Baylor Dodges Scrutiny Thanks to Sark's Drunken Outburst

Over the past several days there have been two "scandal" stories in college football -- Baylor football player Sam Ukwuachu being found guilty of raping a fellow student while still on athletic scholarship and USC's Steve Sarkisian getting drunk at a booster event, dropping the f-bomb and denigrating several opponents by saying they sucked. As stories go, one is serious and the other is about a guy who got drunk and spouted off at a booster event.

Which do you think got more media attention?

It was Sark being drunk, by a landslide. Over the past several days we've received Sark's public apology for his conduct, we've seen video emerge of the incident, and we've had the post-video reaction, with Sark removing alcohol from the coaches' locker room and saying that he would receive treatment of some sort for alcohol issue.

Oh, and mixing alcohol with medication was involved too. That's four days of intense coverage of a coach who got drunk at a booster event. A booster event, mind you, that was filled with other drunk people. That's what these booster events are, an opportunity for fans to get drunk and rub elbows with athletic department coaches and administrators, all while being buttered up for more donations. You know what the best lubricant for college football donations is? Winning. You know what the second-best lubricant is? Alcohol.  

But Sark's drinking knocked the Baylor story out of the lead scandal position, which is absurd. All it takes to make us forget about a rapist on scholarship is a drunk coach in a major media market? God help us. To its credit, Baylor has also managed to turn a story about what we definitely know -- the school kept a charged rapist, Sam Ukwuachu on athletic scholarship and planned to allow him to play this season if he wasn't found guilty of rape, and turned it into a debate about a detail that will only be significant in a potential negligence lawsuit, namely, what did then-Boise State coach Chris Petersen tell Baylor coach Art Briles about Sam Ukwuachu's past? That detail's a red herring and doesn't change what we know.

So why the discrepancy in story attention? 

Sark's story had video and wasn't complicated. Oh, look, a coach got drunk and said things that aren't even that inappropriate. I mean, are people really upset about a coach dropping the f-bomb in public? Do you watch live sports on television when sober coaches use the word fuck as subject, verb, adjective, and command? Have you not been long accustomed to the rubber chicken speaking circuit when coaches trot out all measure of jokes at their rival's expenses? This is the most tame drunken tirade I've ever seen.   

As my friend the comedian Josh Wolf said, "We're a society of sound bites." Unless there's video or audio of something, it vanishes into the oblivion of news stories. Which is crazy, because let's review and consider what we actually know about the Baylor rape case:

1. Baylor conducted a Title IX investigation that found Ukwuachu didn't rape his fellow student, a soccer player on campus. 

Let's talk a bit about Title IX investigations, they operate in a weird hybrid space, the university is charged with determining whether a crime occurred, but instead of applying the criminal "beyond a reasonable doubt" standard they apply the civil suit "preponderance of the evidence standard."

Now "beyond a reasonable doubt" is a term of art, we don't actually know what it means, but all members of criminal juries are charged with applying it. What percentage of certainty does beyond a reasonable doubt require for you to convict someone of a crime? Is it 95 percent guilt, 99.9 percent guilt, in essence, how much doubt is reasonable in your own mind when you consider sending someone to jail? Regardless of your answer, it's a high standard. There is zero doubt that many people who are guilty are found not guilty because the state or government, while proving that a defendant probably did it, didn't meet their burden of proving that someone did it beyond a reasonable doubt.

After reviewing all of this evidence in this case a Waco jury took just a few hours to decide that Ukwuachu was guilty beyond a reasonable doubt. So let's say that means the jury was 98 percent certain he raped this fellow Baylor student.

Well, Baylor conducted its own Title IX investigation and found that Ukwuachu didn't rape her, that is, he was less than 50 percent likely to have committed this crime.

How in the world is this possible? How can you be guilty beyond a reasonable doubt before a jury and less than 50 percent likely to have raped someone in Baylor's investigation? Isn't this a negligent Title IX investigation on its face? I think so. 

Now let's ask a couple of interesting and broader questions here, first, why are school administrators in the business of investigating sexual assault to begin with? The idea, noble in intent, is to treat sexual assualt on campuses more seriously, but haven't we created a quasi-criminal investigation with investigators who have limited training in conducting criminal investigations? For instance, we'd think it was absurd if a school administrator investigated a murder, wouldn't we? A robbery, even. Should schools even be in the business of attempting to investigate alleged rapes?

Here we have a student who clearly was guilty of criminal rape, and he wasn't even held responsible for civil rape in a school's Title IX investigation. That's the most glaring failure possible, a divergence that should never happen. And to me it's evidence that Baylor's system is broken. And if this Baylor investigation was shoddy and wrong, isn't it also possible that these university investigations, featuring people who aren't trained criminal investigators, get things wrong all the time?  

2. A Baylor player was charged with rape and his indictment was sealed so that no one in the media or public was aware the indictment happened.

How was this possible? Good questions about this are raised here.

It's hard to believe Baylor would have kept Ukwuachu on scholarship if fans and media had seen that he was charged with raping a fellow student. So was there an attempt to keep this proceeding secret? Did Baylor conspire with a local court system to try and keep this quiet?

