Some lawyers like to say that predicting what a judge will do is a fool’s errand, perhaps because every practicing lawyer I know has been completely baffled or burned by a judge’s decision. Part of this is due to the fact that lawyers take a side and advocate for it, and once you take a side, that influences your perception.

Part of it is also due to the fact that at the end of all decisions, as I tell clients, there is a person and a judge is a person. People make decisions for all sorts of reasons. “Two people can see the same thing, disagree, and yet both be right. It's not logical; it's psychological. And it's very real.”

Nonetheless, I’ll play the fool and give a prediction along with my reasons. Judge Connors is going to dismiss The Board of Regents of the University of Michigan and James J. Harbaugh v. The Big Ten Conference, Inc. and Tony Pettiti, 23 Civ. 001419 (Washtenaw Cir. Ct. Nov. 11, 2023)

I don’t think there is a greater than 50% chance of dismissal happening, but I do think that it is the most likely outcome (say 30-35%%).

First, let’s take a look at the complaint:

[Link to the complaint: https://on3static.com/uploads/dev/assets/cms/2023/11/10205408/Michigan-Complaint.pdf]

The Regents and Coach Harbaugh assert seven claims: (1) breach of contract based on the rules of the Big Ten’s handbook, (2) breach of contract based on the convenience of good faith and fair dealing, (3) in the alternative (if there is no contract), breach of promissory estoppel, (4) breach of fiduciary duty, (5) breach of contract based on the Big Ten’s handbook rules by alleged third-party beneficiary Jim Harbaugh, (6) Big Ten’s intentional interference with the contract that is between the University and Jim Harbaugh, and (7) invasion of Plaintiff Harbaugh’s privacy by placing him in a false light in the public eye.

Of these claims, I think the breach of contract based on the Big Ten’s handbook rules is the strongest. Perhaps later, I’ll talk about why I find the other claims to be weaker (and some, in fact, are just weak).  But I want to stay focused on the breach of contract claim based on the Big Ten’s rules in the Big Ten handbook because the moment I focus on this claim, I have one question: What state’s law applies?

Interestingly, unless I am missing something, the complaint does not make an allegation that the state of Michigan’s law applies. Nor does the brief in support of the temporary restraining order:

[Link to the brief: https://on3static.com/uploads/dev/assets/cms/2023/11/10205520/Michigan-TRO-Motion-Brief.pdf]

Now, maybe Michigan law applies to the contract, but that would mean for the other schools in the Big Ten the laws of Maryland, Michigan, and Ohio, Pennsylvania, New Jersey, Illinois, Iowa, Minnesota, Indiana, and Wisconsin depending on where the school is located.  No one has to be a lawyer to grasp why this would be a strange and perhaps undesirable result for a “contract” with the Big Ten.

A more likely outcome is that the law of the state of Illinois apply because that is where the Big Ten is located.  In particular, the “Big Ten” is a non-profit corporation whose full name is Big Ten Conference Inc. incorporated under the laws of Delaware and headquartered in Rosemont, Illinois.

If that corporate entity did form a contract with the 14 schools in the Big Ten, I would think that Illinois law would control.  Of course, maybe not.  I’ve certainly seen courts interpret the law of multiple jurisdictions when deciding a case.  But I hope that you intuitively get why Illinois law is the most likely outcome.

Now, there is another question:  why wasn’t this case filed in Rosemont, Illinois, where the Big Ten corporate entity is located?  Or to be specific, District 3  of the Circuit Court of Cook County (i.e., the Rolling Meadows Courthouse)?

This question is particularly important if Illinois law applies.  State courts can, and do, apply the law of other states.  But everyone should intuitively get why Illinois courts should be the presumptive choice in applying Illinois law to a contract – at the very least those courts have more experience and knowledge about applying Illinois law.

Or, to get the very important question, why shouldn’t this case *now* be decided by a judge in the Rolling Meadows Courthouse in Illinois to resolve their dispute?  The problem is that a Michigan court cannot transfer a case to an Illinois court.  But a Michigan court can dismiss the case under a doctrine called forum non conveniens.

"Forum non conveniens" is a legal doctrine that allows a court to dismiss a case if it determines that another forum (i.e., jurisdiction or court) is more convenient and appropriate for the resolution of the dispute. The idea behind this doctrine is to prevent the unnecessary burden on a particular court and to promote the interest of justice by having the case heard in a more suitable location.

In practical terms, a defendant may request a dismissal based on forum non conveniens by arguing that there is another court or jurisdiction where the case can be more effectively and fairly adjudicated. The Court considers factors such as the convenience of the parties, the location of witnesses and evidence, the applicable law, and the overall fairness of having the case heard in a particular forum.

The leading case on forum non conveniens in Michigan is Cray v. General Motors Corp., 389 Mich. 382 (1973), where the Michigan held that the doctrine was part of Michigan law its application should lie within the discretion of the trial judge.  And then later the state’s Supreme Court held that although “a court can and must consider the residence of the parties in deciding whether to decline jurisdiction[,]... a party's Michigan residence does not automatically render the doctrine of forum non conveniens inapplicable.” Russell v. Chrysler Corp., 443 Mich. 617, 624 (1993).”

So, you can have one party (the Regents and Coach Harbaugh) residing in Michigan, and a Michigan court can still decline jurisdiction. In Cray, the Michigan Supreme Court gave a bunch of factors to consider in deciding a motion to dismiss on the basis of forum non conveniens, and those factors have been developed in subsequent case law. I’ll paste them below.

For now, I want to emphasize that the judge here has more than enough "discretion" to dismiss this case and tell them to go to Illinois, and I highly doubt that any appellate court will overturn it.

