North Carolina couldn’t leave well enough alone. With a partial victory and a likely slap on the procedural wrist from the NCAA all but assured, the university went after total surrender.
Now, the NCAA appears intent on the same.
Having successfully lobbied the NCAA behind the scenes to remove specific references to football and men’s basketball and “extra benefits” among other charges from the original notice of allegations, the university replied to that approvingly amended NOA in August not with a debate over the facts but with what was essentially a modern 95 Theses challenging the NCAA’s right to do just about everything but exist.
Both the amended NOA and North Carolina’s response were triumphs of legal judo, ably applying the NCAA’s own process against it. With the latter, UNC may have outlawyered itself.
The latter challenge spawned an unprecedented procedural hearing in Indianapolis in October to discuss the jurisdictional issues raised by the university – and an equally unprecedented response from the Committee on Infractions, which proceeded to thumb its nose at North Carolina’s protests over process by going even further to overrule its own enforcement staff.
After that hearing, the committee sent North Carolina a letter dated Nov. 28 that not only rejected the university’s procedural claims but essentially demanded the reinstatement of the extra-benefit allegations.
“At the procedural hearing, the panel probed the underlying reasons for amending the original NOA,” the Nov. 28 letter read in part. “The panel is concerned about the parties’ expressed rationale for removing former Allegation No. 1. The change appears to have been based, in part, on a belief by the enforcement staff that the COI does not generally support the consideration of impermissible academic assistance allegations. That is not an accurate characterization of the COI’s position.”
All of which leaves North Carolina in a worse position than not only where it was in April, when the (successfully) amended notice of allegations was released, but also where it started with the original notice of allegations way back in June 2015, facing even more specific and serious allegations against football and men’s basketball, while also expanding the time frame of the allegations back to 2002, a morass from which it had successfully emerged eight months ago.
Without the special hearing prompted by North Carolina’s challenge to the NCAA’s authority, the second notice of allegations would still be in force, with more palatable long-term implications for the university.
Maybe it wouldn’t have mattered anyway. The Committee on Infractions, led by SEC commissioner Greg Sankey in a laughable conflict of interest, even by NCAA standards, appears intent on finding some way to punish UNC for the AFAM scandal, no matter what kind of detente the university and enforcement staff may have reached.
But the unusual hearing definitely gave Sankey’s committee an unusual chance to state its position, forcefully: “The panel requests that the enforcement staff review whether the potential violations in the case are alleged in a fashion to best decide this case,” the critical part of the Nov. 28 letter reads.
To which North Carolina athletic director Bubba Cunningham replied Thursday: “You can’t chase things just because you have an opinion. You have to follow the bylaws.”
Even if Cunningham is right, and he almost certainly is, there may not be much the university can do about it in a legal sense. North Carolina is a voluntary member of the NCAA, which is not a monolithic government agency but a collection of universities overseen by the presidents of those universities, and courts generally eschew interfering in the internal affairs of private organizations.
North Carolina’s best strategy has always been to argue its case within the halls of the NCAA, which it did marvelously during the original amendment process, only to overreach in its response and provoke the apparent ire of the infractions committee. Where it goes from here, all these years later, no one knows, but it doesn’t look good for North Carolina at the moment.
Luke DeCock: 919-829-8947, firstname.lastname@example.org, @LukeDeCock