Legal analysis: Big Ten rules don't allow insta-punishment of Michigan

Submitted by rym on November 7th, 2023 at 3:02 AM

Lawyer/alum here to shed light on what President Ono probably meant in his Big Ten letter's reference to conference rules.*

Bottom line: no matter much Michigan's conference rivals whine and pound the table demanding "instant action," Big Ten Commissioner Pettiti doesn't have the authority to instantly suspend Harbaugh or otherwise discipline Michigan for the Conor Stalions ticket-buying scheme (or whatever else the SignGate "scandal" consists of) until the NCAA finishes its investigation.

* (Not-legal-advice, not-licensed-in-Michigan, only-vaguely-familiar-with-the-facts, and not-an-expert-in-sports-law disclaimers apply — this is just a take that is more informed than your average take if I am analyzing the correct rules.)

I. The rules

The relevant Big Ten rules seem to reside in the Big Ten Conference Handbook as amended by the Sportsmanship Policy (2022–23 version available on the B10's website at the link; the policy was originally adopted in 1974). The Sportsmanship Policy replaces Agreement 10 of the Handbook, not the Handbook as a whole.

The Big Ten Conference Handbook — Rule 32 ("Enforcement Policies and Procedures")

The latest online version of the handbook I can find is from 2018–19. For what it's worth, the rules I describe below are alluded to in an ABC News story today by Adam Rittenberg, suggesting that the rules remain in effect today. (I used advanced searches on Google and a legal research database and didn't find any newer versions.)

Rule 32 of the 2018–19 Conference Handbook divides investigations into two groups for purposes of determining the applicable procedure. Each investigation is either (1) initiated by the NCAA ("NCAA Initiated Cases") or (2) initiated by the Big Ten ("Conference Initiated Cases"). See Rule 32.2.2 ("Investigations"). My understanding is that despite some early inaccurate reporting to the contrary, the SignGate investigation originated with the NCAA, not the Big Ten.

In investigations initiated by the NCAA, the Big Ten rules require the conference to wait for the NCAA investigation and any appeals to be finished and for the NCAA to levy a penalty first, at which time the Big Ten can choose to pile on (key language italicized):

32.2.2(C) NCAA Initiated Cases. The Compliance and Reinstatement Subcommittee shall review violations by member universities as determined by the NCAA and may impose penalties in addition to those imposed by the NCAA for any violations.

1. 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.

2. While the case will be processed through normal NCAA channels, the Conference Compliance and Reinstatement Subcommittee shall review the case and may impose additional penalties, if warranted, subsequent to the NCAA action.


That provision is unambiguous and lists no exceptions. There is no rule in the conference handbook that would allow the Commissioner to bypass the NCAA (and the Big Ten's Compliance and Reinstatement Subcommittee) because the Commissioner feels peer-pressured to act quickly.

The Big Ten Sportsmanship Policy

The Sportsmanship Policy just replaces one set of provisions in the Handbook ("Agreement 10"); it exists alongside the enforcement provisions described above. In fact, Rule 32 in the Handbook (discussed above) begins by noting:

Also See Men's and Women's Agreement 10 for Policies & Procedures on Sportslike Conduct ...

The Sportsmanship Policy is much broader and vaguer in scope than Rule 32. The Sportsmanship Policy's key language describing its scope is as follows; I've replaced unnecessary language with ellipses and added a paragraph break for clarity.

The Big Ten Conference expects all contests involving a member institution to be conducted without compromise to any fundamental element of sportsmanship. Such fundamental elements include integrity of the competition, civility toward all, and respect, particularly toward opponents and officials. Accordingly, each member institution ... has an obligation to behave in a way that does not offend the elements of sportsmanship described above.

Actions that are offensive to the integrity of the competition, actions that offend civility, and actions of disrespect are subject to review and are punishable in accordance with the terms of this policy. Although this policy will apply most commonly to actions that occur within or around the competitive arena, the scope of its application is intentionally left unrestricted in order to accommodate any behavior, which may occur in any setting, deemed by the Commissioner to offend the underlying objective this policy seeks to achieve. For example, public comments or public messaging made at any time ... , including comments or messages posted even temporarily via social media, are subject to review and punishable in accordance with the terms of this policy. ....

