Barb McQuade tweets on the TRO
Wanted to make sure this wasn't lost in one of the many posts on this subject. For those who don't know her, Barb McQuade is a current Michigan law professor, former State's Attorney, and former editor of the Michigan Daily Sports section (when Harbaugh was quarterback). She said this last week, too, but I think it's apropos to hear it from someone who is both a fan and an attorney. I haven't read the Freep article -- not a subscriber.
November 17th, 2023 at 10:05 AM ^
That is in fact the standard required to obtain a TRO. Spot on.
November 17th, 2023 at 10:05 AM ^
1) would be helpful if you at least briefly summarized what she said
2) if the battle on the TRO was lost last Saturday. Then why did it take so long to drop it?
November 17th, 2023 at 10:05 AM ^
See screenshot above.
November 17th, 2023 at 10:48 AM ^
This was a negotiated settlement. Had the parties not reached a deal, the hearing would have taken place. (Also, having done many of these, they are anything but instant, and if you look like you will back down, you will never get a concession from the other side. I'm certain Michigan knew exactly what they wanted and would have fought like mad if they didn't get it.)
November 17th, 2023 at 11:03 AM ^
Except it appears we gained NOTHING in the settlement. The conference still appears to have the ability to levy more punishments. I understand the concept of cutting our losses and when the TRO effectively got denied last week the legal writing was likely on the wall, but this is the worst possible shit sandwhich that we all have to swallow. The Big Ten is utter garbage and I hope we get the fuck out as soon as contractually possible.
November 17th, 2023 at 11:13 AM ^
We fans don't have all the information. We don't know if any concessions were made on either side, other than what was said in the statements. And there's no way what's in those statements covers everything that was worked out in the agreement. We may never know. Or, more stuff comes out and then this all makes more sense down the road. I think the worst thing to come out of this is knowing that (assuming it's accurate) the Big Ten commissioner got together with 13 other schools to decide what should happen to one school, seemingly without an investigation, and then doled out punishment immediately. If we want due process, we'll have to fight for that to be added to the Big Ten by-laws because right now, it's not explicitly in there. The commissioner has too much power.
November 17th, 2023 at 11:26 AM ^
Most likely, there was no settlement and instead the University simply voluntarily withdrew its complaint.
November 17th, 2023 at 10:05 AM ^
Question: is there any possibility that the judge or someone on his staff communicated through back channels on the probability that the TRO would be denied? Would that sort of contact be a major legal violation or does that sort of thing happen often to save people time and money?
November 17th, 2023 at 10:20 AM ^
There are no back channels. Ex parte communication (talking with just one side) is strictly verbotten. As the tweet indicates, the minute Michigan didn't get a ruling, the TRO was 99% dead in the water.
Perhaps the judge could have gotten the attorneys on a phone call and encouraged them to settle by giving their impression of the merits, but that doesn't make much sense in a proceeding seeking injunctive relief. You either get it or you don't. You're not going to get the party seeking relief to just drop it, nor are you going to get the opposing side, who generally doesn't know the action is coming, to budge on whatever they're doing. And there wasn't much middle ground on this one.
November 17th, 2023 at 10:50 AM ^
No chance. Also, as Prof. McQuade said, none was needed because the court very clearly communicated its view on the imminent harm prong when it did not grant the TRO last week.
November 17th, 2023 at 10:06 AM ^
Harbaugh missing a game or games should not be considered as "irreparable harm", but could Michigan have made a better case for him being punished by the B1G when the NCAA came out and blatantly said Harbaugh was not involved and did not know anything of what Stallions was doing? I understand he is the head coach and Stallions was a paid staff member, but what Stallions does on his off-time should not be under the watch of the head coach.
November 17th, 2023 at 10:15 AM ^
According to her tweet, no. The irreparable harm is the first hurdle you have to clear.
Which begs the question: Wouldn't an action administered as a "punishment" constitute irreparable harm on its face? If there is no irreparable harm, is it really a punishment?
