The current NCAA major infractions case against the University of North Carolina at Chapel Hill can be confusing to decipher. For clarity, I thought I'd try, without editorial, to recount the key events that have transpired since NCAA Enforcement opened up the case in the Summer of 2014.
But I also felt it was important, contextually, to include one important bit of NCAA/UNC dialogue that transpired nine months prior to the start of the NCAA investigation since it has become a principle element of UNC's response to the allegations. So, I'll start there.
In September 2013, University of North Carolina at Chapel Hill (UNC) Senior Associate Director for Athletics (NCAA Compliance) Vince Ille contacts Associate Director for NCAA Enforcement Mike Zonder, who had also been a lead NCAA investigator in the previous major infractions case at UNC. Ille asked Zonder:
Zonder quickly responds, "You are correct in your assessment regarding the situation involving the AFAM department."
Five months later, UNC President and UNC-Chapel Hill Chancellor Carol Folt have hired Kenneth Wainstein and the firm of Cadwalader, Wickersham & Taft LLP to conduct an independent inquiry into the academic misconduct that had previously been uncovered within the African and African-American (AFAM) studies department.
Wainstein was chartered by UNC:
"… to ask the tough questions, follow the facts wherever they lead, and get the job done. I have quickly grown to admire the extent to which the Carolina community has encouraged me to look within the University, to identify challenges, and to take strong actions to address them. I believe these efforts will accelerate the University’s capacity to achieve the meaningful academic and athletic reform that our entire community expects." [link]February 2014, UNC's Associate AD for Compliance, Vince Ille, notifies the NCAA of the independent investigation.
Ille has follow-up communications with NCAA's Mike Zonder in March and April.
At some point in late April, it is rumored that Wainstein investigation team and NCAA Enforcement (Kathy Sulentic?) have been in contact without UNC's knowledge. UNC objects to NCAA conducting any interviews without UNC representatives in attendance, but Wainstein's charter prevents UNC's attendance. The apparent result is an interview protocol statement issued in May 2014 from Wainstein to UNC setting the guidelines for NCAA involvement in the independent investigation.
In June 2014, with the Wainstein protocol agreement set, NCAA Enforcement notifies UNC of its intention to revisit the issue, based on the possibility of "new information" available.
Between July 2014 and January 2015, NCAA investigators conduct additional interviews, but neither they nor UNC's representatives are granted access to interviews with Dr. Julius Nyang'oro or Deborah Crowder. In October 2014, both UNC and NCAA investigators receive the results of Wainstein's investigation, along with the accompanying Exhibits and Supplemental documents.
In May 2015, VP of NCAA Enforcement, Jon Duncan, issues a Notice of Allegations (NOA) that keys not on academic misconduct but Article 16 "extra benefits" provided by academic counselors/advisors to athletes related to academic misconduct by university faculty and staff.
During the Summer 2015, as UNC is preparing its response to the NOA, its legal team visits NCAA Headquarters in Indianapolis to review records, including those from the previous Infractions Case M357. During this visit, they discover internal email correspondence from March 2013 between the NCAA Enforcement staff and the staff of the NCAA's Academic and Membership Affairs (AMA) about the determination of whether or not NCAA bylaws had been violated according to then-known information about UNC's academic issues. UNC believes this to be representative of NCAA's rationale for the September 2013 communication between Zonder and Ille, referenced above.
(Note: between the AMA input of March 2013 and Zonder's affirmation in September 2013, UNC's accrediting body, SACSCOC, concluded a special review of UNC's academic issues: May/June 2013. No information is available to ascertain if this event factored into the position conveyed by Zonder in September.)
Back in the 2015 time frame: On August 10th, 2015, UNC and NCAA Enforcement inform the Committee on Infractions chair, Greg Sankey, that the investigation needed to be reopened to review additional information that could impact the NOA. On August 14th 2015, on the eve UNC's response to the NOA is due, UNC reports new information it had discovered in its own records. These issues were unrelated to the internal NCAA (AMA) 2013 email document discovery UNC had made over the summer, but it halts the existing infractions process in order to determine if a revised NOA was necessary.
A "procedural status call" is convened by the COI Chair on August 26th, 2015 to ensure the parties are continuing to move the case toward resolution.
On October 1st, 2015, during this interim period, UNC contacts NCAA Enforcement's VP Jon Duncan, requesting that UNC be allowed to interview 8 individuals from the AMA and Enforcement staffs who had been involved in that 2013 NCAA internal dialogue it had discovered over the prior Summer while in Indianapolis. UNC also asks for any and all documentation from the NCAA involving the 2013 determination. The individuals of interest to UNC are:
- Mike Zonder: lead Enforcement investigator on the earlier UNC case
- Stephanie Hannah: Director of NCAA Enforcement during earlier UNC case
- Kevin Lennon: VP AMA staff supervisor (now VP Division I Governance)
- Kris Richardson: Director, AMA
- Dave Schnase: Managing Director of the AMA (now VP AMA)
- Steve Mallonee: AMA staff (now Managing Director of AMA)
- Jon Duncan: VP of NCAA Enforcement
- Kathy Sulentic: lead Enforcement investigator on current UNC case, since April 2014
In a series of emails and phone conversations between October to December 2015, UNC and NCAA officials debate the relevance of the prior determination made during and after the previous NCAA case, but prior to the Wainstein investigation. NCAA General Counsel Naima Stevenson and Enforcement staff Director Tom Hosty separately deny or ignore UNC's requests for information or interviews related to that 2013 determination.
