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Notre Dame loses appeal, must vacate 2012 and 2013 football wins

The NCAA has denied the University of Notre Dame's appeal and has upheld the NCAA Committee on Infractions decision. The university must vacate records for games where ineligible students played during games in the 2012 and 2013 football seasons.

After an investigation, the committee found that an student trainer violated the NCAA's ethical conduct rules by assisting several players commit academic misconduct. In the fall of 2016, the panel handed down the punishment which Notre Dame promptly appealed, having already handed down an internal punishment.

The appeal was denied, resulting in the finalization of Notre Dame's penalties: one year of probation, a two-year show-cause order and disassociation for the former student trainer, and a $5,000 fine for the university. Additionally, the 21 wins during those two seasons in question, including the undefeated regular season and national championship appearance in 2012, are to be forfeited.

The University released the following statement on Tuesday after receiving notice of the denied appeal, in which the university's president, Rev. John Jenkins, sharply criticized the NCAA for overstepping its bounds as an athletic organization to incur action due to the school's internal academic issue.

Dear Members of the Notre Dame Family,

We are deeply disappointed by and strongly disagree with the denial of the University’s appeal, announced today by the NCAA, of an earlier decision by the NCAA’s Committee on Infractions to vacate Notre Dame’s 2012 and 2013 football victories due to academic misconduct by several student-athletes.  Our concerns go beyond the particulars of our case and the record of two football seasons to the academic autonomy of our institutions, the integrity of college athletics and the ability of the NCAA to achieve its fundamental purpose.  I write this letter so that you can understand the underlying facts, the reasons we believe that the NCAA is in error and how we intend to move forward.

Let me be clear that we in no way excuse the very serious instances of academic dishonesty committed by our students.  Academic fraud strikes at the very heart of our educational mission and the values of Notre Dame.  That is why, when we first became aware that academic misconduct might have occurred, we spared no effort, consistent with the procedures of our Honor Code, to investigate each instance of possible academic misconduct.  After an exhaustive investigation that covered four months, significant but appropriate penalties were administered by our Honesty Committee to all students found responsible for academic dishonesty, including the three members of our football team whose conduct underlies the vacation of wins penalty, as well as students involved who were not members of any athletic team.

The NCAA is not, of course, an academic association with general responsibility for academic integrity at America’s colleges and universities.  It is, rather, an athletic association that regulates academic misconduct in certain narrowly drawn cases involving students who are athletes.  Two such cases are: 1) when a representative of the university is complicit in the cheating and 2) when a student competes on behalf of the university while ineligible.

Notre Dame disagreed with several aspects of the NCAA’s assessment of this case, but in order to conclude the case expeditiously, we agreed to accept certain findings of violations.  Two of those violations, involving three student-athletes, carried mandatory penalties, which the University accepted, and the possibility of a vacation of team records, which was at the discretion of the NCAA to impose.  It is to the imposition of this discretionary penalty that the University objects and which it appealed.

In academic misconduct cases, the penalty of vacation of team records has, until now, only been applied in the case of serious forms of institutional culpability: when coaches, administrators, or persons with academic responsibilities are complicit in cheating, or when an institution fails to monitor or lacks control over its athletics program.

In Notre Dame’s case, two of the students had received assistance from a full-time undergraduate student who had part-time employment as an assistant to our athletic trainers.  Student-to-student cheating is not normally within the NCAA’s jurisdiction, but the NCAA concluded that the student’s role as a part-time assistant trainer made her a “representative of the institution” and justified a vacation of team records penalty in this case.

There is no precedent in previous NCAA cases for the decision to add a discretionary penalty of vacation of team records in a case of student-to-student cheating involving a part-time student worker who had no role in academic advising.  In every other case in the record—meticulously detailed in the University’s arguments—the institutional representative of the university was employed as an administrator, coach, or person who served in an academic role.   The Committee simply failed to provide any rationale why it viewed the student-worker as an institutional representative in our case.  This is more disturbing given that, in 2016, the member institutions of the NCAA amended the academic misconduct rules to make clear that students who serve in roles identical to that of the student in our case would not be considered institutional representatives.  If the Committee members chose to depart both from precedent and the position adopted by the NCAA membership, it was incumbent on them to offer an explanation.  They did not.

