Best legal arguments for a TRO
Petitti/Big Ten written explanation boils down to the following:
1. There is enough evidence that the Stalions scheme happened.
2. Having 3rd parties record games of future opponents counts as 'in-person advance scouting.'
3. He rejects the arguments Michigan raised about how Rule 32, but not the Sportsmanship Policy, governs.
4. He implicitly accepts Michigan's argument that under the Sportsmanship Policy the HC cannot be punished for the infraction of a subordinate.
5. He finds that in-person advance scouting is “unsportsmanlike” and undermines the integrity of games (at least the way Stalions did it).
To my legal mind, the strongest basis for an injunction is to litigate nos. 4, 2, and 2...in order of strongest argument in the TRO context.
No. 4 is the best argument at the TRO stage BC the Sportsmanship Policy unambiguously does prohibit punishing one person (the HC) for the infraction of another. Petitti tries to get around this textual limitatin by simply relabeling the punishment of one person (HC) for the infraction of another (Stalions)...as an institutional punishment. But there is no plausible way to read the Sportsmanship policy as allowing this. It explicitly allows ONLY punishment if the individual who commits the infraction OR the institution. Two and only two categories. Petitti can't just re-label a punishment of JH as punishment of the institution. When he pulls this move he has created a third category…punishing A for B’s (supposed) infraction. For sure, JH is penalized here. And that brute fact does not change simply be re-branding the punishment of JH as a punishment of the institution.
I think there is also a good chance at the TRO stage to get some traction out of litigating no. 3.
However, at the TRO stage I do not think litigating no. 2 will get traction. There are very good arguments that having third parties record opponent games is NOT in-person advance scouting. I am the one who first brought this legal theory to MGoBlog in a response I posted to Erik in Dayton's diary post. I still think this is one of Michigan's strongest legal arguments. But I think it works better after the TRO stage than in the TRO application itself. In my view, this should be the lead argument that Michigan relies upon in the NCAA investigation.
I also do not think that litigating no. 5 works at the TRO stage, but is worth pursuing in the NCAA investigation. Stolen signs are ubiquitous. The way a program acquires the signs is neither here nor there re: game integrity.
Overall, I find the Petitti/Big Ten written explanation unpersuasive. He clearly made up his mind very early on and was thereafter closed-minded about rational counterarguments. The letter has numerous highly dubious assertions--could lead to injuries, etc.--that really undermine its persuasive power. Of course, none of that will matter in the media feeding frenzy.
November 10th, 2023 at 5:20 PM ^
I just want my blog back. Oh, and to beat Penn State by 40.
November 10th, 2023 at 5:26 PM ^
Any explanation as to how it is allowed to be a three games suspension? I thought all along a 2 game suspension was the maximum by the “commissioner”?
November 10th, 2023 at 5:30 PM ^
He got the joint executive group to agree with him. The rest of the conference is in on this. That’s why we’ve entered “leave the conference” territory, at least IMHO.
November 10th, 2023 at 5:46 PM ^
Serious question--where has this been documented? I can't find it referenced.
November 10th, 2023 at 6:15 PM ^
The Joint Executive Group which has four members - three of whom are from PSU or OSU.
No conflict of interest there.
November 10th, 2023 at 5:20 PM ^
To my legal mind, the strongest basis for an injunction is to litigate nos. 4, 2, and 2
Is there a typo there?
Thanks for this analysis, good stuff.
November 10th, 2023 at 5:35 PM ^
Yes, you are correct. My typo/error. Should read ..."4, 3, 2..."
November 10th, 2023 at 6:35 PM ^
Another strong argument is the Big Ten rules clearly state the conference cannot/should not punish for NCAA-initiated investigations until after the NCAA investigation is complete. I'm sure Petitti will try to argue this is a separate Big Ten investigation, but the rules talk about disfavoring parallel investigations/penalties.
November 10th, 2023 at 7:55 PM ^
Yes it is. Might work at TRO stage, and might work even better after TRO stage
November 10th, 2023 at 5:23 PM ^
It just comes down to the question of whether to preserve the status quo given the possibility of irreparable harm and likelihood of success on the merits.
November 10th, 2023 at 5:28 PM ^
Nothing yet available on PACER. Doesn't mean it didn't happen. I would expect a press release if true.
November 10th, 2023 at 5:37 PM ^
Apparently, he's saying state court, which seems batshit to me?
November 10th, 2023 at 5:48 PM ^
Obtaining home field advantage, maybe.
November 10th, 2023 at 6:29 PM ^
State court is the wild west. We have a strong case and one of the best litigation law firms in the country. I would have preferred federal.
