One particular target of attack we might expect to see from UNC as it makes its defense before the NCAA's Committee on Infractions (COI) is a "conflict of interest" charge against the chief hearing officer and COI chair, Greg Sankey.
UNC hasn't formally issued this challenge in the current, pending infractions case as far as the public knows. "Trial balloons" through outlets like partisan fan sites and social media, could be offering us a preview of what insiders in the UNC Athletics Department are preparing, The grassroots social media and blogging campaign frame it as an example of the NCAA 'breaking its own rules.' Though UNC has been aggressive in defending itself against the allegations, the official responses so far have been more politic as the institution tries to remind the court of public opinion of how "collaborative and cooperative" it has been with the NCAA throughout this ordeal.
It's possible the "conflict of interest" strategy could be a bluff to try to coerce Greg Sankey to recuse himself from the COI panel. There seems to be social media campaign firing shots across the NCAA's bow that UNC is willing to seek legal redress if any of these "fairness" principles, in its view, are not respected. We'll have to wait and see if UNC is just trying to preemptively influence the proceedings or if, assuming the hammer does comes down on UNC, the institution is willing to challenge the NCAA's infractions process in civil court.
Recently, public personalities like Jay Bilas and John Swofford have questioned the fairness of the NCAA's practice of populating the Committee on Infractions with appointees from within the NCAA member ranks, such as rival conference commissioners. Greg Sankey is the current chair of the Committee on Infractions, and he is also the Commissioner of the Southeastern Athletics Conference (SEC). Perhaps not so incidentally, John Swofford - critic of the NCAA's infractions process - is commissioner of the Atlantic Coast Conference (ACC) in which UNC is a member. Swofford was also the athletics director of UNC in the 1980s & 90s.
The difference is that Bilas and Swofford aren't saying Greg Sankey is breaking the existing NCAA rules. They're saying the rules aren't right and should be changed.
In contrast, the "conflict of interest" complaint we might expect from UNC accuses Sankey of breaking the existing rules by not removing himself from the panel, as if there's should be no question about there being a conflict. Bylaw 19.3.4 places responsibility on the panel member to remove him/herself if a conflict exists. But if what constitutes "a personal, professional or institutional affiliation that may create the appearance of partiality" is unclear or arguable, then it's up to those perceiving possible partiality to speak up.
Not only is Sankey chairman of the COI, he is also assigned as the chief hearing officer of the panel hearing the UNC case. This is within the bounds of NCAA protocol. Neither can any claim of conflict of interest 'rule-breaking' be on account of his position as commissioner of the SEC since that relationship is, by NCAA protocol, proper.
What UNC partisans are saying that it is Sankey's professional relationship with an attorney -- William King of Lightfoot, Franklin & White, LLC -- creates a conflict of interest per Bylaw 19.3.4:
Sankey was named commissioner of the SEC in 2015, and one of his first acts was to hire William King to be the league's Associate Commissioner for Legal Affairs and Compliance. However, UNC had previously hired King in 2011, and King had participated when UNC and NCAA investigators engaged in the earliest inquiries into the AFAM academic scandal and its relationship to UNC athletics back in Aug/Sep 2011. Back then, and into 2012 and 2013, the NCAA had determined that UNC's academic scandal had violated no NCAA rules. Now, so say Sankey's critics, the NCAA has reversed course, and Sankey's hiring of one of UNC's former counsels represents a conflict of interest.
That's an interesting allegation; and, if it was a concern, one has to wonder why UNC didn't lodge a protest prior to the October 2016 procedural hearing. When the hearing date and panel composition was announced, UNC was also given a deadline of October 14th, 2016, to protest any of the COI panel membership. When UNC submitted a request to the COI on October 14th, it made no mention of any objection to Greg Sankey as chief hearing officer.
The October 2016 hearing results were not favorable to UNC and yet, when UNC publicly responded in protest to the COI panel's rejection of its jurisdictional and procedural objections -- and the issuance of a 2nd Amended Notice of Allegation -- there was still no complaint about the COI panel membership.
