Higher education institutions can protect the safety of their athletes

On Sept. 15, 2021, several USA Gymnastics gymnasts testified before the United States Senate Judiciary Committee regarding their experiences with sexual assault and the failings of several authoritative bodies to prevent and investigate their allegations when they were first raised in 2015. According to their testimony, supported by the findings of a July 2021 Office of Inspector General (OIG) report, neither the Federal Bureau of Investigation (FBI), nor USA Gymnastics and the United States Olympic and Paralympic Committee (USOPC) took their sexual misconduct reports of USA Gymnastics team doctor, Larry Nassar, seriously. As a result of initial inaction, numerous other gymnasts faced similar abuse, and survivors, many of whom are household names, will continue to live with the trauma for the rest of their lives.

Student athlete abuse has been a focus of U.S. Department of Education Office of Civil Rights (OCR) in recent years, with the OCR fining several prominent institutions millions of dollars for violations, including failure to investigate complaints of sexual assault and abuse. Yet, institutions, even with federal fines, subsequent civil settlements in the hundreds of millions of dollars and reputational damage, still face challenges making the necessary policy and process changes needed to keep student athletes safe. For example, many of the sentiments echoed in the gymnasts’ congressional testimony continue to be issues for elite athletics programs, as demonstrated by the release of a 2020 OCR report of a review of a large public institution. This particular report identified several violations of Title IX regulations (i.e., regulations that prohibit sex-based discrimination in any school or other education program that receives federal money), including failure to respond promptly and equitably to complaints of sexual harassment (including student complaints), failure to report complaints to appropriate offices (including reports coaches engaging in gendered verbal attacks, slurs and demeaning statements toward student-athletes) and delays in investigating cases.

Baker Tilly can help

After powerful testimony by the USA gymnasts, many students and parents want to know what specific steps institutions are taking to keep their athletes safe. When we, as Baker Tilly risk advisors, work with institutions to evaluate their athletics safety policies and processes, we evaluate a number of areas and ask questions, including the following:

• Institutional and athletics culture: Has institutional and athletic department leadership proactively spoken about and published their commitment to the safety of athletes (whether students or visitors) and compliance with applicable laws and regulations?
• Policies and procedures: Has the institution developed, formalized and published policies and procedures to establish expectations for keeping athletes safe and complying with applicable laws and regulations? For example, does the institution have policies related to the protection of minors on campus, Title IX, background checks, visitors?
• Ownership: Has the institution dedicated personnel to oversee athletics safety and compliance? Is ownership and authority clearly established and publicized?
• Due care: Has the institution established processes and controls to monitor who the institution employs and/or who may be visiting campus? Are background check policies and processes and visitor screening and approval processes in place? Are there policies to compel visitors to attest with background and safety requirements for themselves and their groups (e.g., athletics camps, clinics, tournaments)?
• Communication and education: Does the institution have mechanisms in place to effectively communicate and educate coaches, administrators and athletes about policies and procedures for student athlete safety and compliance, and how to report abuse and violations? Is there a mechanism to determine acknowledgement and receipt of communications, policy updates, etc.?
• Monitoring: Does the institution have monitoring and investigation mechanisms independent of the athletics department (e.g., internal audit) in place to monitor adherence to athlete safety policies and procedures and reports of non-compliance, and to perform investigations? Does this monitoring body report to a group independent of administration, such as the board? Does the institution have a hotline in place to report violations, and is it publicized? Does the institution have resources to use outside investigators or counsel if needed?
• Consequences: Does the institution have stated consequences for violations of policies and abuse or harm of athletes? Are violations tracked and consistently enforced?
• Response and prevention: Does the institution have a process in place to respond timely to allegations of abuse or policy violations? Does the institution utilize a technology tool or application to support case and investigation management? Is there a process in place to provide regular, ongoing communication throughout a review and investigation to involved parties? Is there a process in place to communicate the results and remedies the institution will take to prevent future abuse and harm?
• Other resources and support: Does the institution have counseling and other mental health support for survivors? Do survivors know where to access support resources?

Most institutions make student safety and wellbeing a central tenant of their mission, and athletes are students first. Institutions that evaluate their athlete safety and compliance programs by asking the above questions and making the necessary changes when gaps are identified can keep student athletes safe and prevent future testimonies like the ones the USA gymnasts bravely shared on Sept. 15, 2021.

For more information, or to learn more about how Baker Tilly’s higher education risk advisory specialists can help your institution, contact our team.