Whatever the case may be about what Baylor knew about Ukwuachu's past, many in positions of power knew he was charged with rape and kept him on scholarship. And that's the decision that is the most baffling to me. At most universities you lose your academic scholarship if you drop below a B average. At Baylor you don't lose your scholarship if you get charged with raping a fellow student?

(I always get people Tweeting and emailing, but what about innocent until proven guilty? Innocent until proven guilty keeps you out of jail, it doesn't keep you on scholarship. The simple fact is this, most of the time when you are charged with a felony, you're guilty. Now, you might be found not guilty, but usually if the evidene is strong enough for charges to be brought, you did it).

3. Baylor, knowing that a football player was charged with raping a fellow student, kept that player on scholarship and was prepared to have him play this season if he beat rape charges.

I can't remember this happening. You have a scholarship player standing trial for raping a fellow student and if he isn't found guilty he can literally jog right out of the courtroom and onto the football field and is there for opening kickoff of the season. That's mind blowing. 

Baylor may well have kept him on scholarship because of the result of the flawed Title IX investigation -- which was so incompetent it wasn't allowed to be introduced as evidence at the rape trial -- but once the DA filed charges against Ukwuachu, wouldn't you have to reconsider your reliance on the Title IX investigation? Especially if, you know, the President of your school, Ken Starr, was a highly trained and skilled former prosecutor himself, who spent hundreds of millions of dollars investigating the President of the United States's sexual history? Did Ken Starr not know about the rape indictment of a football player? If he didn't know, how is it possible that no one told him? If he did know, how did he consider it appropriate to keep that player on scholarship? Either way, Ken Starr has some explaining to do.

Another question, did Starr review this Title IX investigation that was so flawed the court refused to admit it as evidence? If not, why not? After all, this is his area of expertise.  

4. Is not knowing about Ukwuachu's past a valid defense?

Most of the articles about the Ukwuachu case have focused on the he said-he said between Art Briles and Chris Petersen over Ukwuachu's past. But as I've said above, what those two coaches said to each other shouldn't be the primary focus of this story. It's a red herring. SI reported Tuesday the University of Florida considered taking Ukwuachu but rejected him because Will Muschamp was able to uncover his past issues with women via a couple of phone calls to officials at Boise State. It's altogether possible that Boise isn't disclosing why Ukwuachu left school there because there are medical issues involved and the school doesn't want to be sued for releasing private information.  

Regardless, all we know is that Petersen called Briles about Ukwuachu's transfer and there's a dispute about exactly what was said. Did Briles initiate no review of his own? Did he make a single phone call to anyone at Boise State to conduct his own investigation into a player he was bringing onto campus? Wouldn't you find it a bit strange that Boise would be totally fine with letting a freshman All- American defensive end transfer? I would. Here's a question for you, how many freshman All-American players have transferred from the school where they starred with zero red flags off the field? (Eliminate graduate transfers from the equation.) Are there any others? This is a rare transfer situation, correct?

My point is pretty simple here, if Baylor didn't know about Ukwuachu's issues that isn't a strong defense. And even if they didn't know, again, this shouldn't be the focal point of the media's coverage of this story. It's a small detail, much less pertinent, for instance, than whether school President Ken Starr knew or didn't know about Ukwuachu's felony charges for rape. 

5. College athletics needs a lawsuit to shake up the admissions process.

I hope the victim in this Baylor case files a Title IX lawsuit based on Baylor's clearly flawed investigation and a negligence lawsuit based on Ukwuache's admission and hits Baylor for tens of millions of dollars in damages. Because while Baylor's conduct here is difficult to defend, it isn't entirely unique. 

There are many students on college campuses who have no business being there but for their athletic talent. If an athletic program is bringing students on campus -- and giving them scholarships despite clear red flags in their past behavior -- and these students later act out in a criminal fashion upon other students, this needs to be actionable for the student victims. Because without athletics these players wouldn't be on campus to perpetrate crimes and create victims.

The only way the academic side of college will take control of messes like these, sadly, is if the financial risks become too high to ignore.

This victim needs to sue Baylor, refuse to settle when the school offers her million to privately do so, and shine a bright light on a mess that exists everywhere. 

6. What's the limit of second chances?

This is the biggest questionl: How do you decide who deserves a second chance? Let's not be naive here, the reason Ukwuachu got a second chance at Baylor was because he was really good at football, so good that Baylor believed his talent outweighed his problems.

It's easy to pile on to Baylor r-- and much of the criticism is deserved -- but we're a society that rewards second and third chances to people of talent. A scholarship is, at least in some sense, a bargained for exchange. Baylor believed that Ukwuachu's talents were significant enough to balance out the risk that he brought to bear on campus. They gambled on him and lost.

But what about all the gambles that coaches take that don't end in felony charges? What about the success stories which never receive attention? In essence, how do you decide when an athlete with past issues in his life is capable of redemption and when he isn't? Put simply, you can never know for sure which players will save your job with their second chances, and which ones might well end up costing you that job.

And while many are focusing on Art Briles's role in this sad case, for me this isn't just a football story, far from it, we should all be asking what Baylor president Ken Starr knew and when he knew it.

Because this isn't just a Baylor football scandal, this is a Baylor University scandal.