CHAPEL HILL, N.C. – In the days following the University of North Carolina’s 2014 release of Kenneth Wainstein’s report into past academic irregularities, NCAA president Mark Emmert offered his opinions on the case in an interview with the Associated Press.
"Just based on the (Kenneth) Wainstein report, this is a case that potentially strikes at the heart of what higher education is about," Emmert said. "Universities are supposed to take absolutely most seriously the education of their students, right? I mean that's why they exist, that's their function in life. If the Wainstein report is accurate, then there was severe, severe compromising of all those issues, so it's deeply troubling. ... It's absolutely disturbing that we find ourselves here right now."
Not only did Emmert’s comments cement a narrative surrounding UNC’s lengthy NCAA investigation, but he also violated his own organization’s public disclosure bylaw (19.01.3), which states that such comments about pending cases are not to be made by either the NCAA or any involved parties until a final decision has been announced.
The NCAA enforcement process is built upon its constitution and bylaws, and institutions that work outside of those constructs are penalized for doing so. The NCAA’s enforcement staff, committee on infractions and infractions appeal committee are required to follow the same protocol, although the NCAA has failed to meet that threshold in recent high-profile enforcement cases, including UNC’s academic irregularities investigation.
When the NCAA decided to reopen its AFAM investigation in June 2014, the enforcement staff did so under the assumption that “additional people with information and others who were previously uncooperative might now be willing to speak.” That’s a direct reference to former AFAM chair Julius Nyang’oro and former department administrative assistant Deborah Crowder, whose interviews were the foundation of the Wainstein Report. Despite neither Nyang’oro or Crowder agreeing to speak with NCAA investigators, the enforcement staff kept the investigation open for unspecified reasons beyond its initial explanation.
During the 11 months between UNC’s initial notice of allegations in May 2015 and its amended notice of allegations, the institution’s compliance staff and lawyers consistently argued that pending allegations were based in the NCAA’s bylaws. Correspondence between UNC and the NCAA detailing those exchanges were released in a batch of communications last fall.
Included in that correspondence were specifics that the enforcement failed to make pertinent information available to UNC in accordance with the bylaws, as the institution’s compliance staff and lawyers discovered the data at NCAA headquarters during a visit in July 2015. The NCAA declined UNC’s interview requests to discuss the protocol misstep with the involved enforcement staff members.
The NCAA enforcement staff eventually removed its original impermissible benefits charge after failing in its attempt to apply necessary bylaws.
That decision held true until SEC Commissioner and Committee on Infractions chairman Greg Sankey inserted his panel into the enforcement process in an unprecedented manner in October.
The enforcement staff serves as the prosecutor, while the COI serves as the judge and jury. Former Committee on Infractions chairman Tom Yeager explained the committee’s role to the Daily Press last April.
"The committee on infractions is not involved in the investigation or the drafting of allegations," Yeager said. "There's the possibility of adjustments at the hearing. … There will be that check-and-balance. At the hearings stage, it becomes the infractions committee's ownership."
Sankey circumvented that process to allow his COI panel to operate as prosecutor, judge and jury, scheduling a procedural hearing to discuss the merits of UNC’s jurisdictional concerns.
The advisory letter, written by NCAA OCOI Managing Director Joel McGormley, indicated “the panel will not discuss the underlying facts or allegations for the purpose of finding facts, concluding whether violations occurred or prescribing penalties.”
Despite that stated intent, Sankey utilized the opportunity to encourage the enforcement staff to rewrite its second amended notice of allegations to include a wider scope of potential allegations. Sankey also refused to allow UNC to submit evidence for the hearing that detailed the enforcement staff’s reasoning for removing the impermissible benefits charge.
“I do think the hearing itself is unprecedented,” UNC athletic director Bubba Cunningham said in a media teleconference following the third notice of allegation’s release. “I do know that the committee has a wide range of latitude in a hearing on the merits, but I don’t have any idea what their latitude is in a hearing that’s never, in my mind or knowledge, occurred before. I think it makes it really difficult for any institution that’s going to face a group that can act as the investigator, the prosecutor and the judge.
“I think it’s patently unfair and I think we need to consider it, not just in this case, but on the national basis, this entire infractions process.”
The NCAA’s actions in previous cases provide some insight into its inner workings.
Former Southern California assistant football coach Todd McNair’s defamation lawsuit against the NCAA, filed in 2011 in the aftermath of the Reggie Bush impermissible benefits scandal, provided further examples of the Committee on Infractions’ willingness to bypass protocol to arrive at predetermined conclusions. Documents related to the case were unsealed in March 2015 and included email chains, memos and other communications between COI members about how to handle the infractions case.
Roscoe Howard, a former U.S. attorney and a non-voting member of the COI, wrote in correspondence to committee members that "McNair should have all inferences negatively inferred against him ... we need not say why we disbelieve him, we only need to let the public, or whomever, know that we do disbelieve him."
Infractions committee member Britton Banowsky acknowledged the lack of substance in the McNair case in an email, writing, "it is challenging for me to make the finding when there is no allegation that he personally was involved in any rules violations, or even had any specific knowledge of any."
Similar emails pertaining to the NCAA’s handling of the Penn State case were released in November 2014 included an email from then-director of enforcement Julie Roe Lach to Kevin Lennon, the NCAA vice president for academic and membership affairs, in which she characterized the NCAA’s approach to PSU administrators as a “bluff” in convincing administrators to sign a consent decree agreeing to penalties that included a $60 million fine, a four-year bowl ban and the loss of 60 scholarships.
Roe Lach added that Emmert agreed with the approach, writing, “he understands that if we make this an enforcement issue, we may win the immediate battle but lose the war when the COI (Committee on Infractions) has to rule. I think he is okay with that risk.”
The next step in UNC’s enforcement process is an actual Committee on Infractions hearing. The date of that hearing is not yet public record.