In the midst of this ongoing interchange between UNC, NCAA General Counsel and NCAA Enforcement, the Enforcement staff, in accordance with Bylaw 19.7.4, notifies the COI chair of the possible need to amend the NOA. The COI Chair conducts a conference call with the parties October 26th, 2015 at which the Chair must rule on whether or not the reasons for changes are material.
Controversy:
What was presented to the COI for consideration? The August "additional information" or the contention between UNC and Enforcement staff over procedural issues relating to the prior 2013 determination? If the former, that would be "material" requiring an amendment. If the latter, then that would be "immaterial" and the Staff would be directed to "the amended pages of the notice of allegations, without change to the case processing timelines."
Since the COI Chair agreed to the amendment, the ruling must have been changes were "material" and based on the "new information" that was the basis for the August halt in the case track.
In the midst of this ongoing interchange between UNC, NCAA General Counsel and NCAA Enforcement, the Enforcement staff, in accordance with Bylaw 19.7.4, notifies the COI chair of the possible need to amend the NOA. The COI Chair conducts a conference call with the parties October 26th, 2015 at which the Chair must rule on whether or not the reasons for changes are material.
Controversy:
What was presented to the COI for consideration? The August "additional information" or the contention between UNC and Enforcement staff over procedural issues relating to the prior 2013 determination? If the former, that would be "material" requiring an amendment. If the latter, then that would be "immaterial" and the Staff would be directed to "the amended pages of the notice of allegations, without change to the case processing timelines."
Since the COI Chair agreed to the amendment, the ruling must have been changes were "material" and based on the "new information" that was the basis for the August halt in the case track.
The next 5 months after the October 26th, 2015 conference call with the determination to Amended the original NOA, UNC and NCAA Enforcement negotiate the changes.
On January 7th, 2016, UNC's lead attorney in the NCAA case sends a letter to NCAA Director of Enforcement Tom Hosty detailing UNC's objections to the "extra benefits" allegations (Allegation 1(a) in the May 2015 NOA) and again presses for access to information or individuals having knowledge of the previous case and the pre-Wainstein determination that no allegations were forthcoming.
Nothing else about these negotiations are known to the public. We do know that on January 8th, 2016, and again on March 9th, 2016, UNC and Enforcement updated the COI on status updates on the Amended NOA's progress.
Controversy: the nature of these status updates is questioned. Was the COI chair simply given progress reports or was he briefed on the nature and rationale for the changes that would eventually be issued as an Amended? Did the Chair approve or "sign off" on the Amendement before it was issued?
On January 7th, 2016, UNC's lead attorney in the NCAA case sends a letter to NCAA Director of Enforcement Tom Hosty detailing UNC's objections to the "extra benefits" allegations (Allegation 1(a) in the May 2015 NOA) and again presses for access to information or individuals having knowledge of the previous case and the pre-Wainstein determination that no allegations were forthcoming.
Nothing else about these negotiations are known to the public. We do know that on January 8th, 2016, and again on March 9th, 2016, UNC and Enforcement updated the COI on status updates on the Amended NOA's progress.
Controversy: the nature of these status updates is questioned. Was the COI chair simply given progress reports or was he briefed on the nature and rationale for the changes that would eventually be issued as an Amended? Did the Chair approve or "sign off" on the Amendement before it was issued?
On April 25th, 2016, NCAA Enforcement issues an Amended Notice of Allegations (ANOA) with the "Extra Benefits" allegation against academic counselors removed. In replacement is a Failure to Monitor allegation with much of the same language as previously found in the deleted allegation.
The allegation against former faculty and senior counselor Jan Boxill remains, but only cites improper assistance on student work and not any services related to the AFAM academic scandal. The "new information" provided the previous August and October as the reason for the need to amend the allegations is found in the Boxill impermissible academic assistance allegation.
Lack of Institutional Control allegation remains with alteration of language.
Time period for the allegations is changed and reference to athletics programs and ASPSA are deleted.
The allegation against former faculty and senior counselor Jan Boxill remains, but only cites improper assistance on student work and not any services related to the AFAM academic scandal. The "new information" provided the previous August and October as the reason for the need to amend the allegations is found in the Boxill impermissible academic assistance allegation.
Lack of Institutional Control allegation remains with alteration of language.
Time period for the allegations is changed and reference to athletics programs and ASPSA are deleted.
In August 2016, UNC submits its response to the ANOA, which includes objections to the remaining allegations, mainly on threshold issues of jurisdiction and NCAA procedural grounds.
On September 19th, 2016, per NCAA infractions process, NCAA Enforcement submits its response to UNC's response, contesting UNC's jurisdictional and procedural objections; and also submits the Statement of the Case as prescribed by the infractions process.
