I was not hating on CS. I've been quite vocal from the outset that his arrangement for capturing video of future opponents was not advance scouting and is not against the NCAA rules. I was just a bit peeved by his (in my opinion, selfish) decision to attend the Rose Bowl Game. I thought it was a shame that he inserted himself (in a small way) back into the story lines on a day that should have been about nothing but positives for Michigan. (Of course, I say this fully aware of the irony that I chose to give him a bit role in my story of the day. I just couldn't resist pointing out that little Easter egg.)
This is the first Diary I've tried to create. For some reason, it doesn't show the panorama image I uploaded as the main Diary image, and I don't see any way for me to edit the post. Very frustrating. Here it is, although it only lets me upload a relatively low-res version of the file in a normal comment post like this (so you can't really zoom in as I wanted people to be able to do).
I think there are a couple of reasons why so many lawyers decide they hate being lawyers. One is that a lot of law jobs involve brutal lifestyles and unpleasant daily activities. Another is that many lawyers end up practicing law sort of "by default" (i.e., they didn't know what to major in, so they just chose Poli Sci; they didn't know what to do after college with a Poli Sci degree, so they went to law school; they didn't know what kind of law they wanted to practice or how to get a law job, so they just joined one of the large firms that actively recruited at their law school).
It sounds like your daughter won't end up as a lawyer just because she couldn't think of anything else to do. So that might increase the chances that would actually enjoy a legal career. But I would encourage her to really consider WHY practicing law is appealing to her. What specifically does she think would be interesting/enjoyable/rewarding about being an attorney? She should then try to evaluate (1) whether the realities of practicing law match her expectations, and (2) what type of legal career path would align most closely with the particular things she finds appealing. This is not something she will be able to figure out over a matter of weeks or months. It would be a years-long process.
Personally, I took a fairly circuitous route to becoming a lawyer. After college and some other stuff, I still had no idea what I really wanted to do. I ended up doing a JD/MBA, although I had no intention of every practicing law. I was more interested in the business/finance side of things, but I thought that getting a law degree along with the MBA would be worthwhile. I ended up heading into investment banking (although I decided after finishing up the JD/MBA to take the bar exam anyway).
After several years of investment banking and stints with a couple of tech startups that flailed, I found myself unemployed with no idea what to do next. I spent over a year doing a lot of soul-searching and self analysis, using resources such as "What Color is Your Parachute," Meyers-Briggs personality types, etc. These helped me develop a much better sense of what kinds of skills I most enjoyed using, how I best enjoyed interacting with other people, what kinds of accomplishments were most rewarding for me, etc. After a surprisingly long time, I "remembered" that I had passed the bar and was a licensed attorney, and it dawned on me that practicing law might actually be a really good fit with what I had learned about myself. Using the same introspective tools, I (1) determined that I would need to be my own boss, and (2) identified trusts and estates as an ideal practice area for me. So I hung out my own shingle and have had a relatively satisfying 20-year career as a solo attorney.
Circling back to your daughter, I would encourage her to explore broadly, pay close attention to herself, and pursue opportunities that she feels are a good fit with what makes her tick.
I have the same question. Everything else being equal, I assume Michigan would love to play in the Rose Bowl for historical reasons. But if Michigan ends up with the #1 seed against a #4 Washington or Oregon, might they prefer to play in New Orleans instead of on the west coast?
(That would break my heart, as I already have my Rose Bowl tix!)
Generally speaking, the NCAA and B1G rules are contracts entered into by the universities and the athletic organizations themselves. The central allegation in the pending UM/JH lawsuit against the B1G is breach of contract, which can certainly be litigated.
And the organizations can't just do anything they want. They are obligated by contract as well as fiduciary duties to act in accordance with the rules they have established, to act in good faith, etc. And if they don't, then an aggrieved university can absolutely turn to the courts for relief.
Fantastic analysis and write-up by Ghost of Fritz. I've got one little addition to one part of Fritz's argument.
It is telling that nothing in the SP mentions that NCAA rules violation may be a basis for a finding of unsportsmanlike conduct. It is even more telling that the SP itself does not offer any process or standards for determining whether an NCAA rule violation that may be ‘unsportsmanlike’ has occurred. Why is this missing from the SP? Because Handbook R. 32 already provides the procedures for Conference adjudication of NCAA rules violations.
In support of this, I offer up the following:
SP section 10.2.3 provides examples of factors that the B1G commissioner may consider in deciding whether to impose discipline for unsportsmanlike actions. One factor is "the response of and/or any action taken by any other entity that may have jurisdiction over the offensive action (e.g., law enforcement)."
If the violation of an NCAA rule could be the basis for determining whether an action was offensive, then the SP would almost certainly have identified the NCAA as at least one "other entity that may have jurisdiction." Instead, it mentions only law enforcement.
One principle of construing legal language is expressio unius est exclusio alterius, which means the expression of one thing is the exclusion of the other. In this case, the words "law enforcement" are preceded by "e.g." which indicates that that is only an example; and the rule states that the factors the commissioner may consider "may include, but shall not be limited to" those listed. So the expressio unius principle is of somewhat limited use here. However, where such a potentially obvious/natural example such as the NCAA could have been provided here but was not, that seems to say a lot.
I think the NCAA's "extraordinary step" of notifying the B1G and some of its teams was not a reflection of the NCAA viewing the alleged activity as something earth-shatteringly horrible. I suspect it was merely a situation of "Hey, there might be something going on here, and we don't know what it is, but it might be ongoing and could impact some of the upcoming games, so it would probably be best for us to give folks a heads up sooner rather than later."
Sort of a CYA for the NCAA, so it doesn't come out later that "Wait, you knew Michigan was doing this and you allowed us to play our games against them without knowing?"
