What can we expect on Friday? A request for MGoLawyers
I have tried to mine this information from other threads but it seems there is even a discrepancy if this is a TRO (delayed ruling from Saturday due to overly aggressive asshattery from B1G) or a Preliminary Injunction (PI) hearing.
I am hoping maybe we could consolidate legal opinions about Fridays proceedings.
This could also serve as a place for snowflake questions for us amateurs. This should work for at least 12 minutes till it gets pushed off the front page.
1) Might this be televised? Open to the public? Could we send in someone with a iPhone and livestream?🤔
2)What does the proceeding look like? Judge Judy is going through my head. “One” representative from each side and the judge ultimately breathes the B1G for their felonious approach to “leadership”?
3) Might there be witnesses called? Could Harbaugh or Tone PeTitties or players be called upon to share why this matters?
4) Will we know immediately or will judge send out a ruling on paper at a later time?
I am not a lawyer, but I have been part of the process for filing an amicus brief so I got that going for me.
thanks to all the brilliant people who will help. And also thanks to all the armchair lawyers who will make this a 4 page thread of Snark to sift through. You are my fucking family and I love the shit out of all of you!
Bet〽️
November 13th, 2023 at 8:49 AM ^
From what I've gathered from all the lawyerly comments, the TRO was effectively denied, and the hearing on Friday will be for a PI.
November 13th, 2023 at 9:05 AM ^
One of the main reasons I posted this thread.
From what I am gathering the B1G requested(by hiring a local Ann Arbor Lawyer) their side get heard before a decision on the TRO was made. So now the TRO hearing is set for Friday. (See XM comment below)
Eager to learn.
November 13th, 2023 at 9:19 AM ^
Hopefully finding a local attorney in Ann Arbor who was not a Michigan fan was impossible.
November 13th, 2023 at 9:26 AM ^
The lawyerly talk suggests that's not how TROs work. The other party can't request to get "their side heard."
November 13th, 2023 at 9:43 AM ^
A lot of information about this in an earlier thread:
November 13th, 2023 at 10:08 AM ^
The court declined to hear Michigan's petition on an ex parte basis, but that's not the same as saying that it denied the TRO.
A Temporary Restraining Order (TRO) hearing is an ex parte proceeding, meaning, one party rather than both. It's extraordinary relief for very limited use--essentially, only when the harm is so imminent and dire that it is necessary to hear one party and grant relief without even allowing the other party to be heard. Picture a domestic violence circumstance in which a spouse is under physical threat, fears for their life, and needs a court order for the police to remove the abuser and issue a stayaway.
The American justice system typically wants to provide the opportunity for both sides to be heard. This being a business relationship where both sides are represented, it was unlikely for a judge to hear and grant a TRO.
A Preliminary Injunction (PI) acts the same as a TRO and the court reviews the petition under the same four-part standard as a TRO. The difference is that both sides get to be heard.
By choosing to schedule the PI hearing, the judge in this case signaled that she wasn't inclined to grant extraordinary ex parte relief, but that's not the same as saying that she denied the TRO or will deny the PI. She simply wanted both sides to be heard.
November 13th, 2023 at 11:10 AM ^
With thanks to @BlueSince89 for prompting me to look for it, On3 posted the university's Complaint and petition for injunctive relief. Posting here for general reference.
Reading the Complaint answers the question I raised below: what document constitutes the contract between the University and the Big Ten that the University alleges the Big Ten breached?
Answer (Paragraph 66 at page 18 of the Complaint): "The Conference's Bylaws and Handbook constitute a contract between parties including Michigan and the Conference."
The legal authority the University cites in its petition in support of that assertion is ... light, although I haven't read the cases. And the citations for quasi-contractual relief (i.e. promissory estoppel) is also light. That could be because the attorneys needed to pull together their brief in a hurry, or--more likely--it's just not a circumstance that has prompted a lot of published case law.
I don't think the contractual (or quasi-contractual) issue is a clear loser for the University, but it does still give me some pause.
November 13th, 2023 at 11:33 AM ^
Here is what I could find in three minutes of a quick Westlaw search. Obviously caveat is that (1) I haven't scoured the Big Ten documents in great detail and (2) I did not read this case that closely, but the proposition that by-laws constitute a contract seems pretty well-settled unless something specific in the Big Ten by-laws/governing documents disclaims that.
