Tuesday, January 31, 2017

UNC Puts Public Records Requests to Its Advantage


The public has been granted a rare glimpse into some of the interim dialogue in the pending NCAA infractions case involving the University of North Carolina at Chapel Hill (UNC-CH). Some illuminating emails between NCAA Enforcement, the Committee on Infractions and UNC's legal defense team of Bond, Schoeneck & King (BSK) have given the public the opportunity to see the arguments UNC is making as it defends itself against allegations of rules violations.

UNC has boasted of its "openness and transparency" over the last several years as it has addressed, and sought to resolve, past academic misconduct issues and the resultant NCAA infractions case. Though constrained by NCAA bylaw 19.01.3 regarding public disclosures about the case pending a final decision, North Carolina Public Records Act, G.S. §132-1 supersedes the internal rules of a voluntary membership organization like the NCAA; and since UNC-CH is a public institution and is subject to state open records legislation, it must release certain created documents in response to requests (with certain limitations).

To its credit, UNC-CH has responded, and in some cases anticipated, some of the public requests by creating Web-based resources for such requests. Its public records request page allows private citizens and media to see existing (and find instructions for submitting) requests for public records disclosure. The CarolinaCommitment portal is an outlet where UNC has provided access to many documents and information throughout most of the scandal coverage, particularly those related to reviews and investigations such as the current NCAA enforcement case.

UNC has been understandably strategic in how, or even if, it shares information, whether voluntarily or in response to public requests for disclosure. There has undoubtedly been a public relations element to the timing and choice of release of information, which is evidenced in this latest phase of the NCAA Infractions Case.

Last Summer (2016), after UNC responded to the NCAA's Amended Notice of Allegations, the case followed an unusual course before taking an unexpected turn in December. The infractions process clock was reset, yet again, when a 2nd Amended Notice of Allegations was presented to UNC.

The following is a chronological summary of the communications between UNC and NCAA during this time frame, and when those documents were made public, with public records request information noted where applicable. My critique follows the chronology.

Chronology of Communications and When Released


Monday, August 1st

  • UNC Responds to ANOA


 Tuesday, August 2nd



 Monday, September 19th

  • NCAA Enforcement responds to UNC Response
  • NCAA Enforcement issues Statement of Case


 Monday, September 26th

  • OCOI notifies All parties of scheduling and agenda for a 10/28 hearing 


 Friday, September 30th

CarolinaCommitment.unc.edu


 Friday-Wednesday, October 14th - 19th

  • UNC, OCOI and Enforcement exchange series of communications re. procedural issues for the 10/28 hearing


 Tuesday, October 25th



 Friday, October 28th

  • COI procedural hearing (minutes not made public)


 Monday, November 28th

  • COI Chairman letter announces hearing panel's decisions to All Parties


 Tuesday, December 13th

  • NCAA Enforcement notifies UNC of AANOA 


 Wednesday, December 21st

  • UNC responds to COI chair on November 28th letter and December 13 2nd Amended NOA


 Thursday, December 22nd

Critique


While UNC is to be commended for being responsive to these public requests, it strikes me that it is also very judicious in how and when it chooses to respond.

For instance, the release (and posting on its CarolinaCommitment update page) of many documents on October 25th came three days before the scheduled COI hearing, and included the contentious documents that the COI had ruled were not going to be entered into evidence before the panel. Perhaps the unusual alacrity of fulfilling the requests had no strategic public relations intent and was merely the priority UNC should give to requests from media outlets. The public requests did provide UNC the necessary cover to make its case public, before the hearing panel convened, overriding the usual cloak of secrecy required by NCAA rule 19.01.3.

Likewise, the flood of information the University released on December 22nd was also managed to present UNC's rebuttal in public view at the same time the public learned of the hearing panels rejection of UNC's jurisdictional/procedural arguments and release of the third Notice of Allegations. Again, UNC cited relief from rule 19.01.3 due to public records requests. Perhaps UNC was, for once, grateful for Dan Kane's persistence in seeking records from the University.

NCAA Enforcement and the Committee on Infractions are not returning fire in the court of public opinion. The NCAA is not subject to public disclosure laws and must abide by NCAA rules and protocols regarding public disclosure. As a result, we've seen a real campaign, both official and unofficial, to present UNC's complaints to the public about NCAA's "breaking protocol" and "overreaching" conduct, but none from NCAA sources in rebuttal. 

There then are the unofficial contributions to this campaign from which the University can claim insulation.

Thursday, December 22nd, 2016
Thursday, January 19th, 2017

Wednesday, January 25th, 2017

And since we're on the subject of public release requests, here are few that UNC has not yet fulfilled (and one that it had denied):

On December 3rd, 2015, News & Observer investigative reporter Dan Kane requested transcripts of interviews conducted by UNC and NCAA in August/September 2011. UNC denied the request, citing personnel and privacy laws. Kane's story ran in October 2016. 

On April 26th, 2016, News & Observer investigative report Dan Kane requested
  1. "All correspondence between UNC-Chapel Hill, its attorneys, consultants and other agents on its behalf and the NCAA from May 20, 2015, to April 26, 2016, relating to the first Notice of Allegations in the academic-athletic scandal and the second Notice of Allegations."
  2. "All bills related to legal and public relations work involving the scandal since the last bills were provided."

A private  individual named Erv Thompson requested, on April 28th, 2016:
 "... copy of all communications of any nature between UNC and/or its agents and the NCAA from April 1, 2016 to April 11, 2016, inclusive. This includes but is not be limited to letters, emails, faxes, social media and electronic media, as well as notes and recordings or transcripts of telephone conversations. For the purpose of this request, “agents” refers to any individual or entity acting on behalf of the university. It also includes communications between UNC and any legal firm hired or retained by UNC and the NCAA, excluding of course any documents that meet the criteria for lawyer/client privilege."

