Harbaugh’s Michigan Sign-Stealing Saga Draws in NFL
On top of news the University of Michigan is rescinding a contract extension offer due to a sign-stealing scheme, Wolverines head coach Jim Harbaugh is facing another looming obstacle: The NFL reportedly won’t allow Harbaugh to work for an NFL team during any NCAA suspension.
There’s a potential antitrust problem with that plan: Harbaugh could sue the NFL and its teams for orchestrating a group boycott of his services.
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After all, Harbaugh hasn’t broken any NFL rules, he’s not contractually obligated to arbitrate claims, he isn’t a member of a union that has negotiated a CBA exempting the NFL from antitrust scrutiny, and the NFL and its teams run the risk of litigation when they collude.
Harbaugh’s immediate worries are at the collegiate level.
The NCAA is investigating a possible plot by No. 2 ranked Michigan to improperly engage in off-campus, in-person scouting of future opponents—barred by NCAA rules since 1994—and, more explosively, illicitly use stadium technology and computers to steal other teams’ play-call signs. The Wolverines have suspended, with pay, football analyst Connor Stalions. In texts, Stalions boasted of sign-stealing, which the NCAA only permits in limited circumstances. ESPN reported Stalions also paid at least one person to record games of Wolverines’ future opponents.
Meanwhile, the FBI and local police are probing whether individuals connected to Michigan engaged in unauthorized access of a protected computer, a federal crime at issue in the 2017 scandal involving a St. Louis Cardinals executive hacking the Houston Astros’ email system and scouting database. A few years later, MLB punished the Astros and their executives for illicit use of technology to steal signs.
Harbaugh, 59, has flatly denied any knowledge of sign-stealing and has vowed to fully cooperate with the NCAA’s investigation. His assurances haven’t quelled the controversy. The Wall Street Journal reported Sunday night that, on account of the scandal escalating, Michigan has rescinded a contract offer that was poised to make Harbaugh the highest paid coach in the Big Ten.
Even if Harbaugh wasn’t involved, the former San Francisco 49ers and Stanford head coach could face punishment under NCAA rules.
By virtue of their position, a head coach is presumed responsible for “actions of all staff members who report, directly or indirectly, to the head coach.” Unless a head coach can rebut that presumption, the NCAA will hold them accountable for program violations.
According to NFL.com, Harbaugh shouldn’t expect to flee for the “safe harbor” of an NFL coaching job. The league, Ian Rapoport and Tom Pelissero wrote Sunday, sees a precedent in the case of former Ohio State coach Jim Tressel.
Amid a memorabilia-for-tattoos scandal involving his Ohio State players in the spring of 2011, Tressel faced a five-game suspension that he would have served in the fall. He instead quit and joined the Indianapolis Colts as a consultant. However, at the apparent urging of the NFL, the Colts announced Tressel wouldn’t start his job until week 7 of the 2011 season—meaning, in effect, Tressel served a college football suspension while in the NFL.
That same scandal led the NFL to suspend ex-Buckeyes’ quarterback Terrelle Pryor before his NFL career began for “undermining the integrity of our draft eligible rules.” The legal capacity of the NFL to punish a player who is not yet in the league, and thus not an NFLPA member, is debatable.
For at least five reasons, the NFL punishing Harbaugh for alleged actions as a college coach would be logically and legally problematic.
First, the NFL has allowed other college coaches tarnished by NCAA controversies to join teams.
In 1994, the Dallas Cowboys hired Barry Switzer as head coach despite Switzer resigning as University of Oklahoma’s head coach in 1989 amid the NCAA putting the football program on probation. There were various infractions, including allegations coaches and boosters paid players and recruits.
The NFL also didn’t object to the Seattle Seahawks hiring Pete Carroll as head coach in 2010 despite a high-profile NCAA investigation into the University of Southern California football team, which Carroll had coached. After the Seahawks hired Carroll, the NCAA announced massive sanctions against the school for lack of institutional control—particularly related to star running back Reggie Bush allegedly accepting gifts.
