NC State’s strong reaction to NCAA allegations may be a referendum on enforcement process

NC State is upset and doesn’t care who knows it, especially the NCAA. That disgust has become a referendum on — and perhaps another reckoning of — the NCAA enforcement process.

The school did little to hide its disdain last week in an NCAA response to what seems to be a fairly clear-cut case of wrongdoing. That would be former star guard Dennis Smith Jr. allegedly taking $40,000 to play at the school.

But the fact NC State disputes the allegation has become less important than its reaction to those accusations. In that response to the NCAA, which was made public last week, NC State argued it could not receive “an objective or fair hearing” on the charges.

At the end of that response, the school made a not-so-vague threat to sue the governing organization if it was not allowed to appeal.

In summing up the response, NC State athletic director Boo Corrigan told CBS Sports: “We’re going to fight where we’re going to fight. We’re going to admit what we admit.”

The case has been deemed so serious that it has been referred to the new Independent Resolution Panel.

The group was formed in August 2019 out of the cesspool that was the FBI investigation exposing widespread wrongdoing in college basketball. It was established after a recommendation by the Condoleezza Rice-led Commission on College Basketball. The commission’s recommendations sprang out of the FBI investigation.

NCAA president Mark Emmert said judgement by the panel would be reserved for “complex” cases dealing with major policy issues. It was seen as a clear-minded, objective option for an enforcement process that for many had lost credibility.

That lack of trust for the traditional NCAA Committee on Infractions has morphed into a fear of the unknown — whether that 15-person panel knows what it is doing. It has never heard an NCAA case.

“I thought, and still think, there will be issues of consistencies of decisions,” said Nebraska constitutional law professor Jo Potuto.

Whether actual laws were broken in the FBI cases continues to be up for debate. There’s no question those cases that included NC State drew back a curtain on how business is done at the highest level of the sport. However, NC State is focusing on a referral letter to that panel that it says prejudges the school’s case.

The confidential 11-page letter from NCAA Committee on Infractions chair Carol Cartwright in February questions the school’s “lack of acceptance of core principles of self-governance” and admonishes it for taking “adversarial positions” against the NCAA.

“That’s [getting] personal,” one NC State source said.

The school shot back last week in its 194-page response to the NCAA. NC State strongly disagreed that representatives of apparel sponsor Adidas were labeled as boosters. That essentially is the same argument made by Kansas in its ongoing case.

NC State argued in its response that, by such logic, “virtually all men’s Division I student-athletes would be ineligible because they received benefits, shoes, apparel … when they participating in [grassroots youth] basketball from a ‘booster’ — Adidas, Nike and Under Armour.”

School sources were upset that they were not given proper credit — the NCAA calls them “mitigating factors” — for adhering to NCAA rules. The school proactively disassociating agent Andy Miller in 2012. Also, former coach Mark Gottfried and assistant Orlando Early had no previous NCAA major violations on their record.

Neither was mentioned in Cartwright’s letter.

Central to the NC State concerns is the tone of the referral letter itself. NC State believes it is being used to make the case against the school in what amounts to a new investigation by the Independent Resolution Panel’s Complex Case Unit.

NC State’s basic take: The infractions committee that would have handled the case is essentially detailing wrongdoing to the panel that is objectively supposed to decide on its own. Cartwright’s letter from letter was obtained by media outlets, including CBS Sports.

The school has said its only “remaining option,” in light of Cartwright’s letter, is to accept an investigation by the Independent Resolution Panel.

“We do not think NC State can receive an objective or fair hearing before the Committee on Infractions in this matter,” NC State president Randy Woodson said in a statement. 

Should NC State be upset it is being prejudged?

“Yeah, and they’re right,” Potuto said.

Potuto spent nine years on that infractions committee sitting in judgement of some of the highest-profile cases in NCAA history. She is considered one of the leading authorities on the enforcement process.

“If you’ve got an independent panel and they’re being referred a case by the entity that normally would decide [the case] … I assume the panel will be able to put that aside and handle the case fairly,” Potuto said. “But at least the appearance of unfairness is monumental.”

Potuto read both Cartwright’s letter and NC State’s response. If the school feels it is being unfairly dinged for being uncooperative, the NCAA should be used to it.

In responding to its notice of allegations in 2019, Kansas had one of the more pointed rebukes of the NCAA in recent years. Notre Dame reacted strongly to the NCAA in appealing academic fraud penalties in February 2018.

Confounding several administrators — since the independent panel was announced last summer — is the lack of an appeals process.

