CHESHIRE PARKER SCHNEIDER & BRYAN, PLLC ATTORNEYS AT LAW

Transcription

1 CHESHIRE PARKER SCHNEIDER & BRYAN, PLLC ATTORNEYS AT LAW JOSEPH BLOUNT CHESHIRE V+ JOHN HILL PARKER ALAN M. SCHNEIDER KIMBERLY W. BRYAN ±* JOHN KEATING WILES COLLIN P. COOK DAVID E. HOLM ± AMY L. BRITT ± ELLIOT SOL ABRAMS BRADLEY C. JONES CATHERINE S. BROWN OF COUNSEL DAPHNE D. EDWARDS + BOARD CERTIFIED SPECIALIST IN CRIMINAL LAW ± BOARD CERTIFIED SPECIALIST IN FAMILY LAW * DRC CERTIFIED MEDIATOR 133 FAYETTEVILLE STREET POST OFFICE BOX 1029 RALEIGH, NORTH CAROLINA TELEPHONE: FAX: FIRM ADMINISTRATOR KATIE REHKAMP LEGAL ASSISTANTS MOIRA R. BITZENHOFER MITZI K. GARDNER CHLOE J. REHKAMP LORI A. LINFANTE LISA M. RAMPELLO CHEYENNE R. MERRIGAN LAUREN A. KAYANI CERTIFIED LEGAL ASSISTANT NORTH CAROLINA STATE BAR CERTIFIED PARALEGAL Tom Hosty Director of Enforcement National Collegiate Athletic Association Post Office Box 6222 Indianapolis, Indiana *Via Re: Renewed Request for Information Dear Tom: Thank you for your April 7, 2017 letter regarding our request for information. We have narrowed our request in light of your concerns. We provide below a background section to give some additional context to our requests so that you can better understand the relevance of the information we are seeking. Lastly, we reply briefly to the issues raised in your letter. BACKGROUND I. NCAA ENFORCEMENT STAFF FAIL TO ADHERE TO PROCESSES THAT ENSURE ACCURACY OF ALLEGATIONS BEFORE BRINGING THIRD NOTICE OF ALLEGATIONS. The NCAA spent years developing the May 2015 Notice of Allegations and another year refining the allegations before issuing the April 2016 Second Notice of Allegations. Neither the first nor the Second Notice of Allegations charged Ms. Crowder with substantive wrongdoing. However, despite claiming to have a robust pre-accusation process to ensure that any allegations brought by the NCAA are accurate and not the product of inappropriate pressure, NCAA Enforcement Staff brought the December 2016 Third Notice of Allegations within 11 business days of receiving inappropriate pressure from a conflicted hearing panel. That Third Notice of Allegations charged Ms. Crowder, for the first time, with substantive wrongdoing.

2 Page 2 The Third Notice of Allegations was brought without the procedural protections the NCAA utilizes to ensure the accuracy of allegations. It was instead the product of pressure from the hearing panel. The hearing panel s actions establish that the October 28, 2017 hearing was not a procedural hearing, but that it was instead an initial determination under NCAA Bylaws. Moreover, the hearing panel was tainted by Mr. Sankey s apparent conflict of interest. Therefore, the hearing panel must be recused and the Third Notice of Allegations must be rescinded. a. NCAA claims that a tremendous amount of thought and analysis is required to ensure that its allegations are not decided haphazardly or brought to appease a particular person. The NCAA publicly claims that its enforcement process is exceptionally thorough and that extensive safeguards and quality control measures ensure that its allegations are accurate when brought. For example, NCAA Associate Director of Enforcement Katherine Sulentic wrote an article for Sports Illustrated entitled My motto is get facts, be fair and, most important, get it right. 1 In this article, Ms. Sulentic explains, [T]here are a lot of people at the NCAA national office trying... to get it right. That is especially true in enforcement. Just get it right. If I've heard that once, I've heard it a thousand times. What did the investigation reveal? Does it support an alleged violation or not? In the article, Ms. Sulentic further explained that the decisions about whether a violation occurred involve a tremendous amount of thought and analysis. She continued: The enforcement staff must meet a high bar to allege that a violation has occurred. Such an allegation is not, as many in the public may think, something that is decided haphazardly. Nor is it made to satisfy an outside interest or appease a particular person. Instead, we try to get every case right. Finally, Ms. Sulentic noted that, [i]n addition to NCAA rules, we also have operating procedures, official interpretations, internal reviews and other safeguards and quality control measures that help us make sure we get it right. After all, decisions are made based not on what the enforcement staff believes in a particular case, but on what facts we prov[e]. 1 Available at:

