The "Finality" argument is one of five threshold issues the University of North Carolina at Chapel Hill (UNC) raised in it's Response to the Amended Notice of Allegations last August. By "threshold," they mean issues regarding standing or entry to the hearing process. (What we lay people might call "technicalities.") Issues about following of proper procedure or protocol, or questions of jurisdiction, are threshold issues. The five threshold issues UNC had raised were the focus of the Committee on Infractions (CIO) hearing convened on October 28th, 2016, leading off with its argument of "Finality."
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NCAA Bylaw 19.8.3 stipulates that any Committee on Infractions hearing panel decision that survives an appeal is "final, binding and conclusive" It's kind of like a double-jeopardy standard. Bylaw 19.8.2 allows for some limited exceptions, but such exceptions are handled through a separate review process of the previous case rather than processing of a new enforcement effort.
UNC's argument in invoking "finality" is that during the course of the previous infractions case (Public Infractions Report March 2012), the same institutional conduct that is being evidenced and alleged before the current panel had already been reviewed and determined not to have violated NCAA bylaws during the previous case. That decision, says UNC, ought to be binding and estop the current hearing Panel from reviewing or considering determinations already made in the prior case.
The difficulty UNC has with this claim (and which the current COI hearing Panel noted) is that Bylaw 19.8.3 pertains to finality of decisions of the Committee on Infractions hearing panel. But the previous determination that the conduct in question did not violate NCAA bylaws was made by the Enforcement staff that didn't amend the Notice of Allegations in that case and didn't forward the evidence to the COI that might have have allowed the Panel to determine on its own whether or not the conduct violated NCAA rules.
It is for this reason, mainly, that the current COI hearing Panel rejected this threshold argument and allow for consideration of the allegations on their merits.
Related Threshold Issues
The actual jurisdictional issue of whether or not institutional employee behavior violated NCAA bylaws is related, but separate. The 2011 COI hearing Panel never had to address whether or not the institution's staff employee behavior was an NCAA concern. If it had, then the Finality argument might have merit.
But there's another contested threshold issue with the potential of undermining any merit of the applicability of Bylaw 19.8.2 even if the previous COI hearing panel had considered it. That issue is whether or not any new information of a material nature had came to light after closure of the previous infractions case. If new information had been uncovered that the earlier investigation didn't have access to or that could have bearing on the jurisdiction question, any subsequent Panel could rule on the jurisdictional and substantial issues of that evidence.
Aspects Adding to Confusion
The matter can be convoluted because ALL of the conduct being assessed by the NCAA occurred prior to Fall 2011, which is before closure of the previous case. It's just that discovery of some of it (much of it) has come out gradually since August 2011, culminating with the 2014 Wainstein and NCAA investigations.
To add to the confusion, there is documentary and testimonial evidence cited in the current case that WAS available to the prior NCAA Enforcement investigators/staff who were investigating and charging in that earlier case. It was known information in 2011, but was not presented by Enforcement to the hearing panel that convened in October 2011, and so was not a factor in the COI's March 2012 report. But, says the current Enforcement staff, the additional context provided by discovery from the Wainstein investigation warrants inclusion of this prior information. UNC, of course, contests this; but even if its "no new information" challenge were to be successful -- which it wasn't since the hearing Panel rejected it too -- that wouldn't salvage the Finality argument.
Also confusing is that in order to assess the merits of this procedural meta-issue, one can't avoid having to examine the evidence that is supporting the alleged infraction. But there's a difference between examining the evidence to discern the merits of the allegations and examining evidence for procedural/jurisdictional determination. It's probably akin to legal pre-trial rulings before the bench on admissibility of evidence that does not involve determination of guilt or innocence. Though not a court of law, the analogy to the Committee on Infractions process illustrates how the Panel can rule on admissibility without implying a ruling on the merits. The latter hasn't happened yet in UNC's case.
Conclusion
I feel that the October 2016 hearing panel decision to reject the 19.8.3 Finality objection was correct, if for no other reason than the jurisdiction issue never factored into the decision of the October 2011 Panel ruling. The Enforcement had made the determination on jurisdiction and chose not to amend the allegations and not to forward the evidence it had at the time to the hearing. Thus there is no basis to invoke Bylaw 19.8.2.
