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The UNC Academic Scandal will probably make life difficult for Roy Williams.

The NCAA’s Ill-Defined Role in Academic Fraud Cases

Academic misconduct in the NCAA has become a bit of a hot button issue in the last decade, as the NCAA is categorizing academic improprieties as an impermissible extra benefit.  With the addition of the Academic Progress Rate (APR) in 2004, NCAA coaches everywhere not only had to worry about a program’s athletic history, but also had to put a new emphasis on academic history. Increasing pressures to meet APR in the last decade have correlated with an increase in academic improprieties as shady efforts to both keep players competing and keep the team from being penalized.

When looking at academic fraud involving NCAA student-athletes, the million-dollar question is “What should the NCAA’s role be in assessing and punishing academic fraud?” The latter is simple; once a school has found that academic fraud with student-athletes has occurred, the NCAA is well within its rights to nail them (see Syracuse). The more pressing question is whether or not it is the NCAA’s burden to initiate an investigation into whether an event on campus constitutes academic fraud.  In my opinion, the answer is no.

The first troubling item for all monitoring/penalizing parties involved is that not every academic issue is definitively an NCAA violation. Student-athletes working together on a take home test when the professor told them not to may be an institutional academic issue, but it does not meet the NCAA definition of an academic extra benefit.

When does an academic integrity issue become an NCAA problem?

Academic issues on campus become an NCAA violation when:

  • There is involvement by an institutional faculty or staff member;
  • There is involvement by the Athletics Department Staff;
  • An athlete is treated differently than the rest of the student body due to his or her participation in athletics;
  • Academic misconduct led to an athlete competing when he or she otherwise would have been ineligible; or
  • Any other academic offense (e.g., cheating on a test) that leads to an erroneous declaration of eligibility.

First and foremost, this eliminates most forms of cheating between students from the equation. If a classmate shares an answer, or a test, this does not mean there is any NCAA violation if a student-athlete is part of it. Hell, when I was in college, if you knew someone of an earlier class section that just took the test, you beeline to them and try to find out the questions. Also, good luck trying to stop any students from getting together on any assignments completed outside of the classroom and away from the professor’s supervision. If lab partners decide to alternate who writes the lab report, then the other copies it, the NCAA just won’t care. Even if a student-athlete gets a grade raised in exchange for doing extra work, that’s not necessarily an issue, as it seems to be a fairly common thing on campuses, particularly for students who attend class and put in effort.

Any of these cases become an impermissible extra benefit if a member of the institution is involved. If a professor, tutor, or teaching assistant share a test or answers, then the NCAA should have a problem with that. If a grade gets changed with no extra work or rationale just because a student-athlete says “C’mon I need this to play next semester,” we have a problem. Additionally, any of the above academic misconduct issues would become impermissible if they led to a student-athlete being declared incorrectly eligible.

One large issue remains in the way that the NCAA currently determines these cases: was there an advantage gained by the institution? The following hypothetical that could play out in opposite ways shows the gap between regulation and enforcement. Academic impropriety in a redshirt student-athlete (not participating) in no danger of becoming academically ineligible versus improprieties with a kid on the borderline of eligibility could result in opposite outcomes. The obvious NCAA answer is that if it has no effect on eligibility, it doesn’t fall within the scope of the legislation. On the other hand, if the NCAA wants to be serious about the matter, there should be no gray area or double standards for application.

Why should the NCAA refrain from jumping in to campus investigations?

During the press conference on the state of college sports that occurred before the Final Four, Kansas State President Kirk Schulz commented that he had no desire to have the NCAA more involved in the academic enterprise. He went on to say that it is the responsibility of institutions to ensure they are offering quality educational programs for students. Currently, NCAA policy is to essentially stay out of campus investigations of academic fraud until the institution has concluded whether an impropriety has actually occurred.

1) That is way too much work for anyone.

The first of two reasons why this policy should continue is scope. The NCAA is comprised of 1200+ schools across three divisions. Yes, the NCAA does monitor classes at the high school level, but limited to core courses that fall under English, Math, Science, Social Sciences, or foreign language/nondoctrinal religion courses. Let’s say that about 37,000 high schools register about 90 core courses each (~15-20 each English/Math/Science, 20-30 Social Science, 15-20 foreign language) for a total of 3,330,000 courses.[i] All of these courses fall within fairly restrictive guidelines that are, for the most part, fairly easy to check off quickly.

Now let’s look at a university setting. Ohio State, a massive school, apparently offers over 12,000 courses. Washington says it offers 6,500, Duke says it offers 4,000 each semester, and Oregon averages 3,887 classes per term over 272 academic programs. As a slightly smaller school, Appalachian State still offers in excess of 2,400 courses over 226 undergraduate programs.[ii] Of course, all of these are Division I schools, but looking at DII/DIII schools, even places like Catawba College and Mount Union offer 60+ programs of study. Long story/statistics paragraph short, looking at these figures even conservatively says the NCAA would have over 2,100,000 courses to monitor in at least 250 academic fields. The new academic misconduct rules are in place to monitor and enforce academic standards, eligibility, and retention, not to control what occurs in each classroom.

2) Others should decide what consists of academic misconduct before the NCAA.