3 Page 3 Thus, the NCAA claims that its allegations are the product of a tremendous amount of thought and analysis, as well as robust internal reviews and other safeguards and quality control measures, which collectively ensure that an allegation is not... decided haphazardly or brought to appease a particular person or outside interest. b. In May 2015, after years of investigating and analyzing information using its exceptionally thorough process, the NCAA brings the First Notice of Allegations, which does not accuse Ms. Crowder of substantive wrongdoing. The NCAA spent years investigating the University of North Carolina ( UNC ) prior to the issuance of the Notice of Allegations in May The only accusation against Ms. Crowder in this May 2015 Notice of Allegations was that she failed to participate in the investigation. c. In April 2016, after a year of additional fact-finding and processing that new information, the NCAA brings a Second Notice of Allegations and, again, the NCAA did not accuse Ms. Crowder of substantive wrongdoing. The only accusation against Ms. Crowder in the April 2016 Second Notice of Allegations was that she failed to participate in the investigation. d. In September 2016, Mr. Greg Sankey the Commissioner of the SEC is selected as the chair of the hearing panel, creating a clear conflict of interest. With the formation of the hearing panel, the NCAA created a conflict of interest by having the Commissioner of the ACC s rival conference on the panel, as the chairperson. 2 e. In October 2016, the conflicted hearing panel held a hearing in which the panel fails to limit its inquiries to procedural matters. On September 26, 2016, Mr. Sankey sent a letter to all parties to notify them of an upcoming hearing, the sole focus of which was supposed to be procedural matters raised by UNC and Dr. Boxill. Although the sole focus of the hearing was supposed to be on preliminary procedural matters, the hearing panel used the opportunity to engage in a substantive inquiry into the facts. Specifically, the panel probed the underlying reasons for amending the NOA [Notice of 2 On April 4, 2017, we sent a letter to the NCAA seeking Mr. Sankey s removal from the panel citing this conflict of interest and NCAA Bylaw , which reads, Conflict of Interest. No member of a hearing panel shall participate in a case if he or she is directly connected with an institution under investigation or if he or she has a personal, professional or institutional affiliation that may create the appearance of partiality. It is the responsibility of the panel member to remove himself or herself if a conflict exists. We have not yet received a response to this letter.

4 Page 4 Allegations]. 3 As noted in a letter from the hearing panel discussing the hearing, The panel [wa]s concerned about the parties expressed rationale for removing former Allegation No. 1. The change appears to have been based, in part, on a belief by the enforcement staff that the COI [Committee on Infractions] does not generally support the consideration of impermissible academic assistance allegations. The panel informed the parties that the panel believes there is a basis for alleging violations of NCAA legislation. Thus, the purported procedural hearing was used by the hearing panel to improperly conduct an initial determination of whether the panel agreed with the formulation of the charges under NCAA Bylaw f. On November 28, 2016, the hearing panel instructed NCAA Enforcement Staff to bring new and different allegations. In a letter to all parties on November 28, 2016, the hearing panel wrote, in part, that the panel s position is that the evidence available to the panel may indicate that the behaviors surrounding [AFRI/AFAM] classes... could... implicate impermissible academic assistance. The panel then noted that it intends to explore those issues whether under the current or another amended notice. Finally, the panel stated that the allegations may not [currently] be framed in a manner consistent with the information presently before the panel, and that the panel requests that the enforcement staff review whether the potential violations in this case are alleged in a fashion to best decide this case. The panel gave enforcement staff until January 3, 2017 to decide whether to respond to this pressure and issue a third notice of allegations. g. On December 13, 2016, and without any new evidence, NCAA Enforcement Staff bring a Third Notice of Allegations, which, for the first time, charges Ms. Crowder with a substantive violation. Despite the existence of a robust process designed to make sure that NCAA Enforcement Staff get it right before issuing any allegations, despite that the NCAA spent years investigating and analyzing the information before issuing the May 2015 First Notice of Allegations, despite that the NCAA spent another year investigating and processing information before issuing the April 2016 Second Notice of Allegations, and notwithstanding that there was no new information, the NCAA Enforcement Staff issued a Third Notice of Allegations only 11 business days after the inappropriate pressure from the hearing panel. Quite clearly, the rules and operating procedures, official interpretations, internal reviews and other safeguards and quality control measures that help [Enforcement Staff] make sure [they] get it right were not able to be implemented in 11 days; nor is 11 days sufficient for 3 The quotations in this paragraph are from the hearing panel s November 28, 2016 letter.