I wouldn’t send this article to others. While I agree with the overall tenor of the article, so many of his assertions of fact and characterization of rules are just plain wrong. I’ll try to point out specifics in a follow-up post when I have a moment.
The rule Michigan is alleged to have broken is NCAA Bylaw 11.6, which prohibits off-campus, in-person scouting of a future opponent. Most people assume that recording your opponent constitutes scouting. However, if you look at the history of the rules, the NCAA has treated video recording and scouting as two distinct things. See below.
So the B1G could be saying, "We have stadium surveillance footage showing someone sitting in the seat that Stalions purchased a ticket for and pointing an an iPhone at the future opponent's sideline the whole game. That's concrete proof of in-person scouting." But Michigan's defense could be, "Well, even if the person was in fact recording video of the team's signal calling, if that's all he did, then that's not scouting...that's just recording, which is not prohibited." But Michigan can't really raise that defense until it sees the actual evidence to see if there is any indication whether the person did or did not do anything more. That said, Michigan did assert in the letter that "[t]here remain significant factual questions, as well as disputes about the application of the rules."
*****
Before 2001, Bylaw 11.6.3.1 expressly permitted schools to “obtain videotapes” of a future opponent’s games from a commercial entity “for scouting purposes” subject to a handful of restrictions. One of the restrictions was that the commercial entity “does not analyze the videotape or provide any other services that could be construed as scouting activities.” This provision made it crystal clear that recording is categorically different from scouting.
In 2001, Bylaw 11.6.3.1 was amended to eliminate all but one of the restrictions on obtaining videos of future opponents. (https://web3.ncaa.org/lsdbi/search/proposalView?id=197) The only remaining prohibition at that time was against the school paying for the video.
The stated intent and rationale provided by the Bylaw 11 Deregulation Subcommittee for the 2001 amendment were as follows:
Intent: To permit an institution to obtain videotapes of a future opponent's athletics contest, provided no cost is incurred by the institution other than postage costs.
Rationale: This proposal would significantly simplify legislation related to obtaining videotapes of an opponent's contest. If adopted, the proposal would retain the principle that obtaining videotapes would not result in added expenses for an institution and is consistent with Division I deregulation efforts.
Bylaw 11.6 was further amended in 2013 to remove altogether all restrictions related to obtaining videos of future opponents.
So much is happening so fast, it's hard to process, but here's my quick take...
According to the copy of the B1G press release I've seen:
- Michigan "has been found in violation of the Big Ten Sportsmanship Policy for conducting an impermissible, in-person scouting operation"
- The decision that Harbaugh may not coach or be in the venue during the final three games of the regular season is described as a "disciplinary action" and a "penalty imposed on [Michigan]"
[So this is not a Rule 32.2.1.A interim action to protect the integrity or preserve the status quo, which would be nonsensical under the circumstances, but would have been relatively easy to fight.]
There has already been discussion on this thread (and in Wednesday's attorney letters to the B1G) that the Sportsmanship Policy is not applicable at all in this situation, which should be governed instead by the B1G's Rule 32 (which in this case would require deferral to the NCAA investigation). But assuming the Sportsmanship Policy does apply, the B1G action here must reflect either a unilateral decision by the commissioner or a decision by the Joint Group Executive Committee. Since the commissioner may unilaterally issue a suspension of not more than two games, it seems that this decision must have been made by the JGEC.
Notably, "Any member of JGEC whose institution is involved in an incident for which approval of a major disciplinary action is sought shall be recused and temporarily replaced by an individual (or individuals) representing an institution (or institutions) not involved in the incident at issue." Given that the "incident" here is the alleged impermissible scouting of numerous teams over multiple years, what B1G schools is not involved?I suspect this is an issue that may be examined.
The language of the decision is interesting in that it does not say that Harbaugh may not coach. It says that "the University football team must compete without its Head Football Coach." Phrasing it this way, the B1G wants to be seen as punishing the university rather than Harbaugh, which it must do because the Sportsmanship Policy allows punishment of an individual only if that person is "found to have committed an offensive action." Look for Mars & Co. to argue that the conference can't hold Harbaugh personally accountable in a roundabout way by merely phrasing the punishment in a clever way.
I hate to add anything to this pathetic sideshow of a story, but this could be a serious issue for Stalions. It's a felony to file a false document in Wyoming, and here is an excerpt from the Articles of Organization that Stalions signed and filed. (On the previous page he named BC as a co-organizer.)
I guess if you're intellectually or positionally unable to address the substance of someone's argument, but still feel obliged to chime in, you're stuck making snarky ad hominem attacks like these.
So, let me get this straight. Jim Harbaugh’s very prestigious lawyer, Tom Mars, plagiarized a message board post in an official communication on behalf of his highest-profile client? I’m not sure if that’s as funny as star Wolverine running back Blake Corum being listed on forms as a co-owner of a vacuum repair business with the alleged ringleader of the scandal, former Michigan analyst Connor Stalions. But, it’s pretty funny.
Sure, the person who posted to MgoBlog is probably okay with what he wrote being used by Tom Mars. But, it’s still a terrible look for a high-powered lawyer to just directly copy something on the internet.
I guess these folks aren't used to seeing message boards where people actually have intelligent insights to contribute.
In the article he states that allegations that OSU and Rutgers shared UM signs and signals with Purdue "were understandably met with firm denials from Buckeyes coach Ryan Day and Scarlet Knights boss Greg Schiano..."