On October 8th, 2016, News & Observer investigative reporter Dan Kane requested billing records related to the (about) 10 student-athletes who'd been provided attorney services in conjunction with the Special Bureau of Investigations (SBI) inquiry from 2012-2013. Also requested are claims in the UNC response to the ANOA that "NCAA enforcement division has agreed not to include information that came from [former employee name] and [former employee name]’s interviews with Ken Wainstein...”

A private individual named Anna Truax requested, on August 24th, 2016:
 "...all communications between the NCAA and UNC Compliance personnel, the [position title], and the [position title] and her staff related to the NCAA’s investigation of UNC-CH, including records related to either the original NOA or the amended NOA. The requested records are limited to those occurring between May 20, 2015 and April 25, 2016. The requested records include, but are not limited to, both written and electronically transmitted records, as well as notes and/or transcriptions of telephone and in-person discussions." 


Some of the correspondence released by UNC on October 25th and December 22nd, 2016 are responsive to these requests, but the requests remain open, presumably because the requested documentation is more extensive than what the University has chosen to release.


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Monday, January 30, 2017

Recap of UNC's NCAA Case

The current NCAA major infractions case against the University of North Carolina at Chapel Hill can be confusing to decipher. For clarity, I thought I'd try, without editorial, to recount the key events that have transpired since NCAA Enforcement opened up the case in the Summer of 2014. 

But I also felt it was important, contextually, to include one important bit of NCAA/UNC dialogue that transpired nine months prior to the start of the NCAA investigation since it has become a principle element of UNC's response to the allegations. So, I'll start there.

In September 2013, University of North Carolina at Chapel Hill (UNC) Senior Associate Director for Athletics (NCAA Compliance) Vince Ille contacts Associate Director for NCAA Enforcement Mike Zonder, who had also been a lead NCAA investigator in the previous major infractions case at UNC. Ille asked Zonder:


Zonder quickly responds, "You are correct in your assessment regarding the situation involving the AFAM department."

Five months later, UNC President and UNC-Chapel Hill Chancellor Carol Folt have hired Kenneth Wainstein and the firm of Cadwalader, Wickersham & Taft LLP to conduct an independent inquiry into the academic misconduct that had previously been uncovered within the African and African-American (AFAM) studies department.

Wainstein was chartered by UNC:
"… to ask the tough questions, follow the facts wherever they lead, and get the job done. I have quickly grown to admire the extent to which the Carolina community has encouraged me to look within the University, to identify challenges, and to take strong actions to address them. I believe these efforts will accelerate the University’s capacity to achieve the meaningful academic and athletic reform that our entire community expects." [link]
February 2014, UNC's Associate AD for Compliance, Vince Ille, notifies the NCAA of the independent investigation.

Ille has follow-up  communications with NCAA's Mike Zonder in March and April.

At some point in late April, it is rumored that Wainstein investigation team and NCAA Enforcement (Kathy Sulentic?) have been in contact without UNC's knowledge. UNC objects to NCAA conducting any interviews without UNC representatives in attendance, but Wainstein's charter prevents UNC's attendance.  The apparent result is an interview protocol statement issued in May 2014 from Wainstein to UNC setting the guidelines for NCAA involvement in the independent investigation.

In June 2014, with the Wainstein protocol agreement set, NCAA Enforcement notifies UNC of its intention to revisit the issue, based on the possibility of "new information" available.

Between July 2014 and January 2015, NCAA investigators conduct additional interviews, but neither they nor UNC's representatives are granted access to interviews with Dr. Julius Nyang'oro or Deborah Crowder.  In October 2014, both UNC and NCAA investigators receive the results of Wainstein's investigation, along with the accompanying Exhibits and Supplemental documents.

In May 2015, VP of NCAA Enforcement, Jon Duncan, issues a Notice of Allegations (NOA) that keys not on academic misconduct but Article 16 "extra benefits" provided by academic counselors/advisors to athletes related to academic misconduct by university faculty and staff.

During the Summer 2015, as UNC is preparing its response to the NOA, its legal team visits NCAA Headquarters in Indianapolis to review records, including those from the previous Infractions Case M357. During this visit, they discover internal email correspondence from March 2013 between the NCAA Enforcement staff and the staff of the NCAA's Academic and Membership Affairs (AMA) about the determination of whether or not NCAA bylaws had been violated according to then-known information about UNC's academic issues. UNC believes this to be representative of NCAA's rationale for the September 2013 communication between Zonder and Ille, referenced above.

(Note: between the AMA input of March 2013 and Zonder's affirmation in September 2013, UNC's accrediting body, SACSCOC, concluded a special review of UNC's academic issues: May/June 2013. No information is available to ascertain if this event factored into the position conveyed by Zonder in September.)

Back in the 2015 time frame:  On August 10th, 2015, UNC and NCAA Enforcement inform the Committee on Infractions chair, Greg Sankey, that the investigation needed to be reopened to review additional information that could impact the NOA. On August 14th 2015, on the eve UNC's response to the NOA is due, UNC reports new information it had discovered in its own records. These issues were unrelated to the internal NCAA (AMA) 2013 email document discovery UNC had made over the summer, but it halts the existing infractions process in order to determine if a revised NOA was necessary.

A "procedural status call" is convened by the COI Chair on August 26th, 2015 to ensure the parties are continuing to move the case toward resolution.

