YOUNGSTOWN, Ohio - Attorneys representing Youngstown State University have appealed the decision by  U.S. District Court Judge Benita Pearson forbidding the university from preventing student Ma'lik Richmond from suiting up for games with the rest of the Penguin football team.

The notice of appeal was filed on Friday, one day after Judge Pearson issued a temporary restraining order against the university who was sued by Richmond when YSU took him off the active roster following public outcry over his past rape conviction.

Attorney Christina Corl with the Ohio Attorney General's office filed the emergency motion asking the Sixth Circuit Court of Appeals to issue a stay  on Judge Pearson's ruling before Saturday's home football game.

Corl is asking for single judge to issue an order by noon on Saturday.

If such a stay is granted, the Penguins would not be required to have Richmond dress for the game until the court rules otherwise.

Corl argues in the filing that the decision to keep Richmond off the field was not meant as a sanction against him, but rather a decision made in the best interests of the University, the student body and Richmond.

""It is beyond harm to the university to have this TRO enforced in contravention to the reasoned assessment of University administration regarding the health and safety of its students, visitors and campus," the filing reads.

The appeal goes on to say sitting Richmond out for the season does not cause him any irreparable harm, while overturning the university's discretion to make decisions regarding the student body does irreparable harm to the university.
"YSU was in a no-win situation. If, for example, YSU had ignored the growing discord and threats by allowing the Plaintiff to play in varsity football contests and a threat was acted upon, YSU would have faced backlash, if not hauled into court."

In their response to the appeal, Richmond's lawyers, Susan Stone and Kristina Supler,  argue that YSU would need to file this appeal in a district court to seek a stay, but instead say "YSU is attempting to circumvent the reality that the TRO is not a final appealable order."

Corl acknowledges that temporary restraining orders are not immediately appealable, but argues there is an exception when "irreparable harm will occur before the order expires," or when the order does not "merely preserve the status quo," but rather "directs action so potent with consequences so irretrievable, we provide an immediate appeal to protect the rights of the parties."

Richmond's attorneys called this claim "melodramatic," and "untrue." They say while a petition circulated opposing Richmond taking the field, there is no record of any threats having been made if he does.
"That entire narrative is patently false," Richmond's attorneys wrote in the filing.

Richmond's attorneys cite a recent court case involving President Donald Trump's travel ban, in which a federal judge ruled that a temporary restraining order can be appealed when it can be demonstrated that it will remain in effect indefinitely, such as was the case with the travel ban. Since the TRO allowing Richmond to play is only in effect for fourteen days,  they argue this standard does not apply.

YSU's attorney goes on the claim Richmond's Title IX complaint has "absolutely no likelihood of success," saying the argument Richmond is making is essentially that any efforts by universities to take sexual assault seriously would amount to a campaign of gender discrimination against male students.

The appeal argues Richmond's claim that YSU is responding to pressure from female students can't be interpreted to be a bias against him for being a male and that Richmond's attorneys provide no examples or evidence to back up that claim.  YSU attorneys cite another case in which a court ruled that it was possible for a school to be "biased in favor of the alleged victims of sexual assault cases and against the alleged perpetrators," but that this is not the same as being biased against male students.

Further, YSU's attorneys argue Richmond's attorneys cannot cite any example of a female athlete being treated differently in similar circumstances, which would be another justification for the Title IX complaint.

Richmond's attorneys said YSU was the first one to bring up Title IX in a news release announcing the decision not to have Richmond play during the 2017 season.
"One cannot ignore the fact that the Appellant catered to the viewpoint of a female over defending the legitimate rights of Appellee," they argue in their response.

Richmond's attorneys summarize their response by saying that the Sixth District Court of Appeals does not have jurisdiction over the case and that "to allow a stay would negate the relief granted by the TRO and thus permit the same harm that would befall the Plaintiff if the appeal went forwared would be the height of injustice."

Stay connected with 21 News for the latest on this developing story.

The university's appeal of the judge's order and the Richmond response may be read here