Why is the court going to decline jurisdiction here? Because you and I are insane.

You – the person who is reading this whole post about what this website is now calling “The Stupidest Season In The Stupidest Sport.”

Me – the person who just spent more than a few hours of billable time thinking and writing about this case when I have other stuff to do.

Other insane people include everyone who keeps refreshing the blog (including me) to see if there are any updates and reading the three diary posts on the legal arguments:

Questions for MgoLawyers on Fridays hearing

Why wasn't the TRO granted, and

Are we using the correct arguments to defend our stance?

The Regents who hired a law firm that had a book written about them entitled, “Masters of the Game: Inside the World's Most Powerful Law Firm,” and who will now doubt have the University spend at least $500,000 on this lawsuit. And, honestly, I expect at least two million dollars to be spent if the case were to drag out.

- And this insanity is not just our fan base but the fans everywhere not the least of which is Penn State, Michigan State and Ohio State.

The point when it really dawned on me that the Judge doesn’t want to get embroiled in this situation was after I read, or thought I read, on this website at 3 a.m. Friday night/Saturday morning that the judge *had* granted the TRO (yes, I woke up at 3 a.m. and checked the website because I was “curious”).

My next thought was, what happens if Penn State ignores the order and prevents – with security – Coach Harbaugh from going into the stadium? After all, there are only two parties to the lawsuit – the Big Ten and the Commissioner. The order would have been issued ex parte (meaning the other side had not even appeared) and probably didn’t have jurisdiction over either out-of-state party yet. More certain is that the court absolutely did not have power over a school or a single person in Happy Valley.

What if Penn State just said “no, Harbaugh is not coming in”? I mean, if I were a lawyer for Penn State, I would tell them they could just bar Harbaugh, and there is nothing anyone could do about it. After all, they have a direction from the Commissioner of the Big Ten. That gives a good enough reason. Nor would there be any consequences from any court anywhere if they did just lock Harbaugh out. To be honest, there would be a good chance that Harbaugh could get arrested if he tried to force his way in after being told to leave the stadium. What would the Big Ten do to Penn State for following the Commissioner’s directive? Meanwhile, the officer who arrested Harbaugh would probably be voted the next Lieutenant Governor of Pennsylvania.

Once I had the vision of Harbaugh holding a printout of a court order from a Washtenaw County Court demanding to be let into a stadium in another state outside a locked gate or being arrested, I was a bit relieved that he wasn’t going to try. And I wasn’t surprised that the nincompoops saying a TRO had been issued were wrong.

This is also why I don’t think that the judge in this case is going to issue a TRO before next Saturday. The next game is in Maryland. What happens if Maryland decides not to honor the judge’s order? The judge can’t punish anyone in Maryland for doing what Maryland wants to do regardless of an order restraining the Big Ten and the Commissioner. And, to be honest, why wouldn’t Maryland seriously consider just telling Harbaugh that if he goes into the stadium, he’ll be arrested? There wouldn’t be any love lost. Moreover, I would think it would massively get into the football team’s head if their coach was hauled off in handcuffs right before the game against Maryland.  Because I think everyone (including me) is insane, I consider this a real possibility. 

If I am the judge, I don't want to issue an order that a university in other jurisdiction thumbs its nose at.  Since Marbury v. Madison, courts have been sensitive to not issuing orders that will be ignored.

That leaves one other game: The Game. At Michigan Stadium. If the judge issues an order restraining the Big Ten and Commissioner from the punishment, it is more than obvious that Harbaugh will be allowed in Michigan Stadium in Washtenaw County.

But at what cost? This judge is going to have to deal with two heavyweight law firms (Sidley Austin and Williams & Conley) arguing over everything for the next 18 months. Issuing the order doesn’t end the case – it keeps the case alive. What a headache, and what a headache in the midst of potential insanity at every moment.

Under these circumstances, I just think there is a good chance the court says: Sorry, but you should have sued in Rosemont, Illinois, since I think Illinois law applies to almost all the claims if there is a contract. A week later, the case will largely be moot because Harbaugh will have served his three games, and maybe the whole case will go away or so a judge might hope. (The only claim to which Michigan law applies is the alleged invasion of Harbaugh’s privacy, and I think this is a very weak claim that is likely to get dismissed regardless of the court).

So there is my prediction. The judge is going to get rid of this case, and there is a doctrine that allows him to tell the parties that they picked the wrong jurisdiction.  They can always go to Rosemont, Illinois, or do whatever they want.  But under the doctrine of forum non conveniens, it must be dismissed.

That’s what I think the judge will do because that’s what I would do if I were the judge.

-- end

-- post script:  shout out to the lawyer who had his work used by Jim Harbaugh's lawyer:  

https://mgoblog.com/mgoboard/mystery-solved-i-wrote-mgoblog-diary-used-harbaugh%27s-big-ten-letter

https://rushingmccarl.com
 

Here are the factors for forum non conveniens

1. The private interest of the litigant.

a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;

b. Ease of access to sources of proof;

c. Distance from the situs of the accident or incident which gave rise to the litigation;

d. Enforcibility [sic] of any judgment obtained;

e. Possible harassment of either party;

f. Other practical problems which contribute to the ease, expense and expedition of the trial;

g. Possibility of viewing the premises.
 

2. Matters of public interest.

a. Administrative difficulties which may arise in an area which may not be present in the area of origin;

b. Consideration of the state law which must govern the case;

c. People who are concerned by the proceeding.
 

3. Reasonable promptness in raising the plea of forum non conveniens.