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Domestic Violence and Sports

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Domestic Violence and Sports

Domestic violence and sexual violence allegations against professional sports players have appeared frequently in the headlines in the last several years – as have accusations that player’s governing organizations have failed to address or prevent these incidents. This course will explore the various legal systems and mechanisms that might be at play when a professional athlete is accused of domestic violence, the various approaches that the player’s organizations have taken to address and prevent domestic violence within player’s contracts and collective bargaining agreements, and takeaways for attorneys who might become involved in these cases.

Presenters

Ashley Carter
Supervising Attorney
DC Volunteer Lawyers Project (DCVLP)

Transcript

Shaun Salmon - Hey everyone, I'm Shaun Salmon VP of MCLE and Professional Development here at Quimbee. Today I'll be joined by Ashley Carter, the supervising attorney for the DC Volunteer Lawyers Project. Ashley is joining me to discuss the various legal systems and mechanisms that might be at play when a professional athlete is accused of domestic violence. She's also gonna talk about the various approach that the players organizations have taken to address and prevent domestic violence within players' contracts and their collective bargaining agreements. I am like really interested in this topic and I'm really excited to talk to Ashley today. Ashley, before we get started, is there anything else you wanna add about yourself or your experience before we like jump right in?

Ashley Carter - Sure, I'm really passionate about this topic. My interest in this field began while I was in college, working with individuals who had been survivors of sexual assault as they approached sort of the Title IX system and the other legal systems involved. And so I'm really excited to talk about this particular topic ranging from sort of how professional sports organizations have dealt with this issue to how collegiate sports systems have dealtSha with this issue. My day to day work is working with survivors of domestic violence and sexual assault and protection order cases. So we'll talk a little bit about all of the different systems that affect people in these systems.

Shaun Salmon - Awesome, thank you so much. So I think we should like just jump right in. So the first thing is just, you know, what are we talking about when we talk about domestic violence and sports and possibly even more importantly, why is it different from domestic violence within, you know, the regular population?

Ashley Carter - So it's not very different actually when you think about it, this is the same issue that impacts everyone who is a survivor of domestic violence, right? We have statistics on sort of the general population and also on professional sports players in terms of the rates of domestic violence among those populations. And both of those populations, we see a pretty similar rate somewhere between 20 to 5% of each of those populations commits domestic violence. And so we're not talking about a different rate or a higher rate, but we are talking about a little bit of a different situation when we talk about particularly professional sports systems and individuals who are accused of domestic violence within professional sports.

Shaun Salmon - So, I mean, I'm thinking that it's still like really problematic and can you like touch upon, you know, why that is?

Ashley Carter - Yeah I think that we particularly expect sports players to serve as role models within our society. These are people's heroes, you know, professional sports players reach millions of people every time that they play. They often have outside charities or are involved with charity work at other organizations. They're often given contracts to advertise products, particularly sports related products. So they are our role models as a society and the governing bodies of professional sports and collegiate sports, both sort of set that expectation.

If you look at their sort of codes of conduct, they set the expectation that their players will be held to higher standards. And so when we think about sort of these cases that are very high profile cases, where we are still expecting these people to be held very to high standards, when players walk away unaccountable for situations that has a significant impact on the public's view of how serious domestic violence is, and also on how governing bodies take it when someone has been accused of domestic violence. And governing bodies have not always necessarily supported accountability. I think there's been sort of a shift in the way that these bodies have responded to domestic violence in the last few years and we'll talk about that. But they haven't always been seen as responsible for holding their players accountable. And so I think that given the high profile nature of these individuals and these cases, the way that they're handled is really, really important as sort of an example to all of us.

Shaun Salmon - So Ashley, what governs the way that these cases are handled, what are the, you know, legal mechanisms that are set into motion.

Ashley Carter - So there are already a number of bodies of law that address domestic violence and just as any domestic violence case might enter those legal systems cases involving sports players might also interact with those legal systems. So you might start with the criminal justice system. If there is a call to the police, when a violent incident happens, the individual could face possible criminal charges. And those have, as we know the highest possible standard of proof beyond reasonable doubt, those are cases where there could be significant penalties such as jail time. So we have the sort of criminal justice sphere.

There are also some other places that particularly in domestic violence situations, you might have a case going in court, you might have the restraining order or protection order process involved. So a survivor of domestic violence or sexual assault could file for a protection order in court to keep their abuser away from them or to the abuser not to have any contact with them. So an individual could be involved in a case like that. There are also private settlement agreements, which are sort of contract negotiations that might exist or might happen between any of the parties. And that might govern some of the things that happen sort of in the future.

So you might have non-disclosure agreements as part of those settlement agreements whereby a survivor and the accused perpetrator may not be able to disclose what happened as part of that agreement, private contracts where people agree to a stay away or a no contact provision. And those you might see come back into court if one party violates that agreement and might reenter the civil system as like a contract dispute. So those might also govern the parties and what's been going on.

And then one thing we might not think about as frequently is the immigration legal system. We do have a number of international players involved in some of our professional sports organizations and for international players who are employed by American organizations there could be important immigration consequences if those players are not US citizens or do not have permanent resident status, especially if they are convicted of a criminal charge related to the domestic violence, there's a possibility that they could be deported or prohibited from reentering the United States as a result of that. So there are a number of different legal systems that might be involved in a case like that.

Shaun Salmon - Wow, and you know, what about the teams in the leagues what's implicated for them when a player is accused of domestic violence?

