Ever since the release of the Wainstein Report, UNC athletics advocates have chafed at the administration's unequivocal acceptance of it. [Example 1][Example 2]In the 3+ years since, UNC hasn't once discredited any of Wainstein's findings. In the NCAA case, UNC's objections to Report have (so far) been procedural, not substantive. [ANOA Response]
In her response to the NCAA allegations, Deb Crowder IS refuting material aspects of Wainstein Report [Crowder Letter][Affidavit]; but in doing so is, in part, also contradicting UNC's own official acceptance of the Wainstein Report.
UNC athletics advocates have cheered Crowder's attack of the Wainstein Report [Example 1][Example 2], but can UNC leverage Crowder's response in its defense against NCAA allegations without countermanding prior endorsement and actions it has taken on the basis of Wainstein?
The academic malfeasance that Crowder refutes in her statement is not in NCAA's "wheelhouse" to assess. NCAA relies on UNC's report for that assessment. [2nd Amended NOA]
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| Figure 1 |
Crowder is refuting UNC's own internal assessment of the academic situation, made even before Wainstein, that the NCAA is articulating in Allegation 1a against Crowder. (See light-blue underlined sections in Figure 1 above.)
However; it does occur to me that UNC has never acknowledged (neither endorsed nor rejected) Wainstein's assessment of Nyang'oro's or Crowder's motives.
UNC could disagree with Crowder when she says that her actions were proper, but agree with her that Wainstein was wrong about her athletics-favoring motive.
I don't believe that would contradict any previous official stance or action UNC has taken on the basis of the Wainstein Report to date.
But is Crowder's motive relevant to NCAA's allegation 1a? Does NCAA rely on Wainstein's characterization of Crowder's intent for any of its allegations against UNC?
UNC could disagree with Crowder over her refuting of the light-blue underlined statements from the NCAA allegation in figure 1 (above), but endorse Crowder on the red underlined statements in figure 2 (below) without contradicting any previous official stance on Wainstein.
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| Figure 2 |
By directing her rebuttal to the NCAA and aiming criticism at the Wainstein Report as a key piece of evidence in the NCAA's case, is Crowder's response on target?
Is the NCAA, in fact, relying on Wainstein's assessment of her motives and actions to substantiate the two statements red-highlighted statements from Allegation 1a to which Crowder objects? And can UNC align with her in these limited instances without contradicting itself?
Allegation 1a Contested Statement #1
Crowder "…delegated to athletics personnel the authority to manage material aspects of these course for student-athletes…"
Crowder doesn't directly address this allegation of delegating management of material aspects of the course to counselors in her affidavit. She does, however, refute it through her attorney:
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| https://drive.google.com/file/d/0B24WwCUVnfYtWFRDcm1aWllDTXc/view |
UNC must dispute Crowder's claims that the courses themselves were appropriate and didn't violate any UNC policy, but can UNC agree with her that she "did not delegate the authority to manage the courses to athletics personnel" without contradicting it's acceptance of the Wainstein Report and the rationale for personnel actions it did take on the basis of the Report?
The Wainstein Report doesn't specifically articulate the statement as the NCAA has alleged. The language appears to be that of NCAA Enforcement and not Wainstein. The NCAA cites 90 Factual Items (FIs) supporting Allegation 1, of which the Wainstein Report is but one. If Crowder is protesting this element of the allegation, Wainstein's assessment is not the keystone on which this element of Allegation 1a hinges. The the Committee on Infractions hearing panel's will have to review the aggregation of documentary evidence, with or without Wainstein's assessment to determine if the allegation stands up to scrutiny on its merits.
The 2nd Amended Notice of Allegations (December 2016) is the first time this particular issue of delegating certain aspects of course management to counselors has been alleged, so UNC didn't address it in the 1st Amended NOA. Will it side with Crowder?
Allegation 1a Contested Statement #2
"…Crowder and Nyang'oro worked closely and directly with athletics. As a result, student-athletes were afforded greater access to the anomalous courses…"
Crowder addresses the issue of "access" in her affidavit, but it is not in the response to specific allegations, made through her attorney.
The issue of "greater access" by student-athletes isn't one that UNC has had to address yet. UNC avoided addressing it in the original Notice of Allegations (May 2015) and it was not alleged in the 1st Amended NOA (April 2016) so it was not a part of UNC's August 2016 response.
The Wainstein Report does provide an assessment on "access" on which the NCAA has may have relied when crafting the allegation:
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| Wainstein Report, Pg 3 |
If UNC should choose to align itself with Crowder on this point, it won't be directly contradicting the Wainstein Report, but it will have to rely on more than just Crowder's sworn statement as rebuttal to the documentary evidence. UNC would be wise to produce additional email documentation to the record showing comparable "access" afforded to non-athletes through Steele Bldg. counselors that is evident of the "cozy" relationship with Loudermilk, athlete counselors.
I don't believe Crowder's sworn statement is sufficient on its own for UNC to ride coattail, particularly since she's swearing to other points (i.e. the propriety of the classes) that UNC must dispute.
Allegation 1a Statement #3
There is a 3rd statement in Allegation 1a that was not previously highlighted, either in light-blue or red. Crowder's response doesn't address this element of the allegation:
"Many at-risk student-athletes, particularly in the sports of football and men's basketball, used these course for purposes of ensuring their continuing NCAA academic eligibility."
Allegation 1a mainly addresses Crowder's (& Nyang'oro's) actions. This last statement in Allegation 1a tethers their actions to institutional responsibility with regard to NCAA concerns about academic eligibility of student-athletes. This statement is a bridge to Allegation 1b, which focuses on the conduct of athletics department staff and academic counselors to athletes.
Since Crowder doesn't (and can't, really) attest to how counselors or students may have exploited her "customized" class offerings, this one is left to UNC to rebut without relying on Crowder as a proxy.
The NCAA does have this determination from Wainstein's findings on which to base its allegation:
I've seen fans and partisans take issue with this particular element of the Wainstein Report, but to date, I am unaware of UNC ever having officially disputed it. Of course, over the past three years, UNC hasn't been required to directly confront the issue of whether or not the "customized" or "irregular" classes were exploited for the purposes of athlete eligibility maintenance.
The original Notice of Allegations alleged an eligibility aspect to the exploitation of Crowder's "paper classes," but UNC never had to respond when the case track was stalled. The 1st Amended Notice of Allegations (ANO) had that eligibility aspect removed, so UNC did not address the issue in it's response to that ANOA.
But now, it is restored in the 2nd Amended Notice of Allegations (December 2016), and so UNC is going to have to decide whether or not, for the first time, to rebut a finding from its own, chartered independent review.
Should be interesting.
