What to expect in the looming, unprecedented Michigan vs. Big Ten battle

The showdown between Michigan and the Big Ten Conference is approaching a crossroads.

While an NCAA investigation into Michigan’s alleged off-campus scouting and signal stealing plods along, the Big Ten is poised to impose discipline for violating its sportsmanship policy. The league recently sent Michigan a notice of disciplinary action, required by the sportsmanship policy “in the event it becomes clear that an institution is likely to be subjected to” penalties.

Michigan was expected to send its response to the Big Ten by the end of Wednesday, but any discipline from league commissioner Tony Petitti was not expected until Thursday at the earliest. The likeliest penalties, including a suspension, would focus on Michigan coach Jim Harbaugh rather than the entire team, sources told ESPN. Former Michigan staff member Connor Stalions, at the center of the NCAA’s investigation, resigned from his position Friday after initially being suspended with pay.

The biggest question around college football this week is: What will Petitti do?

The first-year commissioner had drawn positive reviews around the league so far, especially after the brief but rocky tenure of predecessor Kevin Warren, who also finished with a record media rights deal and the expansion of USC and UCLA. But the Michigan controversy has sparked emotions and divisions within the league. Last week, Petitti heard from Big Ten coaches and athletic directors, many of whom strongly encouraged him to act against Michigan, even though the NCAA investigative and infractions process is far from over. He also met on campus with Michigan president Santa Ono, who had urged Petitti in an email before their meeting to respect due process and let the NCAA’s investigation play out (Ono shared his letter with the other Big Ten presidents and chancellors). Michigan sources have made it clear that if Petitti imposes discipline, the school will use every available legal recourse to fight back.

“This is going to get ugly,” a Michigan source told ESPN. “We don’t think this is fair that 13 schools gang up on one and the commissioner will just give in. Does [Petitti] have the authority? No question. But we have a lot of levers of power, too.”

With a decision coming as soon as today, let’s examine each side’s position and what could happen if the situation reaches a courtroom.

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Where the Big Ten stands

When the NCAA began its investigation of Michigan last month, the Big Ten appeared ready to watch from the sidelines. The league issued a statement Oct. 19 saying that it had notified Michigan’s upcoming opponents, but beyond that, would simply “continue to monitor the [NCAA] investigation.”

As new details emerged about the lengths Stalions allegedly went to obtain opponents’ signals, though, the Big Ten noted to ESPN that it could take action against Michigan before the NCAA’s lengthy investigative and infractions process concluded, by imposing penalties through the conference’s sportsmanship policy. A Big Ten source told ESPN on Oct. 24 that the league would want to have “as full of a picture of what the facts actually are, if we were to act” before the NCAA completes its investigation.

The Big Ten believes it has the facts to be certain that Michigan illegally obtained signals, which the league considers serious. The league has been communicating with the NCAA, and has been following new information, including last week’s revelation that an unidentified man resembling Stalions appeared on Central Michigan’s sideline dressed like a coach for the Chippewas’ Sept. 1 opener at Michigan State.

Evidence has not yet emerged showing Harbaugh knew or orchestrated the off-campus scouting, according to sources. But the Big Ten views Harbaugh as being responsible for everything in the program, whether he has knowledge of it or not. The league could cite NCAA bylaw 11.1.1.1, which states: “An institution’s head coach is presumed to be responsible for the actions of all institutional staff members who report, directly or indirectly, to the head coach.”

The Big Ten’s sportsmanship policy, a brief and somewhat vaguely written document that has been revised only once since 2013, grants Petitti “exclusive authority” to determine whether violations have occurred, and to dole out discipline. Petitti would be leaning into the policy if he chooses to suspend Harbaugh, possibly noting factors outlined in considering discipline, such as, “the manner in which the offensive action fits within the context of the rules of the game for the sport at issue.”

The length of a Harbaugh suspension is also worth monitoring. A two-game suspension — covering Saturday’s game at Penn State and a Nov. 18 game at Maryland — would fall under standard discipline, which Petitti could impose on his own. Anything beyond two games is classified as “major” discipline, and would require approval from the Joint Group Executive Committee, which includes representatives from several league members. The JGEC can deny or lessen the penalties Petitti proposes, but sources do not expect it to be an obstacle for the commissioner.

How will Petitti react after Michigan sent the Big Ten documents that it says show three teams — Rutgers, Ohio State and Purdue — colluded to share Michigan’s signals in advance of Purdue’s matchup with the Wolverines in the 2022 Big Ten championship game? Although a Big Ten source told ESPN that the documents won’t impact the league’s pursuit of possible discipline for Michigan, Petitti and the league may face additional pressure to argue that Michigan’s situation was much different and much worse.

