Barb McQuade tweets on the TRO

Submitted by Wendyk5 on November 17th, 2023 at 9:53 AM

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. 

mGrowOld

November 17th, 2023 at 10:05 AM ^

Intellectually I know she is right.

Emotionally i’m crushed.  We had the stage set to make our case for the public and didn’t even try.  Win or lose the TRO was irrelevant to me, we had the venue and the whole football nation watching and waiting to hear what we had to say.

This tells me one of two things:

1. We know there’s more bad stuff

2. We’re cowards

 

mGrowOld

November 17th, 2023 at 10:22 AM ^

I hear you Eric but how much value to winning is there in having the team super pissed off because that’s prolly gone.

How much value is there to their pride in knowing the school fought to keep their HC on the field?

You think Sherrone Moore gives that same post-game speech on Saturday?  I don’t, yesterday’s surrender wiped those emotions out IMO.

Vasav

November 17th, 2023 at 11:20 AM ^

As most older folks tell every young man, "backing down from a fight doesn't mean you'd lose and doesn't mean you're weak - it means your best options are not to fight." I'm not thrilled with backing down, but also understand there's a lot we don't know, public perception is fleeting and on-field wins and losses mean the most. What Michigan also claims is they've mitigated any damage from the big ten - even if we thought we were right, the actions and statement from the league show a pettiness that implies they'd have continued to try to sanction us, win or lose in court. As for public perception, we'd never change the mind of trolls like Finebaum, Wasserman or Mandel who have a narrative in their head and refuse to budge from it no matter the facts that came out last week. It's not a great leap to see a court battle as just an effort to prove a point, but its a point that all of us already believe and anyone who doesn't believe would never believe - it's a pissing match. Two 20-something peacocking in the parking lot next to a bar. Instead, we decided to leave the parking lot and dance with the girl in the bar, aka do our winning and battling on the field, not in the courts. Weakness, playing to our advantage, getting what we really want? 

ESNY

November 17th, 2023 at 10:15 AM ^

She said it perfectly - the lawsuit was about the lack of due process not about the underlying facts. Nothing we could've said would've done anything as far as the allegations. It would've been 1) Big Ten violated bylaws; and 2) we've suffered irreparable harm. The underlying conduct wasn't at issue and doubt the judge would've let much in edgewise.

Amaizing Blue

November 17th, 2023 at 10:19 AM ^

MGrow, I think there's a #3 possibility.  That would be that someone-Harbaugh, the Regents, whoever-wanted absolute certainty that this team would be able to play in the Big Ten Championship Game and also the CFP.  If they kept pushing and Pettiti got angry about it, there was a non-zero chance he could ban them from one or both of these things.  Whether he had the right to is another question-but then we're back in court, on a strict timetable.  

I wanted us to blaze away and take our best shot as well-but all that satisfaction would have turned to ashes if OSU was the end of our season.  I hate it, but I'm not wasting any more energy thinking about it.  Beat Maryland, Beat OSU, then on to Indy with Coach Harbaugh taking us the rest of the way.

FreddieMercuryHayes

November 17th, 2023 at 10:21 AM ^

I think the other option is that they just thought they were going to lose.  Or would not win in a timeframe that would have mattered.  If it's about due process they could still bring some sort of litigation down the road and seek some monetary damages from the conference.  And I hope they do!  But a TRO is first temporary.  And if a TRO was granted, you still have to have a full hearing.  So UM gets a TRO, Harbaugh gets to coach Maryland and OSU, then UM loses at the full hearing?  Then Harbaugh has to sit the conference champ game (if they beat OSU) and a playoff game?  Maybe they just decided to get it overwith and if they come out the OSU game with a win, then this is over and UM is in a better place.  But yeah, I hope this isn't the end with the due process thing.  They can still persue other litigation concerning that later.

goblue_in_colorado

November 17th, 2023 at 10:57 AM ^

I'm not saying this is what happened, but if I were Michigan, I would want ways to minimize the likelihood of future overreach by the commissioner. If so, then it's possible that part of this was some conversation about clarifying/updating the sportsmanship policy rules in the future to more clearly delineate appeals processes and boundaries around what the commissioner can and can't do.

That is a gaping loophole that needs to be revisited.

