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  1. #361
    Quote Originally Posted by Duke95 View Post
    Discovery would ensure, but the questions is its breadth. I expect UNC would attempt to limit the scope considerably. Whether it would succeed in doing so is obviously a litigation risk they would consider prior to filing any legal action.

    But we're getting ahead of ourselves. The COI hearing is still 2 months away.
    Given that one of the charges is "lack of institutional control", my guess is that the NCAA will hammer away on this charge given that it is the most serious and the one that UNC is least able to defend against...both now and in any form of legal appeal.

  2. #362
    I don't see why people expect a UNC suit to result in discovery.

    UNC will not be disputing the facts of the case in court ... only the NCAA's interpretation of its rules.

    The courts will absolutely not re-try the case on the evidence ... but UNC might (in fact, already has) claim that the NCAA has violated its own rules in pursuing this case. That is the only thing that could be adjudicated ... and it won't involve discovery.

  3. #363
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    Quote Originally Posted by Olympic Fan View Post
    I don't see why people expect a UNC suit to result in discovery.

    UNC will not be disputing the facts of the case in court ... only the NCAA's interpretation of its rules.

    The courts will absolutely not re-try the case on the evidence ... but UNC might (in fact, already has) claim that the NCAA has violated its own rules in pursuing this case. That is the only thing that could be adjudicated ... and it won't involve discovery.
    I agree this would be the most likely suit. It would be akin to an administrative review -- based upon the record established below, (1) was the decision arbitrary and capricious (and therefore improper); or (2) was the issue or verdict beyond the jurisdiction of the NCAA bylaws in the first place?

    And why would the NCAA counter-sue? And for what? I cannot see that the NCAA would want to spend untold gobs of money to conduct discovery when it has the right and ability now to get the discovery it wants -- or else it can charge the opposing party with failure to cooperate. Discovery isn't going to get any better for the NCAA than it is now.

    But as stated above, we're way ahead of ourselves. Let's see if the COI drops the hammer like we all think they should. Then, we'll worry about defending the verdict.

  4. #364
    Quote Originally Posted by Olympic Fan View Post
    I don't see why people expect a UNC suit to result in discovery.

    UNC will not be disputing the facts of the case in court ... only the NCAA's interpretation of its rules.

    The courts will absolutely not re-try the case on the evidence ... but UNC might (in fact, already has) claim that the NCAA has violated its own rules in pursuing this case. That is the only thing that could be adjudicated ... and it won't involve discovery.
    I agree that a court won't want to retry the case. That's why I think the court is likely to dismiss the case. However, what UNC would be seeking would essentially be a retrial of the case. This is not a review of an administrative decision under a substantial evidence or abuse of discretion standard. The NCAA isn't a governmental agency. If the question is whether the NCAA properly punished UNC, there's the inevitable question of what UNC actually did and that would be an appropriate area for the NCAA to explore through discovery. I would expect discovery to go both ways with UNC trying to find something to embarrass the NCAA and the NCAA trying to find something to bolster its case. I think that's the way it worked with the Penn State case. Of course, it only goes to discovery if the court doesn't dismiss the case and if UNC decides to stick with the case after the court refuses to give UNC a preliminary injunction.

  5. #365
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    Just so we are clear... we should be hoping and praying that UNC appeals and files lawsuits and all sorts of stuff to drag this on and on and on.

    Right now, there is little question that Carolina's recruiting in both football and basketball has been affected by the specter of impending sanctions. Sure, they still get some top tier kids, but the overall talent in the recruiting classes (especially in basketball) has taken a notable downturn the past couple years. So, once the hammer comes down, that should lessen the pressure on the recruiting front because everyone will know exactly what the timeline is for sanctions against the Tar Heels...

    ...unless UNC drags the process through the courts. If they go that way, the sanctions cloud just continues to hover over their head for as long as the process takes. If it takes a year or two, a not unlikely results when the courts get involved, then it just continues to hammer Carolina's recruiting efforts. Trust me, Roy Williams is quite aware of this.

    I think a lot will depend upon what the NCAA sanctions entail. If it is scholarships losses, vacating games/championships, and coaches being forced off the sidelines then Carolina will fight tooth and nail... because those are not the kind of sanctions that would discourage a recruit from attending UNC. But, if it is post-season bans (the kind of thing that keeps your players from playing on the biggest stage and therefore scares off recruits) then I wonder if Carolina doesn't just take their medicine and try to get it all behind them.

