Before seeing the actual email, I thought UNC's argument was fairly strong and the NCAA's response to it fairly weak. Now that I've had the chance to review it, I say that email chain is irrelevant to the current case and any of the Notice of Allegations filed in that case.Pertinent Background
 |
| May 2015 Notice of Allegations |
In June 2014, after nearly three years of saying that it saw no rules violations in the academic scandal surrounding some courses in UNC's African and African-American (AFAM) Studies Department, the Enforcement staff of the NCAA reopened an investigation into the affair. A year after that, UNC received a Notice of Allegation (NOA) outlining five Level I infractions, all of which cascaded from Allegation 1 in the NOA, alleging violation of NCAA Bylaw Article 16 "extra benefits" rule, 16.11.2
Allegation 1 was key. It was the nexus between the academic scandal and athletics department. Impermissible benefits infractions by the academic counseling staff was how NCAA Enforcement was NOW reasoning it had jurisdiction in the scandal.
Before the Wainstein Report, the scandal had been "academic-only" and athletics had simply been innocent bystanders impacted by, but not complicit in, the scandal. After Wainstein, the NCAA seemed to believe that UNC's athletics department had exploited the academic misconduct for competitive and eligibility purposes.
Before Wainstein, it was an academic misconduct issue (Article 10) but had not involving academic counselors to athletes. After Wainstein, it was an impermissible benefits issue (Article 16) that had involved athletics counselors.
When the NCAA issued the May 2015 NOA, it hadn't charged "academic fraud." As NCAA President Mark Emmert would famously say later, the quality of a member institution's academic curriculum is not in the NCAA's "wheelhouse." Rather, what NCAA Enforcement was alleging stemmed FROM the academic fraud, charging the academic counselors to the athletes with violating NCAA rules regarding Impermissible Benefits by "leveraging their relationships" with the individuals responsible for the academic misconduct and providing student-athletes with "special services."
UNC doesn't deny the academic misconduct of its faculty (Dr. Julius Nyang'oro) and academic staff (Deborah Crowder). UNC has also never disavowed Wainstein's findings or regretted the terminations, on the basis of information found during Wainstein's investigation, of three at-will employees (Beth Bridger, Jaimie Lee and Brent Blanton) who had worked for the Academic Support Program for Student Athletes (ASPSA). A fourth (Jan Boxill) was provided a notice of intent to terminate, but retired rather than be fired. Despite this, UNC contests the charge that the misconduct of its academic support staff broke any NCAA rules. UNC is arguing that the NCAA had already reached that determination prior to Wainstein, and that Wainstein added nothing new that should change that earlier determination.
UNC says this prior determination is evidenced by:
- In 2011, during the initial investigations of the newly discovered academic misconduct in the African and African-American (AFAM) studies department, UNC investigators deemed that no infractions of NCAA bylaws were evident and did not include any such allegations in the then-pending case.
- In 2013, NCAA Enforcement affirmed that it still saw no potential infractions, having seen both UNC's internal review (published May 2012) and external review (completed December 2012).
The third item UNC has used to reinforce this claim is the 2013 NCAA internal email it uncovered.
In 2015, after being served with the original NOA that seemed to contradict those earlier determinations, UNC representatives went to NCAA headquarters and looked through the files. What they found was an internal email chain between NCAA Enforcement and AMA staffs in February/March 2013 that UNC says further bolstered the claim that the NCAA had already determined the misconduct uncovered hadn't resulted in any violations within NCAA's jurisdiction.
UNC has referenced that email dialogue at least twice:
- First, in October 2015, when contesting Allegation 1a of the initial NOA and requesting interviews with those addressed in the emails.
- And again, in August 2016, in its response to the Amended NOA.
"The University believes that the information being used by the enforcement staff to support Allegation 1(a), and even some of the factual information cited by the NCAA enforcement staff to support the allegation, has been specifically received, evaluated and judged by NCAA enforcement and AMA staff members on at least three separate occasions; each time concluding that the actions do not constitute violations of NCAA bylaws. These include...
"(2) a March 5, 2013 internal NCAA communication involving Steve Mallonee, Mike Zonder and Kevin Lennon (among other) which was not shared with the University until July 12, 2015; this interpretation was requested by enforcement staff and was given the highest attention when the staff asked Steve Mallonee, then NCAA Managing Director of AMA and Legislative Liaison to the Division I Legislative Council, to review an outside investigator's report, as well as other information concerning the institution's African and Afro-American Studies Program. Mallonee's determination was that he saw no violations in the information he reviewed."
Allegation 1a was eventually dropped by the Enforcement staff when the Amended NOA was issued in April 2016. But in its response to that ANOA, UNC again referenced the March 2013 NCAA internal email. This time, UNC (Evrard) paraphrases the AMA (Mallonee) conclusion as UNC "did not violate NCAA rules."