The first paragraph above describes the policy's purpose. The second paragraph describes the policy's scope — what it theoretically allows the B10 to punish. The B10 may punish "[a]ctions that are offensive to the integrity of the competition, actions that offend civility, and actions of disrespect." 

That language is so broad as to verge on meaninglessness, so the example provided at the end of the second paragraph is crucial to understanding the policy and reconciling it with Rule 32's enforcement procedures:

For example, public comments or public messaging made at any time ... , including comments or messages posted even temporarily via social media, are subject to review ....

It's within the Commissioner's discretion to find a violation and impose certain penalties on conduct that violates the Sportsmanship Policy. It has been reported that the B10 Commissioner is considering a two-game suspension of Harbaugh; the reason it would be two games and not three is that any longer suspension under the Sportsmanship Policy would require prior approval by the B10 Joint Group Executive Committee (JGEC). Two games, however, would fall under this provision:

10.3.3.1 Standard Disciplinary Action. Standard disciplinary actions shall include admonishment, reprimand, fines that do not exceed $10,000, and suspensions from no more than two contests.

Alas for the haters, Michigan will have a strong legal argument that the Commissioner cannot unilaterally suspend Harbaugh or anyone even for two days for SignGate because the case falls within the "NCAA Initiated Cases" provision in Rule 32 of the Handbook.

II. The Definitive Legal Analysis

Many people seem to think that Big Ten Commissioner Pettiti can act immediately and punish Michigan with at least a two-game Harbaugh suspension on his own say-so because other B10 coaches threw a tantrum and demanded that he DO SOMETHING. This assumes that the Sportsmanship Policy overrides Rule 32 of the Big Ten Conference Handbook. But it doesn't. It only amends the previous Agreement 10 of the Big Ten Conference Handbook, which exists alongside Rule 32.

Assuming the Sportsmanship Policy (Agreement 10) and Rule 32 of the Big Ten Handbook are both in effect, and that their current versions contain the language I've discussed above, the provisions conflict with respect to SignGate and must be reconciled. Michigan wins for three reasons:

  1. Based on their language alone, the Handbook and Sportsmanship Policy encompass overlapping conduct. This is inevitably so because of the Sportsmanship Policy's absurd breadth; the policy allows any "actions of disrespect" to be penalized. SignGate consists of Conor Stallions' alleged violations of NCAA rules against in-person scouting, which has triggered an "NCAA Initiated Case" under the Handbook. Assuming SignGate is also an "action of disrespect" or otherwise falls under the Sportsmanship Policy, the Handbook and Policy must be reconciled: must the Handbook's procedures be followed? The answer is yes. If the Big Ten had wanted to amend Rule 32, they would have done so. Instead, they have separate rules on sportsmanship that they've enacted to coexist  with Rule 32. There is no reason to believe that the Policy overrides Rule 32 rather than addressing other situations not encompassed by Rule 32. (The relevant legal-interpretation principles include the "harmonious-reading canon" and perhaps the "presumption against implied repeal"; see Scalia and Garner, Reading Law: The Interpretation of Legal Texts.)
     
  2. Since the Policy doesn't override Handbook Rule 32 for situations encompassed by Rule 32, the latter's procedural rules apply to any NCAA investigation — SignGate included. The SignGate investigation is an "NCAA Initiated Case" under Rule 32.2.2(C), and the Big Ten may not take any action to punish Michigan until all three of the following happen: (1) The NCAA investigation and any appeals are concluded; (2) the NCAA levies penalties; and (3) the Big Ten, following the procedures described in Rule 32, determines that additional penalties are warranted. (The relevant legal-interpretation principle is the "General/Specific Canon": specific provisions override general provisions.)
     