During the week between September 19th and September 26th, the Enforcement staff and UNC hold an Article 19.7.4 pre-hearing conference to clarify the issues that will be discussed and materials to be presented at the COI hearing, still to be scheduled.
September 26th, 2016, Managing Director of the Office of Committee on Infractions (OCOI), Joel McGormley, informs all parties (UNC, Boxill, Nyang'oro, Crowder and Enforcement staff) of the scheduling of a Committee on Infractions (COI) hearing for October 28th, 2016.
Controversy:
The OCOI gave all parties 32-days advance notice of the hearing. NCAA bylaws require all pre-hearing materials for the record to be submitted 30-days prior. Exceptions may be granted by the chief hearing officer based on a "good cause" judgment. UNC will later argue that the 2 days given from notice to 30-day window closure should be considered "good cause" for waiving the rule.
Normally, all issues -- threshold and substance -- are heard at the infractions hearing; but OCOI explains that due to the complexities of the case, the COI deems the October hearing agenda will only cover the jurisdiction/procedural issues, reserving arguments on the merits for a later hearing.
Controversy:
The OCOI gave all parties 32-days advance notice of the hearing. NCAA bylaws require all pre-hearing materials for the record to be submitted 30-days prior. Exceptions may be granted by the chief hearing officer based on a "good cause" judgment. UNC will later argue that the 2 days given from notice to 30-day window closure should be considered "good cause" for waiving the rule.
Normally, all issues -- threshold and substance -- are heard at the infractions hearing; but OCOI explains that due to the complexities of the case, the COI deems the October hearing agenda will only cover the jurisdiction/procedural issues, reserving arguments on the merits for a later hearing.
October 14th, 2016: deadline to object to the composition of the COI hearing panel.
On October 14th, 2016, two weeks before the panel hearing, UNC requests relief from the 30-day rule based on "good cause," requesting the chief hearing officer, Greg Sankey (who is also Chairman of the COI) allow introduction of six email articles for the hearing panel to consider. UNC wishes to demonstrate what UNC/Enforcement dialogue that provided rationale for the changes made from the original NOA to the ANOA.
On October 17th, 2016, UNC informs NCAA Enforcement (Tom Hosty) of its objections to statements made in the Enforcement staff's September reply and also the Statement of the Case (both referenced above), in order to give Enforcement the opportunity to correct them before the October 28th hearing.
On the same day, OCOI Managing Director Joel McGormley informs UNC of the Chief Hearing Officer (Greg Sankey) decision to reject the "good cause" argument and deny UNC's request to waive the 30-day rule and allow introduction of the email correspondence in the pre-hearing record. Instead, UNC is granted the opportunity to present the information prior to the hearing in a 10-page summary, due by October 19th.
On October 19th, 2016 UNC submits its "targeted and synthesized submission"as requested by chief hearing officer Greg Sankey for the October 28th hearing, in lieu of the 6 email documents it had previously sought to be entered into the hearing record. Sent to OCIO Managing Director Joel McGormley, it summarized UNC's six issues on the matter of "Finality of Decisions" that UNC claims should prevent NCAA from reopening issues previously decided:
- That the enforcement staff had sufficient relevant and material information in 2011 to determine that there were no NCAA jurisdictional issues.
- The AMA had all relevant facts in 2013 when it rendered a decision, and the Wainstein report (Cadwalader) didn't introduce anything new relevant to that decision.
- That though many documents were produced for Wainstein, nothing had prevented NCAA investigators from accessing those documents during the prior case, thus the information wasn't "new."
- A specific callout to an email chain referenced in figure 1 below on which Enforcement's case relies, but that was available to investigators in 2011.
- That Enforcement had consistently characterized the case as "reopening" and only belatedly began asserting that the present case as new, different or a separate matter.
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| Figure 1 |
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| COI Panel, Case No. 00231 |
On November 28th, 2016, The OCOI informs all parties of its ruling that the NCAA does have jurisdiction in the matters alleged and that UNC's arguments of "finality" do not apply. The COI also asserts that contrary to the Enforcement staff's presumption, the panel can consider allegations of violations involving impermissible academic assistance and academic misconduct if the facts support them. In so clarifying, the panel offers the Enforcement staff the opportunity to re-draft the Allegations. Key passages from the hearing panel's notice:
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| COI on Jurisdiction |
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| COI on Impermissible Academic Assistance |
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| COI Requests Enforcement Review NOA |
On December 13, 2016, Having accepted the COI hearing panel's request to review the Allegations, NCAA Enforcement issues a third version of the Notice of Allegation; or, officially, a 2nd Amendment to the Notice of Allegations. It restores the original Extra Benefits allegation that had previously been removed, and the Failure to Monitor allegation is deleted. Article 10 Misconduct is added to the Extra Benefits allegation.
And on December 22nd, 2016, UNC responds.
Update: the above was last updated in February 2017. Since then, the case has progressed and much has transpired, including a late-entry interview of key party Deborah Crowder by the NCAA, a challenge to Greg Sankey as chief hearing officer by Crowder, UNC's response to the 2nd Amended NOA, NCAA Enforcement's response to UNC, and the setting of the hearing for August 16/17, 2017.
As time permits, the details of the 2017 case track will be added.