"Having reviewed [the Martin Report], the enforcement staff had concluded that the anomalous courses and other academic irregularities did not involve any violations of NCAA bylaws. The enforcement staff asked the AMA to review this conclusion "to ensure that we haven't overlooked anything of significance." Thereafter, a team of individuals within AMA was put together and they reviewed the issues.
"On March 5, 2012, the then Managing Director of the AMA responded to the enforcement staff in no uncertain terms [Mallonee email excerpt quoted; reproduced below]. AMA's conclusion confirmed that the NCAA itself had concluded that the anomalous courses and the other academic irregularities in the Department did not violate NCAA rules."
Confession
I hadn't been aware that that email was already part of the public record when it was quoted by the anonymous NCAA critic @WalterByerz. When he posted it, I thought it was the first time it had been seen by the public, and I improperly speculated that UNC officials might have used that unofficial Twitter account outlet to get the email out into the public's eye.
But it was pointed out to me that, had I only read the Exhibits addendum to UNC's Response to the ANOA, I would have seen that it was evidenced there already.
Chastened that I'd use poor fact-finding to lodge my suspicion of UNC leveraging an anonymous Twitter account to release information, I read the email.
It isn't the "smoking gun" UNC seems to be saying it is.
The Email
The email chain begins in early February 2013 when Mike Zonder, Associate Director of NCAA Enforcement and lead investigator on UNC case at the time, writes how, after reviewing all of the information up to and including the then-recent Martin Report, he affirmed that the Enforcement staff had seen no violations of NCAA Bylaws, But Zonder (and his supervisor, Stephanie Hannah) reached out to AMA staffer Kris Richardson, asking for the AMA's perspective, specifically on issues of academic fraud, extra benefits and any additional potential violations that might be related to high student-athlete enrollment in the anomalous courses or grade changes:
Richardson forwarded Zonder's request to Dave Schnase who, at that time, was Managing Director of the AMA. Schnase forward it to his boss, Kevin Lennon, who was Vice President of the AMA. And that's when Lennon puts Steve Mallonee on the task to answer on behalf of the AMA office.
Mallonee, along with John Shukie, based his assessment (as had Zonder) on the Martin Report and other information available to the NCAA at the time, such as the Hartlyn-Andrews Review and the information gathered when NCAA investigators participated in interviews and information gathering in August-September 2011 (as UNC attorney Rick Evrard outlined here).
Here is the full text of what it was that Steve Mallonee wrote in 2013. The part that Evrard excepted in his October 2015 letter is highlighted in blue.
"John Shukie and I reviewed the additional information provided in the UNC report and the addendum. we [saw] no additional issues other than the one for which you are already requesting additional information (details of specific grade changes made for SAs and whether the grade changed affected eligibility). There are always concerns with aberrant classes comprised of a significant number of student-athletes in comparison with non-athletes; however, there is nothing definitive in the report that would validate that there was a systematic effort within the African and African American Studies department motivated by the desire to assist student-athletes with maintaining their eligibility, either in how the courses were created, taught and/or how the grades awarded. The current 2000 official interpretation (attached) does remain applicable to each individual student-athlete's situation and obviously could result in a finding of academic fraud, notwithstanding the lack of any systematic effort to benefit student-athletes in general. John can feel free to provide any additional comments as he deems appropriate. I hope this information is helpful."
The "current official interpretation" that Mallonee had attached to the email was this:
Article 10.1-(b) is:
 |
| NCAA Manual |
The original NOA -- the one to which Evrard was responding in October 2015 -- didn't allege 10-1(b) infractions. In October 2015, UNC was contesting Allegation 1a of the original NOA. And Evrard had cited the 2013 NCAA email saying "Mallonee's determination was that he saw no violations in the information he reviewed." But after seeing the actual email chain, it's plain Mallonee, speaking on behalf of the AMA, was disclaiming possible 10-1(b) infractions.
The 2013 AMA response to NCAA Enforcement's request for input had no real bearing on the Allegations charged by Enforcement in 2015.
Fast forward to the ANOA in April 2016, and it doesn't allege any violation of 10.1(b) either. Even the Article 16 charge against the ASPSA counselors was removed. And yet still UNC tried to use Mallonee's words from 2013 claim that the AMA had affirmed there were "no violations in the information he reviewed"
There is no dispute that NCAA Enforcement was standing by the "no violations" determination in 2013. The NCAA's AMA input in that March 2013 email was on possible Article 10-1(b), not all possible violations such as the Article 16 violations alleged. I wouldn't have known that had the email not been pointed out to me. I would have taken UNC's word for it.
I probably could have guessed this though without even seeing the email, since what Enforcement was alleging wasn't in the AMA's "wheelhouse."
