Carolina’s Blind Side
NCAA infractions case No. 00231 began simply enough, with a letter, dated June, 30, 2014, from the NCAA to UNC-Chapel Hill. The letter was, in NCAA parlance, a “notice of inquiry” – the first official documentation in any major NCAA investigation.
The start of the case, and producing that letter expressing the NCAA’s intent to investigate how years of bogus African Studies courses benefited athletes, was the easy part. The more difficult part – building a case and applying NCAA bylaws to what transpired at UNC – has endured since.
UNC officials, including chancellor Carol Folt, athletic director Bubba Cunningham and coaches Larry Fedora, Sylvia Hatchell and Roy Williams, will convene on Wednesday in Nashville, Tenn., where the university is due to appear for its long-awaited hearing before the NCAA Committee on Infractions.
It is the next step in the NCAA’s investigative process, and one that, amid several delays and restarts, has been a long time coming. The university received its first Notice of Allegations (NOA) in this case more than two years ago, on May 20, 2015.
An amended NOA, after nearly a year of back-and-forth communication between UNC’s legal team and the NCAA Enforcement Staff over whether the classes at the heart of the case constituted a violation of impermissible benefits rules, arrived on April 25, 2016. And yet another amended NOA, after several more months of increasingly combative correspondence, arrived on December 13, 2016.
Few NCAA infractions cases, if any, have included the number of twists as this one. In a standard case, a university will receive an NOA, respond, receive a response to that response from the NCAA, and go before the infractions committee. That part of the process can take less than a year.
In this case, the university and the NCAA have engaged in a long, often acrimonious debate about how, if at all, NCAA bylaws apply to what happened at UNC, where for 18 years a disproportionately high number of athletes filled African Studies courses that didn’t meet, featured little to no instruction and only required a paper that often received a high grade regardless of its quality.
UNC’s accrediting agency, the Southern Association of Colleges and Schools, found that the courses at the heart of this case lacked integrity and that the problems associated with them violated six of its other principles. For that, UNC endured a year of probation.
Former federal prosecutor Kenneth Wainstein, whose independent investigation the university has considered the definitive account of what transpired, described the classes as a “shadow curriculum.” Even Cunningham, the UNC athletic director, said during a February interview with CBS Sports that what happened at UNC would meet the definition of academic fraud “by a normal person’s standards.”
To the NCAA Enforcement Staff, though, this has never been an academic fraud case, and the specifics of the courses – how they were administered, the legitimacy of their grades – has never been a part of the case against UNC. Instead, the NCAA has crafted its case around allegations of impermissible benefits – the benefits, usually, being the access to the courses, and not the courses themselves.
It is an argument that, from the beginning, has puzzled some longtime observers of college athletics, including those with a deep knowledge of the inner workings of the NCAA infractions process. David Ridpath, a member of the faculty at Ohio University and a former NCAA compliance director at Marshall University, has closely followed the UNC investigation.
He has, at times, been surprised by how the NCAA has framed the case, without any allegations of academic misconduct.
“That’s been a little bit of a mystery to me,” said Ridpath, who is also the president of the Board of Directors of the Drake Group, whose mission is to defend academic integrity in higher education from the “corrosive aspects” of major college sports. “I know that reasonable people can disagree, but I think clearly it meets the definition of academic fraud.”
Whether the NCAA would agree with that assessment was one of the key questions before the arrival of the first NOA, in May 2015. Yet in that notice, and the two subsequent amended notices, the NCAA targeted the courses in roundabout ways, using in the first and third NOAs bylaws relevant to impermissible benefit legislation.
Three of the five allegations facing UNC, at least, have largely remained consistent throughout the three NOAs. Those would be the NCAA’s charges against Julius Nyang’oro and Debby Crowder, the two former African and Afro-American Studies Department employees whose actions allowed the bogus courses to endure, and against Jan Boxill, the former women’s basketball academic counselor.
The problems surrounding the classes themselves, though, and how they violated NCAA rules, have been the subject of three changing allegations. The enforcement staff has attempted to ascribe four different bylaws to those three allegations, and none of the allegations relating to the courses were based on the same combination of NCAA bylaws.
In the first NOA, the NCAA alleged that the university “leveraged relationships” with personnel in the Department of African and Afro-American Studies “to provide special arrangements” for athletes that weren’t generally available. That language disappeared in the second NOA, but the NCAA alleged, still, that UNC violated the “NCAA Principle of Rules Compliance” by failing to monitor the relationship between athletic academic counselors and the AFAM department.
