Real Recognize Real report (11/15) – ‘Due process’ argument alone isn’t enough for U-M to win TRO, expert says

According to WTKA legal expert and Ann Arbor attorney Joe Simon, Michigan is going to have to argue more than lack of due process to be granted a restraining order against the Big 10.

Welcome to the Real Recognize Real Report. That title isn’t grammatically correct, but it’s not supposed to be. It’s a colloquialism that is commonly used within my family and friend circle, highlighting how a person possessing a particular trait can readily identify others possessing that same trait. A person who is genuine and authentic can recognize other people that are genuine and authentic. The “3R Report” will follow that theme – it’ll always include intel from real, genuine sources whose credibility has been verified. Installments will drop daily. They won’t always be long, and they won’t always include huge news, but they’ll always be real.

With the hearing to determine whether to grant Michigan’s request for a restraining order against the Big 10’s three-game suspension of Jim Harbaugh set for Friday, the focus of today’s ‘3R report’ is getting a feel for what kind of case U-M and Harbaugh have. To do that I reached out to WTKA legal expert and Ann Arbor attorney Joe Simon. Below are the most pertinent parts of our Q&A session.

Sam Webb: “Michigan is citing the lack of due process in the Big 10’s decision to levy an immediate punishment on Jim Harbaugh. It seems like they have a pretty strong argument to a novice eye like mine. It seems pretty clear that the league outside of its own policies and procedures in reaching its ruling before an investigation has concluded. Is the due process argument a winning argument in your expert view?”

Joe Simon: “Arguing ‘due process’ alone isn’t enough. You have to show the resultant harm of not honoring that process and this illustrates how they selectively departed from that process.

Sam Webb: “Okay, so give me an argument you think Michigan will or could make along those lines. I understand you don’t have all of the information at your disposal, so just base this  possible argument on what you’ve gleaned from the Big 10’s letter to Michigan.”

Joe Simon: “Michigan supplied the conference with evidence that other teams acquired their signals… and maybe other teams’ (signals)… and circulated them to their opponents.  It is unclear how they were acquired but they were ‘vetted’ by coaches, and presumably, therefore, reliable.  The Big Ten responded by saying Michigan offered that evidence only to say ‘see, other teams do it too.’”

“But this belies the conclusions and actions of the conference and the import of receipt of that evidence.  They need to be asked:  1.) If the actions of the other schools resulted in unfair games on unequal terms and compromised player safety.  2.) If they’ve notified Michigan or any other school that they may be at risk of injury as a result of knowing this information.  3.) If the sportsmanship policy was violated by the sharing of this information between coaches.  4.) If they’ve placed any other member institution on notice of an investigation of how they acquired and/or shared that information. And lastly, 5.) If they’ve sanctioned any other program.”

“The answer will be that they have not, and the follow-up question would be to have them declare the reason. And that reason could only be that they’re still investigating the matter.  That illustrates the conference’s arbitrary and premature action against Michigan.  The only available distinction would be that Michigan’s scheme was more ‘elaborate’ and therefore ‘RESULTED in unfair games on unequal terms.’  But that is a presumption, not yet established, and that’s another reason the action is premature