Not a criminal lawyer but I believe that TSJs counsel will have an opportunity to request dismissal for a lack of probable cause at his 1/18 hearing. If a judge in Kansas finds probable cause for the charges, will the 3 non-lawyers from the panel decide otherwise. At best TSJ could hope that the panel retains its own legal counsel to evaluate the charges and advise as to appropriateness of the charging decision of the Kansas DA - i.e. if there is a reasonable likelihood that TSJ could be convicted on the evidence available or would a reasonable DA bring charges on the facts and circumstances in these allegations. I just don't see how a court could require the panel to be an actual fact-finding body as to the truth of the allegations.
Some of TSJ's claims in the TRO motion seem to turn on whether he presents a risk to other students - this the panel could decide as a factual matter.
Since JW's press conference, I have been concerned about the standards for a decision by the panel because he did not provide any explanation at that time. Is it safety of the other students, is it the validity of the allegations, is it the reputation of UI, and what evidence are they allowed to consider and what standard of proof are they required to apply? I haven't read the policy establishing the panel, but I am guessing the standards are very vague (i.e. best interests of UI, its students and the student athletes) and allow considerable discretion. JW seemed proud to have established this policy and it may have worked well when used in the past, but a high profile athlete with financial resources is going to stress test it. Not sure it will pass.
As to whether UI will roll over on the TRO, I would not plan on it. They have an institutional duty to defend it and there are a lot of people associated with UI that don't care about athletics and will have an opposite view of this situation. The UI lawyer also has an ethical duty to zealously represent her client.
As a caution, in my reading of the TRO motion I was impressed by the legal work, but I have no experience with these issues. Making what sounds like an unassailable argument is what lawyers do. It takes time (and money) to craft arguments well. But as I tell my clients when I have written what I think is an artful piece of legal work - don't necessarily believe my BS. Just because it sounds good, does not mean it will survive scrutiny.
One thing I always do, if it supports my client, is argue the bigger policy picture associated with the matter at issue. Here, one thing that causes me pause is that there will be other situations in which allegations are made of serious wrongdoing in which the evidence may be stronger. They need to answer where the line is to be drawn on when a school can take action to suspend a player?
Rape is always a serious allegation, but part of the problem here is that this is one of the least serious rape charges possible - less than a 2 min apparently unwitnessed interaction in a public setting with no physical injury. If TSJ was charged with murder based upon circumstantial evidence, should he be playing unless and until convicted.
TSJ will certainly suffer considerable and irreparable harm if not allowed to play, but is the court going to interfere with the decision of UI as to where they have decided to draw the line in who is allowed to represent the university in athletic competition. That is a big ask.