NCAA: Failure to report sexual assault was part of ‘campus-wide culture of nonreporting’ at BU; Briles cleared, attorney says

BU argued failings didn’t constitute violations ‘and with tremendous reluctance, this panel agrees’
Published: Aug. 11, 2021 at 11:06 AM CDT|Updated: Aug. 12, 2021 at 1:37 PM CDT
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WACO, Texas (KWTX) –An NCAA investigation sparked by the sexual assault scandal in 2016 that engulfed Baylor’s football program identified just three unreported incidents of sexual assault or domestic violence involving players and concluded those instances of non-reporting did not constitute impermissible benefits to the players “because of a campus-wide culture of nonreporting.”

“Baylor admitted to moral and ethical failings in its handling of sexual and interpersonal violence on campus but argued those failings, however egregious, did not constitute violations of NCAA rules. Ultimately, and with tremendous reluctance, this panel agrees,” the panel said in its decision, which comes amid the pending move of Texas and Oklahoma to the SEC, which may leave the Big 12 in turmoil, and could cloud Baylor’s football future.

The findings largely corroborated KWTX coverage in the aftermath of the scandal, and confirmed the contention that the school’s regents made Briles and the football program a scapegoat for a much larger campus problem, for which administrators bore much of the responsibility.

The investigation included major allegations of a lack of institutional control; fired head coach Art Briles faced allegations of failing to promote an atmosphere of compliance.

But, because of the finding that failure to report allegations of sexual assault or domestic violence was campus-wide, the seven-member panel, as a result “could not find that (Briles) failed to promote an atmosphere of compliance or that Baylor lacked intuitional control, largely because those allegations were specifically tied to the underlying allegations that ultimately did not result in violations.”

“The NCAA’s decision today clears the way for Mr. Briles to return to coaching college football,” said Scott Tompsett, a Kansas City, Mo. attorney who represents the former coach.

“Art Briles has been completely exonerated and cleared of all NCAA violations alleged against him. As the NCAA Committee on Infractions explained, the conduct at issue was pervasive and widespread throughout the Baylor campus, and it was condoned or ignored by the highest levels of Baylor’s leadership,” he said.

The NCAA late Wednesday morning released the results of the lengthy investigation sparked by the scandal that not only led to Briles’ firing, but also the suspension of Athletic Director Ian McCaw and the reassignment of University President Ken Starr.

Penalties include four years of probation, recruiting restrictions, a vacation of records and a five-year show-cause order limiting all athletically related duties for the former assistant director of football operations, Odell James, the NCAA said.

James, a four-year Baylor football letterman from 1997 to 2000, wasn’t identified by name in the NCAA report, and a KWTX source who’s deeply familiar with the scandal and the investigation said the reference was to former Director of Football Operations Colin Shillinglaw, who was a collateral casualty of the scandal; like Briles he was fired.

The reference, KWTX later learned, was to Odell James, a four-year Baylor letterman who was hired in 2004 to serve both as assistant director of football operations and strength coach, but failed to add the new information to this story promptly. James, the NCAA said, who had left Baylor, refused to agree to an interview with enforcement staff.

Shillinglaw told KWTX in the fall of 2018 he was never given a reason for his release and ultimately forced into financial ruin.

Because he was linked to the Baylor scandal, Shillinglaw feels he will never work in college football again.

He’s currently working as an athletic trainer at Tyler Legacy High School.

In James’ case, any institution, in order to hire him, must arrange to “show cause why restrictions on all athletically related activity should not apply.”

The investigation focused primarily on allegations the school “shielded football student-athletes from the school’s disciplinary processes and did not report allegations of misconduct by football student-athletes,” the NCAA said Wednesday, but the panel ultimately considered allegations of just three separate instances in which “alleged actual or threatened violence by football student-athletes went unreported by members of the football staff and resulted in impermissible benefits to the involved student-athletes.”

“The campus-wide culture of nonreporting…” driven by the school’s broader failure to prioritize Title IX implementation, creating an environment in which faculty and staff did not know and/or understand their obligations to report allegations of sexual or interpersonal violence,” the panel said.

