I have not seen any public request to which releasing of the December 21st letter would have been responsive, which suggests to me it was UNC's intent to make sure the public was aware of UNC's concerns up front with the public release of the revised allegations. UNC Athletics Director Bubba Cunningham and partisan media outlets quickly reiterated the complaint found in the letter that the COI hearing panel had "overreached" its authority by "intervening" in the infractions process.
A single paragraph, Rick Evrard's captures three key claims UNC has made that belie the evidence released to the public:
- That the Hearing Panel relied on the absence of evidence (that it had blocked from introduction)
- That the Hearing Panel directed Enforcement to issue a revised set of allegations.
- That the Hearing Panel revisited and overturned matters that had been "appropriately addressed" by UNC and NCAA Enforcement prior to the issuance of the Amended Notice of Allegations (ANOA) in April 2016.
Last week, I addressed #1: UNC's claim that the Panel relied on the "absence of evidence" and how it can not be true, assuming UNC didn't bungle it's own defense..
Today, I'd like to refute #2 above: UNC's claim that the COI "directed" the Enforcement staff to do anything:
"Fundamentally, the Panel, after rejecting the University's proffer of evidence that would have informed the Panel's understanding of the basis for the Enforcement Staff's removal of former Allegation No. 1, used the very absence of this evidence to take the unprecedented step of directing the issuance of a Third Notice of Allegations with respect to matters that were appropriately addressed in the investigation and were the subject of extended dialogue between the University and the Enforcement Staff."
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Here is the full text of the Panel's letter to All Parties, in which the COI Panel explains its decision of the October 28th panel hearing that would eventually lead to issuance of a 2nd Amended Notice of Allegations on December 13th, 2016. Nowhere does the COI intimate that it was "directing" Enforcement to revise the allegations.
What the COI Panel Actually Did
The words the Panel used:
Is a request from the COI chairman and Panel chief hearing officer tantamount to an order? Is it a directive? Is Greg Sankey a don in the NCAA and giving Enforcement's Jon Duncan "an offer he can't refuse?"
Two weeks after receiving the Panel's "request," the Enforcement staff notified UNC of the new set of allegations, writing:
There's no implication of having been "directed" in Duncan's words. Enforcement was not obligated nor required to issue a new set of allegations, Whatever concession UNC thought it had won from Enforcement prior to the ANOA was reversed by the Enforcement staff and the Enforcement staff alone. It was not on the orders of the Committee on Infractions. All the COI did was remove a possible impediment to Enforcement's mistaken belief that the COI wouldn't consider academic assistance as a form of impermissible benefit.
Of all of UNC's cited prior negotiations and dialogue with NCAA Enforcement and the Academic and Membership Affairs staffs, none of it had resolved the question of whether or not improper academic assistance could be charged as an Article 16 Extra Benefits violation. UNC relied on Enforcement's 2011-2013 determinations, including "secret communications" between Enforcement and AMA staff regarding Article 10 Academic Misconduct, to show it had already been determined by NCAA enforcement officials that NCAA lacked jurisdiction to charge academic misconduct for what was known about the issues discovered at UNC prior to the Wainstein investigation.
Post-Wainstein, when Enforcement originally alleged Article 16 impermissible benefits, UNC fought back, referencing the NCAA's prior "no violation" determination, even though that had pertained to Article 10. It was Enforcement, not the AMA, that ultimately conceded to UNC on the Article 16 charge, removing it from the ANOA. But why? We have no minutes from meeting or letters/emails from Enforcement explaining its rationale. UNC believes its argument won the day, and that that should be binding on the COI.
But Enforcement's apparent concessions to UNC left the ANOA a standing contradiction. They had removed the Article 16 allegation but left in, and even sought to strengthen, institutional allegations, referencing the very thing UNC thought it had convinced Enforcement was not in NCAA jurisdiction.
This is why the COI questioned the framing of the allegations as set forth in the ANOA.
This is why the COI asked Enforcement to revisit the fashioning of the allegations.