Ashley Carter - So probably most importantly to this conversation, the individual governing bodies involved in these cases have agreements with their players regarding their conduct. And they also have agreements regarding what happens when players violate those agreements. So these are what we think of as sort of the codes of conduct for players. And those are included in collective bargaining agreements, which are these contracts that are negotiated between the governing bodies and the players unions to govern both how a governing body responds to an accusation and what is expected of a player. It's important to keep in mind that the players unions are really there during negotiations for the purposes of protecting the players and the governing bodies are there to protect the interests of the team, right? And make sure that the sport as a whole is protected, but there's no one necessarily there to protect the victim's interests when these contracts are negotiated.

So these contracts are really there to benefit the organization and the players provide due process for the players and to make sure that the interests of the organization are protected, but there's not really a mechanism in place to protect what a victim's interests are. So it's something to keep in mind when we think about how these are organized. Many organizations have consulted with experts in the domestic violence field or in the victim's rights field to try determine if these agreements are appropriately considering victims and their interests. And when we talk a little bit later about the specifics of what organizations have put into their agreements most recently you'll see that there are some things that there're meant to assist victims, like help lines that are 24/7, that family members can call to report abuse. But it's important to recognize that these agreements really are meant to be between the player and the organization. Those agreements can provide for who makes the ultimate disciplinary decision when a player's agreement is violated.

They can also include what the arbitration process or appeals process might look like if a player disagrees with what's imposed upon them. And sometimes you'll see that because of the way these agreements work and the timing of the sort of implication of these agreements. We'll see multiple systems interacting at certain points. So a governing body might be conducting an investigation at the same time that the police are investigating and conducting a criminal investigation or a victim might file for a protection order and that might be the first time that a governing body is aware of the abuse. And so that causes the start of the investigation by the governing body. So a lot of times these are happening in tandem and they're parallel investigations to each other.

Shaun Salmon - So let's start with like the NFL, right? The Ray Rice case was so prevalent in the media. And for those who don't know the details, can you kind of do a quick, like, you know, run down what happened and how did it change things?

Ashley Carter - Absolutely, so for those who are unaware in 2014, there were reports that appeared in the media that Ray Rice, who is a professional NFL player had been charged with simple assaults against his then fiance Janay Palmer and Ray Rice's lawyer came out with a statement once the charges were filed and said that it was a minor altercation, he noted that both parties were arrested at the time of the incident. The charges against Ms. Palmer were dropped and the charges against Ray Rice were ultimately upgraded to aggravated assault from simple assaults. Aggravated assault, being a felony version of assault as is considered more serious. Ultimately Ray Rice did enter into a pretrial diversion program. And eventually as part of the pretrial diversion program that he entered into the charges were dismissed against him. And following the resolution of that case, the NFL did suspend Ray Rice for two games.

Now, seven months later, we have this sort of secret video almost that is released. TMZ purchased the video and released it on September 8th. And that video footage actually showed Ray Rice punching Janay Palmer in the face and knocking her out. There had previously been some footage released that showed Ray Rice dragging Janay Palmer out of the elevator. So that had been seen by authorities and that had been sort of released to the media, but this was brand new footage that no one had ever seen before. And it sort of confirmed the really violent nature of the offense and what had happened. And it was kind of incontrovertible evidence, right? There's a video of it happening. So at that time, the NFL immediately suspended Ray Rice indefinitely. And while he did appeal that decision and an arbitrator did rule in his favor that the NFL's second punishment should not have been put into place, that it was imposed arbitrarily and capriciously, and that he'd already been punished once for the same offense. He still hasn't played in the NFL since that time, there has never been a team that has played him.

And this really caused sort of a reckoning for the NFL. They released revised domestic violence policies in September, 2014, immediately in response to this and updated their player's personal conduct policy. According to the new domestic violence policy that they released a first time domestic violence offense would automatically warrant a six game suspension as a baseline, the commissioner could impose a greater suspension, you know, at their discretion. And a second offense would be an indefinite ban for at least a term of one year. So there were sort of more consistency in this policy about exactly what would happen when someone was found to have committed a domestic violence offense.

That policy was updated again as of 2016. And that provides that a player may be placed on administrative leave as soon as they're formally charged with a crime of violence, including sexual assault, or if the commissioner of the NFL has conducted an investigation and they have reason to believe that the player has violated the policy. So there is a more clear procedure for exactly what will happen when disciplinary procedures are put into place there's guidance for placing someone on administrative leave. So the investigation can sort of take place without this player going on the field, more clear guidance for how long a suspension should last and in cases where there has actually been a criminal conviction, the new policy does provide that underlying disposition can't be challenged. And that's just accepted as fact it's conclusive and binding and only how far the discipline goes is that issue at that time. One thing that's really valuable, I think about the NFL's new policy is that all players are offered an opportunity for an evaluation for treatment programs. I think that this is something that a lot of people fought for to be in this provision was that we do wanna address the root cause of whatever's happening and make sure that if players are suffering from a mental health issue or a substance abuse issue, and that's contributing to the abuse that we're really addressing that root cause. So that is a really beneficial procedure.

Shaun Salmon - And I mean, this might be like a little bit more of an opinion question, right? But do you think that the new procedures actually work better?

