North Carolina AD lays out academic fraud defense: NCAA 'overcharged' Tar Heels
The investigation into academic fraud at UNC has been going on for six years now
The NCAA "overcharged" North Carolina in its long-standing academic fraud case, UNC athletic director Bubba Cunningham told CBS Sports in a wide-ranging conversation about the association's tactics and intentions during the investigation.
Revealing what seems to be North Carolina's defense in the case, Cunningham told CBS Sports, "Is this academic fraud? Yes, it is by a normal person's standards. But by the NCAA definition [it is not]."
The school has been charged with unethical conduct, lack of institutional control and extra benefits provided by a perpetrator of a bogus class scheme.
"They -- what we believe -- overcharged us," Cunningham said.
Cunningham said the school is worried about an overreach by the NCAA. He specifically mentioned the emotionally charged cases this decade at USC, Miami and Penn State. In each case, the NCAA was accused of -- or admitted to -- surpassing its enforcement powers.
"[Those] are the three cases that we continue to bring back, [saying], 'You're doing it again. Don't do it.'" Cunningham said.
Back in play is the competitive core of UNC athletics. The NCAA has widened the scope of the investigation from 2002-11. The broadened investigation could conceivably put the 2005 and 2009 men's basketball championships at risk.
Several sources familiar with the NCAA process have speculated that to mean postseason, scholarships and/or vacated wins could be in play as penalties.
Cunningham is concerned about the "wide latitude" given to the NCAA Committee on Infractions in applying possible penalties. He called the committee that adjudicates NCAA wrongdoing "anonymous people that are justice warriors."
"So you do worry about the scope?" he asked rhetorically. "As much as I worry about the scope and punishment, I think we have all kinds of legal arguments that will hold up.
"[I just hope] the NCAA doesn't do something that's outside the boundaries."
In its latest allegations, the NCAA contends UNC "leveraged a relationship" with professor Julius Nyang'oro and clerical assistant Debbie Crowder. Both are accused of setting up fake classes. The NCAA says those classes ensured the eligibility of several UNC athletes.
"We leveraged the relationship, we had special arrangements ... happens every day," Cunningham countered. "Last year, we went to the business school. The business school teaches a leadership class. It was for the leaders of the fraternities and student body leadership positions.
"We asked ... 'Can you create a class for our student-athlete advisory committee?' They said, 'Absolutely.' So we leveraged our relationship. ... One-hundred percent of the students in the class were athletes."
Cunningham added that example, "... will be mentioned at the hearing -- absolutely."
Semantics may be at the heart of North Carolina's defense when presented to the infractions committee later this year. Historically, the NCAA has been all over the map with regard to what it considers academic fraud.
In general, the association has shied away from defining academic impropriety. However, academic fraud strikes to the heart of the amateurism model and the NCAA constitution.
In April, the NCAA sought some clarity in changing its academic integrity rules.
This case will no doubt continue a debate that has been raging for decades: what right the NCAA has in telling any school what classes it can offer.
"I'm telling you what happened was bad, but it's not against the rules," Cunningham said of the UNC case. "So you have to change the rules.
"[I told the NCAA] if a class is on my transcript, I have a grade, I have a credit," Cunningham added. "How are you -- as the outside athletic agency -- telling me that's not good?"
In the public arena, at least, UNC's case is widely considered the worst case of academic fraud in history. The investigation -- now stretching into its sixth year -- began when a faulty transcript in another case revealed what appeared to be a trail of bogus classes stretching back 18 years.
Approximately 3,100 students took those classes. Approximately half of those were athletes. The highest concentration of those athletes were football and men's basketball players.
The classes in question reportedly never met. Minimal work was required. UNC called in the NCAA immediately in 2011 when it discovered the questionable classes.
The association initially passed on an investigation. The NCAA was later forced to consider the improprieties because of the dogged reporting of the Raleigh News and Observer.
"What they're charging is just so bizarre," Cunningham said of the NCAA.
The original NCAA allegation said Nyang'oro and Crowder were in charge of "anomalous classes." The NCAA later adopted the detailed testimony of both Nyang'oro and Crowder to former U.S assistant attorney general Ken Wainstein in an independent investigation.
Cunningham contended that interview wasn't proper because it wasn't part of "the NCAA process. That means it's a joint interview. The NCAA is there and the institution is there."
It's rare for such a high-ranking university official to speak out during such a contentious case. However, Cunningham arrived from Tulsa in 2011. He inherited the case. It did not occur during his watch.
In June 2015, North Carolina's accrediting agency took the rare step of putting the school on probation in light of the scandal. Since last summer, UNC has been back in good standing with the Southern Association of Colleges and Schools Commission.
Cunningham: "They said, 'If you've graduated [the students], the classes count. ... If you haven't graduated, the classes count, the grade counts. However, we think you should take additional hours.'"
"The kids said, 'Fine.' They took additional hours."
The latest UNC charges were applied after a rare third notice of allegations from the NCAA in November. Until then, North Carolina basketball and football were seemingly out of danger from being sanctioned. That was before UNC challenged the NCAA's procedures and jurisdiction in the case.
Asked specifically whether he thought UNC antagonized the NCAA with that challenge, Cunningham said, "I don't know the answer to that. I've gotten that question a fair amount of times."
Asked later if he thought the new allegations were retaliatory, Cunningham said, "It is and it isn't."
Until that point, a second notice of allegations seemingly had limited wrongdoing to women's basketball and Jan Boxill, a former women's basketball academic counselor. That third notice re-inserted charges against men's basketball and football.
That 73-page response that preceded those allegations could be the foundation for a legal challenge to the NCAA if UNC disagrees with the outcome of the case. Cunningham stressed that no lawsuit has been discussed.
"The NCAA and the Committee on Infractions do not comment on the substance of pending infractions cases. It is important to note that when deciding any case, the Committee on Infractions uses a fair process, which was established by NCAA members," a spokesman told CBS Sports.
"During its comprehensive review of a case, the hearing panel has access to a full record, and not just information made available in public statements. The panel gives all parties the opportunity to present information to the panel, and decides whether violations of NCAA rules occurred. It is within this membership established process that infractions cases are ultimately decided."
It is known that some at North Carolina are concerned that SEC commissioner Greg Sankey is overseeing the case as infractions committee chairman.
"I don't like it. It's competitor versus competitor. It's fraught with conflict," Cunningham said.
Without naming Sankey, Cunningham said he did support a chairman -- such as a retired judge -- who is a "professional arbitrator." That concept has been discussed in the past within NCAA circles.
"Be fair about the facts and render a decision," Cunningham said.
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