The fan site broke the unexpected news about the NCAA issuing a 2nd amended Notice of Allegations,and within hours had three companion articles posted:
- UNC AD Bubba Cunningham to NCAA: "Follow the Bylaws" by Greg Barnes
- NCAA COI Chair Greg Sankey's Intervention Into UNC Case by Greg Barnes
- The NCAA’s Protocol Problem with UNC Investigation by Greg Barnes
Excerpts from Barnes' article are blue, italicized blockquotes, with my comments following.
Committee of Infractions chairman and SEC Commissioner Greg Sankey’s unprecedented entry into the NCAA enforcement and hearing process resulted in a third notice of allegations for the University of North Carolina within a 20-month window - without the introduction of new evidence.
Greg Sankey is the chairman of the Committee on Infractions. He is also the chief hearing officer for the COI panel assigned to the UNC case no. 00231. I don't know what Greg Barnes means by "unprecedented entry into the NCAA enforcement and hearing process," but as I try to remind people, something being "unprecedented" doesn't imply it is a breach of protocol, rules or operating procedures.
The issuance of a third Notice of Allegations -- a 2nd Amendment to the Notice of Allegations -- was, according to the VP of NCAA Enforcement Jonathan Duncan, the result of the "opportunity" afforded by the COI panel, which the Enforcement staff accepted and subsequently "elected to prepare a second amended notice of allegations."
The absence of the "introduction of new evidence," as Barnes puts it, is irrelevant since the rationale to amend again was based on procedural/jurisdictional issues, and not material issues that would require "new evidence." UNC believed these procedural/jurisdictional issues relating to earlier NOA changes had already been addressed and resolved in previous dialogue between UNC and the NCAA Enforcement staff.
On Sept. 26, UNC learned of a unique hearing scheduled by the Committee on Infractions panel for Oct. 28 intended to address the institution’s procedural arguments with the NCAA’s amended notice of allegations, which was issued in April. On Oct. 14, UNC made a request to Sankey, the COI’s chief hearing officer, to supplement the record to explain its position on the procedural and jurisdictional claims in question.
The Office of the Committee on Infractions did notify all parties in a September 26th, 2016 letter of a procedural issues hearing to be convened on 28 October, 2016. COI hearings normally consider procedural as well as material issues at the same hearing, but given the complexities of the case and the challenges UNC raised in its response to the Amended Notice of Allegations, the chief hearing officer, Greg Sankey and the assigned panel chose to address the procedural and jurisdictional issues separately. This was a unique event, as Barnes notes, but as I said above, that does not define it as a breach of protocol. UNC's legal team did not object to the purpose of the hearing, either before or since the October 28th panel date (at least according to documents UNC has released to date). Athletics Director Bubba Cunningham and many UNC apologists have pointedly questioned the unusual nature of that hearing, but officially, UNC hasn't lodged that complaint with the NCAA.
The only objection officially made was the panel's denial of UNC's request to have six articles of correspondence included as supplements to the record for the October 28th hearing.
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| Source: http://carolinacommitment.unc.edu/files/2016/10/10.14.2016-BSK-Letter-to-Greg-Sankey-with-6-attachments.pdf |
Three days after receiving UNC’s request to supplement the record, according to correspondence released by the school in October in a public records request, Sankey denied the documents inclusion on the basis that the institution had not met the NCAA’s good cause standard, which is a required threshold if materials to be considered by the hearing panel are not submitted at least 30 days prior to the hearing. UNC received notice of the hearing 32 days prior.This paragraph is entirely correct. Joel McGormley, managing director for the Office of the Committee on Infractions, relayed the chief hearing officer's (Sankey's) denial of UNC's request on the basis that it failed to meet the good cause standard of the NCAA bylaws to waive the 30-days-prior requirement for submission of materials to be considered at the hearing. UNC did receive the notice of the hearing 32 days prior to the convening date, leaving it 2 days to beat the 30-day rules limitation on submissions. UNC, though, didn't just barely miss that window. UNC submitted its request to add items to the record 18 days after being notified; 14 days prior to the scheduled hearing.
UNC athletic director Bubba Cunningham said during a teleconference call on Thursday the Committee on Infractions had not provided the institution with a reason for the denial.On Thursday, Cunningham "spoke with reporters." His address was reported by Greg Barnes; but whether or not this is the same teleconference to which Barnes refers is unclear. A transcript of Cunningham's opening remarks can be found here with my notes/comments.
