For legal nerds who like sports, the Harbaugh situation is like a Category 5 Hurricane for meteorologists. The following is for entertainment only, I am not licensed to practice law in Michigan and can only comment from my own view. Nothing in this article should be construed as legal advice, or anything other than entertainment.
So – will Harbaugh be on the sidelines against Maryland and/or Ohio State? Or will the injunction Michigan and Coach Harbaugh are seeking be granted? We will know soon, but not soon enough….
First – a quick recap. For months, an investigation has been underway into the sign-stealing allegations at Michigan. To date, there is no known evidence to connect Jim Harbaugh to any sign-stealing operation (a fact which is agreed upon by all parties, including the Big Ten). Twenty (20) hours before kickoff of Michigan’s first ranked opponent, a top-ten matchup between two (2) Big Ten teams (Michigan vs. Penn State) and the biggest Big Ten game of the year to date, the Big Ten announced it was taking action and suspended Coach Harbaugh for three (3) games. This is unprecedented given no investigation has been completed, and no evidence is known connecting Coach Harbaugh to the alleged wrong-doing. It would seem that, as Michigan has pointed out, the Big Ten and Tony Petitti acted due to pressure of other schools, and not due to the results of any investigation. In other words, Petitti has forgone due process, the fundamental backbone of any governing body, and yielded to the demands of Michigan’s opponents. This is scary precedent to set – accusations are enough for suspensions now according to the Big Ten. A slippery slope to say the least.
So, putting aside personal feelings – the question remains – will Michigan and Coach Harbaugh be successful in Court for injunctive relief? Short answer – maybe. On November 17, 2023, the Court in Washtenaw County, Michigan (22nd Circuit) will have a hearing to address the request and Judge Timothy Connors was to decide whether a temporary injunction is appropriate until such time as the full case can be properly litigated (which takes time and discovery, a topic for another day).
Thereafter, because Judge Connors lectures for the University of Michigan’s law school, he recused himself to avoid any appearance of improper connections, rendering Judge Carol Kuhnke the deciding judge. Now, to be fair, Judge Kuhnke also has a degree from Michigan (though it is in Art and she is not affiliated with the law school) and judges are elected in Michigan – factors that will likely weigh in Michigan’s favor.
So how will this be decided? The lawyers on behalf of Michigan and Coach Harbaugh are seeking a temporary injunction allowing Coach Harbaugh to continue coaching while the lawsuit is underway. Michigan’s complaint can be viewed here:
Michigan filed VII different causes of action against the Big Ten: (1) Breach of Contract regarding Disregard for Big Ten’s own rules; (2) Breach of Contract -Implied Covenant of Good Faith; (3) Promissory Estoppel (Michigan relied upon the Big Ten’s contractual promise to afford due process); (4) Breach of Fiduciary Duty; (5) Breach of Contract – Disregard for Big Ten Handbook regarding Harbaugh and third parties; (6) Intentional Interference and (7) False Light re Harbaugh. Along with that complaint, they have filed for an injunction to immediately prevent the suspension from being carried out.
For now, the causes of action only matter to the extent that Michigan has to show they have a likelihood to prevail on one or more of them. The key for Michigan is if they can get the injunction.
Michigan will need to show that “the party requesting [the injunction]…will otherwise suffer irreparable injury, and that [they] do not have an adequate remedy at law.” (Board of Regents of the University of Michigan; James J. Harbaugh vs. The Big Ten Conference; Tony Petitti – Verified Complaint for Injunctive Relief). Stated more succinctly, Michigan is seeking the injunction to “preserve the status quo” while litigation unfolds. And that status quo is clear – Michigan playing football with its coach.
In order to get the injunction, Michigan will need to prove (1) the likelihood that the party seeking the injunction will prevail on the merits; (2) the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued; (3) the risk that the party seeking the injunction will be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief; and (4) the harm to the public interest if the injunction is issued must be taken into account.
