“Welcome Back – Please Behave!”
Regulating the Off-Field Behavior of Student-Athletes
Student-athletes
are back on campus, and parties and socializing dominate the back-to-school
mentality for many students and student-athletes. Unfortunately, student-athletes' lives are
scrutinized through a magnifying glass, and their bad behavior often has a
ripple effect that, at a minimum, will embarrass the team, coach and athletics
department, and could potentially impact the success of the athletics program
in wins and losses as well as the image and reputation of the institution.
This article will discuss the issues and concerns unique to the athletics department in drafting and enforcing Codes of Conduct for student-athletes. How much legal control can an athletics department exert over student-athlete off-court and off-field behavior?
Colleges
and universities have fairly extensive legal authority to regulate non-academic
activities and behavior of student-athletes, both on and off campus. This
authority rests on the legal premise that participation in athletics is a
privilege, not a right, and that the student-athlete must comply with the
institution’s rules in order to have access to that privilege. The current legal standard allows:
· Rules that are reasonably
(rationally) relevant to the lawful (legitimate) missions, processes and
functions of the institution;
· Punishment if
conduct impairs, interferes with or obstructs the missions, processes and
functions of the institution;
· Superior ethical
and moral behavior standards for student-athletes; the rules are not limited to
criminal law standards nor to that of the student body in general; and
· Application of
conduct rules to student-athlete behavior both on and off campus.
The basic rules apply to both public and private institutions. Although public institutions are concerned with constitutional law standards as state actors, Code of Conduct requirements reflect basic principles of fairness; thus, many private institutions choose to follow these principles in formulating their codes. Fairness begins with student-athletes knowing what behavior is expected, so a written Student-Athlete Code of Conduct for the entire athletics program is recommended in addition to the Code of Conduct for the general student body. The internal investigation into the athletics culture at Duke University after the lacrosse party scandal found that student-athletes perceived the Duke Community Standard (the general student body Code of Conduct) as an academic standard, not something that applied to their behavior. Given the increased scrutiny placed on student-athlete conduct, it is important that athletics departments avoid such confusion and make abundantly clear the behavioral expectations it places on its student-athletes.
Many
athletic departments forego a written policy because they seek flexibility in
dealing with each student-athlete’s unique situation. However, student-athletes do not perceive conduct
policies instituted on a case by case basis as fair, especially if coaches have
an obvious conflict of interest when required to discipline student-athletes if
the punishment will hurt the team performance.
The failure to have a uniform policy, and to enforce the policy evenly
for all student-athletes, is one of the easiest ways to open up the institution
to litigation. A written policy provides
clearer notice of behavioral expectations and creates consistent treatment of
all athletic teams within the department.
An
effective code of conduct will establish notice of behavioral
expectations. Specifically, the code
should include what good conduct means, the behaviors that are prohibited and
the penalties prescribed Although the
athletic department’s restrictions on conduct can be fairly broad, the
authority to regulate a student-athlete’s private life is not unlimited. The first rule is that restrictions on social
conduct must be rationally related to the legitimate purpose of the
institution, usually the educational mission or the campus community
welfare. Examples of good conduct
rules include: exhibiting
high moral characteristics, sportsmanship, responsibility and respect;
following team, university, conference and NCAA rules; compliance with academic
procedures as required by any student at the institution and expected behavior
during team travel or team-related functions.
Prohibited
conduct, such as hazing, drug or alcohol use, and crime, may be incorporated
into the Student-Athlete Code of Conduct, or may be presented as separate
documents detailing the prohibited behavior and the sanctions and penalties
associated with violating the policy. In
establishing appropriate procedures to be implemented when infractions are
alleged, the athletics department should comply with constitutional due process
requirements; minimally, student-athletes should not be punished without the
opportunity to speak on their own behalf.
The more serious the alleged misconduct, the more serious the penalties
administered should be, and therefore the amount of procedure required to
protect the student-athlete’s rights is increased. Typical sanctions and penalties may include a
reprimand, probation, suspension or dismissal.
Penalties that deprive a student-athlete of substantial educational
benefits, loss of athletics grant-in-aid, or seriously affect their reputation
or future employment prospects are likely to require at least an intermediate
level of due process.
