Bledsoe v. NCAA: OU Student-Athlete Challenges NCAA Drug Testing PoliciesOctober 9, 2017
The NCAA Committee on Infractions Has Spoken: University of North Carolina, Chapel HillOctober 30, 2017
The NCAA Committee on Infractions (“Committee” or “Panel” or “COI”) recently issued its findings and found that the University of North Carolina, Chapel Hill (“Institution” or “UNC”) committed violations of NCAA legislation. This case centered on allegations stemming from a lengthy 18-year academic saga at UNC, which has received significant media and public attention.
The Committee concluded that UNC committed the following violations:
Violations of NCAA Division I Manual Bylaws 10.1, 10.1-(a) and 19.2.3 (2014-15)
Two former institutional staff members failed to cooperate in the investigation. The department chair and the secretary were the two individuals with the most intimate knowledge of what occurred in this case. Their failures to cooperate in the investigation violated ethical conduct expectations of current and former institutional staff members and their obligations under the membership’s infractions process. Although the secretary eventually participated, her belated participation does not absolve her nearly three years of refusals. UNC agreed that both individuals failed to cooperate. Although the secretary requested that the panel conclude a violation had not occurred, she acknowledged that she did not participate until March 2017. The Panel concluded that both institutional staff members committed violations. The department chair committed a Level I violation and the secretary committed a Level II violation.
The department chair and the secretary were central actors in this case. Each had pertinent information. Neither met their obligation to cooperate with the NCAA investigation. As the administrators of the paper courses, each had intimate knowledge of what occurred in the AFRI/AFAM department for 18 years. Although the secretary ultimately participated, it was late in the process. Neither met their obligations under Bylaws 10 or 19.
A foundational principle of the infractions process is the cooperation of individuals with information related to the case. Among other individuals, current and former institutional employees have an obligation to provide information relevant to an investigation of possible NCAA rules violations when requested to do so by the enforcement staff or the individual’s institution. Failure to do so may amount to unethical conduct under Bylaw 10.1-(a). Bylaw 19.2.3 also requires individuals to make full and complete disclosures of any relevant information when requested by the enforcement staff.
Neither the department chair nor the secretary met their obligations to cooperate. Although neither remained employed by the institution, each still had an obligation to cooperate as former institutional staff members. Both failed to meet that obligation. In July 2014, the NCAA enforcement staff contacted both individuals’ separate attorneys to schedule an interview related to their knowledge of potential violations. Both replied that they would not participate in the NCAA’s investigation. After nearly three years of refusing to cooperate, however, the secretary decided to participate in the process. She filed a limited response to the second ANOA, sat for an interview and later participated in the infractions hearing. The department chair never participated.
Both the department chair’s and the secretary’s participation was essential. As the two individuals at the center of this case, their participation was vital to the investigative and allegation phases of the case. The infractions process is rooted in the participation of individuals with knowledge of potential violations. It is through active participation that the COI is best positioned to find facts and conclude whether violations occurred. The best information derives from, but is not exclusively limited to, the participation of those knowledgeable of the core issues. The membership has specifically identified a failure to cooperate as unethical conduct. Likewise, the COI has consistently concluded that failing to participate in the infractions process violates ethical conduct and cooperation bylaws. See University of Louisville (2017) (concluding that a former director of basketball operations’ refusal to participate in an interview, file a response or attend the infractions hearing violated Bylaws 10 and 19) and Georgia Southern University (2016) (concluding that a former compliance officer’s refusal to participate in interviews, respond to the allegations and participate in the infractions hearing violated Bylaws 10 and 19). Therefore, the Panel concluded that both the department chair and the secretary violated Bylaws 10.1, 10.1-(a) and 19.2.3 when they refused to participate in the investigation.
