Six years after Penn State, has college athletics really reformed its crisis response?

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In 2011, the world of higher education — and the entire nation — was rocked by the shocking revelation of the criminal actions of longtime Penn State defensive coordinator Jerry Sandusky. Equally shocking was the reaction (and inaction) of then-head coach Joe Paterno and several high-ranking members of Penn State’s leadership team to Sandusky’s abuses. By all credible accounts, this group of administrators did nearly everything in their power to downplay, distract, and cover-up their coach’s actions, all in an effort to protect a powerful football program. 

Six years later, has higher education transformed its response to — and preparation for — campus athletic scandals? While there certainly is evidence of institutions working to improve reporting and control systems (particularly in the context of Title IX compliance), it appears that many have yet to fully absorb and act upon the lessons of Penn State. Indeed, an honest look reveals continuing similar patterns in how universities react to crises involving athletes and athletics on campus. 

Not all of these scandals have originated from athletic programs, but issues involving athletic teams are often the most closely watched and criticized, as the involvement of student athletes brings greater attention. Players, coaches, and administrators continue to crop up as central figures in these crises. And these incidents continue to arise at institutions of all types and missions, to include the likes of Baylor, Yale, North Carolina, Rutgers, Ole Miss, Missouri, and Syracuse — to name just a few of the institutions that have confronted challenges since Penn State.

The value of procedure

Given the complexity and potential cost of a major athletics scandal, it’s critical that an institution’s first steps be good ones. Yet in too many of these crisis situations, the first step is a misstep, ranging from reluctant action to, in the worst of cases, outright cover-up. University and athletic leadership recognize the financial and reputational contributions of their sports teams and are naturally protective of their status. When this instinct is unchecked, however, leadership may look first to how it can minimize the incident and any related damage, instead of looking for truth and safeguarding the safety of the campus community. 

The antidote to this form of reactionary management is sound process and procedure. Universities must have established protocols to follow that are in place before the crisis arises. These protocols cannot involve people who have a direct vested interest in the outcome (coaches, and perhaps athletic directors), must be fair to the victim and the accused, and must be consistent with applicable law and policy. The process must include independence and accountability, in addition to being consistent in its application.

Developing strong, practical, effective protocols for managing campus crises is not a one-step process. Nor will the same process work for every institution. But for institutions looking to establish a crisis management framework, or to enhance one already in place, we offer the following resources that may be of use.

First, on August 23, 2017, we’ll be hosting a free webinar titled “Ensuring Due Process in Sexual Misconduct Proceedings.” This advanced-level webinar focuses specifically on ensuring that institutional policies and practices governing sexual misconduct proceedings afford all parties due process. Aaron Lacey, a partner in our Higher Education Group, will discuss the state of federal guidance, lessons learned from recent litigation, and critical best practices for institutions looking to best serve the campus community while also mitigating institutional risk. To pre-register for this free webinar, contact Irene Rosey at irosey@thompsoncoburn.com.   

Second, institutions interested in a more thorough evaluation of the policies and procedures governing crisis management in their athletic programs may wish to review the Off-Season Audit program offered by Thompson Coburn’s Sports Law Group. Led by Bob Wallace, former General Counsel of the St. Louis Rams, the Sports Law Group reviews an institution’s current processes and assists in developing a robust policy framework. You can learn more here about our Off-Season Audit program, and also access a compliance checklist and “6 tips for managing powerful coaches.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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