A little over a week ago, there was a bit of a frenzy when an anonymous source claimed he was "breaking" news of the NCAA Enforcement staff's investigative team having colluded with UNC's independent investigator Kenneth Wainstein. The charge made through the Twitter-sphere was that in order to gain access to interviews with Dr. Julius Nyang'orom, NCAA investigators, without first informing UNC officials, sought to coattail onto the Wainstein investigation. Supposedly, so the anti-NCAA rhetoric goes, such alleged actions are "unethical" and an example of "collusion."
The alleged revelations played into public cynicism of NCAA infractions enforcement conduct and investigation practices, and they leveraged unofficial complaints from some pro-UNC athletics advocates about the reliability and true agenda of Kenneth Wainstein. But the progenitor of these allegations offered no substantiating evidence, choosing instead to surround the claims with bits of information that were already known in order to make it appear he had access to new, "breaking" information. UNC defender gobbled it up with a spoon.
In the two years since the Wainstein Report was released, the University has never officially questioned or rejected any of its findings. There have been no complaints raised by university officials at any time about the integrity or reliability of the Wainstein investigation. UNC, in fact, took harsh personnel actions against a few based on the Wainstein Report conclusions.
Similarly, UNC's defense against NCAA allegations have not once (yet) raised complaints about Wainstein's findings. The only objections have been procedural; "technicalities" that Wainstein's methods were not in accordance with NCAA rules regarding interviews. But UNC has stopped short of refuting the material aspects of its own report.
On the other hand, notable voices have unofficially lodged complaints about Wainstein's findings. After resigning his position as a learning specialist for athletes at UNC to pursue the documentary project "Unverified," Bradley Bethel has regularly criticized Wainstein as well as UNC for having bowed to media pressure and for having relied on Wainstein's findings as basis for firing his former colleagues on the academic support staff. Bethel and his film gave voice to others who had been interviewed by Wainstein and who have maintained that his representation of the unrecorded interviews were distorted, presumably to reach a predetermined conclusion.
There's also been a theme echoed by Tar Heel fans and fostered by insiders with connections to athletics that the Wainstein investigation was foisted on UNC-Chapel Hill by the North Carolina Board of Governors and then-UNC system president Tom Ross. Chapel Hill Chancellor Carol Folt has never suggested any such thing, and no official statement has ever alluded to the fact that Chapel Hill leadership wasn't fully on board with the decision to hire Wainstein and the Cadwalader firm. You only see the concern about the hiring of Wainstein expressed in some emails found in the mounds of publicly released document from notable alumni to the athletics director Bubba Cunningham.
It's unclear whose or what agenda Wainstein may have been predisposed to, but presumably it would be anti-Chapel Hill sentiment among the North Carolina Board of Governors or among others in the 17-school UNC system. Some have felt low-level employees supporting the athletics department were scapegoats to allow UNC to shield higher-level academic leadership (deans), hoping to satisfy the media wolves at the door and finally "move forward."
But until this one anonymous individual began claiming it on social media, there'd been no hint or suggestion that the NCAA, at some point early into the UNC-chartered independent investigation, had attempted to unethically leverage the Wainstein proceedings. Did the enforcement staff contact Wainstein prior to letting UNC know, and did UNC "catch" the attempted collusion and force the NCAA and Wainstein go through UNC for any information exchange? All we have to date is one person saying so and a lot of people willing to believe him.
While we wait for something of substance to back up this "breaking news," all we can do is speculate. My theory is that this anonymous source is a UNC partisan and that he (or she) has gotten a hold of a tidbit of information, but upon which he has heaped a hyperbolic allegation of unethical actions by both NCAA and Wainstein.
What Prompted Hiring of Wainstein?
To frame my theory, I need to recap what led up to the Wainstein investigation. I'm not "breaking" any news here. All of this information is already in the public domain and doesn't rely on any secret, insider knowledge. But it warrants review because the scandal has been so enduring and winding, even those of us immersed in the details can forget the sequence of events.
