On December 22nd, 2016, University of
North Carolina's Director of Athletics, Bubba Cunningham, addressed the media, following the University's release of the the NCAA enforcement's second amended Notice of Allegations. The following is a transcript of his opening remarks, annotated with references and commentary:
"Earlier today, or just a few hours ago I think that you have seen that we did release some of the documents that the NCAA has sent to us including the third Notice of Allegations in our case 1.
“As many of you know, we have worked collaboratively with the NCAA enforcement staff for more than two years 2. And we’re not going to speculate on the merits of the case, but I can talk about the process, and we believe that the process has gotten off track and we have serious concerns about that 3.
"Here’s how: in October we participated in a Committee on Infractions hearing about procedural and jurisdictional issues. And to my knowledge, that’s the only time a specific hearing simply on procedural and jurisdictional issues has ever occurred 4. Before that hearing, we submitted two letters that reflected a key part of the dialogue between the university and the enforcement staff 5. That’s important because we felt that the second Notice of Allegations issued in April fairly aligned the facts of our case with the appropriate NCAA bylaws and case precedent 6.
"The committee chair denied the university’s opportunity to include these two letters in the record the panel considered as evidence in the October hearing 7. In the letter we released today, the committee then cited the absence of the very same evidence in the instructions it gave to the enforcement staff to revisit the second Notice of Allegations 8. That means the university was deprived the opportunity to submit evidence in the case record and the committee used the lack of evidence against us 9.
"Our outside counsel has written a letter to the chair of the Infractions Committee raising concerns about the NCAA’s process that has led to this third Notice 10. The university’s letter to the Infractions Committee’s chair said that key evidence previously denied for consideration by the panel must be made part of the case record 11.
"We insist on fair and consistent treatment in this process 12. We’re concerned that the Committee on Infractions and the NCAA staff have not been consistent in how they apply bylaws and follow process in our case 13.
"I strongly encourage you visit the Carolina Commitment Web site for background about this case14. Please take time to read the University's response and accompanying links to the two specific letters which had previously been released and have been reposted on our Web site.15"
Notes:
1 This was the third iteration of the Notice of Allegations in NCAA Case No. 00231
http://carolinacommitment.unc.edu/carolina-comments-on-releases-ncaas-third-notice-of-allegations/. The original NOA was issued in May 2015. In August 2015, the process for that NOA was halted as UNC and the NCAA enforcement staff discussed new information and jurisdictional issues. In April 2016, an Amended Notice of Allegations (ANOA) was issued, removing key allegations from the original. After UNC submitted its response to the ANOA in August 2016, the Committee on Infractions convened a hearing to address procedural/jurisdictional issues still being raised by UNC, and after an October 28th, 2016 hearing before the panel, the Enforcement staff issued another revision, this time restoring the previously dropped allegations with new language.
2 Every official correspondence from UNC has reminded NCAA offices of it's open, transparent and cooperative behavior throughout the investigation.
3 All changes to the Notices of Allegations, to date, have been based on jurisdictional issues. NCAA Enforcement rationale for Amended Notice of Allegations has never been made known to the public, but UNC's belief is that the NCAA's decision was based on jurisdiction and applicability of NCAA bylaws regarding allegation #1 in the original Notice. The decision to revise the Notice yet again, reinserting the impermissible benefits allegation, is based on reversing the earlier jurisdictional decision and was not a merit-based decision related to any new or existing evidence in the case.
4 This NCAA case is unprecedented in many ways. According to the COI's hearing notification letter, there is precedence for holding a procedural issues-only hearing:
Regardless, the lack of precedence for a Committee on Infractions hearing convened for the sole purpose of addressing jurisdictional issues would only be a reflection of the unique and unprecedented nature of the case and of UNC's response to the Amended Notice of Allegations, which continued to raise procedural and jurisdictional issues. Mere lack of precedence or the unusual nature of the proceedings is not an indicator of departure from NCAA bylaws, procedures or protocols.
5 The two pieces of correspondence that are at the crux of UNC's procedural objection are: (1) A December 16th, 2015 letter from NCAA Enforcement to UNC:
https://carolinacommitment.unc.edu/files/2016/12/December-16-2015-letter-from-Tom-Hosty-to-Rick-Evrard.pdf, and; (2) a January 7th, 2016 letter from UNC to NCAA Enforcement:
https://carolinacommitment.unc.edu/files/2016/12/January-7-2016-letter-from-Rick-Evrard-to-Tom-Hosty.pdf. UNC feels these two communication artifacts are essential to explaining the rationale for the changes made in the April 2016 ANOA that were subsequently reversed in the wake of the October 28th, 2016 procedural hearing.
