Jurisdiction, Procedure, and Bylaw Interpretation Take Center Stage as UNC Appears Before the NCAA Committee on Infractions — an Analysis

Sep 15, 2017

By Michael S. Carroll, PhD
The University of North Carolina (UNC) recently concluded its appearance before the NCAA’s Committee on Infractions (COI) in Nashville, TN and now awaits a ruling on a case that stretches all the way back to 2010. The case alleging improper benefits was re-opened in 2014 with respect to academic irregularities, and saw three separate Notices of Allegations (NOA). The case has included allegations of academic fraud, impermissible benefits, and failure to monitor. As it currently stands, concerns regarding jurisdiction, procedure, and Bylaw interpretation are at the forefront of the case.
The original investigation into UNC began in 2010 and involved impermissible benefits to a number of football players, including gifts and improper academic assistance by a tutor. Results of the NCAA investigation led to a loss of scholarships and other penalties, concluding in 2013. It was during this investigation that academic irregularities surrounding courses taken within the Afro-American Studies Department (AFAM) were noticed. Following investigation, then-UNC Chancellor, Holden Thorp, announced that the University had identified suspect classes in which there was little evidence of classroom teaching and an unusually high amount of independent study classes. These classes consisted of little to no meetings and with grades determined based, in some cases, on a single paper. Amidst the investigation, the Department Chair of the AFAM Department, Dr. Julius Nyang’oro, retired, and the Chancellor stepped down. The University began an audit of AFAM courses and subsequently hired former U.S. Justice Department official, Kenneth Wainstein, to commission a comprehensive and independent report on the academic irregularities. In June 2014, UNC announced that the NCAA had reopened its investigation based upon information regarding the so-called “paper classes” within the AFAM Department. In October 2014, the Wainstein Report findings were released and detailed that more than 3,100 students between 1993 and 2011 were enrolled in such classes, 47% of which were student-athletes. The NCAA issued a Notice of Allegations (NOA) in May of 2015 detailing five Level I charges, including:
Academic counselors provided impermissible benefits to athletes in African and Afro-American Studies courses from 2002-2011 and allowed 10 student-athletes to exceed independent study credit limits.
Academic counselor Jan Boxill provided extra benefits by way of impermissible academic assistance and special arrangements to women’s basketball players from 2007-2010.
Student services manager Deborah Crowder violated the NCAA principles of ethical conduct in failing to cooperate with the NCAA enforcement staff’s requests during this investigation.
Professor and chair of the African and Afro-American Studies department Dr. Julius Nyang’oro violated the NCAA principles of ethical conduct in failing to cooperate with the NCAA enforcement staff’s requests during this investigation.
Allegation Nos. 1 and 2 violated the NCAA principles of institutional control and rules compliance in failing to monitor Boxill and violated lack of institutional control in impermissible benefits provided by the African and Afro-American Studies (AFRI/AFAM) department.
Following the NOA, and during the 90-day response window for UNC, the University admitted to additional violations related to women’s basketball and men’s soccer. As such, the NCAA added a charge for failure to monitor the academic support program for athletes and properly oversee the AFAM Department. No coaches were cited for a violation, and the NCAA removed a charge of school athletes receiving improper benefits through access to the problematic AFAM courses and exceeding a 12-hour limit on independent study credits. Additionally, the NCAA also removed all references to the men’s basketball and football programs within the set of allegations. In their response, UNC challenged the NCAA on jurisdictional grounds with respect to academic issues and detailed potential infringement of specific Bylaw parameters by NCAA enforcement staff personnel. Essentially, UNC argued that the NCAA Amended Notice of Allegations (ANOA) referenced core academic issues of core structure, content, and administrative oversight that go beyond the scope of authority granted to the NCAA as an organization by its members. UNC cites the Southern Association of Colleges and Schools Commission on Colleges (SACSCOC) as holding jurisdiction over such academic issues. In 2015, UNC was placed on probationary status by the accrediting agency, and was restored to full accreditation in 2016. In its response, UNC also challenged three of the Level I NCAA allegations, including the most serious charge of lack of institutional control (LOIC).