In a statement posted on the university’s website late Wednesday morning, Baylor President Dr. Linda Livingstone and Vice President and Director of Athletics Mack Rhoades IV, said, “The university agrees with the enforcement staff and the Committee on Infractions that violations did occur, and we take full responsibility.”

“Our internal and external legal teams will review the full report and the university will decide on its next steps, if any.”

“As part of the NCAA process, the university acknowledged its significant and moral failings related to sexual and interpersonal violence, and we sincerely regret the actions of a few individuals caused harm to so many. We must remember that the prospect of NCAA penalties pales in comparison to the suffering of the survivors of such horrific assaults.”

The university received a notice of inquiry from the NCAA in December 2016 after Baylor officials proactively notified the organization about potential violations, and a formal notice of allegations from the NCAA in September 2018,

The notice provided to the university included the names of 11 other people with “some connection to the alleged violations.”

They weren’t named in the report released Wednesday because “they were not named as “involved individuals”

Livingstone and Rhoades, during a news conference Wednesday afternoon after the report was released, declined to say whether Shilllinglaw was one of the 11.

A timeline of the NCAA process is available online.

Baylor regents exaggerated the scope of the allegations

The university at one point identified five times as many sexual or domestic assault cases involving Briles’ players than the three the NCAA panel identified.

In November 2016, The Wall Street Journal, quoting regents who heretofore had commented publicly about specific findings, reported that the scandal that engulfed the school’s football program involved 17 women who reported sexual or domestic assaults involving 19 players including four gang rapes since 2011.

Baylor had maintained since May 2016 that it couldn’t provide any details about the specific cases in which Pepper Hamilton found university and athletic department failures, but five months later, apparently acting on advice of the Los Angeles PR firm G.F. Bunting+Co., made selected regents available for interviews with the Journal, the New York Times, USA Today and Showtime’s “60 Minutes Sports.”

One prominent regent who was present when attorneys from the Pepper Hamilton law firm briefed the board in May about the findings of its investigation of the school’s handling of sexual assault complaints said only a handful of the allegations were proven.

Offense reports on the school’s website involving incidents on and off campus showed five forcible sex offenses in 2013, five rapes and one case of fondling in 2014 and 23 rapes and 3 cases of fondling in 2015.

The school did not include data from 2012, but a Department of Education report showed one off-campus rape was reported that year, and that none was reported in 2013.

Simple assaults and domestic violence incidents were included in the data, but during the four-year period, the school reported a total of 11 aggravated assaults, according to the offense data.

The university told the paper that football players were involved in 10.4 percent of Title IX reported incidents in those four years, which suggests that members of the team were linked to only four alleged sexual offenses.

The Pepper Hamilton report remains a point of contention five years after its release.

Last week a federal judge in Austin ordered the university to turn over all documents from the law firm pertaining to the investigation in an ongoing legal battle involving Title IX lawsuits filed by 15 Jane Doe plaintiffs.

The Waco Tribune-Herald quoted Waco lawyer Jim Dunnam, who, along with Houston lawyer Chad Dunn represents the women in their lawsuits, as saying, “After five years, Baylor is still hiding the truth.”

“Baylor has now spent millions of dollars fighting sexual assault survivors and hiding the truth,” Dunnam told the Tribune-Herald.

“This just shows that all of Baylor’s claims of transparency and change are nonsense. Thankfully, we continue to move forward, and we remain confident that a jury will be presented the full facts and real facts in the end,” he told the paper.

The penalty could have been much more painful

As in the aftermath of the 2003 Baylor basketball scandal, there was speculation, based on the information released by the university and other sources, the investigation might lead to the NCAA’s death penalty, which has only been levied once, against SMU in 1987 after an investigation of instances in which the school bent the rules, particularly regarding recruiting.

But because the panel found that allegations Baylor officials failed to report sexual assault and domestic violence wasn’t limited to athletics, but instead was campus-wide, the worst of the penalties are four years’ of probation and a $5,000 fine.

The violations the panel did uncover were comparatively minor.

