Questions for MgoLawyers on Fridays hearing
Sorry if this has been discussed on other threads, but been a wild 24 hours.
I was wondering what’s next on Friday, with some specific questions:
1) will the same judge that didn’t grant the TRO be hearing the arguments on Friday
2) does the TRO not being granted imply anything about the likelihood of winning/losing the injunction/TRO this week?
3) should we expect a final decision by the end of the day Friday?
November 12th, 2023 at 9:03 AM ^
Yes
No
Maybe
November 12th, 2023 at 9:03 AM ^
Michigan’s case on the “irreparable harm” requirement was always the weak spot in their filing. Winning yesterday may actually sink the case. The judge can say “UM won, how are they harmed”
not everyone one thinks football is important, we do, but the judge may not. TROs not for health and safety are hard to get. I know this judge pretty well. That is going to be his sticking points.
November 12th, 2023 at 9:06 AM ^
Connors is the judge, not Kuhnke. That news tidbit from Friday was wrong.
November 12th, 2023 at 9:09 AM ^
Wouldn't seem logical that the outcome of yesterday's game impacts the decision.
November 12th, 2023 at 9:31 AM ^
There is a law firm in Ann Arbor with a bolo tie they save to wear into Connor’s court and whichever lawyer is appearing in front of Tim wears that bolo tie. I guess I understand why out county lawyers think we are a bit different in A2.
November 12th, 2023 at 9:07 AM ^
Disagree. JH is irreparably harmed every game that he is barred from coaching. So are the players. Whether Michigan won or lost yesterday is irrelevant to the irreparable harm element.
November 12th, 2023 at 9:17 AM ^
"Irreparable harm" is a bit of a toss-up. The B1G allowed JH to coach during the week, just not on game days. So both he and the university will have to show that there is a clear harm that can't be fixed via remuneration. If the judge didn't rule favorably in response to the legal equivalent of a 911 call, I don't think a full hearing on Friday is likely to improve the odds that a preliminary injunction will be granted either.
November 12th, 2023 at 9:29 AM ^
How exactly do you quantify damages for being denied the right to coach when there is no evidence you have violated any rules? The irreparable harm is plain from that; there are no money damages that could compensate for being sidelined. Winning the PSU game should be irrelevant. Just because you won that game doesn’t mean you would not have won more easily with your head coach on the sideline, and he could be the difference in the next game.
November 12th, 2023 at 9:33 AM ^
The "harm" from a fan's perspective is losing a game - perhaps from the coaches' and university's perspective as well. But that's not necessarily what a judge will consider - I doubt it will be given much weight at all.
November 12th, 2023 at 9:42 AM ^
Can’t they say they’re down a coach vs other teams.
November 12th, 2023 at 9:57 AM ^
Yes, but that would be a very weak argument from a legal perspective. As fans, we want to believe that "irreparable harm" is viewed in terms of the outcome of a game. That doesn't matter to a judge. And it bears repeating that this judge, Hon. Tim Connors, has every reason (as an adjunct UM Law professor and former UM football player) to agree with us on a purely emotional level. And yet, he ruled against the ex parte TRO motion. That fact, alone, should make all of us more inclined to set emotionalism aside and see how this will likely play out on a legal basis.
November 12th, 2023 at 10:22 AM ^
I do not agree that declining to rule w/in 12 hours signals skepticism. The fact is that the Conference Handbook and the SP are dense and complex. No judge can sort it out under time pressure before kick off. I see the delay as the judge needing time to get up to speed, along with the complexity of the rules meaning that he favors doing this as an injunciton rather than TRO
November 12th, 2023 at 10:32 AM ^
I agree completely - my point was that because of this particular judge in Washtenaw County, there were reasons to believe that the B1G was going to get the hammer and it didn't happen. For that reason, we need to work harder to set aside our homerism. As much as any MGoLawyer, I think you've done a great job of it.
November 12th, 2023 at 2:09 PM ^
Folks—“irreparable harm” is a legal term with ample case law to define it. For example:
- Something that can be compensated by money, for example, lost earnings, is not “irreparable”; but
- Reputational damage is “irreparable.” The primary issue being that courts have a difficulty quantifying it. And:
- Once-only opportunities being denied are also “irreparable,” for obvious reasons.
With the caveat that the law is what the judge says it is, IMHO (as a lawyer but not retained in the matter), folks should not get hung up on the “irreparable harm” factor and consider the other factors.
