What are the arguments supporting B1G/Petitti’s suspension
We’ve heard all the arguments in Michigan’s favor, and how it seems likely that we would be granted an injunction should it come to that. However likely that may seem, there will be arguments presented in court for the conference. What is the legal defense that could persuade the court to deny the injunction?
November 9th, 2023 at 7:44 AM ^
There isn’t a jurisdictional issue.
November 9th, 2023 at 8:01 AM ^
It wont be for “lack of jurisdiction.” UM will pick a court that clearly has jurisdiction over the subject matter and personal jurisdiction over the defendants. Chicago federal court is pretty obvious.
It really comes down to the standard of review the court will give the B1G’s decision, which is being made pursuant to a contract. Any contracting party—Ford, your fave deli, you—gets to make business decisions in a contract and, as long as the decisions are within the scope of that party’s rights under the contract and applicable laws, a court will not second-guess a business decision even if it is a bad one. For instance, a hiring decision that violates equal opportunity laws can be set aside. But if your neighborhood deli fails to order enough of your fave ham this week because the price went up… thats their choice to make.
If Dick Petite has the authority under B1G rules (=contracts) to make the decision, the court had jurisdiction to set it aside, but UM has to show its contrary to some law or contrary to the Commissioner’s powers as they have been applied in the past (which serves as a basis for how the parties interpret and give meaning to the contract).
To be clear, IMHO this is a stretch for UM unless the court finds the rules deprive Dick Petite from acting in this way, eg if the rules require B1G to wait for NCAA to act first.
I think we also are all ignoring the lessons of other events. I have no doubt Jim had no idea or interest in Wyld Stalions doing this. I also think the HC is responsible for what happens in his program and setting the tone and making sure everyone understands what the rules are and complying. Jim allowed a nutjob into the program who didnt perceive any checks on his behavior. The video recording of other teams creates an appearance of (but probably not an actual) competitive advantage and is clearly against the rules. Some kind of punishment would be warranted so coaches in the future cannot do a plausible-deniability defense when staff or boosters are cheating. The question of how much punishment is for the NCAA and B1G to decide. The real issue here is, WHEN to levy it (and to do so fairly—if we get punished. so should OSU, Rutgers, etc). Thats the procedural issue that will be litigated.
November 9th, 2023 at 8:22 AM ^
I don’t think UM will file the original complaint in federal court.
November 9th, 2023 at 8:26 AM ^
That makes perfect sense, thank you.
Pretty sure the B1G would bring punishment at this time unless they’re certain it would stick anyway.
My best guess is that if the B1G moves forward with a suspension, Michigan loses in court but then sends their entire dossier on other B1G schools to whoever has an email address. Also guessing because of that threat looming, the B1G postpones any punishment until after a thorough investigation.
November 9th, 2023 at 7:24 AM ^
I would think that, if anything, it could potentially come down to the idea that Tony Petitti is, after all, the commissioner of the Big Ten. I could see a judge making a ruling based on his authority and perhaps not so much on (what we know about) the merits, which I think are clearly in Michigan's favor. That said, they hired the right firm to litigate this, and I am sure they thought about that potential as well.
November 9th, 2023 at 7:28 AM ^
I’m not a Michigan fan but this is a real question I’m not just trying to be a troll. How much does it really matter if a team’s head coach gets suspended for a game or two? I mean it seems like his job is done more during the week than on game day. Is Jim Harbaugh or any other coach or any other team such a game managing wizard that his loss is irreplaceable? Don’t get me wrong. I’d rather have my head coach did not have my head coach, but it seems like a very minor punishment. To me it feels like a traffic ticket only in that the fine of hundred dollars is secondary it’s the idea that I’m being called a “ bad person” that makes a traffic ticket annoying. Again definitely not trying to be a troll here.
November 9th, 2023 at 7:35 AM ^
1) It's not actually clear, I don't think, at this point if the suspension would be just for game day or for the week. Obviously if it is put in place right now, effective for Saturday, then it wouldn't have impacted this particular week.
