The NCAA Dilemma

In the second installment of a two-part feature in advance of the arrival of UNC's Notice of Allegations, Inside Carolina explores the potential routes the NCAA may take to the penalty phase.

CHAPEL HILL, N.C. – The University of North Carolina’s AFAM scandal presents the NCAA with significant challenges in its attempt to deliver appropriate allegations and corresponding penalties.

Searching for Precedent

Academic fraud findings by the NCAA’s enforcement staff have historically been based on well-defined examples of cheating to benefit student-athletes. In 2009, the NCAA penalized Florida State for an academic scandal involving a learning specialist, an academic advisor and a tutor who took tests and wrote papers for 61 student-athletes.

In 2012, the NCAA penalized UNC when a tutor committed academic fraud with three student-athletes by constructing “significant parts of writing assignments for them,” according to the infractions report.

In March, the NCAA determined that Syracuse had committed academic fraud in several instances, including student-athletes receiving academic credit for misrepresented work and a mentor and tutor making revisions and writing assignments.

In April, NCAA President Mark Emmert said the “academic issues at Syracuse were right in the NCAA's wheelhouse,” according to’s Chris Carlson.

Emmert’s explanation provided a clear distinction between the aforementioned academic fraud cases and UNC’s pending case. The NCAA did not determine that a class was fake or questioned Syracuse’s academic standards; rather, it found that individuals within the athletic department were complicit in cheating.

“The academic quality of what's transpiring in a classroom by definition and by fairly obvious practicality,” Emmert told reporters during his Final Four press conference in Indianapolis in April, “that's managed first and foremost by the professor in the classroom, second by that person's department head, third by their dean, fourth by their provost, and fifth by their president. You couldn't have, even if you wanted, a staff from a national athletic association going into a classroom and seeing how a physics class is being taught. That's certainly not a role that an association should be playing.”

There are previous NCAA cases that provide a possible precedent with UNC’s situation. The NCAA determined that Auburn University did not commit academic fraud in 2005-06 by allowing students, including athletes, to take independent study classes taught by Sociology department chair Thomas Petee and adult education professor James Witte that required minimal, if any, time in the classroom.

Petee taught 252 independent study courses in one academic year (2004-05) – UNC Charlotte history professor David Goldfield told that teaching four or five independent study classes a semester would be a significant burden – and was cited by the university for having “too many students in too many course sections.”

Eighteen percent of the students in Petee’s courses were athletes.

In a similar case at the University of Michigan, The Ann Arbor News reported that psychology professor John Hagen taught 294 independent study courses from 2004-07 with a heavy concentration of student-athletes (85 percent). Student-athletes were steered to Hagen’s courses by athletic department academic counselors, according to the newspaper, and athletic department employees sometimes used the courses to boost student-athletes’ grade point averages.

Hagen even allowed two football players to enroll in an independent study course with one month remaining in the semester, and several student-athletes told The News that their courses involved “little to no research.”

A university investigation determined that Hagen had not graded student-athletes any differently than non-athletes and failed to uncover any violations. As such, the NCAA expressed little interest in Hagen’s independent study courses.

“It's ultimately up to universities to determine whether or not the courses for which they're giving credit, the degrees for which they're passing out diplomas, live up to the academic standards of higher education,” Emmert said in April.

UNC’s case of irregular AFAM courses, which were offered for nearly two decades (1993-2011) without detection, involved more than 3,100 students. Student-athletes made up 47.4 percent of the total course enrollment. One crucial difference from the Auburn and Michigan cases is that Deborah Crowder, the department secretary who engineered and coordinated the irregular classes, was not a member of the faculty.

One critical similarity is that the UNC administration is referring to the classes as irregular and not fraudulent, likely due to the Wainstein Report finding that work was required for a passing grade, regardless of the quality.

Class Legitimacy: Understanding Fraud vs. Benefits

Therefore the question at the heart of the NCAA’s investigation is whether or not the irregular classes were legitimate or completely made up, according to Stu Brown, an Atlanta-based attorney with experience in NCAA cases.

“They’ve been referred to as paper classes, but some work was required, even if it was just a 10-page paper that was largely bland and void of original intellectual contributions,” Brown said. “There was something that these kids had to do to get credit, so the NCAA is in a little bit of a box. Can they legitimately label that as academic fraud where a kid is getting credit for doing no work for a class that he or she really did not participate in at all? Or does that get them too close to the line of judging what is sufficient quality and quantity of work for an institution?”