The origins of the decision to hire an independent investigator go back to December 2013 when Dr. Julius Nyang'oro was indicted on fraud charges after an 18-month investigation by the North Carolina Special Bureau of Investigations (SBI).
The charges stemmed from discovery that Nyang'oro had accepted two payments for having taught a summer session AFAM class at UNC-CH in 2011 that he hadn't really taught. That AFAM class was the last of the notorious "paper classes" at the heart of the academic scandal at UNC. It was a class enrolled entirely of football players, listed as a lecture class but Nyang'oro operated it in an independent study format: though there was no mid-term meeting with faculty and no rigor required for the single, end of term paper.
Around the time the Hartlyn-Andrews report was released in May 2012, Orange County District Attorney Jim Woodall became involved and the North Carolina Special Bureau of Investigations (SBI) began its investigation into Dr. Nyang'oro and possible fraud. During the next 18 months, Nyang'oro retired and refused to cooperate with any further inquiries. This stonewalling included requests for interviews during the 2012 review by former NC governor James Martin. (Nyang'oro's former assistant who'd retired in 2009 also refused to cooperate with either review.)
By the end of 2013, only the SBI investigation was still ongoing. The Martin Report has verified the findings of Hartlyn-Andrews, and was viewed by the University to be as definitive as it could be without the cooperation of Nyang'oro. The accreditation agency SACS had concluded it's review. The NCAA considered the matter closed as far as its bylaws were concerned.
The academic quality of the class had no bearing on the SBI's investigation. Likewise, the SBI was unconcerned with the "scheme's" origins and motives. The only thing concerning District Attorney Jim Woodall was criminal fraud: acceptance of public payment for services not rendered.
In December 2013, Dr. Nyang'oro was indicted by a grand jury on fraud charges. Facing criminal trial, it was supposedly Nyang'oro's legal team that raised the idea and proffered a deal, saying that Nyang'oro would cooperate with UNC to explain how and why the academic malfeasance happened in return for dismissal of criminal charges. Whether or not Woodall, seeking a way to resolve the matter out of court, was the actual author of the idea, who knows? But whether it was Nyang'oro's lawyers' idea or Woodall, it was Woodall who brokered the idea with UNC-Chapel Hill through the UNC system leadershp.
It was UNC system president Tom Ross who, in conjunction with new UNC-CH chancellor Carol Folt, accepted the offer brokered by DA Woodall and, after a search, selected Kenneth Wainstein to conduct an independent examination of the AFAM department's "irregularities." Unbounded by time frame, but apparently bounded in scope to the AFAM department, Wainstein would gain access to Nyang'oro as well as Crowder, who had also agreed to cooperate for the first time, in return for a cessation in SBI inquiries.
Wainstein's charter was to investigate without intrusion or influence from school or school system personnel. He was to have unfettered access and full cooperation from UNC employees and students. In February 2014, UNC's associate athletics director for compliance, Vince Ille, informed NCAA enforcement of this new investigation, though like everyone else, he was to be blind to Wainstein's progress or activities. From a compliance perspective, this could be a concern because it is paramount that member institutions inform the NCAA of information that could indicate violation of NCAA bylaws.
NCAA/Wainstein Collusion?
We know that between February and May 2014, Wainstein's team had begun its investigation, and Crowder and Nyang'oro had both been contacted. We also know that on May 28th, 2014, Wainstein informed UNC that his team was aware of possible NCAA interest in the investigation, and Wainstein that at that point suggested measures as to how to share his information with the NCAA without violating the terms of his charter with UNC. And within a week of that letter, NCAA enforcement filed notice with UNC informing them of the intent to reopen a case in light of "new information" coming to light. The "new information," of course, was the testimonies of Julius Nyang'oro and Deborah Crowder.
