Two years ago, UNC-Chapel Hill and UNC system officials talked about the breakthrough that helped them get to the bottom of a scheme of bogus classes that had lasted 18 years.
They had just released a 131-page investigative report by a former top U.S. Justice Department official that made the strongest connection to date between the fake classes and athletes’ eligibility. What made it happen, UNC Chancellor Carol Folt and UNC system President Tom Ross said, was getting the cooperation of the two people behind the classes.
Now, with UNC facing sanctions from the NCAA, the university wants the information provided by Julius Nyang’oro and Deborah Crowder excluded from an infractions hearing. Attorneys for UNC say those interviews conducted by Kenneth Wainstein and his team of lawyers didn’t follow NCAA standards.
“(T)he information considered by the hearing panel should be limited to materials in the record that comply with procedural requirements adopted by member institutions to protect the integrity of the NCAA’s investigative process,” attorneys Rick Evrard and Bob Kirchner wrote in their 70-page response to the NCAA’s notice of allegations.
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That would mean an eight-month investigation that cost UNC $3.1 million would play a diminished role in the NCAA’s case. Wainstein’s investigation, which included the disclosure of hundreds of pages of revealing correspondence, is the most detailed investigation into the fake classes.
NCAA interview protocols include focusing on identifying potential NCAA violations, advising witnesses they could be complicit in those violations and allowing them to have counsel present.
Joseph Jay, the lead lawyer on Wainstein’s team, said the investigation’s goal was simply to get to the bottom of what had happened, not to identify potential NCAA violations. There was no discussion of using the NCAA’s interviewing requirements.
“Nobody ever gave us direction one way or another,” Jay said. “They just said do the investigation the best way you know how.”
Evrard and Kirchner said in UNC’s response that the NCAA’s enforcement staff had agreed to not include information from the interviews with Nyang’oro and Crowder in the infractions case. If so, that could explain why the improper activity outlined in the NCAA’s notice of allegations does not reach back to the beginnings of the bogus classes in the early 1990s.
Nyang’oro and Crowder declined to be interviewed by the NCAA, which resulted in an allegation of failure to comply against UNC. They had agreed to interviews with Wainstein’s team under an arrangement with Orange County District Attorney Jim Woodall that would allow them to avoid criminal prosecution if they cooperated fully. He determined they had.
No jurisdiction over academics?
Evrard and Kirchner are with Bond, Schoeneck & King, a Syracuse, N.Y., law firm that is known for defending universities in NCAA enforcement cases. Evrard is a former NCAA official who worked in enforcement. He referred questions to UNC, which declined to comment.
UNC retained the Bond firm as Wainstein’s investigation progressed. Wainstein and his team were required to brief the NCAA and the Bond lawyers on the information gathered, and did so several times, Jay said. The Bond firm had to agree not to share that information with UNC officials until Wainstein completed the investigation.
The NCAA reopened its investigation into the bogus classes as Wainstein conducted his probe. Last year, the NCAA issued a notice of allegations that included five major violations, including lack of institutional control. It later issued a second, more lenient notice that substituted an impermissible benefits violation with failure to monitor, and dropped mention of the use of the fake classes by the football and men’s basketball programs.
UNC’s attorneys have made several other procedural arguments to keep the NCAA from punishing the university over the fake classes. The attorneys say the NCAA has no jurisdiction over how courses are taught, and even if it did, it should have made that case as part of a prior investigation into the football team that ended in March 2012 with sanctions over improper financial benefits from agents and improper academic help from a tutor.
They also contend the NCAA’s lack of institutional control and failure to monitor charges regarding the classes aren’t valid because the NCAA didn’t identify any underlying violations that should have been caught. Prior to the Wainstein investigation, the NCAA had stayed out of the case because the classes were available to all students. This had long been UNC’s position, and UNC’s attorneys call it the correct one.
Intent to help athletes
Nyang’oro and Crowder’s interviews added information that cast the scandal in a new light. According to the Wainstein report, both admitted they sought to keep athletes eligible and thought administration officials “wanted them to provide this assistance” to athletes.
“It is this tension – the tension between academics and athletics – that partly explains how the academic irregularities came to Chapel Hill,” Wainstein’s report said. “At some point in 1993, Crowder took it upon herself to relieve this tension by offering classes with watered-down academic requirements that made it easier for struggling student-athletes to get a passing grade.”
Numerous NCAA experts have said a specific intent to aid athletes is a factor in determining whether a violation occurred.
Little of UNC’s response addresses the classes themselves. Half of the 3,100 students enrolled were athletes, who make up 4 percent of the student body. Athletes also represented a majority of the students who took several or more of the fake classes. Football and men’s basketball, which generate the revenue for the athletic department, had the largest presence in the classes by sport.
While the classes conceived by Crowder and Nyang’oro were available to all students, they didn’t advertise what the classes actually were. Roughly 190 were disguised as lecture classes. But several staffers in the academic support program for athletes knew and steered athletes to the classes, Wainstein reported.
UNC’s response contends the classes are strictly a matter for its accreditor, the Southern Association of Colleges and Schools Commission on Colleges. The response notes the commission put UNC on a year’s probation after Wainstein’s report. The accrediting commission found that UNC had failed to meet seven standards, including academic integrity and control over college athletics.
Stuart Brown, a lawyer who specializes in representing universities before the NCAA, said Evrard and Kirchner have a strong argument because the NCAA didn’t charge an underlying academic offense to justify the charges of failure to monitor and lack of institutional control.
But he questioned their efforts to try to exclude information provided by Nyang’oro and Crowder. UNC could have sought to have those interviews conducted in accordance with NCAA protocols, he said.
Crowder and Nyang’oro both had legal representation, which would satisfy one of the NCAA protocols, and Brown found it difficult to believe they would not be aware what they said would be of interest to the NCAA. They also faced little harm from NCAA sanctions.
It’s also not unheard of for the NCAA to use information from interviews others conducted, Brown said.
“There’s a legitimate argument based on the bylaws and so forth for excluding it,” he said. “But there certainly are a number of ways that it could have been included. That was not an unsolvable problem.”
‘Very smart strategy’
The Wainstein report is an exhibit in the NCAA’s case against UNC. The university did not produce an NCAA document showing the enforcement staff had agreed to exclude the interviews.
The NCAA could not be reached for comment.
Robert Orr is a former state Supreme Court justice who represents former athletes suing UNC and the NCAA over the bogus classes. The athletes say that their education at UNC suffered because of the classes and that the NCAA failed to make sure athletes receive legitimate educational opportunities in exchange for helping their universities be competitive in sports.
Orr said if the NCAA’s enforcement staff agreed not to use Nyang’oro and Crowder’s information, it represents more evidence that association officials are trying to back out of a case that speaks to its core values. Experts say the academic fraud at UNC is the biggest in the NCAA’s history.
“It is a very, very smart strategy that UNC is embarked on,” Orr said. “And to a certain extent, the NCAA wants to roll over for UNC because they don’t want responsibility for academic screw ups, which is ironic.
“If you go back to look historically, the whole reason the NCAA is involved in academics at all is because schools were cheating kids academically, whether it was in admissions or in keeping kids eligible.”
The NCAA has 60 days to respond to UNC’s latest filing.
Eventually, the Committee on Infractions could decide to include the information from Nyang’oro and Crowder. It could also take other steps such as requiring the enforcement staff to add another charge to bolster the allegations of failure to monitor and lack of institutional control, though that could push a decision out further – and create more questions about the NCAA’s oft-maligned enforcement process.