On November 22, 2016, the Committee on Infractions (“COI”) issued its report in which COI found violations of NCAA legislation in the University of Notre Dame’s (“Notre Dame”) football program. On the basis of those findings, COI determined this was a major infractions case and imposed penalties accordingly.

Penalties Imposed by COI

Notre Dame appealed the following imposed penalties and argued COI abused its discretion:

Notre Dame acknowledged that the student-athletes referenced in certain violations competed while ineligible and would be subject to NCAA Bylaw 19.9.7-(g) (vacation of records). Therefore, pursuant to NCAA Bylaws 19.9.7-(g) and 31.2.2.3, the institution shall vacate all regular season and postseason records and participation, including bowl contests, from the time football student-athletes became ineligible through the time they were reinstated as eligible for competition during the 2012-13 and 2013-14 football seasons. The individual records of the ineligible student-athletes shall also be vacated. However, the individual finishes and any awards for all eligible student-athletes will be retained. Further, the institution’s records regarding its athletics programs, as well as the records of its head coach, will reflect the vacated records and will be recorded in all publications in which such records are reported, including, but not limited to, institutional media guides, recruiting material, electronic and digital media plus institutional, conference and NCAA archives. Any institution that may subsequently hire the affected head coach shall similarly reflect the vacated wins in his career records documented in media guides and other publications cited above. Head coaches with vacated wins on their records may not count the vacated wins toward specific honors or victory “milestones” such as 100th, 200th or 500th career victories. Any public reference to the vacated contests shall be removed from the athletics department stationary, banners displayed in public areas and any other forum in which they may appear. Any trophies awarded by the NCAA in the sport of football shall be returned to the Association.

Finally, to ensure that all institutional and student-athlete vacations, statistics and records are accurately reflected in official NCAA publications and archives, the sports information director (or other designee as assigned by the director of athletics) must contact the NCAA Media Coordination and Statistics office and appropriate conference officials to identify the specific student-athletes and contests impacted by the penalties. In addition, the institution must provide the NCAA Media Coordination and Statistics office with a written report, detailing those discussions. This document will be maintained in the permanent files of the NCAA Media Coordination and Statistics office. This written report must be delivered to the office no later than 45 days following the release of this decision. The sports information director (or designee) must also inform the Office of the Committees on Infractions of this submission to the NCAA Media Coordination and Statistics office.

Committee’s Resolution of the Issues Raised on Appeal

In reviewing the infractions decision in this case, a penalty imposed by COI may be set aside on appeal if the imposition of the penalty constitutes an abuse of discretion by COI.

As the Committee stated in the Alabama State University case:

“…we conclude that an abuse of discretion in the imposition of a penalty occurs if the penalty: (1) was not based on a correct legal standard or was based on a misapprehension of the underlying substantive legal principles; (2) was based on a clearly erroneous factual finding; (3) failed to consider and weigh material factors; (4) was based on a clear error of judgment, such that the imposition was arbitrary, capricious, or irrational; or (5) was based in significant part on one or more irrelevant or improper factors.

Alabama State University, Infractions Appeals Committee Public Report, June 30, 2009, Page No. 23.

Notre Dame appealed COI’s prescription of a vacation of records penalty for its football program. Notre Dame argued that:

1. COI failed to consider the primacy of the institution’s role in addressing core academic matters;

2. The vacation of team records penalty is excessive in light of the lack of institutional involvement in or knowledge of the underlying academic conduct; and

3. The panel breached its obligation under Bylaw 19 to accord the institution a fair process.

Consideration of the Primacy of Notre Dame’s Role in Addressing Core Academic Matters

In this case, several incidents of academic misconduct were discovered. Notre Dame’s administrators and faculty members charged with administering the honor code determined that they would best serve the moral and intellectual formation of the students found responsible for the academic misconduct by retroactively reducing the students’ grade, thus ensuring that those students could not count toward a degree courses in which they had committed serious improprieties. This resulted in student-athletes being declared ineligible retroactively for competition. Notre Dame argued that COI’s imposition of a vacation of records penalty attached some punitive consequences to an institution’s exercise of its best academic judgement. Further, in the Notre Dame’s view, the hearing panel should not attach punitive consequences to an institution’s exercise of academic judgements when an institutional failure does not compel it to do so and no institutional failure exists.

