CHAPEL HILL, N.C. – On Aug. 20, 2015, three months after the NCAA issued its first notice of allegations to the University of North Carolina, the organization’s vice president of enforcement, Jon Duncan, sat in a meeting with both NCAA and UNC officials and expounded on a theory known as the totality of the circumstances.
Duncan offered the theory, which is a method of analysis to make decisions based on a collection of data rather than a strict interpretation of specific rules, during a discussion regarding the enforcement staff’s justification for Allegation 1(a), which asserted that ASPSA counselors provided impermissible benefits in the form of special arrangements for student-athletes with AFAM faculty and staff. If one student-athlete was involved in all six types of conduct alleged in 1(a), a violation would be substantiated.
It’s an interesting theory, albeit not one with any footing in the NCAA’s bylaws and constitution. Duncan’s theory, along with an accompanying analysis that ultimately proved no student-athlete was involved in four or more of the six types of conduct, was offered during a critical juncture of the joint investigation into UNC’s academic irregularities case. The NCAA had already alleged UNC had provided impermissible benefits to student-athletes that were not generally available to the student body, although the enforcement staff was having trouble applying its own bylaws to that allegation.
One possible alternative was Duncan’s proposed theory.
In a batch of correspondence between the NCAA and the university released in October, Rick Evrard, UNC’s outside counsel, wrote that “there is no known basis or precedent for the vice president of enforcement or the enforcement staff to establish this type of theory and threshold for the purpose of applying it to conduct permitted by NCAA rules in order to justify making a charge that violations of NCAA bylaws have occurred.”
During the 11 months between UNC’s initial notice of allegations and its amended notice of allegations received in April 2016, the institution’s compliance staff and its lawyers consistently argued that none of the conduct cited in the impermissible benefits allegation had “ever been identified in a precedent or other authoritative material as being beyond the scope” of NCAA bylaws currently in place. Academic counseling and tutoring services are required to be made available to all student-athletes in accordance with Bylaw 220.127.116.11, and yet it was those counseling services the NCAA had decided to base its impermissible benefits charge upon, despite similar situations at Michigan (2004-07) and Auburn (2005-06) that failed to prompt any NCAA interest of note.
The documents highlight several other procedural errors committed by the enforcement staff. For example, director of enforcement Tom Hosty acknowledged that while a small sample of emails in 2011 did not demonstrate an extra-benefit violation, a large volume of such data resulted in the impermissible benefits charge. UNC countered by noting there is no authority or precedent in place to transform a permissible benefit into an impermissible benefit by sheer volume.
Without applicable bylaws available to base its allegation, the NCAA enforcement staff was forced to remove the impermissible benefits charge from the amended notice of allegations. That lengthy process of properly applying rules and regulations to UNC’s case has come undone in the second amended notice of allegations released on Thursday.
Following orders from the Committee on Infractions, the NCAA enforcement staff has reinstalled the impermissible benefits charge, albeit with stronger language and a different basis for its allegation: the Wainstein report.
UNC and the enforcement staff, according to the released correspondence, had previously agreed the unrecorded and unverified interviews conducted during the Wainstein investigation occurred outside of NCAA investigative bylaws and therefore were not eligible for inclusion. That is no longer the case, as the interviews with former AFAM administrative assistant Deborah Crowder and former AFAM department head Julius Nyang’oro are the lynchpin of the new impermissible benefits allegation.
The NCAA’s inability to adhere to its own bylaws extend beyond the details involved with determining potential violations, the documents show. NCAA bylaws dictate the enforcement staff make all factual information pertinent to the case available to the institution. However, in July 2015, two months after the initial notice of allegations was released, UNC and its counsel visited the NCAA’s offices in Indianapolis to review the enforcement staff’s files and discovered an email thread that had not been made available to the institution.
In the emails that dated back to February 2013, investigators sought an interpretation from members of the NCAA’s Academic and Membership Affairs (AMA) staff regarding potential violations that had not been charged. AMA personnel determined that no additional violations had occurred. Despite that breakdown in protocol, the NCAA refused interview requests by UNC of the email thread’s participants to determine the extent of the staff’s prior knowledge.
"I have seen recently that the NCAA has chased after some other schools and went outside of their own process, and that hasn’t worked out very well," UNC athletic director Bubba Cunningham said during a teleconference call on Thursday. "I don’t want them to do that again. Just as they’re trying to hold us accountable to the membership, it’s our responsibility to hold them accountable to the membership as well. We all have to live by the bylaws and constitution that is part of this association.”
UNC’s resolve in holding the NCAA to the bylaws its own membership constructed will potentially be a determining factor in the outcome of this meandering case.