6 Cunningham's claim that the University feels the April 2016 Amended Notice of Allegations "fairly aligned the facts of our case with the appropriate NCAA bylaws and case precedent" is contrary to the arguments presented in UNC's Response to the ANOA. UNC's challenges to jurisdictional issues in that response belie Cunningham's claim, and it was these challenges that led to the 10/28 procedural hearing. Here is UNC's response to the Amended NOA:
http://carolinacommitment.unc.edu/files/2016/08/UNC-Response-to-2016-ANOA.pdf
7 This is the October 18th, 2016 letter from the Managing Director of the Office of the Committee on Infractions, Joel McGormley, to which Cunningham refers, providing notice that UNC's request is denied on procedural grounds:
http://carolinacommitment.unc.edu/files/2016/10/10.18.2016-COI-Response-to-Letter-to-Tom-Hosty.pdf
8 Cunningham refers to this November 28th, 2016 letter from the Committee on Infractions, informing All Parties of the panel's rejection of the University's five jurisdictional issues raised by its response to the ANOA and at the 10/28 procedural. It does not, however, include instruction to the Enforcement staff to revise the NOA. It advises All Parties that "
should any amendments or further actions be required to the ANOA, the parties should inform the panel as soon as possible, but no later than Tuesday, January 3, 2017."
https://carolinacommitment.unc.edu/files/2016/12/November-28-2016-letter-from-Committee-on-Infractions.pdf. The COI Panel did not direct the rewrite of the allegations; it requested the Enforcement staff to review the ANOA:
9 The passage to which Cunningham refers is the statement by the COI in the 11/28/2016 letter referenced in the previous note. In the first full paragraph of pg 3 of that letter, the panel states:
UNC's objection is that the denial of the COI to permit introduction of the correspondence between UNC and the NCAA enforcement staff that predated the first NOA amendment would have given UNC a fair opportunity to address the "underlying reasons for amending the original NOA," at the 10/28 procedural hearing.
10 Rick Evrard of Bond, Schoeneck & King, on behalf of the University, submitted a response to the Committee Chairman, Greg Sankey, objecting to the Committee's decision and the Enforcement department's actions in amending the Notice of Allegations.
https://carolinacommitment.unc.edu/files/2016/12/December-21-2016-letter-from-Rick-Evrard-to-Greg-Sankey.pdf. Evrard does not object to the unprecedented procedural hearing or the latitude with which the COI may consider allegations not proffered by the Enforcement staff. Rather, the objection Evrard makes is to the fairness of not allowing the two communication items to be entered into the record, arguing that failing to do so denied the University of its ability to provide the rationale for the earlier NOA modification.
11 What neither Cunningham in his remarks nor Evrard in the 12/21 letter referenced above have acknowledged is that the COI did provide the University the opportunity to make a supplemental response part of the case record, allowing the University to make its argument, albeit with certain limitations. In its rejection of UNC's request to enter those letters into the record for the procedural hearing, the COI advised UNC:
12 Though various UNC outlets have claimed the COI is violating NCAA rules and procedures in various ways through these unusual actions and decisions, at no point have specific bylaws or operating procedures violated been cited. General notices of "fairness" have been referenced, which could give rise to UNC charging the NCAA is violating Article 2.8.2:
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| NCAA Bylaws |
13 It is completely within the purview of the Committee on Infractions to consider Allegations beyond that presented by the NCAA Enforcement staff. It could do so without requiring an amended Notice of Allegation. Likewise, the COI could have chosen to combine both procedure and merit-based arguments at a single hearing, but opting to segregate them into separate hearings does not violate any procedural protocols. In fact, taking the unusual measure of providing a separate procedural hearing and affording UNC an updated Notice of Allegations provides the University even greater due process and fairness, contrary to the University's objections. What the University is claiming is inconsistency in the disparate actions and decisions of the Enforcement staff from May 2015 to December 2016 compared with those of the Committee on Infractions since August 2016. UNC is desiring the COI to be bound by earlier decisions negotiated by UNC with the Enforcement staff, calling its failure to do "inconsistent."
14 UNC's portal for NCAA updates:
http://carolinacommitment.unc.edu/updates/
15 These letters and many other links provided by UNC can be found at:
http://carolinacommitment.unc.edu/carolina-comments-on-releases-ncaas-third-notice-of-allegations/