For my part, I wonder whether the University can make a clear case for a breach of a legal right by the Big Ten’s actions. Does the suspension constitute a breach of contract? In what contract? That could affect the judge’s evaluation of “likelihood of success on the merits.” I want the University to win but I’m unclear on that issue.
November 12th, 2023 at 9:10 AM ^
The outcome of yesterdays game will have no impact on the issue. The question is and will be, is the BIG adhering to the bylaws and are there lawful grounds for the BIG to take the action that it has. I do not know what they can point to to show that Harbaugh committed any affirmative act of wrongdoing to justify discipline under the BIG rules.
November 12th, 2023 at 9:20 AM ^
Correct.
Just two issues on Friday....
1. Is Michigan likely (at eventual trial) to win on the merits the issue of whether the Sportsmanship policy allows the Commissioner to do an end run around the SP textual provision that prohibits punishment of A (Harbaugh) for the infraction of B (Stalions) by simply relabeling Harbaugh as "the institution"?
2. Is Michigan likely (at eventual trial) to win on the merits the issue of whether Handbook Rule 32, and not the SP, procedures apply once the NCAA has taken action in a matter?
November 12th, 2023 at 9:41 AM ^
So the judge will attend to whether the B1G is following its own or the NCAA's rules rather than the law in some larger jurisdiction like the state of Michigan or (possibly) federal law. I don't think I knew that, and certainly wouldn't have assumed it.
November 12th, 2023 at 10:39 AM ^
It is a contract matter, at its core.
November 12th, 2023 at 9:21 AM ^
All true ... except for the breadth of the sportsmanship clause. Whether it is overly broad isn't a matter for the judge unless it was unfairly or incorrectly applied. Even then, the latitude given to the commissioner is so vague that almost any "reasonable" interpretation may be seen as allowable by the judge. This case is no slam dunk for Michigan.
November 12th, 2023 at 9:37 AM ^
in my decidedly non-expert opinion, i think the judge will also have to consider whether the SP can apply to behavior that hasn't even been determined to be a violation of the NCAA rule being used to allege a violation of the SP.
TP's team seems to be using some highly questionable logic to justify the action they've taken.
"We think a head coach should have known about activity that may or may not be an NCAA bylaws violation, and are therefore taking punitive measures against that coach, while saying out of the other side of our mouths that this is a punishment of the institution, not the coach we're punishing."
i'm obviously biased, but that seems like completely absurd 'logic' to me.
So imo, the question for the judge is twofold - is this a reasonable application of the SP, and if so, does the SP supersede Rule 32?
November 12th, 2023 at 9:41 AM ^
Absurd logic isn't necessary illegal - same with stupidity. In a legal sense, you really can't fix stupid unless it runs afoul of the law. That's ultimately what Friday's hearing (and eventual ruling) will boil down to - and why I'm pessimistic.
November 12th, 2023 at 12:13 PM ^
Not about legality. It's about whether the B1G appropriately adhered to its contract. Vis-a-vis it's rules.
November 12th, 2023 at 4:31 PM ^
I guess the absurd part to me is that from two angles, the conference rules don't seem to allow what TP has done. But I get what you're saying, and you're right - stupidity in and of itself is not illegal unless it runs afoul of the law or a legally binding agreement.
November 12th, 2023 at 10:40 AM ^
Something could feasibly be so broad as to render any agreement under it to be illusory and void as a matter of law. That is a stretch though.
November 12th, 2023 at 10:51 AM ^
It's a stretch and it didn't occur to me, but Michigan's filing on Friday hints at that possibility. Will be interesting to see what develops this week and in the hearing. An argument along these lines could be torpedoed by a judge saying, in effect, that no one had a gun to Michigan's head when it agreed to these bylaws granting the commissioner this breadth of authority. OTOH, one counter argument is that Michigan could not have foreseen a set of circumstances in which a commissioner granted himself unprecedented authority to act as he did.
November 12th, 2023 at 11:46 AM ^
And Harbaugh, personally, could argue that he cannot possibly be held to have agreed to such idiotic terms simply because the University did. Then the cases could sever and on and on. It’s a hot mess. Scolding hot.
Worst organization decision I’ve ever seen for the BIG to suspend Harbaugh. It’s the no-death version of the NASA decision to launch Challenger.
The new member institution are having some meetings right now, for sure.
November 12th, 2023 at 9:04 AM ^
Feels to me like the judge essentially converted the proceeding from a TRO to a Preliminary Injunction motion with an opportunity to take evidence or at least hear live argument. The criteria are largely the same as has been discussed here over the last week, but instead of having been decided immediately on the papers, there’s an actual record to be made.