2) There are differing opinions on the impact. I've seen many fans here argue that it doesn't really matter as far as the outcome goes. And when we play Bowling Green at home, I totally agree. But going on the road to Penn State, yeah, I think having Harbaugh instead of Sherrone Moore running the show makes a difference.
November 9th, 2023 at 7:38 AM ^
Nothing if we win, Everything if we lose.
But not smartass answer, losing a head coach for a game, Refs have less respect for assistant coaches. Also our OC and DC have lots of other things on the plate.
So you're taking everyone out of their comfort zone. Hard to quantify
November 9th, 2023 at 7:57 AM ^
I think most of us are fine with a suspension once the investigation has been done and the suspension is justified. The fact that this all coincidently comes out right before the meat of U of Ms schedule reeks of whiney-loser-strategic bull shit. I really doubt any of those piling on care about the actual offense and would agree that it really doesn’t give that much of an advantage. They only care because Michigan is kicking asses and Harbaugh is an easy target to go after. He’s weird, kinda cold and awkward with the media. Not to mention, forward thinking and challenges the machine.
November 9th, 2023 at 8:24 AM ^
I think most of us are fine with a suspension once the investigation has been done and the suspension is justified.
Speak for yourself. I will never be OK with a suspension from the NCAA or B1G after this and hamburgergate. The NCAA didn't touch coaches whose assistants were investigated or ARRESTED by the FBI. Some of them are still coaching, for goodness' sake. No suspension for these trivial accusations is warranted.
November 9th, 2023 at 9:01 AM ^
Hence the reason I said “justified”
November 9th, 2023 at 9:24 AM ^
If an assistant coach (Chuck Persons) is convicted of bribery and the head coach receives a light 2-game suspension, what would be a just sentence for Harbaugh? The first 3 minutes of a game? He's required to eat chicken and drink skim milk at the postgame meal instead of steak and whole milk?
Due to the uneven enforcement policies of the NCAA, there is NO PUNISHMENT that is just for a head coach who's low-level assistant coach may have pointed a camera at an opposing sideline and snapped a few pictures or videos. Due to the witch hunt atmosphere of the B1G "investigation," there is NO PUNISHMENT that is just.
November 9th, 2023 at 9:33 AM ^
It will only be justified if they can prove that Harbaugh was lying about not knowing. So far, that's not looking likely.
November 9th, 2023 at 8:40 AM ^
To just let it happen looks like an admission of guilt on our part, both to the NCAA and the college football world at large. We are not going to give them that at this junction.
BTW, you are not a Michigan fan but you have been on this board since 2014. That is some dedication to a cause.
November 9th, 2023 at 10:18 AM ^
It’s nice to see what the enemy is up to. And I don’t actually hate Michigan. I just like beating you more than I like beating anyone else. 😎. And the writing on here is really good. Unfortunately the last couple years haven’t been as fun to lurk about as the previous few years before that😏.
November 9th, 2023 at 9:00 AM ^
We have three games of experience without Harbaugh at the wheel. We won those games comfortably but they were also early season and against lower level competition. But those three also happened to be, arguably, our worst three performing games out of 9 thus far. We didn't cover the spread in any of them (much to the chagrin of this degenerate). We missed the spread number by 8.5, 10 and 16 points. Those are pretty large misses. And JJ had his worst game against BGSU with three INTs.
tl;dr
I am of the opinion that the Harbaugh effect is real and tangible.
November 9th, 2023 at 7:31 AM ^
The risk in a court proceeding may well be that the Sportsmanship Policy essentially places no limits either on what the Commissioner, with unlimited discretion, considers to be unsportsmanlike or against whom a disciplinary penalty may be assessed. He could, for instance, decide that the band has committed a violation and assess a penalty against the head coach — all essentially at his unfettered discretion as long as the penalty is within the $10,000/two “contest” parameter. I have no idea how a court would deal with the irreparable damage argument against the lack of any limits in the policy.
