HOGAN MARREN elgg ©4800 6 ROSE, LTD Memo To: Elsa Kircher Cole, E59, University Counsel FROM: Charles P. Fose Shareholde! Patrick E. Deady Shareholder IPRA Release Debora L. Osgood Partner ‘SUBJECT: Investigation DATE: — January 16,2018 The University of New Mexico (‘University’ or UNM") has retained Hogan Marren BBabbo & Rose, Lid. to provide legal advice and counsel to the University in connection ‘with compliance matters Involving federal and state laws and UNM polices and procedures. At your ditection, we used as a frame of reference the recent issues, involving the University’s Athletic Department, Police Department and other University units. We are pleased tc provide the following summary report and recommendations to ‘he University Background This fal, the University retained a retired judge to conduct a preliminary investigation ‘and legal analysis related to several practices in the University's Athletic Depariment. That review followed the receipt of an August 11, 2017 letter from a former football player to Interim University President Chaouki ‘Abdallah and then-Acting Athletic Director Janice Ruggiere. The player (who requested to remain anonymous) identified spectic concerns about te football program and culture, including physical altercations involving players and ctaches 274 i _ oF __tEsa Kicher Cole, Esa, HM ‘January 16, 2018 ei Page 2 In his subsequent review, the judge spoke to numerous witnesses and reported the results of his investigaion to University officials. The judge spoke with Coach Bob Davie as part of his review and Coach Davie explained that he views himself serving as in foco parentis fr the players on the football team. The judge identfied several matters Involving the football program for follow-up by the University which, as we understand, fare being separately addressed. The judge, however, recommended further Investigation be conduced regarding two specific matters: 1) alleged physical abuse of football players; and 21 allaged interference with and improper involvement by the football program into police andfor University investigations of sexual and physical assault by football players. Our investigation to date primarly focused on these two areas. As explained in more detall below, our investigation of these two areas, and specific incidents identified within those areas, informed our recommendations with respect to the football program, and more generally, the Athletic Department and the University as a whole ‘Scope of Our Investigation ‘Our investigation included numerous on-site and telephone interviews as well as review of relevant documents. Specifically, we conducted interviews with the judge, University police officers, Universty officials, and current and former University students and employees. Below, we descrive the results of our investigation to date and have set forth our recommendations, based on our review of the information provided to us or developed by us. Alleged Physical Abuse of Football Players ‘We were asked to investigate an allegation that football coaches overruled the judgment ‘of the team’s medical staff as to an injured player's readiness and abilty to play in practice or in a game and pressured or forced injured football players to play in games and practices. Injuries: NCAA Guidelines provide that the team physician has the final authority on when @ student athlete wll be withdrawn or withheld from participation in practice or competition. Allowing payers to either practice or participate in games without proper medical clearance, ether because of inadequate medical diagnosis or improper influence by the coaching staff or player, exposes the Univesity to claims the schoo! breached its duty of care to keep student athletes safe. In addition, such a duty of care has been defined to indude faling to fully advise players of the results of diagnostic tests concerning their inuries and faliure to give advice conceming the dangers of permanent injury by cartinuing to play with such an Injury. Several researchers, such as the University of North Carolina Center for the Study of Retired Athletes, are studying the long-term effects of football injuries, not limited to concussions, and suggest that ‘sports injuries, especially those received while playing football, can have permanent TPRA Releaseisa Kircher Cole, E59 hd anuary 16,2018 lal 198 3 long-term effects requiring specialized medical care, The NCAA is currently developing ‘new guidelines with respect to the provision of health care benefis to student athletes. Conciusion: The scope of our investigation involved interviews with certain current and former football players and University staff. The information obtained in our investigation did not reveal any conclusive evidence to support ths allegation. We did ‘not obtain confirmation of any alleged situations in which the medical staff had determined that a player could not play and the coaching staff forced or pressured the player