Complaints about the lack of fairness of NCAA infractions processes and outcomes have been ringing through the Association's membership ranks for as long as the NCAA has existed. When the University of North Carolina at Chapel Hill (UNC-CH) released the 2nd Amended Notice of Allegations (2ANOA) to the public on December 22nd, 2016, it accompanied that release with the Committee on Infractions (COI) post-hearing decision and its December 21st letter to the COI Chair, Greg Sankey, lodging its "fairness" complaints about the outcome of the October procedural hearing.
With that December 21st, 2016 letter, (made public despite the lack of a public document request compelling its disclosure), UNC let the world know that it believes the COI chief hearing officer and Enforcement staffs have acted unfairly. And it's been a rallying cry for UNC defenders since.
UNC's formal complaints in the case have been many, but this one is particularly focused on the belief that the institution was not allowed a fair opportunity to defend the rationale for why the first Notice of Allegations dated May 20th, 2015 (NOA) was changed, resulting in the Amended Notice of Allegations dated April 25th, 2016 (ANOA).
Rick Evrard raises three points in his letter to COI Chairman Greg Sankey:
- That the COI unfairly denied UNC the chance to introduce key email documents (between UNC and NCAA Enforcement) into evidence before the hearing that would explain to the Panel, and provide context for, the changes that Enforcement had previously made to the NOA.
- That this denial led UNC's representatives to believe that the issue of the NOA/ANOA changes was not going to be a part of the scheduled hearing agenda: but that the hearing panel then blindsided UNC by raising the issue at the hearing after all.
- That the hearing panel then proceeded to use the ABSENCE of information to reach its decision that has resulted in a reversal of those earlier changes.
It's surprising that we, the public, are seeing these grievances at all. Normally, grievances like this play out behind the closed doors of the NCAA infractions process, and NCAA rules restrict public disclosure.
But this case is anything but normal, and it's been no secret that UNC, while reminding everyone of it's "cooperative and collaborative" behavior, has objected during almost every turn of this NCAA enforcement case. Even after gaining what appeared to be a major victory with the Amended NOA in April 2016, UNC still had bones to pick with NCAA Enforcement on what remained in the ANOA.
For this article, I only want to look at this one set of gripes (above), stemming from the October 28th hearing before a panel of the Committee on Infractions. Was UNC denied "the fundamental fairness contemplated by the NCAA constitution and bylaws" as Evrard claims? If Rick Evrard has fairly represented the truth of the proceedings, it would be hard to argue that UNC wasn't dealt with unfairly.
But this case is anything but normal, and it's been no secret that UNC, while reminding everyone of it's "cooperative and collaborative" behavior, has objected during almost every turn of this NCAA enforcement case. Even after gaining what appeared to be a major victory with the Amended NOA in April 2016, UNC still had bones to pick with NCAA Enforcement on what remained in the ANOA.
For this article, I only want to look at this one set of gripes (above), stemming from the October 28th hearing before a panel of the Committee on Infractions. Was UNC denied "the fundamental fairness contemplated by the NCAA constitution and bylaws" as Evrard claims? If Rick Evrard has fairly represented the truth of the proceedings, it would be hard to argue that UNC wasn't dealt with unfairly.
Though I am antagonistic toward UNC's defense against the NCAA allegations, I have found, generally speaking, that the arguments presented by the Bond, Schoeneck & King (BSK) legal team representing UNC have been superior to those that I have seen from NCAA Enforcement, which often seem bumbling, confusing and inconsistent, or which sometimes miss points entirely.
I don't feel that is true of its argument here, submitted to the Office of the Committee on Infractions (OCOI). None of the three elements, as stated by UNC's legal representatives, accurately describe the situation UNC has had to face.
I don't feel that is true of its argument here, submitted to the Office of the Committee on Infractions (OCOI). None of the three elements, as stated by UNC's legal representatives, accurately describe the situation UNC has had to face.
Starting with Point No. 1 from above:
Rick Evrard's letter complains about not being allowed by the chief hearing officer to introduce evidence prior to the hearing. Was this decision unfair?
In the original October 14 request, Evrard argues for "good cause" reasons as to why the chief hearing officer should grant UNC a waiver from the 30-day rule regarding material submissions to the record prior to a hearing:
In the original October 14 request, Evrard argues for "good cause" reasons as to why the chief hearing officer should grant UNC a waiver from the 30-day rule regarding material submissions to the record prior to a hearing:
As Evrard correctly noted, NCAA rules require all items parties wish to submit materials to the hearing panel must do so at least 30 days prior to the hearing:
Waiving that deadline is at the discretion of the chief hearing officer if "good cause" is shown. If the deadline can't be met and the chief hearing officer does not waive the deadline, parties may still submit materials at the hearing:
Evrard argues that the "exceptional nature" of the hearing should have been a consideration for the "good cause" argument to waive the deadline. This makes no sense since the only thing "exceptional" about the hearing was that it was only addressing a portion of what a hearing will normally address. The more typical, "non-exceptional" COI panel hearing considers both procedural and material issues at a single infractions hearing. Due to the complexities of UNC's procedural/jurisdictional arguments raised in its response to the ANOA, the Panel split the review to ONLY considerthe threshold issues of jurisdiction and procedure. Nothing about this segregation complicated UNC's preparation. If anything, it simplified UNC's pre-hearing preparation by limiting the scope of what it needed to prepare for the October 28th hearing.