More powerful, perhaps, is the fact that the only alleged offensive actions are Stalions’ activities which are what engaged the NCAA, and the Rules preclude the conference from stepping into an ongoing NCAA investigation. Again, I have no idea whether there are arguments that could deem this not to be an ongoing investigation or somehow create a distinction that puts it under the unlimited jurisdiction of the Commissioner.
One final thought: the alleged Stalions’ CMU game attendance question seems akin to the discovery of cocaine at the White House this past summer — those that could easily provide an explanation of the facts are the least desirous of having the facts known — but that’s the conspiracy theorist in me…
November 9th, 2023 at 8:08 AM ^
If the court rules in favor of the B1G, i.e. it is within the commissioner's perview to suspend a coach for 'reasons', those 'reasons' themselves become to civil litigation. In other words, just because the B1G can dish out punishment at their whim, they don't have immunity for the consequences of arbitrary decisions. If the mob uses the B1G to burn down Michigan's house, it still the B1G that burnt down the house.
This is about how dysfunctional a room full of overerpaid children can behave.
November 9th, 2023 at 8:03 AM ^
If the only penalty is a Harbaugh suspension, the biggest obstacle to getting an injunction would be proving that the suspension of a team's head coach will result in the necessary irreparable harm.
It's tough to even prove damages in that situation -- Michigan famously won the NCAA basketball tournament after firing its head coach on tourney's eve -- but let's just say you could prove with cosmic certainty that it reduced the team's chances of winning the suspended games by 25%. And that as a result, Michigan's chances of getting the CFP payoff and all the other things it had gotten by winning the rest of its games were also reduced by 25%.
You could then just multiply the possible money gained from winning out by the 25% and come up with a dollar figure -- let's call it $1 million.
Legally, if the alleged harm can be compensated by money damages, there's no legal basis for an injunction, either. Hard to see how a check from the B1G couldn't serve as compensation for any damages, along these lines. Same for any intangible "brand damage" that may be asserted.
Teams play games without head coaches all the time. Where's the irreparable harm? Where's the damages? Can't the damages be compensated for by money?
Those are the main obstacles.
November 9th, 2023 at 9:41 AM ^
If the obstacle is showing that having your head coach suspended is irreparable harm, the very fact that the suspension is a disciplinary action is proof that its intent is to inflict some kind of harm (damage, whatever) to either the team or the coach.
If you're saying, anyone and anything can be made whole with money--who cares if your reputation is ruined, if your opportunities for playing for a national championship is ruined, money can make it all better--then I like our chances.
That's not to say there isn't a judge out there who would take your view. There are all kinds of people in the world.
November 9th, 2023 at 8:04 AM ^
I think they'll argue the commish has broad authority, they'll argue they are allowed to act in spite of NCAA process, they'll argue Harbaugh is ultimately responsible and hasn't fostered a culture of compliance, they may argue the scouts were indirect staff of the athletics department since they were apparently compensated by stalions, and the Venmo transactions may be evidence stalions was reimbursed under the table.
I have a very vague recollection that when the story originally broke, it said it was the conference who had warned the other teams about the scouting, not the NCAA. So they may argue that the investigation was not initiated by the NCAA, but rather the big ten so the conference can still act
November 9th, 2023 at 8:08 AM ^
Some people have said that the other coaches' sharing of the signs was fine, part of the game, done all the time. They did in-game scouting just like Stalions is alleged to have done. So then are they saying that if Stalions had passed on his findings to another school -- i.e. shared his oppo research -- they never would've complained in the first place? I don't see the difference between what Stalions did and what they did, except that they shared the information with each other to give each other competitive advantage.
November 9th, 2023 at 8:09 AM ^
There's not going to be anything legally to any argument about the NCAA. The NCAA is a parallel association that's also empowered to act. Nothing in the B1G's governance structure or the governance structure of the sport implies in any way that a conference has to wait for the NCAA, or that the NCAA can't act if a conference has acted.
November 9th, 2023 at 8:11 AM ^
You seem to have a lot invested in Harbaugh getting suspended.
