CHAPEL HILL, N.C. – 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.
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.
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.
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.
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. 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.
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.
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.
"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."
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.
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.
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.
"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."