November 12th, 2023 at 9:06 AM ^
Not a lawyer. Don't know the procedural answers to questions 1 & 3.
Best guess on 2 is no it is not predictive. Ie, it might not rise to the level where "emergency" action is appropriate, but that doesn't imply that action is not appropriate in a non-emergent time frame.
November 12th, 2023 at 9:07 AM ^
Follow up question, what are the chances JH is on the sideline for The Game?
Edit: Based on what we know at this point
November 12th, 2023 at 9:10 AM ^
85%.
Becasue I think that is the probability that Michigan wins in court on the issue of whether the Big Ten Sportsmanship Policy permits the Commissioner to suspend a HC when a subordinate's actions are the alleged violation of the SP....
I would put it at 99%. But you always have to account for a judge just getting stuff completely wrong.
November 12th, 2023 at 9:30 AM ^
Maybe I'm just a Debbie Downer after Saturday, but in the cold light of a Sunday morning, i don't think the odds are 85% in favor of JH and the university. When my mind wanders into really dark places, I doubt they're even 50%.
I think you captured the crux of the issue well when you laid out the interpretation of the SP in another comment. Does the judge believe that it gives the commissioner broad powers to act as he did? Moreover, would a "reasonable" person think so? Those of us who are Michigan fans would like to believe the answer is "Hell, no!" But people on the bench in the dark robes may be inclined to disagree and there are enough lawyers who are commenting on social media (and who don't have a dog in the fight either way) who also disagree.
November 12th, 2023 at 10:02 AM ^
I have spent way too many hours (and I really do mean WAY too many hours--I am sure a few other MGo-lawyers have too...) very carefully reading and re-reading the Big Ten Handbook rules, the Sportsmanship Policy, Michigan's letter, Pettiti's letter....
The bottom line is that Michigan has a pretty good argument that Handbook Rule 32, and not the SP, procedures govern this case.
But even if Michigan were to lose on that argument and, therefore the SP does apply, the text of the SP is very much against the Commisioner and Michigan should win an injunction barring the Conference from punishing JH for the alleged wrongs of Stalions.
The text of the SP allows ONLY punishment of (A) institutions and (B) individuals who themselves are deemed to have committed an infraction. You simply cannot read the text of the SP to allow punishment of JH.
You cannot read a rule that says 'you can punish only A or B' to allow the Conference to punish C by simply re-labeling C as A.
That is the text.
The sub-text is that everything in Petitti's written explanation reeks of bending over backward to seize authorities that the Handbook and SP do not grant, and of doing things that have never been done in the past (using the SP as a shortcut to do the NCAA's job of interpreting and enforcing NCAA rules).
Petitti's written explanation makes his own determination that Stalions' acts violate NCAA Rule 11.6 a necessary pre-condition to his finding that Stalions violated the SP. Without Petitiit first taking upon himself to find that Stalions violated NCAA R 11.6, he would not find a violation of the Big Ten SP.
IOW, Petitit is saying the sign stealing is unsportsmanlike BECAUSE it was done in violation of NCAA Rule 11.6. That is straight up the Commissioner usurping the NCAA's role in deciding what NCAA rules mean and when the evidence shows a violation of NCAA rules.
November 12th, 2023 at 10:25 AM ^
I really appreciate your analysis - it's thorough, logical, and dispassionate. It also aligns very well with what the university's and JH's own attorneys have argued - but have so far failed to carry the day. Would oral arguments by both sides help here? Perhaps, particularly because the B1G's lawyers would have to explain the tortured logic on display in their decisions to date.
November 12th, 2023 at 10:46 AM ^
Petitti's written explanation keeps hammering on 'the SP gives the Commissioner the power to do whatever the Commissioner wants...unconstrained discretion...I alone decide...'
And that is mostly true, at least WRT (1) deciding if a SP violation has occurred, (2) deciding whether the evidence is sufficient to find a SP violation, (3) deciding what types and sources of evidence to consider, (4) deciding the sanction, etc., etc.
HOWEVER....there is one part of the SP that is drafted in a way that signals CONSTRAINT AND LIMITS on the Commissioner--the clause that outlines WHO can be punished under the SP.
This clause is the opposite of 'Commissioner can do whatever he wants.' It limits him to punishing (A) the institution or (B) the person who has engaged in unsportsmanlike conduct.
When so many clauses in the SP do in fact grant the Commissioner unconstrained discretion, but there is one particular clause that pointedly does the exact opposite and textually limits the Commission to only A or B options...a judge cannot read that clause to give the Commissioner C option as well.