5 Page 5 the tremendous amount of thought and analysis required by Enforcement Staff to meet [the] high bar to allege that a violation has occurred. Thus, the Third Notice of Allegations the only notice of the three to date that accuses Ms. Crowder of substantive misconduct was issued without the safeguards that exist to ensure that Enforcement Staff get it right. Moreover, the NCAA failed to afford Ms. Crowder notice of the potential change to the Second Notice of Allegations as required by NCAA Internal Operating Procedure , which requires that Enforcement Staff notify all parties of a proposed amendment and give them an opportunity to respond via conference call with the chair of the hearing panel. Finally, there appears to be no bylaw that authorizes the hearing panel to consider the substance of the evidence at a procedural hearing; nor is there any authority for the hearing panel that is supposed to decide the case to issue its position on what charges should be brought. *** Thus, in response to the November 28, 2016 letter from a conflicted hearing panel, NCAA Enforcement Staff failed to implement the procedures and safeguards that ensure that an allegation is not, as many in the public may think, something that is decided haphazardly [or] made to satisfy an outside interest or appease a particular person. The Third Notice of Allegations is therefore not a reliable charging document. It is also the product of improper pressure from a conflicted hearing panel. The Third Notice of Allegations must be rescinded, and the hearing panel must be recused under NCAA Bylaw II. NCAA ENFORCEMENT STAFF ATTEMPT TO PROHIBIT MS. CROWDER FROM HAVING A REASONABLE OPPORTUNITY TO ACCESS THE CASE MATERIAL AND IMPOSE ARBITRARY DEADLINE FOR INTERVIEW. Shortly after being accused, for the first time, of committing substantive wrongdoing in December 2016, Ms. Crowder obtained legal counsel and began working to understand the accusations against her. However, she was severely behind in her ability to prepare because the first two notices of allegations had not accused her of substantive wrongdoing. The allegations against her relate to conduct occurring up to 40 years ago, and the most recent allegations pertain to conduct alleged to have occurred nearly a decade ago. Therefore, in order to prepare to respond to specific questions, she sought, through counsel, to have access to the NCAA s investigative file. However, it became apparent that the NCAA only allows accused individuals to review the documents through an online portal printing and saving documents are prohibited.

6 Page 6 More troubling, the portal that the NCAA requires accused individuals to use tracks the accused s review of the documents thus allowing the NCAA to identify what documents accused individuals review, how often they review certain documents, and when. This feature allows the NCAA to anticipate potential defenses and gives the NCAA a tremendous unfair advantage in the infractions process. The NCAA confirmed that this tracking occurs. However, the NCAA has thus far refused to provide a meaningful alternative option that would allow Ms. Crowder to prepare, while not requiring her to sacrifice the secrecy of her preparation. Notwithstanding the lateness of the substantive allegations against her and the lack of reasonable accommodations to allow her to prepare, the NCAA has set an arbitrary deadline for an interview that essentially ensures that she cannot be adequately prepared to respond to specific questions about documents created between one and four decades ago. Thus, it appears that the NCAA is either (1) attempting to force an interview in which it can surprise Ms. Crowder with documents, the context of which may be unknown to her given the age of their creation, or (2) attempting to avoid an interview with Ms. Crowder, while at the same time attempting to put the blame on Ms. Crowder for not giving an interview. In either case, the NCAA s approach appears to be contrary to a good-faith effort to determine the truth. RENEWED REQUEST FOR INFORMATION Having established the background necessary to understand why our requests seek pertinent case information, we request the following: (1) Please provide a description of each internal review, safeguard, and quality control measure the NCAA utilizes to ensure the accuracy of its allegations. Please also identify whether these measures were employed before the issuance of the Third Notice of Allegations, and, if so, when. (2) Please provide any and all documents reflecting compliance with NCAA Internal Operating Procedure with respect to the Third Notice of Allegations. (3) Please refer me to the authority that authorizes the Committee on Infractions to intervene in the charging decisions of Enforcement staff in the manner documented in the Committee s November 28, 2016 letter to all affected parties. (4) Please refer me to the authority allowing the NCAA to collaborate with an independent investigator hired by the University, and please provide a copy of any written communications or any other evidence of communications between the NCAA

