COLUMN: Michigan response indicates slippery slope for Big Ten

Serena Rabie is a lawyer at Armstrong Teasdale in Chicago and a University of Michigan graduate who represents clients in various complex business disputes.

Disclaimer: The views and opinions expressed within this article are those of the author and do not necessarily reflect the views or positions of their employer.

One might expect Michigan’s response to the Big Ten Conference’s initiation of an investigation to include an outright denial that the allegedly offending conduct – signal stealing – occurred. It conspicuously does not. The response is less about refuting evidence (as Michigan claims it has been provided essentially no meaningful evidence to respond to) and more about posturing for future litigation.

On Nov. 4, the Big Ten Conference sent Michigan an email initiating an investigation into Michigan under the Conference’s “Sportsmanship Policy.” While the Conference’s email in which it describes this investigation has not been made public, Michigan’s response acknowledges that the Conference’s “basis for a potential offensive action” is alleged violations of NCAA Bylaw 11.6.1, Football Rule 1-4-11-h, and Football Game Management ManualSection 14. A. These rules, of course, are the ones that purport to prohibit the behavior of Michigan’s former Recruiting Analyst Connor Stalions, who is alleged to have violated some or all of those rules by sending third parties to record future opponents’ sidelines in advance of those opponents’ games against Michigan.

The reports coming out of Ann Arbor suggest that Michigan is not going to be shy with respect to the possibility of taking legal action should Big Ten Commissioner Tony Petitti and the conference move to suspend Michigan Football Coach Jim Harbaugh. By all accounts, Michigan intends to seek a temporary restraining order (TRO) to prevent the suspension from taking effect. A TRO is essentially a stop-gap measure, designed to preserve the status quo and to prevent a party (in this case, the Big Ten) from unjustifiably taking an action that would cause the opposing party immediate, irreparable harm.

In determining whether to issue a TRO, courts in Michigan consider four factors: (1) whether the party seeking the TRO will suffer irreparable harm if the TRO is not granted, (2) the likelihood that the party will prevail on the merits, (3) harm to the public interest if the TRO issues, and (4)whether the harm to the party seeking the TRO in the absence of a TRO outweighs the harm to the opposing party if a TRO is granted. Of course, it is not a foregone conclusion that the motion for TRO will be heard in a Michigan court, or that Michigan law will apply. Nonetheless, most states conduct a similar analysis.

Michigan spends the first four-and-a-half pages of its letter previewing its argument as to the second factor: likelihood of success on the merits. In layman’s terms, that factor requires Michigan to persuade a court that its underlying claims against the Conference are legitimate and are likely to carry the day. Michigan sets out in painstaking detail each and every hoop the conference is required to jump through before it can levy a punishment against Harbaugh or Michigan. Its aim in doing so is clear. It intends to argue that: 1) the Conference Handbook and

Sportsmanship Policy are contracts between the Conference and Michigan; and 2) each failure to jump through the hoops set forth in those policies is a breach of contract.

For example, the Conference Handbook establishes specific procedures that must be followed when a Big Ten member is alleged to have violated NCAA rules, and Michigan’s letter states that none of these procedures have been followed, with the Conference instead using the Sportsmanship Policy as an inappropriate “end-run.” Additionally, Michigan argues that even if the Sportsmanship Policy were to be applied to this case, the Policy only allows punishment of either an institution or an individual who has been accused of a violation, and Harbaugh is neither of those, therefore the Conference has no ability to punish Harbaugh, specifically.

Michigan maps out its legal arguments entirely, and its aims in doing so are two-fold: 1) to let Petitti know why Michigan thinks it will win should legal action become necessary; and 2)deterrence. They want Petitti and the Conference to think twice about suspending Harbaugh at all.

The letter also takes aim at the fourth factor, albeit more subtly. The fourth factor requires the court to balance the harm to Michigan if a TRO is not issued, against the harm to the conference if the TRO is issued. The Conference may argue that there is significant damage to the Conference or its members if Michigan is permitted to play out its season unencumbered. The Conference could argue that it is damaged because the competitive balance has been disrupted or by making vague appeals to “player safety.” By pointing out the prevalence of sign-stealing as a whole, Michigan is looking to undercut any arguments that intervention is warranted now to protect the competitive balance in the Conference (e.g. if everyone is doing it, isn’t it a wash?). Likewise, it paints any attempt to link sign stealing with player safety as disingenuous (e.g. if it were really that dangerous, wouldn’t sign stealing be banned in all forms, not just via “in-person scouting?”).

Section III of the letter argues that a punishment at this time would be disproportionate given the“broader regulatory context of the case.” This is the part of the letter that has rival fan bases absolutely incensed, in large part because they think it is intended to proclaim Michigan’sinnocence. In other words, “it’s fine because everyone else was doing it.” That is not its aim.

Instead, Michigan argues only that immediate, harsh intervention is not warranted at this time because very similar conduct is prevalent within the sport. It attaches a document as Exhibit 1,which shows that Ohio State had fully decoded Michigan’s defensive signals. They also attached an Exhibit 2, which Michigan received from a former coach at Purdue University. While they concede that Ohio State “apparently” decoded the signals in Exhibit 1 from broadcast footage, they suggest that Exhibit 2 may not have been decoded by legal methods (“Michigan does not know what methods Purdue used to steal these signs.”). By mentioning Purdue and Ohio State by name, Michigan is cautioning the Conference that it is willing to drag at least two other Conference members into the dispute. It ends the paragraph about Purdue by suggesting that “the current investigation may call for a broader investigation and reckoning on how teams across the Conference and NCAA engage in signal decoding.” Its message there is clear: is it prudent to set a precedent that this type of behavior warrants immediate, harsh intervention before you have a handle on how common or uncommon it is?

Collectively, Michigan’s response is intended to lay out both its legal arguments against the conference issuing immediate punishment and a warning that, even in the absence of the threat of legal action, any immediate action would create a “slippery slope” problem for the Big Ten going forward.

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