Ashley Carter - I think it is certainly a step in the right direction. You know, there's still a great deal of discretion in the hands of the commissioner at this point. There are, and we'll see sort of as we explore other policies there are provisions in some of these agreements for sort of third party bodies to be making recommendations to the commissioner, which can give them an outside perspective. But ultimately the commissioner is the one who makes the decisions and that sort of discretion is problematic to say the least, you know, there are any number of factors that could weigh on a commissioner that might not weigh on a third party body or some other organization that was allowed to determine what should happen here.

And that said the fact that there is a baseline for exactly what should happen for a first level offense. The fact that there is a baseline given for what should happen during a second offense, that is certainly better than sort of the wide ranging possibilities that we used to have. It could be, they could receive no suspension. It could be that they would receive a lifetime suspension. And it just depended on sort of what happened with the media and what everyone knew about the offense. As you can see, Ray Rice was only suspended for two games until there was a video released of exactly what happened. And it didn't necessarily appear that a formal investigation was conducted during the Ray Rice case. The NFL did investigate and did state it was investigating, but the steps that were taken were not made clear to the public. So I think that this does offer a different level of accountability.

Shaun Salmon - Sure, and I do see your point about the level of discretion that's placed in truly, you know, one person who changes over time, right? So not only does it change, you know, from a offense to offense and player to player and, you know, team to team, but it also could change just because there's a different commissioner in place who has different opinions and a different way of dealing with something. So I think that's really astute, thanks for sharing. How does, how have other sports governing bodies handle domestic violence allegations? Are there other examples that you can give us?

Ashley Carter - Absolutely, so after the NFL sort of had its reckoning and released its new policies, you really see the other or major sports governing bodies, mostly following suit with one exception that we'll talk about. But in terms of the NBA, for example, there is a collective bargaining agreement that does have a domestic violence policy in place. So that agreement provides for the process for investigating. It also provides for placing a player on administrative leave while that investigation takes place. The NBA is very interesting in that they have this long list of factors that are to be considered when you're determining whether to place a player on leave. So it doesn't have to be automatic that a player is placed on leave. This again, puts a lot of discretion in the hands of the governing body. So there are some factors like the reputation and character of the player that you can consider for whether or not to place someone on leave. That's not necessarily something that is a hard, tangible thing we can really think about. It's really the opinion of that one person of the commissioner or of whoever is making the determination and sort of those wishy washy factors make it harder to consistently implement this policy, I think, but there is a process for putting a player on leave. The players may actually challenge their placement on administrative leave, and there is an appellate process for that. But in the meantime, if there is a conviction or a guilty plea or a no contest plea, the NBA also provides that that is a conclusive establishment of a violation of the domestic violence policy that the NBA allows the defender, the defending player to try to disprove the offense. So unlike the NFL, there is an opportunity to say, well, I realize I pled guilty, but I will still attempt to disprove the offense. Not sure under what circumstances that would really happen, but it could under the collective bargaining agreement.

If convicted of a crime, the NBA does require their players to attend at least five counseling sessions as a result of that, which I think is also another benefit here under the NFL's policy, you have the option to attend counseling but here you have this requirement which I think is beneficial. And there is also a policy committee established by the NBA to provide for education and training for players and families. And there's also this 24-hour hotline for families and partners to access resources. So that's the NBA's approach to it.

The MLB has also taken an approach. They have a very clear definition of what they consider domestic violence of what they consider sexual assault and what they consider child abuse and have a very strong statement against all of those different offenses. Under the agreement, the commissioner can immediately place a player on administrative leave based on the fact that they've been accused of domestic violence or sexual assaults. And there's also an opportunity for a player to challenge that decision. They can ask for administrative leave for seven days and then ask the player's association to agree to an additional seven days for investigation. Now two weeks is not a lot of time to investigate these offenses. And so that is sort of a negative is that the leagues are not necessarily giving themselves a lot of time to really sit with the facts and look at all of the evidence which may have in this case contributed to something like the Ray Rice case where a full investigation may not have been completed and had that video come out earlier we may have seen a very different treatment of Ray Rice.

So I do think that one thing for the organizations to think about is how much time does it really take to investigate things like this. It's sometimes not very easy. There is a requirement in the MLB's policy that victims be referred to resources that includes forming a helpline. So if a victim does report to the governing body, they will refer the victim to resources to assist them. Again the commissioner is given the authority to deal with the discipline in this case, the MLB interestingly has said that individual teams can only act to discipline the player if the commissioner does not act for discipline. And sort of, I think that they see that as a way to prevent someone from being punished twice by both their team and by the MLB commissioner. But it is something to think about that individual teams don't have the authority to punish the person unless the commissioner chooses not to. And then the MLB also provides for a treatment board to investigate situations and impose conditions of treatment. And non-compliance with that treatment can be considered a separate violation of the bargaining agreement. So I think that that is an interesting way to ensure that the player is actually committed to treatment and goes through the process of that treatment, which again is really a way to address the root causes of domestic violence and make sure that we're not in this same situation again.

So that's, the MLB and the NBA took sort of similar approaches to the way the NFL did it. The NHL is sort of the exception to this rule. Their collective bargaining agreement does not have a comprehensive domestic violence policy. Any player can be suspended or punished if they are guilty of conduct that is detrimental to or against the welfare of the league. So I think that domestic violence and sexual assault could very easily fall within that definition, but there is no specific policy as to what happens if you're convicted of a domestic violence offense, are you suspended for five games, are you suspended for 20 games? There are no specific statements about defining domestic violence or sexual assault. So it does turn out that the NHL is really the only major organization in professional sports that has no domestic violence policy formally.