7 Page 7 and Mr. Wainstein or any member of his firm that relates to this matter and is within the NCAA s possession, custody or control. 4 REPLY TO NCAA S INITIAL RESPONSE Thus far, your office has indicated that you are not required to produce work product and that this matter is not litigation. You also provided a non-responsive answer with respect to questions related to the collaboration with Mr. Wainstein. You continue to attempt to impose an April 14, 2017 deadline for an interview of Ms. Crowder. And you suggest that we should raise any procedural issues with Mr. Sankey, the chief hearing officer. We will reply briefly to each of these responses below. With respect to work product, although we did not intend to seek any work product with our initial request, we have narrowed our request in an attempt to address this concern. As for whether we are involved in litigation, your office has accused Ms. Crowder of serious misconduct. Although this matter is not being heard in a court of law, it is nonetheless supposed to be governed by NCAA legislation, and the process is supposed to afford accused individuals a fair opportunity to defend themselves. One requirement of a fair process is that the accuser cannot withhold potentially helpful information from the accused. The NCAA cannot on the one hand claim to employ a rules-based, fair process and on the other hand refuse to provide information helpful to the accused that is within its possession. With respect to the questions about the collaboration between the NCAA and Mr. Wainstein, it is our understanding that NCAA officials met with and discussed this matter with Mr. Wainstein during his investigation. We are seeking disclosure of the details of this collaboration because those details are relevant to our defense. Your response related only to the documentary information you obtained from the Cadwalader Report and did not address the collaboration between the NCAA and Mr. Wainstein that occurred during his investigation. Regarding an interview of Ms. Crowder, we will make her information available to those parties that desire to hear from her after we have dealt with the outstanding issues related to access to information, the apparent lack of fundamental fairness in the process thus far, and the last-minute, haphazard charging of Ms. Crowder with substantive violations without adherence to the procedural safeguards that ensure the accuracy of the allegations. Finally, your letter requests that we submit any procedural issues to Mr. Sankey for resolution. Of course, we have moved for his recusal and have not received a response. It would be inappropriate for us to submit such matters to him at this time. 4 We have received information that the NCAA worked secretly with Mr. Wainstein to determine whom to question and what to ask. Because Ms. Crowder participated in Mr. Wainstein s investigation, such collaboration may undermine the charge that Ms. Crowder failed to participate in this investigation.

8 Page 8 CONCLUSION We appreciate your desire to move this case along quickly. However, your office brought substantive charges against Ms. Crowder for the first time in December The other parties worked with your office for over a year after the First Notice of Allegations was issued in May 2015 to discuss the issuance of a Second Notice of Allegations in April Your office then spent another eight months preparing the case before giving in to pressure from a conflicted hearing panel and issuing a Third Notice of Allegations in December Ms. Crowder was entitled to the same procedural protections that the NCAA claims to adhere to in order to get it right before she was charged with substantive wrongdoing. The fact that those procedures were not followed with respect to the Third Notice of Allegations should not deprive her of a reasonable opportunity to prepare her case. With the above requests, we simply seek information in the possession of the NCAA that is helpful to our defense. Fundamental fairness requires that any such information be provided to Ms. Crowder. Moreover, because the conflicted hearing panel conducted an initial determination at what was supposed to be a procedural hearing, each of the members must be removed under NCAA Bylaw Finally, due to Enforcement Staff s failure to employ its robust safeguards and quality control measures before bringing the Third Notice of Allegations, and because this notice was instead the product of improper pressure from a conflicted hearing panel, the December 2016 Third Notice of Allegations should be rescinded. *** As always, we appreciate your time and attention to this matter, and we look forward to your responses to the above-listed requests for information. Sincerely, CHESHIRE PARKER SCHNEIDER & BRYAN, PLLC Elliot S. Abrams cc: Mr. Rick Evrard Mr. Randall Roden Mr. William Thomas Mr. Jon Duncan Mr. Joel McGormley