Bylaw 19.1.1-(c) identifies a failure to cooperate as a Level I violation. Failing to cooperate with an investigation seriously undermines and threatens the integrity of the membership’s infractions process. This is particularly true when key individuals at the center of the issues refuse to cooperate. Consistent with Bylaw 19.1.1-(c), the Panel concluded that the department chair committed a Level I violation when he refused to cooperate with the investigation. The secretary eventually cooperated. While her tardy participation does not overcome her failure to meet her initial obligation, it is an appropriate factor to consider when assigning an appropriate level to the violation. Further, as one of the two key individuals at the center of the paper courses, her participation at the infractions hearing greatly benefitted the panel and its ability to decide this case. Previously, the COI has considered untimely participation to constitute Level II unethical conduct. See Syracuse University (2015) (concluding that an academic coordinator’s tardy participation in an interview and in the infractions hearing constituted a Level II unethical conduct violation). Therefore, pursuant to Bylaw 19.1.2 and consistent with Syracuse University, the Panel concluded that the secretary committed a Level II violation.
Violations of Not Demonstrated
The case involved three other allegations: (1) unethical conduct and extra benefits related to student-athletes’ access to and assistance in the paper courses; (2) unethical conduct by the instructor/counselor for providing impermissible academic assistance to student-athletes; and (3) a failure to monitor and lack of institutional control. In addition to the formal allegations, the case involved conduct after the second ANOA that the enforcement staff noted violated confidentiality bylaws. The Panel also addressed that conduct in this section.
The Paper Courses and Academic Legislation
The NCAA enforcement staff alleged that the secretary and department chair committed unethical conduct and provided extra benefits to student-athletes in connection with offering and administering the paper courses. Additionally, the NCAA enforcement staff alleged that athletics personnel leveraged their relationship with the secretary to provide special arrangement courses for student-athletes, which ASPSA staff members managed. In short, the NCAA enforcement staff alleged that student-athletes received access to and assistance in paper courses not generally available to the student population. Based on the nature of the courses and the lack of identifiable examples in the record supporting individual or systemic efforts to impermissibly benefit student-athletes, the panel cannot conclude that violations of Bylaw 10 and 16 occurred. The Panel also considered whether other Bylaw 10 violations occurred—mainly, academic fraud. But principles of academic autonomy and UNC’s recent positions surrounding the validity of the courses do not permit the panel to conclude academic fraud occurred. The Panel’s inability to conclude that academic fraud occurred is also restricted by the lack of identifiable examples of fraudulent activity in specific courses or assignments or by specific individuals in the record.
The allegations involved Bylaw 10.01.1, which requires individuals employed by or associated with a member institution to administer, conduct or coach intercollegiate athletics to act with honesty and sportsmanship. They also involved general Bylaw 10.1, which defines unethical conduct through a nonexhaustive list of behaviors. Likewise, the parties also addressed the application of Bylaws 126.96.36.199 and 188.8.131.52 to the facts of the case. Generally, Bylaw 184.108.40.206 prohibits extra benefits and Bylaw 220.127.116.11 requires member institutions to make general academic counseling and tutoring available to student-athletes. Bylaw 18.104.22.168 also provides institutions discretion to finance additional academic and support services. The Panel also determined that Bylaw 10.1-(b), addressing the knowing involvement in arranging for fraudulent academic credit and the related recent April 2014 official interpretation are also pertinent to the analysis of whether violations occurred in this case.
In alleging violations in this case, the NCAA enforcement staff took a narrow approach. At the most basic level, the allegations involved too much help in student-athletes’ access to and assistance in the paper courses. The NCAA enforcement staff argued that the creation and administration of the paper classes violated extra benefit and ethical conduct legislation. In grappling with that question, the Panel benefitted from the secretary’s in-person participation at the hearing. She credibly explained that she provided the same degree of assistance to UNC students in need, regardless of their student-athlete status. Likewise, the record does not establish that the courses were created, offered and maintained as an orchestrated effort to solely benefit student-athletes. While the record demonstrates popularity in the use of admittedly deficient courses, the panel would be required to discredit the secretary’s answers and assume a motivation behind the courses. Given the secretary’s statements at the hearing and gaps in the record, the panel cannot conclude that the secretary acted unethically with respect to the creation or administration of the courses. Similarly, the panel cannot conclude that the department chair acted unethically or provided extra benefits simply because he delegated authority to the secretary. Nor does Bylaw 10.01.1 apply to them, because they were not involved in administering, conducting or coaching intercollegiate athletics.