Shaun Salmon - I mean, I feel like I have a whole line of questioning on just that, and I'm not gonna do it because there's just like, there's a lot to unpack there, I mean, I feel like there could be a whole course on just that. But right, okay, so it's not just me that I like actually like had that thought, okay, cool, good to know, maybe we'll do that one next. But for now let's keep going on, you know, this vein. So would you say that one organization in particular should be a model for others? And I mean, what else, you know, could they be doing, or should they be doing to better manage allegations of domestic violence and sexual assault and like possibly moving forward even like managing what they do when someone is convicted?

Ashley Carter - Sure, I think any policy is better than no policy. I think taking a strong stance against domestic violence and sexual assault is really necessary to convey to the players that this is not accepted by the organizations. So any policy is going to be better than none. I think policies that focus on consistency, that sort of level across the board exactly what steps will be taken once an accusation is made that have fewer opportunities for the commissioner to sort of exercise immediate discretion, I think are better and stronger policies because those really lay out the expectations. I think that for a number of players due process is extremely important and certainly the players unions are there to protect their players. So a number of these policies do have sort of appeals processes, so that players do have access to that sort of due process process, I guess you could say.

But on the other hand, it does allow for different players to be treated different ways. And so I think that consistency is really important for all of these organizations across the board. I think the policies that create help lines for families or ensure that victims are referred to resources that is really essential, making sure that victims have access to someone outside of the organization who can give them advice, who can talk to them about their options, who can guide them through the process is incredibly important. You know, these are cases that because of media pressures, because of the high profile nature of them, it creates a lot of pressure on the survivor. And we want to make sure that that survivor never feels pressured to recant, never feels pressured that the organization is going to ask them to do something or is going to involve them in the investigation in a way that they're not comfortable with. So we wanna make sure that we're also referring to resources outside of these organizations as much as possible. So anything that creates a third party organization or provides a helpline for victims to access resources, I think is essential for these policies. I think that overall what we want is accountability and consistency in these programs.

Shaun Salmon - And, you know, we've talked a lot about how men's organizations have handled domestic violence, what about women's organizations?

Ashley Carter - So absolutely women's organizations also have to reckon with domestic violence allegations. And I think the prime example of that is the WNBA, they faced two pretty high profile DV incidents in 2019. And at the time they also had no formal domestic policy in their collective bargaining agreement. So there was no sort of formal statement about what domestic violence is, what sexual assault is. There was no specific process for how to deal with accusations, putting people on leave so they did renegotiate their collective bargaining agreement in 2020 and there is now a domestic violence policy included. It kind of mirrors the NBA's policy. There's that same sort of policy committee, same kind of counseling requirements for everyone who's convicted of offenses. There's a 24 hour hotline that's provided to survivors. But I think that the fact that that was only put in place in 2020 really speaks volumes about the assumptions of the public on whether women can be the aggressors, whether women can commit domestic violence. I think that the WNBA has had a number of high profile domestic violence incidents even before 2019. And it's kind of shocking to me that they had not adopted this policy before now and a number of the incidents that the WNBA has been involved in do involve same sex couples. And so there are some barriers there to accessing services for members of the LGBT community. And so I think that there was certainly barriers to involving this policy in the first place, but I think that hopefully with that new policy in place, the next time the WNBA encounters this, they will also have consistency in the way that they're treating their players.

Shaun Salmon - I think something that you just said actually strengthens the argument for the need to, you know, like develop hotlines and have access to resources specifically for, you know, people who have, who are victims in these situations because you mentioned that, you know, there is a barrier to accessing service for the LGBTQIA community. And I think that, you know, there's something there, if the WNBA put those types of resources in place or the MBA, right, same sex couples would have a better chance of accessing resources than they might elsewhere. And so I think that actually, that's an example that really strengthens the point you made earlier. So what's different about this at like the collegiate or university level, the colleges and universities have any procedures in place to address sexual assault allegations involving student athletes. I mean, I know this is a loaded question.

Ashley Carter - So the answer is yes, and it's complicated. So we have sort of multiple things governing collegiate sports, right? We have the NCAA, which is, has its own policies and procedures in place to address things that happen within the court system. We also have Title IX. So for those of you who are not as familiar with Title IX, Title IX is the federal legislation that prohibits discrimination based on sex within colleges who receive federal funding. Title IX has sort of proliferated and grown as a mechanism for holding individuals accountable for sexual assault and domestic violence offenses. And so there is this process by which individuals who have been survivors of sexual assaults or domestic violence on campus can report their offender to a Title IX investigator who can then conduct an investigation into what happened and can impose penalties on the individual based on their findings. So somebody could be suspended from school or expelled from school. There could be a no contact order on campus that's put into place. And so schools have this process for investigating things that happen within their campus boundaries, or is committed by someone who is a student at the school.

So in addition to the NCAA having its own policies, you have this Title IX system, and then you also might have any of these other legal systems involved, right? You might have a survivor who filed both in the Title IX system and filed for a protection order or who filed in Title IX and also has an ongoing criminal investigation. So there are all of these systems still interacting with each other here. And when athletes go through the Title IX system and they're adjudicated involved in an offense, or if they're convicted of a crime, as I mentioned, they could be expelled from school or suspended, that would make them ineligible obviously to play sports at the collegiate level at that time.

