The Baylor sexual assault scandal continues to move into new and novel areas. As perhaps it should. The latest is the request by the Big 12 for release of all documents related to the sexual assault allegations and investigation. “On May 24, 2016, the Big 12 Board requested a full accounting of the circumstances surrounding the sexual assaults at the University…This request is for written materials as well as any information that has been conveyed orally to University leadership or to its Board of Regents including, but not limited to, the unedited written or verbal information from Pepper Hamilton, omitting only the names of any involved students. Internal documents pertinent to the investigation have also been requested.”
Ok, let’s clear a few things up, first of all, based on all reports there is no Pepper Hamilton “report”, merely a findings of fact summation. Whether Baylor commissioned a full report appears doubtful at this point and Pepper Hamilton could not be compelled to turn over anything to any outside source. At this point, we have what we have, a summation, some board of regents minutes, perhaps some transcripts of other University meetings, and not much else. Second, the violations that have come to light to date involve violations of Federal Title IX provisions, no NCAA violations have been alleged at this point. Could violations of State or Federal law rise to the level that the NCAA gets involved, i.e. like the situation at Penn State? Sure. But the NCAA has stayed out of the Baylor situation for now. The Big 12, not so much.
At this point Baylor’s response could simply be for the Big 12 to go pound sand. The conference's ability to compel any institution to turn over internal documents is limited at best, especially at a private institution like Baylor. The Big 12 has no subpoena power and a Freedom of Information request wouldn’t help either. The Big 12’s only avenue for Baylor's non-compliance would some arbitrary punishment based on a failure to turn over documents that Baylor wasn’t and won’t be required to turn over anyway.
The Big 12 could, according to its bylaws, perform an NCCA rule compliance review of the University, but Title IX is a Federal law rather than an NCAA rule. The real teeth of the Big 12's bylaws comes from the leagues ability, with approval of a super majority of “disinterested directors” to sanction a member institution for, among other missteps, “engag[ing] in any action or a course of conduct materially adverse to the best interests of the Conference taken as a whole.” In addition there is a classic catch all phrase in the bylaws that allows the conference’s Faculty Athletic Reps or FARs to act on any situation not covered by the league bylaws.
As for sanctions those include, but are not limited to, prohibitions on appearance in postseason events or televised events, restrictions on revenue distributions, and limitations on recruiting or scholarships. So, another open door for a catch all. The bylaws are clear that those sanctions are only illustrations but that other sanctions may be contemplated and imposed by the league. Before any of that could happen, Baylor would need notice and a chance to be heard. Whether Baylor wants to be heard, i.e. questioned about the investigation is another matter.
Baylor would probably take a hardline approach to avoid further liability and choose not to disclose, have their day in Big 12 court and tell the conference to pound sand. The reason is simple, there are potentially dozens of lawsuits pending in this matter, potentially millions in damages, and even worse press than Baylor’s dealt with to date. Hard to believe but yes. Worse. Depositions, discovery of documents, everything is going to come out, or rather lawyers are going to try and bring those deep dark secrets to light. Still there's no reason to give potential litigants a free shot at whatever evidence exists as to Baylor's involvement or non-action in these horrible crimes. Make a Judge compel release of those documents under seal, but from a legal perspective there's not much benefit to releasing further incriminating evidence.
Still, at this point two camps have emerged, and a third camp, perhaps more inclusive of the practical implications is coming to form. Camp one, as advocated by Ken Starr (or perhaps as puppetted by Ken Starr via his handlers), is for full disclosure. Bring it all out, be transparent. Again, that's giving lawyers around the country a free nose dive into Baylor's misdeeds and worse, it could expose key information that the second camp doesn't want out for public consumption. The second camp doesn't want disclosure based on the idea that victim privacy is paramount, and rightly so, and that the release of documents should only be done if that privacy is insured. This is a valid point and also a key talking point for the third camp, the camp that wants to bury this and never speak of it again. Baylor would probably like to choose this path, it’s less expensive and less embarrassing. It’s doubtful that the Feds, the Big 12, the media or, most importantly, victims will let that happen.
Our guess is Baylor tells the Big 12 hell no, perhaps more politely and the ball then falls into the Big 12's court. What does the conference do? What can they do? Those conversations should be way more interesting than conference realignment.