  3. These conclusions are bolstered by language in the Sportsmanship Policy, which provides only one example of conduct to which it applies: social media messages. Unsportsmanlike social media messages, like other boorish but insignificant conduct (such as Sparty's 2018 field-walking stunt), are plausibly covered by the Sportsmanship Policy but not Rule 32 because they may not violate any particular NCAA or Big Ten rules or trigger any investigations. In such situations, the Commissioner can levy one of the minor penalties described in Sportsmanship Policy 10.3.3.1.

In short, if Pettiti tries to penalize Michigan in any significant way (including by suspending Harbaugh) under the Sportsmanship Policy, Michigan will sue and seek a preliminary injunction blocking the suspension. Another attorney-fan posted about that earlier today. Preliminary injunctions are hard to obtain because of the procedural standard, so a win isn't assured, but Michigan will have the better argument.

Michigan will correctly argue that if the Big Ten Commissioner punishes Michigan in connection with an NCAA-initiated investigation before the NCAA investigation is completed, that violates Rule 32 of the conference rules and is a material breach of the U of M's agreement with the Big Ten. (Note for your arguments on other message boards: although fairness and prudence counsel against the B10 punishing a school before conducting any serious investigation because rival schools pressured them to do so, there's no need to rely on vague values such as fairness or "due process" here since the conference rules solve this question.)

I hope that has been helpful. Go forth to all the social-media venues and message boards you frequent to liberate the masses from their ignorance, one comment at a time. Go Blue!

Comments

Blue in Paradise

November 7th, 2023 at 3:31 AM ^

This is excellent - thank you for putting the time and effort into this.  I like that it is a diary entry too because it won't disappear off of the front page in by 9 am tomorrow morning.


Question - if the B1G is found to have materially breached of the B1G charter / agreement with Michigan, would that be enough that Michigan, should it choose, could terminate the agreement with the B1G and go independent or join the ACC/ SEC? 

Or, if not separate from the B1G, possibly try to nullify the current grant of rights and renegotiate the TV / Media rights agreement from an even split to a pro-rata based on viewership numbers or something like that.

rym

November 7th, 2023 at 4:49 AM ^

Thanks. As for your Q, I would need to see the contracts and research the applicable law, but the general rule is that if one party materially breaches a contract, the counterparty is excused from further performance. For example, if you hire a contractor to remodel your house and they abandon the job halfway through without an excuse, you might not have to keep paying them.
 

One would need to analyze the UM/B10 contract(s) to see what they allow and prohibit + what mechanisms they have for resolving disputes.
 

With that major caveat in mind, I imagine that whatever contract M has with the B10 includes some protections for M if the B10 were to willfully violate its own rules at Michigan’s expense. If so, and if the B10 actually does what people are speculating/reporting it to be considering (arbitrarily punish a school before an ongoing NCAA investigation is complete in violation of the conference’s governing rules), that would probably be seen as a material breach either of specific provisions in the contract or of the general obligation parties have to not act in bad-faith ways that deprive the other party of the benefits of the contract. So Michigan could have a legal path to leaving the conference if that’s how it plays out. There are too many unknowns to answer with any confidence, though.

FB Dive

November 7th, 2023 at 10:23 AM ^

Excellent analysis and explanation. Just to expand on that caveat you mention, it is possible (likely?) that multiple contracts would be involved here -- the TV grant of rights, the Big Ten Conference Handbook, and perhaps more. Without seeing the TV grant of rights (and I'm not sure if that contract is even public), it is very difficult to know whether the Big Ten's breach of the Conference Handbook would excuse Michigan's performance under the GOR contract. Generally, one party's performance being conditioned on the other party's performance is implied -- meaning the condition exists even if not explicitly stated in the contract -- but it gets a lot more complicated when there are multiple contracts involved. Key details would be (1) whether the GOR references/incorporates any of the Conference Handbook, and (2) if not, whether Michigan has a credible way to argue that the two contracts should be read as parts of a larger agreement, instead of as separate contracts.

