Explaining Notre Dame's argument in appealing NCAA's vacation of wins ruling

Explaining Notre Dame's argument in appealing NCAA's vacation of wins ruling

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. 

Two views of Notre Dame's 2017 signing day class

Two views of Notre Dame's 2017 signing day class

After a handful of late additions sent in their national letters of intent to the Guglielmino Athletics Complex, Notre Dame on Wednesday announced its 21-player recruiting class of 2017. There are a couple of ways to view the end of what was a volatile recruiting period for the Irish:

The glass-half-full take:

Two and a half months after wrapping up an embarrassing 4-8 season, Notre Dame's 2017 recruiting class ranks 11th by 247 Sports, 13th by Rivals, 13th by Scout and 16th by ESPN. In fact, Notre Dame actually ranks higher this year in 247 Sports' composite rankings (11th) than it did in 2016 (15th), when the Irish were coming off a 10-win season and a Fiesta Bowl berth. 

Nearly scraping together a top-10 class after going 4-8 and losing four assistant coaches in Mike Sanford, Mike Denbrock, Scott Booker and Keith Gilmore is an impressive feat (Greg Hudson was only an interim defensive coordinator, and Brian VanGorder was far from a reliable recruiter). Plenty of kudos should be extended the way of recruiting coordinator/defensive line coach Mike Elston for heading up the program's efforts to keep what began as a pretty strong class from disintegrating. 

Additionally, coach Brian Kelly pointed to the work of the 15 verbally-committed players who stuck with their pledges even as Notre Dame sustained a string of confounding losses and significant coaching turnover. 

"We couldn't be where we are today unless we had 15 student-athletes that were committed to Notre Dame from the start to the finish," Kelly said. "Really during a very difficult season, this group of 15 really had to endure the things that would occur out there in recruiting during a very difficult season. Other schools reminding them about a very difficult season that we had. Then there was them sticking together because of why they wanted to come to Notre Dame."

Five of those players enrolled early — tight end Brock Wright, offensive linemen Robert Gainsay and Aaron Banks, running back C.J. Holmes and safety Isaiah Robertson, all of whom 247 sports rated as four-star recruits — and guys like tight end Cole Kmet, quarterback Avery Davis and offensive linemen Joshua Lugg never wavered, too. 

That those players stuck together helped Notre Dame maintain a good base after the NCAA-mandated dead period lifted after the College Football Playoff title game last month, and new coaches Brian Polian, Mike Elko, Clark Lea, Chip Long and DelVaughn Alexander were able to bring in six late additions to the class: safety Jordan Genmark Heath, wide receiver Jafar Armstrong, kicker Jonathan Doerer, defensive lineman Myron Tagovailoa, linebacker Jeremiah Owusu-Koramoah and defensive lineman Kofi Wardlow. 

Armstrong, Tagovailoa and Wardlow all filled red-line positions of need, while adding more players to increase the pool of talent available to Elko is hardly a bad thing. 

But the optimistic viewpoint here is the deck was stacked against Notre Dame in recruiting, and they actually turned out a pretty good hand thanks to a complete effort from everyone in the athletic department. 

"Every weekend, Jack Swarbrick, our athletic director, met with our recruits," Kelly said. "That's unusual. I don't think that happens everywhere that your athletic director makes himself able to meet with recruits.

"In a lot of instances he had to be there to support our football program and talk to recruits about where this program is and where it's going. There are questions when a family comes on campus. He reminded them about the investment we were making in staff and what we were doing for the present and for the future. So having Jack's involvement in this was absolutely crucial to get to where we are."

Now, for the glass-half-empty take:

Notre Dame had six players decommit, five of whom were at positions of need (defensive line, cornerback, wide receiver). Only four-star defensive end Robert Beal jumped ship before Notre Dame's fall tailspin was underway, and four of those six decommitting players were four-star recruits. 

Notre Dame wound up replacing them with six late commitments, but five of those late-deciding players were three-star recruits and one (Doerner) was a two-star player. That's a good recipe for slipping from having a top-10 class to one on the outside looking in. 

