UNC, NCAA will have procedural hearing on Oct. 28

The University of North Carolina will have a procedural hearing with the NCAA Committee on Infractions on Oct. 28.

The hearing in Indianapolis will focus on UNC’s response to the amended notice of allegations it received from the NCAA amid an investigation into the university’s 18-year scheme of African and Afro American Studies courses that required little to no work. The hearing will not focus on “the merits or whether violations occurred,” according to an NCAA letter released Friday.

The letter sheds little light on whether or when the NCAA would schedule an infractions hearing on the facts of the case. That had been expected sometime this fall, but the procedural hearing – now nearly a month away – is likely to slow the ultimate resolution of the case.

The letter was posted on UNC’s website Friday and dated Sept. 26. In it, Joel McGormley, managing director of the NCAA Office of the Committees on Infractions, writes that a seven-member panel will meet in a closed hearing, most likely with UNC’s attorneys, and possibly the attorneys of former UNC employees Julius Nyang’oro, the former AFAM professor and chairman; Deborah Crowder, the former AFAM office manager; and Jan Boxill, the former faculty leader and academic counselor to women’s basketball. Also invited but not required to attend are UNC Chancellor Carol Folt and UNC Athletic Director Bubba Cunningham. The hearing is solely focused on procedural issues and does not require “the normal number of institutional representatives,” the letter said.

The hearing will be centered around the five arguments raised by UNC in its Aug. 1 response to the NCAA’s amended notice of allegations, including whether the NCAA has jurisdiction in the academic issues, whether the statute of limitations has run out and whether the 2014 Wainstein Report should be included in the record.

“The panel will not discuss the underlying facts or allegations for the purpose of finding facts, concluding whether violations occurred or prescribing penalties,” McGormley wrote.

A statement on UNC’s website said NCAA bylaws require that all infractions-related information remain confidential through the process. “Consistent with NCAA protocol, University officials will not comment further on details about the case until it is completed,” the statement said.

Randall Roden, attorney for Boxill, the former professor who has denied allegations of impermissible academic assistance to women’s basketball players, said such a procedural hearing is rare but not unheard of. The university had raised a number of issues in its response to the NCAA in August.

“Those are big, complicated legal questions,” Roden said. “Apparently they want to get that out of the way or just establish the ground rules.”

Roden likened the hearing to a pre-trial conference with a judge. The UNC case is many faceted and so are the jurisdictional questions, he said. “It’s not a minor thing, and they appear to be taking it seriously,” he said.

The NCAA’s allegations are largely related to the AFAM courses that ran from 1993 until 2011 and were populated by a disproportionate number of athletes, especially football and men’s basketball – but those sports were not named specifically or charged with wrongdoing in the amended NOA, in contrast to the original NOA from NCAA in 2015. Those sports appear to be spared from specific penalties, though the university still faces the charges of failure to monitor and loss of institutional control.

The NCAA Enforcement Staff found that the existence of the classes themselves, though, did not constitute an NCAA violation but its “failure to identify or investigate” is an underlying reason for the most serious charge – loss of institutional control.

The panel will review seven records, including the May 20, 2015 notice of allegations, the April 25, 2016 amended notice of allegations, UNC’s August response, UNC’s 2015 response to its regional accrediting body, the enforcement staff’s reply and the NCAA’s Committee on Infractions March 2012 decision in the previous UNC case. Also part of the review will be the 2014 Wainstein Report, “for the purpose of addressing the institution’s claim that it embodies a review inconsistent with NCAA investigative processes.”

Roden pointed out that witnesses interviewed by former federal prosecutor Kenneth Wainstein were not recorded and some did not have an attorney present.

Predicting the outcome is impossible at this point, Roden said Friday.

“This is not an everyday occurrence,” he said of the UNC case. “Usually there’s a small category of evidence. This is a whole bunch of stuff. ... That’s just one of the reasons why this case is different from their typical ones.”

The NCAA took a similar approach with a procedural pre-hearing a decade ago in a case involving Ohio State University.

The saga has also been in the public eye for a long time, and the NCAA itself will be under scrutiny for the way it handles UNC. In 2011, the NCAA declined to include the bogus classes in a UNC case involving football players receiving perks from agents and improper help from a tutor. A News & Observer series on the scandal last week reported that among the details the NCAA learned about in fall 2011 was a summer 2011 class that was filled with football players and had no instruction.

This story was originally published September 30, 2016 at 1:47 PM with the headline "UNC, NCAA will have procedural hearing on Oct. 28."