Even if Jim Harbaugh knew nothing about the ongoing sign-stealing scandal at Michigan, the Wolverines coach could be held responsible, according to a newly altered NCAA rule.
A semantic change in the NCAA's coach responsibility bylaw all but assures Harbaugh will be found culpable if evidence is found of wrongdoing in the case involving analyst Connor Stalions.
The language in Bylaw 126.96.36.199 was changed in January. Previously, the rule stated a head coach "is presumed to be held responsible for the actions of all institutional staff members." It was changed to read, "a head coach shall be held responsible for their actions and the actions of all institutional staff members."
There is little gray area. Whether Harbaugh can be tied to the alleged actions of Stalions, the bylaw would hold him responsible for oversight of his program. Harbaugh has denied knowledge of the sign stealing. The NCAA is investigating. The next step for the association is determining whether to issue an official notice of allegations. That means Michigan would be under investigation at the same time Harbaugh is … already under investigation.
There is an existing, ongoing case regarding Harbaugh. If the sign-stealing case is found to be serious enough, Harbaugh would be the subject of two distinct cases involving major violations.
CBS Sports spoke with several veterans of NCAA matters. They could not remember a Power Five head coach of a revenue sport being under investigation in two major cases simultaneously.
To summarize, the screws have been tightened on Harbaugh in the ever-growing scandal.
"Essentially, [the coach responsibility bylaw] means, if there is a violation, you're automatically responsible," said Jason Montgomery, a former NCAA investigator based in Kansas City. "There is no longer plausible deniability. Now, you go in responsible for the actions of the program."
Montgomery is currently an attorney at Husch Blackwell, a notable law firm experienced in NCAA and third-party investigations.
"The argument is mitigation [of the charges]," he said. "That's the difference."
Harbaugh would have to bring evidence that he couldn't have known about the wrongdoing. That would potentially lessen the penalties but not violation of the bylaw itself.
"The enforcement staff and the Committee on Infractions are going to look to see if the coach promoted a compliant atmosphere and monitored staff, so that can mitigate penalties," said Josh Lens, a former Baylor compliance director who was speaking generally about the process. "[But the coach] is still going to have that penalty."
Lens is currently an Arkansas assistant professor who writes frequently about legal issues in sports.
What is believed to have been the first major case to involve the enhanced coach responsibility provision was concluded in September. It included presumed responsibility for an Air Force golf and hockey coach.
Michigan's situation is much higher profile. It is not improper to steal signs on the field live during games or to spot patterns while studying game tape. However, it is against the rules to advance scout opponents and electronically tape their signs.
There are two broad spectrums to consider in the early stages of the investigation. It will be a while before NCAA decides whether major violations have occurred. Michigan would have 90 days to respond after the NOA. That starts a long, laborious process that can last years. Also, there also is no definitive word that the alleged sign-stealing scheme has ceased.
Stalions has been suspended by Michigan and scrubbed his social media accounts. Any investigation by the NCAA and Big Ten likely won't conclude until 2024. By then, Michigan could be the reigning national champions.
Would that championship banner stay put? Would Harbaugh, who has flirted with returning to the NFL multiple times, stay put? (There are conflicting reports about Michigan pausing or continuing contract talks with its coach as the investigation unfolds.)
Whether Michigan and/or Harbaugh receive any meaningful penalties if found guilty is up for debate. Thein July showed the NCAA is unlikely to apply postseason bans. The NCAA simply isn't in the business of levying such penalties anymore.
Arizona State accepted a bowl ban this season after negotiations with the NCAA, but that is an outlier considering it is the NCAA's stated intent not to punish innocent parties (such as players). ASU seems to be a case of the school not being able to afford a massive fine like the one Tennessee paid ($8 million) that may have taken the place of that postseason ban.
The chief hearing officer in that Tennessee case, former Colorado State president Kay Norton, went out of her way to say the NCAA was "at a crossroads philosophically" in applying postseason bans.