November 17th, 2023 at 10:29 AM ^
No, irreparable harm is a legal term that means harm that cannot be remedied with monetary damages down the line. It is a hard standard to clear and the burden was on us to prove it. In their briefs, Michigan cited the presumed drop-off in on-field performance and reputational damage as the two sources of irreparable harm. I was skeptical of the reputational argument, but I personally thought the damage to our season in Harbaugh's absence would qualify. Clearly, the judge disagreed. Prof. McQuade is saying that once the judge failed to grant the TRO before the alleged irreparable harm occurred, it was a sign that the judge did not in fact believe the harm was irreparable.
November 17th, 2023 at 10:58 AM ^
Probably the closest thing we have to expert opinion on the matter--Vegas bookmakers--didn't think Harbaugh's gameday absence was worth even half a point to Penn State.
November 17th, 2023 at 10:30 AM ^
I'm definitely not an attorney but I'd be curious what the definition of 'irreparable harm' is and what would need to be shown to prove 'irreparable harm'.
November 17th, 2023 at 10:08 AM ^
This is the most straightforward interpretation and I've come to accept it, even if I don't like the outcome.
November 17th, 2023 at 10:09 AM ^
I think that she's probably correct. I strongly disagree that Michigan and Jim Harbaugh aren't irreparably harmed each time he misses a game, but I can also see a court taking a cold look at this and deciding that nothing would be lost that couldn't be fixed by money damages.
November 17th, 2023 at 10:12 AM ^
Nah. How would you calculate the money damages to compensate Harbaugh for not being able to coach the Penn State game? Or, if you prefer, to compensate Michigan for Harbaugh not being there?
I submit there is no way to calculate an amount that does not rely in some way on an arbitrary value assessment. But if you can prove me wrong, I will change my view on this.
November 17th, 2023 at 10:29 AM ^
Well, with the massive caveat that I have not researched "irreparable harm" in a long time, as devil's advocate I'll argue this:
1.) Harbaugh (I assume) will lose some of his salary by missing games. That's easy to fix with money damages.
2.) Michigan could argue that not having Harbaugh would make a loss more likely, but a loss isn't a sure thing. And one could conceivably get deep into the weeds re: what winning and losing means for a program as far as revenue. And, needless to say, that could be fixed with money damages.
3.) This would ultimately come down to Michigan caselaw, but I can easily imagine a court believing that things like the players not having the benefit of Harbaugh's coaching (in and of itself), Harbaugh not sharpening his skills by coaching the games, and the emotional toll to all involved are, as a matter of law, simply not "irreparable harm." To put this in another context, I can imagine a court saying this to a plaintiff in an employment law case: "You might receive a money judgment for lost salary at the end of this case, but I'm not that concerned that you didn't get the experience of being an office manager for a couple of months."
November 17th, 2023 at 12:26 PM ^
It was a valiant effort, Erik_in_Dayton.
I think the fundamental problem here is that coaching a game or participating in an athletic contest inherently offers a variety of emotional and psychological risks and benefits and rewards and injuries that utterly defy conventional forms of measurement. I mean sure, you can give JH back his salary and you can compensate UM for whatever economic losses it might have sustained had Penn State won the game on Saturday. But nobody associated with M Football would be satisfied with that, as everyone well knows.
I have done a fair amount of TRO/PI litigation because I am a housing attorney and cases involving the possession of real estate are about as well-established a form of irreparable harm as there is. If a landlord locks a tenant out of an apartment, or illegally shuts off the utilities, or enters the premises unannounced for no good reason, these are all well-recognized forms of irreparable harm that a court will grant a TRO for pretty much without blinking. That's true even though these kinds of injuries are much easier to assess economically than say the "value" of winning a college football game. It's because courts recognize that every piece of real estate is unique and there is just something special about being able to live peaceably at your own home that can't be made up for by compensating your hotel charges or whatever other economic losses you endured by having to find someplace else to stay temporarily.
I guess maybe if the judge was looking at the job of "football coach" the same as just some mediocre job that anyone might do just for the salary, and not the opportunity to the actual work, I can maybe see the reasoning. Like if some guy whose job is gluing together tennis shoes has to miss two weeks of work, but still gets paid, the court might not be receptive to claims that he gets some kind of special satisfaction from seeing a new pair of sneakers roll off the line. But coaching high-level college football is a much different animal and I would expect that to be obvious to any judge.
