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Friday, June 16, 2006
North Dakota Fighting NCAA Over Use of "Fighting Sioux"

Last year, the NCAA announced a ban on member schools' use of nicknames, mascots and logos in postseason tournaments that it deemed ethnically or racially demeaning to American Indians. The NCAA determined that at least 18 schools, including the University of North Dakota, violated the policy. Since then, the NCAA has rejected two UND appeals saying the university may not use the nickname or logo during NCAA postseason tournaments, and it may not host a tournament if it continues using them. AP writer Dave Wetzel reported yesterday that UND is now ready to sue the NCAA.

It is very difficult for a party to successfully sue the association of which it is a voluntary member because voluntary associations are generally free to enact rules and policies, and make decisions, governing their members. However, a member can successfully challenge the association's decision if the member can show that: (1) the association violated its constitution or bylaws (and thus didn't have the authority to make the decision) or (2) the association acted in an arbitrary or discriminatory manner.

There are three statements I pulled from Wetzel's article that were made by North Dakota Attorney General Wayne Stenehjem (who is apparently going to file the lawsuit and bill UND for the legal work), which tend to suggest that UND is asserting both of the above claims. First, Stenehjem asserts that "the NCAA's executive committee used constantly changing standards in deciding which colleges could continue using nicknames of American Indian origin and which could not." Second, Stenehjem stated that the committee "decided, more or less by fiat, that some institutions were going to be subject to this rule, and some institutions, for reasons that are not understandable, were exempted." [For example, Florida State University, Central Michigan University and the University of Utah are permitted to use their Indian nicknames without facing any postseason sanction.] Third, he stated that the NCAA's action violated its contract with its members in that its constitution requires that major decisions be approved by two-thirds of its college membership, and no vote was ever taken.

We all knew that when the NCAA implemented this ban last year that there would be disputes over the subjective standard of what constitutes "hostile and abusive" to American Indians. But if UND is asserting that the NCAA's initial determination regarding the 18 schools in violation of the policy was decided "more or less by fiat," I think the NCAA prevails so long as the NCAA acted in good faith in deciding which schools' nicknames and logos were hostile and abusive. I also think the NCAA prevails if UND is asserting that the NCAA arbitrarily determined which of the 18 schools on the list would continue to be banned. If memory serves me correct, the NCAA decided that it would exempt any school on the list if it could demonstrate that the local tribe consented to the use of the nickname and logo (which FSU, CMU and Utah were able to demonstrate). While Wetzel's article doesn't address it, to my knowledge, the Spirit Lake Sioux tribe still has not consented to UND's use of the name ("Tribe rejects Fighting Sioux nickname"). Therefore, it seems that UND would have a difficult time establishing that the NCAA acted in an arbitrary or discriminatory way against UND under these circumstances because the same standard applied to all 18 schools and, regardless of whether you agree with it, it seems like a reasonable compromise by the NCAA with respect to these 18 schools found in violation.

Even if UND could establish a claim against the NCAA, an interesting question would be, what are its damages? First, the ban only applies during postseason tournaments, so arguably UND has no damages yet and maybe the NCAA can argue that a lawsuit right now by the NCAA is not ripe. Secondly, even when UND enters postseason play, what are the damages for not being able to use the nickname and logo during those games? UND may or may not need to buy new uniforms depending upon whether the uniforms even have the nickname and/or logo (presumably they already have jerseys that just say "North Dakota" but that is pure speculation on my part). UND may also incur some cost by removing decals on helmets for postseason play and then reapplying them for the regular season. And I suppose UND would incur some costs associated with covering up banners with the nickname and/or logo when UND hosts a postseason tournament.

Now, to UND and its alumni, this is obviously not about the money. But in court, I'm afraid that it is....


This does not direct have to do with the posting above, but if the NCAA is a voluntary organization and have jurisdiction to legislate certain rules on its governance structure, why don't they have a rule that direct disputes like this to a independent arbitrator/panel so that the process is a lot more speedy and cost efficient? I think this is some kind of alternative dispute resolution mechanism written into the by-laws of the NCAA, but I am not too sure how it would/would not apply for this type of cases.

This certainly is not the first dispute regarding the new nickname/mascot ban and I'm sure it won't be the last one. I think a more flexible resolution could come out through the arbitration as supposed to the traditional way of saying "I will see you in the court!"...especially if it's not ALL about the money. Any comments, Rick?

Anonymous Sokki -- 6/16/2006 1:25 PM  

Maybe you can answer this....from what I understand this will not affect all teams. Correct?

The Florida St. Seminoles are OK as the Seminoles partly b/c Jeb stepped in and the Seminole tribe has given permission.

North Dakota doesn't have as much backing so they can be pushed around.

Also, doesn't affect football b/c the NCAA doesn't run the post season. Why did they make it for post-season play only? To avoid some conflict or is it easier legally to enforce?

