BRYAN WALSH—After a long, drawn out investigation that left the Tar Heels wallowing in purgatory for over three years, the NCAA made its decision on the University of North Carolina – Chapel Hill Basketball scandal on October 13, 2017. In the proceedings leading up to the final judgment, the University admitted that it had administered what it referred to as “paper classes.” These classes never met throughout the semester and required only that a paper be submitted. A secretary graded the papers, never read an entire paper, and admitted to frequently skipping pages. Most students received an “A” in the class.
The NCAA ruled that it “could not conclude academic violations.” The NCAA reasoned that because the classes were open to the entire student body, rather than just student athletes, there were no impermissible benefits given to the athletes. Despite making up just 4% of the student body, athletes accounted for more than 50% of the students in these paper classes. According to the NCAA bylaws, “Intercollegiate athletics programs shall be maintained as a vital component of the educational program, and student-athletes shall be an integral part of the student body. The admission, academic standing and academic progress of student-athletes shall be consistent with the policies and standards adopted by the institution for the student body in general.”
Thus, based on the language of the rule, the NCAA likely made the correct decision. Any student at the University was free to take these classes. The “student body in general” was not held to a different standard than the student athletes.
However, this method of enforcement could lead to some strange results in furthering that goal. For example, the University of Louisville Basketball team was put on probation for five years and was forced to vacate wins as punishment for arranging “striptease dances and/or sex acts” for players and prospective players. It appears, according the NCAA ruling, that if the University of Louisville had made this exact arrangement open to the entire student body, there would have been no violation. On the other hand, despite having its business intersect with public universities, the Supreme Court held in NCAA v. Tarkanian that the NCAA is not a state actor and thus is not held to constitutional due process concerns. The NCAA, of course, is neither a court nor a governmental agency, and this fact suggests that the NCAA could theoretically overrule its precedents much easier than a court or agency could.
Additionally, the NCAA makes does not determine if academic fraud was committed and instead leaves that question up to the given institution itself.
The University added these “paper classes” classes for one of two reasons. Either (1) it was attempting to circumvent academic eligibility criteria or (2) it believed these classes added value to its curriculum. The Southern Association of Colleges and Schools’ Commission on Colleges (SACS), the institution responsible for the University’s accreditation, charged the University with eighteen violations of its standards. The NCAA explained, “Although UNC’s current policies now prohibit such courses, UNC stood firmly by the courses in question with respect to the infractions process, indicating they did not violate policies existing at the time. UNC also claimed students and student-athletes were treated alike, they completed meaningful academic work and UNC did not remove course grades from students’ transcripts or rescind degrees.”
Had the NCAA levied sanctions against the University, the University would have likely considered filing a lawsuit against the NCAA in violation of the Sherman Antitrust Act. The University would likely have argued that the NCAA would be overstepping its boundaries into the realm of accreditor. Therefore, the NCAA would be acting anti-competitively by restricting the University’s basketball team’s ability based on the quality of education the student body is receiving. Thus, some have thought that the NCAA avoided levying sanctions because it feared an antitrust lawsuit.
However, it is not obvious that the University would have had a viable case in the first place. In granting the NCAA’s Motion to Dismiss in Pennsylvania v. NCAA, the U.S. District Court for Middle District of Pennsylvania stated that, for the NCAA to avoid antitrust regulation, there must be a “legitimate enforcement action relating to amateurism and fair play.” Additionally, any action in question must be considered “commercial activity.” The Third Circuit has held that NCAA bylaws relating to scholarships and eligibility for players are not commercial, and the Middle District believes that any regulation that “primarily seek[s] to ensure fair competition in intercollegiate athletics,” would also not be considered commercial. Further indication that the University would have struggled past this hurdle is the Eastern District of Pennsylvania’s reasoning that when the NCAA is acting “paternalistically” in favor of promoting “amateurism and education,” they are not acting commercially. The NCAA would likely argue that sanctions were not commercial because they were both promoting fair play and education. Additionally, this line of reasoning is not unique to the Third Circuit—the District Court for the Central District of California, in Tanaka v. University of Southern California, held that NCAA transfer restrictions were “noncommercial in nature.”
If it is relatively clear that the NCAA would have been able to successfully dismiss an antitrust lawsuit, maybe the NCAA was confident that there were not any impermissible benefits. Any penalties imposed on the University should then be left up to the accrediting institution. SACS did place the University on probation for a year, which is its second-harshest penalty behind removal of accreditation, but the University was subsequently removed from probation after one year. Had SACS removed the University’s accreditation, the NCAA bylaws would have prevented the University from being eligible for participating the in the NCAA.
In the end, members of the UNC student body graduated with these “paper classes” on their transcript. Thus, not only were these deficient and unusual classes open to everyone—they apparently met UNC’s academic standards. For these reasons, the NCAA was correct in its decision to not sanction UNC.
