If even a fraction of the new allegations at Baylor are true, former coaches Art and Kendal Briles should be unemployable in college athletics, and the Board of Regents needs to feel the hurt, too. The NCAA should consider the death penalty for Baylor, or risk becoming an organization of human jellyfish.
On Monday, 52 paper cutouts appeared on the Baylor campus, stenciled with the words, “How many more?” It’s a good question. They referred to a lawsuit filed Friday by attorney John Clune on behalf of a plaintiff named Elizabeth Doe alleging that from 2009 to 2015 Baylor football players committed 52 acts of rape, five of them gang rapes, “the most widespread culture of sexual violence and abuse of women ever in a collegiate athletic program.” It alleges the culture was enabled by staff using “sex to sell” the program, escorting underage recruits to bars and strip clubs and paying for off-campus parties where gang rapes occurred, and by top school officials who interfered with or discouraged investigations.
It has to be immediately said that just because numbers are included in a civil lawsuit does not make them true. Nor does Clune make clear where he arrived at such figures, except to say they are based on “investigations.” But he stands by the numbers and added in a statement accompanying the lawsuit, “As hard as the events at Baylor have been for people to hear, what went on there was much worse than has been reported.”
It was already the stuff of shuddering recoil: Baylor’s own Board of Regents admitted the mishandling of sex assault reports involving 17 women and 19 football players between 2011 and 2015, including four alleged gang rapes, to the Wall Street Journal. Clune says those numbers were not the totality. Baylor declined to comment on the assertion. An attorney for Briles disputes it as motivated by settlement-seeking.
The NCAA does not like large publicized cases of sweeping institutional wrongdoing, complicated by law enforcement, and massive civil lawsuits. These cases make the NCAA uncomfortable, because they subject it to difficult questions about the scope of its authority. What is the proper role of this supposedly educational oversight body when it comes to widespread criminal conduct? If it doesn’t act aggressively, it risks looking like it’s turning a blind eye, but if it’s too harsh, it unduly penalizes the bystanders. In the case of Penn State’s Jerry Sandusky child molestation case, the NCAA believed it had authority to level a $60 million fine and four-year bowl ban, only to get itself sued by state officials for overreach.
“It’s reasonable and fair to say the NCAA is being conscientious about what’s in its jurisdiction to decide,” says sports attorney Stuart Brown, who has handled NCAA-related cases.
It’s understandable and even wise for the NCAA to define its jurisdiction. But in this case, it has plenty of room to act. For a clue as to how it should treat Baylor, look at its handling of another prominent case: Louisville. The NCAA also declined to bring an “institutional” case against Louisville but nevertheless is considering major penalties including potential suspension of men’s basketball Coach Rick Pitino for “Level One infractions” over a sex scandal in which a university employee provided prostitutes for players and recruits. The allegations at Baylor make that case look like a blip.
The NCAA found legally safe room to seek major penalties against Louisville in its rules against preferential treatment for athletes.
“The allegations in that case from a social point of view are scandalous and disturbing,” Brown said, “but from the NCAA point of view, the case is being processed as an extra benefits case.”
It’s a weird fact that the NCAA would be more comfortable sanctioning Baylor over 52 free cars than 52 alleged rapes. But if Baylor can be found to have treated its football players substantially different from other students by giving them preferential consideration in disciplinary cases, the NCAA has all it needs to throw the book. Jurisdiction will be perfectly defined and very clear.
Baylor would appear to be the mother of all preferential treatment cases. Title IX compliance officers at the school have said they fielded a landslide of complaints of sex assault by football players — one staffer told ESPN a third of reports she heard involved the team — only to be obstructed by school administrators.
The new lawsuit says Baylor officials were “deliberately indifferent to a known and substantial risk of sexual harassment and assault within the football program,” and contends that at least five instances of rape or dating violence were directly reported to football coaches and athletic department staff, who took no action. In one instance former athletic director Ian McCaw asked whether a football player-witness could have “immunity.” A 2014 trial transcript shows that former Baylor president Ken Starr personally intervened to reinstate defensive end Tevin Elliott after he was suspended for academic misconduct. Elliott was convicted of sexually assaulting three Baylor students and is serving a 20-year sentence.
The NCAA has not leveled the “death penalty” — its harshest sanction, by which it can ban a school from competing in a sport for a full season — in a high-profile case since it shuttered SMU football in 1987. But it’s a mistake to think the organization no longer has the power or willingness to. In fact, the NCAA has shut down programs twice in the past 10 years. The problem is that it apparently prefers to shut down the Division II Morehouse College men’s soccer team for improperly signing a couple of Nigerian players, as it did in 2004 and 2005. Or the Division III MacMurray men’s tennis program over grants for foreign players, as it did in 2005 to 2007. Those are the last two schools to receive the death penalty.
Why? Presumably because the death penalty is difficult to contemplate when major college football revenue is more than $3.4 billion. But if the NCAA declines to inflict its most severe consequence on major schools purely because it fears the financial fallout, then it will have put itself to death.
The NCAA is caught in a strange dynamic: It’s attempting to define its shrinking jurisdiction at the same time that the nature of corruptions in college sports and the stakes are growing. To abandon the death penalty as a deterrent for major malfeasance at large schools, and yet selectively enforce it on small ones, is a recipe for extinction.
The NCAA’s rulebook defines a Level One infraction: “A severe breach of conduct is one or more violations that seriously undermine or threaten the integrity of the NCAA collegiate model . . .”
There were so many repeated breaches of conduct, by so many officials at so many levels at Baylor, that the school’s football program was unrecognizable as anything belonging at a college. It looked more like a criminal conspiracy model. If the NCAA does not entertain the harshest sanctions, it risks becoming a co-conspirator.