Addressing sexual violence and misconduct in college athletics: An alternate model of investigation and resolution

ABSTRACT

Increases in sexual misconduct charges brought against college athletes and athletic programs have created a public relations crisis for the NCAA. Lack of timeliness, proper reporting, investigation, and appropriate resolution of sexual assault incidents has created negative public perceptions of college athletics and, more importantly, likely failed to properly meet the standards of gender equality in higher education. The NCAA does not possess the legal authority to bring criminal charges or levy punishments for crimes. Yet, it does possess the financial means to address these issues. An Independent Accountability Administration is proposed. This third-party entity would improve the NCAA's processes in resolving these issues by authorizing with the responsibility and power to effectively handle claims of sexual violence and harassment involving college athletes from inception to resolution, as well as foster a more appropriate culture of gender equality by emphasizing prevention education while also allowing for due process.

KEYWORDS:

• Gender equality
• third-party agency
• governance
• college athletics administration

Authority

A successful IAA must have the authority to address reports of Title IX sexual harassment/violence claims involving members of athletics programs. This authority would include the ability to field reports, share information, investigate, conduct hearings, make findings and dispatch sanctions. That authority would be legitimized, enforced, and upheld by the NCAA and thus bind member institutions. Similar to the authority of the Equal Employment Opportunity Commission (EEOC), which was created to enforce Title VII of the Civil Rights Act of 1964 and in so doing was authorized to investigate and act on any charge against an employer to provide resolution (EEOC, n.d.), the IAA would also be granted authority to investigate and act on behalf of victims including investigating a pattern or practice of harassment or act on behalf victims who are reluctant to come forward for fear of retaliation (EEOC, n.d.). The agreement would include terms for institutional adherence to the already existing agreement to comply with the NCAA rules and to submit to the rule-enforcement process (Cottrell v. NCAA, 2007; NCAA v. Tarkanian, 1988).

It is financially feasible for member institutions to accept additional layers of oversight. It is also reasonable to anticipate that member institution would embrace the IAA policies and findings to help the universities more effectively prevent and respond to incidents of sexual violence/harassment (Estate of Paterno, J. v. NCAA., 2017). To assist in the prevention and response, the IAA would adopt written policies regulating the process of responding to reports, including handling of reports, the investigation, adjudication, resolution, sanctioning, enforcement and appeals process. Two groups within the IAA, the ES and COI, would be responsible for handling an alleged policy violation.

Reporting

The IAA would be charged with primarily handling allegations of athlete misconduct introducing complicated issues surrounding consensual relations between adults and gender power dynamics that exist in society and subsequently in higher education. This challenge includes balancing the rights of the traditional student seeking protection under Title IX and the “student-athlete” seeking participation in sport, where the student again faces institutional conflicts that seek to protect its athletic program, and at the same time, the athlete faces a justice system that has historically lacked due process, especially on the part of the NCAA (Ridpath et al., 2015; Staurowsky & Sack, 2005). These issues are further addressed in part by ensuring that a timely and thorough investigation is conducted and confidentiality is maintained until the evidence reveals the appropriate decision.

The IAA would provide multi-modal, secure reporting to make an initial charge. The NCAA does not currently offer victims, athletes or otherwise, a method of reporting sexual harassment or violence (NCAA, n.d.). Once a report is made, the IAA would provide the report to the associated institutions’ Office of Equal Opportunity (OEO) based on a “sharing agreement,” requiring the organizations to cooperate to process reports. This will not require the organizations to report similarly. This ensures that the individual accused maintains his or her “student” rights which are kept separate from his or her athlete privileges. Athletic staff and coaches are also kept up-to-date on the entire process, from accusations and investigations to sanctioning decisions which allows them to maintain accountability to the NCAA and their institution. The reporting site would also serve as the location for outreach and education materials, record keeping and disciplinary reports. It is recommended institutions be provided “reporting” training annually.

Investigation

More timely and thorough investigative procedures allow for greater disputation of fact rather than simply relying on the credibility or believability of the parties involved. The IAA investigation procedure would have a tiered approach – initial investigation, formal investigation, and formal charge. The ES will determine whether the information adequately establishes a violation of policy.

Initial Investigation. If the ES determines the report supports a rule violation by the member institution, they notify the member institution that an initial investigation of the alleged rule violation will be conducted. Like the EEOC, the initial investigation would be conducted within ten (10) days of the report (EEOC, n.d.). The initial investigation would include but not be limited to confirmation and evaluation of the report, review of submitted items of information and conduct brief interviews of the involved parties. The purpose of the initial investigation is to determine if the alleged charge can be substantiated.

If the initial investigation shows that the charges may be meritorious, a letter of official inquiry detailing the facts supporting the determination would be sent to the member institution, OEO and parties to the charge. The individuals may file a response that will be considered by the ES. If the charge is substantiated, then the matter would be sent to a formal investigation.

Formal investigation

To confirm conduct violating the IAA policies, the ES will have a formal investigation procedure. In this tier, the ES would continue to investigate the alleged policy violation, through an in-depth process. The ES would then prepare a written report stating and evaluating evidence, relevant policy provisions and initial findings. If the formal investigation finds that the charge meets the prima facie elements of the policy violation, the ES Director will file formal charges and submit to the member institution, OEO, charging party, and charged party, stating the specific policy violation and detailing the evidence relied upon. The submission of formal charges would move the case before the COI.

