The NCAA's Dilemma with UNC Allegation 1(a)

NCAA lacks applicable bylaws for its leading allegation against UNC.

CHAPEL HILL, N.C. – While the University of North Carolina awaits the NCAA’s amended notice of allegations, national experts, along with recent NCAA legislation, suggest the legitimacy of the most serious allegation in the original notice is tenuous at best.

The New Proposal

Earlier this month, the NCAA’s Division I Council announced the first legislative change to the organization’s approach to academic issues in over 30 years by unveiling a new set of rules that would require schools to create their own academic integrity policies that apply to all students. The proposal, designed by the Division I Committee on Academics, is significant in that it removes the NCAA enforcement staff’s role in determining if academic impropriety occurred. Only conduct violating a school’s academic integrity policy could turn into a NCAA violation.

Carolyn Callahan, a University of Virginia education professor and a member of the Committee on Academics, said the proposal was years in the making due to the NCAA membership seeking clarity on academic issues.

“It was just unclear where to look and how to interpret the old legislation,” Callahan wrote in an email to Inside Carolina this week.

Callahan said the proposal was not a response to UNC’s academic scandal, noting a wide range of academic issues across various institutions that played a role in developing the legislation. Even so, the proposal, the first of its kind since 1983, hints at legitimate questions about the NCAA’s ability to apply its current bylaws to UNC’s AFAM investigation.

Targeting Impermissible Benefits

The NCAA has historically limited academic fraud allegations to cases with well-defined examples of cheating to benefit student-athletes. In 2015, the NCAA determined that Syracuse had committed academic fraud when a tutor and three football student-athletes provided false and/or misleading information and two basketball staff members arranged for fraudulent academic credit.

Finding academic fraud when individuals within an athletic department are complicit in cheating is a simple determination for the NCAA’s enforcement staff. It’s a completely different matter when the NCAA encounters a situation in which the legitimacy of classes or an institution’s academic standards are in question, such as UNC’s pending case.

NCAA President Mark Emmert has repeatedly said it’s not his enforcement staff’s role to determine how a class should be taught, which speaks not only to the academic integrity proposal, but also to the NCAA’s decision not to allege academic fraud in its notice of allegations to UNC last May.

Instead, the enforcement staff elected to go the route of impermissible benefits in Allegation 1(a), indicating that UNC “athletics academic counselors in the Academic Support Program for Student-Athletes (ASPSA) leveraged their relationships with faculty and staff members in the African and Afro-American Studies (AFRI/AFAM) department to obtain and/or provide special arrangements to student-athletes that were not generally available to the student body.”

Allegation 1(a) cites Bylaw, which is a catchall rule about extra benefits with no specific reference to academics. The aforementioned academic integrity proposal suggests a new category of violations for impermissible academic assistance.

David Goldfield, a UNC Charlotte history professor and former NCAA Division I Academic Cabinet member, believes the application of any proposal can’t ignore the reality that athletes receive these benefits nationwide.

“It’s ironic they talk about services that are not available to students generally,” Goldfield said. “Most of the emoluments for student-athletes are not available to students generally. These impermissible advantages already exist.”

Goldfield cited the billion-dollar industry that collegiate athletics has become in explaining the critical nature of eligibility at the Division I level. Not only have massive academic centers for athletes popped up around the country – most, if not all, unavailable to regular students – but student-athletes also benefit from priority registration for both specific class times and popular classes due to their relative ease.

“I can tell you academic advisors have this list of courses of professors who are ‘easy,’ and of professors who are really big athletic fans and will give a break or two or three or four to student-athletes,” Goldfield said.

Without having proof that UNC’s academic counselors were complicit in Deborah Crowder’s paper class scheme, the NCAA’s allegation of impermissible benefits by way of special arrangements between counselors and faculty can legitimately be challenged. Sources close to the situation confirm that UNC has indeed been challenging this allegation in communications with the NCAA.

‘Square Peg, Round Hole’

At the root of the NCAA’s case, and fueling public perception, is the Wainstein Report, the culmination of the $3.1 million investigation that detailed how AFAM chair Julius Nyang’oro and Crowder orchestrated the 18-year scandal.

There were countless media columns denouncing the paper class scheme and calling for the NCAA to lay down its hammer on UNC in the days following the Wainstein Report’s release in October 2014. Not one of those reports, however, detailed the appropriate NCAA bylaw that UNC had violated, and for good reason. There’s not a specific academic bylaw.

That’s the NCAA’s challenge in taking the contents from the Wainstein Report and applying its current bylaws.

“Because of this NCAA hesitancy to tell an institution what is or isn’t a valid academic program, translating another report, even if it’s a well-researched report that arrives at common-sense everyday-definition conclusions about the conduct that occurred, translating that into NCAA bylaws and provable, findable conclusions in the NCAA process can be like fitting the proverbial square peg into the round hole,” said Stu Brown, an Atlanta-based attorney who specializes in athletic compliance cases.

“There’s just not a clear bylaw definition of this. There is in fact an absence of that.”

That was evident in similar circumstances at Auburn and Michigan a decade ago revolving around independent study courses.

At Auburn, sociology professor Thomas Petee taught 252 independent study courses in one academic year (2004-05) that required no attendance and little work. The New York Times reported that 18 football players on the 2004 Tigers team took a combined 97 hours of the courses during their career. At Michigan, psychology professor John Hagen taught nearly 300 independent classes over a three-year span (2004-07) that primarily consisted of student-athletes (85 percent).

The NCAA expressed little interest in either case, which makes its decision to allege impermissible benefits in the UNC case unique.

“If the current rules are such that Carolina has a legitimate defense, then Carolina shouldn’t be found guilty,” Brown said. “They should have the benefit of the doubt under the current bylaws and legislation. And if, based on public pressure or whatever, the NCAA decides that those rules are insufficient, then the rules should be changed. But Carolina should not be found guilty of anything simply because of possible public backlash unless it’s clear under the rules as they are written that there is in fact a violation.”

At the Final Four in Houston, Emmert told reporters his enforcement staff would be able to issue an amended notice of allegations to UNC “in the very near future.” According to sources close to the situation, the present expectation is for the NCAA to deliver the amended notice to UNC by the end of the month.

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