But the problem that you have is somebody could come back and begin playing sports again, or they may also try to transfer to other schools and often end up playing at those other schools. USA Today did a pretty major investigation on this in December, 2019 and found that the NCAA had no policies in place that imposed penalties for misconduct, violent criminal misconduct, like domestic violence. And oftentimes what would happen is when someone applied to transfer to a different school to play there, the school did not obtain a background check of the athletes who applied to transfer. They did not ask the athletes if they had ever been convicted of a crime and so they were not looking into what had happened and they were often bringing players on campus and recruiting them in fact to play sports without sort of checking to see if there had been any violent history. And so there were several lawsuits filed by students at these universities who were then assaulted by these players and said the university should have known, should have investigated whether or not these people had been convicted of violent crimes, which often they had. And so that investigative piece really caused a reckoning, I think also for college athletes.

Shaun Salmon - Absolutely and I mean, of course there's a whole element there that's just like, you know, what duty do you owe the other students on campus? It's like, so interesting. What do you think they can do to reduce the incidents of sexual assault by student athletes?

Ashley Carter - So there are already some changes that are taking place based particularly on that USA Today investigation, which I really encourage everyone to read, it's fascinating. It's led to congressional calls for an independent study of the NCAA's practices and policies. The NCAA has also already implemented many changes to its policies based on this investigation, there is now a requirement that schools must affirmatively ask the players to verify on an annual basis, if they've ever been convicted of an interpersonal offense. So domestic violence or sexual assault. They need to conduct their own background checks to ensure that players are not eligible to play if they've committed violent offenses. And so the onus is really on the schools now to comply with these regulations and to make sure that the students that they have playing are not students who are a danger to others on the campus.

I think some of the other things that we can do are make sure that the NCAA is really holding schools accountable when they fail to comply with that provision, the policy right now states that schools who failed to comply are ineligible to host an NCAA championship for the next year. That does not feel like a policy that has a lot of teeth, or has a lot of penalty for schools who fail to do this particularly schools that normally wouldn't be able to host a championship anyway, due to size or something like that. So it feels like we can probably do more to make sure that schools are enforcing this policy and actually checking. And hopefully, you know, as these lawsuits have continued to move through the system, some of them have settled, but I think that we can continue watching to see what happens to make sure that schools are held accountable. The other thing that I think we can do is make sure that schools are implementing sort of anti domestic violence and anti-sexual assault training throughout the, you know, four years of an athlete's term, five years if they have an extended term. That's something that many schools do already, but making sure that we are consistent in providing that training and education, I think is essential.

Shaun Salmon - Yeah, I mean, I find the annual affirmative, you know, I guess almost like an affidavit, right? You're basically just saying, like, I'm like confirming here that I have never, you know, been convicted of a sexual assault, but I find it interesting, there's a couple things. First one is, so I mentioned to you earlier offline that I am the sibling of a couple of division one athletes. And my sister in her freshman year alone got pulled in the like lottery for drug testing, four separate times. Like her name just got called four times. And so for a second, when you said the annual thing, you know, I was like, wow, annually, they have to do this annually. And then I thought about how many times my sister had to just like, tell them that she wasn't like doping to be a competitive cheerleader, by the way. And I was just like, oh, no, actually like annually is probably like the least they can do, right? And they're only talking about, I mean, they're only talking about convictions, right? So like, is there anything that any school, I mean, you might not know the answer to this actually, but like is there anything that any school is doing to talk simply about like allegations and like what an allegation might mean on like a more routine basis?

Ashley Carter - So the NCAA hasn't put anything in place that requires that. What I would say is this, we really need to encourage our schools to make their Title IX systems as strong as possible, and to make it as easy as possible for survivors to report this, right? Because if there is an active Title IX investigation, that's really when the sports organizations are gonna find out about this. And that's the easiest and quickest way to get results, really because the criminal justice system, as I think, you know, many attorneys are familiar with runs very slow, does not always provide what a victim would see as justice. And so I think that it's really important for us to consider the Title IX process and what it can do for survivors and how much more quickly it can act.

I think that making it easy to report an offense, making it possible to anonymously report an offense so that even if a survivor doesn't wanna be involved, but just wants to say, someone needs to take a look at this. Something is wrong here, really strengthening those systems and making them available to survivors. I think that is really the best way to make sure that even if it's just an allegation that someone is aware of what's going on and oftentimes, you know, we see that abusers in power and control situations, you know, are committing these offenses more than once. There may be multiple victims involved. And so in a case like that, where someone wants to report anonymously, just triggering that investigation may open up other doors to other survivors that have never reported. And so I think it's essential that we really strengthen those systems on campus.

Shaun Salmon - Okay, so I have two other follow up questions for you, sorry to derail us, but you're like just fascinating. So the first one is, you know, in terms of the like drug testing lotteries, that a lot of major schools do simply because they're giant, right? They have so many athletes, so they just put their names in the lottery and just, you know, we're drug testing you, right? And you sign up, like when you become an athlete to say like, oh yeah, like you can drug test me any time to make sure that I'm not like taking steroids or like, you know, smoking pot on the weekends with my friends, whatever it is, right? And so has any school explored that idea of like a lottery for this type of like for any violent allegations where there's a way to more, I guess the word is like clinically to more like clinically track what that athletes are doing.