While Switzer and Carroll weren’t suspended in college, programs they ran broke NCAA rules. If the NFL calculates that punishing Harbaugh is morally just, it’s not certain why the league didn’t feel the same was needed for Switzer or Carroll.
Second, the NFL currying favor with the NCAA by enforcing its suspensions suggests the NFL-NCAA relationship is symbiotic. That might feed into criticism college football supplies billionaire NFL owners with a free minor league system. This is the same NFL that pushed for an eligibility rule that requires players be three years out of high school before they’re draft eligible—a rule that, when coupled with the absence of an NFL developmental league, effectively necessitates pro prospects play in college, where they aren’t paid and where they generate massive revenues for their schools.
Third, the NFL didn’t suspend one of its own coaches for an analogous controversy. In 2007, the NFL docked the New England Patriots draft picks and fined the team and head coach Bill Belichick—but didn’t suspend Belichick—for violating an NFL camera policy. The Patriots had placed a camera in a prohibited area during a game against the New York Jets. This sparked “Spygate,” which spawned a U.S. Senate investigation about recording signals and much fanfare, but not a coach’s suspension.
While the Michigan and Patriots situations are different, it might seem peculiar for the NFL to effectively suspend Harbaugh for what he may have done in college when it didn’t suspend Belichick for what he did in the NFL.
Fourth, there is no NFL rule regarding enforcement of college suspensions. The league noticeably didn’t call the Tressel suspension “a suspension”, perhaps because there was no authorizing rule. Organizations, especially those with elaborate and detailed workplace policies like the NFL, can invite legal trouble when they also rely on unwritten rules or informal customs—especially those not uniformly applied.
Fifth, these concerns could offer Harbaugh grounds to sue the NFL and its teams, and possibly the NCAA, for conspiring to exclude him from a job.
To be clear, an NFL team could lawfully decide it wouldn’t employ Harbaugh because of ties to the Michigan controversy. No team “must” interview him or return his agent’s calls.
The potential legal problem would emerge if the NFL instructed teams to not consider Harbaugh until a time following when he served, or would have served, an NCAA suspension.
Section 1 of the Sherman Antitrust Act prevents NFL teams, which are independently owned businesses, from conspiring to unreasonably restrain how each competes. Many NFL restraints on competition, like the salary cap or the draft, would run afoul of Section 1 but for the NFLPA agreeing to them in a CBA. Likewise, when Harbaugh’s former 49ers quarterback, Colin Kaepernick, argued NFL teams colluded against him, his grievance was governed by the CBA.
Harbaugh’s in a different legal category. He’s not a member of a union that negotiates with the NFL, he’s not (like Brian Flores) subject to an arbitration process overseen by NFL commissioner Roger Goodell by virtue of signing an NFL employment contract, and any actions the league takes against Harbaugh (or other college coaches) are fair game for antitrust scrutiny.
Harbaugh, whose brother John is head coach of the Baltimore Ravens, could maintain he is eminently employable as an NFL coach and would secure interviews. He’s a former NFL head coach who led the 49ers to Super Bowl XLVII and has enjoyed considerable success in college. Harbaugh has also interviewed with NFL teams in recent years. A de facto NFL rule that bars a team from considering or employing Harbaugh would represent a questionable restraint on competition and possibly a group boycott.
In its defense, the NFL would insist it’s a private association owed legal deference in how it operates. The league knows courts are generally deferential to private associations. The NFL could also assert that unauthorized sign-stealing is particularly problematic because it undermines the integrity of the game (though Goodell didn’t suspend Belichick over it).
Harbaugh might also be disinclined to sue the NFL given that it could make him less likely to attract job interviews. Then again, Flores sued the NFL and teams, and he’s had no shortage of would-be NFL employers pursue his services.
(This story has been updated in the headline.)