I'll mention only briefly that his use of the word "understandably" is a journalistically (is that a word?) horrible bit of editorializing in what purports to be a news story. More significant, though, is his complete mischaracterization of what Schiano actually said, as quoted in the article:
"I'm getting ready to play the twenty-second ranked team in the country at their place. They are 12-3, I think, in their last 15 games. They are 15-1 in the month of November," Schiano said. "I'm very confident in the way we handle our business. I'm not going to get into specifics that are not my issue. This is not my issue. I'll let the people handle it whose issue it is.
"Quite frankly, I'm a little bit ticked off that we have to talk about this. This isn't our problem." he continued.
This is not a denial at all, let alone a "firm" one. It's merely a deflection. The closest Schiano comes to even addressing the allegation is that he is "very confident in the way we handle our business," which says absolutely nothing. It's absolutely pathetic that so many people are so easily hoodwinked by stuff like this.
I concur. I noted in a reply above that $10,000 is the maximum fine the B1G commissioner can issue unilaterally (i.e., without committee approval) under the Agreement 10 Sportsmanship Policy. But Ghost of Fritz makes the more significant point: the B1G should not be operating under the Sportsmanship Policy at all here. It should be operating under Rule 32, which in this case requires deferral to the NCAA until it has finished its investigation. I think that yesterday's letter by Harbaugh attorney makes this argument even more effectively than the UM letter.
Under Section 10.3.3.1 of the B1G Agreement 10 Sportsmanship Policy, the maximum fine that the Commissioner can issue unilaterally is $10,000. Anything more requires approval of the "Joint Group Executive Committee."
EDIT ADD: Although what I noted above is true, as Ghost of Fritz points out below, the B1G should not even be operating under the Sportsmanship Policy here. It should be operating under Rule 32, which requires deferral to the NCAA until it completes its investigation.
I recognized that immediately. Nice work! I've wondered whether the attorneys representing UM and JH have been reading the analysis and arguments that many have posted on this site.
As for other legal matters raised in these threads:
I was glad to see the point made in yesterday's UM letter that the prohibition against using electronic AV equipment to record an opponent's signals applies only to the two schools participating in the game in question.
I was a bit disappointed not to see any mention of the argument that a number of us have been making that "recording" is not "scouting". However, the UM letter did state that there “remain significant factual questions as well as disputes about the application of the rules.” It could be that, for legal strategy and/or PR reasons, Michigan does not want to suggest that particular defense until it better understands the facts and the evidence.
I believe that could very well be the case. However, I have been shocked by how many people — and I’m talking seasoned football insiders (including B1G administrators) who should know better — don’t seem to understand what the rules actually say.
I think the hypothetical conduct you describe would more likely violate the no-scouting rule of NCAA Bylaw 11.6.1 than what CS is alleged to have done (i.e., arranged for people to attend and record games). [The CMU sideline thing is a whole different matter.]
As noted in my reply (below?/above?) to Pepper Brooks, the NCAA has historically regarded “scouting” and “recording” as two completely different activities. In your hypothetical, someone would be doing something more than merely recording. Having someone "tell you what they saw" almost necessarily involves some level of analysis, as even the most sincere attempt to simply report what they witnessed will be filtered through the observer's mind.
The fact that the person in your hypothetical does not use electronic recording equipment is irrelevant to the question of whether the no-scouting rule would be broken. As also noted in my reply to PB, the prohibition against using electronic recording equipment applies only to the two schools participating in the game at hand.
Here's my previous analysis of the no-scouting rule and no-recording rules:
The No-Scouting Rule
Basic point: The NCAA regards “scouting” and “recording” as two completely different activities.
Before 2001, Bylaw 11.6.3.1 expressly permitted schools to “obtain videotapes” of a future opponent’s games from a commercial entity “for scouting purposes” subject to a handful of restrictions. One of the restrictions was that the commercial entity “does not analyze the videotape or provide any other services that could be construed as scouting activities.” This provision made it crystal clear that recording is categorically different from scouting.
In 2001, Bylaw 11.6.3.1 was amended to eliminate all but one of the restrictions on obtaining videos of future opponents. (https://web3.ncaa.org/lsdbi/search/proposalView?id=197) The only remaining prohibition at that time was against the school paying for the video.
The stated intent and rationale provided by the Bylaw 11 Deregulation Subcommittee for the 2001 amendment were as follows:
Intent: To permit an institution to obtain videotapes of a future opponent's athletics contest, provided no cost is incurred by the institution other than postage costs.
Rationale: This proposal would significantly simplify legislation related to obtaining videotapes of an opponent's contest. If adopted, the proposal would retain the principle that obtaining videotapes would not result in added expenses for an institution and is consistent with Division I deregulation efforts.
Section 11.6 was further amended in 2013 to remove altogether all restrictions related to obtaining videos of future opponents.
The No-Recording Rule
Basic point: The no-recording rule does not apply to anyone other than the two schools/teams participating in the game at hand.
Unlike the no-scouting rule, which is set forth in the NCAA Bylaws, the no-recording rule is set forth in the NCAA Football Rules Book, and this applies only to the two participating teams.
First, Rule 1-1-6-b sets forth the persons who are subject to the Football Rules:
“Everyone in the team area, players, substitutes, replaced players, coaches, athletics trainers, cheerleaders, band members, mascots, public-address announcers, audio/video/lighting system operators, and other persons affiliated with the teams or institutions.”
General ticket holders sitting in the stands are not listed as being subject to the rules. And note that the rules govern “other persons affiliated with the teams or institutions.” The rules do not say they govern persons affiliated with “any” or “other” teams or institutions.
Second, it’s helpful to note where the no-recording rule is found within the Football Rules. Specifically, it appears within Rule 1 (titled “The Game, Field, Players and Equipment”), Section 4 (“Players and Playing Equipment”), Article 11 (“Prohibited Field Equipment”). It’s hard to see how a rule falling under these section headers could be construed as prohibiting a general ticket holder sitting in the stands from recording whatever he or she wants.