A common lament among fans is that Notre Dame has struggled to sign five-star recruits lately, and while it's true the Irish haven't done that since 2013 — Jaylon Smith and Max Redfield, as rated by 247 Sports — that's not as big an issue as it may seem. Just look at the disparity in college success between Smith and Redfield as a front-and-center example of how a five-star rating doesn't guarantee success in college. Signing more four/five-star recruits than two/three-star ones is far more important (more on that in a bit). 

But the bigger issue with Notre Dame's 2017 class perhaps has more to do with its 2016 class. Notre Dame lost ace recruiters Tony Alford and Kerry Cooks after the 2014 season and re-worked its entire recruiting operation in response, which led to little oomph in a 2016 class that, based on the prior season, should've been much better than it was. 

Last year's group could ultimately build a legacy as a less-heralded crop of recruits that went on to success — the strong debuts of 247 Sports three-stars in cornerback Julian Love and wide receiver Kevin Stepherson were good starts — but there's a long way to go there. 

If 2016 was supposed to be a more transitional recruiting class, though, then 2017 represents a massive missed opportunity. Going 4-8 with all the right recruiting machinations in place is a glaring shortcoming for the future of the program — even a nine-win season could've allowed Notre Dame to hang on to some of those four-star players it lost and earn a top-10 class ranking. 

More importantly than a top-10 class, though, is pulling in more four- and five-star recruits than two and-three star ones. Notre Dame didn't do that in 2017 (10 four-star recruits out of 21) or 2016 (10 four-star recruits out of 23) after hitting that benchmark each of the last three recruiting cycles. That's a worrying trend given the correlation between signing a majority of four- and five-star recruits and winning a championship

The last two recruiting cycles have been, in that context, significant disappointment. While strong classes in 2014 and 2015 could prop up a playoff run as soon as this fall, the future of the program may not be on solid footing even if the Irish engineer a major turnaround in 2017. Next year's class likely will be critical to the long-term success of the program under Kelly, presuming he's still around to usher in the next group of recruits in February of 2018. 

Brian Kelly rides into pivotal 2017 with plenty of new faces on coaching staff

Brian Kelly rides into pivotal 2017 with plenty of new faces on coaching staff

Brian Kelly raised a few eyebrows earlier this month when, in announcing the hiring of offensive coordinator Chip Long, said he would not be calling plays for Notre Dame's offense in 2017.

Instead, the 33-year-old Long — who spent 2016 as Memphis' offensive coordinator — will handle play calling duties for a Notre Dame team desperately needing to reverse course after last year's disastrous 4-8 record. Kelly's decision to hand over play-calling duties to someone with whom he's never worked — something he'd never done at Notre Dame — is perhaps the most interesting development in a hectic two-month stretch for the Irish coaching staff. 

In announcing Notre Dame's 2017 coaching staff on Monday, Kelly explained why he won't be calling plays in a pivotal year for the veteran coach's legacy. In conducting exit interviews with 96 players in the days after Notre Dame's season-ending loss to USC, Kelly noticed a common theme: The defensive players said they liked having him work on that side of the ball, which Kelly did after firing defensive coordinator Brian VanGorder four games into the season. 

"Most of the time I'm on the offensive side of the ball," Kelly said. "So it really sent a message to me that I needed to be more involved in both sides, offensive, defensive and special teams. The only way to do that is to have somebody calling plays. If you're calling plays, you have to spend so much time on one side of the ball, and so after making the decision that I would not have the influence on a day-to-day basis, it was simply easy for me to know what I was looking for offensively and that was a play caller."

