North Carolina

What UNC and the NCAA are likely discussing behind closed doors in Nashville

UNC coaches and officials arrive for closed-door NCAA infractions hearing in August

UNC coaches Roy Williams, Larry Fedora and Sylvia Hatchell and athletics director Bubba Cunningham arrive in Nashville in August for UNC’s long-awaited hearing before the NCAA Committee on Infractions.
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UNC coaches Roy Williams, Larry Fedora and Sylvia Hatchell and athletics director Bubba Cunningham arrive in Nashville in August for UNC’s long-awaited hearing before the NCAA Committee on Infractions.

UNC-Chapel Hill officials and coaches appeared on Wednesday before the NCAA Committee on Infractions. The first part of the long-awaited hearing, which is the next step in an NCAA investigation that began more than three years ago, lasted for 10 hours.

It continues on Thursday morning. The hearing is closed and nobody attending it – neither UNC officials nor NCAA personnel nor member of the infractions committee – has made a public comment about the proceedings. Details about what happened behind closed doors could remain scarce.

Even so, UNC’s most recent response to the NCAA, as well as correspondence between the two sides during the past year, provides insight into how the university will defend itself during the hearing. The university faces five Level I allegations, the most serious the NCAA Enforcement Staff can allege.

The allegations UNC faces:

1. That Julius Nyang’oro and Debby Crowder, the two former African Studies department employees most responsible for administering and creating the bogus classes at the heart of the case, violated principles of ethical conduct and extra-benefit legislation in connection with the classes. The NCAA alleges that UNC’s athletic department “leveraged” the relationship with Nyang’oro and Crowder to obtain “special arrangements” for athletes in violation of extra-benefit legislation. The NCAA has argued that academically at-risk athletes used the classes to maintain their eligibility.

2. That Jan Boxill, the former women’s basketball academic counselor, provided extra benefits in the form of impermissible academic assistance.

3. That Crowder violated NCAA principles of ethical conduct when she failed to furnish information to the NCAA in 2014 and 2015.

4. That Nyang’oro violated NCAA principles of ethical conduct when he failed to furnish information to the NCAA in 2014 and 2015.

5. That UNC lacked institutional control and failed to monitor the conduct and administration of its athletic programs.

UNC has either accepted or taken no position on allegations No. 3 and No. 4. The university accepts parts of allegation No. 2, but rejects other parts of it – and it argues that the parts that it accepts are beyond the NCAA’s statute of limitations. The university’s strongest arguments, though, are against the first and fifth allegations, which also happen to be the most serious the university faces.

Based on publicly-available correspondence between the university and the NCAA, and based on UNC’s response to the NCAA’s third notice of allegations, here’s a look at the potential arguments UNC has made behind closed doors during the infractions hearing, the enforcement staff’s potential response and the likely outcome of that allegation:

1. The argument:

“The courses in issue were available to all students in the same manner. No special arrangements were made for student-athletes in violation of NCAA extra-benefit legislation.”

Meaning: If everyone had equal access to the classes in question, then how can UNC be accused of making special arrangements for athletes and allowing them unique access to the courses? There’s no rules violation because there were no special arrangements.

The counter: Were the courses really available in the same manner? The enforcement staff doesn’t believe so.

It cites the proportionality of athletes to non-athletes who enrolled in these courses, and uses the disproportionately high number of enrolled athletes to surmise they had greater access to the classes than non-athletes. The NCAA will also argue that athletic academic counselors possessed much greater knowledge about the intricacies of these courses – their lax standards, the little work they required – than general academic counselors.

The University of North Carolina at Chapel Hill was extensively investigated by the NCAA for a system of fake classes taken by thousands of students, roughly half of them athletes, that spanned three decades.

The NCAA’s most compelling argument might be this: the classes were largely unpublicized. The mere act of enrolling in them often required inside knowledge of how to do so, and athletic academic counselors had such knowledge. They knew what these classes were, knew they required little work, and knew they could use them as a way to help athletes maintain their academic eligibility.

Likely outcome: This is one of the most important issues that both sides will debate during the hearing. UNC raises a strong point in that, in a technical sense, anyone could have enrolled in these courses. The problem with that argument, though, is that not everyone knew what these classes were, and how they were being exploited. Athletic academic counselors did know those things, and so this is an argument that UNC will likely find difficult to win during the hearing.

2. The argument:

“All students who took the courses were required to write one or more research papers. The record shows that each student who took a course turned in work that was evaluated and given a grade for credit.”

Meaning: Simple enough – athletes were treated no differently in these courses. Any student who took these courses had to do work and turn it in for a grade. Any athlete enrolled in one of these courses, therefore, had to do the same.

The counter: How can it be known to what degree athletes were treated the same, or not? There is grade data associated with these classes, but such data wouldn’t necessarily reflect the quality of the work behind the grades. Without evaluating the work itself, how can it be known whether the grades were legitimate, or whether athletes were treated the same as non-athletes, or better – or worse?

