In years past, the general counsel, director of athletics, and compliance officer at a college or university could manage legal risks by focusing all efforts on avoiding NCAA violations and the costly investigations and potential penalties that accompany them. That has now changed. As recent headlines attest, the risks are now multi-faceted and the regulatory issues facing an institution’s athletics department, such as NCAA or Title IX violations, increasingly overlap with issues involving criminal law. As a result, colleges and universities face unprecedented challenges in managing their athletics-related legal risks.
This challenge is compounded by the fact that most of the legal issues presented by the intersection of college athletics and the criminal law are brand new. As a result, there is no definitive answer to be found in the traditional sources—statutes, case law, NCAA bylaws, or administrative guidance from federal and state governments.
There are, however, certainly guideposts. Below is a discussion of some of the key legal issues that arise when an institution finds itself investigating a matter that straddles college athletics and criminal law.
The NCAA, the Feds, and the Constitution
One does not have to go far to find examples of instances where schools have found themselves navigating an investigation with wide-ranging legal implications. Recent investigations by both the NCAA and the Department of Education’s Office of Civil Rights (OCR) have beleaguered athletics departments and cast a shadow over entire institutions.
Title IX issues often manifest themselves in the form of criminal activity—sexual assault and violence—so they also draw the attention of law enforcement. The Department of Justice and FBI recently indicted college basketball coaches for alleged violations of NCAA rules. Setting aside the validity of those indictments, it is now the case that any NCAA rules violation involving the exchange of money can be criminally prosecuted..
Thus far when these issues have arisen on a college campus, the risk of criminal enforcement has been limited to the individual(s) believed to have committed the alleged crime. Schools routinely investigation alleged violations of NCAA and Title IX regulations as well as violations of their own internal policies, regardless of whether the alleged conduct has attracted the attention of the NCAA, OCR, or law enforcement. That has not changed, but schools now conduct these investigations with the knowledge that they may be required or choose to share the evidence uncovered with another regulatory or enforcement body.
In this environment, a school’s access to information and its ability to disclose it to third parties is less simple and straightforward than in the typical case involving a mere rules violation. The facts discovered in these investigations may be considered to be evidence of criminal activity and must be gathered by a public institution in a way that considers both the integrity of any parallel law enforcement investigation and the individual rights of those being investigated. Even the most circumspect process in such investigations can easily trigger constitutional violations or compromise the ability of law enforcement to do its job. Prudently identifying and dealing with these issues must take place from the investigation’s outset.
Witness statements, the 5th Amendment and a case called Garrity
When schools learn about conduct that may constitute an NCAA or Title IX violation, their inclination is to begin the investigation immediately—often by identifying relevant witnesses and conducting interviews.
For public institutions, witness interviews present unique challenges. Almost all schools have rules that require employees to cooperate with any investigation or face the possibility of termination. But if the investigation touches on criminal activity, that employee may be advised by counsel to assert his or her Fifth Amendment right against self-incrimination and refuse to be interviewed. This approach would obviously hinder the school’s ability to conduct a prompt investigation and cooperate with the NCAA or OCR.
One way to address this concern is by advising a potential witness of his or her Garrity rights prior to conducting an interview. In essence, a public employee’s Garrity rights allow her to participate in a compelled interview with her employer without waiving the right against self-incrimination. The institution also cannot provide the information to law enforcement for use in a criminal prosecution of the employee. This protection comes from the United States Supreme Court’s ruling in Garrity v. New Jersey, which held that public employees’ statements, made under threat of termination, could not be used in a subsequent criminal prosecution.
Garrity provides powerful protection for any employee interviewed in the types of investigations discussed here and is an important tool to assist the school in conducting the fact-finding portion of its investigation. Although the employee may remain steadfast in her assertion of her Fifth Amendment rights, the institution may terminate her employment once she has been properly advised of 1 – her obligation to cooperate and be interviewed; 2 – the fact that she will be terminated if she refuses; and 3 – the fact that none of the statements she makes in the interview will be used against her in a subsequent criminal proceeding.
In the instance of a sexual assault that results in a Title IX investigation, state or federal law, or a memorandum of understanding (MOU) with local authorities, may require an institution to report the allegations to local law enforcement. Institutions should consider whether their required cooperation is limited or affected by Garrity. The answer is usually yes, but to maintain cooperative relationships with law enforcement and other regulators, schools should ensure that their policies are transparent and, where an MOU is in place, craft provisions that specifically address Garrity. The doctrine was birthed from internal police investigations, so it is a familiar concept to law enforcement.
Texts, tweets, emails and the 4th Amendment
Federal and state law enforcement proceed by seeking statements from witnesses and relevant documents from anyone that might have them. Their search for documents is routinely done by issuing subpoenas. Most often, those documents are stored digitally — on cell phones, electronic notebooks, and laptops. Schools often issue such devices to employees at the beginning of their employment.
If a school receives a subpoena from law enforcement, it generally must comply. But where an employee has a vested privacy interest in a device being subpoenaed, the school, as a government actor, must comply with the Fourth Amendment in responding to such a request. This is even the case if the electronic devices are owned by the institution
In most investigations, an institution will have already collected information such as texts and e-mails from relevant personnel, but its ability to turn them over to the government in response to a subpoena will usually depend on whether 1 – the school previously explicitly advised the coach, administrator or employee that the content of the school-issued devices could be subject to search; or 2 – the employee consents to a search of the device.
The notice given by the institution must contain an explicit warning that the employee had absolutely no privacy interest in the devices, even if permitted to use them for personal reasons. Such warnings are best when given in writing and signed by employees at the time the devices are issued. Some schools supplement these warnings by language or “banners” to which each user assents each and every time he or she logs into a given device. This can be made a standard provision of an employment contract as well.
An institution may also hand over any requested communications if an employee has given knowing and voluntary consent without compulsion by the school. Any such consent should be in writing and explicitly state that it is voluntary.
Conclusion
Parallel regulatory and criminal investigations are a new reality in higher education. Schools must think proactively by instilling employment policies and investigation templates that better facilitate complete cooperation with law enforcement.
Tenley E. Armstrong and Brandon K. Essig are partners at Lightfoot, Franklin & White LLC in Birmingham, Alabama where they practice in the areas of NCAA compliance, white collar criminal defense, and corporate investigations.