There probably isn't a clear answer, which means a decision to leave the Big Ten before the expiration of the GOR would assuredly result in protracted, messy litigation. 

rym

November 7th, 2023 at 4:17 PM ^

This is 100% correct: the analysis might change depending on what the actual M-B10 contracts say, and I don't know what they say. Someone could try to FOIA them if that hasn't already been done. That said, I suspect that no matter what the contracts say, M can argue that all its contracts with the B10 implicitly assume that the B10 will act with procedural fairness toward Michigan and not arbitrarily violate its own rules to punish Michigan under pressure from rival schools.

Njia

November 7th, 2023 at 3:54 AM ^

Excellent analysis. There is one caveat I can see: there is not yet an official “NCAA-initiated investigation.” If I understand what has been posted elsewhere on this site, those begin with a written notice by the NCAA that there is an allegation against the program. That hasn’t happened. For that reason, the B1G will likely contend that this matter is Conference Initiated. 

Not that any of it matters to the conference, its member schools, nor (obviously) Tony Pettiti. They want Michigan and Harbaugh not just punished, but gone. That much seems very clear.

Other Andrew

November 7th, 2023 at 4:50 AM ^

Thanks a lot rym. You paint a cogent argument.

I still don't trust Petitti to follow any of the rules. He's just a corporate suit, and I can see Fox saying, "You know what would be great for ratings? Suspend Harbaugh two games and let his triumphant return be for The Game, and we can raise our cost per GRP to advertisers by 4%." But at least based on what you've laid out here it sounds like he does not have standing to do what the whining babies around the league are apparently urging.

Interesting that you mention the battle will be fought on message boards. That's the world we apparently live in now. One with an fighting proxy even worse than Robot Jox

rym

November 7th, 2023 at 5:07 AM ^

Petitti will do whatever he thinks is best for the conference, taking whatever the B10’s lawyers advise into consideration. Law is one arena and politics/PR are others. People violate laws and breach contracts all the time, even unintentionally. So a legal analysis is not a prediction about how people will actually behave.

bluebyyou

November 7th, 2023 at 3:46 PM ^

Thank you for the legal analysis rym.  

Petitti went to Harvard Law. and worked for several years either as an attorney or in a capacity where legal issues were present.  I suspect he knows as do the B1G attorneys that civil litigation opens a big can of worms in terms of discovery.  Coaches and AD's may not initially see the big picture of what hurried actions by the B1G might create.  One would think that Petitti would advise the programs looking for blood of the risks that litigation would present, particularly in view of the SI article and other allegations of impropriety. 

Ryan Day likely doesn't want to be deposed.

I'd also like to hear any thoughts you or other members of the legal profession have about damages to the Michigan Brand, the likelihood of success of going after those who have uttered untruths and the type of monetary and/or punitive damages that might be available.

Blusqualo

November 7th, 2023 at 1:06 PM ^

Go to the ACC, play ND in football again, quit playing MSU on a regular basis and play OSU in the playoffs some years.

Better than playing them 3 times in a month next year; Game 12, Big 10 champ game, playoffs.

not playing MSU every year is not that big of a deal, theres little upside for us, and a lot of down side.

mitchewr

November 8th, 2023 at 12:15 AM ^

Honestly at this point, I'd WELCOME that switch. The Big Ten has ALWAYS done whatever is best for Ohio State and no one else.

If we never played MSU again that'd be too soon. It's a cesspool of a program and I no longer take any pleasure in those games.

Screw the bitches in this conference and let's move on.

AWAS

November 7th, 2023 at 8:27 AM ^

Fine analysis and explantion.  Thank you, OP.

I am hoping cooler heads prevail in the B1G office and allow all parties to step back from the brink and reassess their positions.  Mutually assured destruction benefits no one.

Ernis

November 7th, 2023 at 8:52 AM ^

Re: rule 32, is there anything that compels the conference to follow an NCAA investigation if the NCAA initiated one? Or is it discretionary: the B1G can choose to act subsequent to an NCAA investigation, or they can launch their own investigation, but nothing prevents them from running a parallel investigation concurrent with the NCAA's.

That is, in this case, can the commish just say, "We're going to launch our own investigation into the same matter being investigated by the NCAA" and throw together some sham semblance of an inquiry and bring the hammer before the NCAA concludes?