The NCAA enforcement staff also alleged that ASPSA personnel leveraged relationships with the secretary to gain special arrangements for student-athletes in paper courses that ASPSA personnel managed. Based on the nature of the assistance provided and the general availability of the academic counseling on campus, the Panel could not conclude that ASPSA personnel managed student-athletes’ courses in violation of Bylaw 16.
The NCAA enforcement staff identified six actions that taken alone or in combination purportedly constituted active management of the courses and extra benefit violations.19 In part, UNC claimed that there were no extra benefit violations because its actions were required and/or permitted under Bylaw 22.214.171.124. UNC mischaracterized the bylaw and its obligations. Bylaw 126.96.36.199 is not without limits. And it is not intended to be used as a shield for an academic program gone awry. It is intended to support, not replace, student-athletes’ academic efforts. Supplanting student-athletes’ academic efforts, responsibilities and educational experiences can violate NCAA legislation. Regardless, the panel cannot conclude that ASPSA’s or athletics personnel’s actions taken alone, in combination or in totality resulted in extra benefits. The record covers nearly two decades of information. It touches broad concepts but fails to establish specific or systemic activities limited to student-athletes. While student-athletes certainly benefited from the courses and ASPSA assistance, the record indicates that similar assistance was generally available to all students. Therefore, the panel cannot conclude that violations occurred.
The Panel’s Further Consideration—Academic Fraud
Although not formally charged by the enforcement staff, the academic nature of this case combined with UNC’s initial admissions to SACS led the Panel to review whether academic fraud violations occurred. While UNC did not have policies that prohibited the paper courses, it undertook a nearly three-year process to understand what occurred in its AFRI/AFAM department. That process involved numerous thorough reviews. At the conclusion of those reviews, UNC reported to its accreditor that what occurred for nearly 18 years on its campus was academic fraud. The Panel identified and explored with the parties whether academic fraud occurred under the member-adopted bylaws and interpretations. Given the legislation and the absence of specific examples of fraudulent activity, the panel cannot second guess UNC’s altered position and conclude that academic fraud occurred within the infractions process.
Stated directly, the NCAA defers to academies on matters of academic fraud. As institutions of higher education, the NCAA membership trusts fellow members to hold themselves accountable in matters of academic integrity. If an institution concludes under its policies that academic fraud has occurred involving a student-athlete, the NCAA membership requires institutions to report those instances to the enforcement staff.
At the hearing, UNC acknowledged that the courses failed to meet its standards and expectations. Previously, it characterized the conduct as long-standing and egregious academic wrongdoing to SACS. More significantly, UNC previously described the conduct as academic fraud. In doing so, UNC used what it had learned from the internal and external reviews, including the Cadwalader report—a report it now vehemently disavows. Following Cadwalader and the other reviews, however, UNC developed and implemented more than 70 corrective actions. These included permitting affected students to take a course or resubmit work if they believed the quality of their education was compromised. It also developed policies and procedures that now prohibit the structure and administration of the paper courses. UNC also acknowledged the courses would violate its new policies.
The Panel was skeptical of UNC’s modified positions—particularly that the use of “academic fraud” was merely a typographical error in the report submitted to SACS. It is also skeptical of UNC’s recent complete repudiation of the Cadwalader report. After all, less than three years ago, UNC described the report as “monumental,” and “critical” to its accreditor, summing up its position that UNC was “confident that not only was the investigation thorough and complete but that it uncovered a great deal of ground not possible previously.” The panel is troubled by UNC’s shifting positions, including its positions related to the Cadwalader report, depending on the audience. The Cadwalader report included damning facts and conclusions of what had occurred in the AFRI/AFAM department for nearly two decades. After boasting of the report’s importance to its accreditor and using it, at least in part, to take disciplinary action against personnel and to implement significant corrective measures, UNC attacked the same report in the infractions process. As the panel indicated after the October 2016 procedural hearing, the panel finds the Cadwalader report credible. However, the Panel acknowledged that the Cadwalader firm conducted interviews without the participation of UNC or the enforcement staff and, in later interviews conducted by UNC and the NCAA enforcement staff, some interviewees acknowledged that they felt intimidated or questioned how the information they provided was characterized in the report. Further, at the hearing, the parties identified potential factual inaccuracies. In light of these considerations, the Panel balanced the weight of the report against the record and other information presented at the hearing. In assessing the full record, the panel discounted some of the report’s findings and conclusions for purposes of this infractions hearing.
