- That the Hearing Panel relied on the absence of evidence (that it had blocked from introduction)
- That the Hearing Panel directed Enforcement to issue a revised set of allegations.
- That the Hearing Panel revisited and overturned matters that had been "appropriately addressed" by UNC and NCAA Enforcement prior to the issuance of the Amended Notice of Allegations (ANOA) in April 2016.
I previously addressed the claim that the Panel had relied on the "absence of evidence" (that it had, itself, unfairly blocked) and how that can not be true, assuming UNC didn't bungle it's own defense..
I also previously refuted the claim that the COI overstepped its authority and "directed" the Enforcement staff to do anything.
I never got around to addressing Evard's third point, which was:
"Fundamentally, the Panel, after rejecting the University's proffer of evidence that would have informed the Panel's understanding of the basis for the Enforcement Staff's removal of former Allegation No. 1, used the very absence of this evidence to take the unprecedented step of directing the issuance of a Third Notice of Allegations with respect to matters that were appropriately addressed in the investigation and were the subject of extended dialogue between the University and the Enforcement Staff."
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My counter-claim is that this interim dialogue between UNC and Enforcement that occurred between August 2015 and April 2016 resulted in a fundamentally flawed Amended Notice of Allegations that DID NOT resolve matters to which UNC had objected and Enforcement had been defending.
Rather than conceding to UNC's argument, the Enforcement staff appeared to compromise or merely shift its infractions language from one allegation of impermissible benefits to Failure to Monitor and Lack of Institutional Control allegations that still referenced the academic failures UNC had sought to segregate from the allegations.
The Truth About the ANOA
There's little mystery why UNC officials welcomed the "reshaped" set of allegations in the April 2016 Amended Notice of Allegations. After being served with a 2nd Amended NOA, UNC would pretend that the ANOA was better notice than the original because it had eliminated the Article 16 impermissible benefits allegations that UNC had maintained was an improper application of that rule in the case of UNC's academic misconduct. But by its actions, UNC demonstrated that all it had really done was successfully maneuver Enforcement into drafting a set of allegations with no foundation for Lack of Institutional Control and Failure to Monitor. Instead of being more "fairly aligned," the ANOA without the Article 16 allegation was an easy target for attacking the remaining Level I infractions.
If UNC thought the NOA was flawed because it attempted to address misconduct outside of its jurisdiction by stretching the application of rules for purposes not intended, then the ANOA had to have been even more deeply flawed, and not (as UNC claims) an "appropriate address[ing]" of the matters that were subject of the dialogue after the first NOA process was abruptly halted. The very same objections UNC had about Allegation 1a in the original NOA were still present in the Failure to Monitor and Lack of Institutional Control allegations in the Amended NOA. All UNC has succeeded in doing was convincing Enforcement to drop Allegation 1a, but Enforcement hadn't conceded to UNC's rationale. It merely shifted the language to another charge.
Once UNC and Enforcement informed the COI chair that new information had been found and which the parties needed to examine to see if it would affect the Notice of Allegations, entry into the hearing phase of the case halted and the Office of the Committee on Infractions stood down while the parties worked to resolve the new issues.
At least three times during this interim period, the COI chair called for a status conference to receive an update on the progress UNC and Enforcement were making. Contrary to the "new evidence" being the source of delay, UNC had spent the time mounting its objection with Enforcement over the alleging of Impermissible Benefits for the conduct of academic counselors to athletes. The new information UNC had reported on the eve of its response to the NOA being due had no bearing or relevance to that debate.
The public record is dark about what transpired between January and April 2016, but we do know that twice, UNC and Enforcement briefed the COI chairman on progress toward an Amended NOA. At no point was it prescribed by NCAA protocol nor suggested in the public documents that the COI chairman was party to or otherwise involved in the decisions about how to re-draft the allegations. At no point is it recorded that Enforcement staff turned to the COI chair for a determination on how to proceed or how to redraft the Allegations. The COI's concern in those early 2016 conferences would have been getting the case back on track toward expeditious resolution.
The content and the structure of the ANOA was the result of UNC and Enforcement's negotiation and dialogue, and not the influence of, or endorsement by, the COI.
