There is a growing fear at Baylor that the NCAA simply has it in for the school and will impose a punishment because it can, and because it wants to look tough on crime.
The NCAA’s nearly two-year investigation into Baylor’s athletic department in the wake of a myriad of sexual assault allegations and Title IX failures is finally winding down. Sources confirmed the lawyers representing the school and former football coach Art Briles have responded to the NCAA’s notice of allegations that were sent to the university in September.
According to sources, the NCAA believes football players at Baylor had a different set of rules than students when it came to disciplinary cases. That’s a major violation if the NCAA can prove it. The NCAA feels Baylor was using a dated system to handle the football program, much the way problems were addressed in the 1970s and ’80s.
These are large ifs.
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The NCAA is scheduled to respond to both Baylor and Briles in approximately 60 days, after which a closed hearing is likely to be conducted. Expect an announcement from the NCAA in late May or early summer, according to people familiar with the case who spoke on the condition of anonymity. The NCAA prefers that no one within its organization or anyone involved in the case speaks during an investigation..
According to its bylaws, the NCAA didn’t have much of a reason to open an investigation in the first place. The organization handles matters regarding recruiting, eligibility and practices. It does not have authority over criminal cases, which are handled by police and the court system.
But the NCAA got involved because it has a desired outcome: That the optics of mishandling sexual assault claims at one of its member institutions — one that has a record of bad headlines this century — cannot go unpunished.
Initially there was considerable optimism that the NCAA would judge neither Baylor nor Briles harshly. But now there is a cautious and nervous tone about the impending ruling.
The biggest problem for Baylor and Briles is perception. The barrage of negative headlines stemming from the sexual assault scandal and the assumption of a coverup “must be” an NCAA violation or two or 20.
When the NCAA issued the notice of allegations, the charges included the always popular “lack of institutional control” as well as “Head coach responsibility: Failure to promote an atmosphere of compliance.”
Both of those, while vague, carry a potentially significant penalty.
By definition, neither Baylor nor Briles appear to have committed any major NCAA violation. The violations are what the NCAA calls “Level III infractions,” minor offenses that are handled by the enforcement staff.
In one case, a member of the administration directed the academic status of a football player to former Baylor president Ken Starr, who handled the situation to keep the player eligible, sources said.
In another, a sexual assault allegation against a football player was ignored by an administrator and hidden from athletic department officials.
People familiar with their defense say Baylor and Briles contend that the handling of the sexual assault allegations was not specific to the athletic department and that the university showed no favoritism toward athletes, specifically football players.
That message has been consistently stated by administrators and the two investigators from Pepper Hamilton who were paid by the university to research the school’s Title IX and sexual assault reporting procedures back in 2015-16.
Some Baylor officials remain angry at Starr, who resigned not long after Briles was fired in May 2016. Starr repeatedly protests otherwise, but board members are convinced that he was delinquent in placing the enforcement of Title IX procedures at the university. There is a sense that had Title IX procedures been in place, virtually none of this and the ensuing fallout would have happened.
Starr vehemently denies he was ever against Title IX.
Ironically, in its presentation to the NCAA, Baylor has been supportive of the men it publicly blamed for most of this — Briles and his staff.
Essentially, Baylor says it punished itself when it fired the most successful coach in its history and then watched former athletic director Ian McCaw resign shortly thereafter.
About one year after Briles’ dismissal, Baylor issued a letter that essentially said Briles did not handle anything incorrectly. Now, to the NCAA, it is again saying he behaved properly and suppressed nothing.
Who is he? The coach whom fans were led to believe lied, manipulated and covered up sexual assault allegations in the name of winning football games, so much so that the university paid him $18 million to leave? Or, the coach Baylor later described: One who acted within university protocol and did not interfere with allegations when he was made aware of them?
Even Briles’ staunchest supporters say his biggest problem was a lack of discipline. They also say he was not running a “rape culture” football program or that he knowingly suppressed sexual assault allegations to keep players active on his team.
A curious investigation
Although the NCAA purports to do a thorough investigation of the member institutions it investigates, there exists curious holes as it relates to Baylor. There are holes in the 9,000-page document it has prepared as it relates to this case. It’s a document that cannot be printed, and only read online through a secure NCAA website.
While the NCAA did interview Briles extensively, several coaches on his staff said they were never contacted by anyone from the NCAA to talk about their time at Baylor.