Then came the third NOA, which more closely resembled the first. References to men’s basketball and football, removed in the second NOA, returned. The NCAA again linked extra benefits bylaws to the courses, alleging that UNC and its athletic department “leveraged” a relationship with Crowder and Nyang’oro “to obtain special arrangements” for athletes “in violation of extra-benefit legislation.”
All the while, UNC argued that the NCAA, essentially, had no business legislating any aspect of the courses, to which the NCAA offered its vehement disagreement in response. UNC’s legal team, led by Rick Evrard, has argued, among other things, that the NCAA’s inconsistency in applying its rules is reflective of the position that there’s no case to be made at all – that the classes, and the problems that surrounded them, aren’t subject to NCAA bylaws. Evrard repeated that argument – that the classes didn’t violate NCAA rules – again and again in UNC’s most recent response.
“Because the issue of the courses is an academic issue, the university denies that there were NCAA violations,” he wrote near the beginning of the response that UNC sent the NCAA on May 16.
Now it will be up to the NCAA Committee on Infractions, led by chairman Greg Sankey, who is the SEC Commissioner, to decide whether it agrees with UNC’s defense, or with the enforcement staff’s case. The application of the bylaws, and whether they are appropriate given what transpired at UNC, is likely to be a focal point of the hearing on Wednesday and Thursday.
The hearing will be closed to the public – all NCAA hearings like this one always are – but followers of college athletics, whether they be athletic department administrators, university presidents, athletic academic support personnel or coaches, will undoubtedly closely follow how the infractions committee decides the case.
Gene Marsh, a former infractions committee member and chairman, said during a recent interview that he has casually followed the UNC case. He emphasized that he hasn’t studied its specifics, and made clear that “guessing what a case is like now as a ‘former member’ is a bit like trying to guess what your prom date from 40 years ago looks like now.”
I mean, call it what you want. If it walks like a duck, quacks like a duck and whatevers like a duck, it’s a duck.
Gene Marsh, a former infractions committee member and chairman
In general terms, though, he spoke of the difficulty the enforcement staff has had in recent years in making strong cases out of investigations related to academic misconduct involving athletes.
“Now everybody’s going through this tortured word-smithing, calling it extra benefits instead of (academic misconduct),” Marsh said, making it clear, again, that he wasn’t specifically critiquing the case against UNC, or its defense. “I mean, call it what you want. If it walks like a duck, quacks like a duck and whatevers like a duck, it’s a duck.
“And it’s academic fraud or misconduct that is directed at keeping student-athletes eligible. Things have gone so far off the rails now. The first line of defense institutions raise is, ‘Well, yeah, we kind of went off our rails but it wasn’t just athletes that went off the rails.’ As though that’s something you should be proud of?”
Indeed, that is part of UNC’s defense – that the courses in question were equally available to non-athletes as they were to athletes, and that non-athletes, like athletes, took advantage of their lax standards. When Ridpath, at times an outspoken critic of the NCAA, worked at Marshall, he was involved in a similar case.
There, a professor provided impermissible academic assistance to athletes. A copy of a test he provided to football players circulated among other students, ensuring some of them had the same advantage as the athletes. Marshall did not originally face an allegation of academic fraud, but the infractions committee, which has the authority to adjust the allegations, subsequently added it.
“So to me, the fact that others received the same benefit – as in the Marshall case – to me is irrelevant,” Ridpath said. “I mean, what was the purpose of this program (at UNC) when it became a soft spot in the curriculum that was essentially exploited? “
“I’ve been researching this as a faculty member for years, talked to various people who’ve worked for the NCAA, conference commissioners, athletic directors. It’s a pretty clear consensus that trying to sell this as anything other than primary a benefit for athletes is a pretty weak argument.”
The seven members of the infractions committee, though, will have the ultimate say. The committee can agree with the case that enforcement has presented. It can agree with UNC’s defense that the NCAA incorrectly applied its bylaws. The committee can add charges, as well.
Soon, on Wednesday, the NCAA infractions case No. 00231 will be in the committee’s hands. The enforcement staff, whose case against UNC changed significantly over three NOAs, will be asked to defend its position, and how it built its case. And the college sports world will be following, as much as anyone can follow a closed-door hearing.
“I think everybody in college athletics knows this is a big case,” said Tom Yeager, another former infractions committee member and chairman. “It’s a very big case, and that’s not lost on the committee. It’s not lost on the (enforcement) staff. It’s one of those that, regardless of the outcome, will have significant interest and, probably, application for a long time in comparison cases.”