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| Rick Evrard (for UNC) Explains to COI Chairman Greg Sankey How NOA Became ANOA |
So, it wasn't the "new information" UNC reported in August 2015 that provided the reason for needing to amend the Notice of Allegations (NOA)? What UNC's attorney Rick Evrard is trying to explain to the Committee on Infractions (COI) chief hearing officer is that it was that the original "NOA did not square with the evidence of the case, the bylaws and secondary and major case precedent."
Really?
New "material" information would be a proper rationale for amending a NOA. What Evrard is describing is a procedural basis for the change, which is not a viable reason for amending as prescribed by NCAA protocols.
What, the heck, really happened between August 2015 when the process stalled and April 2016 when the ANOA was issued?
Three iterations of a Notice of Allegations in an NCAA infractions case is, I believe, "unprecedented."
I wrote about that recently in "The Curious Case of the 3 NOA's," but in that earlier blog post I didn't assess UNC's claim as to why the first Notice of Allegations (NOA) was amended or what went into that process. Despite UNC's assertion to the contrary, there is no consensus among the parties involved about why the ANOA was shaped the way it was.
The first NOA was issued on May 20th, 2015. UNC had 90 days to submit its response before the matter would be scheduled for a hearing before a panel of the Committee on Infractions (COI). But late in that 90-day period, UNC reported new information to NCAA enforcement that, at the time, was thought could have an impact on the NOA. While sifting through millions of documents (email, attachments) for release in response to public records requests, UNC said it had found some additional pieces of evidence that could impact the NOA's allegation #2 that charged faculty member and counselor Jan Boxill with improper academic assistance. It had also found some evidence of possible violation of recruiting rules by soccer staff.
This turn of events put the case track on hold as the parties had to determine if the new information was material and whether or not it would impact the existing set of allegations. UNC anticipated at the time that this review of new information could take up to 60 days, at which point the case would either proceed with the hearing stage using the existing NOA:
… or the NOA would require amending, taking the case back to the start of the charging phase:
The Committee on Infractions chairman held a procedural call with UNC, Jan Boxill and Enforcement staff reps on August 26th, 2015. The agenda for this conference is unknown, but deducing from the description later given, and from Internal Operating Procedure protocols and NCAA Article 19 bylaws, this was likely when UNC and Enforcement would have explained the nature of this new information and the need for a delay in the proceedings to review. It's also possible the parties presented the COI chair with the new evidence that had been discovered so that he could make a determination on whether the information was of a material nature or not (per Committee on Infractions Internal Operating Procedure 3-12-3). But nothing has been made public that would let us know for sure, and given that the information was still being reviewed by both UNC and Enforcement, it might've been premature at that point to ask for a COI determination at that early point. But who knows?
What we do know is that 60 days later, on October 26th, 2015, the Enforcement staff notified the Committee chairman that, indeed, the allegations would need amending. Why? Was it this "new information" reported in August? Or was it because UNC and Enforcement were wrestling over whether or not the existing allegations "fairly aligned" with the facts of the case? If it was the latter, was this presented to the COI chairman for a ruling on whether or not it was "material?"
For six months, between October 2015 and April 2016, UNC and Enforcement hammered out the changes. According to UNC's Evrard, "the University and NCAA enforcement staff worked over several weeks to align the allegations with the facts found during the investigation, the bylaws and precedent." But what the substance of that "work" was debate between UNC and Enforcement over procedural and jurisdiction, not material, issues.
The only involvement the COI chair, by NCAA protocol, would have in this re-investigation and re-charging process would be receipt of progress reports and in prodding the parties to bring matters to resolution so that the case could get back on track. [For an explanation on that, see this article.] Surely the chairman would not have approved or endorsed an amended NOA that was based on a procedural vice material change. THAT would be contrary to protocol.
But we would later learn that there was another issue other than the one involving the "new information" UNC had reported in August. During the summer of 2015, while it was preparing its response to the original NOA, UNC's defense team traveled to NCAA Enforcement staff's office in Indianapolis to search the case records. It's then they uncovered an email chain between Enforcement and the Academic & Membership Affairs (AMA) staffs from 2013 discussing UNC and whether or not details of the academic scandal evidenced violation of NCAA rules. If this was included among the reasons for the halt to the hearing process in August 2015, that fact has never been revealed. We do know, thanks to UNC's public release of documents a year later (last October), that UNC raised that internal email communication as an issue with Enforcement about midway through that 60-day period when the hearing process was on hold. This NCAA internal email UNC had found would ultimately buttress UNC's objections to allegations in the original NOA, saying NCAA officials had previously determined that what transpired at UNC was not in NCAA's jurisdiction.