On October 1st, 2015, during this interim period, UNC contacts NCAA Enforcement's VP Jon Duncan, requesting that UNC be allowed to interview 8 individuals from the AMA and Enforcement staffs who had been involved in that 2013 NCAA internal dialogue it had discovered over the prior Summer while in Indianapolis. UNC also asks for any and all documentation from the NCAA involving the 2013 determination. The individuals of interest to UNC are:
  • Mike Zonder: lead Enforcement investigator on the earlier UNC case
  • Stephanie Hannah: Director of NCAA Enforcement during earlier UNC case
  • Kevin Lennon: VP AMA staff supervisor (now VP Division I Governance)
  • Kris Richardson: Director, AMA
  • Dave Schnase: Managing Director of the AMA (now VP AMA)
  • Steve Mallonee: AMA staff (now Managing Director of AMA)
  • Jon Duncan: VP of NCAA Enforcement
  • Kathy Sulentic: lead Enforcement investigator on current UNC case, since April 2014
In a series of emails and phone conversations between October to December 2015, UNC and NCAA officials debate the relevance of the prior determination made during and after the previous NCAA case, but prior to the Wainstein investigation. NCAA General Counsel Naima Stevenson and Enforcement staff Director Tom Hosty separately deny or ignore UNC's requests for information or interviews related to that 2013 determination.

In the midst of this ongoing interchange between UNC, NCAA General Counsel and NCAA Enforcement, the Enforcement staff, in accordance with Bylaw 19.7.4, notifies the COI chair of the possible need to amend the NOA. The COI Chair conducts a conference call with the parties October 26th, 2015 at which the Chair must rule on whether or not the reasons for changes are material. 

 Controversy: 
What was presented to the COI for consideration? The August "additional information" or the contention between UNC and Enforcement staff over procedural issues relating to the prior 2013 determination? If the former, that would be "material" requiring an amendment. If the latter, then that would be "immaterial" and the Staff would be directed to "the amended pages of the notice of allegations, without change to the case processing timelines." 

 Since the COI Chair agreed to the amendment, the ruling must have been changes were "material" and based on the "new information" that was the basis for the August halt in the case track.

The next 5 months after the October 26th, 2015 conference call with the determination to Amended the original NOA, UNC and NCAA Enforcement negotiate the changes.

On January 7th, 2016, UNC's lead attorney in the NCAA case sends a letter to NCAA Director of Enforcement Tom Hosty detailing UNC's objections to the "extra benefits" allegations (Allegation 1(a) in the May 2015 NOA) and again presses for access to information or individuals having knowledge of the previous case and the pre-Wainstein determination that no allegations were forthcoming.

Nothing else about these negotiations are known to the public. We do know that on January 8th, 2016, and again on March 9th, 2016, UNC and Enforcement updated the COI on status updates on the Amended NOA's progress. 

 Controversy: the nature of these status updates is questioned. Was the COI chair simply given progress reports or was he briefed on the nature and rationale for the changes that would eventually be issued as an Amended? Did the Chair approve or "sign off" on the Amendement before it was issued?

On April 25th, 2016, NCAA Enforcement issues an Amended Notice of Allegations (ANOA) with the "Extra Benefits" allegation against academic counselors removed. In replacement is a Failure to Monitor allegation with much of the same language as previously found in the deleted allegation.

The allegation against former faculty and senior counselor Jan Boxill remains, but only cites improper assistance on student work and not any services related to the AFAM academic scandal. The "new information" provided the previous August and October as the reason for the need to amend the allegations is found in the Boxill impermissible academic assistance allegation.

Lack of Institutional Control allegation remains with alteration of language.

Time period for the allegations is changed and reference to athletics programs and ASPSA are deleted.

In August 2016, UNC submits its response to the ANOA, which includes objections to the remaining allegations, mainly on threshold issues of jurisdiction and NCAA procedural grounds.

On September 19th, 2016, per NCAA infractions process, NCAA Enforcement submits its response to UNC's response, contesting UNC's jurisdictional and procedural objections; and also submits the Statement of the Case as prescribed by the infractions process.

During the week between September 19th and September 26th, the Enforcement staff and UNC hold an Article 19.7.4 pre-hearing conference to clarify the issues that will be discussed and materials to be presented at the COI hearing, still to be scheduled. 

September 26th, 2016, Managing Director of the Office of Committee on Infractions (OCOI), Joel McGormley, informs all parties (UNC, Boxill, Nyang'oro, Crowder and Enforcement staff) of the scheduling of a Committee on Infractions (COI) hearing for October 28th, 2016.

Controversy:
The OCOI gave all parties 32-days advance notice of the hearing. NCAA bylaws require all pre-hearing materials for the record to be submitted 30-days prior. Exceptions may be granted by the chief hearing officer based on a "good cause" judgment. UNC will later argue that the 2 days given from notice to 30-day window closure should be considered "good cause" for waiving the rule.

Normally, all issues -- threshold and substance -- are heard at the infractions hearing; but OCOI explains that due to the complexities of the case, the COI deems the October hearing agenda will only cover the jurisdiction/procedural issues, reserving arguments on the merits for a later hearing. 

October 14th, 2016:  deadline to object to the composition of the COI hearing panel.

On October 14th, 2016, two weeks before the panel hearing, UNC requests relief from the 30-day rule based on "good cause," requesting the chief hearing officer, Greg Sankey (who is also Chairman of the COI) allow introduction of six email articles for the hearing panel to consider. UNC wishes to demonstrate what UNC/Enforcement dialogue that provided rationale for the changes made from the original NOA to the ANOA.

On October 17th, 2016, UNC informs NCAA Enforcement (Tom Hosty) of its objections to statements made in the Enforcement staff's September reply and also the Statement of the Case (both referenced above), in order to give Enforcement the opportunity to correct them before the October 28th hearing. 

On the same day, OCOI Managing Director Joel McGormley informs UNC of the Chief Hearing Officer (Greg Sankey) decision to reject the "good cause" argument and deny UNC's request to waive the 30-day rule and allow introduction of the email correspondence in the pre-hearing record. Instead, UNC is granted the opportunity to present the information prior to the hearing in a 10-page summary, due by October 19th. 

