How’s the old saying go? What’s old is new again? Something like that.
Fashion styles come and go, and come back again. Haircuts. Musical trends. Movies are made once and remade, 20 or 30 or 50 years later, with better special effects, younger actors. Five decades from now, what will North Carolina’s 40th Notice of Allegations look like? Will the NCAA stay true to the source material?
We know what the third one looks like, at least. And after recent developments, we know something else, too: What comes next is impossible to guess. Forget the tired question of, “When will this be over?” The more appropriate question now, with UNC and the NCAA starting their long dance all over, is simply where this case goes from here, and how it ever ends.
“Nothing in this case is typical,” Bubba Cunningham, the UNC athletic director, said on Thursday during a conference call with reporters to discuss the third notice of allegations (NOA) that UNC has received from the NCAA.
Twice before Cunningham had been on calls like these, once after UNC received its first NOA in May 2015, and then again after UNC received its second, amended NOA in April 2016. And so twice before Cunningham had offered answers to similar questions, including ones about the case timeline.
“I’ve have been wrong every time I’ve been on this call,” he said. “I’ve been wrong every time I’ve tried to communicate to our staff and coaches what I think … so I would be wrong again to try to speculate, but I do know what the typical process is.”
The typical process would be this: UNC receives the NOA and then has 90 days to respond to it. It responds, and then the NCAA has 60 days to respond to the response. The NCAA responds, and a date is set for UNC to appear before the committee on infractions. That happens, and maybe three or four months later, there’s a final ruling, one with sanctions.
In this case, though, the parties can’t even make it to the third step – the formal appearance before the infractions committee. UNC and the NCAA were close to reaching that point in their last go-round. Instead, UNC appeared before a special committee on infractions panel, called to hear the university’s procedural concerns about the case.
That happened in late October. Then the NCAA was expected to issue a ruling related to the problems UNC raised in that hearing and then, eventually, UNC was expected to appear before the infractions committee for a traditional hearing, the one the committee would use, ultimately, to decide the penalties in this case. And then, well … none of that happened.
Greg Sankey, the committee on infractions chairman – who is also the commissioner of the SEC – recommended that the enforcement staff go back and take another gander at the second NOA. Was that particular NOA, largely accepted to be a watered-down, scaled-back version of the first, really the best way to handle this case?
Sankey posed the question in a Nov. 28 letter to the involved parties in the case, and to Jon Duncan, the NCAA’s vice president of enforcement. The two key passages in that letter:
1. “... the allegations may not be framed in a manner consistent with the information presently before the panel.” (That’d be the committee on infractions panel.)
2. “... the panel requests that the enforcement staff review whether the potential violations in this case are alleged in a fashion to best decide this case.”
To Cunningham’s knowledge, nothing like this had ever happened before in the history of NCAA infractions cases – a committee on infractions chairman telling the enforcement staff to go back and consider altering the case it was preparing to bring before the committee. Cunningham used the word “unprecedented” three times during his teleconference on Thursday. As in:
“I do think the hearing itself is unprecedented. I do know that the committee has wide range and latitude in a hearing on the merits. But I don’t have any idea what their latitude is on a hearing that’s never, in my mind, or knowledge, occurred before. I think that it makes it really difficult for any institution that’s going to face a group that can act as the investigator, the prosecutor and the judge.”
“For two years, we worked with the enforcement staff and tried to appropriately apply bylaws to facts, and then in a, obviously, in a very short period of time, the committee on infractions instructed them otherwise. And I said before, I think that’s unprecedented, I’ve never seen it before.”
“We spent two years with the enforcement staff and as I mentioned earlier, we think we got it right as far as aligning the facts to the bylaws, and then the committee on infractions suggests to the enforcement staff after a two-year investigation to reconsider. That’s unprecedented, in my mind.”
And so here we are: another NOA, another 90 days of waiting for a response, more waiting to come after that for a response to that response, more waiting after that for an appearance before the committee on infractions, more waiting after that for a final ruling. And that’s only if the case follows the traditional path.
Has this case ever followed a traditional path? The answer to that question is simple enough.
