No Strikes and You’re Out

July 9, 2020

How the New NCAA Sexual Violence Policy and Tracy Rule Impact Student Athletes

In June 2020, we filed suit against Louisiana State University after it unjustly suspended one of its football players and effectively ended his NFL career before it could even start. As we told ESPN and USA Today, our client, who was on a full athletic scholarship, had his future taken away in a proceeding devoid of basic fairness—with LSU failing to give our client a hearing or even a chance to review the evidence.

Given our experience representing student athletes, and seeing firsthand the pitfalls of our current Title IX system, we are concerned about the NCAA’s May 1, 2020 announcement expanding its Policy on Campus Sexual Violence as a well-intentioned erosion of student rights. This expanded NCAA Policy, along with the voluntary “Tracy Rule” spreading across college campuses, can have severe consequences for student athletes who are even accused of a Title IX violation, let alone held responsible.

Under the expanded NCAA Policy, which goes into effect in the 2021-22 academic year, universities will be required to attest annually that all prospective, continuing and transfer student athletes have disclosed “conduct that resulted in an investigation, discipline through a Title IX proceeding or in a criminal conviction for sexual, interpersonal, or other acts of violence.” If a university does not comply with this disclosure requirement, then it would lose out on significant NCAA financial opportunities.

The Tracy Rule, which is voluntary, goes beyond the NCAA’s Policy and would require this disclosure for cases of “sexual harassment,” not just allegations of violence. The Tracy Rule would also require transferring students to have their old school’s Title IX Coordinator complete a questionnaire stating if they had ever been a respondent, and if they had been found “responsible” or “not responsible” for a Title IX violation. So far, two universities have adopted the Tracy Rule, and more may be on the way.

These policies don’t recognize the implications on a falsely accused student. Neither the NCAA Policy nor the Tracy Rule recognizes that many Title IX cases resolve without a final ruling on the merits. Alternative dispute resolution methods are often used, or an accuser withdraws his or her complaint. In either case, the accused student is not found responsible for what was considered in the initial charge. However, a dark cloud will remain over an accused student’s reputation regardless of the outcome, because the student will have to relive accusations with the transferee school and not enjoy the protections of confidentiality that are afforded to other students.

A student cleared of sexual misconduct should be able to move forward without repercussions when a Title IX matter is resolved without a finding of responsibility. Likewise, allegations of sexual harassment should not be included in this policy, as we find that the definitions are so varied from campus to campus that a student could be considered a harasser from one off-color or ill-timed comment versus actually engaging in persistent conduct that interferes with the education of another student. Simply put, these types of behaviors are much different than sexual assault or non-consensual sexual intercourse and should be treated differently. Under the current policy, no uniform definition is required, and there is no distinction between these types of allegations.

While the new NCAA Policy and the Tracy Rule are well-intentioned, they miss the mark and undermine student rights. Student athletes understand the importance of fair play and an unbiased ref. Colleges, universities and the NCAA should do the same. If you have concerns about the new NCAA Policy, the Tracy Rule or Title IX, we are here to help. For more information, please contact Student & Athlete Defense and Title IX attorneys Susan Stone (scs@kjk.com or 216.736.7220) or Kristina Supler (kws@kjk.com or 216.736.7217).


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