rym

November 11th, 2023 at 1:01 AM ^

Judge Connors is currently the judge assigned to the case. It seems that JUB’s tweet has caused confusion on this point. I explained in another thread:

My understanding based on others’ reports is that Judge Kunhke is the on-duty judge who is considering after-hours petitions such as this one. But that wouldn’t necessarily change the judge who was randomly assigned for all purposes (Judge Connors). Sometimes different judges handle particular components or motions within a case.

Judge Connors is probably still the assigned-for-all-purposes judge who will either hear future motions or recuse himself. That’s the judge who would be on the docket.

Z

November 10th, 2023 at 11:46 PM ^

It sets the table with a killer hook:

INTRODUCTION

Sportsmanship is founded upon principles of integrity, respect, and fair play. So it is a poignant irony that The Big Ten Conference, Inc. ("Conference*) invoked its Sportsmanship Policy even as it breached a contract, succumbed to pressure, and threw procedure out the window in pursuit of summary punishment.

Z

November 10th, 2023 at 11:53 PM ^

And the entire opening salvo (couple pages) is really a glorious outline of the hypocrisy of the big ten's suspension.  

Then it lays out the facts of the case.

Then it outlines each of the four points that must be satisfied for a TRO to be justifiably enforced (thanks MGoLawyers for my education on this):

 

I.   Plaintiffs Are Likely To Succeed on the Merits

II.  Premature Punishment Would Cause Irreparable Injury

III. The Balance of Equities Warrants Injunctive Relief

IV. The Public Interest Would Be Served by an Injunction

It seems to be a no-brainer that the TRO will be granted.  But nothing surprises me any more.  Sometimes logic and reason don't matter

The Mad Hatter

November 10th, 2023 at 11:05 PM ^

Tons of interesting stuff in there.  If Harbaugh wasn't feeling the love before, he certainly is now!

Thought this bit was noteworthy.  We're going to try to keep it local....

This case is not removable to federal court. The University is an arm of the state,
and therefore not a “citizen” of the State of Michigan for purposes of federal diversity
jurisdiction.


Because complete diversity is lacking and there are no federal law claims, federal courts do not
have jurisdiction over this complaint.

Bluesince89

November 11th, 2023 at 8:30 AM ^

That’s only for purposes of being sued in state court. It doesn’t limit any arm of the state from suing in any other jurisdiction. Remember, the court of claims statute and the case law interpreting it says no one can be a defendant in the court of claims unless they’re an arm of the state. That’s why Trump couldn’t intervene in the lawsuit that Redford had a few weeks ago. It happens all the time. Court will grant amici status. So it’s unlikely that a state entity could sue a nonstate entity in the court of claims.

JediLow

November 10th, 2023 at 11:09 PM ^

That's the biggest take that I had from it. That and there's a case from the Court of Appeals last week that's actually going to get published and also talked about the covenant of good faith and fair dealing (which finally clears up the no covenant of good faith and fair dealing except there really is one cases).

Clarence Beeks

November 10th, 2023 at 11:35 PM ^

I agree. That was a really interesting element. But the part that makes me the most happy was the very end. Nothing up to this point by either party was under the penalty of perjury. This is. And I can't WAIT to see how that plays out.  Nor can I wait to see how every one of the counts play out.  Discovery is going to be... fun.

bluebyyou

November 10th, 2023 at 11:08 PM ^

The filings are extremely well written and lay the case out beautifully.  Looking up the bios of the Williams & Connolly folks, the two senior attorneys on the case have very impressive bios.

Fingers crossed!

CFraser

November 10th, 2023 at 11:24 PM ^

They’re assassins and it’s suicide to try this. But he looks tough? I have no idea why a “lawyer” would do this. He’s gonna get his pants pulled down. Maybe he thought he could save face? But then why try to hide it till it’s too late? Corrupt to the bone. Fish in a barrel and it’s only gonna get worse for him. 

It'sGreatToBe

November 10th, 2023 at 11:36 PM ^

Relatedly, this filing confirms that the B1G is represented by Sidley. This was initially mentioned in Tom Mars’ response letter in passing, but helpful to get confirmation.  

Sidley is a decent firm for Chicago, but ummm . . . yeah, I’d take elite litigators like Butswinkas and Zinn at W&C over a recent-GC like Favia every day of the week and twice on Saturday.

And it’s not even close. 