Edit: other places are saying it's federal
November 10th, 2023 at 5:24 PM ^
I don't understand how you can say sign stealing is unsafe and think of the children when done by attending a game in person or recording it, but it's fine if it happens all the other times. How much of a sanctimonious dumbfuck do you have to be to assert that with a straight face?
November 10th, 2023 at 5:25 PM ^
I agree. The argument should be that the Bylaws allow for punishment of the school and guilty individuals. If the conference can punish, non-culpable individuals, why have the provision in bylaws that allows for punishment of individuals? Those words are surplusage and add nothing if that power implied by the power to sanction the institution.
November 10th, 2023 at 5:27 PM ^
His whole paragraph about the safety of players is laughable. Has he ever, I mean EVER, watched a football game? If you want to hurt someone, you just hurt them. Watch ANY Michigan State game. Did that douchebag who speared McGregor need to know the play beforehand? Did Krump and the tunnel 8 need to know the play beforehand to attack 2 of our players in the tunnel? Pettiti is a coward and an imbecile.
November 10th, 2023 at 5:29 PM ^
I am not a lawyer but I agree what OP says.
November 10th, 2023 at 5:30 PM ^
6. Bad faith by Pettiti. You don't pull this timing BS unless you are also worried about the merits of your case.
November 10th, 2023 at 7:57 PM ^
A valid argument as part of the subtext, but not the lead argument for TRO stage
November 10th, 2023 at 5:30 PM ^
Also, kind of an issue of fact, but idea that dramatic harm to competition is belied by NCAA proposed 2021 amendment commentary:
Specifically, livestreams of intercollegiate competition and prerecorded game film are readily available in the digital age. The minimal competitive advantage gained by scouting future opponents in-person is outweighed by the monitoring and enforcement burdens of ensuring compliance with the legislation.
November 10th, 2023 at 5:33 PM ^
Typo....In order from strongest to less strong for TRO....4, 3, 2
November 10th, 2023 at 5:40 PM ^
NY wolve OG = exactly. It was also stated as a cost cutting move when first implemented.
November 10th, 2023 at 5:55 PM ^
The timing of the suspension is the best angle (among many good angles) for UM to get it's TRO, provided W&C found a judge tonight...
The B1G issues it's suspension on a federal holiday, while the Michigan players and staff are quite literally on a plane to Pennsylvania, the evening before the football program's biggest game of the season. This is insane. No judge is going to see this as a coincidence. Petitti purposely picked a date and time that would do the greatest harm to UM's chances of successfully defending itself in a court of law. Jesus. I cant think of a greater reason for a judge to grant the TRO.
November 10th, 2023 at 5:57 PM ^
Unwatchable or useless video would be proof that there was an attempt to violate the rule. I don't believe that anyone has proven that these videos contained material that is not readily available to the public. And since it was stored on a server without a password then that qualifies as public information.
I don't think the Big 10 has proven #1 as Michigan says it hasn't seen all the evidence.
November 10th, 2023 at 6:35 PM ^
My argument rests with the idea that Ric Flair can respond with double crotch chops while giving a bug-eyed whoooooo!
November 10th, 2023 at 6:47 PM ^
TRO's are highly difficult to obtain, easier in state court but assume its heading to fed court after the weekend.
Part of the legal argument needs to include the public interest. They will have to demonstrate to the court why it requires this extraordinary remedy. This case indirectly involves millions of people who otherwise have no normal experience with the courts and justice but who have a vested interest in this adjudication. In that respect, it is an opportunity for justice to reach millions, to help bring our country together in an increasingly polarized environment and in an understanding that one of our founding tenants is the application of due process; it is the opposite of mob rule. If they simply speak to the arguments they run the real risk that this is consolidated in fed court early next week, overruling the state court but agreeing to hear the injunction, with a briefing in 21 days.
The one silver lining of the b1g doing this on a friday afternoon of a fed holiday is that they wont be able to ask to move it to federal court before the game on Saturday.
November 10th, 2023 at 6:48 PM ^
UM fans should attend other games and record the teams signs and post them on MGoBlog.
November 10th, 2023 at 7:48 PM ^
Send them to Ryan Day’s inbox. Proves bad sportsmanship by OSU and threatens player safety.
November 10th, 2023 at 7:47 PM ^
I would say the fact that he left in the part about “player safety” after Michigan had provided evidence that other schools had Michigan’s signs can be used to demonstrate that his actions were capricious and in bad faith.
It shows clearly that Pettiti treats different examples of the same threat to player safety differently, proving bias.