Teambizy

November 17th, 2023 at 11:08 AM ^

Your take makes the most sense to me.  I have to believe UM and coach took the suspension because it keeps him on the sidelines for the conference championship game and playoffs.   Let’s face it, this team didn’t need any extra motivation to monkey stomp ohio like they have the past two years.  This team is going to roll ohio next week, and we can all stand by the mouth of the river and watch the bodies float by. 

Denard In Space

November 17th, 2023 at 10:24 AM ^

One thing I've been thinking about is how the narrative now includes the regents stepping in. Whether true or not, it made me think of a bigger picture: the university of Michigan operates with an $18 BILLION dollar endowment. That is an enormous economy. It wouldn't surprise me if there was some cold-ass calculation about how a major media lawsuit would affect that, even 1% is $180 million dollars. 

Rick Sanchez

November 17th, 2023 at 10:34 AM ^

^^ This ^^. I've seen it happen it business. Every large company has a risk management group that weighs all the pros and cons of every highly public situation to determine what will have the most positive/least negative impact on the entire organization. I think that's what happened here.

I still wanted us to fight, but that's why I wasn't in risk management!

ColoradoBlue

November 17th, 2023 at 10:24 AM ^

or 3... people like her were advising decision-makers at UM who decided to make a level-headed call that will be viewed in a much better light when we are free-and-clear and playing for a national championship.

Losing the TRO is not irrelevant.  Our predicament would end in the same situation, and we would NOT be free-and-clear of the BIG.  I'm guessing this action will also help when the NCAA decides on punishments.

bluesparkhitsy…

November 17th, 2023 at 10:38 AM ^

This is exactly it.  The hearing on the injunction (not really the TRO at this point since a TRO requires no hearing and effectively was tacitly denied last week when the court decided to wait a week and conduct a hearing) was not about the merits of the allegations.  The court wouldn't hear and wouldn't decide any of those issues at this hearing.  We know -- to a near certainty -- that Michigan wouldn't have won the TRO.  Had Michigan not achieved this deal, Harbaugh is still suspended for the same games, but the investigation continues along with the potential for future punishment, including this season.  Michigan traded nothing (except Twitter arguments) and gained something tangible.  That's it.

This in no way means that anyone learned of something bad that we didn't already know.  That's certainly possible, but Michigan would have taken this deal either way.

FB Dive

November 17th, 2023 at 10:25 AM ^

The TRO hearing was not going to be our soapbox. The lawyers would have argued about the legal requirements for a TRO and most of it would have been legal gibberish to a lay audience. And we were likely to lose. If we had gone through with it, all the public would have seen was us making technical legal arguments and getting shot down by alum judge who played on the football team. That is not how you win a war of public opinion. If the reports about the Big Ten agreeing to close its own investigation with no more penalties are accurate, then this was the right call.

FB Dive

November 17th, 2023 at 10:40 AM ^

Hence why I said "if." The Big Ten's statement does not mention closing the investigation, but it also does not contradict Michigan's statement. And other reporters have said the conference is done levying penalties, at least until the NCAA investigation is finished. 

The Big Ten's statement was their victory lap. They weren't going to acknowledge any concessions, so I wouldn't read too far into it. It would be bizarre if Michigan publicly stated the Big Ten agreed to end the investigation if it did not in fact agree to do so.

Wolverine In Exile

November 17th, 2023 at 10:48 AM ^

And this is why you continue to fight and extend out the process. force the B1G to be transparent in how they came to the conclusion. Force the narrative back on the mob justice. Delay delay delay if you truly think you have a principled case. Even if you lose, you can change the trajectory of both public opinion, and potentially influence the obviously weak spined B1G leadership. Giving up now *and* allowing the B1G to issue that press release with that wording is just either gutless, or an admission that we knew something more that we were trying to hide. In either case, leadership heads need to roll. 

FB Dive

November 17th, 2023 at 11:06 AM ^

With all due respect, you are vastly overestimating how many cards Michigan had to play here. There was no way to "extend the process" or "force the Big Ten to be transparent" or "delay delay delay." And we didn't "allow" the Big Ten to issue the press release; they don't need our permission to speak.

If we hadn't settled, here's out it plays out:

1) Lose the TRO today. Harbaugh out for Maryland and Ohio State. The hearing itself is bland and boring, with no testimony and brief oral arguments from each side that focus on the legal requirements for injunctive relief. There is no Legally Blonde moment where we cross-examine the Big Ten and expose their hypocrisy.

2) Big Ten issues statement celebrating its victory and emphasizing that the judicial system has sided with them. I guarantee you this statement would be far worse than what the Big Ten said yesterday.