to play. Although there was evidence that certain players who had been cleared by the medical staff to play after an injury, but who did not personally feel ready to pay, felt pressured by the coaching staff to play, there was no evidence to show that any member of the coaching staff forced a player to play before the medical staff had Cleared the player to relum to action Because our interviews falled to uncover any specific evidence that the coaching staff ‘overruled physicians ard inappropriately played football players that were injured, we determined that it was not necessary to interview Coach Davie or the coaching staff regarding this allegation, Moreover, given the lack of such evidence, we determined that itwas not necessary to conduct a more comprehensive review ofthe medical records of injured players or conduct additional interviews of other players, coaches, or members ‘of the medical team or training staf. Nonetheless, given the NCAA's continuing focus fon the welkbeing of student athletes, we recommend that the University review its polices. procedures ane practices relating to student injuries to take steps as necessary to ensure that the University is in compliance with applicable NCAA requirements. and develop and maintain documentation sufficient to monitor compliance, .jed Interference with and Improper Involvement in Investigations of Football Players We were asked to investigate whether the football program interfered with or was ‘otherwise improperly involved in police and/or University investigations of football player misconduct, including sexual and physical assault. (Our investigation focused on whether coaches and staff in the football program interfered with or were improperty involved in investigations of player misconduct in Violation of federal law end University policy prohibiting retaliation. Under Title IX ofthe Education Amendments of 1972 ("Tie IX), recipients of Federal funds from the U.S. Department of Education, including UNM, are prohibited from intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any Fight or privilege secured by Federal civil rights law, including the right to participate in a Complaint Investigation of sex discrimination. The University's Sexual Harassment Polcy includes similar prohibitions on retaliation, stating that itis the policy of the IPRA ReleaseElsa Kircher Cole, Esa nM ‘January 16,2018 BR Page 4 University to foster an environment where faculty, staf, and students may raise civil rights claims without fear of retaliation or reprisal. We also looked for evidence of state criminal obstruction of police investigations of player misconduct. Unlike the federal obstruction of justice criminal statute which ‘generally provides for punishment of anyone who “corruptly influences, obstructs, or impedes or endears to influence, obstruct or Impede" a criminal investigation or other pending proceeding belore a federal depariment or agency, the New Mexico criminal Statutes do nol have a provision that broadly defines obstruction of a criminal investigation. Rather, the statutes prohibit brbery or intimidation of witnesses, NM Stat. '§30-211-3, tampering ith evidence, which Includes hiding, placing or fabricating evidence, NM Stat. §30:22-5, and resisting, evading or obstructing a law enforcement officer in the performance of his duties, NM Stal, §30-22-1. Accordingly, the proof required to sustain a criminal charge involving the obstruction of any University of New ‘Mexico Polloe Departmant (UNMPD’) investigation of a sexual assault charge would require proof of one of more of these specific New Mexico statutory offenses. For ‘example, the payment toa witness or potential witness to change testimony orto refuse fo prosecute a crime against a student athlete, or evidence that witness testimony was fabricated to corroborate the testimony of a student athlete under investigation, could Constitute a violation of ne or more of these New Mexico statutes, Given the recently concluded federal Investigation and ongoing monitoring of the University by the U.S. Cepartment of Justice (DOJ). our investigation focused on three alleged incidents that occurred on or after in which concerns were ralsed about the footoall program's possible interference and/or improper involvement. 