Wainstein Shows UNC Compliance a Lifeless Raggedy-Andy Doll – And Self-Reporting by Schools a Sham

On March 12, 2012, the NCAA Committee on Infractions found that a former UNC tutor had committed academic fraud and provided impermissible benefits to athletes, and that impermissible benefits, including cash and other payments, were provided to athletes by as assistant coach and/or agents. These violations variously took place, the COI found between 2007 and 2010.

And that ’12 COI also made this summary conclusion: “[UNC] self-discovered the academic fraud and took decisive action when the former assistant coach’s violations came to light. It cooperated fully, is not a repeat violator and, although there is a finding of failure to monitor, the institution exhibited appropriate control over its athletic program.

The above 2012 COI statement, we now know from the October 2014 Wainstein report, was false. Wainstein found that none of the investigations which predated his had adequately reviewed all relevant emails. (As I pointed out in my last post, Wainstein correctly identified the collection and review of all relevant emails as the mandatory first step in any forensic analysis.) Because all prior investigations failed to complete that mandatory first step, UNC did not — as the ’12 COI stated — “cooperate fully.” The ’12 COI investigation and findings were tainted by the willful blindness of UNC highest administrators, coaches, faculty and tutors.

COI Emphasized Need for Email and Electronic Evidence Review: That same ’12 COI decree, like Wainstein’s Report, heavily emphasized the need to first review all potentially relevant electronic documents when undertaking an investigation. Referring to the tutor who provided impermissible benefits to athletes, the COI said:

Had an even cursory review of her institutional emails been performed, the administration would have likely learned of the existence of the academic fraud, recognized the need to do more than just terminate the employment of the former tutor, and addressed the problem by admonishing student-athletes not to have further contact with her. The evidence of the academic fraud was clearly set forth in the emails, as evidenced by its discovery once the emails were reviewed, as part of the 2010 impermissible benefits investigation.” [Emphasis added]

And the ’12 COI decision has, in fact, been cited repeatedly since then for the principle that a school also has a duty to review and monitor an athlete’s social media, once the school has some suspicion that an athlete may have engaged in some behavior which may have violated NCAA bylaws:

“The department of athletics has implemented an updated policy regarding social networking used by student athletes. The policy provides guidelines for student athletes pertaining to their use of various social networking sites and to  inform them of online behavior that the department will not tolerate. The policy notifies student-athletes that at least one coach or administrator has been assigned to monitor sites regularly, including specifically evaluating postings that identify possible improper extra benefits or agent related activities. Also provide direct contact information for the compliance office.”

The COI’s “Particularly Vigilant” Standard:  The COI also stated ponderously:

“This committee reiterates, as it has done in the past, that institutions must do more than just educate their student-athletes regarding agent and amateurism issues. Institutions must be particularly vigilant in monitoring those student-athletes who demonstrate potential as top professional prospects.

“During 2009 and 2010, [the COI continued] the institution failed to monitor the conduct and administration of the football program. Specifically, the institution failed to: a) monitor the activities of former student-athlete A; and b) investigate information it obtained suggesting that Student-Athlete 5 may have been in violation of NCAA legislation.”

Duty to Thoroughly Investigate, Upon Suggestion of Violation: The one overriding premise behind that entire ’12 COI decision was the school’s duty to thoroughly investigate, upon the receipt of some information suggesting that some violation has occurred.

Despite this focus explicitly stated in the ’12 UNC COI decision, no one at the school did what Wainstein showed could easily have been done, once the school discovered the existence of academic fraud and cash flow to players: compile a database of all emails, identify 48 “key” search words, and perform that search.  A White Shoe Law Firm Review is hardly required to initiate and complete such a review. The absence of such a complete, but simple review, after UNC had some suspicion early-on that some of its athletes were engaged in phony courses and submitting phony papers, is conclusive evidence of UNC’s wilfull blindness behind the twenty years of academic corruption.

Investigate Players – But Don’t Investigate Employees: I emphasize the 2012 COI findings not just to display the duty to thoroughly investigate, and to be “particularly vigilant” after receipt of some information concerning a potential pattern of violation.

