After leading the Denver Broncos to a Super Bowl victory earlier this month, the biggest question surrounding Peyton Manning is no longer whether he will retire and ride off into the sunset with his newly-minted championship ring. The biggest question is whether the All-American image of Manning and the first family of American football will be tarnished by the publicity surrounding his connection with the recently-filed lawsuit against the University of Tennessee by several females alleging an atmosphere of sexual harassment at Rocky Top in violation of Title IX.
While Manning is not even named as a defendant in the lawsuit, an incident that occurred almost 20 years ago is mentioned as an example of the allegedly rampant culture at the University. Manning has never been found guilty of a crime nor admitted any guilt in connection with the incident (other than characterizing his actions as a mooning prank gone wrong), his accuser Dr. Jamie Wainwright was awarded a $300,000 settlement from the University as a result of her claims.
The incident was resuscitated in 2002 when Manning referenced the incident in a manner unflattering to Wainwright and was sued for defamation. Again a settlement was reached with the legal understanding that neither would discuss the incident, or each other, publicly.
But the lawsuit filed this month has fanned the flames of the incident again and some have chosen to dig deeper into court records and a deposition given by Wainwright (who, by the way, was not a graduate assistant learning sports medicine on the Vols’ dime, but rather the director of health and wellness for the men’s athletic program at Tennessee with a doctorate degree).
One would suspect that the timing of the publicity surrounding the Super Bowl played a part in the filing, knowing that an incident involving the high-profile Manning would add to its media coverage. But the real story is an ongoing saga of the frequency of incidents characterized as sexual harassment and how they are handled by University administrations and athletic departments.
Manning is not the only big name that has been found in such lawsuits. One of the most recent examples is the rape accusation against Florida State quarterback Jameis Winston. Unfortunately, the Winston scenario is too often the blueprint for sexual harassment complaints against college athletes, especially star players in high-profile sports.
The alleged incident took place in December 2012. The victim and her father met with Tallahassee police shortly thereafter to report the incident and, according to reports, were essentially told to drop it because Tallahassee is a “huge football town”. Not only did police fail to follow up on the complaint for 10 months, but the accuser received death threats and was questioned in the media for bringing unfair allegations against the face of the FSU football program as it worked toward a national championship.
The accusation was first addressed in a pseudo-legal setting in December 2014, two years after the alleged incident occurred. The FSU conduct-code hearing was held only days before FSU’s appearance in a playoff game to defend its national championship. Winston was cleared of any misconduct and played in the game.
The two-year lapse between the accusation and any attempt at a determination of guilt or innocence seems to be a natural course of such investigations within the athletic department and university administrative process. Some of these delays may be as much a part of the team’s game plan as the X’s and O’s. The idea of an athlete on the scale of Winston being excommunicated from the team during a championship run is not looked upon favorably by anyone with a stake in a national title. So the prospect of the administrative process being delayed as long as possible certainly seems to inure to the benefit of the accused (and/or the team), not the accuser.
While the criminal justice system guarantees a suspect the right to a speedy trial, sometimes time is not of the essence for certain parties involved. According to a Department of Justice study, the median time in state courts from arrest to sentencing is about 5 months. Compare this with the two-year timeframe in the first adjudication of the Winston case in any forum and the marked difference seems to ring alarm bells of a faulty, even dysfunctional, process, especially considering that most students spent only four years at the institution: by the time the case is considered, some or all of the parties may no longer be on campus. (In the Winston case, his accuser dropped out of school while Winston went on to win a national championship, the Heisman Trophy and become a professional football player.)
So what is the athletic department’s role in these investigations?
According to certain authorities, far too much.
So much so in fact that a U.S. Senator has evaluated the issue in a survey designed to answer questions about sexual assault at colleges with an eye towards legislation on the issue.
Senator Claire McCaskill (D-Mo.), a former prosecutor, found that 22 percent of the schools surveyed give their athletic departments oversight in cases involving athletes. The survey results were based on a 67 percent response rate from a national sample of 350 schools. The survey was also sent to the 50 largest public universities and 40 private, nonprofit schools with an enrollment of at least 15,000 students. Those samples response rates were higher, 98 percent and 85 percent, respectively.
But even though they often have oversight, athletic departments’ involvement is often far from effective and, in many instances, an obstacle to an investigation. McCaskill pointed out the main problem with the role of athletic departments in these cases.
They “want to protect athletes”.
The apparent conflict of interest deters reporting of assaults. “I think it would scare just about any victim into the shadows,” McCaskill said. And her data supports that assertion: over 40 percent of the responding schools in the national sample had conducted no sexual violence investigations in the five years prior to responding to the survey.
To add to the problem, over 40 percent of the largest schools surveyed allow some form of student tribunal to assist in some way in the adjudication of these cases. According to McCaskill, this type of system is “rife with all kinds of potential problems” as students judge their peers (and, although unstated by McCaskill, maybe especially students who deify their sports heroes).
Another concern of McCaskill’s is the standard of proof used by some schools to determine whether an assault has occurred. Fifteen percent of the responding schools in the national sample use a standard of “clear and convincing evidence” to find a student guilty of sexual misconduct. But the federal government, including McCaskill, prefers a standard of “preponderance of the evidence” which means that “it is more likely than not that an offense occurred” and McCaskill favors legislation requiring this standard across institutions that are subject to federal investigation under Title IX. At the time of the reporting of the McCaskill surveys’ findings in July 2014, over 60 colleges and universities were facing federal investigation under Title IX for the manner in which sexual violence complaints were handled.
McCaskill’s investigation may just be a small part of government inquiries under Title IX. The Obama administration announced a campaign in September of 2014 called “It’s On Us.” While the effort is directed at any sexual assault that occurs on college campuses, at least two NCAA Conference Commissioners, Bernadette V. McGlade of the Atlantic 10 and Larry Scott of the Pac-12 have endorsed the program as it applies to athletes.
Obviously, athletic departments can do a better job of improving, or limiting, their role in these investigations. More on that in part two…