First, MEC's Constitution and Bylaws establish a binding contract between MEC and Urbana University. “The ... by-laws are agreements between the corporation, its shareholders, and the state that grants the corporation authority to operate.” In re Health Diagnostic Laboratory, Inc., 557 B.R. 885, 896 (Bankr. E.D. Va. 2016). “It is well established that the formal bylaws of an organization are to be construed as a contractual agreement between the organization and its members.” Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343, 361 (D.C. Cir. 2005) (internal citation omitted). “[T]he Conference Bylaws constitute[ ] a contractual agreement between the Parties.” Rutgers, The State Univ. v. Am. Athletic Conf., No. 12-7898, 2013 WL 5936632 at *8 (D. N.J. 2013); see also Compton v. Alpha Kappa Alpha Sorority, Inc., 64 F. Supp. 3d 1, 16 (D.D.C. 2014) (finding “[an] [organization's] Constitution and Bylaws form a contract between that [organization] and its members.”).
On November 30, 2012, Urbana University, a charter member of the MEC, “agree[d] to abide by the bylaws of the conference including the paying of dues for conference membership” by Stephen Jones' signature, Urbana University's former president. ECF No. 51-1, MEC_508; ECF Nos. 51-3, 51-4. The commissioner of MEC, Reid Amos, also signed the agreement. ECF No. 51-1, MEC_509. Urbana paid annual membership dues to the MEC from 2014 through 2019, totaling $150,000.00. ECF Nos. 9-2, 9-3. Therefore, a valid, enforceable contract existed between Urbana University and MEC.
*5 Undisputed evidence shows that Franklin University is a successor corporation to Urbana and is therefore bound by the MEC Constitution and Bylaws. Asset purchase agreements can expressly disavow or assume debts and obligations. See Cather v. Seneca-Upshur Petroleum, Inc., No. 1:09cv139, 2010 WL 3271965, *1, *3 (N.D.W. Va. Aug. 18, 2010) (“An agreement by a corporation to purchase another corporation's assets and assume its liabilities makes the purchaser liable for the other's debts.” (citing Davis, 420 S.E.2d at 562); Jordan v. Ravenswood Aluminum Corp., 455 S.E.2d 561, 564 (W. Va. 1995) (finding the purchaser “did not expressly or impliedly assume the debts or obligations” when the Asset Purchase Agreement specifically stated the purchaser “does not assume, and shall not be obligated to pay, perform or discharge any debts, liabilities or obligations of [the purchased entity].”).
Mountain E. Conf. v. Franklin Univ., No. 1:21-CV-104, 2023 WL 2415277, at *4–5 (N.D.W. Va. Mar. 8, 2023)
November 13th, 2023 at 1:50 PM ^
Again, super-helpful, @BlueSince89!
For the non-lawyers here:
What @Blue did was check an online database of cases for rulings that discuss the idea that an association's bylaws constitute a contract between the organization and its members. The Westlaw database is comprehensive, but searching it to find just the right prior case discussion for the applicable law for one's current case can be an art form.
@Blue performed a quick-and-dirty search that turned up some federal cases outside of Michigan that tend to support the principle that an association's bylaws are contractual. That's helpful for Michigan's position.
Some caveats:
- None of the cases cited are binding Michigan state law precedent (although none cited appear to run contrary). That means the trial judge in Ann Arbor isn't bound by these other cases, although they may be persuasive.
- Apart from the Meshel case, none of the cases cited appear to be above the trial court level, either. Again, that's not a knock against Michigan's position--just an indicator of the relative strength of the precedent. Having said that, the federal Circuit Court of Appeals for the D.C. Circuit is a very prestigious and influential court, and one could do far worse than have a D.C. Circuit opinion in one's favor.
- @Blue is doing us all a big favor by quickly checking the database. A thorough analysis would review the entirety of the cases cited, as well as the history of other courts discussing those cases--all of which is also available through the Westlaw database. This is why junior attorneys get paid lots of money to read and digest case law.
In any event, that's helpful to my understanding and to Michigan's position! Thanks!
November 13th, 2023 at 2:27 PM ^
One thing that would be interesting to do some more research on is does the Handbook qualify? In employee manuals/handbooks., you'll often see a disclaimer that they are not a binding employment contract and can be changed at any time without consent. You can't enforce that because it's illusory. If it's solely in your discretion to change the terms of the relationship, you as the employer are not really bound to anything while the employee is. If I had more time, I'd scour the handbook.
November 13th, 2023 at 8:49 AM ^
Pettiti is calling twitter user @sparty_dawg47792 as a witness to support his claim that Michigan put players in danger.
November 13th, 2023 at 9:32 AM ^
That's bull crap!!! Football is an inherently dangerous sport to begin and all participants are supposed to play within the rules. Because you might know someone's signs doesn't mean that your players are going to play dirty. In fact, we are one of the least penalized teams in the country, so to say the players are in more danger because someone knew what they were going to do is an absurd assumption, that can't be proven. P. State knew what we were going to do when we ran the ball 32 straight times and none of the players were in any more danger than if they had not known what we were going to do. They simply couldn't stop a better team.
