The Questions
1. When did the COI chairman, Greg Sankey, determine that new information was material and would require amending the NOA? What was the "new information" and did it include the 2013 NCAA/AMA internal email chain UNC had discovered?
2. Did Sankey know the contents of the ANOA? If so, when?
3. Did Sankey approve or endorse the ANOA prior to Enforcement issuance? If so, when?
The Rules
 |
| http://www.ncaa.org/sites/default/files/2016-17DICOI_Internal-Operating-Procedures_20170203.pdf |
 |
| http://www.ncaapublications.com/productdownloads/D117.pdf |
The Known, Verifiable Facts
August 10th, 2015 - UNC and Enforcement staff inform COI chair that new information (Boxill emails & soccer recruiting violations) could impact the NOA. [link][link][link]
August 14th, 2015 - UNC updates public regarding discovery and reporting of new information to NCAA enforcement, and delay in response to NOA while information is reviewed. [link]
August 26th, 2015 - COI Chair convenes a procedural call with UNC and Enforcement staff. [link][link]
October 1st, 2015 - UNC (Evard) letter to Enforcement (Duncan) requesting information and interviews from Enforcement and AMA staff. [link]
October 23rd, 2015 - NCAA Deputy General Counsel (Stevenson) response to UNC [link]
October 26th, 2015 - 60 days after the "procedural call with the COI chair, UNC and Enforcement inform COI of need to Amend the NOA.
November 9th, 2015 - UNC (Evrard) letter to NCAA (Stevenson) [link]
December 2nd, 2015 - Phone conference between UNC and NCAA Enforcement, referenced in 12/16 letter [link]
December 16th, 2015 - NCAA Enforcement (Hosty) letter to UNC responding to previous requests (1st of 2 "key" letters UNC wanted on record for procedural hearing) [link]
January 7th, 2016 - UNC Rick Evard letter to Enforcement's Tom Hosty (2nd of 2 "key" letters UNC wanted on record for procedural hearing) [link]
January 8th, 2016 - COI chair convenes conference with UNC and Enforcement to get update on ANOA status/progress. [link]
March 9th, 2016 - COI chair convenes conference with UNC and Enforcement to get update on ANOA status/progress. [link]
April 25th, 2016 - Enforcement issues ANOA. [link]
The four events in red, above, are the only documented instances of COI chairman's involvement in the NOA-ANOA process.
The Reasonable Deductions
Since Enforcement never issued an errata sheet nor submitted amended pages to the existing NOA (per 3-12-3), we can surmise that either
- Both UNC and NCAA Enforcement agreed that the new information reported in August 2015 was material and requested a conference with the chief hearing office (COI chair), or;
- UNC and NCAA Enforcement disagreed, sending the issue to the chief hearing officer (COI chair) to make a determination.
And since the path of an Amended NOA was the outcome rather than errata to the existing NOA, we can deduce that sometime during the 60 days between August 26th, 2015 and October 26th, 2015, the chief hearing officer must have affirmed for UNC and Enforcement that the new information discovered and reported in August was material, requiring an Amended NOA.
During that 60 day period, the process toward a COI infractions hearing was halted pending a decision on the NOA. Consistent with bylaw 19.7.4, Enforcement must have conducted at least one independent conference with UNC to resolve the issue of amending or not amending. There is no documentation of this, but it must have happened, and NCAA protocol does not prescribe COI involvement in that dialogue.
The only information ever indicated as to the original reason for the halting of the process in August 2015 was the new information reported by UNC to Enforcement:
- Boxill's improper academic assistance, and;
- Soccer recruiting violations are material.
These issues would be the material/immaterial determination that the chief hearing officer (COI chair) would have had to make prior to an amending decision.
The evidence UNC had found of internal NCAA communications between Enforcement and AMA discussing bylaw applicability is not material, but procedural. It would not have invoked an amended NOA per 3-12-3. Additionally, there is nothing to document that this information was presented to the chief hearing officer (COI chair) during that 60 day period between August 26th to October 26th, 2015. It is first documented in communications between UNC and NCAA Enforcement, not involving the COI, in the latter weeks of that 60-day period.
Thus there is no basis on known facts or from interpreting NCAA protocol to conclude that the chief hearing officer (COI chair) was aware of or considered that evidence prior to UNC and Enforcement informing him on October 26th, 2015 that an Amended NOA was necessary.
There is nothing prescribed in NCAA operating procedures or bylaws prescribing amending a Notice of Allegations on the basis of a threshold issue such as that UNC raised on issues of "prior determination" and "finality," supported by the discovered NCAA internal emails.
Also, when protesting the hearing officer's denial of its request to have the UNC-Enforcement correspondence added to the October 2016 prehearing record, there is no claim made by UNC that the hearing officer had already been made aware of that correspondence or had been a part of that dialogue.
Revisiting the Questions
What was the point of Enforcement and UNC notifying OCOI of the need to Amend the NOA on October 26th? No information is provided that another conference call with the chief hearing officer was convened as a result of that October 26th notice. There is no rule or protocol that would require or give the CIO or chief hearing officer the option to participate in the amending work between August 26th and October 26th other than having to make a determination on the materiality of whatever it was that would invoke the need to amend the NOA. There is no mention anywhere of a conference with the chief hearing officer in response to that October 26th notice. The only prescribed conferences per bylaws is the 60-day pre-hearing independent conferences between Enforcement and UNC that do not involve the COI.
What bearing did the new "material" information that was reported to Enforcement in August 2015 have on the eventual amended NOA? The reported soccer violations did not make it into the ANOA. The changes to Boxill's allegation were relatively trivial. The significant change in the ANOA was the removal of original Allegation 1 which had nothing to do with the new "material" information. Its rationale, according to UNC, was the procedural issue of NCAA having previously determined, from 2011 to 2013, that the conduct did not violate NCAA bylaws. Where can we deduce that that issue was raised with the COI and got his endorsement prior to issuing the ANOA? Since it was a procedural issue and not a material one, why would the COI have endorsed it?
What happened at the January 8th and March 9th conferences with the CIO chair/chief hearing officer? Were these merely progress reports by Enforcement and UNC, of interest to the COI chair for docket planning and prodding the case toward the hearing stage? Or were Enforcement and UNC explaining the changes to the ANOA and the procedural/jurisdictional rationale for the change to Allegation 1? If so, is there any evidence supporting that speculation? Is there any bylaw/IOP indicating it is appropriate for the chair/chief hearing officer to exert influence or exercise approval authority on the drafting ANOA prior to Enforcement issuance, other than ruling on the materiality of new information?
