The Unofficial "Greg Sankey Violated Initial Determination Rule" Argument

COI Chair, Greg Sankey

There's an unofficial complaint being bandied about that Committee on Infractions (COI) chairman Greg Sankey should not be assigned to the panel hearing the UNC case.

I'm not talking about the "conflict of interest" allegation about which I wrote yesterday. That particular objection could have merit, but UNC will have to raise an objection formally to make it an issue; and it may already be too late.

What this article is addressing is something different. This other "rule-breaking" charge about Sankey's membership on the hearing panel is based on a misapplication of NCAA Bylaw 19.5.1.2 and an erroneous understanding of the enforcement events that transpired between May 2015 and April 2016, which is the time period between issuance of the first two versions of the Notice of Allegations.

NCAA Division I Manual

For this rule to be applicable in the UNC case, the Enforcement staff would have had to submit information to Sankey for a determination of how that information should be processed prior the case entering the hearing phase. If such an event had happened prior to issuance of the Amended Notice of Allegations in April 2016, then Sankey should be recused from membership of the hearing panel in the UNC case in accordance with 19.5.1.2. But where and how it has been established that such an event took place is unverified. Those wanting Sankey off the Panel are projecting false information about his and the COI's involvement in the events transpiring up to that 2nd NOA.

Background

Greg Sankey is the current chairman of the NCAA Division I Committee on Infractions (COI). As a COI committee member he is also eligible, according to existing NCAA protocols, to be assigned to hearing panels on specific cases; and he is currently assigned to the pending infractions case of the University of North Carolina at Chapel Hill (UNC-CH). He is the chief hearing officer on the 7-member panel that includes Alberto Gonzales, Carol Cartwright, Jill Pilgrim, Larry Parkinson, Joe Novak and Eleanor Myers.

The Infractions process exists according to legislation drafted and approved by the NCAA membership. Not everyone within that membership agrees, and there have been calls throughout the years to restructure the enforcement process, including how infractions cases are adjudicated. But such motions have not found enough support (yet) from the NCAA membership to effect a change; and so, despite whatever flaws the current system and process may have, it is a member-driven process and the COI must abide by the dictates of the rules, embodied within the NCAA Division I Manual and the Committee on Infractions Internal Operating Procedures.

The "Typical" Enforcement Process

Click on Image to Enlarge

I had previously posted a pair of reference pages taking the graphics from the current NCAA Division I Manual showing the "typical" infractions process and another to show how the UNC case has deviated from "typical." The diagram to the right is the NCAA's simplified depiction of the typical infractions processing flow.

The Charging stage (Step 2) in the process is where allegations are crafted from the evidence collected during the Investigation steps. Steps can overlap, as happened in UNC's case when additional information was discovered and reported after the original Notice of Allegations was issued.

The primary participants during these first two stages are NCAA Enforcement staff and the institution (or any other named individuals). In the typical process, the Committee on Infractions is not involved until transition to the Hearings phase. If the parties don't agree on allegations, Enforcement drafts a Notice of Allegations, and it is then that a process clock begins ticking, with the institution and named individuals having 90 days to submit a written response to the allegations, if any wish to do so.

The only involvement of the COI up to this point is notification and scheduling. The COI will receive the NOA when issued and begin preparations for the Hearings phase, such as scheduling a date for the hearing, assembling the Panel that will hear the case and otherwise preparing for the hearing stage.

It is atypical for Enforcement to seek a determination from the COI chairman during the Charging phase on a case. UNC's case is anything but "typical" in several ways:

• There have been three iterations of the Notice of Allegations.
• During the Hearings phase, the Committee on Infractions took the unusual step of convening a hearing to consider procedural issues only.
• After entering the Hearings phase, the process "looped" back to the end of the Charging phase with the issuance by Enforcement of a new set of allegations.
• Enforcement staff and the institution do not agree on whether or not the current case is an earlier case "reopened" or if it constitutes an entirely new case.
• It may be the first time academic assistance is being alleged as an Article 16 "impermissible benefit"

One way it has not been atypical, though, is that the COI chairman was not involved in the charging phase beyond schedule/status updates nor was he requested to make a determination on any issues prior to entering the hearing phase. There has been nothing made public known to have transpired prior to August 1st, 2016, (the date of UNC's response to the ANOA) that would invoke Bylaw 19.5.1.2 and preclude the COI chairman from sitting as chief hearing officer in the UNC case.