Third, consider the specific language of the no-recording rule: “Any attempt to record, either through audio or video means, any signals given by an opposing player, coach or other team personnel is prohibited.” It talks specifically about signals given by an “opposing” player, coach, etc. An “opposing” player, coach or team is not the same thing as a future opponent. This rule deals with the internal dynamics of the game at hand, and what the participating teams can and can’t do.
Fourth, the introductory section of the Football Rules notes that all rules “are designated as either administrative rules or conduct rules. Typically, administrative rules are those dealing with preparation for the contest. Conduct rules are those that have to do directly with the playing of the contest.” The book lists several dozen rules that are designated as administrative rules and then states that “[a]ll other rules are conduct rules...” Rule 1-4-11-h (the no-recording rule) is not identified as an administrative rule, which means that it is a conduct rule which by definition deals directly with the playing of the game at hand.
Fifth, nowhere else in the 248 pages of the Football Rules Book is there a single provision that even remotely appears to govern any person or conduct that is not directly involved in the game in question. It’s hard to imagine that the no-recording rule is the sole exception.
I agree that Stalions did not break Rule 11.6 by arranging for others to attend future opponent's games and record their sidelines. As we have stated many times, under the NCAA Bylaws recording is not scouting. (But if that was Stalions on the sidelines of the CMU game, that may be a different story.)
In any event, you raise an interesting question about whether the staff of teams A, B, and C that were on the sidelines of ABC's games against Michigan were doing "[o]ff-campus, in-person scouting of future opponents" in violation of 11.6. I'm not sure I agree with your conclusion. First, we don't know the extent to which the sign sheets that were compiled were based on (a) the ABC staffs' in-person observations of Michigan's signs, as opposed to (b) their study of video. Second, in the course of any game between A, B, or C against Michigan, the ABC staff's observing and making notes of Michigan's signs is not "off-campus" scouting of a "future opponent." During those games, at least in isolation, the ABC staff was doing on-campus observation of a current opponent. So that alone would not be a violation of Rule 11.6. I think you would only begin to implicate Rule 11.6 if there was some kind of agreement or understanding between ABC and DEF that ABC's observation and analysis was not only for its own in-game benefit, but was being done with the intent to share what they learned with teams D, E, and F.
Yeah, that's how I eventually read the sentence. But as I said, I don't think that's an "essential" element of any lawsuit by UM/JH against the league (i.e., it's not the only argument that could form the basis for such a lawsuit).
"The NCAA’s findings do not connect the in-person scouting and recording of opponents' sidelines to Harbaugh, sources say, an absence of evidence essential to a potential lawsuit from the school and coach against the league."
I had to read this sentence about 10 times before coming up with an interpretation that made any sense.
At first I read it to say that evidence of a connection between Harbaugh and the scouting/recording is essential for a lawsuit by UM/JH against the league, in which case the absence of such evidence would cause such a suit to fail. That, of course, seems ludicrous.
Eventually, I realized the article must be suggesting that it is the "absence of evidence" of such a connection that is essential to a lawsuit by UM/JH against the league. In other words, the article appears to be saying that UM/JH would have to establish that Harbaugh had no connection to the scouting/recording in order to maintain any suit against the league.
But I don't think that would be the case at all. Even if there was concrete evidence that Harbaugh knew what was going on, I believe there would still be grounds for him and the school to seek a court injunction against any suspension, arguing, for example, that the league lacked the authority to impose such a punishment under the circumstances, that proper procedures were not followed, etc.
Before 2001, Bylaw 11.6.3.1 expressly permitted schools to “obtain videotapes” of a future opponent’s games from a commercial entity “for scouting purposes” subject to a handful of restrictions. One of the restrictions was that the commercial entity “does not analyze the videotape or provide any other services that could be construed as scouting activities.” So here it is in the former rules, clear as day (pardon the pun), that recording is categorically different from scouting.
...
The stated intent and rationale provided by the Bylaw 11 Deregulation Subcommittee for the 2001 amendment were as follows:
Intent: To permit an institution to obtain videotapes of a future opponent's athletics contest, provided no cost is incurred by the institution other than postage costs.
Rationale: This proposal would significantly simplify legislation related to obtaining videotapes of an opponent's contest. If adopted, the proposal would retain the principle that obtaining videotapes would not result in added expenses for an institution and is consistent with Division I deregulation efforts.
This is my first post on the site. I'm no expert, but I am a lawyer and I believe that the rules analysis provided by Ghost of Fritz and Erik_In_Dayton is generally spot on.
With respect to the no-scouting rule of NCAA Bylaw 11.6.1, one of the crucial points that Ghost of Fritz has been valiantly trying to hammer home to everyone is that recording is not scouting. There is one point of legislative history supporting this position that I have not seen mentioned anywhere in the forum. So I thought I'd add it here.
Before 2001, Bylaw 11.6.3.1 expressly permitted schools to “obtain videotapes” of a future opponent’s games from a commercial entity “for scouting purposes” subject to a handful of restrictions. One of the restrictions was that the commercial entity “does not analyze the videotape or provide any other services that could be construed as scouting activities.” So here it is in the former rules, clear as day (pardon the pun), that recording is categorically different from scouting.
In 2001, Bylaw 11.6.3.1 was amended to eliminate all but one of the restrictions on obtaining videos of future opponents. (https://web3.ncaa.org/lsdbi/search/proposalView?id=197) The only remaining prohibition at that time was against the school paying for the video.