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These facts, though, have been established: Athletes took these classes in high numbers. And the classes included little to no instruction and required a paper that usually received a high grade regardless of its quality. To what degree athletes were treated differently, better or worse, than non-athletes might be irrelevant, in the NCAA’s eyes.

Likely outcome: The committee might well agree that athletes, once enrolled in the courses, received treatment no different from non-athletes. How much that matters to the committee, though, is debatable given the myriad of problems that surrounded the courses, and given that the problems associated with them led to UNC serving one year of probation, a penalty levied by its accrediting agency.

3. The argument:

“The courses originated in the (African Studies) department and not the Department of Athletics. The origin of these courses was not to benefit student-athletes but arose out of a desire of department chair and professor Julius Nyang’oro and the department’s student services manager and secretary Deborah Crowder to appropriately assist students with a wide variety of challenges and interests.”

Meaning: The athletic department had nothing to do with the origin of the classes, and the classes did not originate from a desire to help athletes.

The counter: The NCAA could counter this argument in at least a couple of ways. One: Why is the origin story of the courses relevant if, over time, the athletic department did find a way to take advantage of a compromised curriculum? Second, how can it be known, for sure, what Crowder’s motivations were in taking a lead role in creating these courses?

That cuts both ways, too: those who argue that Crowder’s motivations were driven, most powerfully, by a desire to help athletes would have to offer definitive proof. It’s much easier to ascribe motivations to Crowder based on her cozy relationship with various athletic department personnel (she shares a personal relationship with Warren Martin, a former UNC basketball player, and was friends with longtime men’s basketball academic counselor Burgess McSwain) but that doesn’t necessarily account for hard proof.

Likely outcome: Among the arguments at stake during the infractions hearing, this one might be among the least important. The enforcement staff, remember, didn’t even allege that allegations occurred during the first nine years that these courses existed. It can be surmised, then, that the NCAA didn’t so much care about how the classes originated, but what they became. Will the infractions committee agree?

4. The argument:

“No one in the Department of Athletics took improper advantage of the courses. There is no allegation that any coach or employee of the Department of Athletics violated a bylaw or directed a student-athlete to take one of these courses.”

Meaning: Simple enough: no coach, and no other member of the athletic department, ever violated a bylaw in association with these courses or directed an athlete to take one of these courses. In other words, there was no athletic involvement, provable to a degree to warrant an allegation of a violation.

The counter: The enforcement staff never alleged that a coach directed an athlete to one of these courses, nor did the staff accuse an athletic department employee with a violation. The argument the staff has made, though, is that the athletic department “leveraged” the relationship with Crowder and Nyang’oro in order to provide special access to these courses.

That’s a vague argument, and one that’s difficult to pin down given the enforcement staff used the wording “athletic department” instead of naming specific individuals. The NCAA has argued, too, that athletic academic counselors were essentially the go-between between athletics and the classes. The question is to what degree the infractions committee accepts UNC’s argument that no one in athletics took improper advantage of the courses.

Investigator Kenneth Wainstein describes a lack of oversight by UNC while outlining his investigation into academic issues and athletics. Wainstein was presenting his findings during a 2014 press conference held by UNC.

Likely outcome: This is likely to be an important part of whatever the committee decides with this case. If it is more inclined to accept UNC’s argument – that no one in athletics took advantage of these courses – then that would be a positive for UNC. If, though, the committee decides the opposite – that coaches or athletic department officials could have reasonably known about these courses without having necessarily committed violations – then UNC’s accurate assertion that no athletic department staff member faces charges could become less meaningful.

5. The argument:

“The issues before this panel were academic in nature and the result of inadequate academic oversight unrelated to the Department of Athletics. The academic nature of the issues is shown by the fact that those issues have been addressed by the Southern Association of Colleges and Schools Committee on Colleges (“SACSCOC”), the University’s academic accreditor.”

Meaning: The issues at the heart of this case are not subject to NCAA bylaws.

The counter: The enforcement staff countered this argument in its response to UNC’s response, part of which read: “The issues at the heart of this case are clearly the NCAA’s business.” This debate, essentially, is what this case is all about. UNC’s primary argument, above all others, is that the NCAA has exceeded its reach with its involvement. The NCAA, meanwhile, has rejected that. Both sides of this case share many disagreements, and this is perhaps the most significant of all of them.

Likely outcome: Well, we’re here, aren’t we? UNC’s hearing lasted nearly 10 hours on Wednesday and continues on Thursday and so, clearly the university has failed to dissuade the NCAA from pursuing this case. You can probably guess the likelihood of success of an argument that this case is beyond the NCAA’s purview. The question, now, is to what degree the infractions committee agrees with the case brought before it – and whether it rejects some charges or even adds others.

Andrew Carter: 919-829-8944, @_andrewcarter

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