November 13th, 2023 at 9:41 AM ^
Ease up, that was sarcasm...
November 13th, 2023 at 10:28 AM ^
Hey man. Take it up with @sparty_dawg47792, not us.
November 13th, 2023 at 12:22 PM ^
Aside from Sparty, I was responding to the commissioners assertions that somehow knowing a teams signs, poses a danger to the other team. I just don't see a real and tangible connection. Maybe I'm just missing the how the two connect. Because every team scouts for the purpose of uncovering their opponents habits and/or plays, the argument Sparty and the commissioner makes is tenuous at best, unless their admitting that all scouting and uncovering of your opponents signs poses a danger to all opponents.
November 13th, 2023 at 6:51 PM ^
The health and safety thing is obviously bullshit and everyone knows it. Here's the list of people who have even mentioned it:
- Petitti
- Haller
- Matt Rhule
- College Football Nerds Twitter
To my knowledge, no one else has even mentioned it. Maybe some people here or there, but no one I have come across.
Think of all of the people who have been ripping Michigan. All the talking heads, all the articles, all the handwringing that's gone on for three weeks and no one is even bringing it up because it's so dumb.
November 13th, 2023 at 9:00 AM ^
TRO not denied. Ruling pending until hearing on Friday.
could be zoomed, need to contact the court.
testimony possible but very unlikely.
many judges rule from the bench but given the enormity of the case I would expect a written opinion issued very quickly, before the game possibly.
November 13th, 2023 at 9:06 AM ^
Thanks. Apparently you're the only one taking this post serious.
Does anyone have any insight on whether they believe we have a chance or what the likelihood is that it's granted? 20/80 or 50/50?
November 13th, 2023 at 9:14 AM ^
Hard to say. I think our case is strong, but I also expected the TRO to be granted before Penn State. The judge could have granted it before Penn State if he wanted to, even with the Big Ten getting local counsel. My inner pessimist says that indicates he's skeptical of some part of our argument, perhaps irreparable harm or perhaps our likelihood of success on the merits. I'd put it at 30/70 right now, not in our favor, but would be happy to be proven wrong.
Also, while the TRO has technically not been ruled on yet, punting it to Friday was effectively a denial, and I would expect the hearing on Friday to determine the PI.
November 13th, 2023 at 10:12 AM ^
I think that the "irreparable harm" is obvious. Four of Michigan's five closest games (scorewise) have been the games that Harbaugh missed. Since they are playing for conference and national championships the margin for error is slim. Missing Harbaugh could directly impact Michigan's ability to win the game. I'm a little concerned about the success on merits....but the University has made a reasonable case.
This doesn't even begin to address the harm to Harbaugh's reputation....particularly when the NCAA has stated that they have not found a connection between him and the potential rule violation.
November 13th, 2023 at 10:55 AM ^
I mentioned this on another post last night, but I don't think irreparable harm will be "obvious" to the court at all. W&C included in its filing on Michigan's behalf a study by the U-Chicago on the impact a head coach has on game outcomes. The motion quoted statistics from the study. That's some pretty weak sauce if we're basing our claim upon it, and if it's the best that a well-compensated team of experienced attorneys can muster, doesn't give me much confidence that irreparable harm can be proven.
November 13th, 2023 at 11:23 AM ^
What were they supposed to cite in support of the argument? It seems obvious to anyone who knows football that the head coach is important to the outcome, but that is almost impossible to quantify and it is not like there is any legal precedent they can cite, so citing a U of C study seems as good as any available support they could use.
November 13th, 2023 at 11:36 AM ^
I don't think it's obvious to everyone: the betting line never moved in response to the legal process. It stayed stuck at 4.5 through the announcement of the suspension, the request for the TRO, Harbaugh not boarding the bus.... Had either bookmakers or bettors thought there was even a point's worth of difference in it we would have seen some line movement.
November 13th, 2023 at 11:36 AM ^
Exactly, and also bear in mind that the Big Ten has implicitly conceded that suspending a head coach causes harm -- otherwise, why would it be an "institutional penalty"? The Big Ten framing the suspension as an institutional penalty, instead of an individual penalty, is bullshit, but it should help us on the harm prong.
I personally think the irreparable harm prong is pretty strong, and it's the likelihood of success on the merits prong that is trickier. Courts are reluctant to wade into sports bylaws disputes, especially when the bylaws are vague. Our strongest arguments, in my opinion, are (1) the Big Ten's admission it has no evidence against Harbaugh so it absurdly attempts to argue the suspension is a team penalty, not a penalty against Harbaugh and (2) the text and precedent showing the Sportsmanship Policy is not supposed to be used to punish for NCAA violations, particularly before the NCAA investigation has even concluded.
