CHAPEL HILL, N.C. – The NCAA enforcement process operates under different guidelines than the U.S. legal system, although both methods require a strict adherence to the rules in place. The University of North Carolina detailed its meticulous approach in applying the NCAA’s constitution and bylaws in its Amended Notice of Allegations response, while also highlighting the enforcement staff’s procedural errors.
UNC’s overarching argument is that the NCAA is operating outside of its jurisdiction regarding the school’s academic irregularities in the former African and Afro-American Studies (AFAM) department. From that standard, the university has disputed three of the NCAA’s five allegations, including its most severe charge, a lack of institutional control.
“I think it is consistent with the position the institution has taken all along,” Stu Brown, an Atlanta-based lawyer who specializes in NCAA compliance cases, said on Wednesday. “And I think it’s a fair and reasonable argument. Whether that will fly with the Committee on Infractions or not, or on appeal, if necessary, I don’t know, but I think it’s totally appropriate for Carolina to take that position.
“To me, the biggest support for that argument is the fact that the enforcement staff did not include specific allegations regarding the anomalous courses in the Amended Notice of Allegations.”
UNC’s handiwork in its ANOA response went beyond arguing the allegations. The school's previously muted manner in publicly challenging the NCAA was replaced with an aggressively thorough style that suggested the university was intent on defending its position. In doing so, UNC's compliance and legal team contrasted its rigorous approach in abiding by the law with the NCAA’s sloppiness at times following the same guidelines.
The response pairs details about 16 on-campus interviews in 2011 related to the AFAM classes and improper academic assistance by ASPSA advisors with NCAA Bylaw 19.8.3, which indicates the 2012 Infractions Report is a “final, binding and conclusive” decision that prevents the NCAA from using any prior knowledge of the irregular courses or improper academic assistance in the current ANOA.
UNC also cited three communications from the enforcement staff confirming the investigation into the anomalous classes were closed. One of which was a correspondence from the managing director of the NCAA’s Academic and Membership Affairs (AMA) department that stated there was “nothing definitive” in the Martin Report to suggest the AFAM classes were being used to keep student-athletes eligible.
That specific correspondence included a footnote detailing how the NCAA enforcement staff failed to include the document on a secure website established to share information and how UNC discovered it “purely by happenstance” more than two years later while reviewing physical files at NCAA headquarters in July 2015.
Bylaw 19.5.9 requires the enforcement staff to make available any pertinent information to the institution in a case to be considered by the Committee on Infractions (COI). The NCAA’s internal operating procedures manual states that the enforcement staff must notify the institution immediately if any materials are not shared for any reason and then must disclose the materials in a timely manner.
“I was not at all surprised that there was at least some information that was exculpatory to the school that did not appear in the custodial website the first time around,” Brown said, noting similar issues he has personally encountered in the enforcement process.
However, the thousands upon thousands of documents included in lengthy cases such as UNC’s investigation increase the likelihood of clerical errors, Brown said. The fact that UNC ultimately discovered the document and included the information in its response will likely negate its relevance before the COI.
“I don’t think that one undisclosed document on the website will indicate enough of a pattern or intent to indicate any specific or intentional wrongdoing by the enforcement staff to sway the Committee of Infractions on the merits of the case,” Brown said.
There were various other procedural details included in UNC’s response that highlighted NCAA errors. The school took exception with the enforcement staff’s decision to set Feb. 21, 2014 as its measuring date for its statute of limitations period, calling it “incorrect” and providing an explanation for why the date of the Notice of Inquiry (June 30, 2014) should be used instead.
On Page 54, the response questioned the enforcement staff’s decision to cite Bylaw 19.1.1-(c) to support Allegation 4: "This citation appears to be an error. This bylaw applies when there has been a failure to cooperate with the investigation. The University has provided exemplary cooperation throughout the investigation."
Also, a footnote on Page 28 notes that Allegation 1 incorrectly stated Jan Boxill directed the ethics center and served as faculty chair throughout the period from February 2003 until July 2010.
Such particulars may seem minor on an individual basis, but collectively point to an enforcement staff a bit loose in the details.
“I think what those were put in there for was not just for the Committee on Infractions,” Brown said, “but also for the Board of Trustees, the public and the media to be able to appreciate that the response by Carolina and its outside counsel is very thorough, very precise and very carefully crafted, and has paid close attention to a lot of detail, whereas, in these instances at least, the enforcement staff’s accusations and investigative processes are not as meticulous.”
The NCAA’s procedural missteps are not limited to its Amended Notice of Allegations. In the days following the Wainstein Report’s release in October 2014, NCAA President Mark Emmert took aim at UNC in a public setting.
"Universities are supposed to take absolutely most seriously the education of their students, right?” Emmert said. “I mean, that's why they exist, that's their function in life. If the Wainstein Report is accurate, then there was severe, severe compromising of all those issues, so it's deeply troubling. ... It's absolutely disturbing that we find ourselves here right now."
NCAA governing rules state that the organization cannot comment on current, pending or potential investigations. The NCAA website states “it would be inappropriate and premature for those involved to comment during an investigation.”
UNC remains on track for a Committee on Infractions hearing in October.