In
administering sanctions and penalties, the most important legal concept
to remember is that enforcement cannot be arbitrary. Coaches and/or athletic administrators cannot
arbitrarily discriminate in the range and types of penalties given various
classes of offenders; the lowest walk-on on the team must be treated in the
same way as the superstars. Another consideration specific to athletics is whether the
entire team can be punished for the actions of team members. When the roots of the conduct transgressions
are fostered in the culture of the organization (whether it is athletics or
fraternities) the courts have supported
the university’s sanctions of regulating and restricting social activities,
suspending, and expelling the organizations as a whole rather than require them
to punish only individuals.
Student-athlete
violations of behavioral codes of conduct become complicated when the behavior,
such as hazing, alcohol, and drug use, is also criminal. Typically, a code of conduct will address
misdemeanors and felonies separately. Depending on the type of misdemeanor, an
athlete might be reprimanded, warned, directed to seek counseling, and/or be
asked to engage in community service.
Second and subsequent offenses are likely to result in suspension from
practice and competition, and eventually loss of scholarship. When a student-athlete is charged with a
felony, the university must act immediately to determine if he/she is a threat
to the safety and welfare of the general student body. If the accused is not a
threat, the university might sanction athletes in a manner similar to multiple
misdemeanors. If the student-athlete is
charged with a violent crime, it is acceptable to suspend the athlete from
competition until the charges are dropped, dismissed or otherwise
resolved.
Regulation
of student-athlete conduct is a complicated issue. From a legal perspective, regulation is not
only allowed, but is fairly far reaching, as long as the rules can be
rationally related to the educational mission of the institution or campus
community welfare. A written student-athlete code of conduct is
recommended. The code should clearly
indicate the types of behaviors that are covered and not be overly broad. A single code for the athletics department is
preferred over separate codes created for each team to assure fairness and
consistency as well as to eliminate potential conflicts of interest for the
coach as punisher. The procedures for reporting and investigating violations
should also be clearly delineated, and follow constitutional guidelines for due
process and fairness. Standardized
sanctions for code violations assure equal protection, provide notice, and act
as a deterrence, resulting in fewer transgressions as well as fewer lawsuits
filed by athletes who believe they were punished arbitrarily.
The
Collegiate Sports Practice at Ice Miller LLP has experience in creating a
student-athlete code of conduct, as well as providing educational programming
for coaching staff and student-athletes.
The ultimate goal is to improve the standards of sportsmanship and high
moral values within the athletics program, and spare the institution
embarrassment, media scrutiny and possible liability.
Barbara Osborne
is of counsel in Ice Miller's collegiate sports practice. She provides counsel
and advice to colleges and universities on a variety of athletics compliance
and governance matters including gender equity issues such as Title IX audits,
Title VII and coaches compensation issues, contracts, student-athlete
eligibility/reinstatement, and strategic planning.
This
publication is intended for general information purposes only and does not and
is not intended to constitute legal advice. The reader must consult with
legal counsel to determine how laws or decisions discussed herein apply to the
reader's specific circumstances.
References:
Esteban
v. Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969).
Frazier, E. & Perlmutt, D.
(2006) Athlete-conduct policies studied, Charlotte Observer, posted on Sunday,
April 23, 2006 on Charlotte.com, retrieved on 4/24/2006.
Kaplin, W. & Lee, B. (1995) The Law of Higher Education (Third Edition).
Lipka, Sara (2006)
Punishing Personal Fouls, The
Chronicle of Higher Education, 1/13/2006 retrieved on 10/27/2006 at
http://chronicle.com/weekly/v52/i19/19a04301.htm
Smith-Ulrich, Laura.
Unlocking the Code, Athletic Management, Vol
XIX, No. 2, Feb/March 2007, p. 26 – 33.
Paine v. Board of
Regents of the University of Texas System, 35 F. Supp. 199 (W.D. Tex. 1972), affirmed 474 F.2d 1397 (5th
Cir. 1973)
Wallace v. Florida
A&M University,
433 So.2d 600 (Fla. Dist. Ct. App. 1983).
Wong, Glenn (1994) Essentials of Amateur Sports Law (Second
Edition).