Rape survivor Brenda Tracy, middle, during the coin toss before a special “sexual assault awareness” game Sept. 28, 2019, at the University of South Florida in Tampa. [Herald-Tribune Staff Photo/Thomas Bender]

Call to action

Advocates push NCAA schools to ban violent athletes

Eighteen years after Brenda Tracy said she was gang-raped by college football players, the NCAA’s highest governing body offered her a seat at the table.

The organization’s Board of Governors appointed Tracy in 2016 to its study group, the Commission to Combat Campus Sexual Violence, after she hand-delivered a petition with more than 150,000 signatures urging that athletes who commit sexual violence be banned from playing.

The commission met for two years before recommending in June 2018 that college athletes’ participation on the field be directly linked to their behavior off it — a step several of the NCAA’s largest conferences and schools already had taken.

But at their August 2018 meeting, the university presidents, chancellors and athletic directors who constitute the Board of Governors disbanded the commission without taking up the recommendation, noting in meeting minutes that they would “continue to monitor and track” the issue of sexual violence.

“At first I was angry,” Tracy said. “Then I was really sad. Actually thinking about it makes me want to cry right now.”

Her work didn’t stop after the commission. 

Rape survivor Brenda Tracy and her nonprofit, Set The Expectation, is dedicated to raising awareness for sexual assault and relationship violence. Photographed Saturday afternoon, Sept. 28, 2019, in Tampa Florida. [HERALD-TRIBUNE STAFF PHOTO / THOMAS BENDER]

Since going public with her story in 2014, Tracy has become one of the most visible advocates for raising awareness of sexual assaults on campus, especially those involving athletes. She has retold her story at more than 80 universities and high schools, and at every stop she hears a new victim’s account.

“These are literally life-and-death issues,” Tracy said. “The NCAA has an opportunity to fix it, and they are deliberately choosing not to. It’s not that they can’t. They just won’t. At this point I look at them as being complicit.”

A USA TODAY Network investigation identified at least 33 athletes since 2014 who transferred to NCAA schools despite being administratively or criminally disciplined for sexual offenses at another college. The actual number is probably far higher because most schools refused to share discipline records, even though federal law expressly allows them to do so.

With help from lawyers and other advocates, Tracy and fellow commission member Cody McDavis kept working to fix the problem, designing what they dubbed the “Tracy Rule.” Student leaders and U.S. lawmakers are among those who see it as a potential solution to an NCAA system that allows coaches to freely recruit sexual offenders or leaves them in the dark about athletes’ past. 

U.S. Sen. Ron Wyden, D-Oregon, said the Tracy Rule should be implemented across all college sports.

“If you’re going to address a real challenge and put forth a meaningful set of solutions, you’re going to do it by having a strong, uniform set of practices,” Wyden said. “You need a broader policy that is based on zero tolerance.

“What I want to hear the NCAA say is they’ve got a zero tolerance for sexual assault, and that’s not really their argument.”

U.S. Sen. Ron Wyden, D-Oregon, speaks on Capitol Hill in Washington in this 2013 file photo. [AP Photo/Jacquelyn Martin]

The University of Texas at San Antonio became the first NCAA school to adopt the Tracy Rule in September. 

But Tracy isn’t done. 

“We don’t have to wait for the NCAA,” Tracy said. “This is an issue that needs to be addressed now.” 

Conferences take action

Before the Tracy Rule, six of the NCAA’s 33 Division I conferences and a handful of individual schools adopted similar, but less stringent, policies against athletes who commit serious misconduct.

The movement for tougher rules began with a high-profile case of recidivism. 

The University of Georgia dismissed defensive lineman Jonathan Taylor in July 2014 after his arrest for allegedly choking his girlfriend during a dorm-room altercation. Taylor played the next season at a junior college.

Then he landed at the University of Alabama, where head coach Nick Saban called Taylor “the kind of guy that deserved a second chance” while discussing his recruitment in February 2015. But less than three months into his time with the Crimson Tide, Taylor was arrested in a criminal mischief and domestic violence case with a new girlfriend and was dismissed from the team by Saban.  