Because NCAA enforcement processes are supposed to be confidential, the Enforcement staff and leadership do not and will not comment on the rationale for the re-drafting of the Allegations. All we know of that dialogue is from what UNC has released in terms of communication documents between October 2015 and January 2016. UNC, obviously, paints the rationale for the ANOA "reshaping" as one of concession by Enforcement on the jurisdiction question of Article 16 applicability. But we can only speculate on whether or not the Enforcement staff would confirm this. The resulting ANOA looks less like concession and more like an ill-attempt at offering a compromise by the Enforcement staff, perhaps in the interest of seeking the expeditious resolution encouraged by the COI.
Had UNC honestly felt the Amended Notice of Allegations "more fairly aligned the facts" of the case with NCAA bylaws and case precedent, it wouldn't have felt it necessary to argue the very same jurisdictional objections in response to the ANOA that it had previously argued with Enforcement to get the original Allegation 1a removed.
By raising those jurisdictional arguments to contest the still-present Lack of Institutional Control and the oddly added Failure to Monitor allegations, UNC placed the issue on the table for the Hearing Panel to consider, and instead of agreeing that the application of Article 16 bylaw was inappropriate for the Panel to hear, the Panel advised the Enforcement staff that such a matter WAS appropriate for the COI to consider on the merits.
It's great if you can avoid the risk of sanctions by getting the allegation removed before it ever gets on the hearing panel docket. It's little wonder why UNC felt it had achieved a victory by convincing Enforcement to not present such a fundamental allegation to the COI for consideration. The truth is, though, that the COI is not so constrained to consider only what Enforcement alleges. The analogy of the COI infractions hearing to a criminal court proceeding is inaccurate and misleading. If the facts and evidence lent themselves to considering an Article 16 infractions, the COI could have sanctioned UNC for that violation whether Enforcement included it in the Notice of Allegations or not. It would have still been within the discretionary and protocol boundaries of the COI Panel to do so. And by the sounds of it, the Panel might have been so inclined since it did not agree that Article 16 should not be applicable to impermissible academic benefits conduct.
Had UNC been required to stand before an infractions hearing without the Article 16 allegation being cited in a Notice of Allegations, it would have found itself at a unprepared disadvantage. But having the panel's hearing split into two - with the procedural issues resolved first and the substantial issues on the merits addressed separately - as well as having the fair opportunity to respond to a Notice of Allegations that includes the Article 16 foundation issue that the COI Panel is indicating it will consider, is MORE fair to UNC; not less.
Just because UNC didn't get what it wanted doesn't mean it was denied a fair hearing. UNC now has every opportunity to make the same arguments it made (and thought it had won with Enforcement), but now must do so before the Committee on Infractions. It means more work, but if UNC felt it had a sound case before, there is no reason to believe that the same argument, if sound, can't persuade the COI Panel too.
Had UNC and Enforcement truly been aligned and the ANOA reflected an appropriate application of NCAA bylaws in the matter, then UNC's response to that ANOA should have been more accepting, conciliatory and perhaps even included an offer of self-imposition of sanctions based on what it and Enforcement agreed were legitimate infractions. Obviously, that did not happen. Instead, having gained a fundamentally flawed ANOA out of the dialogue with Enforcement, UNC went after it with both barrels.
Unfortunately for UNC, that approach backfired. But fortunately for UNC, the Panel and the Enforcement staff have given UNC a chance to make its best defense against those restored allegations. Perhaps UNC's attempt to soften the ground with a public relations attack on the Committee on Infractions won't hurt their case.
If UNC thought the NOA was flawed because it attempted to address misconduct outside of its jurisdiction by stretching the application of rules for purposes not intended, then the ANOA had to have been even more deeply flawed, and not (as UNC claims) an "appropriate address[ing]" of the matters that were subject of the dialogue after the first NOA process was abruptly halted. The very same objections UNC had about Allegation 1a in the original NOA were still present in the Failure to Monitor and Lack of Institutional Control allegations in the Amended NOA. All UNC has succeeded in doing was convincing Enforcement to drop Allegation 1a, but Enforcement hadn't conceded to UNC's rationale. It merely shifted the language to another charge.
The Role of the COI Chairman During the ANOA "Reshaping"
Once UNC and Enforcement informed the COI chair that new information had been found and which the parties needed to examine to see if it would affect the Notice of Allegations, entry into the hearing phase of the case halted and the Office of the Committee on Infractions stood down while the parties worked to resolve the new issues.
At least three times during this interim period, the COI chair called for a status conference to receive an update on the progress UNC and Enforcement were making. Contrary to the "new evidence" being the source of delay, UNC had spent the time mounting its objection with Enforcement over the alleging of Impermissible Benefits for the conduct of academic counselors to athletes. The new information UNC had reported on the eve of its response to the NOA being due had no bearing or relevance to that debate.