Ashley Carter - I think it would be much harder in a situation like this than it is for drug testing, right? Because you, there is a test for it, right. You know, you provide whatever sample and you test it and you're done. It's really hard to litmus test whether these things are happening and you, you know, some things important to think about in any context, you know, survivors of domestic violence often are terrified for good reason of reporting offenses. They, you know, when we think about the amount of times it takes someone to leave a violent situation it often takes a survivor five to seven attempts to leave the relationship before they finally are able to leave. And so it can place them in a lot of danger to be asking these questions. If you are saying, you know, if the litmus test is report to us who your last six relationships were, and we're gonna go ask them if anything violent and happened in your relationship, you know, you may actually be putting those people in danger because then the abuser's going to say, I put you down. And if you say anything, I'll kill you, something like that.

Right, so it is much more dangerous because the victim is involved as well. And it can put them in danger, even if they've left the relationship of suddenly being approached by this person again. So it's really important, something that we think about a lot in victim services is to empower the victim to make that decision whether she wants to report or not. And to never pressure someone into doing that because they are much more familiar with their situation than we are. They're the person who knows how dangerous this individual is to them. And so it's much harder for us as third parties to say, well, you should report when we don't really know the circumstances of that, right? And we don't know how much physical danger they might be in. Now, certainly we want to make it as easy as possible to report. We want to make it as safe as possible to report, but sometimes you can never make it safe enough for someone to feel comfortable.

The other thing is we were really don't want to invade anyone's privacy, particularly in situations with sexual assault. It can be incredibly difficult to recount those allegations and to give details about that. And so we never wanna force someone to come forward with something like that. That may also retraumatize them, you know, we wanna protect their emotional stability and security. And so we wanna make sure we're only conducting investigations in a way that makes the victim feel comfortable and that they're ready for. So while it's much easier to drug test, because there's no third party involved and we can sort of collect a sample and just be done and know exactly whether or not it happened, it's much harder to investigate situations and keep everyone safe.

Shaun Salmon - Thank you, I mean that is sort of the direction I assumed you would go in, especially with, you know, the safety and privacy concerns, but I just figured I'd ask. My other question is this actually, it does go back to, to the comment you made earlier about transfer students and how like schools don't even do necessarily the due diligence of like background checks. And you mentioned like different things that the NCAA has taken, like steps they've taken now such as like the, you know, affirmative annual reporting, but have there been any steps taken or any requirements put in place that, you know, requires schools to do more digging into their transfer students before, you know, they put them on a team.

Ashley Carter - So I believe there is now a requirement that they must affirmatively go and get background records for students, or at least request that the students provide them. Now, if someone is really, really determined to hide their past and hide who they are, there are ways to do that certainly, but hopefully we're in a position now where the NCAA recognizes that this is a consistent problem, right? This is not a one time issue. This is multiple players who have been convicted of criminal offenses, which are pretty easy to find if you background check someone that suddenly ended up at new schools committing new offenses against new people while they were still playing, you know, division one sports. So it's not particularly difficult to access these records when you're and admitting somebody.

And that is really, it's not just on the sports teams, right? It's also on the college admissions teams to really make sure that we are asking sufficient questions that we're asking people to provide a background check. And, you know, sometimes people don't wanna ask for that. I think it's reasonable to make sure that you are only admitting students who are safe to bring onto your campus. And sometimes that's impossible to know. You may have just allegations, you may have just arrests but never convictions for something. And because we do value due process, and we do value that people have an opportunity to defend themselves against allegations we don't want to, you know, take an offense that doesn't have a conviction and use that against someone for the rest of their lives. You know, we think about sort of the things that are in the national conscience right now around criminal justice reform and police brutality and sort of police investigations that maybe are not it necessarily on the up and up. There's a lot going into what's happening with past charges, with past arrests. And we don't want to ever violate someone's due process or, you know, take someone who's made a mistake in their past and refuse to give them a second chance. But we also want to make sure that everyone on campus is safe. We wanna make sure that we are holding people when we say that we're holding athletes to a higher standard, we wanna make sure we're actually doing that.

Shaun Salmon - Yeah, I mean, and again holding athletes to a higher standard or just, you know, the standard is actually I think something that might be up for debate, right. So--

Ashley Carter - Right.

Shaun Salmon - That's really interesting, thank you. And I mean, this is just, this is also just like a random follow up, but you know, companies like mine, right use third party like background check systems and everything. Would it be important for like, or do you think it's important for like a third party background check mechanism to be in place for any athlete going to any school, it doesn't have to be, you know, like a power player, you know, big 10. It's just the concept that maybe there needs to be like an outside burst that does this. There's all these legality arguments about whether or not athletes are, you know, employees of the school because of how much money they bring in, right. How much money their team actually makes the university. So like, is there an argument for treating them from the like hiring side a little bit more like an employee with a third party background check.

Ashley Carter - So I think it really, honestly, I think it could apply to anyone across the board, right? Why don't we check all students' backgrounds, if we care about maintaining safety and stability on our campuses, right? Why don't we say anyone who's ever been convicted of a violence, sexual offense or domestic violence offense is gonna have to explain that to us before they're allowed on campus, because this is dangerous. You do have some issues with things like, for example, juvenile records are sealed. You're not gonna be able to access those. And for good reason, you know, we treat children differently than we do adults. We expect that children will behave differently, have sort of different thought processes and don't have fully formed brains so when they commit an offense, we treat them differently.

And there's actually some really interesting research on what happens when a child commits a sexual offense and then you put that child into counseling it's incredibly effective at preventing recidivism, whereas in adults, that same counseling is not. And we don't have a lot of sort of data or analysis on why that is other than just children are different children don't have fully formed minds. Children don't necessarily understand the consequences of their actions, the way that adults do. And so we do treat them differently. And when you have someone entering a college level, that's the first time that these offenses, you know, have been sealed behind them once they turn 18, you may not have access to that information and there may be good reason for that. But if you as an adult have been convicted of a violent crime, I think that there is every reason to provide that information to the school and for the school to have access to that information before they decide that it is safe to let you on campus.