41. NNN _Alleced Sexual Assault Involving UNM Football Player A and UNM Student & "Note that nthe federal no stato law poh coaches and sain the football program om taking vith layers abut aegaton of misconduct against he players. Infact, recnt guidance issued by tho Us. Departmen of Edueaten under Tite IX, specicaly states, "Resting the aby of ether party © ‘dscuss the investgaton (e¢. hrough "gag orders) is Ikly to dprve the parties ofthe abity to obtain land present evidence or otherwise to defend ther inorests and therefore is they Inequiable” September 2017, Q&A on Cempus Sexual Msconduct in December 2014, 004 nated an vestigation ofthe University's compliance with Tie and Tile ofthe Higher Education Act f 1985, which prohb scrminaton on tho basis of sex. That investigation {cused on allaged eaxsl raressment and eonual aeeault for ex scademie years’ 2008-2010 tous ‘2014-2015, On Apel 22, 20°6, DO ised eter fing the Univers in volaton of Tite I and Tie Iv. The latte state that DOL had receved complains fem multe students alleging that the University ‘8 natrespond adequately tthe reports of eosua seat On October 17,2016, the Univers entered lo 2 mut-year agreement wt DOJ. The Uniersiys implementation ofthe agreement Is stil being monitored by DO conan TPRA Releaseany ela} Elsa Kircher Col, Ee anuary 16, 2018, Page § Criminal investigation: 07 STE. UNM Student A went to the Family Cente: to meet a Senual Assault Nurse Examiner and submitted to @ {ullexam. The folowing <2), TTT. she wert with {Hl {o the UNMPD to report the alleged rape by UNM Football Player A in Tis dorm room and the case was assigned to a Sexual Misconduct and Assault Response Team (‘SMART) officer who conducted the investigation. On SENN. the football player was interviewed by the UNMPD Using a digia voice recorder and made a statement, initaly denying having any sexual contact with UNM Student A since [mmm Subsequent, Footbal Piayer A, after being shown a series of text messages between him an the student the night and moming of the alleged rape, admitied having sex with the student cn NNN anc admitted that the student had been saying “no” and “stop” several tmes but that he thought from her other actons she wanted to have sex with him. The player admited using force, ‘CT cing te assault The SMART officer obtained adcitonal corroborating evidence from searches of ‘the football players cell phone and interviews of other witnesses inthe dorm, (On INN. the SMART officer was advised by a supervisor that Goach Bob Davie had a student with possible information related to his investigation. Coach Davie said he told all ofthe football players that there ‘was a criminal investigation related to UNM Football Player A and that if anyone nad any Information to contact him. Coach Davie brought one of the football players to his office to meet the SMART officer the same day and the football playe: showed the officer NNN video of the female student that she may nave posted shortly after tne alleged rape. Coach Davie argued that the video, which showed the student making comments about breaking Lup with someone but did not mention UNM Football Player A, undermined the female student's credibility by showing she was seeking revenge and continued to advocate on UNM Football Player A's behalf with the officer ‘The SMART officer asked Coach Davie where UNM Football Player A was because he had a search warrant for his DNA buccal swab. Coach Davie told the officer thet he dropped off the football player at an aitorney’s office but that he would ask the player to contact the officer on his retum. The criminal investigation was completed by late INN and referred for prosecution tc the District Attorney's Office. Sometime thereafter, the District Attorney dropoed the charges because UNM Student A had left school and ‘moved out of Yew Mexico, (QEO Investigation: UNM Student A did not intially report the alleged sexual assault to the University’s Office of Equal Opportunity (EO). On NM the resident advisor at the NNN where UNM Football Player ‘resided contacted the acting Dean of Students about a police investigation IPRA Releaseah ell Elsa Kircher Coe, Es January 16,2018, Page 6 involving the football player. Although UNMPD did not notify OEO about the incident, c?. SME UNM Student A was identited by OEO and contacted by the Student Advocacy Center. She first met with her student advocate cn NNN Coach Davie was aware of the allegations of sexual assaul On of before NNN and did not contact OEO about the incident. OEO did not recelve any notfication from anyone in the Athletic Department concerning this incident. On ANNE UNM Student A sent an email to her student advocate advising that she fad been told by several of her fiends that other football players had been spreading stories about her and caling it a “alse rape charge." The football players were teling everyone that Coach Davie "was {going to take care of i,” This email was forwarded to the OEO investigator ‘who contacted the UNMPD police officers involved. The OEO investigator interviewed the UNMPD officer, his supervisor and another administrator who had relayed concems that the coaches were interfering with criminal investigations The SMART officer confirmed that Coach Davie admitted he had spoken to the players about the case and produced two players wo had found @ MNNMMVdeo of the alleged victim. According to the SMART EE se OF rrr Investigator prepared a memo to the fle about these concerns raised by Student A but no investigation was opened with respect to the possible Interference by Coach Davie in the UNMPD investigation By the end of the INN CEO had completed its