Alabama Crimson Tide head coach Nick Saban during a Nov 16, 2019, game at Davis Wade Stadium. [Matt Bush-USA TODAY Sports]

The girlfriend later recanted her domestic violence claim, but Alabama kicked Taylor out of school anyway, and he ultimately pleaded guilty to criminal mischief in July 2015. Later that summer, he transferred again — this time to Southeastern Louisiana University, where he played one season before pleading guilty to assault and battery in the 2014 Georgia case.

The Southeastern Conference responded by adopting a first-of-its-kind serious misconduct policy in May 2015. The rule banned athletes from transferring to SEC schools to play sports if their previous schools found them responsible for sexual assault or domestic violence. The Big 12, Pac-12, Southern Conference and Mid-American Conference followed with similar restrictions soon after.

Then the Big Sky Conference unveiled a sweeping new policy in June 2018, building off the SEC rule. It requires both current and prospective athletes to annually self-report any campus, police, civil or juvenile investigations involving serious misconduct.  It also expanded the list of disqualifying offenses to include sexual exploitation and assaults involving deadly weapons or serious injury.

Under the Big Sky rule, coaches can seek waivers for athletes with extenuating circumstances, triggering a review from a panel that includes the university’s coordinator for Title IX, the federal equal opportunity law prohibiting sex discrimination in education.

Big Sky Commissioner Andrea Williams, who served alongside Tracy on the NCAA’s study commission, showcased the rule at the commission’s final meeting. 

But the Board of Governors punted on the commission’s recommendation to direct the NCAA divisions to consider such legislation. Asked about the decision at a news conference this past March, NCAA President Mark Emmert, a non-voting board member, assigned blame to the commission.

NCAA President Mark Emmert during a March 2017 news conference in Glendale, Arizona. [AP Photo/David J. Phillip]

“Because we operate in all 50 states, all the legal structures are highly different, and all of the classifications of misdemeanor and felony around sexual assault and sexual misconduct are highly variable,” Emmert said. “The commission that the board put together … found it impossible to sort through all of those differences to treat everyone fairly.”

Cody McDavis [Courtesy/Cody McDavis]

Emmert’s assertion is “just not true,” said McDavis, the commission member and UCLA law graduate who worked alongside Tracy. He noted that the Big Sky Conference — representing schools from 10 states that recruit from all 50 — already accounted for differences among legal jurisdictions. 

“The only thing we got from the board was, ‘We’re not going to explore this because of laws in different states,’” McDavis said. “For something as large and as resourceful as the NCAA to be unable to put their heads together and find a solution, that just doesn’t feel genuine.”

That’s when Tracy and McDavis, indignant over the board’s decision, began building their own policy using Big Sky as an example. It was McDavis who encouraged Tracy to name the rule after herself.

A personal connection

The Tracy Rule is the most comprehensive serious misconduct policy to date. 

Like the Big Sky policy, it requires athletes to self-report pending and closed investigations in an annual questionnaire. It expands the list of disqualifying offenses to include sexual harassment, incest, hate crimes, manslaughter and murder. 

Crucially, it also requires the Title IX coordinator from each transfer-athlete’s previous school to state whether that athlete was involved in any Title IX investigations at that school. Such investigations look into reports of sexual misconduct, interpersonal violence and gender-based discrimination. 

It removes coaches’ and schools’ ability to say they didn’t know about previous incidents, Tracy said.

Athletes disqualified by the Tracy Rule can appeal to a university review panel, which can request advisory opinions from a committee comprised of at least one victim’s advocate, counselor or other employee who is trauma-informed. The president and athletic director make the final decision based on the panel’s assessment.

Tracy began shopping the rule to university leaders when she visited their schools for speaking engagements. For months, she said, all she heard was, “We’ll get back to you.” Then she had a lunch meeting with University of Texas at San Antonio President Taylor Eighmy that brought her to tears.

“It just fell on me,” Tracy said, recounting the dozens of universities that brushed off her proposals. “I’d worked so hard, and then this man just said, ‘Yes.’ It was a really impactful moment for me.”

That moment was two decades in the making — one that began on a June night in 1998 when what was supposed to have been a fun time with a friend turned into a seven-hour nightmare.