One involved an athlete who was suspended “due to a plagiarism concern” who appeared to then Baylor President Ken Starr, who overturned the suspension, but directed the athlete “be subjected to an academic performance plan requiring 100% academic honesty.”

Several months later, an academic advisor notified football and academic staff members the unnamed athlete had cheated on an in-class quiz. The incident wasn’t reported to Starr, and as a result, there was “a failure to meet the terms of the student-athlete’s reinstatement,” the report said. The student remained enrolled in the university and as a member of the team, competing in seven games while ineligible.

The panel also took issue of Baylor’s use of the Baylor Bruins, a predominantly female host group for recruiting events. The group existed separately from the admissions office, hosted some alumni events unrelated to football, but also “worked many recruiting events, including camps, official visit weekends, junior days and the gameday recruiting room.”

A Jane Doe lawsuit filed in January 2017 claimed the number of rapes by football players was far worse than reported, and the university’s football program was using attractive female students as recruiting bait, a claim members of the group denied.

The NCAA panel, however, was troubled by the almost all-female composition of the group.

“The gender-based nature of this group is especially concerning in light of the campus-wide cultural issues and Title IX deficiencies at Baylor during this time, as well as the extremely troubling assertions reported by the former Title IX coordinator, including that the Bruins were ‘kind of at the disposal of football players in a very inappropriate way,’” the panel said in its decision.

SMU’s offenses were historically egregious.

The most serious allegation against the school was that a slush fund was created for “under the table” payments to players from the mid-1970s through 1986.

The NCAA penalty, intended to “eliminate a program that was built on a legacy of wrongdoing, deceit and rule violations,” canceled SMU’s entire 1987 football schedule and forced the school to cancel the 1988 season as well.

In the summer of 2003, the murder of Baylor basketball player Patrick Dennehy ultimately revealed a scandal in the men’s basketball program that led to stiff self-imposed sanctions, a ban from postseason competition in 2003-2004 and the resignations of head coach Dave Bliss and athletic director Tom Stanton.

Teammate Carlton Dotson was arrested in Maryland four days before Dennehy’s remains were discovered, after he told FBI agents he thought people were trying to kill him because “he is Jesus, the Son of God,” according to court documents.

He was later committed to a state hospital in Vernon after a court-appointed psychiatrist said he “consistently appears to be hallucinating” and needed medication at a psychiatric hospital.

In January 2005, he was judged competent to stand trial, but then that June, he unexpectedly pleaded guilty to the murder, and was sentenced to 35 years in prison, half of which he must serve before he’s eligible for parole.

In the aftermath of the murder, the program was buffeted by a string of accusations including allegations that Bliss paid Dennehy’s tuition and living expenses while the player was on the team, but not on scholarship; that Dennehy received an excessive discount on a Tahoe he purchased locally after receiving the money for the down payment from an assistant; that coaches regularly handed out $50 to $100 at a time to players; and that players including Dotson and Dennehy used marijuana regularly and cheated on drug tests.

Assistant coach Abar Rouse blew the lid off the scandal after he secretly recorded the coach asking teammates and staff to paint Dennehy as a drug dealer, in an effort to cover up the illegal payments.

Livingstone in her statement Wednesday expressed appreciation to the NCAA panel for its recognition of the university’s swift and wide-ranging response several years ago, which demonstrated Baylor’s dedication to functioning with integrity, fostering a culture of compliance, and ensuring a commitment to institutional control.”

“We made key personnel transitions in a variety of roles across campus, not solely in athletics. We implemented a new culture in Athletics and campus-wide,” she said.

“We identified and implemented best practices in Title IX policies and procedures. And we demand an ongoing adherence to ethics and accountability from each and every employee.”

During the NCAA process, Livingstone said, the university acknowledged its significant and moral failings related to sexual and interpersonal violence, and we sincerely regret the actions of a few individuals caused harm to so many.”

“We must remember that the prospect of NCAA penalties pales in comparison to the suffering of the survivors of such horrific assaults.”

