In the NCAA’s investigation, UNC-Chapel Hill is a partner

Kenneth Wainstein, a partner with Cadwalader, Wickersham & Taft LLP holds up the report on UNC-Chapel Hill's academic problems in association with the athletics department during a press conference at Chapel Hill in October 2014.
Kenneth Wainstein, a partner with Cadwalader, Wickersham & Taft LLP holds up the report on UNC-Chapel Hill's academic problems in association with the athletics department during a press conference at Chapel Hill in October 2014.

Six months after a report recounting 18 years of academic fraud at UNC-Chapel Hill, few clues have emerged as to where the NCAA is headed with its investigation.

But contacts with at least two potential witnesses show the NCAA is treating UNC as a partner in the case, despite the previous efforts UNC mounted to convince the NCAA and the public that the fraud had no athletic motive.

In one circumstance, the NCAA received documents from a former graduate school admissions director, Cheryl Thomas, that showed a football player had been admitted and given a fourth year of eligibility despite a low GPA and no entrance exam. It forwarded the documents to a lawyer representing UNC, emails show. The lawyer then sought to interview her.

When she didn’t respond, the NCAA contacted her by email for an interview. But that email shows the NCAA wanted UNC to participate.

For the NCAA, this is not unusual. It long has been the organization’s practice to conduct joint investigations with member schools. At best, the process gives an institution the opportunity to root out all the problems it can, which can earn it cooperation points when the NCAA decides sanctions. At worst, the process leads to witness intimidation, entrapment of athletes and ungathered evidence, critics say. It’s an unusual process in the universe of investigative agencies.

“It doesn’t make rational sense,” said Donna Lopiano, a former director of women’s athletics at the University of Texas. “I know the institution does have an obligation under NCAA rules to assess itself and report a violation. But as soon as the NCAA comes in, I don’t understand the university’s participation.”

She and others have criticized the NCAA’s handling of the UNC case. For more than two years, the NCAA accepted the university’s position that the fraud wasn’t about athletics because non-athletes were also in the fake classes and received the same high grades.

But Kenneth Wainstein’s investigation last fall found athlete eligibility at the heart of the scandal. The former federal prosecutor said that Deborah Crowder, an administrative aide who managed the African studies department, created the fake classes in 1993 after academic counselors for athletes complained that her boss’ independent studies were too rigorous.

Department chairman Julius Nyang’oro became aware of Crowder’s fake classes but did not put an end to them. Academic counselors for the athletes persuaded him to create a few more after Crowder retired in 2009.

20 investigations?

NCAA officials declined a reporter’s request to talk about the UNC case, or the enforcement process. NCAA President Mark Emmert has said the scandal “potentially strikes at the heart of what higher education is about.” But he has not said whether he thinks what happened at UNC constitutes a violation of NCAA academic integrity rules.

In the wake of the UNC case, NCAA officials told The Chronicle of Higher Education there were 20 academic misconduct investigations under way, nearly all at Division I universities. The NCAA officials also said they were dedicating more resources to uncover academic fraud. They have not identified the other universities under investigation.

UNC officials declined a request to talk about the academic fraud case. UNC Athletics Director Bubba Cunningham has sought to downplay the Wainstein report’s impact.

“It’s one person’s interpretation of 126 interviews,” Cunningham told Inside Carolina, a fan website, in January. “It’s some opinion, some fact, and it was used to try to understand what happened. It’s not a legal document. It’s not a document that will be the answer guide to SACS, the NCAA or anything else. It’s just one piece of evidence in a large body of information.”

SACS is the Southern Association of Colleges and Schools Commission on Colleges, which accredits UNC. The commission has requested more information about the scandal and is expected to consider sanctions against the university in June.

‘No protection’

There are no whistleblower protections for those who provide evidence of misconduct to the NCAA. Athletes who are suspected of misconduct have been interviewed without counsel and under threat of suspension. The NCAA lacks subpoena power to compel those beyond the university to testify.

The process is closed to the public; the NCAA has created a website so its member universities can input information without it being captured in a public records request.

