To avoid multiple threads (and thread-jackings) over the next several days, I am posting this diary thread as a location for all things related to the legal and rules issues relevant to the injunction hearing scheduled for Friday.

Now, on to the merits of the central legal/rules issue...

 

100% Michigan should win in court and get an injunction.  Here is why...

 

Petitti argues that he is allowed to use either R. 32 OR the SP whenever he finds a SP violation (unsportsmanlike conduct) that may also concurrently be an NCAA rule violation.  

His argument is very weak and is based on sleight of hand. 

According to his own words in his November 10th letter to Michigan, P inescapably must adjudicate, and has adjudicated, whether Stalions’ violated NCAA R. 11.6. 

Big Ten Handbook R. 32 (and not the Sportsmanship Policy) governs all situations where the Conference will base a sanction on an alleged violation of NCAA rules.

So let’s break it down….

All sides agree that if acts are only an NCAA rule violation (but not unsportsmanlike), R. 32 procedures govern.  All sides also agree that if acts are only unsportsmanlike conduct (but not NCAA rule violations), then the more streamlined SP procedures govern.  

But what about situations where the acts in question may happen to BOTH be a potential NCAA rule violation AND unsportsmanlike conduct?  Further, what about situations where the acts in question are potential NCAA rule violations, and those purported NCAA rule violations are the very reason that the Conference deems the acts unsportsmanlike? 

In this latter scenario—NCAA rule violation is the very reason the Conference finds the acts unsportsmanlike—the underlying wrong is an NCAA rules violation.  IOW, in this scenario, it is impossible to find acts ‘unsportsmanlike’ until AFTER one has determined that an NCAA rule has been violated.  Adjudicating an NCAA rules violation is a pre-requisite to adjudicating an SP violation.  You can't get the latter without first doing the former.  And again, under Handbook R. 32, the Conference must follow R. 32 processes for adjudicating NCAA rule violations (which P did not adhere to here).  

P tries to get around this by re-labeling the pre-requisite adjudication of an NCAA rules violation (again, governed only by R. 32) as only adjudication of an SP violation.

He does this by sleight of hand.  In his written letter he first frames and describes this as a case where Stalions’ acts happened to concurrently be a possible violation of NCAA rules and also ‘unsportsmanlike’ under the SP.  So framed (or more accurately, so mischaracterized), P then argues that he is free to choose to apply either the R. 32 or the SP streamlined procedures. 

But later in his letter he repeatedly frames it in a different way.  He frames it as a situation where violations of NCAA rule 11.6 is the very reason that he deems Stalions’ acts unsportsmanlike.  

That is the sleight of hand.  He shifts his framing to suit his needs in different sections of his letter.   

In the section on whether he may use SP procedures, the framing is ‘this is unsportsmanlike conduct that concurrently may also violate an NCAA rule.’  Later, in the section explaining why he finds the conduct unsportsmanlike, the framing switches to ‘this is unsportsmanlike because an NCAA rule was violated.’

So, when he wants to explain why he thinks the Handbook and SP give him the unconstrained choice to use either R. 32 or SP procedures, he uses the following framing (page 9 of the P letter): “…the Commissioner is authorized to use the procedures and authority prescribed by the Sportsmanship Policy, even if that offensive conduct also may involve a violation of NCAA or Conference rules.”  And then he argues, in essence, why would he be barred from using the SP procedures to adjudicate unsportsmanlike conduct merely because that conduct may happen to also violate an NCAA rule?  After all, he argues in essence, ‘I am merely adjudicating whether acts are unsportsmanlike, so I can use the procedures in the SP.’

But later, in the section explaining why he thinks Stalions conduct is unsportsmanlike, he completely shifts the framing. 

Suddenly it is not that Stalions’ unsportsmanlike acts also may happen to violate NCAA Rule 11.6.  Instead, it shifts to Stalions’ acts are unsportsmanlike exclusively and precisely BECAUSE he violated NCAA Rule 11.6.  For example, page 12 of the P letter: “…I have determined that the offending action is severe. As stated above, protecting the integrity of competition must be of the utmost importance to the Conference. Using impermissible means to obtain a competitive advantage is inherently unfair to Conference members...”  The “impermissible means” is the thing that compromises “integrity of the competition” and is “inherently unfair.”  And the means is impermissible…because P has backdoor adjudicated that Stalions 3rd party recording scheme is not permitted by NCAA Rule 11.6’s prohibition on in-person advance scouting.

While P has convinced himself that Stalions’ scheme is in-person advance scouting in violation of NCAA R. 11.6, there are very good arguments that Stalions did not, in fact, violate R. 11.6.  As I originally argued in Erik from Dayton’s earlier Diary, for decades NCAA R. 11.6 treated ‘scouting’ and ‘recording’ as completely different activities.  In 2013 the NCAA amended R. 13 to remove prior prohibitions related to ‘recording.’   Stalions’ scheme was a 3rd party recording scheme, not an in-person scouting scheme.   And if one were to find that Stalions’ scheme were in-person scouting, then so too are OSU and RU coaches impermissibly serving as in-person scouts for Purdue. 