What We Know

We can deduce the following contacts Enforcement and UNC had with the COI chair prior to August 2016 from documents UNC has made public:

• On May 20th, 2015, Enforcement would have provided the Office of the COI (OCOI) with a copy of the Notice of Allegations; the OCIO would have then begun initial preparations for hearings following the allotted time for UNC to respond to the NOA and parties to submit all materials for review.
• On August 10th, 2015, Enforcement and UNC notified the COI of new evidence and the likelihood of needing the amend the NOA. The COI's preparation for hearings was halted and the Investigation/Charging phases overlapped and were extended while Enforcement and UNC (without the COI) "negotiated" the allegations.
• On August 26th, 2015, a "procedural status call" was convened by the COI Chair to ensure the parties were on track and moving the case toward resolution.
• On October 26th, 2015, Enforcement and UNC notified the COI chair that a new Notice of Allegations would be necessary. 
• On January 8th, 2016, Enforcement and UNC briefed the COI chair on the status of progress on the Amended Notice of Allegations. This type of conference is normally for informational purposes only so the COI chair can be assured the parties are effectively working toward bringing the case to resolution. 
• On March 10th, 2016, the COI chair is again briefed by Enforcement and UNC on the status of progress on the Amended NOA
• On April 25th, 2016, Enforcement issues the ANOA and, as before with the original NOA, a copy is provided to the the OCIO. The clock for responses and preparations for hearings began anew.
• On August 1st, 2016, UNC submits its Response to the ANOA. The COI receives a copy.
• On September 19th, 2016, NCAA Enforcement submits its reply to UNC's Response and also the Statement of the Case.
• Sometime between September 19th and September 26th, Enforcement and UNC would have held a pre-hearing conference to address issues to be discussed at the hearing and materials to be presented.
• On September 26th, 2016, the CIO sets the date for the first hearing, sets the agenda and provides parties with the composition of the hearing panel. 
• On October 28th, 2016, a hearing before the COI panel is convened.

The mistake those claiming COI chair Greg Sankey should be barred from the panel that is hearing the UNC case is that he must have made an "initial determination" at some point during the  NOA-ANOA process, probably during the dates highlight in red above.

The first clue that this alleged violation of 19.5.1.2 can't be correct is that in none of the communications UNC has released to the public has its defense team lodged a protest about Sankey's assignment to the panel.  We know of at least 3 pieces of correspondence Evrard wrote to the Office of the Committee on Infractions (OCIO) or to the COI chairman after the COI September 26th 2016 letter, and none of them include any objection to Sankey's assignment to the hearing panel for any reason, including Article 19.5.1.2. (See here, here and here.)

Secondly, the "determination" in underlined by green below:

...is not the "initial determination" of Bylaw 19.5.1.2 previously cited.

It's true that for the Amendment to the NOA to have taken place, the COI chair (who would later be the chief hearing officer) would have likely made the determination of materiality sometime during or shortly after August 2015. But it cannot be presumed that such a determination, were it even to have been made, constituted the "initial determination" how a case should be processed. Those are two separate wickets.

In fact, the "initial determination" has been explained to me as being an event that, if it occurs, would happen at the start of a case, possibly even before a notice of inquiry, but certainly before any violations are alleged. A 3-12-3 material determination in a possible amending of allegations would occur much later.

Conclusion

This particular complaint about Sankey's role has gained traction among those looking for reasons to disqualify him in the wake of the Panel's procedural hearing decisions. It's been a meme reinforced by the effects of confirmation bias within a partisan crowd, but I think it has no chance of being taken up as an official objection by UNC's representatives either prior to the next hearing or on appeal should that come to fruition.