Academic departments, Schools (e.g., School of Liberal Arts), Universities, Academic Advisors, Registrars, University Conduct Boards, whoever provides accreditation to schools, the state university systems, the Department of Education.  This is a preliminary, 30-second list of entities that should be looking into institutional academic impropriety cases before the NCAA gets involved. Simply put, it isn’t the NCAA’s job, just like it isn’t the NCAA’s job to police crimes. In the same “state of college sports” panel, someone asked of Emmert why there are no punishments in place for sexual assault, and the answer is similarly because NCAA rules don’t apply to crimes.[iii] The NCAA has not been given authority to regulate such misconduct. Quite simply, These actions and offenses are not in the NCAA’s wheelhouse.

In McCants v. NCAA, two former student-athletes sued UNC, and the NCAA for failing to adequately monitor situations involving academic fraud even though they know it happens. The NCAA responded, saying they owe no legal duty to student-athletes over instances of academic fraud, and they make a good point. The NCAA is a voluntary association, in which all of the member institutions agree to abide by set standards. The academic standards only mandate institutional policies get followed, and extra benefits aren’t provided to gain a competitive advantage. Nothing from the NCAA says what those standards have to be. Why isn’t the NCAA policing what counts as a paper class at UNC?[iv] More importantly, why should the NCAA police it? If that department is suspect, there are still steps along the institutional chain of command to address such issues.

In the UNC case, the NCAA had no reason to step in at least until the UNC’s investigative report was released.[v] Once that occurred, only then could the NCAA start investigating to determine how the academic misconduct affected student-athletes. How many of the athletes were steered towards the courses as opposed to how many heard about the courses and took them? How did the non-student-athletes hear about and sign up for these courses, they were clearly not turned away, so were all the involved athletes steered towards the courses or did some hear and take it through word of mouth?[vi]  Only now that the school has concluded that academic misconduct occurred (no real surprise there), can the NCAA punish the school after it determines for itself what went down in Chapel Hill.

Investigating Academic Fraud

In the event an institution declares that academic improprieties have occurred, the NCAA can start its own investigation. One important item to note is this process can’t be started by media reports to investigate/bring charges; the institution, or an institutional employee, has to present the alleged wrong.  So when everyone is up in arms about reports from schools and why the NCAA isn’t involved, they don’t start until the information has been provided to them. 20 schools are currently under investigation for academic fraud, but this could be a misnomer. “Under investigation” ranges anywhere from “full-blown, investigators living on campus” red alert, to a tutor mentioned something and the NCAA is asking additional questions.

While the NCAA has no subpoena power, two bylaws effectively produce the same result. Bylaw 10.1 regarding ethical conduct allows for a violation to be found should anyone lie, or produce false/misleading information. Bylaw 19.2.3 covers an affirmative obligation to cooperate for member institutions and staff members. Failure to cooperate or follow either of these two bylaws can be an aggravating factor when determining penalties. Incidentally, the NCAA has no real hold over Mary Willingham, the former UNC tutor, who may or may not be cooperating.

Academic Misconduct Investigations Need to Stay With the Institution.

Academic improprieties are not the in the same vein as amateurism violations.[vii] Financial extra benefits are easily monitored and they can be easily regulated by one set standard. Academic policies vary so much between institutions that there is no way to set one rigid set of rules, which leads back to any allegations falling under the extra benefit idea, “was this completed in a different manner related to the student-athlete than to other students?” Especially in cases where academic misconduct does not relate to the ability to compete, the simple fact that it doesn’t fall within the rationale of NCAA legislation (it doesn’t affect competition, no advantage gained) makes it hard to justifiably punish.[viii] When the NCAA says unethical conduct, it doesn’t mean stealing, or committing adultery, it applies specifically to conduct as it relates to the NCAA Manual. Similarly, since every institution will have their own policies, it isn’t the NCAA’s job to determine those policies; it’s only the NCAA’s job to penalize when an institution determines their policies were not followed.

[i] Saying schools average 90 core courses could be generous. Several I’ve seen have 20-50. Many that have more also include similar honors/AP courses.

[ii] This took some creativity after getting bored counting through 563 courses in 17 programs over 70 pages of the 2014-15 Undergraduate Bulletin.

[iii] If you’re looking to the NCAA to punish sexual assault crimes, I don’t even want to know how bad that campus police force or Conduct office is…

[iv] Not looking to completely dive into the unbridled fiasco that is the UNC academic scandal here.

[v] Damn, I started diving into the unbridled fiasco that is the UNC academic scandal.

[vi] Go back to your college days, I can immediately tell you at least 2 courses I took after hearing about how easy they were. Did it matter how they were easy? Nope, but if it fit into graduation requirements then everyone flocked to them. Also a History major, I definitely had courses where the only assignment was a paper. I didn’t know how it was graded, but I took it.

[vii] Definitely not touching anything amateurism-related here.

[viii] Ignoring obvious health/safety issues involved, there’s a reason cops don’t pull over ambulances for speeding. Even if it is speeding, it isn’t the type of speeding they are out to monitor.

About Sean Dotson

Sean currently works in the Athletics Compliance Office at Appalachian State University. He graduated from Tulane University School of Law with a certificate in Sports Law in 2012, and graduated from Tulane University with a B.A. in History in 2009. Sean has previously worked with multiple sports agents, and as a law clerk in workers’ compensation court.

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