TacoLivesOn

November 10th, 2023 at 11:19 PM ^

The intro, pages 6-8, gives a nice summary (I am not a lawyer):

INTRODUCTION
Sportsmanship is founded upon principles of integrity, respect, and fair play. So it is a poignant irony that The Big Ten Conference, Inc. (“Conference”) invoked its Sportsmanship Policy even as it breached a contract, succumbed to pressure, and threw procedure out the window in pursuit of summary punishment. But when rivals join together to create an athletic conference, each relies upon procedures to ensure fair treatment. Because the Conference has ignored those procedures and breached its contract, the University of Michigan (“University”) and Coach James Harbaugh come to this Court requesting the fair treatment the Conference has denied.
In recent weeks, the University of Michigan’s football program has come under scrutiny for the alleged actions of one of its junior staff members. The University is taking seriously the allegations that the staff member—whom it immediately suspended and who has since resigned—repeatedly violated a prohibition on in-person scouting to record opponents’ signals. The University is cooperating fully with the NCAA’s investigation; and when that investigation concludes, the University will accept its share of responsibility under the rules.


But what the University cannot accept is the Conference’s breach of its obligations to the University, its students, and its staff. Amid the clamoring for punishment by the University’s rivals, the Conference repeatedly threw out the procedures:


First the Conference threw out the procedure that required it to wait until the NCAA’s investigation finished before determining punishment, a rule intended to avoid duplication and prevent inconsistent results.
Then the Conference threw out the procedure requiring an investigation, due process, findings from a multi-member body, and a right to appeal before the Conference imposes punishment for rules violations. The Conference has not interviewed a single witness and has access to at most the NCAA’s incomplete investigation. But the Conference ignored the procedures that would have allowed the University to defend itself.
Then the Conference misguidedly invoked the “Sportsmanship Policy,” which it claims permits the Commissioner unilateral and unreviewable authority to find “sportsmanship” violations and impose any punishment he chooses—with essentially no process. But the Conference’s own notice of inquiry confirms that the supposed “sportsmanship” violations are the alleged rules violations. So it appears, in the Conference’s world, member universities’ contractual rights to address allegations of rules violations apply only at the whim of the Commissioner.


Confoundingly, the rush to judgment is unexplained and unnecessary. The staff member who allegedly broke the rules is gone, and the Conference cites no evidence that the University continues to rely upon (or indeed ever relied upon) his scouting reports. The Conference instead has suspended the head coach, Jim Harbaugh, despite citing no evidence whatsoever that Coach Harbaugh knew about, directed, or tolerated the alleged wrongdoing (and even though this form of penalty accordingly is not even authorized under the rules).


There was therefore no justification for the Conference to act now, before the facts are found and the University is afforded the due process to which it is entitled. There is no evidence of an ongoing threat to the integrity of the competition, or any explanation why removing the head coach would address such a threat. Instead, the Conference’s punitive action threatens the integrity of competition by improperly depriving a nationally-ranked football program of its leader on the eve of critical games, just as the season approaches the playoffs. The Sportsmanship Policy’s focus on the integrity of competition is intended to prevent such imbalances—not create them.

In its misguided attempt to satisfy the University’s critics, the Conference has betrayed its promises to the University, its students, and its staff, imposed quintessentially irreparable harm, and set a dangerous precedent for future process deprivations against the University and other member schools. Sportsmanship is at issue in this case, but not in the way the Conference thinks.
This Court should grant the motion and preserve the status quo.

 

 

TacoLivesOn

November 11th, 2023 at 12:09 AM ^

Other tidbits from the Arguments section I found to be of interest (again, I am not a lawyer):

*The Conference has patently ignored the procedural requirements set forth in the Handbook, which serves as the governing contract between the parties, by failing to follow the adjudicatory processes in Rule 32, and by imposing an unauthorized penalty.

* The cited Sportsmanship Policy is not an all-inclusive loophole through which the Commissioner can rewrite the parties’ contract.

* the Conference has breached its contractual obligation, even under the Sportsmanship Policy, to give the University a meaningful chance to be heard.

* In taking this unprecedented and untimely action against the University under the guise of a Sportsmanship Agreement meant to cover an entirely different class of infractions, Commissioner Pettiti has breached the fiduciary duty owed the University.

* Coach Harbaugh is likely to succeed on his claim of intentional [and tortious] interference with his employment contract. 

* ...the harm to the University’s student athletes would be irreversible. Now 9-0 on the season, it is undisputed that the team is in contention for the National Championship.. For the seniors on the University of Michigan team, this will be their last contest against these rival conference schools and their last chance to compete for a Conference and National Championship. These are once-in-a-lifetime events: the games cannot be replayed...The student-athletes who have trained under Coach Harbaugh for the entire season (and in previous years) would be deprived of their best chances of success at this once-in-a-lifetime opportunity, if their leader is improperly removed.