On October 19th, 2016 UNC submits its "targeted and synthesized submission"as requested by chief hearing officer Greg Sankey for the October 28th hearing, in lieu of the 6 email documents it had previously sought to be entered into the hearing record. Sent to OCIO Managing Director Joel McGormley, it summarized UNC's six issues on the matter of "Finality of Decisions" that UNC claims should prevent NCAA from reopening issues previously decided:
  1. That the enforcement staff had sufficient relevant and material information in 2011 to determine that there were no NCAA jurisdictional issues.
  2. The AMA had all relevant facts in 2013 when it rendered a decision, and the Wainstein report (Cadwalader) didn't introduce anything new relevant to that decision.
  3. That though many documents were produced for Wainstein, nothing had prevented NCAA investigators from accessing those documents during the prior case, thus the information wasn't "new."
  4. A specific callout to an email chain referenced in figure 1 below on which Enforcement's case relies, but that was available to investigators in 2011.
  5. That Enforcement had consistently characterized the case as "reopening" and only belatedly began asserting that the present case as new, different or a separate matter. 
Figure 1
COI Panel, Case No. 00231

On October 28th, 2016 the Committee on Infractions hearing panel convenes to consider only the jurisdictional and procedural issues of the case. Greg Sankey, COI Chairman, presides as the panel's chief hearing officer.

On November 28th, 2016, The OCOI informs all parties of its ruling that the NCAA does have jurisdiction in the matters alleged and that UNC's arguments of "finality" do not apply. The COI also asserts that contrary to the Enforcement staff's presumption, the panel can consider allegations of violations involving impermissible academic assistance and academic misconduct if the facts support them. In so clarifying, the panel offers the Enforcement staff the opportunity to re-draft the Allegations. Key passages from the hearing panel's notice:

COI on Jurisdiction
COI on Impermissible Academic Assistance
COI Requests Enforcement Review NOA

On December 13, 2016, Having accepted the COI hearing panel's request to review the Allegations, NCAA Enforcement issues a third version of the Notice of Allegation; or, officially, a 2nd Amendment to the Notice of Allegations. It restores the original Extra Benefits allegation that had previously been removed, and the Failure to Monitor allegation is deleted. Article 10 Misconduct is added to the Extra Benefits allegation.

And on December 22nd, 2016,  UNC responds.


Update: the above was last updated in February 2017. Since then, the case has progressed and much has transpired, including a late-entry interview of key party Deborah Crowder by the NCAA, a challenge to Greg Sankey as chief hearing officer by Crowder, UNC's response to the 2nd Amended NOA, NCAA Enforcement's response to UNC, and the setting of the hearing for August 16/17, 2017. 

 As time permits, the details of the 2017 case track will be added.
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Sunday, January 29, 2017

Bradley Bethel's Take: Before & After UNC

Bradley Bethel with Beth Bridger in "Unverified"
Bradley Bethel is a proponent of the argument that the UNC scandal was not an "athletics-driven" scandal. He felt strongly enough about this that, in 2015, he left his job as a learning specialist for the University of North Carolina at Chapel Hill to complete a documentary film related to the issue. Though he has commented very little recently on the pending NCAA case, I have no doubt his position remains the same.

I recently came across a link to a March 2011 article posted at InsideHigherEd.com that I hadn't remembered bookmarking. It was an editorial by Bethel responding to University of Oklahoma professor and former president of the Drake Group, Gerald Gurney, who had previously written an article, calling on the NCAA to toughen initial eligibility academic standards for freshmen student-athletes.

In The Wrong Approach on NCAA Rules, Bethel disagreed with Gurney on the issue of admissions standards for student-athletes. It was written by Bethel in early 2011 when he was a learrning specialist for Ohio State University and still six months away from starting his work for the University of North Carolina at Chapel Hill.

Though disagreeing on just one possible solution Gurney was proposing, Bethel did agree with Gurney on some points:
"In college athletics, eligibility is often emphasized over student development. Consequently, coaches and support staff may be tempted to engage in academic misconduct to keep underprepared athletes eligible."

And later in the article, Bethel admits:
"When athletes are dictated which classes to take and when, as happens often, they become increasingly disengaged from academics, learning becomes all the more difficult, especially for the most underprepared. If there is a systemic problem of academic misconduct, it is not because too many underprepared athletes are admitted to college. It is because our institutions give these athletes the impression that classes are no more than hoops to jump through — the easier the jump, the better."
At the time when Gurney and Bethel wrote those commentaries, the "academic scandal" at UNC was thought to be limited to issues about the misconduct of a tutor to football players. The public had yet to know anything about "paper classes" or "AFAM." Mary Willingham hadn't yet become notorious as a "whistleblower" in the UNC academic scandal story, nor had she yet become persona non grata within the Academic Support Program for Student Athletes (ASPSA) at UNC.

In fact, at that point in early 2011, Dr. Julius Nyang'oro was still inclined to offer lecture classes delivered as ersatz "independent studies." The last "paper class," which UNC would later identify in several ever-expanding reviews of the African and African-American (AFAM) studies department, had yet to be offered. That would come later that Summer 2011 when 19 football players would be enrolled in the "irregular" course AFAM 280: Blacks in North Carolina.

Six months after his InsideHigherEd commentary, Bethel had left Ohio State University and joined the academic advising staff for student-athletes at the University of North Carolina at Chapel Hill. When Bethel arrived for his first academic term at UNC, the university had just begun an internal investigation of Dr. Nyang'oro and the AFAM curriculum, having been alerted by media inquiries into "irregularities" in some prior AFAM course offerings in which athletes had been enrolled.

Nearly two years later, Bethel emailed incoming Chancellor, Carol Folt, writing “...many student-athletes who were specially admitted whose academic preparedness is so low they cannot succeed here.”

I've always been curious by what measure Bethel had determined any student-athletes were not able to succeed at UNC. During his two years there, I don't believe UNC had suffered any academic casualties; at least not in the revenue sports, which had encompassed the great majority of "specially admitted" students. Even before Bethel's time, UNC had had remarkable success keeping those "specially admitted" student-athletes in good academic standing and progressing toward degrees. What was it that had prompted Bethel to communicate his concerns to the new Chancellor?