Shaun Salmon - Awesome, yeah, I totally agree with you. And I love the, you know, the bringing in the children and fully formed brains. And thank you for sharing that piece of research on, on how effective therapy is, 'cause I think that's like a great point and I do think you're right. Yeah, well, you know what? Kids are malleable. Like they learn and they absorb and they grow and they are not every child is perfect and no one is perfect, but not every child is perfect, but children really have a great capacity for . Just think about, you know, like how much easier it is for a child to learn multiple languages than it is, right? And that's why they start now when they're like four instead of in the seventh grade, 'cause your brain is already like, I don't understand this language .

Ashley Carter - So much more effective, wish they'd started me at age four.

Shaun Salmon - Me too, me too. Yeah, I totally agree. All of the languages I've attempted would be much further along at this juncture. So, okay so, you know, talk to me a little bit about what attorneys should know about, you know, how to navigate the intersections between the criminal justice system, the civil legal system and like, you know, these kind of pivoting back like collective bargaining agreements, right? 'Cause we spent a lot of time with students. So we go back to grownups--

Ashley Carter - So most of these collective bargaining agreements are going to consider a criminal conviction to be a clear violation of the code of conduct as they should, that's right, that's that highest standard. The beyond a reasonable doubt legal standard. So if there's a criminal conviction or guilty plea most are going to let the criminal justice investigation and process take precedence. And so there is going to be sort of an expectation that a criminal conviction will be the final say, but there is you know, sometimes this parallel investigation taking place and there's no fifth amendment privilege for an interview conducted by your governing body.

So it's important for to understand that agreements handle cooperation sort of differently. Some require the player to cooperate some allow the criminal investigation to proceed, but might have the player in sort of that administrative suspension limbo during that period. So any attorney representing somebody who is sort of been accused of this, you know, something to be aware of is the fifth amendment privileges and implications the criminal implications of this and just being aware of those interplaying processes. Most of the time there is going to be some administrative leave period put into place so that the player cannot play during that period that does allow for greater due process as the full investigation takes place. The player does continue to be paid usually under the administrative leave and is not formally suspended from play, but is not playing. And the governing body has time during that period to really investigate.

There are going to be arbitration processes or appeals processes when there's a disagreement. So a player is usually able to challenge the discipline that has been imposed if there's a basis to believe that the ruling was not done properly. But again, that's sort of the other side of the fact that the commissioner has all this discretion, right? Is that the discretion is given to the commissioner. So if you don't like the commissioner's ruling, that's not really a basis, right? The commissioner has that discretion. So you really need to show that there's something arbitrary or capricious. Now the standards are lower for finding a violation of the collective bargaining agreement than it would be in the criminal case, you know, there's a sort of good cause standard that's generally cited to in these CBAs. And obviously a criminal case is beyond a reasonable doubt so there's no need for a criminal conviction or proof beyond a reasonable doubt to find that a player actually did violate their collective bargaining agreement.

And in terms of the sort of standard of proof, we're thinking good cause we're sort of thinking maybe like a preponderance of the evidence as a lawyer would think of it, right? More likely than not that something happened. So if you are representing a player that is just something to be aware of. In terms of the players who are ordered to complete treatment, you can be punished for failing to comply with that treatment. And I think that does make these agreements stronger. It makes sure that if we do have reason to believe that there are underlying or things impacting the player that those root causes are being addressed. And it's important to recognize that a player who's not willing to comply with a treatment plan may find themselves punished again for failing to comply. And then finally, well the victim as I mentioned is not really necessarily involved in this process and particularly in the disciplinary process, the governing bodies are probably going to want to involve the victim in the investigation. They will probably want to talk to the victim or talk to the victim's attorney and so if you are working on behalf of the victim in this kind of scenario, you should expect to be part of the investigation. And it's really important to think about ways to protect your client's interests.

Shaun Salmon - So what do you think players organizations, leagues or teams can do better to prevent sexual assault and domestic violence by athletes in the first place?

Ashley Carter - So I think first and foremost, and this is of a national conversation that we're having is that I think we need to be a aware of the root causes of domestic violence, mental health issues, drug and alcohol abuse issues. Frankly, you know, we see domestic violence as a power and control offense and it is. So understanding those power and control dynamics and the way that they can impact people. People may have been victims of abuse or violence themselves as children, as young adults. And those cycles often come back to haunt us. So those can be a contributing factor to abuse.

So I would say if players have experienced trauma in their life, if they have suffered from a mental health issue, if they have suffered from drug and alcohol abuse issues, making sure that we are giving players resources, making sure that we are like actually making sure they comply with treatment plans, as many of these agreements do that can be a huge, huge impact on the way that these players move forward and sort of act in the future. And I think that addressing root causes of domestic violence is really the way that we stop these offenses from happening. I think we also, we sort of live in a, you know, particularly for athletes, I think there's power and control and the ability to execute is celebrated on the field. There is sort of a level of violence that is accepted and celebrated among our sports teams. So I think we should also make sure that we're also valuing other qualities that athletes have leadership ability, the ability to have someone look up to them and sort of see them mentor, you know, making sure that we're celebrating those other things and really allowing athletes to be role models for other reasons as well.