Anonymous cj -- 6/16/2006 2:11 PM  

The thing I think that gets lost in the discussion is by that using tribal names it is actually a good thing for American Indians. Whats next, are teams with the "Eagles" as their mascot going to have to change because its an endangered species? Should the Charlotte BOBcats be banned from the name because it is an unfair marketing advantage for BET? Where does this end?

It is one thing to clean up sports but don't put a sour taste in everyone's mouth. I don't see how this does anything but have those schools lose interest in the NCAA. The NCAA doesn't make money from indian tribes, so where is the motivation to go through with this?

I'm confused...

Anonymous Sports Overload -- 6/16/2006 2:33 PM  

I'll tell you one thing. I'm Irish (partly), Scandinavian (partly), and a mix of other things. I hate the Minnesota Vikings (NFL so doesn't count) and Notre Dame Fightin' Irish (NCAA should ring'em up)....

Shouldn't the Fightin' Irish at least have to change their name too? Fighting drunken Irishmen must be offended if the Fighting Sioux are supposed to be.

I'm not sure if the Sioux are really offended or if the NCAA just decided to make a rule...but if the NCAA decides the Sioux should be offended, they should also include the Irish.

Anonymous cj -- 6/16/2006 4:20 PM  

Should've added this to my last post....what about Cowboys, Pirates, Cornhuskers, Deacons, Aggies, Spartans, Trojans (or any other Greeks), Miners, Rebels, Vandals? Should all these NCAA mascots be changed?

Are cowboys, farmers, pastors, Greeks, coal miners, and so on supposed to be offended?

Anonymous cj -- 6/16/2006 4:25 PM  

The open letter from the President of UND is quite interesting and can be found at:

I've been following the story somewhat, and I'm not so sure the NCAA will necessarily prevail in a lawsuit.

Has the NCAA, by putting so much emphasis on the reactions of the relevant tribes, in effect, impermissibly delegated part of its decisionmaking authority to outside, non-member, parties - such delegation not being something that it's reasonable to assume a member would have consented to in joining the organization. In addition, because there are tribes both in favor of and against most of the indian mascots, it appears that the NCAA may have a difficult time evidencing that distinctions were made on a principled basis. I believe UND has indicated that its nearest tribe is, in fact, in favor of its mascot and logo. In the case of UND, it sure appears that its mascot may have been rejected solely because a particular tribal/indian organization was particularly vocal in its opposition. In addition, UND is likely to allege that it was told of different standards at different times from different NCAA officials. I believe that's a bad fact for the NCAA if this were to ever get in front of a jury.

With respect to damages, I seem to recall reading somewhere that UND may have constructed a new hockey or similar athletic facility with Indian logos embedded in the facility superstructure (concrete facing, competition and other walls and floors) and not easily removable without significant cost. In addition, to the extent that (i)UND has intellectual property rights in marks that embody the now prohibited indian logos, and (ii) has successfully merchandised such marks (T-shirts, mugs, etc.), thereby building up value in such marks, the NCAA's determination that such marks are hostile and abusive and cannot be used in certain circumstances seems to me a fruitful avenue for constructing a significant damage claim.

Finally, it would be interesting if the authors of the site could at some point give a quick summary on the state of the law regarding the NCAA and antitrust (if it's already appeared on this site, I apologize, I've only recently begun reading the posts here). So many of the NCAA's actions feel (e.g., telling a football player he cannot receive monies from professional skiing activities), in the practical sense - though perhaps not the legal sense, like restraints of trade.

In this situation is UND's membership truly voluntary? I suppose UND does not have to be a member of the NCAA. But, don't they if they want to participate in major level collegiate sporting activities (frankly, I believe some prospective students won't attend a university without major level athletics)? What's UND's alternative? Similarly, what's UND's alternative for post-season tournaments?

If you are the only game in town, at what point, if any, does that step over the line on an antitrust or similar restraint of trade or unfair competition basis.

I enjoy your blog. As a lawyer and sports junkie, it's a great companion to my daily dose of other sport sites and blogs. Keep up the good work.

Anonymous Senator Blutarski -- 6/16/2006 4:29 PM  

Sokki, that's a good question about dispute resolution. While there's an appeal process, they don't have an ADR mechanism to resolve disputes. However, I'm not sure the NCAA typically wants "a more flexible resolution". I guess it also depends upon your experience with arbitration as to whether it's a better alternative -- my personal experience as a lawyer was that I preferred the courts over arbitration.

CJ, the NCAA's ban doesn't impact postseason football because, as you mentioned, it's the BCS and not the NCAA. And yes, the Seminole tribe consented to FSU's use. My guess is that the NCAA limited the ban to postseason play because maybe the NCAA thought it would be a more reasonable way to handle the situation than a total ban. As far as the slippery slope point you make, I don't really have an opinion because legally it really doesn't matter why the NCAA chose to focus on just American Indians. I do know that there are some tribes that have openly expressed discontentment with the nicknames and logos. I'm Irish too, and I know many Irish people, and I've never heard any Irish people ever complain about Notre Dame's nickname. But if these people (and others you suggest) are offended, then maybe they should get together and persuade the NCAA to do something about it.