The answers to some of the others are more involved. Here are some of those questions, and some of those answers, best anyone can tell:
1. What are the differences among the three NOAs?
The differences are in how each one approaches the bogus African Studies classes (“the classes,” from here on out) at the heart of the case. In the first NOA (NOA1, we’ll call it), the enforcement staff alleged UNC provided impermissible benefits in association with those classes. In the second NOA (NOA2), the reference to impermissible benefits in relation to the classes was removed, but the classes still constituted the basis for a broad allegation of lack of institutional control. In the third NOA (NOA3), the enforcement staff used the classes as the basis for alleged violations of the NCAA’s principles of ethical conduct and extra-benefit legislation. The other four allegations, including the lack of institutional control, have essentially remained the same through the different versions of the NOA.
2. How did we get from NOA2 to NOA3?
UNC appeared before an NCAA committee on infractions panel on Oct. 28. The purpose of that meeting was to provide UNC with an opportunity to present its questions about the NCAA’s jurisdiction over key matters related to the case.
Nearly a month after that meeting, though, UNC received a letter from Greg Sankey, the chairman of the committee on infractions. The NCAA Enforcement Staff, which is the NCAA’s investigative arm, also received that letter.
The letter encouraged the enforcement staff to consider revising the NOA. On Dec. 13, UNC received a third notice of allegations, one “very similar to the first,” Cunningham said. And they are similar, indeed – except when it comes to the first allegation related to the classes.
3. What’s different about Allegation 1 in NOA1 and NOA3?
There are several key differences:
▪ NOA3 includes references to former African Studies staffers Deborah Crowder and Julius Nyang’oro, alleged to have been the two architects of the classes, while they’re both absent from Allegation 1 in NOA1 (though they’re accused later in NOA1, as in the other NOAs, of unethical conduct).
▪ NOA3 cites two bylaws – 10.1 and 10.01.1 (both related to sportsmanship and unethical conduct) – that NOA1 did not.
▪ NOA1 alleged that UNC violated extra benefit rules by allowing 10 athletes “to exceed the limit of independent study credits countable toward graduation.” That’s not included in NOA3.
▪ NOA3 includes references to football and men’s basketball, and outlines how the classes helped maintain the eligibility of athletes in those sports. In NOA1, references to those sports were not included in Allegation 1 but instead came in the lack of institutional control allegation.
▪ NOA3 says athletics personnel, through Crowder and Nyang’oro, had the authority to “manage material aspects” of bogus AFAM classes; NOA1 does not.
▪ NOA3 acknowledges that athletes enrolled in the classes “at a disproportionately higher rate.” NOA1 does not.
▪ NOA3 details how athletic academic counselors enrolled athletes in the classes after the deadline to enroll passed. NOA1 did not reference that.
▪ NOA3 greater specifies the level of athletic department involvement in connection with the classes: “The excessive involvement by athletics in student-athletes’ access to and the completion of these courses was a benefit not generally available to other students ...” That kind of language is absent in NOA1.
4. What does all of that mean?
NOA3 presents a stronger, more focused case against the classes and the actions associated with them. NOA1 tried to argue the classes constituted a violation of impermissible benefits rules. The basis of that argument was that athletic academic counselors provided “special arrangements” in relation to those classes, and that those arrangements violated NCAA rules.
The problem with that argument, though, is that the enforcement staff described actions that were in some cases routine – like, for instance, help with registering for classes. In NOA3, the enforcement staff made clear its stance that the athletic department had “excessive involvement” in the enrollment and completion of those classes, and such involvement was a violation of the spirit of NCAA rules.
NOA3 makes a clearer argument of a scheme, a conspiracy among Crowder, Nyang’oro and athletic department officials. The threads of such a case were in NOA1, but were unconnected. NOA3 states simply that Crowder and Nyang’oro “worked closely and directly with athletics.”
Another key point: the enforcement staff based Allegation 1 on a supposed violation of bylaws related to sportsmanship and ethical conduct. Those bylaws – 10.1 and 10.01.1 – weren’t used as the basis for any allegations in NOA1. Using them in NOA3 allows the enforcement staff and, eventually, the committee on infractions, to condemn the classes as a contradiction to NCAA rules outlining sportsmanship and ethical conduct, which the NCAA would argue are paramount to college athletics.
