The NBA’s new policy on accusations of domestic violence, sexual assault, and child abuse—negotiated last year as the league came to an agreement with the players’ union, and formally approved in December—will come into force on July 1. But according to a report from ESPN’s Zach Lowe published last Friday, the league saw no need to stay within the four corners of a policy that isn’t yet in place, and already has tried to either strongly discourage teams from signing or effectively ban two players who have been accused of sexual-assault or domestic-violence accusations.
This—and the fact that per Lowe’s reporting, the union has pushed back and won part of an arbitration hearing related to all of this—is the background to and context for the Philadelphia 76ers offering a tryout to Brandon Austin, the former Providence, Oregon, and Northwest Florida player. Austin’s travels aren’t a coincidence. Both of his transfers followed investigations of possible sexual assault involving him.
Austin has never been criminally charged. In one case—at Providence—a university disciplinary board voted to bar him from campus, according to a local newspaper report, but the decision was overturned by a university vice-president. That vice-president still wanted to place him on disciplinary probation, which would have stopped him from playing basketball for a time, and at that point he transferred to Oregon. In the second case, he was found responsible for sexual misconduct, according to an attorney, suspended, and later transferred to Northwest Florida. He helped Northwest Florida win a JUCO championship and since then appears to be trying to break into the NBA.
The NBA’s new policy has a lot to recommend it, and incorporates a lot of what critics of sports leagues, including me, have been asking for. There’s counseling, a panel that includes independent experts, and a hotline for families. But whether or not the policy will make a big difference is hard to tell. Untangling Austin’s playing career—and the NBA’s apparent attempts to make sure that it didn’t extend to the highest level—is as good as any illustration as to why.
Austin started out at Providence in 2013 after being a highly touted recruit out of the Philadelphia area. Before playing a game for the Friars, though, the team announced in November that Austin and fellow freshman Rodney Bullock were suspended indefinitely, then later for the whole season for “not upholding their responsibilities as student-athletes.” No other details about what they did were released.
It would later come out, via documents provided to the Providence Journal, that a disciplinary board had voted on Nov. 20 to bar Austin from campus until the spring of 2015 after finding that a preponderance of the evidence supported “a finding of ‘sexual misconduct I.’” A no-contact order also was put in place. (At no point does the PJ article discuss what happened with Bullock’s university process.) Austin appealed to vice-president Kristine Goodwin.
“Having read the respondent’s letter of appeal and your letter of response, reviewed all documents in the case file, listened to the recording of the board hearing, and conducted interviews,” Goodwin wrote, “I cannot affirm the Board’s finding of responsibility.”
“However,” she continued, “because the respondent initiated and/or facilitated what was referenced as ‘teaming up’ — which put you in an unplanned, unanticipated situation — his behavior was inconsistent with the College’s expectations that students treat each other with dignity and respect, as created in the image and likeness of God.”
The PJ reported that Goodwin found Austin “responsible for engaging in behavior that was lewd, indecent and obscene.” She kept the no-contact order but, instead of the ban, placed him on disciplinary probation through the spring of 2014. During that time, he couldn’t have played basketball.
Nobody outside of the university administration, though, knew any of this. The PJ article was published more than a year later.
So in January, 2015, Austin left the team, and coach Ed Cooley put out a statement: “We wish Brandon success with his basketball career and with his academic future.” Austin transferred to Oregon, and Ducks coach Dana Altman was quoted in a press release about his talk with Providence before making the decision.
Altman said he consulted with Providence coaches before accepting Austin as a transfer, and they alleviated any character concerns.
“That’s always something that we consider very strongly,” Altman said. “But in talking with their coaching staff, we felt like this was something that was not of a serious nature and we’d be able to move on from there.”
None of that was available to reporters at the time. The first details of what had been alleged came out on March 18, 2014, when the Wall Street Journal reported that Providence police were investigating a report that a female student said she had been raped by two basketball players: Austin and Bullock. The university investigation had started in November; the police report was filed a few weeks before the WSJ report came out. Bullock’s lawyer, Bill Lynch, talked to the WSJ.
He said the Providence College investigation of the complaint was carried out by a former member of the Rhode Island State Police who leads such inquiries for the school. “After this extensive review and this hearing process in which everyone participated, the penalty meted out was the only one meted by the school, and I think that speaks volumes,” Lynch said.
Lynch got tougher talking to the Associated Press, saying neither student was found responsible for sexual assault and questioning the timing of the report to police.
“The school did an exhaustive review, interviewed all the parties including the two male students, who voluntarily participated in the process,” Bill Lynch, a lawyer for Bullock, said on Wednesday. “There was never a finding against either of the students that there was a sexual assault.”
