17 Nov Is Sign-Stealing in College Football Unethical?
An Attorney’s Take on the Policy Question Behind the Harbaugh and University of Michigan Scandal
In the past few weeks, nothing in the sporting world has captured the public’s attention like the alleged sign-stealing scandal and resulting suspension of Jim Harbaugh, Head Coach of the University of Michigan football team. A scandal of such a nature that even the disinterested sports fan is taking to social media to either vilify Harbaugh and the hated, top-ranked Wolverines or exclaim the virtue and fundamental principle of due process. This article does not seek to expound further on the already well-briefed positions of the Big Ten or the attorneys for Harbaugh and the University of Michigan. And while I wish we could use this time to talk college football and the remarkable, astounding performance of the student-athletes on this Michigan football team, I must instead turn to this singular and burning, over-looked question: Is a violation of the NCAA prohibition on advanced scouting and sign-stealing an unethical act? Or, in short, is this really “cheating”?
As an attorney of almost twenty-five years, I have grown accustomed to analyzing policy, statutes, and black letter common law to guide on a variety of questions that may touch on violative conduct. We can easily identify the existence of a law and then interpret the law by its plain meaning. Much like we can easily identify NCAA Bylaw 11.6.1 which prohibits advanced scouting, specifically stating that “Off-campus, in-person scouting of future opponents (in the same season) is prohibited.”
Understanding the policy behind the law, however, is not as readily apparent. Many times we can benefit from a law’s legislative history, committee comments, or other informal authority to understand the reasoning behind the law, its significance and social impact, and finally, the degree of moral outrage that would accompany or be justified in response to a breach of that law. Given the backlash the University of Michigan and Jim Harbaugh have both received after news broke of the sign-stealing allegations, we can presume that a significant percentage, if not a majority, of people believe that Harbaugh has engaged in an outrageous, despicable act of dubious morality.
I find no such outrage or immorality in any such violation if any such violation occurred. WHAT IS THE BIG DEAL? Other than the clickbait revenue and increased ratings for ESPN (Michigan haters) or FOX (Big Noon Kickoff), this scandal seems very much a do about nothing. A technical violation in the ultra-competitive world of college football, a world that permits sign-stealing already. Before you sling your nuts at me, Buckeyes, or your cow manure, Sparty, let me set the record straight:
The rule we are so incensed about, one that is so scandalous that it is being compared to points-shaving or other affront to the integrity of the game, was one implemented to level the playing field for smaller schools. Yep, that’s it. It wasn’t implemented because of what the NCAA perceived to be a sinister, immoral crime. It was implemented because smaller schools would be disadvantaged and unable to compete at sign-stealing. The rule prohibits advanced scouting, not sign-stealing. Why be so specific about the method of sign-stealing if the NCAA regarded sign-stealing itself as unethical or a significant moral violation of NCAA rules for competitive play? The NCAA was the rule-making authority, and if it wanted to outlaw sign-stealing, only a general prohibition against it would be necessary, not such a specific law that addresses only advanced scouting.
For those of you pointing out that the act of advanced scouting element itself can carry moral significance, and then you show me that ridiculous Groucho Marx costume worn by the now infamous Connor Stalions while surreptitiously recording the signs of Michigan State during its match with Central Michigan, your point is well noted. But you have to give it up to the bumblin’, stumblin’ Stalions, as he was so passionate about Michigan football that he decided to elevate his sign-stealing game to legendary status. After all, the general culture of college football condoned if not encouraged sign-stealing, espionage, and television, er, TikTok surveillance of opponents’ sidelines to get a leg up in the competitive landscape. Stalions must have known that culture and understood very well how even the NCAA had no rule against sign-stealing. Little did he know that the NCAA had a prohibition on advanced scouting. Or that his mug and fake mustache would be Exhibit A in the Big Ten’s case this Friday in Washtenaw County Court, as it defends against the equitable relief hearing commenced against it and its commissioner Tony Petitti by Harbaugh and Michigan.