The public record is dark about what transpired between January and April 2016, but we do know that twice, UNC and Enforcement briefed the COI chairman on progress toward an Amended NOA. At no point was it prescribed by NCAA protocol nor suggested in the public documents that the COI chairman was party to or otherwise involved in the decisions about how to re-draft the allegations. At no point is it recorded that Enforcement staff turned to the COI chair for a determination on how to proceed or how to redraft the Allegations. The COI's concern in those early 2016 conferences would have been getting the case back on track toward expeditious resolution.
The content and the structure of the ANOA was the result of UNC and Enforcement's negotiation and dialogue, and not the influence of, or endorsement by, the COI.
Because NCAA enforcement processes are supposed to be confidential, the Enforcement staff and leadership do not and will not comment on the rationale for the re-drafting of the Allegations. All we know of that dialogue is from what UNC has released in terms of communication documents between October 2015 and January 2016. UNC, obviously, paints the rationale for the ANOA "reshaping" as one of concession by Enforcement on the jurisdiction question of Article 16 applicability. But we can only speculate on whether or not the Enforcement staff would confirm this. The resulting ANOA looks less like concession and more like an ill-attempt at offering a compromise by the Enforcement staff, perhaps in the interest of seeking the expeditious resolution encouraged by the COI.
Disingenuous Characterization of the ANOA
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| http://www.scout.com/college/north-carolina/story/1740030-bubba-follow-the-bylaws |
Had UNC honestly felt the Amended Notice of Allegations "more fairly aligned the facts" of the case with NCAA bylaws and case precedent, it wouldn't have felt it necessary to argue the very same jurisdictional objections in response to the ANOA that it had previously argued with Enforcement to get the original Allegation 1a removed.
By raising those jurisdictional arguments to contest the still-present Lack of Institutional Control and the oddly added Failure to Monitor allegations, UNC placed the issue on the table for the Hearing Panel to consider, and instead of agreeing that the application of Article 16 bylaw was inappropriate for the Panel to hear, the Panel advised the Enforcement staff that such a matter WAS appropriate for the COI to consider on the merits.
It's great if you can avoid the risk of sanctions by getting the allegation removed before it ever gets on the hearing panel docket. It's little wonder why UNC felt it had achieved a victory by convincing Enforcement to not present such a fundamental allegation to the COI for consideration. The truth is, though, that the COI is not so constrained to consider only what Enforcement alleges. The analogy of the COI infractions hearing to a criminal court proceeding is inaccurate and misleading. If the facts and evidence lent themselves to considering an Article 16 infractions, the COI could have sanctioned UNC for that violation whether Enforcement included it in the Notice of Allegations or not. It would have still been within the discretionary and protocol boundaries of the COI Panel to do so. And by the sounds of it, the Panel might have been so inclined since it did not agree that Article 16 should not be applicable to impermissible academic benefits conduct.
Had UNC been required to stand before an infractions hearing without the Article 16 allegation being cited in a Notice of Allegations, it would have found itself at a unprepared disadvantage. But having the panel's hearing split into two - with the procedural issues resolved first and the substantial issues on the merits addressed separately - as well as having the fair opportunity to respond to a Notice of Allegations that includes the Article 16 foundation issue that the COI Panel is indicating it will consider, is MORE fair to UNC; not less.
Just because UNC didn't get what it wanted doesn't mean it was denied a fair hearing. UNC now has every opportunity to make the same arguments it made (and thought it had won with Enforcement), but now must do so before the Committee on Infractions. It means more work, but if UNC felt it had a sound case before, there is no reason to believe that the same argument, if sound, can't persuade the COI Panel too.
Had UNC and Enforcement truly been aligned and the ANOA reflected an appropriate application of NCAA bylaws in the matter, then UNC's response to that ANOA should have been more accepting, conciliatory and perhaps even included an offer of self-imposition of sanctions based on what it and Enforcement agreed were legitimate infractions. Obviously, that did not happen. Instead, having gained a fundamentally flawed ANOA out of the dialogue with Enforcement, UNC went after it with both barrels.
Unfortunately for UNC, that approach backfired. But fortunately for UNC, the Panel and the Enforcement staff have given UNC a chance to make its best defense against those restored allegations. Perhaps UNC's attempt to soften the ground with a public relations attack on the Committee on Infractions won't hurt their case.