But given UNC’s early admissions, its implementation of corrective measures and its recent distancing of itself from the Cadwalader report, the panel concludes that it is more likely than not that student-athletes received fraudulent credit by the common understanding of what that term means. It is also more likely than not that UNC personnel used the courses to purposely obtain and maintain student-athletes’ eligibility. These strong possibilities, however, are not the operative or controlling starting points to the membership’s academic fraud analysis. What ultimately matters is what UNC says about the courses. In addition to rejecting its early admissions and distancing itself from the Cadwalader report in the infractions process, UNC took the firm position that the courses were permissible and UNC will continue to honor the grades. Despite the fact that the courses failed to meet, involved little, if any, faculty engagement, and were often graded by the secretary, UNC argued the courses violated no UNC policy. UNC further claimed that work was assigned, completed and graded, and the grades counted towards a UNC degree.
Despite the conflicting record on whether UNC had acknowledged the fraud and the enforcement staff’s position that the case did not involve fraudulent activity, the panel still strongly considered conforming the allegations or issuing its own notice pursuant to Bylaw 188.8.131.52. See California State University, Northridge (2016)(conforming unethical conduct extra benefit and impermissible academic assistance allegations to unethical conduct academic fraud violations based on the nature of the violations and the institution’s president’s admission that the conduct violated institutional policies). The COI, however, has not conformed allegations on such a broad and convoluted set of facts or on academic allegations where the institution repeatedly affirms during the infractions process that the conduct did not violate its policies in place at the relevant time.
UNC has offered two diametrically opposed characterizations of the courses, seemingly dependent on the venue. Even if the Panel were to assign more credibility to UNC’s initial admissions to SACS, the case record does not support overriding UNC’s recent positions. The record was voluminous. It also included information spanning nearly two decades and interviews where subjects had difficulty recalling circumstances and events. This lack of specificity inhibited the panel’s ability to test and probe certain theories. Therefore, the Panel could not conform the allegations and conclude that academic fraud occurred. Further, the record’s limitations did not establish a firm basis for the panel issuing new allegations.
Unethical Conduct, Impermissible Academic Assistance and Extra Benefits by the Instructor/Counselor
The NCAA enforcement staff also alleged that the instructor/counselor provided impermissible academic assistance and extra benefits to women’s basketball student-athletes over approximately seven years. The enforcement staff specifically identified 18 instances of potential impermissible academic assistance. UNC agreed that impermissible academic assistance and extra benefits violations occurred for 15 of the 18 allegations but claimed they were untimely and therefore barred by the statute of limitations. The instructor/counselor contested the allegations and also claimed that they were untimely. Because the record only establishes sporadic examples that would require the panel to make after-the-fact individualized academic judgments on whether the instructor/counselor provided impermissible academic assistance, the panel cannot conclude the instructor/counselor violated Bylaws 10 and 16.
As the Panel previously noted, the NCAA’s role in academic violations is limited. While the NCAA defers academic fraud determinations to member institutions, there is no such deference requirement for impermissible academic assistance. But there are circumstances where the question whether impermissible academic assistance occurred itself requires academic judgments. In those circumstances, the COI must tread carefully. A violation must be clear on its face. Here, there are gaps in the record in the nature of the assistance the instructor/counselor provided. The record includes partial email chains, iterations of draft papers and lacks complete and final work. The record required the panel to assess the edits and suggestions down to the line-by-line and word basis. The Panel was not in a position to make these academic judgements. The facts are further complicated by the many roles in which the instructor/counselor served during her tenure at the institution. At the hearing, she maintained that whether she was the director of the ethics center, an instructor, ASPSA counselor for women’s basketball student-athletes or an advisor for non-athletes, she approached each student in the same manner and provided each with the same amount of assistance. Mainly, that included providing her students and student-athletes with reference materials, outlines, model papers and exercises involving reconstructing arguments.