Getting to the meat of the issue – will Michigan prevail on the merits? They have a good case and it is ironically based upon the Big Ten’s own rules. Rule 32 of the Big Ten Handbook (“rules”) deals with situations where the NCAA has initiated an investigation. In Rule 32, it provides that the Big Ten yields to the NCAA investigation, waits for the NCAA ruling, and then imposes additional sanctions when and if warranted. There is a procedure to be followed, and given the NCAA has initiated an investigation, the totality of this situation is governed by Rule 32. Nonetheless, apparently in violation of the Rule 32 procedure, the Big Ten cited Agreement 10.01 with regard to Sportsmanship to punish Harbaugh anyway. Never before has Agreement 10 and the Sportsmanship Agreement been cited as authority to punish when the alleged violation is already under NCAA investigation.
Michigan is arguing, contractually speaking, the Big Ten is bound to follow its own rules under Rule 32, and that the use the Sportsmanship Agreement as grounds to punish is violative of the contractual agreement between the Big Ten and the schools associated therewith. Given that contractual argument, on top of the six other claims Michigan has levied against the Big Ten, there is a likelihood that Michigan would prevail thereby getting over the first hurdle for obtaining injunctive relief.
The other aspects of the injunction are obvious – Michigan will suffer irreparable harm if Coach Harbaugh is not there to lead the team as Michigan intended. There appears to some supporting law for Michigan in its complaint as provided in the Brief they filed.
However, at the end of the day, it is not uncommon for Courts to say organizations can run themselves how they see fit, within reason. In other words, it would not be unheard of for the Court to say the Big Ten can read its own rules how it so chooses (within reason), and if the Big Ten wants to cite Sportsmanship Agreement under Agreement 10 for discipline despite the procedure in Rule 32, it can do so. The only question is, does that necessarily mean a violation of the contractual agreement between the parties? We will know soon enough.
BACK TO MICHIGAN, HARBAUGH, AND HOW THIS IS WEIGHING ON MICHIGAN’S CHANCES….
One thing is certain, the gloves are most certainly off in terms of Michigan and the Big Ten. Shortly after Michigan’s victory against Penn State, questions arose as to whether acting head-coach Sheronne Moore’s comments post-game, which included adult-language, were proper. On social media, in response thereto, Jordan Acker, an attorney and member of the University of Michigan Board of Regents wrote, “PS Class sometimes requires hard lessons. When a team is going to lose its coach 20 hours before kickoff, class requires you to call the school leadership instead of leaking to @PeteThamel.”
In looking at Michigan now, it begs the questions how the controversy is hurting them in the rankings. The strength of schedule argument is dwindling, the difference between Michigan’s schedule and Georgia’s schedule is now negligible (slight advantage to Georgia, but very slight). Then we see Ohio State. Both teams have the same “best win” against Penn State. Michigan’s margin of victory was wider, at Happy Valley, without Harbaugh. Ohio State was at home, but missing several key players.
Ohio State’s schedule is more difficult, however Michigan and Ohio State have 5 of the same opponents. In 4 of those 5, Michigan has a wider margin of victory. True, Ohio State beat Notre Dame, but that victory does not hold much sway given Notre Dame’s record this year. Point is, the raw data would suggest an edge to Michigan given Michigan’s metrics surpass Ohio State’s in nearly every category.
Before Michigan v. Penn State – people said “now we will know”. Well folks, we know but it seems the narrative shifted immediately to being – well it is just one game. The only explanation I can objectively see is the controversy. The strength of schedule is negated by the metrics of Michigan and domination at Penn State.
The double standard is raw, but maybe the Urban years of Ohio State dominating Michigan earned that extra edge. If Michigan beats Ohio State, somehow Ohio State will still be in the discussion for the playoffs (they always are – whether right or wrong). If Ohio State beats Michigan, we all know that will not be the case.
Be that as it may – for now, we should all hope the injunction is granted so the epic Michigan vs. Ohio State game on November 25 in this final year isn’t tainted by unprecedented action against Michigan’s coach. The legend of the Game is backed up by its history. Woody and Bo, and now seemingly we are coming into Harbaugh and Day. Would be a shame to see unprecedented, unsubstantiated, premature suspension of Harbaugh infringe upon one of the best matchups of the CFP era. But, if Michigan fails to prevail on its injunction, that is exactly what will have happened.