NCAA Bylaws 19.5.4 to 19.5.8 prescribe protocols for interviews conducted by NCAA Enforcement staff. One of the "procedural fairness" arguments UNC raised in its response to the Amended Notice of Allegations (ANOA) was that Wainstein's interviews were not conducted consistent with those NCAA bylaw requirements, and therefore statements attributed to individuals from those interviews or conclusions drawn from those interviews should not be used.
After the procedural hearing on October 28th, 2016, the Panel of the Committee on Infractions disagreed.
The rejection of UNC's procedural argument objecting to the inclusion of statements stemming from Wainstein's interviews with Dr. Julius Nyang'oro and Deborah Crowder has been characterized by critics of the COI as being interventionist. InsideCarolina's Greg Barnes deemed it as "lowering the standard of evidence." Neither of these properly characterize the hearing panel's decision.
Ruling on admissibility of evidence for panel consideration is precisely one of the panel's tasks. It can hardly be "intervening" if the panel rules on admissibility. The reason why it is labeled intervening is because it appears UNC had an agreement with the NCAA Enforcement staff that statements Wainstein relates from his interviews of Nyang'oro and Crowder that appear in the Wainstein Report would not be used as evidence in supporting any allegations or provided to the COI hearing panel. Enforcement claimed it did not rely on those interviews to draft the allegations, but disagreed that the Wainstein Report itself could not be a Factual Item (FI) submitted to the panel for its consideration.
UNC sought to either have the whole report ruled inadmissible or to, in effect, redact any statements attributable to Nyang'oro or Crowder from the Report. UNC felt it's agreement with Enforcement should be enforced, reasoning that had it known the panel could potential consider the product of Wainstein's interviews with Nyang'oro or Crowder, it would have chosen to challenge those statements through other means, such as additional interviews potentially rebutting the two.
The Panel, however, ruled that it considered the Wainstein Report admissible, and that it would not attempt to parse it to exclude statements from interviews UNC felt were prejudicial. The Panel acknowledged UNC's concerns, but rejected the motion to dismiss.
That is entirely within the Panel's authority and not at all intervening. The Panel is not beholden to whatever prior deal UNC and Enforcement had, and the issue of an agreement between UNC and Enforcement wasn't even presented to the Panel under the topic of admissibility.
Next, there is the issue of "lowering of the standards of evidence." The rules pertaining to interview protocols refer to interviews conducted by NCAA investigations. By contrast, an interview conducted by a third party, but which results in a public record, is not restricted from consideration because it was not conducted IAW with NCAA protocol.
As well, a hearing before the COI is not a court of law. The standards of evidence are much less stringent and allow for wide latitude and discretion. This is as the NCAA membership prescribes the infractions enforcement process. If it is flawed, improvements must be legislated. Until then, attempting to disparage the appropriate ruling of a panel as "lowering of the standards of evidence" is nothing but an attempt to persuade the uninformed that the Panel acted inappropriately or unfairly, but in reality simply reached a decision that you didn't like.
Recounted below are the relevant excerpts from documents made public that lead up to the COI hearing panel's decision.
1. From UNC's response to the Amended Notice of Allegations, 1 August 2016
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| UNC Response to ANOA |
2. From NCAA Enforcement Written Reply, September 19th, 2016
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| NCAA Reply to UNC Response |
3. UNC to Director of Enforcement, October 17th, 2016
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| UNC Correction to NCAA's Reply |
4. NCAA Bylaws cited regarding interview protocols conducted by NCAA investigators:
5. The Committee on Infractions panel ruling on Wainstein "Cadwalader" Report, November 28th, 2016
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| COI Chief Hearing Officer Panel Decision |
6. NCAA Enforcement Internal Operating Procedures
Not cited by either Enforcement or the COI panel, but I'd argue that the NCAA Bylaws 19.5.4 to 19.5.8 (see above in #4) apply to NCAA investigators and not independent investigators not subject to NCAA bylaws.
Also not cited is NCAA Enforcement's Internal Operating Procedures which outline what kind of information sources/methods are permitted.
The Wainstein Report was chartered by UNC, not the NCAA and it is a public document per 1-1(d). It should not be excluded on the basis of Bylaw 19.5 since those restrictions do not apply to Wainstein's investigators.
7. Statements of Fact
- UNC hired Wainstein. Not an NCAA investigation.
- UNC informed NCAA Enforcement of its hiring of Wainstein.
- UNC instructed Wainstein to share information with NCAA Enforcement if potential NCAA violations uncovered.
- NCAA investigators sought to participate in Wainstein's interviews with Dr. Julius Nyang'oro and Debbie Crowder.
- UNC required that a University representative participate if any interviews in which an NCAA investigator participated.
- Wainstein's independence agreement with UNC precluded UNC representatives from participating in any portion of investigation, including interviews.
- NCAA investigators were thus barred from participating in Wainstein's interview by the combination of Wainstein's agreement with UNC and UNC's demand to participate in any interviews that included an NCAA investigator.
- A communications protocol was set up (May 28th, 2014) between Wainstein/UNC/NCAA to clarify how Wainstein would share information with NCAA and UNC prior to completion of investigation.
- NCAA investigators sought interviews with Nyang'oro and Crowder on their own, apart from Wainstein. Both Nyang'oro and Crowder refused to cooperate. (The brokered agreement by the NC Orange County District Attorney between Crowder/Nyang'oro and UNC applied to Wainstein only and not NCAA cooperation.)
- Wainstein investigation is completed and findings are made public.
- May 2015 NOA and April 2016 ANOA both include Wainstein Report as Factual Item (FI) exhibits.
- A response to the the May 2015 NOA is never completed, but UNC's response to April 2016 ANOA includes a procedural argument objecting to the inclusion of portions of Wainstein Report that rely on interviews of Nyang'oro and Crowder interviews on the grounds that were not conducted in accordance with NCAA interview protocols. UNC claims Enforcement was in agreement not to use statements attributed to Nyang'oro or Crowder.
- Enforcement's reply to UNC's ANOA Response claims ANOA does not rely on those interviews or findings tied to those interviews, but says COI panel should have access to full report.
- Prior to the October 2016 procedural hearing, UNC submits input to COI that includes its objection to portions of the Wainstein Report being considered by the Panel, citing previous agreement with Enforcement. UNC now argues that all Wainstein interviews -- not just Nyang'oro/Crowder's -- are suspect, and that NCAA Enforcement promise not to rely on statements from interviews influenced UNC decision not to challenge interviews.
- UNC also cites Bylaw 19.5.6 regarding interview protocol as reason to estop COI Panel from considering full Wainstein Report.
- After the 10/28 hearing, COI considers UNC's argument, acknowledges its concerns, but rejects UNC's argument to exclude or to parse the WR for consideration at an infractions hearing on the grounds that:
- The Report meets broad admissibility standards for consideration, and;
- Article 19 bylaws do not bar consideration of independent interview from COI consideration, and;
- the Panel will consider whether to rely on portions of the report are relevant on the merits, and;
- the Panel will weigh UNC's concerns about prejudice when it considers information from the Report, and;
- the university did not raise concerns about conclusions based on interviews in which it didn't participate in other independent, non-NCAA reviews.
- UNC is free to disagree with the COI Panel's adjudication of the procedural arguments raised by UNC, but the Panel's rejection of that argument is not, in itself, indicative of the Panel not acting fairly or "lowering the standard of evidence."
- The COI Panel's decision to allow the Wainstein Report to be considered in full at an infractions hearing does not bar UNC from challenging the portions of the Wainstein Report it feels are deficient in its Response to the 2nd Amended NOA or in the infractions hearing itself.