Existing rules say Tennessee probably should have gotten hammered with up to a two-year bowl ban. However, recent guidelines suggested by the NCAA Board of Directors -- adopted as part of the new NCAA Constitution -- suggest the innocent (athletes, mostly) shouldn't be punished in such cases. That's noble and fair but also has the infractions process caught in the middle of a four-way intersection.
Norton called it "undefined guidance."
So, what are meaningful penalties? Like Tennessee, Michigan could be assessed a massive fine. Harbaugh could be assessed a show-cause penalty. That is the NCAA's scarlet letter rendering a coach almost unhireable. But what would it matter to Harbaugh if he leaves for the NFL?
Complicating issues, Air Force, Tennessee and Memphis recently had cases resolved using "bifurcation" -- a negotiated resolution with individuals or schools within a larger case.
Bifurcation is believed to have been used at Arizona State. The school accepted the postseason ban, but former assistant coaches accused of improper recruiting during COVID-19 are still going through a traditional investigation.
Michigan and Harbaugh were seemingly on a bifurcated track when they agreed to what was described as a "tentative resolution" -- a four-game suspension to start the 2023 season -- in the ongoing case alleging Harbaugh lied to NCAA investigators about Level II violations regarding recruiting visits during the pandemic.
The misleading statements themselves are considered Level I (most serious) violations. The NCAA Committee on Infractions later rejected that negotiated suspension, deciding to continue the full disciplinary investigation.
Michigan later self-imposed a three-game suspension to begin the season. It remains to be seen whether that move will keep the football program or Harbaugh from major penalties in that case.
"It's not uncommon for institutions to self-impose penalties that they think may ultimately be prescribed by the committee at a later date and time," said NCAA official Matt Mikrut, who was speaking generally.
CBS Sports contacted two former members of the College Football Playoff Selection Committee. They both concluded that the subject of Michigan would at least be discussed among committee members as the season winds down. That doesn't necessarily mean the committee would penalize Michigan in the rankings. In fact, CFP chairman Boo Corrigan said Tuesday night after thethat Michigan's situation is an NCAA issue, not a CFP issue.
However, the scandal has undoubtedly impacted perception about the integrity of the game. The Wolverines debuted at No. 3 in the first CFP Rankings.
The Big Ten has not commented on the Michigan case beyond saying it had received information about the matter and was cooperating with the NCAA. It is atypical for the Big Ten -- or any conference -- to take action in the middle of an NCAA investigation.
In one of the biggest scandals in college athletics history, the Big Ten applied its own penalties after the NCAA punished Penn State in the Jerry Sandusky scandal. The NCAA later rescinded many of the major penalties.
The current situation at Michigan is not comparable, but if the school and/or Harbaugh are found culpable, the situation could eventually qualify as one of the biggest scandals in NCAA history. Stalions and his associates reportedly scouted most of the Big Ten along with potential CFP opponents in an elaborate scheme.
The Big Ten Sportsmanship Policy allows commissioner Tony Petitti to investigate whether "offensive action has occurred" with any investigation being completed expeditiously. "Standard Disciplinary Action" from the conference includes "admonishment, reprimands [and] fines that do not exceed $10,000" as well as a suspension of no more than two games.
Former Big Ten commissioner Kevin Warren was in charge during the disciplinary process that played out last year and resulted in the league suspending several Michigan State players following a fight with Michigan players after the 2022 game in Ann Arbor, Michigan.
Big Ten athletic directors met in their regular biweekly call last Thursday. Sources said there has not been a "unique" meeting to date among those ADs to discuss the Michigan situation.
Petitti is dealing with his third major scandal since taking office May 15. Hazing allegations cost Pat Fitzgerald his job at Northwestern in July. Michigan State coach Mel Tucker was fired for cause in late September following a sexual misconduct complaint brought by Brenda Tracy, a sexual assault survivor.
The Big Ten did not respond for a request for comment from Petitti.