    -Jason "then again, they seem to be so drunk on their own Kool-aid, they may fight anything just because they are convinced they are right" Evans
    Why are you wasting time here when you could be wasting it by listening to the latest episode of the DBR Podcast?

  6. #366
    The NCAA should have Pam Bowers chair the board on the UNC case...



    http://www.chron.com/neighborhood/ar...ty-9797159.php

  7. #367
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    Quote Originally Posted by Stray Gator View Post
    Just to clarify, I don't believe any decision of the NCAA would be subject to direct review by a federal or state appellate court. I understand that UNC could appeal the decision of the Committee on Infractions internally to an appellate tribunal constituted by the NCAA. But the ultimate ruling of the NCAA -- either by the COI or by the NCAA appellate panel if there is such an internal appeal -- is not then "appealable" to any court within the state or federal judicial system. Appellate courts review decisions of trial courts and governmental agencies, not autonomous private organizations like the NCAA. If UNC appeals the COI decision to a higher panel within the NCAA and is dissatisfied with the results of that internal appeal, then I believe UNC's only recourse would be to seek a judicial remedy by filing an action based on some theory of relief in a state or federal trial court.
    Normally, courts will not interfere in the internal affairs of private associations (such as the NCAA). In North Carolina the rule is that “[W]here the duly adopted laws of a voluntary association provide for the final settlement of disputes among its members, by a procedure not shown to be inconsistent with due process, its action thereunder is final and conclusive and will not be reviewed by the courts in the absence of arbitrariness, fraud, or collusion.” See the discussion in McAdoo v. UNC and NCAA. Extended discussion can be found here.
    Last edited by swood1000; 06-20-2017 at 03:33 PM.

  8. #368
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    Quote Originally Posted by Olympic Fan View Post
    I don't see why people expect a UNC suit to result in discovery.

    UNC will not be disputing the facts of the case in court ... only the NCAA's interpretation of its rules.

    The courts will absolutely not re-try the case on the evidence ... but UNC might (in fact, already has) claim that the NCAA has violated its own rules in pursuing this case. That is the only thing that could be adjudicated ... and it won't involve discovery.
    The NCAA would respond that it has not applied the rules in arbitrary fashion, and cite to the evidence. In that case, it would point to documents that undermine Crowder's interview. UNC has relied heavily on Crowder's testimony, citing it several times. If UNC cites Crowder in a complaint, the NCAA would almost certainly request a deposition of Crowder and put her under oath.

    But your point that additional discovery would not occur, in terms of more documents, etc., is probably accurate.

  9. #369
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    Quote Originally Posted by Duke95 View Post
    The NCAA would respond that it has not applied the rules in arbitrary fashion, and cite to the evidence. In that case, it would point to documents that undermine Crowder's interview. UNC has relied heavily on Crowder's testimony, citing it several times. If UNC cites Crowder in a complaint, the NCAA would almost certainly request a deposition of Crowder and put her under oath.

    But your point that additional discovery would not occur, in terms of more documents, etc., is probably accurate.
    or what folks want -- Roy under oath and being deposed. Just don't see that ever happening.

  10. #370
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    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

  11. #371
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    Quote Originally Posted by swood1000 View Post
    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”:
    Likely the "any evidence" standard, or something si I Larry-stated. Like trying to overturn an arbitration award.

    Been on both sides of that. They generally don't get overturned on findings of fact. The jurisdiction question, on the other hand, is what I would hang my hat on if I were representing Carolina.

    (Now I have to take a shower for that last clause)

  12. #372
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    Quote Originally Posted by OldPhiKap View Post
    Likely the "any evidence" standard, or something si I Larry-stated. Like trying to overturn an arbitration award.

    Been on both sides of that. They generally don't get overturned on findings of fact. The jurisdiction question, on the other hand, is what I would hang my hat on if I were representing Carolina.

    (Now I have to take a shower for that last clause)
    Which jurisdiction question? That the NCAA doesn't have jurisdiction over matters that involve any evaluation of academics?

  13. #373
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    Quote Originally Posted by swood1000 View Post
    Which jurisdiction question? That the NCAA doesn't have jurisdiction over matters that involve any evaluation of academics?
    Exactly. That doesn't even need the factual record at all really, just the bylaws and the COI determination.

    I think a determination of the factual argument UNC is trying to make to the COI -- that the classes were open to everyone, and that there was no improper benefit -- would be hard to overturn one way or the other.