Thirty years ago, a blue-ribbon panel chaired by former Solicitor General Rex Lee established the foundation of today’s modern enforcement process. Included in his recommendations was a notice of allegations to all those accused. Enforcement officials had to tape record interviews, a conflict of interest policy was established, and the first Infractions Appeals Committee was assembled. It was chaired by future SEC commissioner Mike Slive.

There seems to have been some backsliding.

In its response, NC State called an appeals process a “necessary check” in implementing new rules, policies or procedures. Remember, there isn’t an appeals process. The panel’s ruling is final.

That led NC State to make this considerable assertion. The school “does not concede its substantive right to appeal. … NC State also reserves all rights and remedies, both within and outside of the NCAA structure.”

Hello, lawsuit?

The NCAA said in a statement: “The Commission on College Basketball recommendations included the creation of a process to resolve select complex infractions cases. The commission’s recommendations specified that the process created should result in final decisions with no appeal. The Independent Accountability Resolution Process was adopted and implemented by the Division I governance structure based on those recommendations.”

Potuto said there is no legal right to an appeal, but the NCAA process isn’t a court of law. At least, it’s not supposed to be.

For years, critics of the NCAA enforcement process cried foul. Punishment was uneven. There was a lack of transparency. Brother judging brother was simply not the way to go.

The tipping point for change may have come in a two-month span. In September 2017, the Southern District of New York announced its investigation of college basketball. That cracked open a view to a world that largely couldn’t be accessed by NCAA enforcement. The next month, North Carolina got off scot-free in a landmark academic fraud case that eventually wasn’t one. 

For years, enforcement critics called for a third-party process made up of qualified outsiders to judge cases.

On its face, the establishment of the Independent Resolution Panel was an improvement. But in terms of conflict of interest, consider the composition of that Complex Case Unit.

Five of the 16 members of that unit come from one company: Freeh Group International Solutions. It is run by former FBI director Louis Freeh. The infamous Freeh Report following the Jerry Sandusky scandal was criticized by some Penn State loyalists. CBS Sports reported possible conflict of interest issues with having so many Freeh Group employees on the Complex Case Unit.

Responding to a request for comment, the NCAA said it held a “competitive request-for-proposal process” to populate the Complex Case Unit.

There is also the presence of retired North Carolina Supreme Court justice Patricia Timmons-Goodson on the Independent Resolution Panel. She got her undergraduate degree at North Carolina. UNC just happens to be NC State’s fiercest rival.

In its appeal last year, Missouri cited Cartwright for what it thought was conflicts of interest. Missouri was involved in an academic fraud case that eventually led to postseason bans for its softball, baseball and football teams.

The alleged conflict: Cartwright is co-chair of the reform-minded Knight Commission. The group advocates for academic integrity. She also was part of an NCAA academic misconduct working group seeking a clear definition of academic fraud.

The possible negative implications of the new panel should at least be a concern to the membership. NC State would be only the second case heard by the panel. Memphis basketball became the first last month in the James Wiseman case.

In her referral letter, Cartwright seems to suggest that all of the NCAA cases that stem from the FBI investigation should be judged by the panel: ” … the circumstances giving rise to the [college basketball] trials … are the very events that led to the creation of the independent process.”

Still on the NCAA docket stemming from the FBI investigation are Kansas, Oklahoma State, South Carolina, TCU and USC. All five have received notices of allegations from the NCAA. Louisville, Arizona, Creighton, Auburn and LSU are all reportedly being investigated by the NCAA stemming from the FBI investigation.

Potuto has always envisioned the NCAA as club.

“You join the club and you’re a member and the club votes on rules,” she said. “The majority controls.”

But, she wondered, in this NC State case can citing a bylaw voted on by membership be fairly used to prejudge such a case?

“If the majority has voted on rules that are perceived as not procedurally fair, would this be a special case where an institution could go to court? I’m not sure,” Potuto said.

She added there is not necessarily a right to appeal.

Any concerns about the panel’s lack of knowledge of NCAA rules, is addressed here:

(e) On request by the Independent Resolution Panel, appoint a member of the general public (with formal legal training who is not associated with a collegiate institution, conference, or professional or similar sports organization and who does not represent coaches or athletes in any capacity) knowledgeable in the infractions process and with the NCAA constitution and bylaws to confer with the panel during its review of a particular case. 

Does such a person even exist? In general, those with best knowledge of the NCAA Manual all have some sort of connection to the NCAA, schools, coaches or administrators. If they’re retired, there’s a reason. They don’t want to deal with the mind-numbing haze of rules of regulations anymore.

“If you exclude all those people, who are you going to find that’s knowledgeable in the infractions process and NCAA Manual?,” Potuto said. 

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