In response to a question (from Barnes?) about whether or not the COI had given him a reason for not accepting the letters into evidence, Cunningham answered, "“No. I think that would be a question not for me. I don’t have a reason. I can only speculate and I probably shouldn’t do that. We weren’t the only ones that made a request for additional documentation to be included, but we were denied.” That's a slightly different answer from what Barnes reports Cunningham said in his teleconference call.
(It might also be deduced that Jan Boxill must have also requested something be included at the hearing but, like UNC, was denied.)
Sankey did approve of UNC submitting a 10-page “targeted and synthesized submission” by Oct. 19, two days after denying its initial submission. Once again, Sankey denied the modified submission based on the fact it did not establish good cause, according to an email correspondence UNC received on Oct. 18.Barnes has this wrong. According to the letters UNC made public, the actual sequence of communications between October 14th and 19th was:
- October 14th: UNC submits request to supplement the record with six email docs
- October 17th: Sankey denies request, but gives UNC opportunity to submit "targeted and synthesized submission" by October 19th, subject to four limitations
- October 17th: UNC submits letter to Tom Hosty, Director of Enforcement, (copying members of the hearing panel) asking the Enforcement staff to correct misstatements in its September 19th response, prior to the 10/28 hearing. This is not the modified submission allowed by Sankey in its letter (above) issued that same day.
- October 18th: The OCOI informs UNCs that it may include any new, material information from its 10/17 letter to Hosty in the modified submission due 10/19. Sankey did not reject this letter. It was not the (a) modified submission, (b) not submitted to the COI panel, and (c) did not address the same issue as the 10/14 denied request.
- October 19th: UNC submits its "targeted and synthesized submission" which never addresses the issue raised in it's October 14th letter. There is no record of Sankey rejecting this modified submission.
In addition to that denial, the letter also indicated that while the institution copied members of the hearing panel on its submission, the Office of the Committee on Infractions only provided the documents to Sankey and not the panel, in accordance with Bylaw 19.7.6, which states the committee chair has authority to resolve procedural hearings that arise prior to an infractions hearing.Presumably, the letter to which Barnes refers is the October 18th letter from OCOI Managing Director Joel McGormley. Barnes incorrectly states that this was a rejection of UNC's "targeted and synthesized submission," which by that date had not yet been received by Sankey or the hearing panel members. The document provided to Sankey (and not the panel) was UNC's letter to the Enforcement directory, Tom Hosty, which was not the supplemental response allowed. And it was Enforcement, not the OCOI, that provided it to Sankey, eliciting the October 18th letter.
Bylaw 19.7.6 is:
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| NCAA Division I Manual |
The documents UNC sought to include in the record were two letters of correspondence with the NCAA’s enforcement staff detailing the 11-month investigative process that ultimately led to the NCAA removing its charge of impermissible benefits related to special arrangements for student-athletes with AFAM faculty and staff in the amended notice of allegations delivered in April 2016. It served to provide context as to how the NOA eventually became the ANOA.
Of the three letters UNC submitted between October 14th and October 19th prior to the 10/28 hearing, only one (the October 14th letter) sought to introduce these letters of correspondence into the record. In that letter, UNC asked to have six items placed into the record. Rick Evrard would later, in his December 21st, 2016 letter to COI chair Greg Sankey, highlight two of them as being key to the particular issue regarding the rationale for the change from the original NOA: this one and this one.
The other two October submissions by UNC did not address any of these letters or the communications context that Evrard claims were key to understanding the issue of the NOA changes.
Without documentation available to detail the enforcement staff’s reasoning for pulling the impermissible benefits charge (in which a failure to adhere to NCAA Bylaws was a primary factor), the panel expressed concern in a Nov. 28 letter to UNC “about the parties’ expressed rationale for removing former Allegation No. 1.” The panel later confirmed its position by citing the “limited procedural record” on file.UNC was given an opportunity to present that contextual detail for what it believed was the enforcement staff's reasoning for pulling the impermissible benefits charge from the original NOA in its October 19th "targeted and synthesized submission." For some reason, UNC failed to do so in that supplemental submission.
A possible explanation for that failure may be found in Rick Evrard's December 21st. Referring to the chief hearing officer's denial of UNC's October 14th request:
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| Excerpt https://carolinacommitment.unc.edu/files/2016/12/December-21-2016-letter-from-Rick-Evrard-to-Greg-Sankey.pdf |
"The committee chair denied the university’s opportunity to include these two letters in the record the panel would consider as evidence in the October hearing," Cunningham said. "In the letter we released [on Thursday], 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. 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."Cunningham is reiterating Evrard's flawed but publicly-convincing complaint. The reality is that
- UNC did not address this in the synthesized response the COI allowed.