Tracy had been gang-raped, sodomized and robbed by four men, she told the police in Corvallis, Oregon, while making a report shortly after the incident. Two of her attackers were football players for Oregon State University, one was an OSU recruit from Southern California, and the other played football for a community college, she said.

The Oregon State University campus in Corvallis. [Courtesy/ Oregon State University]

She described having alcohol poured down her throat while the men cheered one another on and took turns assaulting her. She was examined the following day by a nurse and a physician, who told investigators they found evidence of rape, she said. 

All four men were booked in the county jail. The suspects implicated one another in the accounts they gave police, and prosecutors had physical evidence and the testimony of the medical professionals to make their case, reports show.

But the district attorney’s office dissuaded Tracy from moving forward, she later said. Prosecutors told her they would probably lose at trial and never mentioned her assailants’ contradictory statements, Tracy recalled. Amid attacks from the community on her and her credibility, she made what she thought at the time was an informed decision to drop out of the case, she said.

Prosecutors dropped the charges. The Oregon State players served one-game suspensions for what their coach, Mike Riley, called “a bad choice” — a statement, he told The Oregonian, he later regretted.

Nebraska head coach Mike Riley during the Big Ten football media day in 2017. [Patrick Gorski-USA TODAY Sports]

Tracy was a 24-year-old waitress and single mom to two boys at the time. She’d been sexually abused as a child and endured a series of abusive relationships with men, she said. 

She said she contemplated killing herself. It was a conversation with the nurse who treated her that saved her, she said. Tracy went on to get her nursing degree.

And while it would take her 16 years to go public with her story, the disclosure felt liberating, she said. She continued to tell the story while starting a nonprofit called Set The Expectation and lobbying for changes in NCAA policies.

The response from college athletes has been “overwhelmingly positive,” she said. Schools and organizations around the country honor her for her advocacy work. 

But aside from the spot on the commission, the NCAA itself has never acknowledged her campaign, she said.

“Dozens and dozens of coaches, staff members and athletes are representing the campaign at NCAA schools,” Tracy said. “It kind of makes me wonder why the NCAA is silent.”

Does it work?

Every current University of Texas at San Antonio athlete filled out the serious-misconduct questionnaire when the university officially adopted the Tracy Rule in the fall.

So far, none of its roughly 350 athletes have answered yes to any of the questions, no one has been disqualified, and no one has gone through the appeals process, UTSA spokesman Joe Izbrand confirmed.

The Big Sky conference has had similar results. When it implemented the rule this August, nearly 5,000 athletes filled out the questionnaire. None have answered affirmatively, been disqualified or appealed, Senior Associate Commissioner Jaynee Nadolski said.

UTSA Athletic Director Lisa Campos said she was not concerned about athletes answering dishonestly. Her coaches already do a thorough job vetting recruits’ character, she said, and she expects the questionnaire to act as a deterrent.

UTSA Athletic Director Lisa Campos [Courtesy/University of Texas at San Antonio]

“It sends a message to students,” Campos said. “And it makes them probably think twice about going to the UTSA if they’re having to disclose this sort of information.”

Big Sky’s Nadolski said it’s possible some athletes transferred elsewhere instead of risking disqualification.

“My hope is that people are honest,” Nadolski said, adding that Big Sky might consider requiring Title IX records checks, like the Tracy Rule does, in the future.

Some experts who reviewed the Tracy Rule feared Title IX coordinators would refuse to fill out the paperwork to avoid getting dragged into a potential lawsuit. There are no legal barriers to providing the information, said Brett Sokolow, president of the Association of Title IX Administrators — it’s a matter of “risk aversion.”

“The school should be able to defend itself,” Sokolow said. “That doesn’t mean it’s not going to get sued. It’s about building a consciousness that perhaps they’re more legally vulnerable for not sharing than for sharing.”

UTSA has not run into any such issues, officials said. To date, the university has received paperwork for two prospective transfers, and the Title IX coordinators at each of their previous institutions signed off, said university attorney Jay Rossello.

The hard costs of implementing the Tracy Rule have been minimal, Rossello said, but he noted that officials from the legal affairs, student conduct and equal opportunity offices spent several months working on the rule. 