The new, unsubstantiated allegation now being alleged is that communication between Wainstein and NCAA enforcement occurred before these letters were communicated. Supposedly, sometime in April, NCAA investigators either communicated or met with the Wainstein's team without UNC's knowledge. The claim continues that UNC discovered this, objected to it and it is that which compelled the subsequent letters, setting the stage for how Wainstein, UNC and NCAA would coordinate on information prior to the release of the final report.
UNC's compliance efforts were firm in wanting to make sure that UNC, not Wainstein, was the conduit for reporting information to the NCAA that might be indicative of NCAA infractions. But UNC had prescripted Wainstein to conduct his investigation without UNC oversight or monitoring. So that meant that UNC would not want NCAA investigators meddling in Wainstein's investigation, gleaning any information that UNC could not vet first. It makes complete and total sense, then, that if NCAA had sought contact with Wainstein prior to May 28th, 2014, UNC would want to obstruct that information flow.
It's entirely feasible that this claimed pre-5/28 NCAA/Wainstein communication did take place. To call it "collusion" or "unethical" is unfounded, but it's a reasonable possibility that it happened, particularly since Senior Associate Athletics Director for Compliance, Vince Ille, had given NCAA Enforcement Associate Director Mike Zonder a heads up on UNC's Wainstein investigation: in late February and again in early April. And since UNC had created a firewall between itself and Wainstein on information exchange, UNC may not have been privy to any dialogue between the NCAA and Wainstein during that time frame.
The real question isn't really whether or not this pre-5/28 meeting occurred. It's whether or not it was improper for either Wainstein or the NCAA to engage without informing UNC first.
It's key to understand that UNC felt strongly that the NCAA had already determined that the academic matters were not NCAA's concern, and in UNC's view, the Wainstein investigation was dealing with matters that shouldn't have been pertinent to NCAA's jurisdiction. UNC, like any NCAA-member institution, is justifiable in being extremely cautious and, though wishing to be cooperative and collaborative, would want to be in control of how NCAA learns about possible infractions. NCAA processes do not often favor the institution when the institution is not the one reporting the information. Even though Wainstein was hired by the institution, UNC representatives understandably would want to report the results vice have any interim information reported without their vetting it first and being the ones to deliver it. At the very least, they would understandably want to have a representative participate in whatever meetings the NCAA and Wainstein were involved in. That's entirely prudent on their part. The "firewall" between UNC and Wainstein would make that problematic.
But, lacking any supporting information whatsoever of an alleged April NCAA/Wainstein meeting, I am unable to see an impropriety on the part of NCAA enforcement if it were to have contacted Wainstein directly. After all, Wainstein was supposed to be operating independently. And there was no analog in Wainstein's relationship with UNC to the misconduct of NCAA investigators leveraging legal proceedings in the infamous Miami-Fl or Penn State cases. The terms and conditions of Wainstein speaking or not speaking independently with NCAA investigators was likely not specified. And had contact occurred, and UNC learned of it, I can see them raising an objection and wanting to clarify protocols, but not charging that either the NCAA nor Wainstein had acted unethically.
Lack of Substance
In the 2+ years since Wainstein's investigation concluded, there has not been a single complaint from UNC or its legal team about tampering of Wainstein by the NCAA. UNC has never disavowed or sought to undermine any of Wainstein's findings. UNC's defense to the allegations in the NCAA case has outlined numerous jurisdictional and procedural issues, but none of them have even hinted at unethical actions by NCAA investigators or collusion with Wainstein.
Barring more information coming to light, my conclusion is that a UNC fan heard something through the grapevine about UNC having stepped in after learning that NCAA investigators had reached out to Wainstein. And this was either conveyed to him as a story of malfeasance and corrupt agendas, or he extrapolated that himself. And believing he can help UNC athletics against the NCAA as a self-proclaimed "solo army," is trying to leverage anti-NCAA sentiment by aligning this exaggerated outrage with other NCAA missteps such as Miami-FL and Penn State.