The ’12 COI decision highlights the built-in heavy bias of the NCAA and members schools toward choosing to investigate players, coupled with a parallel bias against investigating coaches, administrators, and faculty. As an example, look again to the ’12 COI decision, which, believe it or not, emphasizes the school’s duty to require the “student-athlete” to give the school notice when he intends to travel off-campus! These are adult student-athletes, who the NCAA believes ought be treated like 13-year olds at summer camp. But the school has a much stronger legal duty to investigate all potential misconduct committed by its employees, than it does to investigate players, who are mere students at the school.

But that zeal for smothering, relentless investigation of the minutiae of the player’s daily conduct vanishes seems to vanish, as regards similar investigations of employees of the university, many of whom have substantial supervisory or fiduciary responsibilities. This is “hands-off” attitude toward the conduct (and electronic trail) of coaches, top administrators, and faculty is a major part of the “willful blindness” at, not just UNC, but most schools.

When I was in college I worked in a pickled herring factory in Eastport, Maine. There were two buildings: the herring coming in off the boats got trucked up the hill, then conveyor-ed up one story, where they got dumped into the side of Building 1, to then be fed down a series of wooden sluices, supporting by a complex network of wooding “crib-work” underneath, until the fish got to the ladies working the fillet machine. Once fillet-ed, they got trucked to Building 2, where they “cooked” in brine for three days.

Massive rivers of fish would come thrashing down those sluices —  and a few would inevitably spill over, landing down in the dank crib-work below. One of my duties was to periodically climb through all that cribwork, way over in the back, to shovel up the spilled fish. It wasn’t easy to even get a shovel and bucket in under there; once you got there, it was even more difficult to get back, with bucket overflowing with fish. Sometimes you missed a fish.

If I did miss one, I knew about it two days later, when Poozer Mitchell, my 60-year old foreman, would come find me . “Billy,” he’d laugh, “Get your bucket.” I was the low man on the totem pole, and no one wanted to go get those fish under there — not just because it was dark and wet. After two overnights, the herring began to de-compose, and gave off the one of the most foul, penetrating smells I’ve known. No one who walked in the building could ignore the stench.  

Wainstein’s Report found the dead UNC academic fraud fish way out back, up under all the cribwork, decomposing and rotten. And Wainstein found so many of those old decomposing fish carcasses that he has made clear what we didn’t know before: that No one entering the building could overlook the stench. Even if you are Roy Williams, or Butch Davis, or Chancellor Thorp, or the many others whose habits were to cover their eyes to make themselves “willfully blind,” all could still smell the stench.

——–   Three primary de facto lessons from the Wainstein report are:

1) Schools need to much more aggressively — and regularly –  investigate, not player “misconduct,” but coach and other school staffing misconduct. Had, for example, UNC’s athletic Compliance Department conducted random thorough, and periodic “spot” audits of coaches and staffers emails, over the last 20 years, chances are high that the collusion to commit fraud would have been discovered long ago. The entire NCAA and member school regulatory and compliance framework has its investigatory sights focused on player, not school employee behavior.

2) UNC Athletics Compliance is a Raggedy Andy Doll: UNC athletic “Compliance” has been a laughable, useless Raggedy Andy Doll, wearing a blue security guard “UNC Compliance” breast-pocket badge, but entirely lifeless and sound asleep, for 20 years.

raggedy-anne

3) The “self-regulating” and  “self-reporting” premises upon which the entire NCAA and member school  compliance and enforcement framework are founded are a sham. As I’ve pointed out in past postings, the list of the most notorious NCAA violations cases over the last six or seven years —  USC, Michigan, OSU, Penn State, Miami, and UNC — is one in which none of those cases, most of which involved some significant, sometimes outlandish, and even disgusting behaviors — was “self-reported” by the school to the NCAA. Wainstein’s ’14 UNC report moves UNC, now, to somewhere near the top of that list of member schools, based upon longest duration of violative behaviors, and largest number of affected players. And, because the schools on this list are almost all “flagship” NCAA operations, with the highest of gross incomes, and hefty academic and athletic reputations, the fair operating presumption is now that “self-reporting” and “self-regulation” are sham operations at every school.

[I will re-post an August 2012 posting on related topics. "Tressel-Paterno-Freeh-Peppers, a 1924 Constitution, and Raggedy-Ann Doll Compliance," which you can also reach by clicking on this link here.]