“Suddenly, a week before Providence is playing on the NCAA tournament, there’s a complaint filed? I’m getting too old to believe in coincidences,” he said.
As universities do, Providence didn’t say much and insisted the reason why was student privacy. Providence spokesman Steven Maurano later put out a statement saying he would “recommend against drawing any conclusions that our (on-campus) process ended with a finding that our student-athlete was found responsible for sexual assault.”
None of the articles in the WSJ, PJ, or AP at the time news about the police report quote Austin. By that point, though, he had transferred away. A grand jury eventually declined to charge Bullock and prosecutors said since there was no charge for Bullock they decided to not charge Austin either. Bullock stayed at Providence; he’s expected to return for his senior season.
On May 5, 2014, the Ducks announced that point guard Dominic Artis was transferring and Austin and junior guard Damyean Dotson were no longer participating in team activities. Later that day, Eugene, Ore., police released a police report showing that the three were part of an investigation of possible forcible rape.
According to the police reports, the student told police that they were at a party at an apartment and she had some peach-flavored alcohol. One of the basketball players lead her into a bathroom where, first, they asked her to shake her butt. She did. Then Austin grabbed her phone, and Dotson forced her to bend over, she told police. She said that Austin then pulled down her shorts and put his penis in her vagina while Dotson put his penis inside her mouth. This lasted a few minutes because then someone walked into the bathroom, she said. They all left the bathroom, per the police report, and at one point Artis got her a glass of water. Then she got pulled back into the bathroom where all three “had me suck their dicks.” Then it stopped, she didn’t know why, but she later was pulled into a cab with the men and taken back to an apartment.
Artis went out into the living room to play a video game. She sat on the couch next to him and started to cry, which made everyone except Austin leave. Artis asked her if she wanted to go to sleep; she said yes, so she went to his room with him and curled up on his bed. In the morning, Artis gave her some clothes and called her a cab to take her home.
When police talked to Artis and Dotson, they told officers that the sex was consensual. They added that they’d had oral and vaginal sex with the student that morning as well before she left to go home. Police interviewed the student again and she said that she did remember oral sex with Artis and “fooling around a little.” In another interview, she added that the day afterward had gone over to Joseph Young’s apartment.
She had consensual sex with Young later on that day, she told police.
Police talked to her roommate, who said the student hadn’t seemed intoxicated to her at the party. Another person told police that she had tried to stop the student from getting in the taxi with the basketball players, telling her “all the guys wanted from her was sex,” but the student still went with them. That person wasn’t certain if the student was drunk or not.
Police kept investigating and had the student record her phone conversations with two of the basketball players. First, she recorded a phone call with Artis, in which he said from his perspective she had been a willing participant and they stopped when to him it was clear she wanted it to stop.
Dotson said something similar during his call—by his recollection, they stopped when she wanted them to stop.
He also, twice, mentioned his mother and sister.
Austin was represented by lawyer Laura Fine Moro. He didn’t speak to them directly, but Moro gave investigators a statement on his behalf. The police reports describe it as similar to what Dotson and Artis said.
The same day that police released their report, the local district attorney’s office told the Oregonian that it would not bring charges.
The district attorney’s office listed only Dotson as a suspect when it wrote April 14 that due to insufficient evidence it would not pursue prosecution. It also did not list any of the charges Dotson had been accused of. However, it added, “While there is no doubt the incidents occurred, the conflicting statements and actions by the victim make this case unprovable as a criminal case.”
Days later, the DA’s office released a three-page press release detailing all the reasons it felt the case couldn’t be won: Nobody at the party could confirm that the student seemed drunk; multiple people saw her flirting with the men both before and after the alleged first and second assaults in the bathroom; and the student “returned to isolated locations with her alleged assailants repeatedly” and “had consensual sex with one of the accused men that morning,” as well as another friend later that day.
“None of the above would be individually inexplicable,” the release concluded, “but collectively, and in the absence of additional evidence, they provide an insurmountable barrier to prosecution.” It ends with the contact information for the then-district attorney, its logo, and the tagline, “We do the right thing, and we do it for the right reasons.”
A few days after that, Oregon announced that all three players were dismissed from the team.
“When you read the police report, it’s very clear it was conduct that isn’t befitting of an Oregon student-athlete,” athletic director Rob Mullens told reporters, per the AP. “I don’t want to get into specifics but it was very clear to us those were individuals we didn’t want representing our organization.”
In June, the university announced that all three players were suspended as students for four years or until the woman finished her degree. The woman’s lawyer, John Clune, told the Huffington Post that the suspension were due to the university finding the three responsible for sexual misconduct. All three players eventually found new universities where they could play basketball, including Austin. The new teams, however, didn’t end the legal battles in Oregon.