Schools considering adopting it should make sure it aligns with existing policies and develop a communication plan so that coaches and athletes understand and can articulate why it’s important, Rossello said.

Nadolski had similar advice. She added that it was important to involve athletes in the process and ensure 100% buy-in from coaches.

“There’s got to be education for your coaches as they’re going out recruiting that this is the expectation now,” Nadolski said.

Campos said the school has received an outpouring of support from the San Antonio community, donors and current UTSA athletes who say it’s “just the right thing to do.” Other Conference USA athletic directors have reached out to her expressing interest in adopting the rule, she said.

“It’s been very moving to our student-athletes and to the constituents that support our student-athletes,” Campos said. “We’re changing a culture.”

Brenda Tracy at the Alamodome where the University of Texas at San Antonio Roadrunners took on the University of Southern Mississippi Golden Eagles on Nov. 16, 2019. [Courtesy of UTSA/Jeff Huehn]

‘A matter of when’

Since UTSA adopted the rule, Tracy and McDavis have built a Tracy Rule template and an informational packet to make it as easy as possible for other schools to adopt. 

They’ve added a provision requiring schools to conduct criminal background checks on all new recruits. Such an effort could get expensive, Nadolski said. But it would represent a fraction of athletic departments’ annual budgets.

Central Michigan University and some other schools have expressed interest in adopting the rule, Tracy said.

Others have been more reluctant.

The student government at James Madison University, a Division I public school in Virginia, passed a resolution in October encouraging the administration to adopt the Tracy Rule. University officials initially balked but haven’t ruled out the possibility, said Caroline Whitlow, who heads the campus group Students Against Sexual Violence.

Caroline Whitlow [Courtesy/Caroline Whitlow]

James Madison University spokesman Bill Wyatt said officials worry the rule discriminates against athletes and would be better received if it applied to a larger swath of campus activities and scholarship recipients.

While Whitlow and others don’t necessarily oppose expanding the rule to other student groups, their goal was never to restrict anyone’s right to obtain an education, she said. Playing sports is a privilege, Whitlow said, and it should be contingent on a high standard of conduct. 

She added that the rule is no more discriminatory than the random drug testing athletes are subject to.

“If someone is going to be on promotional materials and on the field, gaining access to special class enrollment, tutoring and all of the things that student-athletes receive and deserve, we want to make sure they’re creating the kind of community that most of the student body wants, which is one where sexual violence isn’t tolerated,” Whitlow said.

James Madison is in the NCAA’s Colonial Athletic Association conference. Like many conferences, it has yet to adopt a policy against recruiting athletes disciplined for sexual or other serious misconduct.

Pac-12 Commissioner Larry Scott responds to a letter from eight U.S. senators. [U.S. Senate]

Wyden, the Oregon congressman, wants to change that. He was among eight U.S. senators, including presidential candidate Amy Klobuchar, D-Minnesota, to write the commissioners of the Power 5 conferences — the SEC, Pac-12, Big 12, Big Ten and Atlantic Coast Conference (ACC) — in February, urging them to act “in the absence of meaningful action by the NCAA.”

Only one of the five commissioners, Larry Scott of the Pac-12, wrote back. In response to a question about implementing transfer policies he wrote, “We are not considering any new or amended policies in this area at this time.” 

Pac-12 Commissioner Larry Scott [Kyle Terada-USA TODAY Sports]

Wyden dismissed the response as “more kicking the can.” He said he hasn’t heard from the other conferences.

“I don’t get a whole lot of letters where the response is, ‘Hey, we’re really not going to be doing much to respond to what you’re talking about,’” Wyden said. “This needs a much more serious approach and all hands on deck. Right now, I’m not convinced they’re doing a whole lot more than paying lip service.”

Tracy doesn’t expect the NCAA to reverse course anytime soon. But she’s pleased that her groundswell approach is already having an impact.

Including UTSA and the Big Sky schools, Tracy counts 12 NCAA schools that have comprehensive zero-tolerance policies for athletes. She’s going to keep pushing until all of the more than 1,200 have something.

“It might take a while, but it’s not a matter of if,” Tracy said. “It’s a matter of when.”