Shaun Salmon - I think you're very much right that there is, there is like a powerful quality to any athlete and any sport. And perhaps we don't tell athletes enough like that they're valued for other things and that definitely can manifest and come out in different ways. So we have about five more minutes here. So my last few questions are like a little bit more in the vein of like wrapping up, right? The first one is, do you have like a top three or are top five takeaways that you would want a practitioner watching this interview to take away from today?

Ashley Carter - Yes, so number one I would say for practitioners, be aware of the media in these kinds of cases, the media is not your friend. It will want to investigate and question witnesses that you may not have talked to yet. It may, you know, the media may approach your client and you know, there are ethics rules that prevent other attorneys from approaching your client when the client is represented, those rules don't apply to the media so they can reach out to your client they can reach out to the opposing party, they can reach out to witnesses. So if you have a high profile case like this, I would say the number one thing to say is, tell your client not to talk to the media, try to speak to witnesses before the media can get to them. And as much as possible, you know, we never want to keep people quiet. We never want to say you can't talk to anyone, but it's really important for you to be on top of all of the facts of the case so that you're not being surprised in the media as well, right? I guarantee that the attorneys representing Ray Rice were not happy when the video came out and were very surprised to see it and see what it showed. And similarly, the lawyers for the NFL were probably very surprised to see this video.

There were some questions later as to whether the NFL had seen this video before and they stated they had not, but the media was able to find it. And so be aware of the media. It can be very helpful, but it can also be very hurtful. The other thing I would say, you know, be aware that there are always going to be sort of parallel investigations happening. There are a lot of different systems interacting and figuring out sort of, if you can consult with someone who's a special, you know, has a specialty in protection orders for a protection order client, if you can consult with someone who has Title IX experience, if your client's involved in the Title IX system, if you can talk to somebody with criminal experience who can assist you sort of in navigating that process, you know, no one can be an expert in anything and everything at the same time. So, you know, if someone has engaged you to represent them, I think it's important to know that you can't always be the expert. And sometimes you're gonna have to consult someone who's more familiar with that system than you are. I, for example, have very, very limited experience in immigration law. And so if a client came to me and said, well, is he gonna be deported? If he's convicted of this, my answer is, I don't know, but let me talk to some in my office who does know the answer to that because there is someone else who does. And so use your resources, make sure that you are figuring out how to navigate all of these separate systems.

Shaun Salmon - Awesome, and speaking of resources. So Ashley has given a bunch of resources at the bottom of her materials, but Ashley I'm super curious, like, do you have a favorite terms of, I know you mentioned like a really interesting study by USA Today, right? It was USA Today that you mentioned earlier, okay. I didn't wanna misspeak and make USA Today mad or someone else mad. Do you have a favorite resource though? Like what what do you love to look at for, you know, in your practice?

Ashley Carter - Oh gosh, that's a great question.

Shaun Salmon - thanks.

Ashley Carter - Specifically on this issue, I did find the NCAA investigation that was conducted by USA Today to be really fascinating. I have linked it. And so everyone should have access to that. Please read it, it was such an interesting read. I think, in terms of understanding what's going on in collegiate sports I think that understanding the Title IX system is really important for anyone who ever interacts with collegiate level systems at all. And so I would look for resources that explain how Title IX works. And if you're at a particular university, working with a particular university, take a look at their Title IX system, figure out who their Title IX coordinator who their investigators are those people are gonna make a huge difference in how the case works. In terms of protection orders, the Women's Law Center is a great resource for understanding, you know, there are 50 states and they all have very different systems for how a protection order works, what a protection order can order, you know, what custody and family law provisions might be able to be included in a protection order versus have to take place sort of outside of that system. Different, you know, systems might address stalking versus sexual assault, protective orders versus domestic violence, protective orders. Sometimes they're all one thing. So state by state, it's gonna be very different. And so understanding your jurisdiction is gonna be essential. And if you practice in multiple jurisdictions, you know, make sure you understand how different those systems are.

Shaun Salmon - Awesome, thank you so much. And so I would say let's wrap it up with this, Ashley, like where can people find you? Do you wanna, you know, shout out anything you write or do, or your Twitter, Instagram, and you know, like any contact info, should you so choose so that people can ask you follow up questions.

Ashley Carter - Sure, so I, as was mentioned earlier, I'm a supervising attorney at the DC Volunteer Lawyers Project. If you have questions for me about anything that you heard about in this program or you'd like to follow up my email address is [email protected] as in DCVolunteerLawyersProject.org. I'm happy to follow up with you answer any questions you may have. You can also find me on LinkedIn I'm pretty available there. And DC Volunteer Lawyers Project has a lot of resources if you are in the DC metro area and are experiencing domestic violence, sexual assault, stalking our clinic hotline is widely available. If you are an attorney who's interested in volunteering with us we do provide many opportunities for pro bono attorneys. So if this is an area of law that interests you and you'd like to get more involved, we are always happy to train new pro bono attorneys in the DC area and happy to have you with us. You do not have to be barred in the district of Columbia to assist us. So if you're interested, please come volunteer.

Shaun Salmon - Awesome, Ashley, thank you so much. This was so illuminating. It was really lovely to speak with you. And honestly, like I would do this again anytime. You're always welcome back to speak with Quimbee and I hope you have a great rest of your day.

Ashley Carter - Thank you so much, Shaun. It was great to be here, appreciate it.

Shaun Salmon - Bye.

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