* the removal of Coach Harbaugh would manufacture an unfair competitive disadvantage. While Penn State, Maryland, and Ohio State will finish out the season under the leadership of their head coaches, the University will be forced to change course on the eve of critical games. Altering the University’s chances of success in these critical games is damage that cannot be undone. Indeed, “[t]hese sorts of injuries, i.e., deprivations of temporarily isolated opportunities, are exactly what preliminary injunctions are intended to relieve.”

* The object of immediate injunctive relief is to “preserve the status quo”... Given this lack of a risk of harm from an injunction, and the significant harm that the University will face if prematurely sanctioned, the equities weigh heavily in favor of maintaining the status quo and delaying any sanction pending appropriate due process.

*The Public Interest Would Be Served by an Injunction ...Indeed, Commissioner Petitti, then ABC Sports’ vice president for programming, helped to create the BCS—the precursor to the National Championship—nearly 30 years ago, in recognition of the importance of broadcasting “1 vs. 2.”...The NCAA has taken concerted steps over the past few years to ensure that the top two teams make it to the final game. The University of Michigan is indisputably a contender for one of those spots this year, and the public has an interest in seeing it have a fair opportunity to compete at the highest level under the leadership of its head coach.

Njia

November 10th, 2023 at 11:19 PM ^

219 pages worth, plus whatever opposing counsel can muster. It will be very late before a ruling is handed down. There's an outside chance it doesn't happen before the game tomorrow.

Kinda Blue

November 11th, 2023 at 12:01 AM ^

It explains the bonkers way the B1G has tried to say it was imposing the punishment on the university (as opposed to Harbaugh).  They can't punish Harbaugh under the sportsmanship policy because he is not the person who committed the offensive action. They could only punish him for lack of Institutional control under Rule 32--and due process would be required in that process. 

So, Pettiti is claiming to punish the university (not Harbaugh) as a transparent attempt to contort himself into appearing to stay within a rule that is more ambiguous about process.  That there is an obvious way for the B1G to handle this under Rule 32 only makes his effort to deny due process more obvious.

BannerToucher85

November 10th, 2023 at 11:28 PM ^

Pardon my ignorance, but what's the expected legal process moving forward assuming a TRO is issued? Does a judge order arbitration? Tell the league to stand down and await any NCAA findings? Does Michigan file an actual lawsuit against the league?

HBHChicago

November 10th, 2023 at 11:46 PM ^

The lawsuit was filed immediately before the request for a TRO; courts can't issue a TRO without basing it on a lawsuit. If a TRO is issued, the court will schedule a hearing for a preliminary injunction. A preliminary injunction is like a TRO, except it remains in effect much longer, usually until there is a full trial. That takes a very long time. A hearing on a preliminary injunction would probably not take place for another 14 days. So, if the judge issues a TRO after midnight, the TRO would remain in place until after the Ohio State game. Arbitration would only be ordered if the existing agreements between the Big Ten and the schools require arbitration. That seems unlikely. 

Kinda Blue

November 11th, 2023 at 12:07 AM ^

TRO to get immediate timeout.  Then probably a preliminary injunction to prevent enforcement of the suspension on a continuing basis.  This gives the parties time to fully brief the issues and law.  Then, months after that, there will be a trial on complaint and relief requested.

For example, the Pac 2 got a TRO in September and the PI hearing is next week.

MeanJoe07

November 10th, 2023 at 11:38 PM ^

I like this part:

There is no evidence of an ongoing threat to the integrity of the competition, or any explanation why removing the head coach would address such a threat. Instead, the Conference’s punitive action threatens the integrity of competition by improperly depriving a nationally-ranked football program of its leader on the eve of critical games, just as the season approaches the playoffs. The Sportsmanship Policy’s focus on the integrity of competition is intended to prevent such imbalances—not create them.

This is compelling because suspending Harbaugh only creates disadvantage to Michigan. It creates an inherent imbalance rather than preserve sportsmanship/fairness.  It's a penalty. And the conference cant penalize the university before Michigan is given due process. It's a breach of contract.  Unless they interpret the sportsmanship clause to mean the commissioner can do whatever he wants whenever he wants.  If that's true then I think the conference has bigger problems and other teams should take issues with that. I would if I was USC, Oregon, or Washington.