Impact of the Tracy Rule for NCAA Student Athletes
It’s natural to want a fresh start. But sometimes, our society finds that a person’s actions make them so dangerous to others that we cannot afford to give them a second chance.
The “Tracy Rule” sets the bar to determine when student athletes are past the point of no return. It describes the circumstances that ban a student athlete from future competition at any school and requires colleges to investigate a student’s past before they allow that student to compete. How these requirements will play out in real life remains to be seen. How much leeway do schools have when setting their policies? How far do they have to go in their investigations? Do the rules infringe on a student’s rights to due process? The answers may take some time to develop.
Ban on Participation
The Tracy Rule prohibits current, prospective and transfer student athletes from competing in collegiate sports if they have:
- Been convicted of a crime involving Serious Misconduct
- Pled guilty or no contest to a crime involving Serious Misconduct
- Been found “delinquent” in the equivalent under a juvenile code
- Been disciplined by a college or athletic department due to Serious Misconduct
These students may not practice or compete in games with a team or receive athletic-based financial aid.
One key issue is the definition of “Serious Misconduct” and a determination of what an equivalent would be for juvenile offenders or those who may have faced charges in another country. The Rule defines Serious Misconduct as Title IX sexual violations such as incest, rape, sexual assault, sexual violence, sexual harassment, domestic violence, dating violence, stalking, and sexual exploitation. The definition also includes felony offenses such as murder, manslaughter and assault with a deadly weapon or assault resulting in serious injury.
The definition also includes some offenses that may be harder to demarcate. A hate crime is Serious Misconduct. A violation of a student code involving sexual harassment is also Serious Misconduct.
Students May Request a Waiver
Under the current Tracy Rule, a current or prospective student can submit a written request for a waiver. A panel from the university or college would review the facts and waiver request form to determine whether “compelling exceptional circumstances” justify a waiver of the prohibitions.
The panel must include the school’s Title IX Coordinator, the Director for Student Conduct and Community Standards, a Faculty Athletics Representative, an athletic Executive Staff member, the Senior Woman Administrator, and counsel from the Office of Legal Affairs. If the panel recommends granting a waiver, the University President and Athletic Director must review and approve their report before the waiver will be granted.
Student Reporting Requirements
The Tracy Rule obligates schools to require that current and prospective students complete a questionnaire about Serious Misconduct. This is part of the school’s minimum expectations for due diligence with student athletes.
In addition, if a student is transferring from another college, that school’s Title IX Coordinator must also complete a questionnaire. The school must report whether the prospective student athlete was ever named a respondent in “any matter” and whether they were found “responsible.”
Obligation to Investigate Student Backgrounds
If a currently-enrolled student athlete answers “yes” to any question on the due diligence questionnaire, the college is required to conduct a criminal background check and an internet search. Schools must also conduct these searches for any and all prospective student athletes.
Critics have said the rule does not go far enough because if a currently-enrolled student lies on their questionnaire and fails to report misconduct, the school is not required to conduct a background check and could miss spotting a potential violator. However, with employers, landlords and others conducting criminal background checks as a regular procedure, many people find it reasonable to require background checks for all student athletes or all students in general.
The Current NCAA Policy
The NCAA Campus Sexual Violence Policy requires colleges to adopt policies similar to the Tracy Rule but not quite as strict. Colleges are now developing their policies, but only two schools — the University of Texas at San Antonio and the University of Virginia’s College at Wise — have chosen to publicly announce the adoption of the Tracy Rule.
Under the current policy, schools are required to set written procedures that guide all incoming, continuing, and transfer athletes to complete an annual disclosure regarding any prior conduct that resulted in discipline through a Title IX or criminal proceeding for sexual, interpersonal, or other acts of violence. Additionally, transfer students must disclose if there are any ongoing or incomplete Title IX proceedings against them at the time of their transfer. All member institutions must take “reasonable steps” to confirm information disclosed by students and share relevant information with other institutions a student may be trying to attend. As of the 2022-2023 academic year, NCAA member institutions are required to attest to their completion of these conditions.
Implementation of stricter reporting requirements for Title IX violations was delayed due to COVID-19, so the full ramifications will take time to become apparent. Schools are only now putting policies into place, so any challenges to those policies—whether they are alleged to be too strict or too lax—remain to be seen.
What is the Difference Between the Tracy Rule and the Current NCAA Policy?
Ultimately, the difference is the effect that a finding of responsibility in a Title IX proceeding has on a current or prospective student athlete’s ability to compete at an NCAA member institution. Under the Tracy Rule, absent the granting of a waiver, a student who has been found responsible will not be banned from playing on an intercollegiate athletics team. However, under the current NCAA policy, although the NCAA—as the organization’s governing body—mandates that a prospective, current, or transferring student disclose these findings, it is up to the institution to decide what happens to the student as a result.
For Title IX Concerns, Talk to Attorneys Who Understand
Title IX rules allow students to right wrongs on campus, but students accused of violations deserve fair treatment. At Nesenoff & Miltenberg, LLP, we are committed to using Title IX provisions to bring justice where it is needed while protecting the rights and interests of students when their future is on the line.
If you are considering bringing a Title IX complaint or facing allegations of a violation, contact us today for a confidential consultation to learn how we could assist.