Allegation 1

Most of us would probably agree that, from a defendant's point of view, it's always better to have charges against you dismissed before they ever get to trial. It's rare for someone to resist wanting the case against him being tossed on "technicalities" so that he can prove himself not guilty before a judge and jury. Most of us would rather not risk it, and if a jurisdiction or procedural argument can keep us from having to face that risk, we'd push for that and take it.

The nature of UNC's vigorous defense, so far, is completely understandable. The bulk of UNC's counter-argument to NCAA allegations has been focused on threshold issues of jurisdiction and NCAA procedure. But unless UNC's legal team still has a trick to pull out of its hat, those arguments are moot (at least for now) in the wake of the Committee on Infractions hearing panel ruling last November. Maybe UNC will raise them again on appeal or, if the appeal fails, in civil court, but on that we'll just have to wait and see. In the meantime, the procedural arguments have been asked and answered, and it's now time to move on to the merits of the allegations.

The revised allegations were issued to UNC on December 13th. Today is the 80th day of the 90-day window in which UNC has the opportunity to submit a written response. UNC never responded to the first iteration of the NOA in 2015 when the process was halted on the cusp of entering the hearing phase. A year later, UNC submitted a respons to the seconded version, but there have been significant changes since then that make the allegations now mirror more closely the first one. UNC is now going to have to defend itself on the merits of allegations that weren't in the April 2016 ANOA.



It's a mistake to believe NCAA is alleging academic fraud as a violation of its bylaws. That's not what the NCAA is, or has ever, alleged in the UNC case. Academic fraud did happen at UNC. The Wainstein report doesn't use the words, but UNC's accreditor did and UNC agreed. Any attempt to re-cast the academic situation as "easy classes" that just weren't up to UNC's standards is spin doctoring.

But the NCAA agrees that policing an institution's curriculum integrity isn't its bailiwick. Academic fraud in this case is not how the NCAA is alleging its bylaws were broken.

The key to the case is Allegation 1. It's the foundation for it being a Level I major infractions case. Lack of Institutional Control (LOIC) in Allegation 5 hinges on it. The lack of cooperation from Nyang'oro and Crowder alleged in Allegations 3 and 4 stem from it. Allegation 2 stands apart, but without Allegation 1, and with the rest falling away as a result, it might arguably not rise to level I infractions status on its own.

This was the essence of UNC's response to the ANOA with that original Allegation 1 removed. It's little wonder why the ANOA was preferred and is still championed by UNC as being "more fairly aligned". As a charging document, it was fatally flawed.

The original NOA wasn't so flawed. UNC didn't like it because of Allegation 1. After 7-8 months of NCAA enforcement and UNC wrangling over how the allegations were to be amended -- an amending decision that had been based on unrelated material "new information" reported by UNC --  Enforcement ditched the original "extra benefits" charge and tried to shift the language to something else (Failure to Monitor). I don't know what Enforcement was thinking, but even to a layman like me I could see the ANOA was a house of cards.

The only reason I could see UNC saying that the revised set of allegations "more fairly aligned" with NCAA bylaws was if UNC had been willing to agree to the ANOA in order to compromise or "plea bargain" just to get the whole ordeal over with. UNC, of course, didn't do that' and, instead, attacked the vulnerabilities of the ANOA, mainly on procedural and jurisdictional grounds. It was a bold move, and justified if it wasn't interested in "plea bargaining."

But UNC also seemed to believe that those old Allegation 1 charges were cast into the abyss and couldn't be resurrected. They had been staked in the heart twice from 2011 to 2013. And again, in 2015 when UNC got Enforcement to remove it from the NOA. But here we are, back (approximately) to where we were the summer of 2015, again waiting to see how UNC is going to defend itself against the allegation that it would rather not face before the COI panel.

Breaking down the Allegation 1

There are two pieces to the Allegation. The first (1a) has to do with academic faculty and staff (Dr. Nyang'oro and Deborah Crowder) and what they did that would violate NCAA rules. The second (1b) deals with the athletics staff  -- specifically, the academic support counselors to athletes -- and the behaviors they were engaged in that would violate NCAA rules.

Note: Jan Boxill gets a special call-out in Allegation 2 for other "impermissible academic assistance" not related to the so-called anomalous courses. But Boxill is also considered inclusive within the collective grouping of counselors and the conduct alleged in Allegation 1b.

Allegation 1a

Who: Nyang'oro & Crowder
What: Provided the "anomalous courses"
Alleged Violations: NCAA principles of ethical conduct (bylaw 10.1) and extra-benefit legislation (bylaw 16.11.2.1)

To wit:

• delegated to athletics personnel the authority to manage material aspects of anomalous course for student-athletes.
• worked closely with athletics, affording student-athletes greater access to the anomalous courses and enrolled in a disproportionately higher rate than non-athletes.
• many student-athletes received this benefit for the purposes of ensuring their continuing NCAA academic eligibility.

Allegation 1b

Who: athletics department staff
What: Leveraged relationships with Crowder and Nyang'oro to obtain special arrangements for student-athletes and involvement in management of anomalous courses on behalf of student-athletes. These special arrangements and excessive involvements by counselors were benefits not generally available to other, non-athlete student. In some cases, student-athlete eligibility was influenced
Alleged Violations: Extra-benefit legislation (bylaw 16.11.2.1)

To wit:

• counselors role in gaining registration for student-athletes after deadline
• counselors obtaining assignments on behalf of student-athletes
• counselors submitting assignments on behalf of student-athletes
• counselors requesting course offerings on behalf of student-athletes
• counselors recommending grades for student-athletes

This is the meat of case now; not the various objections to jurisdiction or failure to follow protocols. Barring another unexpected swerve in the process, the next hearing on infractions will consider the responses from the parties, hear their arguments, and then rule on the allegations based on their merits. It's taken nearly two years to get to this point.

It's important to note that the subject (defendant) of this NCAA case is the institution and its employees. This is a case involving the NCAA and one of its members that may have an impacted student-athletes. No student-athlete is alleged as having been engaged in misconduct or to have otherwise violated NCAA bylaws. If the misconduct is deemed to have occurred, the student-athletes will have been impacted by the misconduct of institution staff. If any eligibility impacts are determined, that will not be an indictment of the students themselves. Students trust the university to deliver academic services that are not fraudulent, and even if students advocate in defense of their alma mater's delivery of those services, that doesn't mean they are to be held accountable if that trust and faith was misplaced.