Monday, February 6, 2017

The Curious Case of the Three NOAs

I don't think there has ever been an NCAA case like Case No. 00231.

There are several reasons why the pending UNC infractions case could be called "unprecedented," and having three Notices of Allegation (NOAs) in a single case is certainly one of them. I don't think that's ever happened before. And it's not as if the set of allegations have had to be revised due to new information being discovered. All material fact finding in the UNC investigation was completed before the first version was issued in May 2015.

Why, then, three versions of the NOA over a 20 month period?

A common, cynical view is that the NCAA can't seem to decide how, or even if, the membership bylaws apply to what transpired at UNC. There may even be fissures between or within NCAA departments, councils or committees that are in tension over whether or not the NCAA should be involved in UNC's academic issues.

The COI's chief hearing officer for this case (who is also the chairman of the COI) stated that the amendment to the allegations seemed to be the result of the Enforcement staff and the University thinking that COI would not (or, in UNC's view, should not) support the "consideration of impermissible academic assistance allegations." Assuring everyone that the COI would, in fact, consider such allegations, Enforcement amended the allegations again, reinserting the allegations of impermissible academic assistance.

An even more cynical and suspicious view is that there are forces colluding against UNC for ulterior purposes. The Enforcement staff and the Committee on Infractions (COI) have both been challenged by UNC on issues of fairness.

Another perspective is that the NCAA's other legal challenges to its ideals and operating model could have a bearing on either Enforcement or COI decisions.

The University's jurisdiction argument is that such "fundamental issues of institutional and academic integrity" are not the province of the NCAA:

UNC Response to ANOA, August 1, 2016
How many times have we seen Jay Bilas scold the NCAA to "stay in your lane?"  NCAA Mark Emmert famously said that auditing the  quality of member institutions academic curriculum was not it the NCAA's "wheelhouse."

Heck, even NCAA Enforcement AGREES with UNC on this:

NCAA Enforcement Reply, September 19th, 2016

What UNC calls "[C]ourse structure, content and administrative oversight" is not, however, the focus of allegations in any of the versions of the Notice of Allegations. The NCAA's focus is the "tethering" of those academic issues to athletics by way of athletics department behaviors, which puts it (so the reasoning goes) squarely within the NCAA's "wheelhouse" of competitive fairness.

In the NCAA major infractions enforcement process, the Notice of Allegations is not an affirmation of violations. It's an allegation of violations. The NOA isn't what Enforcement staff concludes were infractions of NCAA rules. The NOA is what Enforcement believes are potential infractions, which are then forwarded to the Committee on Infractions hearing panel which decides whether or not they are actually infractions.

UNC thought it had won a concession to its jurisdiction arguments when NCAA Enforcement backed off of the allegation that academic counselors had provided "extra benefits" to athletes by leveraging the academic misconduct of college faculty and academic staff. That victory proved to be fleeting.

UNC's claim is that the changes from NOA to ANOA resulted from Enforcement conceding the argument that Allegation 1 of the original NOA should not be cited. UNC has sought to show how the email dialogue between UNC and the NCAA from late 2015 explains how NCAA Enforcement was held to its earlier (and what UNC says is "correct") jurisdictional determination.

The problem is that that change left the Amended NOA fundamentally flawed, and UNC vigorously challenged the weakened Notice. The October 28th hearing panel also recognized that the ANOA was flawed; and, since UNC had raised that same jurisdictional and procedural arguments in its response to the ANOA that had alleged bearing on the NOA-ANOA modification, the Panel encouraged the Enforcement staff to revisit the allegations. Enforcement responded to the opportunity, issued another revision, restoring (with some modification) that Allegation 1 from the original NOA with a third version of the NOA.

I think it's safe to say there won't be a fourth NOA. UNC's response to the 2nd Amended NOA is due by mid-March. I don't think we'll see anything new other than, maybe, the first official questioning of Wainstein's investigation. It will be interesting to see if UNC raises any new procedural issues about Enforcement or COI actions/decisions in the case. I expect UNC's response to be a re-articulation of the arguments made to Enforcement already. To get a glimpse of what it UNC's response might contain, read:

1. UNC's (Rick Evrard's) January 2016 letter to Enforcement's Tom Hosty
2. UNC's August 2016 Response to the ANOA
3. UNC's October 2016 Comments on Enforcement's Reply to UNC's ANOA Response
4. UNC's October 2016 "Targeted and Synthesized" Submission to COI Panel
5. UNC's December 2016 Comments on the Hearing Panel's decision

UNC has never officially noted any deficiencies with the Wainstein investigation or his report, but given the importance and reliance on Wainstein that Enforcement, and now the COI, have apparenlty placed on "new information" stemming from Wainstein, that could soon change.

For reference, here is an outline of the different version of the Allegations. The keystone allegation is the one highlighted in red text.

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