The full scope of penalties levied against Baylor includes:

  • Four years of probation.
  • A $5,000 fine.
  • A reduction to 30 football official visits during the 2021-22 academic year.
  • A three-week ban on unofficial visits in football during the 2021-22 academic year.
  • A two-week ban on football recruiting communication during the 2021-22 academic year.
  • A reduction of football evaluation days by three during fall 2021 and by 10 during spring 2022.
  • A five-year show-cause order for the former assistant director of football operations. During that period, any NCAA member school employing him must restrict him from any athletically related duties unless it shows cause why the restrictions should not apply.
  • A vacation of all records in which student-athletes competed while ineligible. The university must provide a written report containing the contests impacted to the NCAA media coordination and statistics staff within 14 days of the public release of the decision. (Source NCAA)

‘We remain excited about the future of our football program’

Baylor University officials made their case in December 2020 during a two-day virtual hearing before the Committee on Infractions.

Baylor Vice President and Director of Intercollegiate Athletics Mack Rhoades said in a statement after the hearing, “The university is bound by NCAA policies and procedures to maintain as confidential the details of the case until a decision is announced by the NCAA in the months ahead. However, we believe we were given a fair opportunity to present our positions, and as we move forward, we remain excited about the future of our football program.”

U.S. Dept. of Education review led to steep fine

In October 2020 the U.S. Department of Education fined the university $461,656 for violations of the Clery Act regarding campus crime reporting between 2011 and 2016.

The violations included lack of administrative capability, failure to report accurate crime statistics in the annual safety and security report, failure to comply with timely warning issuance and policy provisions, and failure to maintain an accurate, complete daily crime log.”

The Department of Education announced in March 2017 in the aftermath of the sexual assault scandal it was opening an investigation focused on the school’s crime reporting process and would review Baylor’s annual Fire Safety and Security report, which include’'

A little publicized, 2014 consultant study obtained by KWTX in 2018, the Margolis Healy, Title IX Review and Clery Act Compliance Assessment, identified several Clery Act compliance issues “that require immediate attention and, in some cases, may require additional resources.”

After the release of the report Wednesday, ex-athletic director Ian McCaw, called it “tragic that Baylor’s decades-long, campus-wide sexual assault scandal arose due to systemic failings in campus safety and institutional adjudicatory processes as outlined in the 2014 Margolis Healy report,

Baylor’s Clery report showed no sexual assaults on campus in 2011, two rapes in 2012 on campus, six cases in 2013 on campus, five reported rapes on campus in 2014 and 23 rapes in 2015, an increase of 360 percent.

Dr. David Garland, who succeeded Starr as interim president, in a letter to faculty in June 2016, said the school acknowledged and took responsibility for its failures and had already taken steps to ensure the school was in compliance Title IX, the Clery Act, and the Violence Against Women act, which toughened provisions to hold offenders accountable and created programs to help the victims of domestic violence.

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act or Clery Act, which was signed into law in 1990, requires campuses to share information about campus crime and efforts to improve campus safety.

Findings of 9-month investigation of sexual assault allegations rocked the university

On May 26, 2016, following a nine-month investigation by the Philadelphia based Pepper Hamilton law firm, Baylor regents released a 13-page findings of fact statement and a list of 105 recommendations from the law firm, and announced the firing of Briles, Starr’s reassignment and McCaw’s reassignment.

Four days later, on May 30, 2016, McCaw resigned saying he needed to step down to help the university heal and move forward.

He is now the athletic director at Liberty University in Lynchburg. Va.

Starr resigned from his position as chancellor on June 1, 2016 and severed all ties with the university in August 2016.

Briles spent three years in the wilderness after leaving, then accepted a job as the head coach of the Guelfi Firenze American Football team based in Florence, Italy.

A year later he accepted a job as head football coach and athletic director at Mount Vernon High School, a position from which he resigned in December 2020 after two seasons.

Review commissioned by major Baylor benefactor found no reason Briles shouldn’t coach again at collegiate level

In December 2020, just days before BU officials made their case to the NCAA, results were released from an independent review of Briles’ firing commissioned by one of the university’s biggest benefactors.