To avoid that potential gray area, the NCAA could elect to go another route: labeling the irregular classes as impermissible benefits.

NCAA Bylaw 16.02.3 defines an extra benefit as “any special arrangement by an institutional employee or representative of the institution’s athletics interests to provide a student-athlete or the student-athlete family member or friend a benefit not expressly authorized by NCAA legislation.”

The bylaw continues to state that receipt of a benefit is not a NCAA violation if it is “generally available” to the school’s student population on a basis unrelated to athletics ability.

The Wainstein Report found no evidence to suggest that Crowder graded the student-athletes’ papers any different than non-athletes’ papers, which would have served as a damning example of an impermissible benefit. Another option, according to Brown, would be for the enforcement staff to determine if the ratio of student-athletes in the irregular classes was significant enough to raise a red flag.

Student-athletes represented 47.4 percent of the class enrollments despite accounting for just over four percent of the undergraduate student body, according to the Wainstein Report.

“Is that percentage so disproportionate that we’re willing to say, in effect, you basically had to be a student-athlete to get into these classes and therefore that was an extra benefit because it was so overwhelmingly set up for student-athletes to use even though some other small proportion of the general student body participated in the classes?” Brown said.

The fact that the majority of students in these irregular classes were non-athletes and that Crowder graded both groups equally could serve as yet another hurdle for the NCAA enforcement staff.

“Although there was maybe a preponderance of student-athletes in these paper courses, there were some non-student-athletes, so now the NCAA is back in the pickle of running a statistical analysis,” Brown said.

It’s probable, if not likely, that UNC and the NCAA have both run significant statistical analyses and will make their arguments based on those findings, according to Brown.

“Extra benefits is certainly something that will be analyzed, but it’s not even a clear slam dunk,” Brown said. “It’s going to have to be a judgment call based on an analysis of how many kids were in the classes, how many were student-athletes and what that percentage is compared to the rest of the student body.”

There are other potential violations to be considered – for example, to what extent certain athletics and ASPSA personnel knew about the structure of the irregular classes – but those are secondary compared to the NCAA’s handling and determination of Crowder’s decades-long scheme.

The new NCAA Division I Committee on Academics has been tasked with clarifying the NCAA’s academic misconduct policy and drafting legislation to streamline the process for member institutions.

The politics of the situation will undoubtedly factor into the conversation as well. Given the harshness of the optics in play with regard to scope, Brown said there is a “tremendous amount of pressure” for UNC to face substantial allegations and that technical language and mathematical computations may not satisfy the masses if the NCAA elects to go a less severe route.

“There is a feeling among athletics administrators and other observers with whom I’ve spoken to who would say, if something substantial isn’t alleged, how come we’re alleging anything against anybody?” Brown said.

Lack of Institutional Control

The NCAA constitution details institutional control as a member school’s responsibility to ensure its athletic department is in compliance with NCAA rules and regulations. However, the NCAA Committee on Infractions has stressed that institutional control needs to be applied in common-sense terms.

If the NCAA determines that a violation has occurred with regard to the irregular classes, then applying a lack of institutional control charge could depend on whether or not there were adequate policies and procedures in place at the time of the violation to deter such actions. UNC implemented numerous reforms since the issues were first uncovered and admitted to a “failure of meaningful oversight” following the release of the Wainstein Report.

Despite a variety of violations in UNC’s first case that opened in June 2010 - ranging from academic misconduct to impermissible benefits to an assistant football coach’s monetary relationship with a sports agent – the NCAA did not deliver a finding of lack of institutional control.

The infractions report concluded that UNC “cooperated fully, is not a repeat violator and, although there is a finding of failure to monitor, the institution exhibited appropriate control over its athletics program.”

New Penalty Structure

Given that the lengthy AFAM scandal ultimately ended in 2011 prior to the NCAA’s adoption of the new penalty structure in 2012, it’s likely that any potential penalties will fall under the old, less severe, structure. Conference USA commissioner Britton Banowsky, the chair of the NCAA’s Committee on Infractions, told reporters following the conclusion of Syracuse’s case in March that the Orange avoided stiffer penalties due to most of the violations occurring before the new penalty structure was put in place.

Inside Carolina Top Stories