But reasonable minds may disagree, and ultimately it only matters what the judge thinks.
November 13th, 2023 at 12:35 PM ^
Your comment is exactly my point; i.e., if not a U-Chicago study, what were they supposed to cite? In other words, we're claiming irreparable harm but can't quantify it's impact or likelihood beyond an academic paper and a few statistics. "We might lose" just doesn't doesn't strike me as being a particularly compelling argument, and the reality is that I can't think of a better one. Worst of all, neither can anyone else.
November 13th, 2023 at 10:43 AM ^
45-23 in our favor.
November 13th, 2023 at 9:16 AM ^
Agreed with all of this. As far as media/televised coverage, media needs to make a formal request with the court. Otherwise, they can just sit in and take notes. Public cannot bring phones or other devices into court and even attorneys cannot record. If you're a local and you want to go watch, go for it. But absolutely do not try to record or do something nefarious.
November 13th, 2023 at 9:20 AM ^
Unless something has changed recently, you aren't even allowed to bring a cell phone into the building.
November 13th, 2023 at 10:31 AM ^
Attorneys can. No one else can. I think they have lockers you have to keep stuff in. That way if you're taking public transit and going somewhere else after, you don't have to leave your phone at home.
November 13th, 2023 at 9:48 AM ^
But IF you do record, be sure to use a vast network of agents spread throughout the courtroom.
November 13th, 2023 at 9:16 AM ^
Why wait until Friday, the day before our next game, to do the hearing? It leaves no time in case there are issues. There are four other work days this week where it could happen. I can procrastinate with the best of em, but this seems silly.
Then again, I know nothing about this legal process so I could be off base.
November 13th, 2023 at 9:47 AM ^
Why wait? Maybe because that’s the 1st opening on the calendar?
I’m not a lawyer, but I’m following a trial in NY. Mon-Thurs, 10 to 4 or 5. Half day on Fri. Doesn’t give a judge many openings if something else comes up.
& in non-trial weeks there are hearings for other cases in the queue, briefings to read, rulings to write, etc. & I’m sure other things that I have no visibility into. Oh, I forgot jury selection if that’s applicable in this court
November 13th, 2023 at 1:16 PM ^
Agreed about the court's schedule.
No jury for a hearing on a motion for a TRO or a PI.
November 13th, 2023 at 9:51 AM ^
Assuming it probably has to do with the judge and her docket for the week.
November 13th, 2023 at 10:32 AM ^
A week is pretty normal time. Gives the other side a chance to get their briefs in and for the judge to read and digest. They also have other matters pending before them. Criminal cases will always take priority.
November 13th, 2023 at 11:19 AM ^
You know the wheels of justice turn slowly.
November 13th, 2023 at 11:25 AM ^
Yea that was concerning to me as well, both in terms of the practical effects which you mentioned, but also that it seems to signal that the court is not all that worried about the potential harm to Michigan and/or their likelihood of success.
November 13th, 2023 at 9:17 AM ^
judge constructively denied the tro already though by pushing it back a week and waiting for the other side to appear and be heard. That makes it more just an injunction hearing. M and Harbaugh (like anyone seeking tro) wanted the judge to grant an ex parte tro and then have the PI hearing later. some judge's protocols have that they will never even consider ex parte tros but for very rare circumstances -- and this one may not have met that standard to even have been looked at.
November 13th, 2023 at 9:28 AM ^
For Mopery.
November 13th, 2023 at 9:47 AM ^
What about this guy?:
November 13th, 2023 at 11:00 AM ^
NOT wanted.
Fire his sorry ass into the sun.
November 13th, 2023 at 11:53 AM ^
More like UNWANTED amirite?
November 13th, 2023 at 1:35 PM ^
Pinata farms remembers
November 13th, 2023 at 9:02 AM ^
Oh and on a lighter note, the troglodytes on RCMB have been raging for the third day straight now. They believe public executions are in order for anyone involved in U of M football.
November 13th, 2023 at 9:07 AM ^
After what we did them to few weeks ago, I would have figured that they'd had their fair share of public executions.
November 13th, 2023 at 9:22 AM ^
Anyone who normally hates Michigan has elevated this to crime of the century status, and is unwilling to see it from any other perspective.
November 13th, 2023 at 9:45 AM ^
If there’s no writ you must acquit.
November 13th, 2023 at 9:38 AM ^
I'm done caring what other people think about us. We'll just keep winning until they shut the fuck up.
November 13th, 2023 at 10:25 AM ^
They will never shut the fuck up (especially the RCMB bros) so I guess we'll just have to keep winning that whole time.