Bubba Cunningham was wrong when he answered:
Yes, the October hearing was just to hear procedural claims of the case. But the COI's Nov. 28 letter did not slip beyond jurisdictional issues. The question of whether or not Article 16 could apply to impermissible academic assistance is precisely a jurisdictional issue. The November 28 letter is where the COI explained to all parties -- but especially to Enforcement -- that it would consider such allegations. That is strictly a jurisdictional issue and not one, in any way, dealing with the merits of the case.
I've tried to point out elsewhere that, organizationally, the Enforcement staff is not subordinate to the Committee on Infractions. Enforcement is one of the departments within the governance structure at NCAA Headquarters (as is the AMA). The staff, its director and Vice President answer to the NCAA Division I Board of Directors.
There is no "Committee on Enforcement." That's a misnomer.
In contrast, the Committee on Infractions IS a committee. It's not a staff of employees. It is made up of appointees from NCAA membership and non-NCAA positions. The COI also reports to the NCAA Board of Directors, but it serves as an independent body, tasked with interpreting and applying NCAA legislation as it pertains to allegations of infractions presented to it by Enforcement.
There is an Office of the Committee on Infractions (OCOI), but it does not participate in decisions of the COI. It is strictly a support structure, assisting with administrative functions like scheduling, processing and facilitating the needs of the COI and its panel members. The OCOI serves liaison functions with the Enforcement staff, but does not issue orders to, nor take orders from, Enforcement.
There is no hierarchical superiority of either the COI or Enforcement. Each has its own Internal Operating Procedures. The two must mesh together to process infractions allegations, but the COI is "not the boss of" Enforcement.
To claim that the COI intervened by "directing" Enforcement is either a gross error or a calculated one. Considering the NCAA legal credentials of Bond, Schoeneck & King, it's hard to believe it was the former. Rick Evrard must know that the COI Chairman is not The Godfather in the eyes of the Enforcement staff. If Enforcement was firm on the determination it had supposedly hammered out with UNC that resulted in the ANOA, it was under no obligation to the COI to amend the allegations yet again and reverse that prior determination.
Evrard's letter has got to be an intentional slanting of what transpired in the wake of the October 2016 procedural hearing, and with it Cunningham and pro-UNC voices have been trying to craft the public "narrative" with this spin of the COI overstepping its authority and intervening in ways it ought not.
Maybe it's a "what's good for the goose is good for the gander" strategy, since skewing was a report or letter or document says is precisely what UNC advocates have objected to when it comes to throughout the media coverage of the scandal, such as in conveying details from the Wainstein Report and other information about the academic scandal.
Now, perhaps if Rick Evrard, Bubba Cunningham and Greg Barnes said the COI had "steered" Enforcement rather than "direct" that might have made for an interesting debate. "Steered" is how Kenneth Wainstein had described what academic counselors had done with athletes. Bradley Bethel didn't like the word "steered" because he thought it communicated a sense of being coerced. I disagree, but "direct" definitely connotes coercion. There's a reason why Rick Evrard used that word instead of anything synonymous with "request" as it appears in the COI's November 28th letter.
"...the panel requests that the enforcement staff review whether the potential violations in this case are alleged in a fashion to best decide this case. Were the enforcement staff to determine that any material changes are necessary to best position the case for the panel's consideration, it should follow NCAA Bylaw 19.7.4 and COI Internal Operating Procedure (IOP) 3-12-3 and issue a second ANOA."
Is a request from the COI chairman and Panel chief hearing officer tantamount to an order? Is it a directive? Is Greg Sankey a don in the NCAA and giving Enforcement's Jon Duncan "an offer he can't refuse?"
How Enforcement Interpreted the COI Request
Two weeks after receiving the Panel's "request," the Enforcement staff notified UNC of the new set of allegations, writing:
"The Committee on Infractions also provided the enforcement staff an opportunity to amend further the April 25, 2016, amended notice of allegation."
There's no implication of having been "directed" in Duncan's words. Enforcement was not obligated nor required to issue a new set of allegations, Whatever concession UNC thought it had won from Enforcement prior to the ANOA was reversed by the Enforcement staff and the Enforcement staff alone. It was not on the orders of the Committee on Infractions. All the COI did was remove a possible impediment to Enforcement's mistaken belief that the COI wouldn't consider academic assistance as a form of impermissible benefit.
