SOUTH BEND, Ind. — Notre Dame will appeal an NCAA Committee on Infractions panel’s recommendation that it vacate 21 wins from the 2012 and 2013 seasons, with its appeal hinging on four principal reasons.
Those reasons, which Notre Dame argued in its Sept. 23 expedited penalty hearing with the NCAA, were summarized in the NCAA’s report on Notre Dame’s public infractions released Tuesday.
Notre Dame does not contest that Level II academic violations occurred, or the probation penalty and $5,000 fine levied by the NCAA. The infractions panel was “unpersuaded” by Notre Dame’s arguments against the penalty of vacating wins, though the university will exercise its right to an appeal in front of an NCAA Infractions Appeals Committee.
Point No. 1 of Notre Dame’s argument: The “application of the penalty intrudes into or constrains the institution’s autonomy over student academic misconduct.” Notre Dame argues that “purely academic decisions should not be affected by athletics considerations,” and points out that the NCAA forcing the football program to vacate wins could force it and other institutions to make academic decisions based on potential NCAA penalties.
In this instance, Notre Dame argued had it simply expelled the students in question — they weren’t named by the NCAA, but the report stems from the 2014 suspensions and dismissals of Wide receiver DaVaris Daniels, safety Eilar Hardy, linebacker Kendall Moore, cornerback KeiVarae Russell and defensive end Ishaq Williams. If the university expelled those five, instead of addressing it through its honor code process — which allowed Russell and Williams to return to the university and earn their degrees — it wouldn’t have had any affect on the players’ prior eligibility, and thus Notre Dame would not have had to report the violations to the NCAA.
“University academic staff members became concerned about potential academic misconduct by one student-athlete and the former student in the summer of 2014,” Notre Dame vice president for public affairs and communications Paul Browne said in a statement. “As a result, the University promptly launched a comprehensive investigation that included the review of 95,000 documents. The University immediately suspended the involved student-athletes from all athletic activities. At the conclusion of its honor code process, the University dismissed four student-athletes and imposed retroactive grade changes in the affected courses.”
The NCAA’s response: The panel does not believe that the threat of athletic sanctions stemming from purely academic determinations would alter how potential violations are handled.
Point No. 2 of Notre Dame’s argument: “The vacation penalty is discretionary and should not be applied in this case.” Notre Dame cites that vacation of wins for academic violations is not mandatory by NCAA bylaws and believes it to be an excessive penalty.
“As we said at the outset of this investigation, Notre Dame would willingly accept a vacation of records penalty if it were appropriate,” university president Rev. John Jenkins said. “It is not in this case. Indeed, should this precedent stand, it could create a perverse incentive that will discourage institutions from investigating so aggressively and imposing the penalties for academic dishonesty that their honesty committees might judge appropriate.”
The NCAA’s response: It’s not buying this argument. From the report: “Merely because a penalty is not mandatory does not mean the panel cannot exercise its discretion to apply it.”
Point No. 3 of Notre Dame’s argument: These violations did not involve serious institutional misconduct, as prior academic violations that resulted in the vacation of wins did.
"When you hear about vacating wins, you think of lack of institutional control," coach Brian Kelly said Tuesday. "You hear of clearly abuse within the university relative to extra benefits, things of that nature. And when these don't even come close to that, although you hear those things, you just never think it would happen."
Notre Dame pointed out a number of cases in which the NCAA ruled a vacation of wins was appropriate, and acknowledged the closest one to their involved East Carolina in 2011.
The point Notre Dame made as to why their case is different than East Carolina’s though, is East Carolina’s academic misconduct involved a student employed by the athletic department as an academic tutor. Notre Dame’s case centered around an athletic trainer employed by the athletic department, which is a distinction that is applicable by current NCAA bylaws, which state that a a student employee is only considered an institutional employee when determining academic violations if “a) he or she has institutional responsibilities to provide academic services to student-athletes; or b) he or she engages in academic misconduct or provides impermissible academic assistance at the discretion of a non student employee, an institutional staff member or a representative of the institution’s athletic interests.
In short, Notre Dame is arguing that the student athletic trainer in question was not an institutional staff member, and that because the violation does not involve an institutional staff member, the punishment does not fit with prior cases.
The NCAA’s response: The panel was “unpersuaded that a different result should obviation merely because one student was an academic tutor and the other was an athletic trainer.” The NCAA argues both were institutional staff members at the time they committed their violations.
Per the NCAA report: “The term ‘institutional staff member’ includes student workers who work in any capacity on behalf of the institution, whether as a regular employee or a volunteer capacity.” Essentially, the NCAA does not see a distinction between, say, a coach committing the violations and a student employee/volunteer.
Point No. 4 of Notre Dame’s argument: The penalty of vacating wins could force other institutions to make “athletically-driven changes to academic policy.” This is largely what was argued in the first point — that Notre Dame and other institutions should have control over their academic discipline and not have to worry about NCAA penalties (otherwise, universities could simply expel academic violators and not grant them due process so as to preserve athletic records).
The NCAA’s response: “It is the panel’s expectation that member institutions develop, implement and apply academic policies to their students, including student-athletes, in a fair and equitable manner and take the appropriate actions needed for the students and the institutions, regardless of whatever penalties may result from instances of academic misconduct.
Notre Dame will initiate the appeal process soon and expects a decision within several weeks.