Mary Willingham, the former learning specialist for UNC athletes who tipped The News & Observer to the fake classes in 2011, said she never heard from the NCAA until it chose to reopen its investigation 10 months ago. Until recently, she had an active lawsuit against UNC, contending it retaliated against her for blowing the whistle.

After months of negotiations, Willingham said she ultimately turned down an interview with the NCAA because it planned to give a recording of the interview to UNC while her lawsuit was in play.

“They have no protection for whistleblowers. They have no protection for athletes, more importantly,” she said. “So until that time, I don’t know why any of us would want to speak to them, especially because they are running an investigation with the university.”

The NCAA’s investigative operation has been staffed with young investigators who were often former college athletes or coaches, Stephen Miller, a Philadelphia lawyer who specializes in NCAA compliance cases, wrote in a 2012 article for The Atlantic. A botched investigation involving the University of Miami in 2013 brought major changes for the NCAA’s enforcement wing, including a new director.

Gary Roberts, dean emeritus of Indiana University’s law school and a former faculty representative to the NCAA while at Tulane University, said he understood concerns about the joint investigative process, but noted the universities do not have the opportunity to question witnesses at NCAA infractions hearings. At that point, the debate is typically about penalties.

The NCAA enforcement staff has an “extremely difficult job enforcing that complex rule book with over a thousand institutions that have a major incentive to cheat, and they can’t work like law enforcement,” he said.

When universities are in trouble, they hire private lawyers with years of experience working for the NCAA.

UNC has hired one of the most effective – Rick Evrard of the Bond, Schoeneck & King law firm’s suburban Kansas City office. Evrard spent seven years at the NCAA in enforcement and as director of legislative services.

Nine years ago, Evrard represented the University of Kansas in an infractions case as its attorney and investigator, The New York Times reported. The NCAA largely accepted penalties suggested by the university in a case involving academic fraud in the football program and booster payments to former men’s basketball players. The university went on probation and lost some scholarships but avoided post-season bans.

It was Evrard who sought to meet with Thomas, the former UNC graduate admissions director, earlier this year.

Evrard also hired Jo Potuto, a University of Nebraska law professor and former chairman of the NCAA’s Committee on Infractions, as a consultant to give an assessment of the Wainstein report into the academic fraud. Potuto can still sit on the committee when vacancies arise.

The News & Observer requested her assessment of the case from UNC. UNC officials said the university didn’t contract with Potuto and does not have her assessment.

A push for transparency

Those who call for reforms say the NCAA needs to adopt a process that leads to independent, professional investigations and hearings.

The Drake Group, a national faculty organization advocating for academic integrity in college sports, put forth a nine-page proposal earlier this month that calls for the NCAA to contract with experienced former investigators to gather evidence, former judges to hear major infractions cases with witnesses testifying, and whistleblower protections and counsel for athletes.

The group estimated the new enforcement system would cost the NCAA $9.1 million a year, “well within the capacity of a national organization that is generating close to $1 billion annually and returning 90 percent to its Division I members.” Lopiano, the former Texas athletic official, and Willingham are among several co-authors of the reform proposal.

Lawyers, books and a documentary

Other developments in the UNC academic scandal:

▪ Records recently released show UNC has paid the Skadden, Arps, Slate, Meagher & Flom law firm $545,500 as of the end of January for work related to the academic fraud case. The bills are not itemized. Patrick Fitzgerald, a prominent former U.S. attorney from Chicago, is leading a team of lawyers with the New York-based firm in handling various aspects of the fraud case.

▪ “Cheated,” the book UNC history professor Jay Smith and whistleblower Mary Willingham have written about the academic scandal, sold its first printing of 3,000 copies and is now in its second printing, they said. The book has been featured on NPR, in The Wall Street Journal and on C-SPAN’s Book TV, which videotaped a recent reading at Quail Ridge Books in Raleigh.

▪ Bradley Bethel, a former learning specialist for UNC athletes, has reported raising $140,000 through Kickstarter to produce a documentary challenging media reporting about the scandal, including that of The News & Observer. It’s called “Unverified: The Film.” Meanwhile, Andrew Muscato, a producer of “Schooled: The Price of College Sports,” a documentary released in 2013 that featured the UNC scandal and The N&O’s reporting, is planning a re-release with additional material.