their histories (previous or potential arrests, convictions, protective orders, probations, suspensions, expulsions or other disciplinary actions), inquiries regarding recruited athletes extend to all publicly available information, including their digital footprint. Further, coaches are expected, as part of their “due diligence” to conduct interviews about prospective athletes with administrators, coaches, administrators, family members, teachers, and teammates.
Although the policy’s title refers specifically to sexual violence, IU reserves the right to disqualify prospects for other forms of what they deem to be unacceptable misconduct broadly defined as “any serious and/or repetitive criminal, school discipline, or other … issues” (FAC, para. 5).
The History of the Policy
A precursor to the IU policy is a rule passed by the Southeastern Conference (SEC) in 2015, and expanded in 2016, which restricts players who have been formally disciplined by their schools or programs for misconduct from transferring within the SEC (Long, 2016). That rule was a response to news accounts of high profile male athletes being accused and/or charged with sexually violent behavior after transferring from one school to another within the SEC. While other conferences could have adopted a similar policy, IU’s conference, the Big Ten has thus far declined to pass such legislation, taking the position that individual institutions should address the matter of player misconduct as they deem appropriate (Gray, 2017).
IU vice president and director of athletics Fred Glass authored the policy in consultation with the University’s Office of Student Welfare and Title IX, the Student-Athlete Advisory Committee (SAAC), and other offices. In explaining the purpose of the policy, Glass stated:
This policy is designed to help protect all members of the Indiana University community. We see it as an important extension of the principles set forth in our Student Conduct Policy. My hope is that we are leading in this area, and that other athletic departments will follow with similar policies that fit their institutions (Gray, 2017, para. 8).
When interviewed about the policy, senior associate athletic director Jeremy Gray commented that “This is not a situation where we want to take any chances. This is an absolutely serious matter, and we want all of our coaches and administrators in the athletic department to take it as seriously as it deserves” (Fox59, 2017, para. 4).
Early responses to the policy have generally lauded IU for taking a public position on campus sexual assault and making an effort to address it (Hungaski, 2017). The policy itself, however, has raised a series of questions as to whether the level of scrutiny of athletes is enough, whether the policy is intended to have a meaningful impact or is merely a symbolic gesture, and whether the policy does more harm than good by failing to acknowledge that sexual violence can occur not just between male perpetrators and female victims but between members of the same sex as well (Alvarez, 2017; Moskovitz, 2017). Beyond those considerations, the policy provides ample grounds to explore other questions.
Definitional Issues With the Policy
While the policy itself states that the definition of sexual violence is taken from the University’s policy on sexual misconduct, depending on how narrowly or expansively the University policy is read, there is a difference between the definition used in the athletic department’s policy compared to the University’s policy. In the University’s policy, the definition of sexual violence “refers to physical sexual acts perpetrated by a person’s will or where a person is incapable of giving consent due to use of drugs or alcohol, or due to an intellectual or other disability. Sexual violence includes rape and sexual assault” (Springston, 2017, p. 20).
Framing Athletes As General Threats to the University Community
The opening line of the IU Athletic Policy explains that the policy is intended to “help protect all members of the Indiana University community”. According to IU officials, the targeting of athletes as a specific population on the IU campus is justified because athletes represent the institution. How do IU athletics officials and others around the country reconcile claims that sport builds character and helps develop leaders in a way like no other activity on campus can when there appears to be an admission that the athlete population poses a threat so great to campus safety and security that it requires a magnitude of vetting for 700 athletes that is not applied or contemplated for the remaining 31,000 members of the Bloomington community? Does the policy help to make the campus safer by focusing on the behavior of athletes? And what are the legal vulnerabilities that may arise as a result of this policy? For example, findings from a campus climate survey on sexual assault released by IU in October of 2015, among undergraduate women who reported being sexually assaulted at IU, 23 percent of those assaults occurred on campus (in residence halls, outside, or elsewhere) and another 23 percent occurred in fraternity or sorority houses (IU Bloomington Newsroom, 2015). Should such a policy target athletes or members of fraternities or sororities?
Mandatory Background Checks on Athletes
The practice of conducting mandatory background checks on athletes is a significant departure from University practice regarding student conduct pre-enrollment. At Indiana University, the general student population are not subjected to routine investigations of this type pre-enrollment. The background checks, internet searches, harvesting of publicly available information serve as pre-conditions in order to be awarded athletic scholarships and/or for membership on a varsity athletic team. Such pre-conditions exist for employees at Indiana, but not for students.
As per the IU Policy on Background Checks (University Human Resources, 2013), the policy applies to all staff and temporary employees. The reason for the policy is much the same as that for the IU athletic policy, which reads “It is important that the University’s academic and research missions are supported by qualified employees, with a safe and secure environment for all University constituents…”
Further, although the IU Athletics Policy appears to require a blanket investigation of all athletes being considered for a position on a varsity team, it is not wholly clear or apparent that all athletes will be investigated in the same way and with the same intensity. Coaches and/or athletics department personnel are expected to exercise “due diligence” in conducting “appropriate” inquiries. Who determines what an “appropriate” inquiry entails? Will an athlete from an upscale neighborhood receive the same scrutiny as an athlete from a poverty-stricken neighborhood in rural counties or inner cities? Will the background of female athletes be investigated with as much rigor as those of male athletes? The greatest focus of news accounts regarding athletes and sexual assaults is on male athletes in the sports of football and men’s basketball, sports with high percentages of black athletes. Will the pressure to respond to media accounts result in greater scrutiny of black athletes?
And finally, there is an additional issue related to when the background checks and investigations of athletes occur. The recruiting process for athletes begins in junior high or earlier, long before athletes reach the age of consent (Crawford, 2015). In determining due diligence, when are these background checks to be initiated and how long are their durations?
Relief from Mandatory Disqualification
The policy offers a caveat that unspecified individuals may seek relief from a pre-constituted panel that includes the University’s Title IX coordinator, general counsel, and the faculty athletics representative (FAR). As stated, it is difficult to know who is in a position to seek relief from the mandatory disqualification. Since the prospective athlete is not yet a member of the IU community, does he or she have standing to request a review? Or is it the coach who seeks to sign the athlete?
Athletic Departments-Repositories for Large Amounts of Private & Personal Athlete Info
In a growing climate where more and more information is being gathered on athletes and their families, given athletic compliance audit procedures that require athletes to show their car registrations, bank statements, and other personal information; where athletic departments are entering into agreements with athletic shoe and apparel companies that gather increasing amounts of information about athlete health and performance; and background checks and investigations designed to probe more deeply into athlete backgrounds beyond the information on their transcripts, athletic departments are becoming repositories for large amounts of information about athletes. What do athletic departments do with the information they glean from their investigations for athletes they elect not to sign? What privacy protections are in place for that information? What guidelines are in place relative to sharing that information with others? How long is it stored? How is it disposed of?
Final Thoughts — Does This Policy Render Athletes Employees?
On its face, this policy seems to convey an impression that the University is justified in conducting these kinds of investigations on athletes. The existence of the policy itself may in fact serve as an admission that athletes are not like all other students and are in fact employees.
The University attempts to navigate around this issue by referring to athletes as “departmental representatives” who are “volunteers” and are therefore subject to background checks, not under the HR policy, but the policy pertaining to Programs Involving Children (Executive Vice President for University Academic Affairs, 2015). A distinction, however, here is the fact that the athletes being subjected to the policy are not yet “departmental representatives” because the background check is being used to screen out recruits IU does not wish to extend an athletics scholarship to. They are, in effect, using the information to make personnel decisions.
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