The review concluded there’s no reason Briles shouldn’t be a candidate to coach again at the college level.

Baylor had no comment on the review immediately after its release, saying only, “Baylor University’s position on this matter over the past four-plus years remains unchanged. We will decline to comment further.”

John Eddie Williams, a Houston attorney who played football under former coach Grant Teaff, graduated from Baylor, and then earned a law degree from the Baylor Law School, commissioned the Atlanta-based Aloston & Bird law firm to conduct an extensive review of “what’s on the public record” about Briles and “how Baylor handled sensational allegations and ultimately made decisions.”

Williams provided what the university described at the time as a “transformative gift” that helped fund construction of the university’s new law school in 2001 and was among several major donors whose contributions helped fund construction of McLane Stadium, whose field bears his name.

But after Briles was fired, he helped organize and served as president of the group Bears for Leadership Reform, which demanded more transparency and an independent review of what led to Briles’ firing.

In August 2018 the group called for the resignations of all of the regents involved in Baylor’s handling of the sexual assault scandal that engulfed the school’s football program as well as for release of the complete Pepper Hamilton report and a third-party review of the investigation and its aftermath. The group also requested a full accounting of money spent on the investigation, including PR firms and attorneys, and payouts to former athletic department and university officials.

Williams, in a letter dated Dec. 9, 2020 to which the results of the law firm’s review are attached, says he hates waste of talent, injustice and stronger interests that bully people.

“My goal is to pursue redemption and fairness,” Williams said in the letter.

“Coach Briles deserves a better hearing than he got, and is getting, about his tenure as Baylor’s head football coach.

“There’s no reason someone as talented as Coach Briles shouldn’t be coaching at the collegiate level,” Williams wrote.

“It’s time to redeem Coach Briles’ reputation, his future and to establish our own commitment to fairness.”

The review by the Atlanta-based Alston & Bird law firm’s report, a copy of which KWTX obtained Thursday, makes several points it identifies as important:

*”No findings were ever made as to what Briles did or did not do.”

*Baylor never made a determination whether “Briles violated any then-applicable Baylor University policies, procedures, and/or instructions concerning the handling of sexual assault, domestic, violence, dating violence or stalking.”

*Baylor “does not believe that Briles violated an institutional policy or directive at that time.”

*”Baylor does not contend that Briles concealed information from law enforcement.”

*Baylor is not aware that Briles ‘concealed’ information…'from officials of Baylor University who should have, according to Baylor policy, been notified by Briles.’”

“We are not aware of any conduct on the part of Coach Briles that should serve to foreclose consideration of him as a candidate to coach football again at the collegiate level,” the law firm’s report concludes.

In fact, the report says, Briles’ experience at Baylor would help him improve the Title IX protocols of any university that hires him.

“Indeed, Coach Briles has specific ideas and suggestions for ensuring a robust Title IX compliance program born of his prior experiences should be he selected to coach again at the collegiate level.”

Pepper Hamilton reported was flawed, insiders said

The Pepper Hamilton review was flawed, according to university insiders to whom KWTX talked during a months-long investigation following the release of the scathing Pepper Hamilton report.

Information from sources with direct knowledge of the review, and secret recordings of meetings with athletic staffers obtained by KWTX, suggested that Pepper Hamilton’s investigators came to Waco with an agenda to purge members of the football program and had a racial undertone in their line of questioning.

The Alston & Bird law firm’s report affirmed the information the inside sources provided.

Despite university-wide problems with respect to Title IX, the report says, Pepper Hamilton’s presentation to the Board of Regents in May 2016 “focused on a handful of specific cases concerning allegations against football players rather than of specific cases related to other athletic programs or involving other components of the university.”

The report cited McCaw’s deposition testimony in a suit brought against Baylor by Jane Doe plaintiffs in which he said he believed there was “a conspiracy…to try to turn a longstanding campus-wide sexual assault scandal into a football problem” and that there was “an elaborate plan that essentially scapegoated black football players and the football program for being responsible for what was a decades-long, university-wide sexual assault scandal.”

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