NCAA adopts policy to vet college athletes for sexual assault, but lets them stay eligible

The NCAA will make it harder for athletes involved in sexual assault or other acts of violence to slip through the cracks, the organization confirmed May 1, less than five months after the USA TODAY investigation “Predator Pipeline” exposed how some schools unknowingly recruited such athletes.

Under a new policy adopted by the national college sports organization’s highest governance body, the Board of Governors, athletes must annually disclose acts of violence that resulted in an investigation, discipline through a Title IX proceeding or criminal conviction.

That includes sex offenses, dating and domestic violence, murder, manslaughter, aggravated assault and assaults that cause serious bodily injury or involve deadly weapons.

Schools must adopt written policies directing staff to gather that information from recruits’ and transfer athletes’ previous institutions. 

It will take effect at the start of the 2021-22 school year. 

“The action is the latest step by the association, consistent with its values, in supporting NCAA member schools to address sexual violence on their campuses,” said Michael Drake, chair of the board and president of Ohio State University.

Sexual assault survivors and advocates for them complain that the policy, though a good first step, stops short of restricting the eligibility of athletes found to have committed such acts. Instead, it permits schools to penalize athletes who fail to disclose relevant information, and it penalizes schools that don’t comply with the policy by prohibiting them from hosting NCAA championship competitions the next school year. 

Daisy Tackett, a former University of Kansas rower, called the policy “toothless.” Tackett reported in 2015 that she was raped by a Jayhawks football player, who was barred from campus, then joined the team at Indiana State University.

“If the NCAA wants to take sexual violence seriously, they would guarantee that any athlete who sexually violates others will not be allowed back into the clearing house, instead of just leaving it up to the school’s discretion,” Tackett said. “The NCAA should take on the liability if it means protecting students, instead of protecting themselves.”

One legal expert said that by shifting the burden onto universities to develop their own procedures, the NCAA could expose public schools to unequal protection and due process claims under the Constitution. 

“The NCAA is putting big, state-run institutions in the position of having to fight a lawsuit,” said Kristy McCray, an Otterbein University professor who studies sexual violence prevention in sports and co-wrote a Marquette Sports Law Review study in January, analyzing the legal implications of athlete background checks.

Universities could probably win those lawsuits, McCray said, because courts have consistently ruled playing college sports is a privilege, not a right. 

The legal risk could be avoided if the NCAA developed an organization-wide policy and required each school to follow it, because the NCAA is not a state actor and not required to protect anyone’s constitutional rights.

“Why would we make schools fight that battle if the NCAA is more likely to win?” McCray said.

Dozens of athletes

The four-part “Predator Pipeline” investigation exposed how the NCAA frequently punishes athletes for bad grades, drug use or accepting gifts but resisted calls to impose penalties on those who commit sexual assault. 

The NCAA promised in January to expand its policies under pressure from Congress, which called for an independent study of the organization in light of the USA TODAY investigation. 

USA TODAY identified dozens of athletes who since 2014 have transferred to NCAA schools despite having been administratively or criminally disciplined for sexual offenses at previous institutions. Seven of the schools that recruited such athletes told USA TODAY they were unaware of the athletes’ disciplinary history.

A handful of NCAA conferences and schools ban athletes who’ve been criminally convicted or disciplined by their schools for sexual and other violent offenses, including the SEC, Big 12, Pac-12, Big Sky, Southern and Mid-American conferences, as well as Indiana University and the University of Texas-San Antonio (UTSA). 

In September 2019, UTSA adopted the most comprehensive policy, known as the Tracy Rule, named for rape survivor and activist Brenda Tracy. The Tracy Rule restricts the eligibility of such athletes but outlines a robust appeal option for those vying for second chances.

Tracy told USA TODAY the NCAA’s policy is a step in the right direction but not enough.

“Requiring schools to do their due diligence is important, because it takes away the ‘we didn’t know’ excuse, but the policy doesn’t address eligibility,” Tracy said. “Rape and sexual assault are still not NCAA violations.”

The new requirements came one day after seven women from three schools sued the NCAA and its board, accusing them of failing to adequately protect the women from sexual assaults by athletes. 

It is the second lawsuit filed against the NCAA by alleged victims of sexual assault and harassment since March, when three women filed a class-action lawsuit alleging the NCAA failed to protect them from sexual abuse by their track coach, John Rembao.

Attorneys Karen Truszkowski and Elizabeth Abdnour, who represent the seven women, declined to comment on the new policy, saying it would be premature because of the pending litigation. The lawsuit accused the NCAA of breach of contract for “failing to connect off-field behavior of student-athletes, particularly sexual violence, to their ability to play.”

McCray said she hopes to see an NCAA-wide policy banning athletes who commit sexual violence, as long as it includes an appeal option. Such a rule could act as a strong deterrent for sexual violence by making athletes think twice before engaging in it, she said.

“There is the potential that strong policies are helping to weed out potential perpetrators by shifting culture,” McCray said. “It doesn’t eliminate sexual violence, but it sends a strong message, and that could go a really long way.”