CHAPEL HILL, N.C. – The NCAA Division I Committee on Infractions’ decision to lower the standard of evidence in the University of North Carolina’s investigation by admitting the entirety of the Wainstein Report calls into question the accuracy of the methods and findings of the $3.1 million outside investigation.
Kenneth Wainstein’s probe, authorized by the General Counsel of the N.C. public university system, detailed the actions of AFAM administrator Deborah Crowder and AFAM department chair Julius Nyang’oro in offering hundreds of irregularities in courses from 1993-2011. Wainstein’s investigative team interviewed 126 individuals, ranging from current administrators to former student-athletes, and compiled a database of over 1.6 million emails and electronic documents.
While Wainstein’s efforts provided a narrative for how the academic irregularities began and operated without detection for nearly two decades, the report was not constructed in a manner to meet the stringent demands of a legal or otherwise fact-based interpretation.
Wainstein’s interview methods were intent on establishing a narrative of how the irregular classes in AFAM started and lasted for 18 years, not in building a court case to determine culpability. There were no recordings or transcripts of the interviews, no questions related to the application of specific NCAA bylaws and no advisements given to witnesses about their right to counsel or obligation to provide truthful information. Furthermore, there were no NCAA or institution representatives present for the interviews.
The Wainstein Report accomplished its goal in explaining the how and why of the academic irregularities and allowing UNC to move forward with more than 70 academic reforms in place. While Wainstein briefed the NCAA enforcement staff on relevant information pertaining to UNC’s infractions case, correspondence between the institution’s outside counsel and NCAA staff released in a public records batch in October indicate an agreement between the two parties pertaining to the Wainstein Report’s inclusion in the investigation. Underlying data and statistics that could be proven factual were to be admitted, while interviews and subjective conclusions that did not meet NCAA enforcement standards would not be considered.
Despite that agreement between UNC and the enforcement staff, Committee on Infractions chair Greg Sankey and his panel cited Bylaw 220.127.116.11 in allowing the COI to intervene in the enforcement process to include the entirety of the Wainstein Report. The panel based its decision on “information presented to it that it determines to be credible, persuasive and of a kind on which reasonably prudent persons rely in the conduct of serious affairs.”
Such a broad admissibility standard undercuts NCAA enforcement protocol.
In a letter to UNC outside counsel Rick Evrard on May 28, 2014, Wainstein acknowledged the NCAA enforcement process requirements: “I recognize that it is standard procedure for the NCAA to conduct a review jointly with a representative or counsel for the member institution involved, and for that representative or counsel to be present at interviews and fact-finding sessions relating to such matters.”
The changing admissibility standard likely forces the institution’s hand in challenging the Wainstein Report’s assertions. Evrard, in a letter to NCAA Director of Enforcement Tom Hardy in January 2016, highlighted some of the claims in the Wainstein Report that were unfounded. For example, the report does not provide citations to support its statement indicating that Academic Support Program for Student-Athletes (ASPSA) personnel called Crowder on occasion to ask that student-athletes be enrolled in the irregular courses, which is the type of special arrangement upon which the NCAA is basing its impermissible benefit allegation (No. 1).
The inclusion of undocumented interviews also raises legitimate hearsay concerns. Wainstein claimed that former men’s basketball academic counselor Wayne Walden “acknowledged knowing how the courses worked, including that Crowder did at least some of the grading.”
Walden denied that charge.
“Statements in the Wainstein Report seem to have been interpreted as if I had secret knowledge about these courses which I did not share with the coaches,” Walden wrote in an email to Inside Carolina in January 2015. “This simply is not true.”
Bradley Bethel, a former ASPSA reading specialist, exposed further discrepancies and falsehoods in the Wainstein Report in his documentary, "Unverified: The Untold Story Behind the UNC Scandal."
In addition to defending charges against ASPSA counselors Beth Bridger and Jaimie Lee, Bethel’s documentary includes an interview with former senior associate athletic director John Blanchard, who felt misrepresented by the Wainstein Report. Blanchard described his interviews with investigators as affirming and non-combative, and said he actually thanked Wainstein after being shown emails that indicated faculty was aware of the AFAM concerns as far back as 2002. The final report, however, absolved faculty from blame and shifted it instead to ASPSA counselors.
“The day of the Wainstein Report, I remember sitting with my wife in her office, so excited to hear it,” Blanchard told Bethel. “So excited for vindication, clarity. 'They’re going to hold people responsible.' And when it was released, I was stunned. Just completely stunned. It was just, ‘Oh my gosh, what happened?’ I guess I’m that naïve because not only did they not support what they said, they actually cast skepticism on my testimony, which they never did in the [interviews].”
UNC is now likely tasked with revisiting the Wainstein Report to determine the veracity of its specific claims.
In keeping with NCAA protocol, UNC has 90 days to respond to its third notice of allegations received on Dec. 13. Sankey’s decision to move the goal posts may affect that timeline.
“Based on what I’m reading, the standard of evidence apparently has been reduced by the committee, so we may want to introduce additional information that meets this lower standard that they’ve now introduced,” UNC athletic director Bubba Cunningham told reporters following the third notice’s release.