Evrard also argues that the limited time frame from notice of the hearing to deadline to submit materials constituted "good cause" for waiver of the deadline. UNC had two business days to make its request. Yet, BSK's request wasn't submitted until 17 days into the 30-day pre-hearing period. Perhaps, if BSK's request had been submitted just shortly past the deadline, "good cause" for the short notice of the hearing might have been granted, but that "good cause" argument was reasonably lost with the delay.
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Waiving that deadline is at the discretion of the chief hearing officer if "good cause" is shown. If the deadline can't be met and the chief hearing officer does not waive the deadline, parties may still submit materials at the hearing:
Evrard argues that the "exceptional nature" of the hearing should have been a consideration for the "good cause" argument to waive the deadline. This makes no sense since the only thing "exceptional" about the hearing was that it was only addressing a portion of what a hearing will normally address. The more typical, "non-exceptional" COI panel hearing considers both procedural and material issues at a single infractions hearing. Due to the complexities of UNC's procedural/jurisdictional arguments raised in its response to the ANOA, the Panel split the review to ONLY considerthe threshold issues of jurisdiction and procedure. Nothing about this segregation complicated UNC's preparation. If anything, it simplified UNC's pre-hearing preparation by limiting the scope of what it needed to prepare for the October 28th hearing.
Point No. 2
Why would Evrard say that denying introduction of the actual email documents "effectively informed the University that the issue was not one that would be addressed by the Panel?"
There is no hint or suggestion in Joel McGormley's letter that the reason UNC's request to enter the email documents into the hearing record was denied by the rationale that the issue was not going to be on the agenda.
In the the September 26th, 2016 Notice to all Parties of the hearing, the OCOI states what is to be the "sole focus" of the hearing. These had been raised by UNC in it's response to the ANOA, but they were threshold issues, two of which were applicable to the reasons for the NOA-ANOA changes.It's been explained to me that because UNC was raising those arguments within the context of the ANOA, then that ought to clearly limit the COI hearing panel to the issues of the ANOA. Thus, so the argument goes, the rejection of the email correspondence that could be used to explain how the NOA was modified to become the ANOA, made it a reasonable conclusion that the Panel wouldn't be addressing that aspect of "sole focus" outlined in the Notice to All Parties.
Frankly, I don't interpret it that way, and I'd be surprised if Rick Evrard honestly interpreted the rejection that way. He obviously anticipated the NOA-ANOA rationale could be a potential matter of interest when he sought to have the email correspondence placed into the record. And even after being denied, UNC submitted the requested "targeted and synthesized" submission allowed by the chief hearing offier to recount and explain that decision process.
There was nothing limiting, or suggesting the limiting, of the scope of the 10/28 procedural to the ANOA only. I have no explanation for why or how UNC could say it drew such a conclusion from the chief hearing officer's pre-hearing ruling.
Finally, Point No. 3
When Evrard claims the Panel relied on the "absence" of information...
...what he fails to mention is that the chief hearing officer did permit UNC to submit a 10-page summation of the evidence UNC wanted on the record, in order to provide the very background context UNC wanted introduced before the panel. And UNC took advantage of that opportunity.
We aren't privy to the minutes of the procedural hearing itself, but presumably, UNC representatives had the opportunity at the hearing to make its argument. Additionally, as mentioned above, per Bylaw 19.7.7.3, UNC could have, and should have, presented those cited emails into evidence at the hearing if they were so key to the issue. Nothing barred UNC from doing that.
So describing the Panel's decision as being based on the "incomplete record" is not accurate. If the record was incomplete, it was UNC's fault, not due to any unfair treatment by the Chief Hearing Officer.
One Final Point
Evrard characterizes the Panel's decision with regards to Enforcement staff revisiting the Notice of Allegations. Above, Evrard describes it as "directing the issuance of a third Notice of Allegations." This has become mantra for NCAA critics and UNC partisans claiming the Committee on Infractions chairman "overreached" his authority.
But this is inaccurate, and you would think that after years of complaining about the lack of nuance in media coverage of the UNC academic scandal, UNC advocates would recognize this. But the COI has no authority or superiority over the Enforcement staff. Rick Evrard knows the COI can't "direct" the Enforcement staff to rewrite the Allegations.
What the Panel did do was provide clarification to Enforcement on what it, the Panel, can consider in the Allegations and gave Enforcement the opportunity to revisit the Allegations.
There is no implication of "direction." The COI panel didn't, and can't, order the Enforcement staff what to charge. But it is perfectly within its boundary to provide Enforcement suggestion, encouragement or opportunity, upon on which the Enforcement staff is free to act or not.
The truth is, the COI panel doesn't even require that the Allegations be amended. It is within its scope to consider charges not brought forth by the Notice of Allegations if the facts warrant.
Rather than being unfair, if the COI hearing panel was inclined to consider the allegations raised by the original NOA, then being served with a new Notice of Allegations allows UNC to prepare its response without ambiguity or uncertainty over whether or the original Notice of Allegations charges are in play. UNC now has a clear understanding of what the Infractions panel will be considering and can present its case to them. It didn't win its attempt to demand that the COI be constrained by Enforcement and AMA staff's prior determination.
I know UNC doesn't like having to fight a battle it thinks it already won several times, but what the COI Hearing Officer has done isn't unfair. It's all precisely within the scope of bylaws and operating procedures created by the member institutions themselves.
