Aaron Swerdlow quoted in Law360

By Aaron Swerdlow Firm News October 24, 2017

Attorney Aaron Swerdlow was recently quoted in Law360's article entitled, "NCAA's Struggle to Police Academics on Display with UNC". The full article can be accessed here


The University of North Carolina at Chapel Hill escaped serious punishment when an NCAA infractions body found it could not punish the school for allegedly funneling basketball and football players into “sham” classes, a ruling that may set a difficult precedent for monitoring schools' academic standards.

The NCAA enforcement staff had tried to drop the hammer on the Tar Heels over a scandal in which the African and Afro-American Studies Department offered courses between 2002 and 2011 that required little work or faculty oversight and caused the school to have to defend its academic accreditation.

The enforcement staff had alleged that while these courses were available to the overall student body, the school’s basketball and football players were disproportionately represented. Indeed, staff said, academic advisers had specifically directed the athletes into these allegedly easier courses to maintain their academic eligibility.

In the end, the NCAA Division I Committee on Infractions said it could not find a sufficient connection between the deficient courses and the NCAA’s rules on college athletes. Only two failure-to-cooperate charges against the former chair of the department in which the classes were offered, and a former curriculum secretary, Deborah Crowder, who eventually aided the NCAA in the investigation, resulted in discipline.

It was a slap on the wrist for the university, as the school avoided serious, potentially program-ruining penalties for the most serious allegations, such as having to vacate wins that include a men's basketball national championship, recruiting restrictions, athletic scholarship reductions, post-season bans or worse.

But it came at a high cost. The university paid millions of dollars in legal fees and took perhaps an even greater reputational hit.

“You could make the argument that the university sort of fell on its sword and sacrificed a bit of its academic reputation to help the basketball and football program avoid serious punishments,” said sports attorney Aaron B. Swerdlow of Gerard Fox Law PC, who worked for a collegiate athletic department prior to practicing law.

UNC had argued that the courses, while later found to be lacking sufficient academic rigor, were still offered to all students, and that any issue with the classes is an academic, not athletic, matter outside the jurisdiction of the NCAA. The university pointed out that its regional accrediting agency, the Southern Association of Colleges and Schools Commission on Colleges, had placed the university on probation for a year before determining it would keep its accreditation.

The NCAA infraction panel said it could not conclude the classes were fraudulently created for athletes nor could it conclude that they constituted an extra benefit for them. The panel said that “given UNC's position that its courses were legitimate and not systemically created or abused to serve solely athletics interests and the information presented did not squarely refute that point, the panel cannot conclude that UNC lacked control of its athletics programs."

“It was a way to skirt NCAA violations but calls into the question the quality of education that undergraduates receive,” Swerdlow said. “For [UNC] to admit that they were cutting corners for everyone is a bit shocking.”

However, the NCAA has traditionally left the issue of academic rigor up to the discretion of each member school. Typically, NCAA violations are only found where it is shown that an academic adviser or someone else actually performed coursework for an athlete or where a grade is fraudulently changed or altered to keep the athlete eligible to play.

At the same time, the NCAA says one of its primary missions is to ensure that student-athletes receive an education. It frequently cites this as a defense to those who say college athletes should be paid, and even as part of its legal defense to antitrust litigation over the issue.

The decision sets a high bar for NCAA enforcement and the ability to protect the education of athletes, coming on the heels of a federal corruption investigation into college basketball.

“I think that decision was a valid decision, a good-faith decision, an evidence-based decision. But I think it is not necessarily the only conclusion they could have come to,” said attorney Stuart Brown, who handles NCAA compliance cases. “I think there is room to rule otherwise when you look at the percentage of those who took the courses and the degree to which the athletes were advised to take them and the benefit to the athletes” in helping them maintain eligibility.

If it could be established that there were at least some other regular students or others who receive an alleged benefit in addition to athletes, then, under this precedent, a course might not violate the NCAA’s rules, he said.

“A less extreme test would also have been valid,” Brown said. “I don’t fault the committee, but they used a high bar to what constitutes extra benefits.”

But given the length of the two-year investigation and the resources expended by NCAA enforcement staff, the decision likely will push other schools to take a closer look at the courses being taken by their student-athletes, experts said.

There could be legitimate reasons that athletes cluster into certain classes, particularly because they are offered at times that best fit a team’s practice and travel schedules. But schools would be advised to make sure those courses do live up to applicable standards.

“As a best practice, the schools, at least those with the resources to do so, are tracking it — not necessarily for NCAA but to make sure the academic component is being managed appropriately,” Brown said.

Still, given the time commitments of college athletes, schools and academic advisers are incentivized to steer athletes into less-demanding, though not necessarily sham, courses and majors.

If the UNC case serves as precedent, experts say, it may be tough for the NCAA to take action if it thinks a school is crossing the line.

“I think the NCAA kind of shied away from coming down hard on that aspect of the investigation because it would have sort of meant that a lot programs across the country, including many who do it the right way, would have been swept up in a higher standard,” Swerdlow said.

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