In August 2015, North Carolina was days away from its deadline to respond to the NCAA’s Notice of Allegations when the university submitted new information to the NCAA – information that immediately delayed the NCAA investigative process.
At the time, Bubba Cunningham, the UNC athletic director, said part of the new information was related to Jan Boxill, the former philosophy instructor and women’s basketball academic counselor. UNC, Cunningham said, had discovered additional instances of wrongdoing related to Boxill.
The university also submitted to the NCAA evidence of minor recruiting violations in the men’s soccer program. That revelation, and submission, was unrelated to the NCAA’s inquiry into the long-running scheme of bogus African Studies courses.
After UNC submitted this new information to the NCAA, the investigative process came to a halt. UNC’s response, due in a matter of days, was put on hold. It quickly became clear that the NCAA would amend the Notice of Allegations.
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The question, then, was when the NCAA would finish an amended NOA and when UNC would receive it. First, Cunningham said he was hopeful about receiving an amended NOA in October 2015. Then the hope was that it would arrive later that year, perhaps in December.
And then, after those months came and went without an amended NOA, the wait became comical. Would the amended NOA arrive in January? February? Would it ever arrive, or would this case drag in perpetuity?
After eight months, UNC received the amended NOA on April 25. During the long wait for its arrival, speculation built that one of the reasons for the delay must be because the amended NOA was going to be a harsher version of the original – perhaps with allegations concerning athlete eligibility, or even academic fraud.
But that was not the case. The amended NOA was a tamer version of the original. The allegation concerning impermissible benefits, among the most serious in the first NOA, was removed. So, too, were the references to football and men’s basketball. The first NOA was 59 pages long. The amended NOA: 13.
So why did it take eight months to produce the new, amended NOA? UNC’s response, which became public on Tuesday, provides a clue – namely that the NCAA withheld a key conclusion that its Academic and Membership Affairs (AMA) director had reached in 2013 regarding the bogus classes at the heart of the investigation.
This is from page No. 18 of UNC’s response:
“On March 5, 2013, the then Managing Director of the AMA responded to the enforcement staff in no uncertain terms. He wrote, “There are always concerns with aberrant classes comprised of a significant number of student-athletes in comparison with non-athletes; however, there is nothing definitive in the report [provided by the University] that would validate that there was a systematic effort within the African and African American Studies department motivated by the desire to assist student-athletes with maintaining their eligibility, either in how the courses were created, taught and/or how the grades awarded.” (See Exhibit JUR-5.) AMA’s conclusion confirmed that the NCAA itself had concluded that the anomalous courses and the other academic irregularities in the Department did not violate NCAA rules.”
The report referenced in that passage is the much-criticized Martin Report, which was such a failure, ultimately, that the university commissioned Kenneth Wainstein, a former federal prosecutor, to lead another investigation into the bogus African and Afro-American Studies classes. Wainstein’s report wasn’t released until October 2014.
Wainstein and his team reached some damning conclusions – primarily that yes, indeed, the bogus AFAM classes did constitute a scheme to maintain the eligibility for academically at-risk athletes who, like many others took those classes, did little work in exchange for a high grade. By the time the Wainstein Report concluded, the NCAA was nearly six months into an investigation it had reopened.
It’s inarguable that the Wainstein investigation changed the dynamic of the case. Nonetheless, the NCAA’s treatment of the bogus classes before the release of the Wainstein report is important, too, because it provides evidence of its repeated refusal to view the bogus classes as a problem that would require NCAA oversight.
The March 5, 2013 exchange between the managing director of the NCAA’s Academic and Membership Affairs department and the enforcement staff shows how NCAA leadership viewed these courses, and the NCAA’s role as it related to those courses. Equally interesting as that passage from the response is the footnote that came with it.
That footnote reads:
“It is worth noting that the University discovered the exchanges related to the enforcement staff’s request and AMA’s response long after the fact, and purely by happenstance on July 13, 2015. Despite the fact that the enforcement staff had previously represented that the University’s outside counsel could access all materials relevant to the investigation via a secure website, these materials were not included, contrary to the requirements of Bylaw 19.5.9. They were discovered by the University only because its representatives traveled to the national office to review the physical files personally.”
In other words, UNC couldn’t access a key piece of information that demonstrated the NCAA’s hands-off approach to the problems at the heart of the investigation. The university accessed that particular piece of information “by happenstance” on July 13, 2015.
A little more than a month later, UNC submitted that new information to the NCAA related to Boxill and men’s soccer. And then, eight months later, the NCAA delivered a far kinder amended NOA.
Perhaps it’s all coincidental, that UNC discovered a two-year-old NCAA exchange that helps UNC’s case and one month later submitted new information that led to a long delay in the case. Or perhaps the June 2015 discovery of that March 5, 2013, exchange explains, at least in part, why it took eight months for a new NOA to be delivered.