In the wake of the NCAA’s recent whitewash of the UNC academic fraud case, a host of editorialists, columnists and sports pundits have blasted the decision. Even former U.S. Secretary of Education Arne Duncan, now co-chair of the Knight Commission on Intercollegiate Athletics, has lamented the NCAA rule upon which the Infractions Committee relied.
That rule essentially says it’s up to the academic institution to determine if academic fraud has occurred. Many, including Duncan, have called upon the NCAA to change the rule and hold institutions like UNC accountable for academic wrongdoing or fraud.
But it’s wrong to conclude that the rule in question left the Committee no choice but to let UNC skate. The Committee could have applied another rule to get to a different result. Here’s how:
Several years after the UNC scandal began and in the midst of the NCAA disciplinary process, the NCAA quietly chose to distance itself from oversight responsibility for academic wrongdoing. In 2016, NCAA Rule 10.1(b) was repealed. This rule deemed as unethical conduct “Knowing involvement in arranging for fraudulent academic credit ... for an enrolled student athlete.” The NCAA had used it repeatedly to find student athletes guilty of academic fraud and rule them ineligible. In fact, this rule produced the first NCAA academic casualty at UNC in 2010 when football player Mike McAdoo was nailed for getting too much help on a paper from a tutor.
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An application of Rule 10.1(b), which was on the books until August 2016, would have found UNC knee deep in tar and with little chance to avoid punishment. After all, the Infractions Committee concluded 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.”
But while the NCAA quietly removed 10.1(b), it added a provision requiring an institution to determine whether academic wrongdoing or fraud had occurred. Despite these rule changes coming after the UNC conduct had occurred, the NCAA applied this gaping new loophole to the UNC case and bemoaned the fact that it now had to find the university not guilty. UNC, having once deemed the classes academic wrongdoing and fraud, now claimed ownership of the classes and said they didn’t violate any UNC policies. The NCAA bought the argument, then claimed that it had little choice but to find there was no violation.
Still, if the Committee was going to apply new rules to the UNC case, then it could have turned to a 2016 amendment dealing with academic misconduct. That new provision requires “all institutional staff members and student-athletes” to act with honesty and integrity in all academic matters. Would UNC have contended that the UNC employees involved in this sordid scandal acted with “honesty and integrity”? One can only hope not, but UNC never had to make that choice.
Orr is a former N.C. Supreme Court justice. He is representing plaintiffs in a suit that two former athletes brought against UNC over courses it provided. Email: greenponds.