When the 2013 email from Bethel to Folt became public, Bethel blogged about how he had been advised not to use the terminology of "underprepared" but rather “students with special talents,” which he recognized was but a euphemism. But he also explained that his concerns at the time were ameliorated by UNC-CH Provost James W. Dean, who had assured him that UNC had addressed the issue, reducing the numer of special talent policy admissions that required faculty review. Though Bethel tirelessly defends the athletics department from having any culbability in the scandal, he has stated that recruiting and requesting too many "faculty review" cases for admissions contributed to the problem, though he also reminded us all that the responsibility ultimately rested with the faculty members who reviewed and recommended those admission decisions.


His stance while a UNC learning specialist stands in rather stark contrast to his 2011 stance when he was an Ohio State learning specialist rebutting Gerald Gurney. In 2011, he defended NCAA policies allowing admission of academically challenged student-athletes, but admitted that the temptation to "engage in academic misconduct to keep underprepared athletes eligible" was real and something against which the institution must guade.

By 2014, he was rationalizing his satisfaction with UNC's more restrictive admissions policies of academically challenged student-athletes, while at the same time enaging in a campaign to refute charges that ASPSA counselors had been "eligibility brokers" or had been complicit in the scandal for the very sort of "systematic problem" he conceded could be tempting if classes are treated as "no more than hoops to jump through."

Maybe there's some nuance I'm missing, but Bethel in early 2011 sounds a lot like Mary Willingham in 2014 (albeit, without Willingham's sound bite hyperbole). Maybe Bethel's problem with Willingham was he saw her protests of UNC as "disparaging" student-athletes and it was that that put him on tilt, leading him to see trees rather than forest.

But it was Willingham, not Bethel, who had argued that if the University was going to admit these academically challenged student-athletes, it ought to be obligated not to treat education as, as Bethel called it, jumping through hoops.

It was Bethel, not Willingham, who was satisfied by the University's tightened admissions policies and it is Bethel who defends the conduct of "his colleagues" who exploited the University's academic failures, turning classes into "hoops to jump through."

What a difference those two years in Chapel Hill, from 2012 to 2014, must have made.





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Wednesday, January 25, 2017

UNC's "No New Information" Defense

"We worked with the NCAA on the investigation, so we’ve been working with them for four or five months already. This is another big piece of information that we will continue to work with them on. But based on the information that we have and had is that, if there was something that was inappropriate in preceding years and you had student athletes that were ineligible then you vacate those wins. But there’s nothing new in this report that is significantly different or different at all from what we knew prior to this report relative to academic eligibility."


No New Information


UNC has been arguing that, as far as NCAA bylaws are concerned, the findings of the Wainstein Report didn't result in any "new information" that wasn't already known to NCAA investigators when the academic misconduct was first uncovered in August-September 2011. From that early point in the UNC academic scandal, and up until the Wainstein investigation, NCAA enforcement staff had been affirming to UNC that the discovered misconduct had violated no NCAA rules. 

In the dialogue between the NCAA and UNC over allegations issued since the Wainstein Report, NCAA Enforcement has been saying that Wainstein's investigation did, in fact, offer substantially new information; enough so to warrant issuance of a new set of bylaw infraction allegations. UNC's defense team begs to differ.

Though UNC is working to paint the picture otherwise, UNC's administration has acknowledged the difference Wainstein made by its words and by its actions. NCAA Enforcement has cited those actions in response to UNC's objections, but UNC has tried to explain the distinctions between what guided the institution's response and the NCAA's jurisdiction. 

I agree with Enforcement Director Tom Hosty. UNC acknowledged and treated Wainstein as having revealed new information, some of which is pertinent to NCAA bylaws infractions.

Words

For one, the Wainstein Report was sufficient to move UNC's accreditation agency, Commission on Colleges of the Southern Association of Colleges and Schools (SACSCOC) to reopen its case and ultimately serve the institution with probationary notice; a first for a tier-one university. SACS had conducted visits and had access to UNC-endorsed reviews (Hartlyn-Andrews and Martin Report). Yet SACS cleared UNC. 

SACS was stern after Wainstein, noting that the curricular "irregularities" outlined in the Wainstein Report had constituted "academic fraud" and that the academic support program for athletes had played a role in the systemic failure to "control athletics."  It was the "new information" of Wainstein that led SACS to place UNC on probation.

UNC has tried to reconcile its conciliatory response to SACS with its contention of issues before the NCAA. I'll save my challenge to that segregation attempt for another time, but the NCAA has refused to accept UNC arguments in that regard as well.

Actions

For this article, I'd like to focus on the fact that UNC made several personnel employment decisions on the basis of Wainstein's findings that were not deemed warranted prior to his investigation. Employee terminations included four individuals who had worked for the Athletics Support Staff for Student-Athletes (ASPSA). But when NCAA Director of Enforcement, Tom Hosty, noted this, UNC's legal team of Bond, Schoeneck & King (BSK) responded:

January 7th, 2016: Rick Evrard to Tom Hosty


Rick Evrard doesn't say in that 1/7/2016 letter footnote how it is inaccurate to draw such a conclusion.  I had reached the same conclusion as NCAA Enforcement Director Tom Hosty had.

This Evrard-Hosty dialogue occurred in December 2015 to January 2016, and the two were referring to the May 2015 Notice of Allegations (NOA). It is relevant today because the third version of the NOA has restored the pertinent allegations of the first, resurrecting the debate.

I want to look at this and test Mr. Evrard's claim that it is incorrect to deduce a nexus between UNC's firing of academic counselors to athletes and the conduct of those counselors asserted in the NCAA allegations.