The stated intent and rationale provided by the Bylaw 11 Deregulation Subcommittee for the 2001 amendment were as follows:
Intent: To permit an institution to obtain videotapes of a future opponent's athletics contest, provided no cost is incurred by the institution other than postage costs.
Rationale: This proposal would significantly simplify legislation related to obtaining videotapes of an opponent's contest. If adopted, the proposal would retain the principle that obtaining videotapes would not result in added expenses for an institution and is consistent with Division I deregulation efforts.
As noted elsewhere, Section 11.6 was further amended in 2013 to remove altogether all restrictions related to obtaining videos of future opponents.
Recent Comments
I was not hating on CS. I've been quite vocal from the outset that his arrangement for capturing video of future opponents was not advance scouting and is not against the NCAA rules. I was just a bit peeved by his (in my opinion, selfish) decision to attend the Rose Bowl Game. I thought it was a shame that he inserted himself (in a small way) back into the story lines on a day that should have been about nothing but positives for Michigan. (Of course, I say this fully aware of the irony that I chose to give him a bit role in my story of the day. I just couldn't resist pointing out that little Easter egg.)
More infamous than famous. XM's guess in his first comment above is correct. Here's a crop from the pano:
My daughter just sent me this. She snapped a pic of a photo that was in an album from 2007 when we were with my parents in Pasadena last weekend.
Funniest thing heard at the game was a Bama fan commenting on the crowd mix as we were walking in: "Man, it's like 75/35 Michigan!"
This is the first Diary I've tried to create. For some reason, it doesn't show the panorama image I uploaded as the main Diary image, and I don't see any way for me to edit the post. Very frustrating. Here it is, although it only lets me upload a relatively low-res version of the file in a normal comment post like this (so you can't really zoom in as I wanted people to be able to do).
Ditto
I think there are a couple of reasons why so many lawyers decide they hate being lawyers. One is that a lot of law jobs involve brutal lifestyles and unpleasant daily activities. Another is that many lawyers end up practicing law sort of "by default" (i.e., they didn't know what to major in, so they just chose Poli Sci; they didn't know what to do after college with a Poli Sci degree, so they went to law school; they didn't know what kind of law they wanted to practice or how to get a law job, so they just joined one of the large firms that actively recruited at their law school).
It sounds like your daughter won't end up as a lawyer just because she couldn't think of anything else to do. So that might increase the chances that would actually enjoy a legal career. But I would encourage her to really consider WHY practicing law is appealing to her. What specifically does she think would be interesting/enjoyable/rewarding about being an attorney? She should then try to evaluate (1) whether the realities of practicing law match her expectations, and (2) what type of legal career path would align most closely with the particular things she finds appealing. This is not something she will be able to figure out over a matter of weeks or months. It would be a years-long process.
Personally, I took a fairly circuitous route to becoming a lawyer. After college and some other stuff, I still had no idea what I really wanted to do. I ended up doing a JD/MBA, although I had no intention of every practicing law. I was more interested in the business/finance side of things, but I thought that getting a law degree along with the MBA would be worthwhile. I ended up heading into investment banking (although I decided after finishing up the JD/MBA to take the bar exam anyway).
After several years of investment banking and stints with a couple of tech startups that flailed, I found myself unemployed with no idea what to do next. I spent over a year doing a lot of soul-searching and self analysis, using resources such as "What Color is Your Parachute," Meyers-Briggs personality types, etc. These helped me develop a much better sense of what kinds of skills I most enjoyed using, how I best enjoyed interacting with other people, what kinds of accomplishments were most rewarding for me, etc. After a surprisingly long time, I "remembered" that I had passed the bar and was a licensed attorney, and it dawned on me that practicing law might actually be a really good fit with what I had learned about myself. Using the same introspective tools, I (1) determined that I would need to be my own boss, and (2) identified trusts and estates as an ideal practice area for me. So I hung out my own shingle and have had a relatively satisfying 20-year career as a solo attorney.
Circling back to your daughter, I would encourage her to explore broadly, pay close attention to herself, and pursue opportunities that she feels are a good fit with what makes her tick.
I have the same question. Everything else being equal, I assume Michigan would love to play in the Rose Bowl for historical reasons. But if Michigan ends up with the #1 seed against a #4 Washington or Oregon, might they prefer to play in New Orleans instead of on the west coast?
(That would break my heart, as I already have my Rose Bowl tix!)
Generally speaking, the NCAA and B1G rules are contracts entered into by the universities and the athletic organizations themselves. The central allegation in the pending UM/JH lawsuit against the B1G is breach of contract, which can certainly be litigated.
And the organizations can't just do anything they want. They are obligated by contract as well as fiduciary duties to act in accordance with the rules they have established, to act in good faith, etc. And if they don't, then an aggrieved university can absolutely turn to the courts for relief.
Fantastic analysis and write-up by Ghost of Fritz. I've got one little addition to one part of Fritz's argument.
In support of this, I offer up the following:
SP section 10.2.3 provides examples of factors that the B1G commissioner may consider in deciding whether to impose discipline for unsportsmanlike actions. One factor is "the response of and/or any action taken by any other entity that may have jurisdiction over the offensive action (e.g., law enforcement)."
If the violation of an NCAA rule could be the basis for determining whether an action was offensive, then the SP would almost certainly have identified the NCAA as at least one "other entity that may have jurisdiction." Instead, it mentions only law enforcement.
One principle of construing legal language is expressio unius est exclusio alterius, which means the expression of one thing is the exclusion of the other. In this case, the words "law enforcement" are preceded by "e.g." which indicates that that is only an example; and the rule states that the factors the commissioner may consider "may include, but shall not be limited to" those listed. So the expressio unius principle is of somewhat limited use here. However, where such a potentially obvious/natural example such as the NCAA could have been provided here but was not, that seems to say a lot.