November 17th, 2023 at 10:25 AM ^
I similarly disagree about the lack of irreparable harm. But for the sake of argument, let's say that UofM and the AD agree there's no irreparable harm, for the life of me, I cannot fathom having gone as far as we did, with the statements that have been released, and not seeing the process through. If the judge was like, "nah, I don't see irreparable harm, go ahead and uphold the suspension", what have we lost? We either have more skeletons in the closet or we just wilted, neither of which scenario is going to galvanize the university, team, and fans in the way we were a mere 24hrs ago. For me, that's the suckiest part. How are we as fans/alums/supporters going to shift from "EF the Big Ten, EF Coach Third Base and his PR firm, EF The Thimble Commissioner, EF the world, Michigan against Everyone!" to "whelp, I guess we tried our best. Thank you sir, may I have another? Maybe it's no big deal after all."
November 17th, 2023 at 10:33 AM ^
I think we have to allow for the possibility that the people driving the case for Michigan were simply slow in making a decision. It may well have been difficult for them to come around to this position because they were experiencing many of the same emotions that we are.
November 17th, 2023 at 10:54 AM ^
From a football perspective, absolutely. We saw that during his voluntary suspension earlier this year. From a legal perspective, the harm has to be significant and tangible. Losing a game *might* qualify if it could be directly tied to the loss of a coach, but that degree of certainty is not possible here (different story if, for example, the B1G had suspended all of Michigan's coaches).
November 17th, 2023 at 10:09 AM ^
I think McQuade's deduction of the court's reasoning is accurate. But how a judge determines that having a football coach suspended for a game does not constitute irreparable harm is beyond me.
That's the inherent problem with litigation though: it's unreliable and in the vast majority of cases unsatisfying.
November 17th, 2023 at 10:26 AM ^
To me, it's the toothlessness of the punishment itself. Harbaugh didn't get anything other than a sideline ban. The team is still his during the week and he can still engage in recruiting.
My feeling on this is that the school's commitment to challenging the punishment legally forced the B1G to offer a punishment it was confident would survive a legal challenge. The legal dog and pony show was just the natural outcome of those proceedings. They all got to glare at one another before turning to more important things.
November 17th, 2023 at 10:09 AM ^
My biggest beef is why make a big show during the press conference about wanting to speak in court and due process and presumption of innocence? Get the fan base pumped up and ready for the court battle ? The point that we probably had lost must have been evident when it was postponed and then when we won on Saturday without our coach !
November 17th, 2023 at 10:12 AM ^
Exactly. If they wanted to prove harm, they should've lost to Penn State. /s
Not sure Franklin would have allowed that though.
November 17th, 2023 at 10:14 AM ^
I guess the judge took into account that James Franklin was on the opposing sideline and decided that Harbaugh being absent was no big deal. Unfortunately, that did prove to be true.
November 17th, 2023 at 10:28 AM ^
No idea why Harbaugh told people he was going to talk at the hearing. There were no facts to develop, only legal arguments to make. He could talk at a press conference after, perhaps, but talking at the hearing itself would be pointless.
November 17th, 2023 at 11:03 AM ^
I understand the frustration on the fan base on how this all went down (I am irritated as well), but the settlement does beg another question. What was Petti's motivation to settle?
The lack of a TRO was clearly a victory for him and the BIG TEN, so that would only further solidify his position as the commish.
Given that, what was the BIG TEN motivation to settle? There has to be something that moved the BIG TEN to agree to a settlement. That's a question I would like to know...
I could throw out tinfoil rumors, but that would not amount to anything....
November 17th, 2023 at 11:33 AM ^
It could be acquiescing to the NCAA. The NCAA may have told the Big Ten, "We got this, and we have stuff, and we're going to levy punishments." This helps Petitti save some face. He suspended Harbaugh three games (and gave Ohio State a gift in doing so, effectively shutting them up for the moment) and then can retreat with a "win." He was getting some flack in the media about due process, so this allows him to quash that narrative. Who really knows though.
November 17th, 2023 at 10:11 AM ^
You know what? Fair enough. Good point, and I can accept that. I guess the part I can't be happy with is how they went about deciding this. Not a negotiation. Hey, make it two games we'll drop the court case. I have faith, however, that Moore and the team will win the next two weeks.