Following UNC’s response to the ANOA, the NCAA set a procedural hearing to be held October 28, 2016. The letter indicated that the sole focus of the hearing would be the five arguments UNC raised in its response, including NCAA jurisdiction. The letter stated that, “… the panel will not discuss the underlying facts or allegations for the purpose of finding facts, concluding whether violations occurred or prescribing penalties.” UNC responded October 14, 2016 with a request to the Committee of Infractions (COI) Chairman and SEC Commissioner Greg Sankey to supplement the record and explain its position on the procedural and jurisdictional claims. Three days after receiving UNC’s request, Sankey rejected the inclusion of the documents on the basis that the University had not met the NCAA’s threshold requirement that materials to be considered by the hearing panel be submitted at least 30 days prior to a hearing. In this case, however, UNC had only received notice of the hearing 32 days prior. Sankey did allow UNC to submit a 10-page “targeted and synthesized submission” but only to Sankey himself and not the COI panel, in accordance with Bylaw 19.7.6, which gives the committee chair authority to resolve procedural hearings that arise prior to an infractions hearing. Thus, the COI panel never saw any of the documentation UNC submitted. The documents that UNC intended to include in the record were two letters of correspondence with the NCAA’s enforcement staff that detailed the reasoning behind the NCAA removing its charge of impermissible benefits related to student-athletes and AFAM courses at UNC in the ANOA, the primary factor of which was a failure on the part of NCAA investigators to adhere to NCAA Bylaws during the investigative process. Without this documentation, the COI panel expressed concerns to UNC regarding the removal of the first allegation listed in the original NOA.
UNC subsequently argued that the NCAA COI Chairman denied UNC’s opportunity to provide evidence to the committee and then cited the absence of such evidence in the instructions it gave to the NCAA enforcement staff to revisit the second NOA. Absent such evidence, the panel requested that the enforcement staff review “…whether the potential violations in this case are alleged in a fashion to best decide this case,” and determine whether any changes were necessary to issue a second amended NOA. The enforcement staff chose to do so and delivered a second ANOA to UNC December 16, 2016, adding back specific references to the football and men’s basketball programs, noting that “…many at-risk student-athletes, particularly in the sports of football and men’s basketball, used these courses for purposes of ensuring their continuing NCAA academic eligibility.” Additionally, the panel seemingly lowered its standards for admissible evidence by classifying the 2016 Wainstein Report as new information to be included in the record and allowed interviews with AFAM administrative assistant Deborah Crowder and AFAM department chair Julius Nyang’oro to be used in the infractions hearing despite concerns regarding whether those interviews meet NCAA investigative Bylaws for inclusion. No NCAA or UNC representatives were present for the interviews, and they were not recorded or transcribed. Furthermore, UNC contends that while the underlying facts and figures of the Wainstein Report are appropriate for consideration, the subjective conclusions reached by Wainstein should not.
The second ANOA (third overall) reverted back to language in the first NOA, listing five Level I violations including,
African and Afro-American Studies student services manager Deborah Crowder and department professor/chair Julius Nyang’oro committed extra benefit and ethical conduct violations from 2002-11 by overseeing anomalous courses in the department and giving athletics personnel authority to impact aspects of the courses for student-athletes. School personnel committed extra benefits violation by leveraging the relationship with Crowder and Nyang’oro to provide special arrangements to student-athletes.
Academic counselor Jan Boxill provided extra benefits by way of impermissible academic assistance and special arrangements to women’s basketball players from 2003-2010.
Crowder violated the NCAA principles of ethical conduct by failing to cooperate with the NCAA enforcement staff’s requests.
Nyang’oro violated the NCAA principles of ethical conduct by failing to cooperate with the NCAA enforcement staff’s requests.
Allegation No. 1 and No. 2 show school’s failure to exercise institutional control and failure to monitor the conduct and administration of athletics programs.
The third NOA added back language in Allegation 1a, specifying, “… many at-risk student-athletes, particularly in the sports of football and men’s basketball, used these courses for purposes of ensuring their continuing NCAA academic eligibility.” The NOA also alleges that the institution and its athletic department provided student-athletes with special arrangements that were not generally available to the student body such as aid in registration of courses, obtaining assignments, suggesting assignments to the department for student-athletes to compete, submitting papers on behalf of student-athletes, requesting certain course offerings within the AFAM department, and recommending course grades. The NOA also cited excessive involvement by athletics in student-athletes’ access to, and completion of courses, constituting a benefit not generally available to other students.