This issue of jurisdiction and "finality of decisions" became a bone of connection between UNC and Enforcement, as evidenced by the back-and-forth correspondence between NCAA staffers and UNC's attorney Rick Evrard between October 1st, 2015 and January 7th, 2016. Amending the allegations wasn't hung up over the new, material information from the previous August. UNC and NCAA Enforcement were wrangling over a threshold issue of jurisdiction of what was being charged in Allegation 1a. Specifically, UNC was arguing that the allegations of Bylaw 16.11.2.1 violations by academic support staff had previously been determined NOT to be violation, based on information that was previously known and not substantially changed by the discoveries made in the Wainstein Report.
Enforcement disagreed, and the two parties went back and forth over the course of three months. The last documented word (as far as we know) was a detailed breakdown of UNC's argument by Rick Evrard on January 7th, 2016. Nearly four months later, the amended Notice of Allegation was released and, indeed, the language and charges in the original Allegation 1a were gone. Instead, Enforcement has added a Failure to Monitor allegation. Anyone analyzing the ANOA could recognize this set of allegations was weaker, even though the charge of Lack of Institutional Control remained and the Failure to Monitor had been tacked on.
At the time of the ANOA's issuance and public release by UNC, the public wasn't yet privy to the dialogue in which UNC and NCAA had engaged over the previous 9 months. All we knew was that UNC had reported a couple of rather minor pieces of new information the previous August and it had taken an oddly long time for the ANOA to be released. If anything, the amended NOA had been expected to be more harsh, not less. Something else must have influenced how the allegations were impacted.
That something else, of course, was the disagreement UNC and NCAA had over the binding character and nature of the NCAA enforcement and AMA staff's previous 2011-2013 determinations that athletic counselors' conduct had not violated NCAA rules.
UNC has since claimed that the ANOA was the result of concessions to UNC's argument that Enforcement's previous determination was correct and should still stand. Realizing that the changes that resulted in the ANOA was likely to be a key point of the October 28th, 2016 procedural hearing before the COI panel, UNC sought to get those correspondence documents from the previous year introduced to the record so that the Panel could know the rationale for the changes.
The Enforcement staff has disagreed with UNC's explanation for the changes, though it hasn't explained very well how or why it chose to amended NOA as it did. We just don't know what the negotiations were after Evrard's January 7th, 2016, letter. If UNC agreed that the ANOA was correct, it sure didn't say that when it responded 90 days later.
My assessment at the time, after the ANOA was released, and before hearing the explanation UNC would later try to present to the COI, was that that the ANOA was, indeed, odd and made little sense if based on the previous claims of "new information" having been found. The ANOA as articulated seemed fatally flawed with the Failure to Monitor and Lack of Institutional Control allegations lacking the underlying specific charges that should be necessary to serve as foundations for such institutional charges. Cutting out the impermissible benefits charges against the academic counselors left nothing on which to justify either of the LOIC or FtM. It was as if FtM was tossed in to substantiate LOIC, which was rather circular. It seemed like, maybe, UNC and Enforcement had worked out a weak compromise, almost like a "plea bargain" and UNC would cop to the weakened NOA and absorb sanctions that were palatable.
That was proved wrong when UNC made a vigorous challenge to the ANOA in its Response to the allegations in August 2016. Now, with UNC's written response submitted, all thought there'd be no more "new information" or further delay. Finally, almost exactly a year later, the case was back on track for a hearing before a panel of the Committee on Infractions. And if we read the Enforcement staff's response to the UNC Response, and UNC's rebuttal to that, it's clear UNC and Enforcement still weren't in agreement on the main jurisdiction issue that supposedly had driven the ANOA changes.
So the question remains: what was the rationale for amending the NOA? This is the question the hearing panel had for both UNC and Enforcement last October. UNC's attempt at an explanation contradicts the original reason that was given for why an amended was necessary.
UNC has raised a giant stink over the chief hearing officer (who is also the COI chairman) "preventing" UNC from being able to make its case for why the ANOA changes were made and why they were appropriate. But UNC can't speak for Enforcement, and Enforcement disputes UNC's claim. Enforcement doesn't do a very good job of explaining it's version, but it rejected UNC's version of events.
Besides, by protocol, the reason UNC has given for the changes that resulted in the ANOA were procedural and not material, and so should not have resulted in an amended NOA. For that matter, even amending the amended NOA was over procedural and not material issues, and even that process was questionable.
It's a mess, but who really knows why? It's not the COI's fault. Neither the panel nor the chair are involved in the drafting of allegations. That's the job of the Enforcement staff. The COI panel isn't even bound by the allegations. If evidence is available to charge violations not in the allegations, the COI can add just as well as it can dismiss charges.
The tale of the NOA changes is a strange one indeed. UNC has tried to craft a "narrative" of Enforcement not applying the rules correctly and the COI intervening beyond it's proper boundaries. UNC is painting itself as a victim, and by all accounts is mapping a strategy to take the NCAA to court.