November 17th, 2023 at 10:12 AM ^
BET the players and coaches
November 17th, 2023 at 10:25 AM ^
If Michigan isn't going to have it's day in court, then I think someone needs to take to the podium. Warde? Santa? One of those high-priced lawyers we hired?
November 17th, 2023 at 10:12 AM ^
So get it denied. Who cares. You’ll still have the same result at the end. But perception would be totally different than us cowering down. This has been an absolute joke since the beginning. We couldn’t even negotiate a fckin two game suspension? Since that was originally on the table. It’s ridiculous. Harbaugh wanted his day in court and Michigan took it away from him. This wasn’t his decision.
November 17th, 2023 at 10:19 AM ^
Yeah but if you get it denied you can't extract any concessions. You don't have a ton of leverage but you at least got the B1G and their reckless commish to back off and punt to the NCAA. That is not nothing.
November 17th, 2023 at 10:33 AM ^
It’s not totally clear to me that Michigan did extract any concessions. The Big Ten could still impose additional penalties if additional staff are found to be involved, which may just have been their plan all along.
The Michigan press release said that they had closed their investigation. I wasn’t aware that they had started one. So maybe they were working on a second pathway for discipline separate from the sportsmanship policy and agreed to stop with that?
November 17th, 2023 at 11:06 AM ^
Yeah I think thats likely to be the boring reality of the situation. Michigans counsel probably said the TRO was looking unlikely, so at that point your only leverage with the league is keeping everyone out of court. I read somewhere they tried to get Harbaugh back for OSU and sucks they couldnt have, but at least getting the Big Ten to stop with the shenanigans short term is a partial victory
November 17th, 2023 at 10:12 AM ^
Does this mean that beating penn state essentially weakened our case
November 17th, 2023 at 10:21 AM ^
My interpretation was, that if the court saw irreparable harm, they would have acted before last week's game. They didn't.
November 17th, 2023 at 11:09 AM ^
I can't imagine a judge making that conclusion, because it is impossible to know because maybe we win by more if Harbaugh is there. Moreover, just because we beat PSU doesn't mean that Harbaugh's not being there won't materially affect the Maryland or OSU game.
November 17th, 2023 at 10:13 AM ^
While Barb may be correct given the outcome, the conference issuing it's edict with the specific intent to limit the ability to contest, and the court punting versus deciding, created a de facto opinion -- the court didn't decide, it side-stepped in the hope that it would be decided. Those are two different things, imo. And had the conference decided on Wednesday or Thursday (as "sources" claimed they would), it potentially could have led to a very different outcome.
In essence, little tony proved he's a weak, cowardly "leader" and the court "decided" it really didn't want to get involved.
November 17th, 2023 at 10:14 AM ^
IOW, the court punted and stuck Michigan at their own 1 inch line.
November 17th, 2023 at 10:15 AM ^
I agree with her. Michigan was not likely to win this TRO case. Pending something really significantly new coming out, this is effectively over.
November 17th, 2023 at 10:16 AM ^
I would have liked to tried anyway.
I'd rather have defended our team in court and lost than to accept the accusation.
November 17th, 2023 at 10:39 AM ^
I'll say it again. This case was 100% NOT ABOUT THE ACCUSATION and there was nothing to defend in court re: the allegations. This case was solely about the lack of due process by the Big Ten and their authority to issue a punishment now
November 17th, 2023 at 10:58 AM ^
Legally that is true. But in the court of public opinion, this can and will be very easily construed by outsiders as Michigan "acknowledging guilt" and accepting the punishment. We all know that many of our rivals don't care to (or simply can't) understand the details of this case. They just believe we are being punished for cheating and that we were fighting against that punishment (essentially saying we didn't cheat). By accepting the punishment, now all the outsiders (read: idiots) get to say "See? They dropped their case so they admit they cheated!"
November 17th, 2023 at 11:08 AM ^
After all the BS spewed out the past few weeks, I personally do not give 2 shits what any "HAWT TAKE CLICKBAIT WHORE "WRITERS/TALKING HEAD" think.
I am far more interested in the facts. And the only fact that matters now is that Michigan can play tomorrow and prove once again, they are the best team in the nation.
Win and NO ONE can take that away...