The extent of head coach Jim Harbaugh’s involvement in the rest of No. 3 Michigan’s regular season games will be determined Friday in an unprecedented mid-season courtroom battle in Ann Arbor.
Harbaugh said he plans to be inside the relatively small courtroom at the Washtenaw County Courthouse at 9 a.m. on Friday when a judge will hear his plea to effectively eliminate the remainder of a three-game suspension handed down by the Big Ten last week. He will be joined by lawyers representing Michigan and the Big Ten, standing in front of Judge Timothy Connors and six rows full of onlookers, to argue over whether the coach should be allowed on the sidelines for the Wolverines’ two remaining regular season games against Maryland and No. 2 Ohio State.
Harbaugh said Monday he’d like a chance to speak at the hearing, but didn’t know if that would be possible. Lawyers for Michigan did not respond to calls seeking comment about the hearing. Preliminary injunction hearings can include witnesses called to the stand but more often rely on arguments made by the attorneys, according to Donald Shelton, who served as chief judge in Washtenaw County before retiring to teach in law school at UM-Dearborn.
“If there is a dispute about the facts, which I doubt there will be, the judge may require witnesses or documents,” Shelton said. “The conference then has the similar opportunity to present arguments or evidence.”
Rather than disputed facts, the judge’s decision is more likely to hinge on his interpretation of the Big Ten’s authority to punish the coach through its sportsmanship policy and how the conference rulebook overlaps with the NCAA’s enforcement process.
Connors has an ample amount of discretion, according to legal experts, on how he wants the hearing on Friday to unfold and when he will issue a decision.
For Harbaugh to coach again during the regular season, his lawyers will have the burden to convince Judge Connors that: 1) They have a reasonable chance of proving during a trial that the Big Ten is ignoring its own rules in doling out a punishment now, and 2) Harbaugh’s absence from the team on the next two Saturdays could cause irreparable harm to him, the football program and the university.
Based on what both sides have shared in court filings and a volley of heated letters to one another in the past week, their arguments are likely to focus on two specific parts of the Big Ten rules.
The first is Rule 32, which says when the NCAA initiates an investigation of a Big Ten school, the conference can decide to hand out additional sanctions after the NCAA takes action. In this case, the conference learned of the cheating allegations against Michigan after the NCAA opened an investigation in October. Michigan’s lawyers contend in court documents that the Big Ten and commissioner Tony Petitti “threw out the procedure” in a rush to punish Harbaugh due to pressure from other coaches and athletic directors around the league.
Petitti wrote in a letter explaining the suspension last week that Rule 32 does not exclude him from using a different part of the Big Ten rulebook — the Sportsmanship Policy — to issue punishments when he believes the integrity of competition has been compromised.
Petitti wrote that the evidence he saw from NCAA investigators and other members of the conference provided enough information for him to conclude the in-person scouting operation orchestrated by former staff member Connor Stalions did impact the integrity of competition in Michigan’s games. He said it was up to his discretion on whether to use the sportsmanship policy or the “slower-moving procedures set forth in Rule 32.”
“This language could not be clearer,” Petitti said. “When sportsmanship issues, including the integrity of competition, are implicated by the offensive conduct, the Commissioner is authorized to use the procedures and authority prescribed by the Sportsmanship Policy, even if that offensive conduct also may involve a violation of NCAA or Conference rules.”
Michigan’s lawyers also argued in their motion for a restraining order that the Big Ten’s sportsmanship policy doesn’t give the league the authority to specifically punish Harbaugh. The policy says the Big Ten commissioner can hold accountable either someone “found to have committed an offensive action” or the institution responsible for that person.
“Coach Harbaugh is neither,” his attorneys wrote in their legal filing last week.
Petitti said in his letter Friday the conference did not have any evidence that suggested Harbaugh was aware of the impermissible conduct. Instead, he attempted in delivering his sanction to make a distinction between punishing the institution by removing its head coach from the sidelines and specifically punishing Harbaugh. He said he felt it was an appropriate penalty that avoided harming players by taking away their ability to compete in games while also noting that “the head coach embodies the university for purposes of its football program.”
“This is not a sanction of Coach Harbaugh,” Petitti wrote.
Judge Connors will be asked to parse the semantics of those rule interpretations presented by both sides on Friday. There is no deadline for a decision, but it’s unlikely he would rule directly from the bench during Friday’s hearing. Because the underlying complaint in this case is a civil lawsuit in which Michigan and Harbaugh are seeking damages, the two sides could also agree to a settlement outside of court at anytime including before a restraining order decision is made.