An institution does have a responsibility to adopt and enact academic policies in the manner that its administration and faculty deems appropriate. However, Notre Dame is also a member of the NCAA and as part of Association membership, the Notre Dame agrees to be subject to and abide by the Association’s legislation which includes rules related to academic misconduct and the ability to impose penalties for academic misconduct violations. In this case, the acknowledged academic misconduct impacted the eligibility of student-athletes and resulted in their participation in competitions for which they were not eligible, thus impacting a core principle of the NCAA, fairness of competition. Therefore, COI did not abuse its discretion, as imposition of penalty or punishment by the institution does not preclude or override the NCAA’s ability to take action and impose penalty(ies).

Excessive in Light of the Lack of Institutional Involvement in or Knowledge of the Underlying Academic Conduct

Notre Dame argued that there was no institutional involvement in the underlying academic conduct because the student employee should not be considered an institutional employee under the legislation related to academic misconduct. Effective August 1, 2016, Bylaw 14.02.11.1 changed what is required for a student employee to become an institutional employee for post-enrollment academic misconduct. Going forward, for post-enrollment academic misconduct, a student employee is not an institutional employee unless they have institutional responsibilities to provide academic services to student-athletes or engages in academic misconduct or provides impermissible academic assistance at the direction of a nonstudent employee, or a representative of the institution’s athletics interests.

By considering the student trainer to be an institutional employee, Notre Dame believes that COI ignored “the membership’s clear recognition that student tutors hold a distinct status among student employees.” As well as, that to the “extent that the hearing panel believed that the student employee involvement in student-athlete academic misconduct, without regard for the nature of the student employee’s role or knowledge of or involvement of any other institutional staff member in the underlying misconduct, justifies a vacation of team records penalty, the panel failed to weigh material factors.”

When reviewing infractions cases, COI uses the bylaws and interpretations contemporaneous to the conduct being reviewed. Therefore, under the bylaws in place at the time of the violations, a student trainer would be considered an institutional employee. Further, the Committee noted that COI has significant discretion in its ability to fashion appropriate penalties for the overall infractions at issue in any particular case. St. Mary’s College of California Infractions Appeals Committee Public Report October 14, 2013, Page No. 5. In this case, although COI had the discretion to use the bylaw change as a mitigating factor, COI did not abuse its discretion when it determined that the student trainer was an institutional employee.

Breach of Obligation Under Bylaw 19 to Accord the Institution a Fair Process

Notre Dame argued that COI violated the fundamental fairness guaranteed in the infractions process by Bylaw 19. This relates to the notification and consideration of Violation No. 2 in the imposition of the vacation of records penalty. There were a series of communications related to this argument:

1. A communication was sent to Notre Dame on July 5, 2016, outlining additional penalties COI believed should be imposed for the case and requested a response from Notre Dame as to whether it would accept the additional penalties. In this letter, there was no reference to Violation No. 2 in the discussion of imposition of a vacation of record penalty.

2. After the expedited hearing, COI sent a letter dated October 20, 2016, to Notre Dame requesting confirmation of whether it would adopt the same arguments made related to the vacation of record to the student-athletes included in Violation No. 2. Further, Notre Dame was provided the option of submitting in writing different arguments on this matter.

3. In a November 3, 2016, letter to COI, Notre Dame questioned COI’s authority to consider Violation No. 2 at that stage of the summary deposition process, post-hearing, and questions of fairness.

4. In a November 17, 2016, letter, COI reiterated its commitment to fairness and that Notre Dame’s November 3, 2016, letter is its resolution in the case and COI did not prescribe a vacation of records for Violation No. 2.

In COI’s written response to the appeal and during COI’s appeal advocate’s statements during the oral argument, COI made a distinction between imposing a vacation of record penalty based on Violation No. 2 and imposing a vacation of records penalty based on the entire Summary Disposition Report, which includes information related to Violation No. 2.

The October 20, 2016, letter from COI could have been framed in a clearer and more direct manner regarding the error of not including in its July 5, 2016, letter a reference to vacating records for Violation No. 2. However, the October 20 letter provided Notre Dame the opportunity to provide arguments regarding vacation of records and Violation No. 2. With provision of this opportunity, COI corrected an error and Notre Dame was not prejudiced.

Further, if just Violation Nos. 1 and 3 were considered, the imposition of vacation of records would not have been an abuse of discretion. Therefore, COI did not abuse its discretion by prescribing a vacation of records.

Conclusion

The Committee affirmed the penalty.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.