I think the NCAA's "extraordinary step" of notifying the B1G and some of its teams was not a reflection of the NCAA viewing the alleged activity as something earth-shatteringly horrible. I suspect it was merely a situation of "Hey, there might be something going on here, and we don't know what it is, but it might be ongoing and could impact some of the upcoming games, so it would probably be best for us to give folks a heads up sooner rather than later."
Sort of a CYA for the NCAA, so it doesn't come out later that "Wait, you knew Michigan was doing this and you allowed us to play our games against them without knowing?"
I wouldn’t send this article to others. While I agree with the overall tenor of the article, so many of his assertions of fact and characterization of rules are just plain wrong. I’ll try to point out specifics in a follow-up post when I have a moment.
But it was filed ex parte and the docket indicates an appearance, so I’m not sure a hearing is necessary, is it?
But it was filed ex parte and the docket indicates an appearance, so I’m not sure a hearing is necessary, is it?
Here's just one possible example...
The rule Michigan is alleged to have broken is NCAA Bylaw 11.6, which prohibits off-campus, in-person scouting of a future opponent. Most people assume that recording your opponent constitutes scouting. However, if you look at the history of the rules, the NCAA has treated video recording and scouting as two distinct things. See below.
So the B1G could be saying, "We have stadium surveillance footage showing someone sitting in the seat that Stalions purchased a ticket for and pointing an an iPhone at the future opponent's sideline the whole game. That's concrete proof of in-person scouting." But Michigan's defense could be, "Well, even if the person was in fact recording video of the team's signal calling, if that's all he did, then that's not scouting...that's just recording, which is not prohibited." But Michigan can't really raise that defense until it sees the actual evidence to see if there is any indication whether the person did or did not do anything more. That said, Michigan did assert in the letter that "[t]here remain significant factual questions, as well as disputes about the application of the rules."
*****
Before 2001, Bylaw 11.6.3.1 expressly permitted schools to “obtain videotapes” of a future opponent’s games from a commercial entity “for scouting purposes” subject to a handful of restrictions. One of the restrictions was that the commercial entity “does not analyze the videotape or provide any other services that could be construed as scouting activities.” This provision made it crystal clear that recording is categorically different from scouting.
In 2001, Bylaw 11.6.3.1 was amended to eliminate all but one of the restrictions on obtaining videos of future opponents. (https://web3.ncaa.org/lsdbi/search/proposalView?id=197) The only remaining prohibition at that time was against the school paying for the video.
The stated intent and rationale provided by the Bylaw 11 Deregulation Subcommittee for the 2001 amendment were as follows:
Intent: To permit an institution to obtain videotapes of a future opponent's athletics contest, provided no cost is incurred by the institution other than postage costs.
Rationale: This proposal would significantly simplify legislation related to obtaining videotapes of an opponent's contest. If adopted, the proposal would retain the principle that obtaining videotapes would not result in added expenses for an institution and is consistent with Division I deregulation efforts.
Bylaw 11.6 was further amended in 2013 to remove altogether all restrictions related to obtaining videos of future opponents.
So much is happening so fast, it's hard to process, but here's my quick take...
According to the copy of the B1G press release I've seen:
- Michigan "has been found in violation of the Big Ten Sportsmanship Policy for conducting an impermissible, in-person scouting operation"
- The decision that Harbaugh may not coach or be in the venue during the final three games of the regular season is described as a "disciplinary action" and a "penalty imposed on [Michigan]"
[So this is not a Rule 32.2.1.A interim action to protect the integrity or preserve the status quo, which would be nonsensical under the circumstances, but would have been relatively easy to fight.]
There has already been discussion on this thread (and in Wednesday's attorney letters to the B1G) that the Sportsmanship Policy is not applicable at all in this situation, which should be governed instead by the B1G's Rule 32 (which in this case would require deferral to the NCAA investigation). But assuming the Sportsmanship Policy does apply, the B1G action here must reflect either a unilateral decision by the commissioner or a decision by the Joint Group Executive Committee. Since the commissioner may unilaterally issue a suspension of not more than two games, it seems that this decision must have been made by the JGEC.
Notably, "Any member of JGEC whose institution is involved in an incident for which approval of a major disciplinary action is sought shall be recused and temporarily replaced by an individual (or individuals) representing an institution (or institutions) not involved in the incident at issue." Given that the "incident" here is the alleged impermissible scouting of numerous teams over multiple years, what B1G schools is not involved? I suspect this is an issue that may be examined.
The language of the decision is interesting in that it does not say that Harbaugh may not coach. It says that "the University football team must compete without its Head Football Coach." Phrasing it this way, the B1G wants to be seen as punishing the university rather than Harbaugh, which it must do because the Sportsmanship Policy allows punishment of an individual only if that person is "found to have committed an offensive action." Look for Mars & Co. to argue that the conference can't hold Harbaugh personally accountable in a roundabout way by merely phrasing the punishment in a clever way.
More to follow...
I hate to add anything to this pathetic sideshow of a story, but this could be a serious issue for Stalions. It's a felony to file a false document in Wyoming, and here is an excerpt from the Articles of Organization that Stalions signed and filed. (On the previous page he named BC as a co-organizer.)
And here's another site that picked this up: https://fansided.com/posts/statement-from-jim-harbaugh-s-lawyer-reads-exactly-like-michigan-blog-post-01hev6ayt6p2
I guess if you're intellectually or positionally unable to address the substance of someone's argument, but still feel obliged to chime in, you're stuck making snarky ad hominem attacks like these.