But, by sidestepping R. 32’s procedures, P has already adjudicated all of this when he finds that Stalions used an “impermissible means.”  He has already decided that 3rd party recording violates NCAA R. 11.6 without giving Michigan the chance to fully argue that another fair reading of NCAA R 11.6 is that 3rd party recording is not the same as in-person scouting. 

On P’s own later framing—unsportsmanlike because a means was used that violates NCAA R. 11.6—this all boils down to P adjudicating whether Stalions has (or has not) violated NCAA rule 11.6, the prohibition on in-person scouting.   For P, sign decoding is fine.  But sign decoding via in-person scouting is unsportsmanlike.   And that makes the question of whether Stalions’ scheme really was in-person scouting under NCAA R. 11.6 the central question to whether it was unsportsmanlike.  

But again, if the Conference is really just adjudicating whether Stalions violated NCAA rule 11.6….then the Handbook clearly indicates that P must use Handbook R. 32 procedures (which he failed to do).

P is trying to smuggle a Conference adjudication of an NCAA rules violation outside of R. 32 into his SP power by simply re-labeling it as unsportsmanlike conduct.  But…on his own framing, it is unsportsmanlike for only one reason:  Because it was done using “impermissible means” and those means are “impermissible” because NCAA R. 11.6 prohibits them (or so he finds).  P’s own later framing admits that the reason he finds Stalions acts unsportsmanlike is that P has determined Stalions violated an NCAA rule. 

We know that P’s determination that Stalions violated NCAA Rule 11.6 (prohibition on in-person scouting) is the sole reason he considers it unsportsmanlike because he states that the OSU/RU/Purdue collusion cannot be considered unsportsmanlike absent evidence that it was done via 'impermissible means.'  He is literally telling us that, on his own reasoning, he cannot find that Michigan violated the SP without FIRST adjudicating that Stalions’ 3rd party recording scheme is “impermissible” under NCAA R. 11.6’s prohibition in-person advance scouting.

But again…Conference determinations of NCAA rules violations are governed by Handbook R. 32, which P did not follow. 

It may in theory be the case that certain NCAA rules violations are in plausibly deemed ‘unsportsmanlike.’  But where deciding whether a given NCAA rules violation is unsportsmanlike, determining whether an NCAA rules violation has occurred is a necessary pre-requisite first step.  And that first step is clearly governed by R. 32.

It is telling that nothing in the SP mentions that NCAA rules violation may be a basis for a finding of unsportsmanlike conduct.  It is even more telling that the SP itself does not offer any process or standards for determining whether an NCAA rule violation that may be ‘unsportsmanlike’ has occurred.  Why is this missing from the SP?  Because Handbook R. 32 already provides the procedures for Conference adjudication of NCAA rules violations.

The SP does grant broad discretion and a streamlined process for adjudicating whether unsportsmanlike conduct has occurred.  But the SP does not grant the power to adjudicate whether NCAA rules violations have occurred.  And in situations where an alleged NCAA rules violation is the very pre-requisite reason for the Conference to find unsportsmanlike conduct, Handbook R. 32 is the applicable process.      

Michigan uses these arguments in its letter to Petitti and also in its brief to the court. 

However, Michigan should offer the court a clearer and more pointed explanation of Petitti’s shifting framing and sleight of hand, and should also explain more pointedly why this is really at bottom just Petitti adjudicating an NCAA rules violation outside of required R. 32 processes, and then re-labeling it as a SP violation.

Michigan must more directly and clearly emphasize the following:  On P’s own description, he cannot deem Stalions’ scheme unsportsmanlike without FIRST determining that an “impermissible” means was employed.  And he cannot find the means impermissible without FIRST adjudicating that Stalions violated NCAA R. 11.6 (adjudicating that 3rd party recording = impermissile in-person scouting).  

Again, Michigan does touch on these arguments in its brief to the court.  However, IMHO, at the hearing on Friday Michigan's attorneys need to repeat over and over again:  On P’s own reasoning, P is clearly telling us that he cannot find what Stalions did unsportsmanlike without first adjudicating whether Stalions scheme is an “impermissible means” due to violation of NCAA R. 11.6.  This needs to be in the headings, in bright lights flashing, recursive, on an endless loop, not obscure and buried in the later paragraphs hoping that the judge will pick it out from the mass and realize its centrality on his own.  Michigan's brief to the court gets these concepts in, but really buries the lede and fails to properly and with direct clarity signal to the court how this is the whole ball of wax.  For example, one gets through the entire Intro section of Michigan's brief...and does not understand with precise clarity the thing that P did here.   I get it, because it had to be drafted really quickly.  But they have to be far more direct and clear about it at the hearing.