Considering the record and the instructor/counselor’s credible statements at the hearing, the panel cannot conclude that she committed unethical conduct. Similarly, because she thoroughly explained her approach to all students and student-athletes she encountered, which is not refuted by the record material, the panel cannot conclude that she provided women’s basketball student-athletes with extra benefits. It is not clear on the face of the record that the conduct supported impermissible academic assistance. The dual role as instructor and academic counselor is a significant issue, one that member institutions must approach with caution. Proper policies and procedures regarding appropriate behaviors are essential to ensure individuals have a clear understanding of what is appropriate and what is not.
Failure to Monitor and Lack of Institutional Control
The NCAA enforcement staff also alleged that UNC failed to monitor and demonstrate appropriate controls with respect to the paper courses and the instructor/counselor. As it relates to the paper courses, the enforcement staff alleged that individuals’ knowledge of the courses and failure to act, along with inadequate education, guidance and supervision of ASPSA personnel, demonstrated a lack of control. Regarding the instructor/counselor, the enforcement staff alleged that the institution failed to heed concerns regarding her relationship with women’s basketball student-athletes and that those failures permitted her to provide extra benefits and impermissible academic assistance to women’s basketball student-athletes. UNC contested the allegations. However, in the event that the panel concluded that impermissible academic assistance occurred, UNC admitted in the alternative that it failed to monitor the instructor/counselor. Because UNC firmly backed its courses and the record lacked information demonstrating the courses were systemically created or maintained to benefit athletics, the panel cannot conclude that UNC violated Constitution Articles 2 or 6.
As a starting point, the panel could not conclude that underlying violations occurred. However, that did not end the panel’s analysis. The panel carefully considered whether the admitted conduct, failures and shortcomings, standing alone, demonstrated that the institution lacked control and failed to monitor. Constitution 6.01.1 places the control and responsibility for the conduct of intercollegiate athletics on the institution and conference. The bylaw further defines institutional control as administrative control or faculty control, or a combination of the two.
UNC repeatedly stressed that the conduct and courses failed to meet its standards and expectations. UNC also admitted that it permitted the conduct and courses to occur for 18 years because of institutional shortcomings. UNC acknowledged that those shortcomings included its failure to review the AFRI/AFAM department and its chair, based on policies existing at the time. By its own admissions, UNC appears to neither have had administrative control of the paper courses nor faculty control of the department chair. Considering these admitted failures, the panel explored whether UNC’s shortcomings demonstrated a free-standing lack of control or failure to monitor.
Similarly, it is undisputed that the classes were not a secret. Individuals in both academics and athletics knew about the courses. Many questioned them. Generally, all assumed they were acceptable under the principle of academic freedom. Both academic and athletic administrators did not believe they had the authority to question how a faculty member structured and taught a course. The panel respects the importance of academic freedom in higher education. But it is not boundless, and it cannot be utilized as a shield from responsibility in circumstances that involve student-athletes. For example, if a faculty member arranged for a student-athlete to receive credit in a course in which they did not enroll or attend or created a fake course that had no requirements but resulted in a grade, the NCAA Constitution would require anyone who became aware of that arrangement to report it.
The record, however, does not establish specific, intentional or systemic efforts tied to athletics motives. The record was full of email chains, missing academic work and interviews conducted, in some circumstances, more than five years after the classes ceased. Those materials, required the panel to, at best, infer motives based on the large number of student-athletes who took the courses and received high marks. While student-athletes and athletics programs likely benefitted from utilizing the courses for eligibility purposes, regular students likely benefitted from them as well. Without the proper athletics touchpoints, however, the COI cannot conclude free-standing failure to monitor or lack of institutional control violations occurred based solely on deficient administrative structures. Here, absent the attenuated fact that potentially around two thousand student-athletes took these courses, the record does not demonstrate that those failures had an athletics motive. Based on the posture of the record and in light of the secretary’s statements at the hearing related to the nature of the courses, the conduct did not involve those athletics touchpoints.
In a more limited inquiry, the enforcement staff also alleged UNC failed to monitor and lacked control with respect to the instructor/counselor’s conduct. The panel acknowledges that her multiple positions complicated her reporting lines and roles within UNC. The panel recognizes UNC employed questionable oversight with regard to her various activities. However, based on the record that required the panel to parse isolated sentences and potential suggested changes to draft papers within partial email chains, the instructor/counselor’s testimony that she treated all students equally and the panel’s not substituting its judgment on pure academic matters, the panel could not conclude the instructor/counselor committed violations. As such, the panel cannot conclude UNC failed monitor the instructor/counselor or that it lacked control.