According to Bylaw 19.3.4, "[o]bjections to the participation of a panel member in a particular case should be raised as soon as recognized but will not be considered unless raised at least one week in advance of the panel's review of the case."
Whether or not that deadline has passed depends on whether or not the COI considers the 2nd hearing on the case to be the anchor point for the bylaw deadline. Panel membership "conflict of interest" is a procedural issue, and the next hearing is supposed to be on the merits. Procedural issues were supposed to have been considered at the October hearing, though perhaps it could be claimed that the agenda for that hearing was limited to issues raised in UNC's response to the Amended Notice of Allegations, and this issue is separate.
Will UNC protest Sankey's panel membership in its response to the allegations or in some separate correspondence after the next panel is scheduled and announced? Will the COI still consider procedural objections raised after the October procedural hearing or was October 14th, 2016 a hard deadline?
Will UNC protest Sankey's panel membership in its response to the allegations or in some separate correspondence after the next panel is scheduled and announced? Will the COI still consider procedural objections raised after the October procedural hearing or was October 14th, 2016 a hard deadline?
Regardless what the COI allows or considers regarding "conflict of interest" objections, if UNC expects such a complaint to have merit in any legal proceedings, it had better get the issue on the record prior to the next hearing; because, per Bylaws and precedent, the Committee on Appeals will not consider the complaint if it does not.
Whether or not the relationship of counselor William King to Sankey, and King's prior relationship with UNC, represents a disqualifying conflict of interest for Sankey per Bylaw 19.3.4 is debatable.
The closest precedent I've found is when former Southeast Missouri State mens' basketball head coach, Scott Edgar, appealed the show-cause sanction against him in the wake 2009 SE Missouri St. infractions case. Edgar appealed on several grounds, but one was that COI panel member Britton Banowsky, then-commissioner of Conference USA (C-USA), had a conflict of interest because one of C-USA member institutions had hired the same counsel who had represented SE Missouri St in the NCAA case.
The Appeals Committee acknowledged the issue, but rejected it not on its merits but on procedural grounds that the objection had not been raised prior to the infractions hearing, per article 19.3.4. There was no ruling on whether such a relationship resulted in a true conflict of interest.
The relationship of William King to the participants in UNC's infractions case is slightly different from that in the Scott Edgar/SE Missouri St/Banowsky situation. In Edgar's case, the attorney for SE Missouri State didn't represent him, but rather his employer. So he could argue that Banowsky, as C-USA commissioner, might be prejudiced and "on the side of" SE Missouri St due to his supposed relationship with the attorney through one of C-USA's members.
If that conflict of interest sounds tenuous in Edgar's case, it's even more so in UNC's, since the same logic would put Sankey "on the side of" UNC by virtue of their supposed prior relationship. But we just don't know since such a conflict of interest situation hasn't been ruled upon previously as far as I've been able to determine. Just because UNC may cite a connection doesn't mean the connection is prejudicial. The "perception" of unfairness isn't simply in the eyes of the aggrieved. It needs to be argued, and as yet it has not. In fact, as mentioned above, UNC hasn't even formally lodged a complaint at all. The only protests so far emanate from a fan site and a pseudonymous fan Twitter account.
If there's to be any merit to the "conflict of interest" issue, UNC is going to have to get it on the table and force the Committee on Infractions to address it. If Sankey disagrees and refuses to step down from the panel, then UNC will have to navigate the appeals process first should the COI hand down sanctions that UNC feels are unfair. It's there that UNC will need to argue the "conflict of interest" charge to the Appeals Committee; but they can't rely on pseudonymous Twitter users or InsideCarolina to get the issue before the committee. To have any hope of a successful civil complaint, UNC will have to show that Committees and staffs didn't abide by their own rules, which means UNC will need to abide by those rules and procedures as well and lodge a formal "conflict of interest" complaint.