 

 

 

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Airplane Banner on Flyover in East Lansing, At Michigan – MSU Game

Taken over MSU Stadium Just Before Start of UM-MSU Game

Taken over MSU Stadium Just Before Start of UM-MSU Game

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Salt Water Pool at Seaside, Cape Town, South Africa

Taken by My Daughter Emma, 3 Hours Ago, Before Diving In --  Seaside Salt Water Pools, Cape Town, South Africa

Taken by My Daughter Emma, 3 Hours Ago, Before Diving In — Seaside Salt Water Pools, Cape Town, South Africa

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Wainstein’s UNC White-Shoe Review: Email Trails and the Insider’s Hokey Pokey Line Dance

The Ken Wainstein UNC report penetrated a twenty-year academic fraud at UNC.  At least it’s now plain that Mary Willingham deserves an apology for all the vitriol she’s absorbed, which should have been directed toward the many staffers and faculty in on the fraud — including all the coaches briefed in 2009 with a PowerPoint outlining the courses taken by athletes which didn’t even require them to “stay awake.”

Other people have adequately outlined the basic conclusions from Wainstein’s thorough review, but might have overlooked the extent to which the elements of Wainstein’s forensic “white-shoe-review” technique (which were also on display in his UMiami “investigation of the NCAA investigation” report) not only reflect his unique bias, but also result in reports which combine some strong, well-founded conclusions with fabricated facts or principles at odds with the evidence before him.

1. Always start with the email trail:  Wainstein and his team first “conduct[ed] an extensive email and document review,” which included review of 1.6 million emails using 48 key search-words. Broad email review has been the cardinal rule — a cookbook, mandatory first step — in any any forensic review, since the ubiquitous use of email to conduct business began 25 years ago.

2. Then use that email gold-mine to plot out your review: “We then used,” Wainstein instructs, “those emails to craft our investigation strategy.”

3. Go soft on the motives of participants: Wainstein gets a starry-eyed when analyzing the motivations of central protagonists Debbie Crowder (who, Wainstein notes, felt that it was her “duty” to help others who struggled with difficult courses as she had as a UNC undergrad), and Mr. Nyang’oro, the department chair who, Wainstein reports with fawning approval, claimed that his sham courses were conducted because he was, early on, haunted that two student-athletes who had flunked out later ended up either in jail or murdered. (This echoes Jim Tressel’s preposterous 2011 explanation for having long-concealed information that his players had been trading with a tattoo-parlor owner, because that owner had been involved, Tressel had “heard,” with some events which sometime long ago involved a murder.)

Wainstein is, in many ways, circumspect. But he shows here an almost devil-may-care propensity to parrot these “noble intent” excuses which overlook the adult wisdom that beginning intent often morphs, as Shakespeare or Conrad point out, into a bricolage of mixed-motives toward power, status, money, and social acceptance. Wainstein might want us to believe that he is naive, but his report, and his process, belie any such claim of naivete.

HokeyyPokey

4. Wainstein Likes to Do the Hokey-Pokey –  Give cover to the big-shots: As I pointed out in a previous post (Badly Flawed NCAA Enforcement Review Uses Ouija Board – Not Rule of Law- to Find Violations ), Wainstein’s UMiami/NCAA report was almost universally misinterpreted. That report registered one central, well-founded, and honest conclusion: that there existed zero written rules, laws, regulations, department policies — anywhere – which were violated by the NCAA staffers. Had Wainstein been completely honest, he would have ended his analysis there. (See also Wainstein Touted Emmert’s Miami “Prudential Concerns” AND Authorized NSA Surveillance). Continue reading

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The Fight Doc in a Lifeguard Chair — State of the Art Football Concussion-Management

A Simple Suggested Paradigm for Football Game Concussion Management: The Fight Doc in a Lifeguard Chair With Unobstructed View and Authority

Atul Gawande’s Checklist Manifesto illustrates the potent power of a simple common-sense change: insisting that physicians and other health care providers always use simple checklists, to insure that all necessary tasks are completed, almost always causes the number of medical errors to plunge.

I wrote two weeks ago that the Shane Morris events showed that Michigan (and other schools) needed to place a medical staffer up in the press box, armed with several TV monitors, to watch the field below for any on-field event which might raise some suspicion that some head or concussion injury may have occurred. The press release later issued by Michigan pronounced that Michigan would commit to having just such a press box medical monitor at every home game.