5. What happens now?
The university has 90 days to respond to NOA3, just like it had 90 days to respond to NOA1 and NOA2. But remember what happened the first two times we went through this 90-day cycle. Toward the end of the first, in August 2015, UNC submitted new information to the NCAA, and that information delayed the case.
Ultimately, the back-and-forth between UNC and the NCAA led to the enforcement staff providing an amended NOA (NOA2). UNC’s response to NOA2 began the process that led to the jurisdictional hearing. That, in turn, led to NOA3. Cunningham said it’d be “premature” to say whether UNC would need the full 90 days to respond.
“Just the nature of this case being so unpredictable, I think we need to be really thoughtful to determine how we want to respond,” Cunningham said. “Based on what I’m reading, the standard of evidence apparently has been reduced by the committee. So we may want to introduce additional information that meets a lower standard that they’ve now introduced.”
6. And what’s he mean by that, exactly?
When Cunningham talks about the reduced standard of evidence, he’s talking about the conclusions of the Wainstein report. Not necessarily the numbers and data that comprise the report, but Wainstein’s conclusion that the classes constituted a scheme to maintain athletic eligibility.
Without directly comparing the Wainstein report to the Freeh report at Penn State, Cunningham referenced the Freeh report, which was the independent report that detailed how the university failed for so long to stop Jerry Sandusky from preying on children.
“We have talked for two years with the enforcement staff on what the appropriate level of documentation is for consideration in the case,” Cunningham said. “And I do think that there are examples of reports, like the Freeh report that was used at Penn State, that are inappropriate.”
7. If UNC introduces additional information that meets a lower standard, what might that be?
Such evidence could be any number of things, but it’d likely include testimony from athletes who claim to have had a legitimate experience with the classes. Without direct examination of the work athletes submitted in the classes, it’s impossible to evaluate the legitimacy of the work – regardless of whether an athlete received a high grade.
Some athletes – how many, it’s impossible to know – would claim they did legitimate work in the classes, and thus earned their high grades. Expect UNC to use such anecdotal claims in its argument against NOA3. It’s an argument, too, that’s difficult to refute, because while a transcript reflects a grade, it says nothing of the quality of the work behind that grade.
And while it’s fair to surmise that in many cases – even the great majority of cases – athletes received artificially high grades, it’s impossible to prove it on a case-by-case basis, without access to the work behind the grades. How does the committee on infractions weigh the fact that, in some cases, however limited in scope, athletes actually did complete legitimate work?
8. What’s the committee on infractions’ endgame here?
It looks like the vacation of men’s basketball championships, a postseason ban in football and/or men’s basketball – are much more in play now than after the release of NOA2, which didn’t include any reference to those sports. Then again, NOA3 is still similar to NOA1 in that the sports themselves haven’t been charged with violations.
Nor have any coaches. Roy Williams, as has been the case throughout this ordeal, hasn’t been cited with wrongdoing. Neither has any member of his staff. And neither has any other coach, in any sport
Given that, people on UNC’s side will argue that it’s impossible to sanction those sports because they’ve never been charged with specific violations. People on the other side, though, will note the enforcement staff’s assertion, again, in NOA3 that the classes helped football and men’s basketball players maintain their eligibility. What does the committee on infractions ultimately decide? We’re a long ways off from knowing.
9. Doesn’t this case seem destined to wind up in court?
If it does, it won’t be for a long time – and not until it reaches an end point in the NCAA investigative process. Cunningham said several times on Thursday that UNC will continue to go through the process. At one point he said, “We’re going to run it to its conclusion.” That means UNC will prepare its response and await its date before the committee on infractions.
If UNC pursues a legal case against the NCAA, it wouldn’t happen until after the infractions committee rules on the case. And that won’t happen, at the earliest, until the summer of 2017 – and it’s more likely to be later than that. In this litigation-happy world, it’s easy for people who believe they’ve been wronged to threaten legal action.
Undoubtedly, some on the UNC side feel that way, and are frustrated enough to believe that’s an option. The reality, though, is that for now there is no basis for legal recourse. There won’t be any, either, until after committee on infractions issues a ruling. If UNC then believes it has a case against the NCAA, and how it handled this case, that will be the time to pursue it.
10. So you’re saying it’ll be a while?
It will be a while. Again. (And again.)