3) All the media outlets run stories about how an alumni judge ruled against us. The trajectory of public opinion is not "changed;" instead, it is entrenched.

4) Petitti considers additional punishment. Probably not an outright ban on the championship game, but quite possibly an extension of the suspension.

5) The lawsuit still dies because with Harbaugh having served his suspension, there becomes basically no point to continue the litigation.

 

ESNY

November 17th, 2023 at 10:34 AM ^

Amazing how few people get this. We are in no better or worse position on the underlying allegations today than we were 2 days ago.

We didn't admit the conduct and no one's mind would've been swayed either way. It would've been a technical argument about the Big Ten's ability to levy this punishment period. We wouldn't have been able to defend Michigan or Harbaugh from the allegations as that is not relevant to the issue in front of the court. Perhaps the appearance of fighting would make some alum feel better but everything I read seemed wishy-washy on the likelihood and timing after it wasn't heard/granted last Friday.

hfhmilkman

November 17th, 2023 at 11:12 AM ^

NE was in the same situation.  They chose to fight all the way.  They could have accepted the four fame suspension on Tom Brady from the very beginning.  They fought all the way because they believed they were being punished for an inflatable object having a lower pressure in cold weather.  Guilty parties and cowards settle.  We are one of them.  NE the football organization was neither.

ESNY

November 17th, 2023 at 2:16 PM ^

I realize this is now a moot point considering the recent developments, but the NE case is in now way similar to this. NE fought the finding. This litigation had absolutely NOTHING to do with the rules violation. The hearing would not have remotely touched under the underlying violation and that wasn't what was dropped  If you are still too blinded with rage you can't see that, I don't know what to tell you.

Brodie

November 17th, 2023 at 10:33 AM ^

Yeah I mean I think the fact that a staff member of the school did indeed violate NCAA rules is getting lost in the weeds of the whole fighting for due process thing.

It is entirely possible that there is more bad stuff out there, that other coaches knew, and that the eventual NCAA penalty is something more than the slap on the wrist we've all been assuming it will be. At the end of the day, the university wasting resources to win a PR battle is silly when we've already lost in the court of public opinion and likely would've lost in court too. It doesn't actually make us look smart or tough, it makes us look worse

DaftPunk

November 17th, 2023 at 11:13 AM ^

a staff member of the school did indeed violate NCAA rules 

May have.  In person scouting ban applies to staff.  Staff wasn't scouting.  NCAA investigation is pending and no findings of fact have been released.  It looks dirty, and "technically clean" doesn't wipe out the PR black eye, but punishment has preceded verdict, and that's not the American way, nor the B1G way according to their own bylaws.

WrestlingCoach

November 17th, 2023 at 10:46 AM ^

Or, as these tweets point out, we did not have as strong of a legal case as we all thought.

I recently had a scam contractor charge us double of what was quoted for a bathroom remodel, he took 4 times as long as he estimated and did some shotty finishigs. We had all of his work hours documented (1-3 hours a day), expenses documented, receipts, the official quote that we never signed to make it binding (half of the final invoice), documented all the inconveniences this guy caused our family, I mean my wife and I had this guy dead to rights. We refused to pay, tried to negotiate out of court to no avail, he placed a lien on our property so I said "BET!". Called up a lawyer and they said that my wife and I definitely had a case and would probably win but consider lawyer fees, time in court, time getting documents in order, the possibility of losing on a technicality and being out more money, ruining our summer plans to be in court, ect. ect...

After one week of saying "BET", I'm going to battle with this guy, my cooler head prevailed. We took our hit, learned our lesson, and enjoyed our summer stress free with a B+ new bathroom.

That's my analogy, albeit a crappy one. I bet the regents looked at this fiscally, or cooler heads prevailed after the competitive juices wore off.

Wallaby Court

November 17th, 2023 at 11:07 AM ^

Your experience is the exact problem Michigan faced. I summarized it generally below, but Michigan might be able to win this fight at an enormous cost. But its victory would be limited to the B1G's process, not the substance of the decision.

And it is easy for the B1G to regroup and try again. After losing, the B1G could just follow its process and come to the same result. Or it could find a new rules, rationales, and punishments until it swamped Michigan with more punishments than it could hope to challenge in court.

