COI Hearing Prep

Inside Carolina
Posted Oct 27, 2011


As University of North Carolina officials prepare for Friday’s NCAA Committee on Infractions hearing in Indianapolis, Inside Carolina provides a glimpse into the proceedings.

The Division I Committee on Infractions consists of 12 members, headed by interim chair and Conference USA commissioner Britton Banowsky, and its administrator, Shepherd C. Cooper. Eligibility for committee membership is not restricted to NCAA institutions, as three non-affiliated attorneys are currently serving three-year terms.

North Carolina will be represented by Chancellor Holden Thorp, director of athletics Dick Baddour, faculty athletics representative Lissa Broome and director of compliance Amy Herman, as well as the school’s legal counsel.

The NCAA’s enforcement staff will be represented by Chance Miller, the primary investigator on the case, Rachel Newman-Baker, the director in charge of the case and Vice President of Enforcement Julie Roe Lach.

The Committee on Infractions (COI) assumes the role of judge and jury at the hearing and considers information submitted by the enforcement staff, the institution and all involved parties. The closed hearing works similar to a court proceeding as all involved parties, including the enforcement staff, present opening statements. Presentations are made for each individual allegation and committee members are able to ask questions throughout the process. After the allegations are discussed, each party offers a closing statement.

The hearings are designed to last only a few hours on a single day in order to save time, but there are exceptions. Southern California’s hearing in Feb. 2010 lasted for three days.

Former COI chairwoman Josephine Potuto published an article in 2010 entitled, “The NCAA Rules Adoption, Interpretation, Enforcement, and Infractions Processes: The Laws That Regulate Them and the Nature of Court Review,” in The Vanderbilt Journal of Entertainment and Technology Law that provides an in-depth look into the COI proceedings.

The current Nebraska faculty athletics representative detailed a list of items that the COI evaluates to decide whether violations occurred:

  • (1) the internal consistency, cohesiveness, and logic of an individual’s information on each subject about which she provides information,
  • (2) the consistency of that information compared to other information provided by the same individual,
  • (3) the consistency of an individual’s information measured against the whole of the information in the record,
  • (4) the credibility of individuals providing information, including whether they have any motive to obfuscate, lie, or withhold information,
  • (5) any corroborating documentary or physical information, and, of course,
  • (6) whether any party disputes the accuracy of the information.

The COI hearing has come under fire in recent years for its lack of resemblance to a normal judicial case. Potuto describes the process as being “akin to arbitration in that it works from a formal agreement of the parties.”

Since the NCAA holds no subpoena power to compel direct witness testimony, Potuto claims that “reliance on hearsay is unavoidable” and that “the use of confidential source information is a necessary component of an effective enforcement system.”

The NCAA consistently issues a gag order to its member institutions to prevent hearing details from entering the public realm, so actual information is hard to come by. Therefore, for the N.C. media that will camp out in Indianapolis on Friday, UNC officials will not be able to answer any of their questions about what actually occurred during the hearing.

The U.S. House Sub-Committee on the Constitution hearing in 2004 focused on the NCAA and its due process, which shone an unfavorable light on how the NCAA conducts its business in the COI hearings.

Gary Roberts, then a member of the NCAA's Division I Academics, Eligibility, and Compliance (AEC) Cabinet, provided insight into the NCAA’s preferred method of handling witnesses in his testimony:

“The first-hand witnesses, including the ‘accusers,’ are not allowed to attend the hearing or to give testimony even if they want to, no matter how crucial their testimony is to the case. Thus, the accused institution and involved individuals have no ability to confront or to cross-examine the witnesses against them, or to present witnesses in their defense. Audio or video tape recordings of the interviews of first-hand witnesses are not allowed to be played at the hearing so voice inflection, body language, or even context cannot be evaluated by the Infractions Committee.”

Another glaring omission from standard judicial procedure is the COI’s ability to impose penalties for violations not included in the notice of allegations. While the COI has reduced major allegations to secondary level, it has also added findings of lack of institutional control and institutional failure to monitor.

Roberts noted that “institutions, coaches, or student-athletes can be found to have violated rules with serious adverse consequences even though they have been given no notice of any such charge against them and have not had any opportunity to investigate or to prepare a defense.”

After the hearing, the committee will discuss the evidence and issue it’s ruling with penalties in approximately 8-12 weeks, according to a NCAA spokesperson.

That report will be released with names deleted after the institution and other principals have been notified of the contents. The NCAA website notes that penalties are assigned on a case-by-case basis as “each case is unique, and applying case precedent is difficult (if not impossible) because all cases are different.”

North Carolina self reported penalties of vacating two seasons of wins, a three-year reduction of scholarships (nine total) and two years of probation in its response to the notice of allegations on Sept. 19. The COI can elect to accept those penalties or implement its own disciplinary action.

Thorp and Baddour have consistently pointed to the university’s complete cooperation with the NCAA throughout the course of the investigation, but Potuto stressed in her journal article that “only extraordinary institutional cooperation can give rise to penalties credit.”

Former assistant coach John Blake is expected to attend Friday’s hearing, but it’s important to note that the COI’s penalties only directly apply to an institution. The only recourse to discipline Blake lies in the committee’s ability to shackle him with a “show cause” order, which forces a NCAA institution that would consider employing Blake to impose penalties as directed by the COI or provide evidence why it did not.

Despite the insistence of various media outlets that UNC could still get hit with a lack of institutional control charge due to Blake’s involvement, it’s improbable. Potuto exercised the extreme example of a head coach paying a student-athlete $100,000 to illustrate how the institution involved would likely avoid a lack of institutional control charge provided it implemented adequate compliance procedures and conducted sufficient bylaw education.



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