November 16, 2023
Late in the afternoon of Friday, November 10, 2023, while Coach Jim Harbaugh and the University of Michigan football team were in the air enroute to Penn State for a highly anticipated clash between two undefeated, top 10-ranked college football teams, Big10 Commissioner Tony Petitti suspended Harbaugh from the sidelines of the remaining regular season games on Michigan’s schedule. Harbaugh and Michigan then filed an action in state court in Ann Arbor seeking an immediate TRO – temporary restraining order – to overturn Petitti’s decision and allow Harbaugh to be on the sidelines at the Penn State Game.
Since late October, claims have been made that Connor Stalions, a staffer for Michigan, had engaged in an elaborate scheme to steal signs from Michigan’s opponents. As demands from Michigan’s competitors mounted for the Big10 and NCAA to take action against Michigan, Petitti visited Ann Arbor on November 4 to meet with Michigan President Santa Ono. Prior to Pettiti’s visit, Ono emailed Petitti and stressed that the investigation was in its early stages and Michigan was entitled to due process.
Reading between the lines on Ono’s November 4 email, one could already see that Michigan was not going to roll over. Michigan’s position became even clearer the following week on November 8 when Michigan Athletic Director Warde Manuel responded to an email from the Big10’s Senior Vice President for Policy and Compliance with a ten-page letter. Manuel’s letter made it clear that Michigan would take legal action should it summarily discipline Harbaugh or Michigan. Petitti’s waiting until Harbaugh and Michigan’s team were in the air less than 24 hours before the Penn State game and on the Veterans Day holiday when both state and federal courts was closed can only be seen as a purposeful attempt to frustrate any attempt by Harbaugh and Michigan to get relief from a court before the Penn State game. And, the attempt worked. With hindsight, one can question whether it was wise for Michigan to show its cards as early as it did.
Harbaugh and Michigan filed their case late in the day on Friday. The case was initially assigned to a judge who not only was a Michigan graduate, but had played on the football team. The judge recused himself and the case then was transferred to Judge Carol Kuhnke, another Michigan graduate, albeit one who had not played football. And, she had presided in a previous case against Stalions by his homeowners association.
Judge Kuhnke did not rule on Harbaugh’s and Michigan’s TRO request prior to the Penn State game. Instead, she scheduled a hearing on the request for Friday, November 17. ESPN has reported that Jim Harbaugh intends to be in court for the hearing. Whether he will testify or address the court directly is not known.
As both a Michigan football fan, a lawyer who has been involved in many TRO fights over the years, and a lawyer who has litigated on behalf of clients in seemingly hostile forums, I have lots of thoughts about the case.
TROs are hard to obtain, especially on less than a day’s notice. Even though judges can issue an ex parte TRO, that is a TRO without hearing from the other side, in extraordinary circumstances, judges do not like to act without giving both sides the opportunity to be heard. Although the denial of a TRO can be appealed immediately in some court systems, such as the Maryland state court system, most court systems, such as the Federal system, generally do not allow immediate appeals of denials of TROs. What Judge Kuhnke did – not ruling – is especially problematic when a party is seeking a TRO. Even if the court system allows an immediate appeal from the grant or denial of a TRO, a non-ruling is nearly impossible to overcome.
Judges have a great deal of discretion in how they deal with TRO motions and preliminary injunction motions. Most of the time the motions are heard on a paper record with testimony coming in the forms of affidavits or deposition transcripts. However, live testimony sometimes is taken. So, whether Harbaugh has a role in Friday’s hearing other than being a spectator remains to be seen.
When a state court case involves “citizens” of different states, the defendants can remove the case to federal court if they are not citizens of the state in which the case has been brought. This type of case is called a “diversity of citizenship” case. Given the significant University of Michigan connection that Judge Kuhnke has, and likely any judge in Ann Arbor would have, my initial thought was that Petitti and the Big10 should remove the case to federal court. One of the things I tell my students when I teach Federal Courts at the University of Baltimore School of Law is that they should review statutes and rules even if they think that they know them. After scratching my head and trying to figure out why Petitti and the Big10 had not removed the case, I took my advice and re-read the diversity statute that I had read hundreds of times since I graduated from law school. Then it hit me. The University of Michigan is an entity of the State of Michigan, not a “citizen.” Petitti and the Big10 are stuck in state court.
Will Harbaugh and Michigan get their TRO on November 17? Stay tuned. Given that Judge Kuhnke did not grant Harbaugh and Michigan a TRO last week and the standards for granting injunctions are demanding, a hometown victory is not assured.
Michigan had no trouble winning last week at Penn State without Harbaugh on the sideline. On Saturday, November 18, Michigan travels to College Park to play the University of Maryland. Although the Terrapins are not as highly ranked as the Nittany Lions were last week, the game will have special significance for Michigan. Michigan has won 999 games since 1879. Should Michigan win at Maryland on Saturday, Michigan will be the first college football team ever to win 1,000 games. Given that my late father was a Maryland alumnus and it would be sweet for the 1,000th victory to be against Michigan’s archrival Ohio State on November 25, this Michigan fan would not be crushed if Maryland pulls an upset on Saturday, especially if Harbaugh is not on the field. But, at the risk of being flamed by you dear readers who are Maryland fans, I will close with: Go Blue!
As we were about to post this piece, news broke that the University of Michigan, Harbaugh, and the Big10 have resolved the case. The University of Michigan released the following statement:
<div style="border-style: solid;border-width: 0 0 0 3px;border-color: black;padding-left: 20px;margin: auto 5%;">"This morning, the University, Coach Harbaugh, and the Big Ten resolved their pending litigation. The Conference agreed to close its investigation, and the University and Coach Harbaugh agreed to accept the three-game suspension. Coach Harbaugh, with the University's support, decided to accept this sanction to return the focus to our student-athletes and their performance on the field. The Conference has confirmed that it is not aware of any information suggesting Coach Harbaugh’s involvement in the allegations. The University continues to cooperate fully with the NCAA’s investigation."</div>
Although I had not expected this outcome given Michigan’s aggressive stance up to now, it is not surprising. Harbaugh already had missed one game. Agreeing to the suspension for the following two games in return for the Big 10 closing its investigation gives closure and certainty. It takes away the distraction of litigation. I have represented many clients who have faced similar choices between pursuing litigation aggressively to the end or agreeing to resolve the case early. It is not an easy decision to make and each situation is different. But, sometimes a bird in the hand is worth two in the bush.