ImLawBoy

November 7th, 2023 at 9:32 AM ^

To piggyback on this a bit, is there anything that would prevent the conference from running a concurrent investigation to the NCAA's for different offenses, even if those offenses rise from the same underlying conduct?  In this case, the NCAA is apparently investigating for violations of advanced scouting and/or using video equipment, while the Big Ten is investigating a violation of the sportsmanship policy.  They both arise from Stalions' conduct, but are different offenses.

EGD

November 7th, 2023 at 11:24 AM ^

Right, if I was the Big Ten and trying to find a way to fit this under my rules, that's what I'd say: "we're not suspending him for taping signals, we're suspending him for [insert thing]." If CMU were to confirm that the guy on their sidelines was Stallions, that could potentially give them a basis. Hopefully CMU decides they don't know who the guy is and don't have any way of figuring that out.

Great Cornholio

November 8th, 2023 at 12:12 PM ^

EGD's comment reflects where my thoughts went while reading the OP's thoughtful analysis: the B1G will try to claim some meaningful difference between what they're investigating/punishing and what the NCAA initiated, as a way of circumventing rule 32.

But if I'm reading rym correctly, rule 10 is written so broadly that, if the courts allowed the B1G's claim to stand, it would essentially neuter the section of rule 32 requiring the NCAA investigation to conclude before the B1G levies punishment. The umbrella defined by rule 10 is so large that it would be easy, in all cases, for the conference to just come up with some superficial difference to justify their own action prior to the conclusion of the NCAA investigation.

From this lay person's point of view, such a line of reasoning would violate both the spirit of rule 32 and the basic assumptions of contract law. If I was a judge I would take a big steaming dump on it.

rym

November 7th, 2023 at 4:11 PM ^

I read Rule 32 as having two alternative prongs (NCAA-initiated and conference-initiated investigations) with different procedural rules that apply depending on which of the two it is.

Sure, the B10 could define SignGate or identify the wrongful conduct in a way that somehow sidesteps the NCAA investigation, but (1) I don't know how they could do that since M hasn't been given a notice of allegations from the NCAA (so, to my knowledge, the NCAA investigation remains undefined); and (2) since there is an NCAA investigation connected to the same set of allegations, such a move would seem to be a transparent attempt to avoid having to follow Rule 32, and a court would probably see it as such.

ImLawBoy

November 7th, 2023 at 5:14 PM ^

If there is no sportsmanship clause equivalent in the NCAA's rules, and the Big Ten limits its investigation to its sportsmanship clause, there's no possibility that the Big Ten is jumping the gun on the NCAA's investigation.  Besides, the NCAA is clearly communicating with the Big Ten about the investigation (since it's been reported that the NCAA told the Big Ten that their investigation has found that Harbaugh did not have a direct connection to Stalions' scheme), so it's not a stretch to assume that the NCAA has told the Big Ten the general parameters of their investigation.

UMVAFAN

November 7th, 2023 at 9:02 AM ^

Or Pettiti should just talk to any middle school principal who has dealt with cheating in the classroom. There are kids who get the answers to tests from older siblings from previous years, kids who are sick and have to take the test at a later date who get questions and answers from kids who already took the test, and there are some kids who sneak in the classroom, find the tomorrow’s test and get the questions and answers that way. All of these are different ways to accomplish the same thing - get the questions and answers. 

What do teachers do to combat this - they change the questions and answers on each test they administer (or at least the order of the questions). A competent coaching staff would do the same thing with signs/signals in football.

In terms of leveling punishment, the Big Ten cannot punish just one school. They either have to punish all who used different means to accomplish the same thing, or shrug their shoulders and say that no one gained a competitive advantage because all teams are doing things to gain intel that fall in the gray area.

 

kyeblue

November 7th, 2023 at 9:34 AM ^

It seems that Pettiti is an extreme weak leader for the job, given that he should be aware of all this as a Harvard Law graduate.