Because the Pepper Hamilton “report” was not actually authored by the law firm, its accuracy has been repeatedly questioned since the “Finding of Facts” was released. It was essentially prepared by high-ranking school officials. There is no written report of what Pepper Hamilton actually presented to the Baylor Board of Regents in May 2016.
In its presentation to the NCAA, the Pepper Hamilton “report” was not included. At least not initially. Also initially not included to the NCAA was the “Margolis Healy, Title IX Review and Clery Act Compliance Assessment” that the university completed in 2014. That report found that the university at the time was not complying with federal laws in place to protect co-eds from sexual assault, among other concerns.
The report, which was originally made available to the public after Waco TV station KWTX obtained a copy, was critical of Baylor long before Pepper Hamilton began to review the school’s procedures in 2015.
Erratic investigations are not necessarily new from the NCAA. And that gives Baylor reason to be optimistic — and skeptical — of its future.
In July 2012, the NCAA fined Penn State $60 million, imposed a four-year bowl ban and slashed scholarships on the football program in the wake of the Jerry Sandusky scandal. Sandusky was a former PSU defensive coordinator who molested boys for years, and there was evidence that coach Joe Paterno and other high ranking school officials knew and did not act.
In January 2015, Pennsylvania Sen. Jake Corman sued the NCAA over the penalties, arguing that the money sent to the NCAA should have been used in Pennsylvania. Corman’s attorney told PennLive in January 2015 that he felt the NCAA was going to use Penn State to prove it was a “new sheriff in town.”
The NCAA settled, thus avoiding a trip to a courtroom that could have exposed the flaws in its investigation, beginning with the fact there was none. NCAA president Mark Emmert used a report by former FBI director Louis Freeh to impose sanctions on PSU nine days after its release.
Because of the nature of the allegations, there are those at Baylor who believe the NCAA is doing to BU what it tried to do to Penn State: That this is an outcome-driven investigation.
Then there are pockets of people who hope Baylor ends up like the Univeristy of North Carolina, which escaped penalties for academic fraud. The NCAA agreed that UNC essentially sponsored bogus classes. But since the courses were offered to all students, there was no penalty.
The lack of a penalty against UNC created another round of bad headlines against the NCAA for what appears to be a rampant use of selective standards.
Baylor and Briles’ future
Aside from the NCAA investigation, the school is still dealing with approximately a dozen Jane Doe cases from sexual assault claims. They are expected to go to trail this fall.
The NCAA could use any of the public information that emerges from these cases, such as critical testimony from McCaw or members of Baylor’s Board of Regents.
Baylor has established more than 100 policies and procedures for Title IX and sexual assault reporting. Hiring athletic director Mack Rhoades and football coach Matt Rhule were regarded as solid PR moves as the school remakes its image.
Briles, meanwhile, appears to be out of college football for good. Earlier this month, he was all but hired as offensive coordinator at Southern Miss, but a wave of negative publicity forced USM to rescind its offer. Briles is coaching a team in Florence, Italy.
The chances of Briles being hired are slim, even if he is not penalized by the NCAA. Coaches under active NCAA investigations are seldom hired. Hiring a coach who is linked to these types of headlines is now almost unfathomable.
Sources are convinced the NCAA clearly does not want Briles back at one of its institutions.
And the NCAA may simply have it in for Baylor, because making an example of a smaller school is easy.
Baylor is not a brand institution (like UCLA, Florida, Texas, etc.) so making an example of the school is easy. The NCAA most recently did that with the Missouri football team, imposing major sanctions that include a one-year bowl ban over academic fraud.
There is also genuine “Baylor fatigue” within the NCAA, because of the Dave Bliss basketball scandal that resulted in major sanctions in 2005.
Baylor is looking specifically at Michigan State in the hope that the NCAA will follow that case as an example.
The NCAA cleared Michigan State in August in how it responded to the sexual assault allegations against former university doctor Larry Nassar, as well as members of the football and basketball teams.
Last year, Nassar, who was more known as the Team USA Gymnastics doctor, was sentenced to 40 to 175 years in prison for molesting children.
The NCAA alleges Baylor and Briles committed infractions. Both parties have responded.
Their fates are tied, and both move forward in hopes of being cleared but knowing that they may be held up as an example.