Just days prior to trial, Texas Christian University (“TCU”) came to a confidential settlement with a former female student who was allegedly sexually assaulted by two (2) members of the men’s basketball team and a member of the football team. According to the former student’s lawsuit, in October 2006, she was drugged and raped in a campus dormitory by student-athletes. The student-athletes at issues were indicted on sexual assault charges and expelled from TCU for violating university policy against inflicting bodily injury or emotional harm. The criminal charges were ultimately dropped.
If this suit moved forward, it presents interesting legal questions relating to duties owed by the university to students. Generally, the law in Texas is an employer should conduct a background investigation on employees who will associate or be involved with others. Such a duty is imposed on volunteers as well. Student-athletes are not employees according to Waldrep v. Texas Employers Insurance Association. Regardless of the status of a student-athlete (i.e., whether an employee or some other designation or title), Texas law has long indicated, following the Boy Scout line of cases, that a duty may exist to conduct background check, but what appears in the background check is important. For example, a student-athlete may have had a DUI or larceny charge in the past, but that does not necessarily mean that an institution would have reason to believe he would commit sexual assault. In fact, several Texas cases have held that causation does not exist to show that an unrelated criminal charge is cause-in-fact for the sexual assault at issue.
At this point, we can only pontificate as to what would have happened. The question begs: do institutions have a duty to conduct background checks on student-athletes? Recent reports have indicated that only a fraction of institutions conduct background checks. With these types of claims looming, it will be interesting to see how institutions respond and what courts do with these arguments. On the other hand, plaintiff’s attorneys can get creative and address additional causes of action that do not require a duty. In the case at issue, the plaintiff set forth a fraud claim by stating that TCU misrepresented to her that it did not recruit and admit “miscreants”. That argument sidesteps any argument that an institution does not owe a duty.