- The COI was going to address the issue anyway, whether it was in the NOA or not
- Enforcement was not compelled to reissue the NOA, assuming it agreed with the rationale UNC claims for the changes from the original NOA
- UNC will have the same opportunity to make the argument it thought it had won with Enforcement in its response to the new amended NOA, and introduce those key emails into the record then.
Without seeing the supplemental documents that UNC had provided Sankey, the hearing panel elected to intervene in an unprecedented manner by requesting the enforcement staff to review “whether the potential violations in this case are alleged in a fashion to best decide this case,” and if any changes are necessary, to issue a second amended Notice of Allegations. The enforcement staff followed the COI’s orders and delivered a third notice of allegations to UNC, which the school released on Thursday.Barnes, here, reiterates an error in interpretation of UNC's correspondence between October 14th and 19th. The documents provided Sankey that the hearing panel didn't see wasn't the supplemental submission Sankey had asked for by the 19th. It was a separate communication UNC has submitted to Enforcement, not Sankey, and it was that which was rejected, again with the offer to include it in the "synthesized" submission.
Contrary to the depiction made by UNC officials, the Enforcement staff wasn't under orders to deliver a third notice of allegations. Evrard makes this incorrect assumption in the December 12th letter:
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| Excerpt https://carolinacommitment.unc.edu/files/2016/12/December-21-2016-letter-from-Rick-Evrard-to-Greg-Sankey.pdf |
NCAA Enforcement is not subservient to the Office of the Committee on Infractions. The COI hearing panel cannot direct the Enforcement staff.
Additionally, the COI is not bound by the Notice of Allegations issued by Enforcement. As stated in the COI's November 28th letter, "The panel intends to explore those issues whether under the current or another amended notice." This is within the prerogative of the COI, per NCAA Bylaw 19.7.7.4:
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| NCAA Division I Manual |
Issuing an amended Notice of Allegation that reinserts those issues actually benefits, rather than hurts, UNC's opportunity to defend itself. Allegations of violations are not presumed to be violations. UNC understandably wants as many charges off the table as possible and obviously thought it had won the battle over the impermissible benefits allegations. But the COI is perfectly within its charter to consider them, whether they are in the NOA or not. UNC will have the opportunity to present the same argument it felt it had already made and thought it had resolved with the Enforcement staff during the intervening period between the Original NOA and the 1st Amended NOA.
Barnes jumps to a different procedural issue raised by UNC in its response to the 1st amended NOA and before the hearing panel. Evrard does not raise an objection to this issue in his December 21st letter to hearing chair, Sankey. UNC understandably would disagree with the panel's rejection of all of UNC's procedural and jurisdictional challenges at the procedural hearing. Barnes here is simply restating UNC's assertion about one of those challenges and disagreement with the panel's procedural decision.
Sankey’s panel also took another extraordinary step in its Nov. 28 letter by lowering the standards for admissible evidence by classifying the Wainstein Report as new information and allowing interviews with AFAM administrative assistant Deborah Crowder and AFAM department chair Julius Nyang’oro to be used in the infractions hearing despite those interviews failing to meet NCAA investigative bylaws. There were no NCAA or UNC representatives present for the interviews, and there are no transcripts or audio recordings available.
UNC considers the underlying facts and figures of the Wainstein Report to be appropriate for consideration, but the subjective conclusions are not, according to Cunningham.Of course the Athletics Director would say that. I would expect nothing less.
UNC’s outside counsel, Rick Evrard, addressed the concerns in a Dec. 21 letter to Sankey. Evrard wrote that the university does not believe Sankey’s decision to withhold evidence from the hearing panel to be consistent with the NCAA’s rules and bylaws and that inclusion of the supplemental documents would have allowed the panel to make a more informed decision.The December 21st letter to Sankey only addressed the rejection of entering the email correspondence between UNC and the Enforcement staff into the record. None of the other procedural/jurisdiction challenges were mentioned. Other complaints about the COI, the nature of the procedural hearing and its outcome, emanate from others and not UNC's legal team (at least not publicly.)
Barnes concludes with a quote from that letter presenting a regular theme in most of UNC's correspondence with the NCAA:
"A lack of fair and consistent treatment erodes trust in a process in which the University has acted forthrightly and collaboratively and worked diligently to provide information," Evrard wrote. "Indeed, the University is not aware of any University that has made more information available to the enforcement staff and to the public generally than has been made available in this matter and is not aware of any University that has been more public in stating the many reforms it has made to address any issue that has arisen through this long process."The boasting about how forthright, collaborative and transparent UNC has been can get tiresome and could have the opposite psychological impact on the COI panel members than what UNC may desire, especially if the panel members do not agree with UNC's self-assessment.