Unfortunately, we're not the only ones who noticed that Mars cut and pasted from rym's post into his letter: https://brobible.com/sports/article/jim-harbaugh-attorney-plagiarized/
From the post:
I guess these folks aren't used to seeing message boards where people actually have intelligent insights to contribute.
At least one article on Schiano's comments provides another example of the stupidity and/or bias of many of the "news reporters" covering this story.
CBS Sports' Will Backus published an article titled and subtitled "Ryan Day, Greg Schiano deny sharing Michigan's signals with Purdue in 2022 as sign-stealing scandal broadens: The coaches for Ohio State and Rutgers issued firm denials amid accusations from the Wolverines".
(https://www.cbssports.com/college-football/news/ryan-day-greg-schiano-deny-sharing-michigans-signals-with-purdue-in-2022-as-sign-stealing-scandal-broadens/)
In the article he states that allegations that OSU and Rutgers shared UM signs and signals with Purdue "were understandably met with firm denials from Buckeyes coach Ryan Day and Scarlet Knights boss Greg Schiano..."
I'll mention only briefly that his use of the word "understandably" is a journalistically (is that a word?) horrible bit of editorializing in what purports to be a news story. More significant, though, is his complete mischaracterization of what Schiano actually said, as quoted in the article:
This is not a denial at all, let alone a "firm" one. It's merely a deflection. The closest Schiano comes to even addressing the allegation is that he is "very confident in the way we handle our business," which says absolutely nothing. It's absolutely pathetic that so many people are so easily hoodwinked by stuff like this.
I concur. I noted in a reply above that $10,000 is the maximum fine the B1G commissioner can issue unilaterally (i.e., without committee approval) under the Agreement 10 Sportsmanship Policy. But Ghost of Fritz makes the more significant point: the B1G should not be operating under the Sportsmanship Policy at all here. It should be operating under Rule 32, which in this case requires deferral to the NCAA until it has finished its investigation. I think that yesterday's letter by Harbaugh attorney makes this argument even more effectively than the UM letter.
Under Section 10.3.3.1 of the B1G Agreement 10 Sportsmanship Policy, the maximum fine that the Commissioner can issue unilaterally is $10,000. Anything more requires approval of the "Joint Group Executive Committee."
EDIT ADD: Although what I noted above is true, as Ghost of Fritz points out below, the B1G should not even be operating under the Sportsmanship Policy here. It should be operating under Rule 32, which requires deferral to the NCAA until it completes its investigation.
I recognized that immediately. Nice work! I've wondered whether the attorneys representing UM and JH have been reading the analysis and arguments that many have posted on this site.
As for other legal matters raised in these threads:
I believe that could very well be the case. However, I have been shocked by how many people — and I’m talking seasoned football insiders (including B1G administrators) who should know better — don’t seem to understand what the rules actually say.
I think the hypothetical conduct you describe would more likely violate the no-scouting rule of NCAA Bylaw 11.6.1 than what CS is alleged to have done (i.e., arranged for people to attend and record games). [The CMU sideline thing is a whole different matter.]
As noted in my reply (below?/above?) to Pepper Brooks, the NCAA has historically regarded “scouting” and “recording” as two completely different activities. In your hypothetical, someone would be doing something more than merely recording. Having someone "tell you what they saw" almost necessarily involves some level of analysis, as even the most sincere attempt to simply report what they witnessed will be filtered through the observer's mind.
The fact that the person in your hypothetical does not use electronic recording equipment is irrelevant to the question of whether the no-scouting rule would be broken. As also noted in my reply to PB, the prohibition against using electronic recording equipment applies only to the two schools participating in the game at hand.
Here's my previous analysis of the no-scouting rule and no-recording rules:
The No-Scouting Rule
Basic point: The NCAA regards “scouting” and “recording” as two completely different activities.
Before 2001, Bylaw 11.6.3.1 expressly permitted schools to “obtain videotapes” of a future opponent’s games from a commercial entity “for scouting purposes” subject to a handful of restrictions. One of the restrictions was that the commercial entity “does not analyze the videotape or provide any other services that could be construed as scouting activities.” This provision made it crystal clear that recording is categorically different from scouting.
In 2001, Bylaw 11.6.3.1 was amended to eliminate all but one of the restrictions on obtaining videos of future opponents. (https://web3.ncaa.org/lsdbi/search/proposalView?id=197) The only remaining prohibition at that time was against the school paying for the video.
The stated intent and rationale provided by the Bylaw 11 Deregulation Subcommittee for the 2001 amendment were as follows:
Intent: To permit an institution to obtain videotapes of a future opponent's athletics contest, provided no cost is incurred by the institution other than postage costs.
Rationale: This proposal would significantly simplify legislation related to obtaining videotapes of an opponent's contest. If adopted, the proposal would retain the principle that obtaining videotapes would not result in added expenses for an institution and is consistent with Division I deregulation efforts.
Section 11.6 was further amended in 2013 to remove altogether all restrictions related to obtaining videos of future opponents.
The No-Recording Rule
Basic point: The no-recording rule does not apply to anyone other than the two schools/teams participating in the game at hand.
Unlike the no-scouting rule, which is set forth in the NCAA Bylaws, the no-recording rule is set forth in the NCAA Football Rules Book, and this applies only to the two participating teams.
First, Rule 1-1-6-b sets forth the persons who are subject to the Football Rules:
“Everyone in the team area, players, substitutes, replaced players, coaches, athletics trainers, cheerleaders, band members, mascots, public-address announcers, audio/video/lighting system operators, and other persons affiliated with the teams or institutions.”
General ticket holders sitting in the stands are not listed as being subject to the rules. And note that the rules govern “other persons affiliated with the teams or institutions.” The rules do not say they govern persons affiliated with “any” or “other” teams or institutions.