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Where Michigan stands

Michigan planned to respond Wednesday to the Big Ten’s notice of potential of discipline, sources confirmed to ESPN. A source said the response is likely to reflect many of the same concerns that Ono shared in his letter to Petitti last week — namely asking the conference to respect the NCAA’s investigative process rather than act hastily in the face of pressure from other schools and the public.

“The reputation and livelihoods of coaches, students, and programs cannot be sacrificed in a rush to judgment, no matter how many and how loudly people protest otherwise,” Ono wrote last week. “Due process matters. We, as would any other member of the Big10, deserve nothing less. Our students, our coaches, our program — all are entitled to a fair, deliberate, thoughtful process.”

If the Big Ten does decide to discipline Harbaugh or the team, multiple sources have told ESPN that the university plans to use the legal system to fight back. Depending on the scope of the sanction, attorneys for the university or for Harbaugh could ask a judge for a temporary restraining order to delay a suspension.

According to multiple sources, the university plans to consult with attorneys from Williams & Connolly, a large, national firm based in Washington, to weigh their legal options. Harbaugh hired attorney Tom Mars to help with a different NCAA investigation and suspension earlier this year. Mars has served as an attorney for several coaches and college athletes battling the NCAA over eligibility issues or sanctions.

Michigan likely will argue that the Big Ten had agreed to monitor the NCAA investigation and await its results, and only intervened as a response to pressure from competitors within the conference. The Big Ten did not initiate its own investigation, which the sportsmanship policy allows, and has essentially been relying on information from various sources during an ongoing external probe. The information about Michigan only surfaced weeks ago, and college athletics have a long history of much more serious infractions that have taken much longer to be resolved.

“There’s not a lot of precedent for a conference stepping up to discipline a coach or a team before there’s been an investigation by the NCAA,” said Gabe Feldman, director of the Tulane Sports Law program and one of the nation’s leading experts on college sports legal issues. “It’s just a question of relatively new leadership in the Big Ten, new members coming into the Big Ten and some uncertainty as to the severity of the offense, whether the conference wants to set a precedent.”

The league’s own handbook also could be cited in the defense for Michigan/Harbaugh. In the “Enforcement Policies and Procedures” section, there is a heading for “NCAA Initiated Cases.” The handbook notes that the Big Ten’s Compliance and Reinstatement Committee, not the commissioner, would review any potential NCAA violations by one of its members.

The entry reads: “Where the NCAA initiates a preliminary or official inquiry with a member university the Conference will cooperate with university and NCAA representatives in the processing of that case through the normal NCAA investigation, hearing and appeal processes. While the case will be processed through normal NCAA channels, the Conference Compliance and Reinstatement Committee shall review the case and may impose additional penalties, if warranted, subsequent to the NCAA action.”

Attorneys for Michigan and/or Harbaugh could argue that the Big Ten isn’t following its own rules in letting a “normal NCAA investigation” play out, and is acting ahead of the NCAA, rather than imposing discipline “subsequent to the NCAA action.” The Big Ten will keep pointing to its sportsmanship policy, but Michigan could argue that this case, initiated by the NCAA, falls under a different category.

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How a legal battle could go

If the Big Ten suspends Harbaugh, Michigan likely would seek an injunction or a temporary restraining order. If granted by a judge, the Big Ten’s discipline could be put on hold for a specified period.

Feldman thinks Michigan would have an uphill battle in court. Injunctions and temporary restraining orders aren’t handed out very often, and courts generally don’t want to interfere in the ability of a governing body — in this case, the Big Ten — to discipline its own members.

“The schools have agreed to these rules and have agreed to give disciplinary powers to the commissioner,” he said. “Now, that doesn’t mean that they can’t win the case. They’d have to show that [the Big Ten has] failed to follow the procedures they agreed to. You might be able to argue that they failed to defer to the NCAA in this particular case.”

According to Feldman, Michigan would have to establish that a suspension for Harbaugh would cause “irreparable harm” if the injunction or temporary restraining order isn’t granted. Given the proximity to the Big Ten championship game and the College Football Playoff, Michigan might have an easier time convincing a judge of Harbaugh’s value on the sideline.

Michigan also could point to a lack of evidence from the NCAA, especially connecting Harbaugh to what Stalions allegedly was doing. The Big Ten could counter by stating it had to act immediately, as the alleged violations impacted the current season.

“We know the NCAA will act slowly,” Feldman said. “They may not act in time for there to be a meaningful discipline for the parties that are involved. The idea is it gave them an unfair competitive advantage this year, so you’re allowing a team that cheated to maintain that advantage. Should the Big Ten have to wait for a process they know won’t play out quickly enough?”