All of Notre Dame's assistant coaches had previously been announced by the program, but a refresher of who's who on the staff:

Offensive coordinator: Chip Long
Quarterbacks: Tom Rees (who will be a graduate assistant until, as Notre Dame expects, the NCAA allows for a 10th full-time assistant coach)
Running backs: Autry Denson
Wide receivers: DelVaughn Alexander
Tight Ends: Chip Long
Offensive line: Harry Hiestand
Defensive coordinator: Mike Elko
Defensive line: Mike Elston
Linebackers: Clark Lea
Defensive backs: Todd Lyght
Special teams: Brian Polian
Strength & conditioning: Matt Balis

Only Denson, Hiestand, Elston and Lyght are back from last year's coaching staff, with no surprises on any. Denson is an ace recruiter with strong contacts in talent-rich Florida; Hiestand has a sparkling reputation as a recruiter and developer of offensive linemen; Elston also serves as the team's recruiting coordinator; and Lyght, while inexperienced as a coach, presided over promising development from a number of Notre Dame's freshmen defensive backs last year. 

Longtime Kelly lieutenants Mike Denbrock (now the offensive coordinator at Cincinnati) and Paul Longo (who, Kelly said, was unable to fulfill his dues as strength coordinator due to a long-term disability) are no longer around. Mike Sanford cashed in on his up-and-coming coaching stock and accepted the head coaching position at Western Kentucky, where he got his first assistant job. Scott Booker (tight ends/special teams), Keith Gilmore (defensive line) and Greg Hudson (interim defensive coordinator) were all relieved of their duties, though Kelly said he'd like Hudson to still have a role in the program. Hudson was a defensive analyst last year before being promoted to defensive coordinator after VanGorder was jettisoned.

From a player standpoint, there's not the same level of drastic turnover that hit Kelly's coaching staff. DeShone Kizer is gone for the NFL, but redshirt sophomore Brandon Wimbush has a tantalizingly high ceiling and both the mental and physical attributes to be an excellent quarterback. Torii Hunter Jr. and Tarean Folston are the only other key offensive players to not return in 2017, but the injection of receiver/tight end hybrid Alize Jones (who was ineligible in 2016) and running back Dexter Williams (who flashed potential in limited use last year) should cover for those losses. 

On defense, losing defensive linemen Jarron Jones and Isaac Rochell, linebacker James Onwualu and cornerback Cole Luke create holes, but perhaps a more teachable defensive scheme implemented by Elko will help shore up a group that's been a weakness since Bob Diaco left for UConn. 

"Mike Elko does a lot of things that are hard to decipher, but easily taught," Kelly said. "And his experiences in college and coaching and teaching and communicating; and he does an incredibly efficient job at communicating what he's teaching. And we're teachers. He's a really good teacher at the end of the day."

The weakest link for Notre Dame last year was special teams, though, but Kelly was able to convince a former head coach and Irish assistant under Charlie Weis to return to South Bend to solely focus on that unit. The hiring of Polian may ultimately be the most important hire Kelly made after the 2016 season: the Irish ranked 36th in offensive S&P+, 28th in defensive S&P+ (though that's skewed by facing two option teams and playing in a hurricane) and 80th in special teams S&P+ in 2016. Even a modest improvement in special teams could've got Notre Dame at least six, maybe more, wins last year. 

"To have somebody with his experience, with his knowledge, with his background coaching our special teams and focusing primarily on that, without another position to pull his focus away," Kelly said, "I think it's just an upgrade and allows us to really think about excelling and gaining an advantage in that area."

So this is the coaching staff Kelly will ride with in 2017, as the pressure to win swells with every day that someone remembers the team went 4-8 last year. That lack of success is unacceptable in South Bend, and not significantly improving off it is a fireable offense. 

Notre Dame couldn't stand pat after last year. Whether this new mix of coaches buoys a nine- or 10-win season (at the least) remains to be seen, but make no mistake: The buck stops with Kelly, who will sink or swim with this coaching staff.

But for now, with kickoff of the 2017 season still over seven months away, Kelly isn't viewing this as a make-or-break year. Instead, he's content to paraphrase Shakespeare and focus on the more immediate future. 

"I know there's more scrutiny on this year because of last year's poor performance, but I am focused on the present," Kelly said. "And I know that there's going to be a ton of talk about that, and I get that. That comes with this.

"But I think every year that I've gone into this position that it's about excellence. It's about championships. And if you fall short of that, it's the slings and arrows of outrageous misfortune."