As the NFL mulls preventing University of Michigan head football coach Jim Harbaugh from working in the NFL if under NCAA suspension—a move Harbaugh could challenge—the fallout of the program’s sign-stealing scandal could extend into the courts.
The NCAA is probing whether No. 2-ranked Michigan engaged in off-campus, in-person scouting of future opponents the Wolverines play later in the same season. NCAA bylaw 11.6.1, instituted in 1994, generally bars this practice, but there are exceptions to the bylaw, including when a future opponent is participating “in the same event at the same site” or if the scouting happens at a conference or NCAA championship.
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But 11.6.1’s overarching purpose is to promote fair play.
Some schools lack the resources to hire and dispatch scouts, which the NCAA worries would disadvantage those schools. Football programs vary widely in athletic resources, including as to the quality of health, fitness and training facilities, but limiting scouting is one way to create a more level playing field.
Last month, Michigan suspended Wolverines football analyst Connor Stalions, with pay, after texts surfaced in which he allegedly acknowledged sign-stealing. ESPN also reported Stalions paid others to record future opponents’ games.
The NCAA will assess if Stalions, or others connected to Michigan’s program, violated 11.6.1. The NCAA can rely on admissions, witness recollections and available electronic evidence such as texts, emails and direct messages.
As a private entity, the NCAA lacks subpoena power to require a witness or relevant third party, such as a cell phone or social media company in possession of implicating messages, provide sworn testimony or share evidence. This also means a witness can more easily lie or omit information to protect themselves with less of a concern for potential legal consequences.
But the NCAA can still rely on evidence and statements it obtains through voluntary measures and through its contractual power to compel member schools—and those who work for them—to cooperate in investigations. To that end, the NCAA has reportedly sought access to Stalions’ computer and other materials.
Harbaugh has unequivocally denied partaking in any scheme, but as head coach, he’s subject to the head coach responsibility bylaw, 184.108.40.206. Harbaugh is presumed responsible for all staff who report, directly or indirectly, to him. Harbaugh must “promote an atmosphere of compliance within the program and shall monitor the activities of all institutional staff members.”
In other words, even if Harbaugh wasn’t involved in a scheme and didn’t know about it, the NCAA could still punish him for failing to uncover the wrongdoing.
11.6.1 has periodically surfaced in controversies. In 2016, a Baylor assistant football coach was suspended for half of a game because, while in Oklahoma to attend a friend’s wedding, he and his wife attended a game played by future opponent Oklahoma. About 15 years earlier, the NCAA accused the head men’s basketball coach at Buffalo of instructing a couple of coaches to scout upcoming opponents.
The NCAA will attempt to determine if Stalions acted on his own, like a lone wolf, or if he was part of a broader conspiracy that unfairly advantaged Michigan.
Stalions, 28, has been described in media accounts as something of a super fan who landed a low-ranking position. The school is incentivized to downplay Stalions’s role and influence, and to suggest if he violated any rules, it was not at the behest of Harbaugh or other coaches and that any scouting materials he assembled weren’t seen or used by the program.
Michigan noticeably didn’t fire Stalions or suspend him without pay. The school may be keeping him employed—and paid—in part out of concern of what Stalions might tell the NCAA and what materials he might share with its investigators.
Michigan has more influence over Stalions as his current employer and can impress upon him the fiduciary need to keep confidential scouting materials and other documents that could contain trade secrets. If Michigan fires Stalions, he may become more willing to disparage Michigan and, possibly, share materials the NCAA could then use to punish the school and its coaches.
Likewise, Stalions could sue the school over a firing. A litigation could lead to pretrial discovery and shed public light on his relationship with coaches and their reliance on him. While an NCAA investigation is largely private (albeit sometimes with leaks to the media), a litigation is public, where evidence and testimony can be visible.
The NCAA has an elaborate and multilevel process for enforcing rules that can include involvement by its committee on infractions. The trajectory of that process often hinges on whether the NCAA and school can resolve the matter through mutual consent or if the school or coach pushes back.
If the NCAA punishes Michigan and/or Harbaugh for actions they insist never occurred, they could challenge the punishment in court.
But they’d likely face long odds.