COI's Jurisdictional Rationale in Requesting Review of Allegations
Of all of UNC's cited prior negotiations and dialogue with NCAA Enforcement and the Academic and Membership Affairs staffs, none of it had resolved the question of whether or not improper academic assistance could be charged as an Article 16 Extra Benefits violation. UNC relied on Enforcement's 2011-2013 determinations, including "secret communications" between Enforcement and AMA staff regarding Article 10 Academic Misconduct, to show it had already been determined by NCAA enforcement officials that NCAA lacked jurisdiction to charge academic misconduct for what was known about the issues discovered at UNC prior to the Wainstein investigation.
Post-Wainstein, when Enforcement originally alleged Article 16 impermissible benefits, UNC fought back, referencing the NCAA's prior "no violation" determination, even though that had pertained to Article 10. It was Enforcement, not the AMA, that ultimately conceded to UNC on the Article 16 charge, removing it from the ANOA. But why? We have no minutes from meeting or letters/emails from Enforcement explaining its rationale. UNC believes its argument won the day, and that that should be binding on the COI.
But Enforcement's apparent concessions to UNC left the ANOA a standing contradiction. They had removed the Article 16 allegation but left in, and even sought to strengthen, institutional allegations, referencing the very thing UNC thought it had convinced Enforcement was not in NCAA jurisdiction.
This is why the COI questioned the framing of the allegations as set forth in the ANOA.
This is why the COI asked Enforcement to revisit the fashioning of the allegations.
Bubba Cunningham was wrong when he answered:
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| http://www.scout.com/college/north-carolina/story/1740030-bubba-follow-the-bylaws |
The Organizational Relationship Between COI and Enforcement
I've tried to point out elsewhere that, organizationally, the Enforcement staff is not subordinate to the Committee on Infractions. Enforcement is one of the departments within the governance structure at NCAA Headquarters (as is the AMA). The staff, its director and Vice President answer to the NCAA Division I Board of Directors.
There is no "Committee on Enforcement." That's a misnomer.
In contrast, the Committee on Infractions IS a committee. It's not a staff of employees. It is made up of appointees from NCAA membership and non-NCAA positions. The COI also reports to the NCAA Board of Directors, but it serves as an independent body, tasked with interpreting and applying NCAA legislation as it pertains to allegations of infractions presented to it by Enforcement.
There is an Office of the Committee on Infractions (OCOI), but it does not participate in decisions of the COI. It is strictly a support structure, assisting with administrative functions like scheduling, processing and facilitating the needs of the COI and its panel members. The OCOI serves liaison functions with the Enforcement staff, but does not issue orders to, nor take orders from, Enforcement.
There is no hierarchical superiority of either the COI or Enforcement. Each has its own Internal Operating Procedures. The two must mesh together to process infractions allegations, but the COI is "not the boss of" Enforcement.
Words Matter
To claim that the COI intervened by "directing" Enforcement is either a gross error or a calculated one. Considering the NCAA legal credentials of Bond, Schoeneck & King, it's hard to believe it was the former. Rick Evrard must know that the COI Chairman is not The Godfather in the eyes of the Enforcement staff. If Enforcement was firm on the determination it had supposedly hammered out with UNC that resulted in the ANOA, it was under no obligation to the COI to amend the allegations yet again and reverse that prior determination.
Evrard's letter has got to be an intentional slanting of what transpired in the wake of the October 2016 procedural hearing, and with it Cunningham and pro-UNC voices have been trying to craft the public "narrative" with this spin of the COI overstepping its authority and intervening in ways it ought not.
Maybe it's a "what's good for the goose is good for the gander" strategy, since skewing was a report or letter or document says is precisely what UNC advocates have objected to when it comes to throughout the media coverage of the scandal, such as in conveying details from the Wainstein Report and other information about the academic scandal.
Now, perhaps if Rick Evrard, Bubba Cunningham and Greg Barnes said the COI had "steered" Enforcement rather than "direct" that might have made for an interesting debate. "Steered" is how Kenneth Wainstein had described what academic counselors had done with athletes. Bradley Bethel didn't like the word "steered" because he thought it communicated a sense of being coerced. I disagree, but "direct" definitely connotes coercion. There's a reason why Rick Evrard used that word instead of anything synonymous with "request" as it appears in the COI's November 28th letter.
