Recent news for Notre Dame (“ND”) football included a denied appeal to remove vacation of records penalty in a case similar to that of the less recent University of North Carolina (“UNC”) committee on infractions (“COI”) decision. Both cases were surrounded by academic issues, but ND received harsh penalties and UNC received next to nothing.

UNC’s case centered on trouble with the Academic Support Services for Student-Athletes (ASPSA) receiving funding from athletics and interacting with student athletes, athletics staff, and coaches on a regular basis resulting in “paper courses” that boosted GPA’s and required no class attendance. The African-American Studies department chair and his secretary were the two who knew the most regarding the courses, but they failed to cooperate during the investigation. Their failure to cooperate was crucial for the panel to conclude on issues related to unethical conduct and extra benefits. The infractions process never took the form of academic fraud because, after originally adopting the school’s accreditors characterization as academic fraud, UNC ultimately stood by their paper courses and the panel could not reveal specific examples related to the issue. These courses were not a secret on campus and in fact, the former Director of ASPSA and Senior Associate Director of Athletics were concerned enough to escalate the issues to the Faculty Athletics Committee (FAC). The FAC reminded them that “faculty have complete freedom in the classroom and that’s protected.” The COI did not prescribe any penalties to the university, but they did hand down a 5-year show cause penalty to the Department Chair of the Afro-American Studies, an individual who has no athletically related duties at the university.

ND’s case centers on multiple years of academic violations by a former student athletic trainer and two football student athletes. The case was submitted as a Summary Disposition Report since both parties agreed to primary facts and allegations, but the panel tacked on a significant vacation of records penalty. The student trainer completed academic course work for two football student-athletes, which resulted in academic misconduct occurring over the 2011-12 through 12-13 academic years. ND had academic honesty and integrity policies in place which were violated and resulted in improper eligibility certification of the two football players. Additionally, the trainer provided six other football student-athletes with academic extra benefits across 18 courses, which occurred over two academic years as well. Two of the six students were still enrolled at ND when the violations were discovered and successfully pursued student-athlete reinstatement. Further, another football player committed academic misconduct over the course of two academic years.

It was uncontested that the former student-trainer was an institutional staff member and signed institutional documents stating that she may not type papers, letters, or other academic work for student athletes and the guidelines within that document stated specifically to ask questions related to NCAA rules and regulations. Had the trainer simply asked a few questions to the compliance officers related to her conduct, she would have likely learned that her conduct was impermissible under NCAA rules. The trainer stated that it was only her intention to “help” the athletes and if she would have asked then she wouldn’t have jeopardized the welfare of the institution and the eligibility of the SA’s.

In an effort to distinguish their case, ND compared the facts to East Carolina’s Summary Disposition Report (2011) – a case where vacation of records was handed down as a result of academic fraud committed by a student-athlete hired by the athletic department as an academic tutor. ND claimed that the student in their case was not considered an institutional employee, thus the vacation of records should not apply but the membership reminded them that no bylaws, interpretations or educational columns make this distinction. Unfortunately for ND, bylaw 14.02.11.1 became effective in August 2016 after the violations occurred. That current bylaw states that a student employee is only considered an institutional staff member if he or she has responsibilities to provide academic services to student-athletes or if he or she engages in academic misconduct at the direction of an institutional staff member. The NCAA used the bylaws in place at the time the violations occurred to confirm that the trainer was considered an institutional employee who completed the academic coursework, thus subject to the vacation of records.

ND did not dispute that the academic violations occurred and the membership expects that member institutions will apply academic integrity policies fairly to all students and student-athletes. ND violated those internal policies which required them to report the violations to enforcement; however, this resulted in a vacation of records penalty that the Irish wholeheartedly disagreed with. UNC would have likely been subject to similar penalties but the key difference lies within the internal policies the university requires all students to follow. UNC stood by their paper courses and made it clear that those courses were available to all students and student-athletes alike.

ND President released a statement stating, “The randomness of outcome concerning academic misconduct creates an incentive for colleges and universities to change their honor codes to avoid sanctions like that imposed [for Notre Dame].” And he makes a good point, but for Notre Dame it was the perfect (well, unperfect) storm of bad timing and a system that has some human error involved.

CCHA's sports law group has experience and expertise representing institutions and coaches involved in infractions matters, as well as working with NCAA institutions and coaches to educate them and their staff on NCAA rules compliance. Click here to learn more about our firm and how we can partner with you.

Special thanks to Natalie Morse, CCHA's NCAA Specialist, for contributing to the research and writing of this article. For more information about Kelleigh and CCHA’s sports law practice, please visit her her profile.