  14. #374
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    Quote Originally Posted by OldPhiKap View Post
    Exactly. That doesn't even need the factual record at all really, just the bylaws and the COI determination.

    I think a determination of the factual argument UNC is trying to make to the COI -- that the classes were open to everyone, and that there was no improper benefit -- would be hard to overturn one way or the other.
    Do you think that a court would give less deference to the NCAA in interpreting its own rules than in finding facts? Wouldn't UNC still have to prove arbitrariness, fraud, or collusion? Do you think that proving arbitrariness is easier when the question is rule interpretation?

  15. #375
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    Quote Originally Posted by OldPhiKap View Post
    Exactly. That doesn't even need the factual record at all really, just the bylaws and the COI determination.

    I think a determination of the factual argument UNC is trying to make to the COI -- that the classes were open to everyone, and that there was no improper benefit -- would be hard to overturn one way or the other.
    If the COI finds that the paper classes were not “generally available” to all students under NCAA Bylaws, do you think that would be mostly a factual determination or mostly a rule interpretation?

  16. #376
    Quote Originally Posted by swood1000 View Post
    If the COI finds that the paper classes were not “generally available” to all students under NCAA Bylaws, do you think that would be mostly a factual determination or mostly a rule interpretation?
    Whether the classes were "available to the general student body" seems like a mixed question of fact and law, unless UNC does not dispute the factual basis for the COI's finding -- i.e., if the COI determines that the classes were not "generally available" based on a factual finding that the classes were not listed in the course catalog or otherwise published in a manner that an ordinary UNC student would become aware of it, and UNC concedes the correctness of that factual finding, then the litigation might be confined to the legal issue of whether such facts are sufficient under NCAA rules to fall within the definition of "courses that are not generally available to non-athletes" -- which of course could turn on whether the COI's interpretation of the pertinent NCAA rules as applied in this case is arbitrary or capricious.

    I still maintain, however, that "availability of the classes to the general student body" should not be the sole focus of the inquiry, because my understanding is that there are alleged to have been other "special benefits" provided to the athletes in those courses that might not have been available to other students, including late enrollments and changes of grades at the request of athletic/academic advisers or even coaches. If so, then UNC could not avoid the presentation of evidence, including witness testimony from Crowder and members of the coaching staffs, without admitting that such benefits were provided only to athletes, leaving UNC's lawyers to make the tenuous contention that, as a matter of law, such benefits were not "special" within the meaning of NCAA regulations.

  17. #377
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    Quote Originally Posted by swood1000 View Post
    Do you think that a court would give less deference to the NCAA in interpreting its own rules than in finding facts? Wouldn't UNC still have to prove arbitrariness, fraud, or collusion? Do you think that proving arbitrariness is easier when the question is rule interpretation?
    My experience is that courts lean on the principle that "a governing body's interpretation of its own rules is owed deference" when they are inclined to affirm the governing body anyway, and they ignore that principle when they are not so inclined. It's never the deciding factor. "Arbitrariness" is often used as a stand in for "the governing body made the wrong decision."

  18. #378
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    If UNC appeals to the courts it will also no doubt try the route that worked against the NCAA in McNair v NCAA. See Court slams NCAA in Reggie Bush USC violations case. There, the California Ct. of Appeals found that the COI reached a predetermined conclusion.

    This evidence clearly indicates that the ensuing COI report was worded in disregard of the truth to enable the COI to arrive at a predetermined conclusion that USC employee McNair was aware of the NCAA violations.
    In part this was because:

    Likewise, the e-mails suggest that the drafting of the COI report commenced before the COI had reached a consensus.
    Also because they allowed a person to participate in the deliberations who should not have been. Presumably the COI has learned its lesson.

  19. #379
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    Quote Originally Posted by Stray Gator View Post
    I still maintain, however, that "availability of the classes to the general student body" should not be the sole focus of the inquiry, because my understanding is that there are alleged to have been other "special benefits" provided to the athletes in those courses that might not have been available to other students, including late enrollments and changes of grades at the request of athletic/academic advisers or even coaches.
    All the Enforcement Staff needs is one or two violations occurring at just the right times in order to cause the vacating of a great number of MBB victories because of the ineligibility of central MBB players.

  20. #380
    Here's a question... Does it matter that classes are "open to general population" when only athletes were aware they were sham classes? Could that awareness and knowledge be considered a benefit?
       

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