Maybe this is how cancel culture works in TV network or other corporation, but Jim Harbaugh is not an employee of the conference, and Big Ten doesn't even have the same power over its members as MLB has over its teams.

lmgoblue1

November 7th, 2023 at 10:44 AM ^

Oh, but he has. And according to the SI article, he said this is the worst scandal in Big !0 history. I would think that demands he act according to his bias. It appears he is willing to at least attempt to destroy us to placate the "mob" despite some very vocal voices advising him that this is a bad idea.  This will change the face of college football and the Big 10 forever should it be allowed to continue before all the facts are known. All he had to do was lead and say no to the mob.  That would have been the end of the hysteria. But he did not do that, and now chaos is about to ensue. Bring it on.

Don

November 7th, 2023 at 10:46 AM ^

Excellent and informative post, rym.

I suspect all the conference programs who claim SignGate is the worst thing in  conference history as well as the gormless Commissioner who parrots that unbelievable nonsense all assumed Michigan was going to bend over and offer its hindquarters in submission and meekly accept whatever punishment that was doled out.

Fortunately it seems at the moment that those leading the University aren’t inclined to play the helpless victim. I hope that’s an indication of real resolve and not temporary posturing.

Blue Middle

November 7th, 2023 at 11:01 AM ^

Who needs ESPN?  The message board content here is several times better than their garbage.

Thank you for all your work and analysis to help non-legal minds who want to know.

Meteorite00

November 7th, 2023 at 11:09 AM ^

thank you for this  

I think there’s a lot of ambiguity in these rules so that the conference can largely act how it wants  

there’s an argument that NCAA action is not preclusive bc suspension would nominally be for something outside its scope, like non compliance with the big ten investigation  

There’s also no prohibition on sequential, discrete two-game suspensions by the commissioner to approximate an indefinite suspension  

I’m just not sure there’d be an assumption that rules about joinder/jeopardy/estoppel would apply here  

 

 

EGD

November 7th, 2023 at 11:36 AM ^

I agree. I appreciate the work that the OP put into the analysis but I was hoping M would have a more airtight case under the conference rules. Given all the potential ways the Big Ten could craft a suspension to arguably fit within the rules (most likely, they could declare the violation to be something different than taping signs, and thus deem it Big Ten-initiated, or they could argue the sportsmanship policy authorizes the suspension irrespective of the enforcement policy), I think litigating this would be very dicey. 

I will say that I don't think they could justify serial two-game suspensions under the sportsmanship policy. That seems to badly undercut the plain meaning of the rule and would effectively nullify the safeguard of executive committee review for more extensive punishments.

Ghost of Fritz…

November 7th, 2023 at 11:31 AM ^

Hey, superb post and excellent legal analysis.

As another MGo lawyer-fan, am going to boil it down to its most simple essence...

 

1.  There are TWO sets of Big Ten rules, (1) the Sportsmanship Policy, and (2) the Conference Handbook.

2.  Reporting and internet posting has focused only on the former (Sportsmanship Policy), and mistakenly ignored the latter (Handbook).

3.  In fact, the Handbook alone, and not the Sportsmanship Policy, governs this situation. 

4.  There are two interlocking reasons why the Handbook (and not the Sportsmanship Policy) governs SignGate.

5.  Reason 1:  The Sportsmanship policy amended/repealed only one sub-part (the old Sportsmanship Policy) of the Handbook and, thereby, left the remainder of the Handbook fully in place (including Handbook Rule 32 entitled "Enforcement Policies and Procedures").

6.  Reason 2: Because the Sportsmanship Policy did not amend/repeal Rule 32 of the Handbook, the Sportsmanship Policy governs only situations not already covered by Handbook Rule 32.  

7.  Rule 32 already covers SignGate because by its text Rule 32 covers any "NCAA Initiated Cases."  Here, the NCAA has already initiated a case. This leaves the Sportsmanship Policy irrelevant (at least for now until the NCAA concludes whatever action it may take).   

8.  As Rule 32 governs, under Rule 32.2.2 (C) the Big Ten must wait until AFTER the NCAA has taken a final action on the matter ("subsequent to the NCAA action").   At that point, but only at that point, does Rule 32 permit the Big Ten to "impose additional penalties."