Resolution

The burden of proof required will be by a preponderance of the evidence. The Committee of Infractions (COI) would hold an initial conference and schedule a hearing. The hearing would be held no later than 90 days from the initial conference. The COI would subsequently conduct a hearing at which all parties present their positions and evidence. The COI will adjourn after the hearing, and immediately deliberate and make findings. Findings of Fact and Conclusions of Policy would be submitted within 10 days of the hearing.

Sanctions

The COI determines the sanctions to be imposed based upon the Findings of Fact and Conclusions of Policy, allowing precedent to be set and thus appealed to in current and future cases. Acknowledging precedent in the IAA’s adjudication process prevents sanctions from being delivered haphazardly, but most vitally, an IAA with full sanctioning authority binds the NCAA and member institutions to an impartial decision with true intent to protect students. Any attempt to undermine the prescribed sanction prevents the NCAA and the institution from yielding to conflicts of interest.

Like the department of motor vehicles, the IAA would be authorized to revoke and reinstate participation privileges similar to driving privileges (NMSA § 66-5-26, 2018). Additionally, a tiered method of sentencing based upon egregiousness of the conduct is recommended. SafeSport (2018) sanctions from less to more severe include: conduct warning, educational program, behavioral training, probation, loss of privileges, suspension and permanent ineligibility.

Appeal

The individual or parties involved in the alleged misconduct may appeal the decision. Under the current NCAA system, alleged victims or perpetrators may not appeal cases under the independent accountability resolution pathway for complex rule violations (NCAA, n.d.). The IAA pathway allows sanctions to be appealed by any party to an appeals committee allowing additional evidence to be presented either in-person via testimony or remotely, permitting greater due process. The decision of the appeals committee is final. (Cottrell v. NCAA, 2007).

Confidentiality

The IAA Policies would require that the investigation and the proceedings be conducted with confidentiality. The ES, COI, member institutions/OEO and others involved in the investigation are required to maintain confidentiality throughout the entire process sparing victims from blame or reprisal as wells as allowing alleged perpetrators greater due process.

Public censure

The IAA will announce decisions via a published Infractions Report. The report could be published by a NCAA Eligibility Center for member institutions. This publication will include the state of individual eligibility to participate in the NCAA and provide historical contexts for athletes and coaches looking to transfer schools.

A student’s records would be maintained as confidential according to the Family Educational Rights and Privacy Act. (FERPA, 2018). The Infractions Report may identify the member institution, the charge, finding and sanction, but will not include the names of any student, parties, witnesses or representatives.

Education

A major thrust of the IAA would be focused on education and prevention. This would manifest as member institution assessments as well as training for administrators, coaches and athletes, which would undermine the majority of Melnick’s (1992) causes for athlete perpetrated sexual violence, particularly in helping institutions amend their potentially harmful sport cultures and set healthy expectations for athlete behavior. With clear expectations established, reforming institutional athletic justice systems in the context of the IAA would create a powerful deterrent to sexual misconduct. The IAA must also train athletes to be aware of the risks and dangers of their college sports environment and teach by what means masculinity norms, male-bonding and sport-related violence play a role in destructive behaviors leading to sexual misconduct. Multiple training resources will be made available both online and in-person.

Conclusion

The Department of Education and intuitions of high education face a steep, uphill battle to rise above the deliberate indifference standard. NCAA has refused to let its authority be challenged while delivering inconsistent results that continue to damage its legitimacy as well as cost member institutions socially and financially. Conflict of interest and an inconsistent approach has been key barriers in regard to the NCAA efficiently and effectively managing sexual harassment issues among its members. National awareness campaigns have helped to give a voice to those who previously would have had no outlet for the wrongs done to them. While these campaigns have done great things to positively influence existing sport culture, issues still exist and must be addressed. Institutional Title IX offices are unable to handle the volume of increased cases of sexual violence. The DOE and NCAA are not chartered for a proactive approach to assist Institutional Title IX offices. The NCAA does, however, have the financial means and the social responsibility under their own mission and vision to assist with the needs of those affected by sexual violence and assist with the creation of an independent system that allows for victims/survivors to have a voice free from implicit bias.

The solution argued for in this paper is for the NCAA to use its resources to create an independent, nonprofit organization with the sole purpose to educate, prevent, and more thoroughly report, investigate and adjudicate claims of sexual misconduct pertaining to college athletics. Once authority is transferred and honored by the NCAA, the proposed organization is free of conflicts allowing it to correct a currently biased system of justice and create a powerful deterrent to sexual harassment, abuse and violence while also reducing the likelihood of the NCAA covering up the very things they are charged to protect. This transfer of authority would reduce the pressure on the NCAA and allow member institutions to more appropriately handle instances of sexual misconduct.

Additional information

Funding

Similar to how USADA was created to bring the USOC into code with the regulations of the World Anti-Doping Agency (WADA), the IAA would be initially implemented by a task-force appointed by the NCAA. After its initial creation, the NCAA will separate any remaining conflicts of interest from the organization and sign a working contract for its services. After an initial influx of capital from the NCAA, the IAA would predominantly be funded through individual service contracts with voluntary organizations and external fundraising efforts (USADA, 2018).

Notes on contributors

Dax Mitchell Crum

Dax M. Crum is a doctoral candidate in the Sports Administration program at the University of New Mexico.

Frederick John Williams

Frederick J. Williams is an Assistant Professor in the School of Kinesiology and Behavioral Sciences at Lake Superior State University.

Amelia P. Nelson

Amelia P. Nelson is a practicing attorney and instructor in the Anderson School of Business at the University of New Mexico.

John C. Barnes

John C. Barnes is a Professor in the Sports Administration program at the University of New Mexico.