LSA91

November 17th, 2023 at 10:53 AM ^

I've kind of come around. Particularly if we can beat OSU without Harbaugh, the TRO might have been a pyrrhic victory.  We might have gotten this punishment lifted as lacking due process only to get a much worse one next year once the B1G got all its ducks in a row.

I don't like it, but if that's the case, I don't want to harm the team's long term prospects just to make a point.

Bluetotheday

November 17th, 2023 at 11:05 AM ^

I have to believe the team and university wanted to change the narrative and make it about the players, not defending the BIGs lack of due process. 
 

maybe this wasn’t a consideration at all but some times you have to move forward and not dwell on the past. Michigan wins the BIG, the outside noise is turned down, and the spotlight is on the players, as it should be. 
 

Go Blue- win the game ! 

1989 UM GRAD

November 17th, 2023 at 11:06 AM ^

MGrowOld, there is more bad stuff.

This is coming from a VERY connected major donor (someone who has personal relationships at all levels of the football and basketball teams...and the entire AD) to the athletic department.  (not me, a friend of mine)

EDIT:  Well, based on the Partridge news, looks like my source was accurate.  

mGrowOld

November 17th, 2023 at 11:33 AM ^

Nothing is sealed, we didn’t settle, we simply dropped the TRO which we had filed.  Whatever “it” is will be exposed during the official NCAA investigation I’m sure.  

Thank you 89 Grad, that explanation makes perfect sense to me and explains why we did what we did, nothing else (sorry MgoLawyers) made any sense at all.

 

Harlans Haze

November 17th, 2023 at 12:47 PM ^

It could mean that the Board of Regents simply don't want UM (or any employee) going to court over, in the end, football. UM does still have their educational institution reputation to protect (it can be argued whether this does that, or not). I think the proof will still be in a contract offer, or lack thereof. Perhaps they came to a deal that everything would be dropped in return for a contract to be signed in the next couple weeks (November 24?). I think, Harbaugh himself, would rather not drag the team (which they will be, in essence) through the court. If he knows he's coming out the other end, he's always been willing to take the slings and arrows coming UM's way. The chances seem pretty low that the Board would simply tell their President, AD, and celebrated and excoriated head coach to just go pound sand after taking it this far. It makes far more sense that they've been doing an internal investigation over the last week to make sure those who are clean, stay and working out the final details of the contract, with an out for any future NCAA action. I am fairly certain that the Board understand this was about the rest of the conference coming after their head coach. They just didn't want their defense to be played out in court (public). . 

Wallaby Court

November 17th, 2023 at 10:36 AM ^

After running through the possible outcomes, I came to a similar conclusion. Michigan lost when the court did not grant the TRO last Saturday. In the court's preliminary analysis, Michigan would not suffer an irreparable harm if Jim Harbaugh could not coach last Saturday. That result suggests that today's hearing would not result in a ruling in Michigan's favor. Indeed, Michigan may not have gotten any decision from today's hearing. I am not up to speed on Michigan's rules of civil procedure, but I think it plausible that the court could have held a hearing and decided to issue a ruling at later date, which could be a week or two or three later. In the meantime, the suspension would remain in place.

With this potential outcome looming, I think Michigan decided to settle to avoid winning a meaningless battle while committing itself into an unwinnable war of attrition. Again, I will admit that I have not comprehensively glossed the B1G's bylaws and rulebook. But what I have read suggests that the B1G has fairly broad discretion in deciding why and how to discipline its members. Michigan's primary argument seems to be that the B1G did not follow the right process. A Michigan victory and a preliminary injunction would just restart the process, which the B1G could follow to the same result. And the B1G's broad range of disciplinary options meant that it could continue to imposing new sanctions any time it wanted to chastise or get back at Michigan.

By agreeing to the current suspension and nothing more, Michigan may have decided that it was better to take this punishment and avoid an endless game of legal whack-a-mole as the B1G flooded the zone with endless punishments. It takes more energy for Michigan to challenge the B1G's punishments and refute the underlying basis than it does for the B1G to impose them. Michigan just took its best legal shot at the B1G and came up a bit short. I am not sure Michigan could sustain the energy necessary to keep suing the B1G after every hypothetical punishment.

I hope that Michigan decided to settle because it concluded that its fight with the B1G is political, not legal. A courtroom only offers limited remedies for specific problems. Michigan's real problem is the newly discovered cracks in its relationship with the B1G, not Harbaugh's absurd suspension. The way to fix that problem is by finding allies who will back Michigan in the B1G or find a new friendlier conference.