investigation and ‘was preparing Its recommendation when the football player's. attorney contacted OED asking to provide additonal evidence and testimony about the alleged rape, By this time, the criminal prosecution had been terminated and UNM Student A was no longer enrolled. The OEO investigation continued through football season and was conclided i NE at which time UNM Football Payer A, who WS a ‘The Judge's Preliminary investigation: The preliminary investigation by the judge confirmed that the UNMPD investigators and supervisors were unhappy the assault charge was cismissed by the District Attorney's fice since they believed the case against the football player was strong. There was DNA evidence canliming the sexual contact and an admission by the football Player that he 2c i 217 repeated plees that he stop. Witnesses who spoke to the judge on the Condition of confidently claimed that Coach Davie had held an all team meeting in which he told the players to “get some dirt on this whore” — IPRA Releasesa Karcher Cole, Ee anuary 16,2018 Page 7 ies Dz resulting in players looking for and finding the INN video and in the players. and their girfiends harassing UNM Student A until she left the University, ard moved from New Mexico. As a result, the District Attomoy dropped the charges. Additional Investigation: We conducted a follow-up investigation into the alleged infererence by Coach Davie In the criminal andlor OEO investigation and confirmed that there was a closed door meeting on or abc 7 MME with coaches and players where Coach Davie had directed all the training and vdeo replay staff o leave the indoor training facility. Some staff who spoke to players immediately after the close door meeting confirmed, ‘what witnesses had told the judge was said by Coach Davie in the closed ‘door meeting. but efforts to confirm what Coach Davie actually said in the meeting were not successful because former players and coaches contacted tither ciaimec not to have been present atthe meeting, had no recollection of Coach Davie using the words reported to the judge or only remembered that the players vere simply told they needed to protect their teammate and to provide information about the incident to Coach Davie. Other players believed fo have been present have not responded to repeated efforts to contact them ‘The UNMPD officers involves confirmed that Coach Davie advised them that he had obtained prior permission ftom UNM Police Chief Kevin McCabe to speak to all the players about the incident. \We also spoke with UNM Student A. She confirmed the Information already Provided to CEO in her NNN email fo her advocate that she had Frecently got word that some football players are spreading the story of a ‘fake rape! charge’ around and mentioning to everyone that head coach Davis is ‘going to take care of it" She also described a specific instance in Iam ME In which UNM Football Player A and three other football players came to 2 party she was attending and pounded on the door and made threatening comments about her (including “bring her out here"). UNM Student A stated that she did not repor this incident to anyone atthe University 2. Break-In of Football Players’ Apartment, Ne, TA |° football players Suffred amreakn at her apartment mere weeo game consoles, money and Jewelry valued in excess of $2,000 were stolen, Pursuant to team rules, they reported the thef fo Coach Davie who then repored i tothe police. The thet ‘occurred while the payers were at practice. Because there was no sign of forced entry, the players suspected that someone with access to te team locker room took thelr Keys ard commie the breaicin while they were at practice IPRA ReleaseElsa Kircher Cole, Esq iM January 16,2018 BR Page 8 ‘The two players and another teammate conducted their own investigation by contacting the owner of the warehouse next tothe apartment complex and asked to review the video camera from the warehouse for the relevant time period From the video, he players were able to observe a car similar to one owned by another teammale pull up to the complex and observed two men exit the car, both of whom they recognized as nonstudent friends of relatives of the teammate. The two were seen entering the complex with back packs that appeared empty and later leaving the complex with backpacks that seemed to be full. The football players presented the video photos and screen shots showing the men and the car to Coach Davie who said he would take it to the police Coach Davie questioned whether the car actually belonged to their teammate and indicated the police might be able to enhance the photos. A few days later, ‘Coach Davie told the players thatthe police had lost the evidence. ‘The players Understood that the two men had confessed to the robbery but were never ‘charged. Coach Davie later told them that the two men involved were ordered to leave the State of New Mexico, but later that year both were back on campus ‘even though