Regarding the issue of the three student-athletes in question competing while ineligible, rational explanations are again lacking.  When these student-athletes competed in 2012 and 2013, the University correctly certified to the NCAA that they were eligible to compete.  After the cheating was discovered and the cases adjudicated by the University Honesty Committee in 2014, a framework was painstakingly created to recalculate grades so that students understood the consequences of their actions and did not benefit from them.  In the curious logic of the NCAA, however, it is precisely the application of our Honor Code that is the source of the vacation of wins penalty, for the recalculation of the grades in 2014 led to the three student-athletes being deemed ineligible retroactively.

To impose a severe penalty for this retroactive ineligibility establishes a dangerous precedent and turns the seminal concept of academic autonomy on its head.  At best, the NCAA’s decision in this case creates a randomness of outcome based solely on how an institution chooses to define its honor code; at worst, it creates an incentive for colleges and universities to change their honor codes to avoid sanctions like that imposed here.  If the application of Notre Dame’s Honor Code led to the outright dismissal of these students, or if it had a statute of limitations for past offenses that later are discovered, or indeed if the University imposed no sanction whatsoever for the academic dishonesty, there would, by the NCAA’s reasoning, be no competition while ineligible and no reason for a sanction.  By imposing severe discretionary sanctions for institutions that, for good educational reasons, approach dishonesty in one way rather than another, the NCAA infringes on the autonomy of those who write honor codes for our institutions.  We believe strongly that a university should make decisions core to its academic mission without having to factor in the possible consequences of an athletic association.

The NCAA has not chosen to ignore academic autonomy; it has instead perverted it by divorcing it from its logical and necessary connection to the underlying educational purpose.  As noted above, Notre Dame’s exercise of academic autonomy in the form of the rigorous application of the University’s Honor Code was the source of the underlying violation on which the vacation of wins penalty is based.  Although all parties acknowledged that Notre Dame did everything right in response to the academic misconduct, the University is now told that it must live with severe sanctions for its actions.

Notre Dame’s case stands in striking contrast with another recent high-profile academic misconduct case in which the NCAA Committee on Infractions chair explained that even though certain classes “more likely than not” were used to keep athletes eligible with fraudulent credits, the legitimacy of those classes was beyond the jurisdiction of the NCAA’s enforcement process precisely because that question must be left to the determination of the university in the exercise of its academic autonomy.  The notion that a university’s exercise of academic autonomy can under NCAA rules lead to exoneration—or to a severe penalty—without regard to the way in which it is used defies logic and any notion of fundamental fairness.

We are deeply disappointed that the NCAA failed to recognize these critical points.  Yet we are committed to work with partner institutions to introduce NCAA legislation that will lead to more reasonable decisions—decisions that will support rather than discourage institutions that do their best to uncover and respond to academic dishonesty in accord with their respective honor codes.  We will also do all we can to protect the autonomy of institutions to fashion and follow their honor codes in accord with academic, rather than athletic, considerations.  We call on the NCAA administration to work with member institutions to both 1) establish policies and practices that will support member institution efforts to address academic dishonesty and that will delineate the lines between the NCAA’s athletic jurisdiction and the academic autonomy of its member institutions, and 2) reform its enforcement process to provide a level of transparency, consistency, and fairness that it currently lacks.

What is at stake here is the academic autonomy of our institutions and the integrity of college athletics.  What is at stake is the ability of the NCAA to achieve its basic purpose, “to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body” (NCAA Constitution, Article 1.3.1).

Sincerely,

Rev. John I. Jenkins, C.S.C.
President


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