November 9th, 2023 at 8:17 AM ^
I don't have anything "invested" in anything.
I do have experience in this area and do call them like I see them.
If you want to snarl at the B1G and Ohio in this matter, no objections here. It's just not the perspective I come from. (I actually enjoy snarling at Ohio, too -- we all do.)
It's going to be a tough legal case for us. The way these sports cases often go is that we'll get a local friendly judge to issue a temporary restraining order but then the B1G will appeal and it will be overturned. Or we won't be able to convert the TRO to a preliminary injunction.
November 9th, 2023 at 8:29 AM ^
"These cases." How many of these cases have there been? How many temporary restraining orders have been issued in cases like these?
November 9th, 2023 at 8:37 AM ^
There have actually been a lot of sports cases revolving around eligibility of players and coaches, where schools and players have gone to court to get a TRO against an NCAA finding of ineligibility. I'd venture that in the last 40 years there have been over 100.
Google "Dave Wilson, quarterback, eligibility cases, Illinois." 43 years ago.
November 9th, 2023 at 9:04 AM ^
How about something more recent, in this century perhaps, that is more apropos to this case. If your arguments are based on your knowledge in this area, as you suggest, and you attempt to argue persuasively that Harbaugh doesn't have a legal leg to stand on, then surely there are more recent cases to back this up.
November 9th, 2023 at 8:43 AM ^
Nothing in the B1G's governance structure or the governance structure of the sport implies in any way that a conference has to wait for the NCAA
That is not correct. The Big Ten rules are different if the NCAA initiates an issue.
November 9th, 2023 at 9:51 AM ^
Ed is not going to respond to this comment.
Ed still hasn't told us what the "record" is that Ed kept referring to in the Tom Mars thread.
November 9th, 2023 at 11:32 AM ^
Rule 32. Pay attention.
November 9th, 2023 at 8:10 AM ^
I think all this BS on scouting is ridiculous, this happens at all levels in football. Everyone does it. The NCAA, 🤡hio State and everyone else wants to see Harbaugh go done because he’s been successful and majority of the teams complaining can’t beat 〽️. I don’t think anything is going to happen.
For gods sake Urban was protecting Smith a known wife beater and abuser and he only got 3 games.
November 9th, 2023 at 8:10 AM ^
You may be able to say that Michigan didn’t follow the letter of the law, but “I’m shocked, shocked that there’s gambling here. Here are your winnings sir” applies here. Texas A&M signs 7 five stars in one year-no problem. Ohio State has more 5 stars than the rest of the conference combined-no problem. Justin Fields saying that he heard the campus was nice-no problem. Everybody else admitting to sign stealing before the game-no problem.
I have harped on this in other posts, but where is the investigation of the PI firm, particularly payment of said PI firm. There may also be a PR firm involved too. We all know where the trail leads, whether it was a booster, a slush fund, whatever.
November 9th, 2023 at 8:13 AM ^
Typically, litigation can involve hypothetical situations to try to prove important points and that also won't be good for us.
What would we be saying if on the eve of the Michigan game, Ohio poisoned the food at the training table and 75% of the Michigan team couldn't play. (Let's assume the facts are that Ohio is caught dead to rights.)
Would we be saying the B1G couldn't act in that instance and had to wait for the NCAA to investigate?
November 9th, 2023 at 9:00 AM ^
They absolutely could. The argument is that would be an investigation initiated BY THE CONFERENCE, and can justly issue punishment in accordance with the sportsmanship bylaw. The issue is that this whole thing was initiated by the NCAA, so the bylaws state the conference will defer to that process and can levy additional penalties as it sees fit AFTER that investigation and penalties are completed and issued.
November 9th, 2023 at 9:19 AM ^
I don't think that covers the sportsmanship policy, though. The sportsmanship policy actually gives the B1G commissioner very wide berth and expressly says he doesn't even have to do an investigation prior to taking disciplinary action. (Which also means that if he doesn't have to do an investigation, that pretty much means definitionally he doesn't have to wait for the NCAA to investigate.)