Although the Panel did not conclude academic, failure to monitor or lack of institutional control violations occurred, UNC originally adopted SACS’ characterization of the conduct as academic fraud. UNC also admitted that the courses did not meet its standards and it let its students down. Bylaw 19.9.10 permits panels to recommend that the NCAA president forward a copy of the public infractions decision to accrediting bodies when the panel determines academic violations or questionable academic conduct occurred. Those circumstances were present here.
Breaches of Confidentiality
In its written reply, the enforcement staff identified two individuals associated in the case may have breached confidentiality requirements. The first involved counsel for the secretary who, on two occasions, released infractions-related information to the media. The second involved the institution’s athletics director and comments he made to a reporter from a well-known media outlet. The NCAA enforcement staff noted the occurrences as potential confidentiality violations.
Bylaw 19.01.3 requires individuals subject to the NCAA constitution and bylaws, including any representative or counsel, to not make any public disclosures until a final decision has been released. The bylaw is intended to protect the membership’s infractions process in three main areas: (1) the integrity of the investigation; (2) individuals associated with or subject to the investigation; and (3) those involved in the process, including the COI. Bylaw 19.5.2 permits a minor exception for individuals to confirm, correct or deny information that has been made public.
This case was public in nature. After all, the substance of the case originated from a media story that identified potential issues involving AFRI/AFAM courses. It also involved public attacks on the membership’s infractions process that, at times, appeared to only further the public interest in the infractions case. The public narrative of a case, however, does not supersede the membership’s strict confidentiality rules. To the contrary, the enhanced public nature of a case only reinforces the need for participants’ commitment to confidentiality.
The Panel directly addressed the identified disclosures with the individuals at the infractions hearing. Both apologized and provided context surrounding their actions. Although it is within the panel’s authority to conclude a violation occurred and prescribe an appropriate penalty, the panel concludes neither is appropriate here given the posture of this case.
The COI remains deeply concerned about breaches of confidentiality occurring at any point during the infractions process. Moreover, the COI is troubled by the attacks on the membership’s infractions process and individual COI members who volunteer to serve its important mission. The panel appreciates the enforcement staff for bringing the conduct to the panel’s attention. The enforcement staff remains in the best position to identify potential breaches of confidentiality. The COI retains the authority to consider confidentiality breaches identified by the enforcement staff after the issuance of an NOA. Based on that information, the panel may conclude violations occurred and that such conduct constitutes an aggravating factor and may thereby penalize conduct in future cases.
Aggravating and Mitigating Factors in accordance with NCAA Bylaws 19.9.3 and 19.9.4
Aggravating Factors for the Department Chair
19.9.3-(e) unethical conduct and failing to cooperate.
Mitigating Factors for the Department Chair
Aggravating Factors for the Secretary
19.9.3-(e) unethical conduct and failing to cooperate during an investigation.
Mitigating Factors for the Secretary
19.9.4-(h) The absence of prior conclusions of Level I, Level II or major violations.
As a result of the foregoing, the Committee penalized UNC as follows:
1. The department chair shall be subject to a five-year show-cause order from October 13, 2017, to October 12, 2022.
2. The secretary violated ethical conduct and cooperation bylaws when she refused to cooperate with UNC and the enforcement staff’s investigation. She was a principle actor in the academic saga that occurred and had first-hand pertinent knowledge regarding the creation, growth, administration, access and grading of the courses at issue in this case. Her refusal to initially cooperate hindered both the institution’s and the enforcement’s staff ability to understand the full breadth and scope of what occurred at UNC. Although untimely, she eventually submitted a response to the second ANOA, participated in an interview with the parties and physically attended the in-person infractions hearing. Consistent with the ranges identified in the penalty guidelines for Level II-Mitigated conduct, the panel does not prescribe a show-cause order. However, a record of the secretary’s failure to cooperate will be maintained in the OCOI. The administrative record will be available to member institutions who inquire into the secretary’s infractions history.