Counselor Conduct Cited in Notice of Allegations No. 1


The original Notice of Allegation and the 2nd Amended NOA (third version) assert in Allegation 1 that ASPSA counselors had leveraged relationships with AFAM faculty/staff to obtain/provide special arrangements for student-athletes.

One example the NOA gives of such conduct was counselors "recommending grades."

http://carolinacommitment.unc.edu/files/2015/06/NCAA-NOA.pdf


UNC's Rationale for Personnel Action Post-Wainstein

It's difficult to dispute or validate Evrard's claim since the University of North Carolina has not (to my knowledge) ever provided the public with a rationale for the terminations of the three at-will counselors: Beth Bridger, Jaimie Lee and Brent Blanton. 

But the termination letter for Jan Boxill was made public; and it plainly states the termination action was based on "heretofore unknown detail" and evidence of Boxill's misconduct, which specifically includes one of the conduct elements outlined in Allegation 1. The termination letter language is actually more severe, citing "requesting grades" vice "recommending grades" as NCAA Allegation 1 states:

https://drive.google.com/open?id=0B24WwCUVnfYtVXlVVmpBQWhjdnM

Assessment of the UNC/NCAA Enforcement's Dispute Over "Now New Information"

Clearly, for Boxill at least, termination was not merely for violations of University policy that were separate and distinct from conduct NCAA cited in the NOA. The University's rationale may not mirror, verbatim, the articulation of conduct in Allegation, but it strains belief to deny that the institution's employment actions were NOT "based on new information that the institution learned about the conduct asserted in Allegation 1(a)" as Rick Evrard claims.

Of the four terminated who were academic counselors to athletes (Boxill, Bridger, Blanton and Lee), we only have the expressed reasons for UNC's actions in Boxill's case. The termination letters for the other three were not required to explain reasons for termination since they were at-will employees. However, the university is supposed to provide a public rationale after those employees appeal processes have been completed.

I'm unaware if UNC ever did release the rationale in any of the termination decisions of Bridger, Blanton or Lee. If Rick Evrard has this information, the University should make that public (and I would expect it to be dated prior to the communications between UNC and NCAA Enforcement cited above).

Boxill's case, in any regard, disputes Evrard's rebuttal of Hosty.


Epilogue and Current Status

NCAA Enforcement staff had noted the discrepancy between UNC's defense claim of "no new information" and the SACS probation/employee termination rationale during discussions and debate over the first version of the Notice of Allegations.

The NCAA staff did appear to concede to UNC's late-2015 arguments when it removed the "special arrangements" language and the whole of Allegation 1(a) when issuing the April 25th, 2016 Amended Notice of Allegations. But after the guidance and opportunity afforded by the Committee on Infractions in November 2016, the Enforcement staff reversed that change and the allegation was restored in the December 13th, 2nd Amended Notice of Allegations.

UNC has objected to this reversal on multiple grounds, but must now re-engage the "no new information" argument that it thought it had already decisively won. The complaint has now been added to the litany of alleged Enforcement staff and Committee on Infractions protocol violations.

Since the NCAA's current case hinges on the "new information" that came from Wainstein's investigation, we can expect this and other assaults on the Wainstein Report to, again, be at the core of the University's retort (and that of partisan media outlets looking to support UNC's "narrative.")


Note: Portions of this article have been incorporated from an earlier blog posted on January 19th, 2017. 
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Tuesday, January 24, 2017

Did Mark Emmert Break NCAA Public Disclosure Rule?


NCAA President Mark Emmert

During an interview session with the Associated Press on October 27th, 2014, NCAA President Mark Emmert was asked about the Wainstein Report that the University of North Carolina at Chapel Hill had released days before.

Mark Emmert on October 27th, 2014


Greg Barnes uses that as a lead in for his January 19th, 2017 commentary, "NCAA Has History of Protocol Breach Prior to UNC"

InsideCarolina Special Report


This is the NCAA's bylaw on public disclosure:

NCAA Manual 2013-2014


On December 22nd, 2016, UNC Athletics Director issued a comment after public release of the 2nd Amended Notice of Allegation by the NCAA Enforcement staff:

Bubba Cunningham Comments after 2nd Amended Notice of Allegations Release



I posted a question on Twitter, which elicited a response: 

Twitter


Three hours later, the author of the IC article answered a question in the members' forum in the same way:

InsideCarolina Message Board


Greg Barnes and @HeelTruths seem to be working from the same script. Or maybe Greg Barnes IS @HeelTruths?




There's nothing in Article 19.01.3 that distinguishes "procedural issues" from "contents of the case" in terms of "public disclosures about a pending case." 


In addition, Cunningham's December 22nd, 2016 comments did go beyond "process" when he opined:
 "We felt that the second notice of allegations issued in April fairly aligned the facts of our case with appropriate NCAA bylaws and case precedent."


Nevertheless, let's look at Cunningham's "public disclosure" comments that were contemporaneous with the alleged offending Emmert remarks:

http://www.newsobserver.com/sports/college/acc/unc/unc-now/article10110026.html
Whereas Emmert was "cementing a narrative" about the gravity of the the Wainstein Report findings, Cunningham was 'cementing a counter-narrative" that the situation wasn't so bad and that the Report's findings added "nothing new...relative to academic eligibility."

The supposed bylaw "procedural" distinction is missing here. If Emmert violated 19.01.3, then so too did Cunningham with his remarks in the wake of Wainstein.



Then there's this, six months after the Wainstein Report:

www.syracuse.com

I don't recall Emmert's "wheelhouse" commentary about the UNC case eliciting any objections over narratives being cemented or "public disclosure" violations of NCAA bylaws.

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Thursday, January 19, 2017

One Example of Personnel Action Based on Wainstein's "New Information"


The content originally published at this URL has been incorporated into a newer post.