 

O.k., OP, is this a fair summary/simplification?  Did I miss anything?

I think OP has done a great job discovering an excellent legal argument that Michigan can use in seeking an injunction and in subsequent litigation.   

The core ideas make a lot of sense. 

It would be irrational to read the Handbook and the Sportsmanship policies as setting up two very different processes and rules to govern the same situations. 

How could the Big Ten plausibly argue that it has legislated two different processes, A process and B process, and the Commissioner can randomly pick either A or B to use in any given situation.  That would be absurd.  No system works that way. 

Therefore, Process A (Handbook R 32) governs one set of circumstances, while Process B (Sportsmanship Policy) governs a different set of circumstances.  And here process A governs (Handbook R 32) because by its terms it controls situations where the NCAA has already initiated a case.

Now...caveats.  While I am persuaded that OP has thoroughly outlined a very good legal argument that will help Michigan...if I were opposing counsel I could think of a few arguments to plausibly poke holes in it.  Most of those plausible counterarguments would be rooted in the many ambiguities in Rule 32, etc.   My overall takeaway is that the Big Ten Rules are a poorly drafted mess.  And whenever you have a poorly drafted mess...it becomes easy for a Commissioner to find colorable legal arguments to justify arbitrary and capricious decisions (dumb and irrational stuff, for the non-lawyers).

 

 

mgogobermouch

November 7th, 2023 at 11:53 AM ^

As a quick question for those lawyers who have looked at this -- I'm worried about interim actions as detailed in 32.2.1A. 

It seems to me that these can come before an investigation as they are intended "protect the integrity of the involved sport . . . pending final determination with respect to whether a violation has occurred."   (Perhaps they even must come before an investigation ends, by 32.2.1B.)

Also interim actions require knowledge only of a "possible violation" rather than a knowledge of a violation.  And the allegation of a possible violation is explicitly allowed to come "from any source" (32.2.1), which seems incredibly broad!

The examples of possible interim actions include suspending any coach (32.2.1A.2) and canceling any game played in a Big 10 stadium (32.2.1A.4) and these actions can extend until the investigation ends and a penalty is given (32.2.1B).

And since interim actions are not formally penalties (although of course they would be experienced by us as such) I think the appeals process outlined in 32.10.1 does not apply.

All that being said, I'm not a lawyer, and I'd very, very much like someone to explain that I'm wrong!

 

Ghost of Fritz…

November 7th, 2023 at 12:19 PM ^

Yes, that other part of Rule 32 caught my eye too.   My quick take it that the Commissioner could try to use this other part of Rule 32 to suspend JH as an 'interim action.'  But I do not think it flies.

Even for an interim action, Rule 32 does require that the Commissioner give a written explanation to justify the interim action. And it also limits the circumstances under which he can take an interim action.

He can take an interim action under Rule 32 only if he "...deems necessary to prevent harm to the interests of the Conference or its member universities, their employees or students, officials or spectators of Conference sporting events, to protect the integrity of the involved sport or to preserve the status quo pending final determination with respect to whether a violation has occurred and what suitable action, if any, should be taken."

And...it will be hard to explain in writing how interim suspension of JH until the NCAA fits into any of those forward-looking categories. 

Petitti has already admitted that he has no evidence of JH involvement or knowledge, so how is preventing him from coaching future games necessary to 'protect the integrity of the involved sport'?  Stalions is gone.  JH had no knowledge.  Any supposed advantage Michigan might have had in past games (little IMHO) is not present for future games.  JH on the sidelines this Saturday changes nothing about the integrity of that game, or any future game.

If Petitti tried to invoke the 'interim action' language of Rule 32, it would obviously be a pretextual device to bring punishment for prior stuff.

But the 'interim action' power in Rule 32 is not about punishment for past acts/omissions

It is about forward-looking issues.  It is there to prevent additional future harms from occurring while the Big Ten processes whatever investigation and penalties for alleged past violations.