Who knows how the court will rule on Friday, or much further down the line if and when a permanent injunction or trial on the merits is heard in this case against the Big Ten. We all know the NCAA moves nothing like the speedy Michigan lineman Kenneth Grant, who made every highlight show in America by running down Penn State’s running back despite his, um, 340 pounds. And I am sure that Michigan’s attorneys will focus on the facts and dearth of evidence linking Harbaugh or the University to Stalions, not this policy question on the NCAA rule. Oh, but wait, there’s more.
NCAA almost abandons this rule.
If there was any indication that the NCAA did not attach moral significance to the advanced scouting technicality, it was its own discussion of eliminating the rule in 2021. It didn’t, obviously, but the contemplation of eliminating the rule reveals how the NCAA regards the severity of any resulting violation of the rule. With the prevalence of social media and television’s 24-hour sports coverage, for all sports mind you, the NCAA did not perceive advanced scouting to be an overly advantageous method for collecting data. Those primary methods exist elsewhere, on the cell phones or YouTube accounts for potentially millions of data seekers, if in fact, they wanted to seek data. Conner Stalions was such a data seeker, he just did it the old-fashioned way; by actually scouting the games. Which is a no-no, but something akin to jaywalking. The media and almost every Michigan hater on Twitter (not calling it you know what) equates this to a capital crime.*
“Theater of the absurd” is a spot-on description of this so-called scandal, particularly when we lay this out in the context of college football, a game that is closer to simulated warfare than virtually any other sport. During the Ten-Year War, Woody Hayes hired police officers out of suspicion that Bo Schembechler was planting spies during Ohio State’s practices the week of The Game. If you had your signs stolen, what does that say about your own strategic firewalls? In a game that employs deception, misdirection, and constant game adjustment, how guilty is a program for taking publicly available information and utilizing that information against its opponent? Is the opponent’s failure to protect their team’s signs and thus their competitive advantage a mitigating factor in determining the egregiousness of Michigan’s alleged conduct? Many believe, like W.C. Fields, that it is immoral to allow a sucker to keep his money.
But a law is a law!!! Right, we hear you. The NCAA has a rule, and the evidence supports a clear finding that Stalions violated it. So, what’s the punishment? Shouldn’t it be proportionate to its moral significance? Death penalty or slap on the wrist? Let’s just assume that Michigan knew about it and Harbaugh ordered the espionage. Are they cheaters? Did they violate a fundamental rule of fair play? Or is the media and the public casting this scandal as one that implicates moral turpitude when in fact it merely governs how to steal signs, rather than a prohibition of stealing itself?**
Stealing is a biblical sin, and yet it is not outlawed by the NCAA. Casting Harbaugh and the University of Michigan as cheaters is inconsistent with the policy of any NCAA rule regarding advanced scouting. Yes, perhaps by advanced scouting the University of Michigan broke the speed limit, but that’s what it was. And it deserves a proportionate punishment. Ok, hand out the speeding ticket, which we all know the University of Michigan is capable of paying. But let JJ, Blake, The Don, and the rest of the boys play on with their polarizing, goofy but undeniably successful Jim Harbaugh at the helm. The public’s overblown reaction to such a bland transgression has overshadowed a historic performance by college football’s largest brand, one that should be handled on the gridiron and not in a court of law or the recesses of the bureaucratic NCAA.
Learn more about Joseph Haddad and JJH Law.
* For those of you who clap back that I’m just a business lawyer fanboy who never played college football, I offer you Robert Griffin III, 2013 Heisman trophy winner and ESPN analyst who stated: “I don’t think there’s an unfair advantage on the football field. The reason that I feel that way is because everybody is stealing signs, everywhere.” The Rich Eisen Show, (16) ESPN’s Robert Griffin III: Sign Stealing Didn’t Give Michigan an Advantage | The Rich Eisen Show – YouTube.
** At the present time, the NCAA has not yet announced the level of violation for the sign-stealing scandal. ESPN and many other commentators suggest that if the allegations are true, Michigan faces the most severe punishment (a Level I violation) on the NCAA’s four-level scale, with Level IV being the least severe. Examples of Level I violations include unethical or dishonest conduct, lack of institutional control, and violation due to a head coach’s responsibility for an underlying Level I violation by an individual (Stalions) within the sports program.