To see the original article, it has been archived here.
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Thursday, January 12, 2017

Theory about NCAA-Wainstein April 2014

A little over a week ago, there was a bit of a frenzy when an anonymous source claimed he was "breaking" news of the NCAA Enforcement staff's investigative team having colluded with UNC's independent investigator Kenneth Wainstein. The charge made through the Twitter-sphere was that in order to gain access to interviews with Dr. Julius Nyang'orom, NCAA investigators, without first informing UNC officials, sought to coattail onto the Wainstein investigation. Supposedly, so the anti-NCAA rhetoric goes, such alleged actions are "unethical" and an example of "collusion."

The alleged revelations played into public cynicism of NCAA infractions enforcement conduct and investigation practices, and they leveraged unofficial complaints from some pro-UNC athletics advocates about the reliability and true agenda of Kenneth Wainstein. But the progenitor of these allegations offered no substantiating evidence, choosing instead to surround the claims with bits of information that were already known in order to make it appear he had access to new, "breaking" information. UNC defender gobbled it up with a spoon.

In the two years since the Wainstein Report was released, the University has never officially questioned or rejected any of its findings. There have been no complaints raised by university officials at any time about the integrity or reliability of the Wainstein investigation. UNC, in fact, took harsh personnel actions against a few based on the Wainstein Report conclusions.

Similarly, UNC's defense against NCAA allegations have not once (yet) raised complaints about Wainstein's findings. The only objections have been procedural; "technicalities" that Wainstein's methods were not in accordance with NCAA rules regarding interviews. But UNC has stopped short of refuting the material aspects of its own report.

On the other hand, notable voices have unofficially lodged complaints about Wainstein's findings. After resigning his position as a learning specialist for athletes at UNC to pursue the documentary project "Unverified," Bradley Bethel has regularly criticized Wainstein as well as UNC for having bowed to media pressure and for having relied on Wainstein's findings as basis for firing his former colleagues on the academic support staff. Bethel and his film gave voice to others who had been interviewed by Wainstein and who have maintained that his representation of the unrecorded interviews were distorted, presumably to reach a predetermined conclusion.

There's also been a theme echoed by Tar Heel fans and fostered by insiders with connections to athletics that the Wainstein investigation was foisted on UNC-Chapel Hill by the North Carolina Board of Governors and then-UNC system president Tom Ross. Chapel Hill Chancellor Carol Folt has never suggested any such thing, and no official statement has ever alluded to the fact that Chapel Hill leadership wasn't fully on board with the decision to hire Wainstein and the Cadwalader firm. You only see the concern about the hiring of Wainstein expressed in some emails found in the mounds of publicly released document from notable alumni to the athletics director Bubba Cunningham.

It's unclear whose or what agenda Wainstein may have been predisposed to, but presumably it would be anti-Chapel Hill sentiment among the North Carolina Board of Governors or among others in the 17-school UNC system. Some have felt low-level employees supporting the athletics department were scapegoats to allow UNC to shield higher-level academic leadership (deans), hoping to satisfy the media wolves at the door and finally "move forward."

But until this one anonymous individual began claiming it on social media, there'd been no hint or suggestion that the NCAA, at some point early into the UNC-chartered independent investigation, had attempted to unethically leverage the Wainstein proceedings. Did the enforcement staff contact Wainstein prior to letting UNC know, and did UNC "catch" the attempted collusion and force the NCAA and Wainstein go through UNC for any information exchange? All we have to date is one person saying so and a lot of people willing to believe him.

While we wait for something of substance to back up this "breaking news,"  all we can do is speculate. My theory is that this anonymous source is a UNC partisan and that he (or she) has gotten a hold of a tidbit of information, but upon which he has heaped a hyperbolic allegation of unethical actions by both NCAA and Wainstein.


What Prompted Hiring of Wainstein?

To frame my theory, I need to recap what led up to the Wainstein investigation. I'm not "breaking" any news here. All of this information is already in the public domain and doesn't rely on any secret, insider knowledge. But it warrants review because the scandal has been so enduring and winding, even those of us immersed in the details can forget the sequence of events.

The origins of the decision to hire an independent investigator go back to December 2013 when Dr. Julius Nyang'oro was indicted on fraud charges after an 18-month investigation by the North Carolina Special Bureau of Investigations (SBI).

The charges stemmed from discovery that Nyang'oro had accepted two payments for having taught a summer session AFAM class at UNC-CH in 2011 that he hadn't really taught. That AFAM class was the last of the notorious "paper classes" at the heart of the academic scandal at UNC. It was a class enrolled entirely of football players, listed as a lecture class but Nyang'oro operated it in an independent study format: though there was no mid-term meeting with faculty and no rigor required for the single, end of term paper.

Around the time the Hartlyn-Andrews report was released in May 2012, Orange County District Attorney Jim Woodall became involved and the North Carolina Special Bureau of Investigations (SBI) began its investigation into Dr. Nyang'oro and possible fraud. During the next 18 months, Nyang'oro retired and refused to cooperate with any further inquiries. This stonewalling included requests for interviews during the 2012 review by former NC governor James Martin. (Nyang'oro's former assistant who'd retired in 2009 also refused to cooperate with either review.)

By the end of 2013, only the SBI investigation was still ongoing. The Martin Report has verified the findings of Hartlyn-Andrews, and was viewed by the University to be as definitive as it could be without the cooperation of Nyang'oro. The accreditation agency SACS had concluded it's review. The NCAA considered the matter closed as far as its bylaws were concerned.

The academic quality of the class had no bearing on the SBI's investigation. Likewise, the SBI was unconcerned with the "scheme's" origins and motives. The only thing concerning District Attorney Jim Woodall was criminal fraud: acceptance of public payment for services not rendered.