Transfers and lawsuits
Austin transferred to Northwest Florida State College, where he helped them win a junior college national championship. But his name, as well as those of Dotson and Artis, stayed in the headlines back in Eugene as the results of the investigations quickly devolved into many lawsuits. The woman sued the university, saying that the university had struck a deal with the players to delay their proceedings in a way so they could still play basketball and more easily transfer to other schools. At first, Oregon sued her in return, saying in no way did they violate federal rules. Then came the revelation that the university had accessed the student’s counseling records and felt it had a legal right to do so, an employee who protested the accessing of the records said she was fired, and eventually the student reached an $800,000 settlement with the university.
Two months after the settlement, Austin sued the university over his suspension and how he said Oregon’s student judicial process had violated due process. The university had among other things, the suit claimed, damaged his ability to possibly play in the NBA. Dotson and Artis later sued the university as well. All three lawsuits were dismissed by a judge.
By September of last year, Austin was already done with college ball and described by the Oregonian as unsigned after working out with several NBA teams. In June, Philly.com’s Keith Pompey reported that Austin had a pre-draft workout with the 76ers, his hometown team. Pompey called Austin’s work “impressive,” and a gaggle of reporters interviewed him with video posted to the NBA’s website, with one asking him vaguely about “the past” and what Austin wants people to know about him.
“That I’m a good kid, you know. My intentions are never bad,” he said. “I may take, took, a few mistakes in the past but I’ve grown as a person and I’m still standing to this day.”
No team signed Austin. That, according to Lowe’s reporting, was no accident.
Lowe’s report is about Austin and another player he doesn’t name. Few details are given about the unnamed player except that he was questioned by police after being called a scene of possible domestic violence but wasn’t charged.
Last summer, the league sent a memo to all 30 teams instructing any team interested in signing either player to call the NBA office, sources say. Teams that called were told about the allegations, and that the players could face discipline—including suspensions or fines—in the event any team signed them, sources say. No NBA or D-League team did.
The National Basketball Players Association filed an arbitration claim arguing that the memo had a chilling effect, and that the league had overstepped its bounds by telling teams it could discipline players for past allegations, sources say. The arbitrator agreed with the union that the league could not fine or suspend the players going forward based on prior allegations, sources say. The league sent teams a follow-up memo clarifying that after the ruling.
The arbitrator upheld the league’s authority to “disapprove” entirely any contract any player might sign based on the NBA commissioner’s broad authority, outlined in the league’s constitution, to determine that “all players shall be of good moral character.” The arbitrator also rejected the union’s claim that the memo amounted to a form of collusion, sources said.
If this move—a league saying it will punish a player for conduct from before he was an employee—sounds familiar, that’s it’s because it’s a classic NFL tactic. The league once suspended Terrelle Pryor for five NFL games for breaking NCAA rules (selling his football gear and possibly getting discounted tattoos) during his college career, and suspended his coach Jim Tressell six weeks in the NFL, though it never did get around to punishing Pete Carroll and Chip Kelly for their NCAA violations when they coached in college. Somehow, Pryor and Tressell were bad for the integrity of the league; Carroll and Kelly were not.
Who and what is good or bad for the NFL’s “integrity” has always been involved little more than the capricious whims of Roger Goodell and the owners who oversee him. Their process amounts to sticking wet fingers in the wind and checking which way the public-relations wind blows. It’s a system that has mostly failed them in both the court of public relations and actual trial courts. For some reason, though, the NBA decided moving in that direction was a good idea, and it’s no surprise that the arbitrator pushed back.
What about going forward? Tucked away in the Lowe report, which opens with Austin’s tryout with the 76ers, is information on the NBA’s attempt at a policy.
The new NBA policy
First, a short but necessary side track. Even calling these rules by their accepted shorthand, domestic-violence policies, shows how little time people in league offices and, too often, the press spend studying the issues of domestic violence and sexual assault. Domestic violence and sexual assault are two very different crimes. They’re covered together under the federal Violence Against Women Act because both predominantly affect women. But, outside of that, they vary widely in the ways they should be discussed, prosecuted, and tackled by our society in terms of prevention and change. A person can be a victim of domestic violence without being raped; a person can be raped without it being an act of domestic violence. That people, even in the allegedly progressive NBA, have no problem using the term “domestic violence policy” on rules that clearly cover a broad spectrum of different types of violence shows just how much of this is public relations.
