So the decision of the COI must be affirmed by a court “in the absence of arbitrariness, fraud, or collusion.” Suppose the COI concludes that the following facts are true:
• student-athletes accounted for 48% of all enrollments in the irregular classes, but only 8.3% of the enrollments in the regular AFAM courses
• 47.4% of the enrollments in lecture paper classes were student-athletes, even though student-athletes make up just over 4% of the Chapel Hill undergraduate student body.
• 21% of the student-athletes at Chapel Hill between 1999 and 2011 years took at least one AFAM paper class. By contrast, only 2% of the general population of non-athlete students took a paper class during that time period.
And suppose that for these and other reasons the COI concludes that these facts show that the paper classes were not “generally available” to all students under NCAA Bylaws despite the fact that over half the students in the classes were not athletes, because the inside information and steering available to athletes gave them a significant advantage in signing up for the classes.
If UNC then were to appeal to the courts what is the likelihood that the court would find that the COI’s action was “arbitrary”? Here is some guidance that the North Carolina Supreme Court has given on the meaning of “arbitrary”:
“…so patently in bad faith as to evidence arbitrary abuse of his right of choice. If the officer acted within the law and in good faith in the exercise of his best judgment, the court must decline to interfere even though it is convinced the official chose the wrong course of action. …when such decisions are “whimsical” because they indicate a lack of fair and careful consideration; when they fail to indicate “any course of reasoning and the exercise of judgment…””
http://law.justia.com/cases/north-ca...1980/85-0.html