In December 2013, Dr. Nyang'oro was indicted by a grand jury on fraud charges. Facing criminal trial, it was supposedly Nyang'oro's legal team that raised the idea and proffered a deal, saying that Nyang'oro would cooperate with UNC to explain how and why the academic malfeasance happened in return for dismissal of criminal charges. Whether or not Woodall, seeking a way to resolve the matter out of court, was the actual author of the idea, who knows? But whether it was Nyang'oro's lawyers' idea or Woodall, it was Woodall who brokered the idea with UNC-Chapel Hill through the UNC system leadershp.

 It was UNC system president Tom Ross who, in conjunction with new UNC-CH chancellor Carol Folt, accepted the offer brokered by DA Woodall and, after a search, selected Kenneth Wainstein to conduct an independent examination of the AFAM department's "irregularities." Unbounded by time frame, but apparently bounded in scope to the AFAM department, Wainstein would gain access to Nyang'oro as well as Crowder, who had also agreed to cooperate for the first time, in return for a cessation in SBI inquiries.

Wainstein's charter was to investigate without intrusion or influence from school or school system personnel. He was to have unfettered access and full cooperation from UNC employees and students. In February 2014, UNC's associate athletics director for compliance, Vince Ille, informed NCAA enforcement of this new investigation, though like everyone else, he was to be blind to Wainstein's progress or activities. From a compliance perspective, this could be a concern because it is paramount that member institutions inform the NCAA of information that could indicate violation of NCAA bylaws.


NCAA/Wainstein Collusion?

We know that between February and May 2014, Wainstein's team had begun its investigation, and Crowder and Nyang'oro had both been contacted. We also know that on May 28th, 2014, Wainstein informed UNC that his team was aware of possible NCAA interest in the investigation, and Wainstein that at that point suggested measures as to how to share his information with the NCAA without violating the terms of his charter with UNC. And within a week of that letter, NCAA enforcement filed notice with UNC informing them of the intent to reopen a case in light of "new information" coming to light. The "new information," of course, was the testimonies of Julius Nyang'oro and Deborah Crowder.

The new, unsubstantiated allegation now being alleged is that communication between Wainstein and NCAA enforcement occurred before these letters were communicated. Supposedly, sometime in April, NCAA investigators either communicated or met with the Wainstein's team without UNC's knowledge. The claim continues that UNC discovered this, objected to it and it is that which compelled the subsequent letters, setting the stage for how Wainstein, UNC and NCAA would coordinate on information prior to the release of the final report.

UNC's compliance efforts were firm in wanting to make sure that UNC, not Wainstein, was the conduit for reporting information to the NCAA that might be indicative of NCAA infractions. But UNC had prescripted Wainstein to conduct his investigation without UNC oversight or monitoring. So that meant that UNC would not want NCAA investigators meddling in Wainstein's investigation, gleaning any information that UNC could not vet first. It makes complete and total sense, then, that if NCAA had sought contact with Wainstein prior to May 28th, 2014, UNC would want to obstruct that information flow.

It's entirely feasible that this claimed pre-5/28 NCAA/Wainstein communication did take place. To call it "collusion" or "unethical" is unfounded, but it's a reasonable possibility that it happened, particularly since Senior Associate Athletics Director for Compliance, Vince Ille, had given NCAA Enforcement Associate Director Mike Zonder a heads up on UNC's Wainstein investigation: in late February and again in early April.  And since UNC had created a firewall between itself and Wainstein on information exchange, UNC may not have been privy to any dialogue between the NCAA and Wainstein during that time frame.

The real question isn't really whether or not this pre-5/28 meeting occurred. It's whether or not it was improper for either Wainstein or the NCAA to engage without informing UNC first.

It's key to understand that UNC felt strongly that the NCAA had already determined that the academic matters were not NCAA's concern, and in UNC's view, the Wainstein investigation was dealing with matters that shouldn't have been pertinent to NCAA's jurisdiction. UNC, like any NCAA-member institution, is justifiable in being extremely cautious and, though wishing to be cooperative and collaborative, would want to be in control of how NCAA learns about possible infractions. NCAA processes do not often favor the institution when the institution is not the one reporting the information. Even though Wainstein was hired by the institution, UNC representatives understandably would want to report the results vice have any interim information reported without their vetting it first and being the ones to deliver it. At the very least, they would understandably want to have a representative participate in whatever meetings the NCAA and Wainstein were involved in. That's entirely prudent on their part. The "firewall" between UNC and Wainstein would make that problematic.

But, lacking any supporting information whatsoever of an alleged April NCAA/Wainstein meeting, I am unable to see an impropriety on the part of NCAA enforcement if it were to have contacted Wainstein directly. After all, Wainstein was supposed to be operating independently. And there was no analog in Wainstein's relationship with UNC to the misconduct of NCAA investigators leveraging legal proceedings in the infamous Miami-Fl or Penn State cases. The terms and conditions of Wainstein speaking or not speaking independently with NCAA investigators was likely not specified. And had contact occurred, and UNC learned of it, I can see them raising an objection and wanting to clarify protocols, but not charging that either the NCAA nor Wainstein had acted unethically.


Lack of Substance

In the 2+ years since Wainstein's investigation concluded, there has not been a single complaint from UNC or its legal team about tampering of Wainstein by the NCAA. UNC has never disavowed or sought to undermine any of Wainstein's findings. UNC's defense to the allegations in the NCAA case has outlined numerous jurisdictional and procedural issues, but none of them have even hinted at unethical actions by NCAA investigators or collusion with Wainstein.

Barring more information coming to light, my conclusion is that a UNC fan heard something through the grapevine about UNC having stepped in after learning that NCAA investigators had reached out to Wainstein. And this was either conveyed to him as a story of malfeasance and corrupt agendas, or he extrapolated that himself. And believing he can help UNC athletics against the NCAA as a self-proclaimed "solo army," is trying to leverage anti-NCAA sentiment by aligning this exaggerated outrage with other NCAA missteps such as Miami-FL and Penn State.


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