And that is why JH/Michigan can satisfy the 'likely to win on the merits' prong.
November 12th, 2023 at 12:45 PM ^
My fear at this point is that Michigan wins on this issue and the BIG says “ok we are going punish the institution” and just forfeit our games. This seems highly unlikely given $$$, but the BIG appears to be completely unhinged, so🤷♀️.
November 12th, 2023 at 5:14 PM ^
True that Petitti can come up with a different punishment for the institution. If out of spite he made worse than suspending JH for three gamedays...that would be really weird.
November 12th, 2023 at 5:54 PM ^
I propose that as part of Jim Harbaughs new contract the University promote him to;
Associate Athletic Director for Football Operations.
he would no longer be the Head Football Coach and then select a sacrificial lamb to be the new head coach.
November 12th, 2023 at 10:38 AM ^
Aren't TROs reserved for things that can't be made whole by a monetary award?
I've seen a lot of arguments that Michigan should win a case, and I tend to agree but why can't the Big Ten's bad behavior be remedied with $100 million or some other enormous number?
It's probably obvious I'm not a lawyer, this is an honest question.
November 12th, 2023 at 10:49 AM ^
If the Big Ten Commissioner ruled that you cannot be present at your daughter's wedding, can that be remedied by monetary compensation? Of course not.
JH would make the same argument. Coaching his team in the sidelines is not about money and can't be compensated for with a monetary remedy.
November 12th, 2023 at 11:06 AM ^
This is the subject upon which you and I disagree and the whole injunction/TRO hinges. In order for JH and/or the university to claim irreparable harm, they have to present facts that clearly demonstrate the harm. The university's motion on Friday night referenced a U-Chicago study on the impact of head coaches on game day. That's the most compelling argument that the best, most highly-compensated sports litigants in the country could muster? If so, I can't see the university prevailing on the injunction. On the larger breach of contract suit, which will likely rely on different arguments, the overall case is much better and it's more likely that the university prevails.
November 12th, 2023 at 5:17 PM ^
I am not getting it, I suppose. JH is a litigant. Even if there is not harm to the program in not having its HC on gameday (which already seems dubious)...what about harm to JH as an individual? Simply being denied coaching his players on game day is a harm to JH himself.
November 12th, 2023 at 10:03 PM ^
On a personal level there’s a harm, but beyond disappointment, what would it be exactly? And since the B1G’s stated purpose is to punish the university for its conduct by directing its action against its head coach, “the public face of the program,” disappointment, regret, anger on the part of the university and Harbaugh specifically would be features of the intended effect, would they not?
November 12th, 2023 at 9:10 AM ^
The best argument is because the youts on the team love the shit out of Jim and they especially need his guidance during the game.
November 12th, 2023 at 9:25 AM ^
Where?
I went through the entire 84 comment thread when the Friday hearing was announced and nothing answered these questions. Neither does the recent one about why the TRO was denied
Happy to be pointed in the right direction though, thanks
November 12th, 2023 at 9:40 AM ^
people who'd rather respond with snark, hostility and negativity, instead of simply not clicking on a thread, will always puzzle me. I hope your Sunday gets better, friend.
November 12th, 2023 at 9:28 AM ^
Another point to add here. What if the two parties were to negotiate and settle on a two game suspension for coach Harbaugh before the TRO hearing? I know both parties have their principles but both parties benefit if the dispute can be resolved before The Game.
I know I am naively looking for compromise in this polarized world.
This chaos will eventually come to full conclusion when the NCAA implements headsets in helmets and most likely comes to allow any and all digital information to be used by teams in scouting regardless of how it I acquired.
November 12th, 2023 at 9:42 AM ^
it's possible I missed a memo, but isn't the Commish only allowed to impose more than 2games with the support of a vote by the Joint Exexutive Group (or whatever its actual title is)? and isn't that vote supposed to be public?
I might have one, or both of those things wrong. but if not, then it seems a negotiation down to two games would be pretty reasonable, given it's what the rules actually limit TP's actions to.
I welcome correction/enlightenment if I'm wrong here.
November 12th, 2023 at 9:49 AM ^
According to TP, he got the approval of the JEG to impose the 3 game suspension. He also held out the possibility that additional punishment could be imposed should "additional facts come to light."
This is where it gets a little murky (and capricious). Let's say Michigan runs the table and makes the playoffs. Do some "additional facts" suddenly come to light and the suspension get extended through a semi-final and/or championship game? It's certainly possible (and - in my most balanced, measured view) that stupid fuck of a commissioner would probably do it.