North Carolina

The 10 most important arguments in UNC’s response to the NCAA

UNC-Chapel Hill on Thursday released a public version of its most recent response to the NCAA, which the university submitted on May 16.

Here are some of UNC’s key arguments:

1. NCAA rules don’t apply here.

Above all, that remains UNC’s primary argument: That the bogus African studies courses at the heart of the NCAA investigation aren’t subject to NCAA rules and that, therefore, the problems associated with those courses fall outside of the NCAA’s jurisdiction. UNC’s accrediting body found those classes to be fraudulent but the university argues, strongly, that they don’t constitute a violation of NCAA rules.

2. The “narrative” is wrong.

As is a popular trend these days, in politics and elsewhere, the university’s legal team that prepared this response went after the media and asserted that the case has been unfairly portrayed. UNC sets up this argument from the very first paragraph of the response:

“The public narrative for the last six years, popularized by media accounts, is that the Department of Athletics at the University of North Carolina at Chapel Hill (the ‘University’) took advantage of ‘fake classes’ in the Department of African and African-American Studies (the ‘Department’) to keep student-athletes eligible. That narrative is wrong and contradicted by the facts in the record.”

3. It’s wrong to allege that the African studies courses represented an extra benefits violation.

The first allegation in the NCAA’s most recent notice of allegations charges UNC with violating principles of ethical conduct and extra-benefit legislation in relation to the bogus classes. UNC’s response: “Because the issue of the Courses is an academic issue, the University denies that there were NCAA violations.”

4. Similar things happened at Auburn and Michigan and the NCAA did nothing.

For the first time, UNC compared its case to ones with similar circumstances at Auburn and Michigan during the past 11 years. UNC argued that the NCAA has not presented “a consistent theory” of how African studies courses in question violated NCAA rules, and that the NCAA made no allegations of wrongdoing “for similar conduct” against Auburn and Michigan.

5. Wainstein got some things wrong … and his report shouldn’t be used as evidence.

University leaders praised Ken Wainstein’s report when it was released in October 2014. Wainstein, a former federal prosecutor who is now being considered to lead the FBI, concluded that for 18 years the African studies courses in question helped athletes, including many football and basketball players, remain eligible.

Despite the earlier praise, though, UNC in its latest response distanced itself from the Wainstein report, and also rebutted some of the data Wainstein presented. He found that athletes accounted for approximately 47 percent of enrollments in the classes. In its response, UNC said then-current athletes accounted for 37.2 percent of the enrollments.

UNC argues that the Wainstein report “was never intended to be used for NCAA purposes” and that “it does not reference a single NCAA bylaw.”

6. The NCAA knew about the problems with these courses and did nothing for years.

Another key argument UNC makes is that NCAA officials knew about the problems within the African and Afro-American Studies Department and, for years, concluded that those problems did not represent a violation of NCAA rules.

UNC argues that the NCAA was familiar with the AFAM problems toward the end of the NCAA’s UNC football investigation, which concluded in 2012. NCAA officials assured UNC on multiple occasions between 2011 and 2013 that the NCAA would not investigate the classes. In 2014 the NCAA reopened the case.

7. Other schools have classes in which athletes receive credit for playing sports.

One of the cruxes of the NCAA’s case against UNC is that the university steered academically at-risk athletes into the bogus AFAM classes so that the athletes would receive high grades, helping them remain eligible. UNC in its response argued that at 28 Division I schools, including three in the ACC, five in the Big 12 and four in the Big Ten, athletes can receive academic credit for playing a sport.

If those sort of arrangements are acceptable under NCAA rules, UNC argued, then that’s further proof that what happened at UNC shouldn’t represent a violation of extra-benefit legislation. UNC also noted that, based on an internet search, 44 Division I schools “appear” to have classes that are only available to athletes.

The implication there: If athlete-only courses are acceptable at other universities, how can UNC find itself in trouble for athletes enrolling in high numbers in the AFAM courses?

8. Athletes did work and earned their grades in the suspect AFAM classes.

UNC’s accrediting agency punished the university with a probationary period and determined that the AFAM courses in question constituted academic fraud. In its response to the NCAA, though, UNC argued that there is “significant evidence” that athletes worked for their grades in those classes. From the response:

“(The athletes’) academic counselors, who assisted with that work during the semester, reported that the student-athletes who took the Courses typically prepared an abstract and outline, performed research and, over the course of weeks of work, drafted a 20- to 25-page paper with citations and quotations to scholarly sources and containing a works cited page.”

9. There was no lack of institutional control.

UNC is facing five Level I allegations, which are ones the NCAA considers to be the most serious. And the most damning allegation of them all is that of a lack of institutional control. Following from the premise that the classes themselves – and the issues associated with them – don’t constitute a violation of NCAA bylaws, the university argues that it did not lack institutional control.

UNC ends its response by asserting, as it did throughout the response, that the problems related to the AFAM courses shouldn’t be an NCAA matter: “The University takes seriously its obligations to comply with NCAA bylaws, but fundamentally believes that the matters at issue here were of an academic nature that do not implicate the NCAA bylaws in the manner alleged in the Second ANOA.”

10. Prepare for a fight.

The response didn’t necessarily put it in those terms, exactly, but UNC’s response was essentially a complete admonishment of the NCAA’s most recent notice of allegations. UNC argued throughout its response that the NCAA is overstepping its bounds and inappropriately attempting to apply its bylaws where they don’t fit.

In a conference call with reporters on Thursday afternoon, hours after the public release of the response, UNC athletic director Bubba Cunningham said the university is prepared to “exhaust” all of its options to defend itself against what it has considered to be an unfair NCAA investigative process. What that means beyond normal appeals is unclear.

For now, though, UNC will wait. The NCAA will issue a response to the response within the next month. And then, perhaps as early as August, the case will go before the NCAA Committee on Infractions, which is the judge and jury in major NCAA investigations.

Andrew Carter: 919-829-8944, @_andrewcarter

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