neiher was a UNM student. The players who were robbed each received a $600 distribution from the Student Opportunity Fund, for their stolen items. This Fund is a NCAA stipend distributed to the University that is administered by the Athletic Department for all athletes who have personal emergencies or have personal items lost, stolen or damaged, During our investigation, only one of the alleged victims spoke with us. The other alleged victim did not respond to our efforts to interview him. I — 1290 Domestic Violence Incidont involving UNM Football Payer Band UNM Student 8 |p NNN UNM Football Player B was alleged to have committed domestic violence against UNM Student 5, i IMME. UNM Footall Player B discussed the incident wilh an assistant football ‘ach, who reported the incident to Coach Davie. UNM Student B discussed the Incident With NNN sino reported the incident to the head of the Im — gation: No criminal charges were fled against UNM Football Payer B b, QEO Investigation: CEO conducted an investigation after Kaley Espinola ‘Senior Associate Athletic Director for Administration, fled a Campus Security Authority Report with the UNMPD cr Jam reporting domestic Violence between UNM Football Player B and UNM Student B. OEO informed both UNM Football Player 8 and UNM Student B of the investigation, but neither student participated in the proceesing IPRA Releaselea Kircher Coe, Esa nd ‘danuary 16,2018 BR Page 9 (n) EEE UNM Student 8 wes released SS eT a OE0's Prelirinary Letter of Determination, sued on NNN concluded thet UNM Foote! Fie ‘and that Ne aetone subjected UNM Slicent © fe a sex Based Restle environment in the form of intimate partner violence andlor dating violence in violation of University Poly." On Imm OEO issued its fine eter of determination, finding probable Gause wt Fespect 10 the allegation of dating violence against UNM Footbal Player 8. The University put UNM Football Player on probation and required that he parlcipate in an educational conference, which he completed on He was not suspended or expelled from the Unversity, The OF Teor does not indicate whether UNM Football Player B received any Additonal ciscpine as a member ofthe fecbal eam ©. The Judge's Praliminary Investigation’ The preliminary investigation by the judge indicated that there was a concem that the incident had been “covered Up" by the football program, 4. Additional investigation: We reviewed the OEO report relating to the domestic Violence allegation and interviewed University staff about the incident. Our efforts to conlact UNM Student B to discuss the incident were unsuccessful CConolusion: Based on the information regarding these three incidents obtained from our Interviews of current and former football players and students who would speak to us and University staff, we cannot conclude that coaches or staff members of the football program obstructed any criminal investigations andlor interfered with, improperly Involved themselves or otherwise engaged in retaliation or intimidation in police or University investigations of player misconduct involving these three incidents. In addition, the individuals that we interviewed and documents reviewed did not identiy ‘and reveal, respectively, other incidents of alleged criminal obstruction or retaliation by Coaches of staff members of the football program. Given the lack of specific evidence that he or his staff engaged in criminal obstruction or retaliation with respect to these thyee incidents, we also determined that it was not necessary to interview Coach Davie or conduct a further revew of additional police, OO and medical records, We did not, however, investigate any of the otner criminal investigations of football players involving incidents prior‘ —_—— IPRA Releasetea Kircher Cole, Esa HM ‘January 18,2018 Plat Page 10 We have included recommendations below to improve the University’s handling of student misconduct cases and to avoid possible interference or improper involvement by the football program n police and University investigations. Adaltional Note: In our investigation of these three alleged incidents of interference, we Importantly, DOJ made a similar observation in its April 2016 letter of findings that, "in interview after interview, UNM students expressed reluctance to report sexual assauit to UNM because they feared retaliation or because they lacked confidence in the University’s response.” DOJ stated: Some members of the campus community described a perception that UNM wil not disdpline alleged perpetrators, especially athetes, even after receiving multiple complaints. about the same alleged perpetrator. One UNMPD officer stated that the administration did not respond when ‘campus police presented evidence of a pattern of sexual harassment and retaliation by cetain student athletes. A number of students reported being harassed ay a group of student athletes after making @ sexval harassment complaint fo the University against one of their