The sportsmanship policy, 2022-23:
10.3 Procedural Elements 10.3.1 Commissioner’s Discretion, Timeliness, and Due Process.
The Commissioner has the discretion to pursue, or choose not to pursue, an investigation as to whether an offensive action has occurred.
November 9th, 2023 at 9:27 AM ^
Let's throw away your dumb analogy and use this:
What would we be saying if it was found out that OSU was using advanced scouting, and also found out that Michigan was using advanced scouting?
Probably nothing, because it's really dumb to care if both teams have the same information about each other. And that's the exact situation we're in.
November 9th, 2023 at 8:17 AM ^
We (Big Ten) are a private member organization, we set our own rules, and we followed those rules. The courts give wide latitude to that.
Where it will fall apart in court is the "we followed those rules" part. It is becoming clearer and clearer that the Big Ten/Pettiti have gone completely off the rails and are not following their own rules. These are wild precedent-setting actions they are contemplating that should never be something the commissioner can just do on a whim.
November 9th, 2023 at 8:52 AM ^
Yeah, the NCAA's best chance is the fact they're a private organization and can do what they want. One mitigating issue is that said organization is comprised of state schools, which are public entities and have public employees. I don't know the particular jurisprudence around that but it's an element that wouldn't be there if, say, an industry trade group were to impose sanctions on a member company and an employee.
November 9th, 2023 at 8:19 AM ^
While it might make us all happy, I think suspending the rest of the B1G and Pettiti is a tad premature.
November 9th, 2023 at 8:21 AM ^
Because Charmin said so
November 9th, 2023 at 8:27 AM ^
1. Michigan Wins to much and we are jealous though we cant say it out loud
2. Since we cant beat UM we here at Olieo St must send our coaches brothers out to hack their computers
3.Just because EVERYONE else does it and we NEVER do anything about it we MUST ( because all the talking heads at ESPN and elsewhere DEMAND it (Because the BIG isnt on ESPN anymore...Revenge is sweet
4.THE Olieo St Snitcheyes are above the law and nobody else can be
5.Because Purdue will ALWAYS be PurDONT and were trying to change that
6.Little Brother is worried about THEIR Safety...Like last years tunnel incident so the harm caused to MSWHO must be addressed and therefore UM MUST be taken down
November 9th, 2023 at 8:32 AM ^
Because I said so.
November 9th, 2023 at 8:34 AM ^
I’m not going to do the B1G’s legal work for them.
Given Michigan is using many of the same defenses found elsewhere on this blog, this should be deleted.
November 9th, 2023 at 9:52 AM ^
This is like saying MGoBlog shouldn't do FeFiFoFilm because it's doing scouting for the opponents to use.
I think it's fine.
November 9th, 2023 at 10:38 AM ^
Yeah. If you have to go to MGoBlog to get your game plan, or your legal arguments, you have bigger problems...
November 9th, 2023 at 8:42 AM ^
Listened to whoever Rich Eisen’s clown co-host is.
He basically reverts to the, “Jim Harbaugh is weird and doesn’t do himself any favors with his personality” argument, and seems to think he should be punished for that.
He also said that Stroud was suddenly bad against Michigan after being a Heisman front runner, but failed to mention Stroud threw for 743 yards and 4 TDs in 2 games against Michigan.
And then he said he didn’t care about any of it, but then hinted it would be wrong if Michigan got due process.
I say all this to say, the legacy media hates Jim Harbaugh and Michigan at large which creates a narrative, and that is what is driving much of the thinking in the BiG10 offices since PR runs the world, not truth, logic and common sense.
November 9th, 2023 at 8:58 AM ^
Yeah, his Stroud comments were highly annoying. Those two games were far from his two worst.
November 9th, 2023 at 9:55 AM ^
And even if Stroud had been bad. That would mean...what exactly?
November 9th, 2023 at 10:23 AM ^
Somehow that gives credence to "Michigan stole signs, and now my new long held belief is stealing signs is the worst thing you can do."