Second, it’s helpful to note where the no-recording rule is found within the Football Rules. Specifically, it appears within Rule 1 (titled “The Game, Field, Players and Equipment”), Section 4 (“Players and Playing Equipment”), Article 11 (“Prohibited Field Equipment”). It’s hard to see how a rule falling under these section headers could be construed as prohibiting a general ticket holder sitting in the stands from recording whatever he or she wants.
Third, consider the specific language of the no-recording rule: “Any attempt to record, either through audio or video means, any signals given by an opposing player, coach or other team personnel is prohibited.” It talks specifically about signals given by an “opposing” player, coach, etc. An “opposing” player, coach or team is not the same thing as a future opponent. This rule deals with the internal dynamics of the game at hand, and what the participating teams can and can’t do.
Fourth, the introductory section of the Football Rules notes that all rules “are designated as either administrative rules or conduct rules. Typically, administrative rules are those dealing with preparation for the contest. Conduct rules are those that have to do directly with the playing of the contest.” The book lists several dozen rules that are designated as administrative rules and then states that “[a]ll other rules are conduct rules...” Rule 1-4-11-h (the no-recording rule) is not identified as an administrative rule, which means that it is a conduct rule which by definition deals directly with the playing of the game at hand.
Fifth, nowhere else in the 248 pages of the Football Rules Book is there a single provision that even remotely appears to govern any person or conduct that is not directly involved in the game in question. It’s hard to imagine that the no-recording rule is the sole exception.
I agree that Stalions did not break Rule 11.6 by arranging for others to attend future opponent's games and record their sidelines. As we have stated many times, under the NCAA Bylaws recording is not scouting. (But if that was Stalions on the sidelines of the CMU game, that may be a different story.)
In any event, you raise an interesting question about whether the staff of teams A, B, and C that were on the sidelines of ABC's games against Michigan were doing "[o]ff-campus, in-person scouting of future opponents" in violation of 11.6. I'm not sure I agree with your conclusion. First, we don't know the extent to which the sign sheets that were compiled were based on (a) the ABC staffs' in-person observations of Michigan's signs, as opposed to (b) their study of video. Second, in the course of any game between A, B, or C against Michigan, the ABC staff's observing and making notes of Michigan's signs is not "off-campus" scouting of a "future opponent." During those games, at least in isolation, the ABC staff was doing on-campus observation of a current opponent. So that alone would not be a violation of Rule 11.6. I think you would only begin to implicate Rule 11.6 if there was some kind of agreement or understanding between ABC and DEF that ABC's observation and analysis was not only for its own in-game benefit, but was being done with the intent to share what they learned with teams D, E, and F.
Yeah, that's how I eventually read the sentence. But as I said, I don't think that's an "essential" element of any lawsuit by UM/JH against the league (i.e., it's not the only argument that could form the basis for such a lawsuit).
I had to read this sentence about 10 times before coming up with an interpretation that made any sense.
At first I read it to say that evidence of a connection between Harbaugh and the scouting/recording is essential for a lawsuit by UM/JH against the league, in which case the absence of such evidence would cause such a suit to fail. That, of course, seems ludicrous.
Eventually, I realized the article must be suggesting that it is the "absence of evidence" of such a connection that is essential to a lawsuit by UM/JH against the league. In other words, the article appears to be saying that UM/JH would have to establish that Harbaugh had no connection to the scouting/recording in order to maintain any suit against the league.
But I don't think that would be the case at all. Even if there was concrete evidence that Harbaugh knew what was going on, I believe there would still be grounds for him and the school to seek a court injunction against any suspension, arguing, for example, that the league lacked the authority to impose such a punishment under the circumstances, that proper procedures were not followed, etc.
I just joined the forum this morning and my first post was in another thread on this exact topic (https://mgoblog.com/diaries/ncaa%27s-rules-bylaws-are-michigan%27s-side#comment-245025496)
tl;dr (sort of)
This is my first…
Hi, All -
This is my first post on the site. I'm no expert, but I am a lawyer and I believe that the rules analysis provided by Ghost of Fritz and Erik_In_Dayton is generally spot on.
With respect to the no-scouting rule of NCAA Bylaw 11.6.1, one of the crucial points that Ghost of Fritz has been valiantly trying to hammer home to everyone is that recording is not scouting. There is one point of legislative history supporting this position that I have not seen mentioned anywhere in the forum. So I thought I'd add it here.
Before 2001, Bylaw 11.6.3.1 expressly permitted schools to “obtain videotapes” of a future opponent’s games from a commercial entity “for scouting purposes” subject to a handful of restrictions. One of the restrictions was that the commercial entity “does not analyze the videotape or provide any other services that could be construed as scouting activities.” So here it is in the former rules, clear as day (pardon the pun), that recording is categorically different from scouting.
In 2001, Bylaw 11.6.3.1 was amended to eliminate all but one of the restrictions on obtaining videos of future opponents. (https://web3.ncaa.org/lsdbi/search/proposalView?id=197) The only remaining prohibition at that time was against the school paying for the video.
The stated intent and rationale provided by the Bylaw 11 Deregulation Subcommittee for the 2001 amendment were as follows:
Intent: To permit an institution to obtain videotapes of a future opponent's athletics contest, provided no cost is incurred by the institution other than postage costs.
Rationale: This proposal would significantly simplify legislation related to obtaining videotapes of an opponent's contest. If adopted, the proposal would retain the principle that obtaining videotapes would not result in added expenses for an institution and is consistent with Division I deregulation efforts.
As noted elsewhere, Section 11.6 was further amended in 2013 to remove altogether all restrictions related to obtaining videos of future opponents.