I am proposing another simple step to allow better assessment of potential football concussion injuries. I was led to this thinking because I found this interview of Michigan sideline neurologist Dr. Jeff Kutcher, reported last Thursday in the Detroit News, so disquieting. Continue reading

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Michigan’s Brandon & MSU’s Hollis Proposal to NCAA: Let Us Fill Empty Seats on TV with “Photoshopped” Students

Michgan AD David Brandon and his Michigan State counterpart, Mark Hollis, held a joint press conference today to announce that they’ve joined forces to submit what they called a “creative, new” proposal for legislation to be included in the Power 5 governance structure by January 1:  to allow student crowd images on TV to be “photoshopped-in.”

Both AD’s have been plagued by the failure on the part of students at both schools to attend and remain in attendance at football games.

MSU AD Mark Hollis

MSU AD Mark Hollis

Hollis tweeted at 6:05 p.m. last Saturday about his dissatisfaction with MSU students’ failure to remain in attendance for all four quarters of MSU’s 27-22 victory over Nebraska Saturday night:

“I spoke with many students & they share my disappointment and embarrassment of the support coming from the southeast corner on Saturday.”

Michigan AD David Brandon

Michigan AD David Brandon

Brandon’s problem has been to get the Michigan students to even show up at all. Student attendance has decreased from an average of 21,000 to around 13,000 per game, and many of those who do attend also depart early. It appears as though some, if not much of the decrease resulted from the athletic department’s unilateral decision to change from the long-standing system which had located freshman in the end zone, and seniors on over toward the 50 (which allowed friends to sit together), to a first–come, first-serve system. And prices were jacked from $35 to $45 per game. Both Michigan and MSU, along with Ohio State, have seen gradual decreases in student attendance since 2009. Continue reading

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Big 12 Bowlsby’s $25,000 Fine of ISU AD Jamie Pollard Jumps the Gun

The $25,000 fine imposed by commissioner Bob Bowlsby upon Iowa State AD Jamie Pollard for suggesting at a post-game press conference that his team was ‘jobbed’ by the referees in Saturday’s 37-20 loss to Oklahoma State at first appears appropriate.  But, in light of the startling breadth of Pollard’s clearly unique charge of conference-wide corruption, it is premature.

I’ll admit that Pollard’s post-game claim that ISU had been “jobbed” by the referees made him look the kind of fellow who endlessly fiddles the dial of the funky old floor-model RCA tube radio late at night, confident he’ll pick up from the airwaves the same alien voices he’ll swear to you he’s picked up many times before.

But I’ll argue that Pollard’s charges were not just serious. They were unique, as compared to the occasional but somewhat common post-game coach outbursts about officiating, usually focused upon one or two allegedly bad calls in the game just completed. Continue reading

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Notre Dame ‘Academic 5″ Case Shows Why Player Accused of Academic Violation Should Revoke FERPA Waiver

It’s been almost two months since  Notre Dame first disclosed that a group of players were suspected of academic impropriety, and that Honor Code investigations and proceedings were ongoing. Schools typically are quite tight-lipped about many topics, including player injuries, so that Notre Dame’s chattiness about charges which were entirely unproven was puzzling.

Notre Dame appears to have done its homework now, since the school just announced yesterday that the results of the investigations would not be released by the school to the public. The players involved should have, once notified that suspensions was going to happen, immediately informed the school that the FERPA waiver which they executed as a part of the “Student-Athlete Statement” which they sign each year was revoked — which would make clear to the school that it had no authority to release any information about the charges. Continue reading

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How ISU AD Jamie Pollard and Edward Snowden Are Alike: Civil Disobedience and Whistleblowing the Whistleblowers

Iowa State AD Jamie Pollard, in state of obvious high dudgeon, today commandeered the post-game press conference podium, usually first given to the head coach, to deliver his judgment:

“Iowa State takes great pride in how we conduct our business.”

I had assumed that this was a sport. But, go on.

“Those of you who know me personally know that I work really hard to make sure my staff and I adhere to that.” Continue reading

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Why Does Notre Dame “Academic 5″ Allow School to Say Anything About Academic Charges?

The five Notre Dame football players (DeVaris Daniels, Kendall Moore, Ishaq Williams, Eiler Hardy, and KeiVarae Russell) who have apparently just had “hearings” conducted by Notre Dame to determine the validity of charges of alleged academic impropriety have been now suspended for seven weeks. (With the exception of Hardy, whose suspension began on August 30.)  Assuming they are not guilty of the infractions, the significant national publicity has unnecessarily damaged their status and reputations. Continue reading

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