The Enforcement Process
Athletic Director Bubba Cunningham announced in June 2014 that UNC had received a verbal notice of inquiry from the NCAA that it would “reopen its 2011 examination of academic irregularities.” The NCAA’s decision coincided with new information provided by Kenneth Wainstein during his AFAM investigation. The official explanation was that the NCAA determined that additional people with information and others who were previously uncooperative might be willing to talk this time around.
Upon the completion of the NCAA’s investigation, the enforcement staff must determine what, if any, NCAA bylaws were broken. If violations did occur, the NCAA will issue a Notice of Allegations (NOA) that details the violations with supporting evidence. It is at the institution’s discretion whether or not to release the NOA to the public.
If and when UNC receives its NOA, the university has 90 days to file a response if it intends to challenge any of the allegations. In 2011, UNC agreed that eight allegations were substantially correct and that violations occurred, while disagreeing with a portion of a ninth allegation - that it failed to monitor social networking activity – by noting that such a charge was unprecedented.
Once the institution and any involved individuals submit their responses to the NOA, the enforcement staff has 60 days to craft its own response to the Committee on Infractions (COI), a panel consisting of as many as 24 voting members. The COI pool is drawn from NCAA member institutions and individuals in the public sector with expertise in related fields. The current COI, for example, includes Greg Christopher, athletics director at Bowling Green, James O’Fallon, a law professor and faculty athletics representative at Oregon, and Roscoe Howard, a Washington, D.C.-based attorney with experience in assisting sports-related nonprofit organizations.
Once the hearing date and location is set, the enforcement staff and institution representatives present their cases to the COI. Hearings usually last one or two days and an infractions report is typically delivered 6-to-8 weeks following the hearing.
In 2011, UNC received its NOA on June 21, released its response to the public on Sept. 19 and then appeared before the COI on Oct. 28. UNC received its infractions report on Mar. 12, 2012.
If a NOA arrives in short order, and UNC responds in similar fashion, the process is in line to follow a similar timeframe with a COI hearing in the fall followed by a final resolution in early 2016.
Institutions have 15 days after the receipt of the COI report to file a Notice of Appeal to any conclusions or punitive measures included in the report. The Infractions Appeals Committee, not the COI, hears the appeal and its decision is final.
The Cooperative Principle
The primary key to the NCAA’s investigative process is the cooperative principle, a measure that ensures the enforcement staff and the institution work together to determine any potential violations.
“Enforcement is a responsibility that must be shared with our members,” NCAA spokesperson Emily James wrote in an email. “As a voluntary organization, NCAA schools are obligated to help the enforcement staff determine possible violations. Cooperation with an investigation is a core principle and requirement of the NCAA. Any failure to cooperate or to protect the integrity of the investigation could result in additional violations and harsher penalties.”
School involvement varies depending on the case, but schools are typically tasked with gathering documents and scheduling interviews. NCAA Bylaw 19.2.3 states that “current and former institutional staff members or prospective or enrolled student-athletes of member institutions have an affirmative obligation to cooperate fully with and assist the NCAA enforcement staff, the Committee on Infractions and the Infractions Appeals Committee to further the objectives of the Association and its infractions program.”
The cooperative principle is critical in constructing legitimate investigations since the NCAA has no subpoena power. Schools that violate the cooperative principle are subject to sanctions by the Committee on Infractions.
The NCAA received an incredible amount of criticism for not following rules protocol and abiding by the cooperative principle in levying unprecedented penalties on Penn State following the release of the Freeh Report.
“The NCAA won’t do an investigation without the institution,” Cunningham said in an interview with InsideCarolina.com in December. “In the Penn State case, they never did an investigation. They just took the report and said, ‘These are all facts.’ Our case is Wainstein did a report and an investigation, and here’s their presentation. Now together we’ll go through that and say, ‘Okay, this is what we agree on or don’t,’ as we do with every other fact associated with this case.”
UNC announced in January that it had retained Skadden, Arps, Slate, Meagher & Flom to represent the university as outside counsel in its legal affairs. Patrick Fitzgerald, a partner with Skadden’s Chicago office, is serving as lead counsel.
Skadden is involved with overall legal strategies for all institutional matters, including, but not limited to, accreditation, admissions and employment. The law firm represented UNC in two lawsuits filed against the school last year – one by former football player Michael McAdoo; the other by former learning specialist Mary Willingham – regarding the AFAM scandal.
While Skadden is providing input and advice with regard to the NCAA investigation, Bond, Schoeneck & King, a law firm with expertise in NCAA matters, is handling the specifics of the case. BSK’s Rick Evrard, a former NCAA lawyer, was initially hired by UNC as a consultant in August 2010.
Vince Ille, a UNC senior associate athletic director who oversees compliance, is the central figure supervising the case on UNC's end and has been communicating with the NCAA during the process. Cunningham hired Ille in July 2012 shortly after UNC’s infraction report was received.
“I’ve had and Vince has had a long-standing relationship with Bond, Schoeneck and King because I think they are a great firm with immense knowledge of NCAA issues,” Cunningham said in December.
Check back tomorrow as Inside Carolina explores the NCAA penalty dilemma and its possible outcomes.
The NCAA Process
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