In its response, UNC contends that no special arrangements were made for student-athletes in violation of NCAA extra-benefit legislation and that courses were available to all students. Additionally, UNC contends that the percentage of student-athletes registered in such classes amounted to 29.4%. UNC contends that no one in the athletic department took improper advantage of the courses and that there is no allegation that any coach or employee of the athletic department violated a bylaw or directed a student-athlete to take any of the courses. UNC also contends (and has always contended) that the issues before the panel were academic in nature and the result of inadequate academic oversight on the part of the University and not the athletic department, thus outside the jurisdictional scope of the NCAA. The response continues with noting that the academic nature of the issue is demonstrated through the involvement of the Southern Association of Colleges and Schools Committee on Colleges (SACSCOC), which placed the institution on probationary status until successfully remedied through over 70 reforms and initiatives. The response also contends that the panel should be making a decision based upon NCAA rules and bylaws and not on public opinion or media reports.
In support of its response, UNC cites NCAA Bylaw, which governs permissible academic counseling and support services for student-athletes and states:
Academic Counseling/Support Services. Member institutions shall make available general academic counseling and tutoring services to all student-athletes. Such counseling and tutoring services may be provided by the department of athletics or through the institution’s nonathletics student support services. In addition, an institution may finance other academic and support service that the institution, at its discretion, determines to be appropriate and necessary for the academic success of its student-athletes
UNC argues that the items listed within the third NOA fall under this bylaw and cite a bylaw interpretation made by the Atlantic Coast Conference (ACC) compliance staff at UNC’s request to this effect. The memo stated that it was permissible under Bylaw 16.3 for athletics academic counselors to contact academic department staff members to check the availability of courses, request that courses be offered, register student-athletes, request and obtain student-athletes’ assignments, and to submit student-athletes’ assignments. Non-permissible benefits are defined under NCAA Bylaw, which states:
The student-athlete shall not receive any extra benefit. The term “extra benefit” refers to any special arrangement by an institutional employee or representative of the institution’s athletics interests to provide the student-athlete or his or her family members or friends with a benefit not expressly authorized by NCAA legislation.
It is UNC’s contention that, if the referenced academic support previously listed is permitted under NCAA Bylaw 16.3, then it cannot then be deemed an extra benefit under Bylaw Additionally, UNC disputes the NCAA’s contention that athletics personnel provided the previously listed support benefits, as the advisors referenced worked for and reported to the Academic Support Program for Student athletes (ASPSA), reports to the College of Arts and Sciences and has no connection to the athletic department. The NCAA disagrees with the interpretation of both UNC and the ACC, stating that student-athletes received access to, and assistance in, certain courses that was not generally available to other students and that those arrangements violated NCAA bylaws and constituted a competitive disadvantage of other schools.
According to NCAA guidelines, an infractions report should be delivered within 8-12 weeks of UNC’s recent appearance before the NCAA COI, although it took nearly five months for this to occur the last time UNC appeared before the COI in March 2012. Once the infractions report has been received, UNC has 15 days to decide on whether to appeal, with a 110-day timeline for the appeals process. Depending upon the outcome, UNC may consider legal action in federal court, a route that noted ESPN college basketball analyst Jay Bilas believes is very much possible. Bilas stated that the NCAA as a rules-based organization cannot simply break its own rules to get the result that it wants, and that UNC would likely win in federal court.
It should be noted that this is not the first time schools have been found to have provided courses of this manner to student-athletes. From 2004-2007, a Psychology professor at University of Michigan offered at least 294 independent study courses, with 85% of those courses including student-athletes. Former athletic department personnel stated that the independent study courses were at times used by academic support staff to boost the GPA of student-athletes in danger of becoming academically ineligible. Athletes described learning how to take notes, use a day planner, make a calendar, and manage their time in such courses. Likewise, in 2006, a Sociology professor at Auburn University was found to have offered a usually high number of directed-reading courses. Eighteen members of the 2004 Auburn football team alone took 97 hours of these courses during their careers, and during this time, the Auburn football team had the highest academic progress ranking of any Division I-A public university among the six major conferences. Neither of these cases resulted in any NCAA infractions or penalties.
Michael S. Carroll is an Associate Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation.


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