teammates, ‘and that UNM di litle to address their safety concems. This view was also reflected in interviews conducted by Pilgrim & Associates at the request of the University. For example, one student who decided not to press charges acainst her ex-boyfriend told Pilgrim that "she was scared of retaliation because football is very petty with stuff ike that. She thinks they would defintely 'do stuf like they did with the git that reported the rape [oy members ofthe football team’... She has seen retaliation occur ‘against the alleged victim of the football ape accusations ... She saw on Instagram the football players posting pictures of the tiree guys saying something lke tht it is going fo get whats coming to her.” This continued percepton of the possibilty of retaliation suggests to us a broader systemic issue for the feotball program, the Athletic Department and the University than its handling of any singe incident. TPRA ReleaseElsa Kircher Cole, Esq, iM January 16,2018 BR Page 11 1. The University's senior officials should provide greater leadership and set a stronger tone of commitment to compliance with Tite IX and with its own standards of conduct for all students or by its students. Leadership must take stronger action tc ensure that the University does not and will not ~in any aspect of the University’s program, including athetics — tolerate sexual harassment, sexual assault, physical abuse or other prohibited misconduct against its students, Leadership must ensure that al students, including football players. and other athletes, are subjected to the same expectations and standards as to their Conduct. Actions taken must be sufficient to ensure that students have confidence that they can report allegations of misconduct with assurance that the reports willbe appropriately handled and without fear of retaliation from any part ofthe University community 2 The University should provide stronger and more explicit protections. for “whisteblowers,"including students and employees who may be complainants or witnesses in investigations, 3, In conjunction with University Counsel, the Athletic Department should conduct a review of is poliies, procedures and practices relating to student injuries and take steps as necessary to ensure that the University is in compliance with applicable requirements, 4. The University should provide greater oversight of the Athletic Department and ‘other University units with respect to their handling of incidents of alleged misconduct by student athletes. This oversight should include, ata minimum ‘@. Annual review of the University's handling of student athlete misconduct ceases through some extemal oversight, such as by the Board's aucit Committee including a targeted assessment ofthe climate in and relating to each of the Athletic Department's programs. This assessment may be part of the University's required annual assessment ofthe effectiveness of Its ant-harassment efforts, under its ongoing Agreement with DOJ, but needs to be spectically targeted tothe Athletic Department, b. Demonstrated leadership by the University’s Department of Athletics, through specific actions and directives designed to seta stronger tone and ccommitmert to compliance — that student athletes will be treated like and held to the same expectations and standards of conduct as other University students IPRA ReleaseHM Esa Kircher Cole, E59 January 16,2018 Page 12 Speciic sleps to encourage misconduct to be reported to the University andlor the police. Discipline for failure of employees to report misconduct. Greater transparency in the operation of the athietic programs, including Insuring that al practices are open to University officials 5. The University should establish policies and written protocols directed at employees in the Department of Athletics for the handling of situations of student athlete misconduct in order to ensure that student athletes are treated the same as other Universiy students. The policies and procedures should address: b Documentation requirements Reporting protocols (that misconduct must be reported to the head coach land to the Athletic Director, that certain misconduct must be reported to the Tite IX Coordinator andior Office of Student Conduct, as appropriate). Protocols for who should be present at any discussions with players about ‘misconduct (inciuding whether the Athletic Director should be present), Protocols ‘lating to communications hetwaan LNMPD and mamhars. of the Athlete Depariment staff that set forth: (1) who is responsible for communications in each department (limiting this to a few individuals at the highest level) and (2) the appropriate substance of any communications (Le., communication will be limited to information about the criminal process and will nat address the substance of particular cases Involving student athletes) Disciplinary consequences for failure to follow reporting, communications, {and documentation protocols, TPRA Release