Lowe’s report includes a detailed description yet of the NBA policy in its new collective bargaining agreement, which is posted on the players’ union website. Its full title is the “Joint NBA/NBPA Policy On Domestic Violence, Sexual Assault, and Child Abuse,” and it includes some pretty progressive stuff:
- A policy committee will be started, made up of two people from the NBA, two people from the players’ union, and three independent experts in “domestic violence, sexual assault, and/or child abuse.” Players can reach out to the committee on their own or be sent to it either after a criminal conviction or after the the commissioner has made what’s called a “disciplinary determination.”
- The committee will pick an expert who will evaluate players who have been referred to the committee. That expert will then develop a “Treatment and Accountability Plan” for the player, which could include psychological evaluations, other evaluations, or counseling.
- A player who doesn’t follow his treatment plan will be punished, starting with a warning and escalating up to fines and then game suspensions.
- The committee also will oversee education and training programs.
- A confidential hotline will set up for reporting domestic violence, sexual assault, and child abuse. Although, it’s worth remembering, these hotlines already exist, both locally and nationally, and it’s hard to avoid concerns that the NBA might gain some power over victims by having them report abuse to someone contracted on their behalf instead of external advocates—similar to when Oregon argued it had the right to access a student’s counseling records because she used the university’s services.
But it’s not all progressive. There’s a section where the NBA talks about how it will punish players, including a section reminiscent of the NFL tradition of making players beg their commissioner for forgiveness.
- The NBA used to limit its involvement to after convictions, which the old CBA required to be followed up with a minimum 10-game suspension. Beyond that, there weren’t any requirements for the league to act although, certainly, it could and did when it felt like public outrage required it. The league suspended Jeffery Taylor for 24 games by citing the “standards of morality and is prejudicial and detrimental to the NBA.” Now, under the new policy, its actions in any case of domestic violence, sexual assault, and child abuse will be explicitly condoned.
- Like NFL players, NBA players now will go before their commissioner to plead for leniency. All parties will meet (the CBA doesn’t define who these parties are) , talk, and then the commissioner will “determine all discipline under this Policy on a case-by-case basis, upon consideration of all facts and circumstances, including aggravating and mitigating factors.”
- The commissioner also can place a player on administrative leave during an investigation. The CBA says that the power is to be used “in only those cases in which a balancing of all relevant factors clearly establishes that it is reasonable to do so under the totality of the circumstances.” Ten bullet points follow about those qualifying factors, including was there a weapon, was anyone hurt, if the allegations are “supported by credible information,” the player’s character, and the player’s “reputation within the NBA community,” and “the risk of reputational damage to the NBA and/or the player’s team.” A player placed on leave can challenged the decision to an arbitrator.
- Players who don’t cooperate with the investigation can be punished. But there’s a big exception carved out to the requirement that players cooperate: “Except in circumstances where the player has a reasonable apprehension of criminal prosecution.”
- Adam Silver can punish any player who violates the policy. He also can punish anyone who is found guilty at a trial, pleads guilty, or pleads no contest because those are defined as violations of the policy. He cannot punish anyone who is acquitted after trial.
Will that help? I have no idea. This is, after all, not government policy—and even that goes awry in unintended ways. (The history of the Violence Against Women Act is an example of a well-intentioned policy with huge unintended consequences.) It’s public relations by billionaires who need you to keep paying attention to, and paying for, their product.
Sports leagues shouldn’t be in the business of playing police, judge, and jury. They are because Americans have lost faith in their real police, judges, and juries and it’s easier to just ask the likes of the NBA, NFL, and MLB to make quick fixes, allowing fans to spend less time thinking about the ugliness of society and get back to mindlessly worshiping their sports heroes, rather than actually working for social change. Fixing the criminal justice system is hard. Ending inequality is hard. Changing societal attitudes toward women and children, within and outside athletics, is hard.
Changing hearts and minds—building a culture that respects all women—is much bigger than any of these small steps, and at some point will come in conflict with the one true mission of the NBA: Making shitloads of money. It’s easy to punish a guy like Brandon Austin. It’s more difficult, though, to wonder what will happen if an investigation happens involving a face of the league like, say, LeBron James or Steph Curry—someone who wasn’t supposed to be like that, with a “reputation within the NBA community,” and who scores lots of points.
At the heart of this conflict isn’t the players. It’s the people who have the most power and money in this situation—the owners, the general managers, and coaches—who are completely untouched by this policy. There is a morbid level in hypocrisy in expecting all athletes to be upstanding men, doting husbands, caring fathers, and informed community leaders when their team owners include the likes of predatory lender Dan Gilbert, anti-public school fiend Betsy* DeVos, and even the Gregg Popovich-led Spurs have to contend with their owner’s political donations to Dancing With the Stars loser turned energy secretary Rick Perry.
None of that will change, regardless of whether or not Austin gets a shot at playing in the NBA.