Senator, you raise some factual points that I just don't know about (i.e. any local ND sioux tribe in favor of it and ND being told by the NCAA about different standards at different times). In the post, I provided a link to the press release in which the one local sioux tribe objects to the use. But I do think that the NCAA made what it felt was a reasonable compromise, because if the local tribe consents (i.e. FSU), then the proper party (the tribe) is making the determination that it's not offended by the use, which is better than the NCAA making the determination that the use is offensive to the tribe. I disagree with your point about damages. UND does not now need to remove anything off of its stadiums, but UND may need to cover some things up IF they end up hosting postseason play. Also, I disagree that this determination by the NCAA will have any effect whatsoever on UND merchandise sales -- in fact, I actually think it could lead to more merchandise sales. In any event, the damages are very speculative. And from a legal standpoint (maybe not from a practical standpoint), membership is totally voluntary. With respect to antitrust, UND is not being prevented from competing and the ban doesn't impact UND's ability to qualify for postseason play. So what would be the restraint on trade here?

Blogger Rick Karcher -- 6/16/2006 7:39 PM  

The open letter from the UND President (
/logoappeal/openletter_6-07-06.html) is especially interesting because it essentially lays out the university's legal case even before litigation has commenced. The letter touches on a number of the themes in your post and comment, as well as in some of the other readers' comments.

I'm still skeptical about allowing the local tribe to be the determining party. From a practical standpoint, what if there is more than one local tribe. It's my understanding that in fact a number of the relevant indian groupings, Sioux, Seminoles, etc., do consist of multiple tribes or subgroups that claim the same general Sioux, Seminole, etc. appelation. What if they disagree? Does the tribe with the most members get to decide? What if the combined numbers in the other tribes are greater? Maybe any tribe can veto the use of the name by the university? But what if the vetoing tribe only has a tiny number of members? How about the nearest tribe to the university being the decider? In the case of UND, the president of the university claims the nearest tribe has consented to the use of the name. I also believe that in the case of some of the other approved logos, there were some objecting tribes along with the approving tribes. I think the NCAA will have a problem if they cannot show a consistent application of a single standard amongst the various cases.

Unforunately, in our society you can always find someone who objects something. I know PETA has objected to the use of animal mascots and various women's groups have objected to the use of certain logos (and some universities may have changed those logos in the latter case). Should the NCAA leave the determination of the offensiveness and use of those logos to those groups? The NCAA does not want to be in the business (e.g., in their post-season sanctioned championships) of offending significant segments of the population that might view the use of the logos/names, without tribe approval, as rascist. But, circling back to the legal point, did the NCAA's members, in joining the NCAA, give the organization that much authority over their university operations? I bet UND is going to say they never specifically consented as part of their voluntary membership and related documents and that it is unreasonable to presume they so consented or would have so consented at the time of joining on a matter such as this not specifically addressed by the membership documents.

UND probably could cover up some of the offending logos if they participate in post-season play. Maybe not all - the basketball floor? But I think you underestimate the damage to the mark done by the NCAA stigmatizing it as hostile, offensive, etc. If the well known NCAA comes out and brands your mark as racist, well sure, maybe they will let you cover it up during postseason play and use it during the rest of the year, but are you as an institution really going to continue to use it during the rest of the year after it has been so publicized and derided? Will Nike, which pays to put its swish logo above your mascot logo on your uniforms and t-shirts, continue to do so after the NCAA has said your mark is hostile and abusive? Is ESPN2 going to televise your nationally ranked collegiate hockey team? I don't think so. And I think these are real, non-speculative damages.

I agree with you that in the short term, the publicity from the dispute may very well increase merchandise sales. But if they are forced to change the mark? A temporary boost as people restock? Maybe. But what if the new mark is less popular? And what about the pissed alumni who refuse to buy the new merchandise and maybe cut back on their university donations? In the early 70's before I attended my alma mater, it switched from the "Indians" to the "Cardinal" (good, prescient decision to switch, but lame name they switched to; the first replacement name chosen by the students, the "robber barons" was apparently considered to be a poor reflection on the university). There should be evidence in that case of what happened - did merchandising go up or down? Rumour had it that alumni donations went down for awhile. True?
And, the choice of the new name and logo may have as much or more to do with the level of subsequent merchandising sales than how popular the old logo was.

On the restraint of trade/antitrust point, UND is not prevented from competing, subject to a big "If" . . . if they agree to abide by all the rules of the NCAA including the masking/covering up of the logo during postseason play, plus all the other myriad of NCAA rules and regulations. If I want to stay and gamble at a particular casino in Vegas and I don't like their room agreement, I can choose another casino in which to stay and play. If all the casino's get together and agree to standard terms and conditions, there might be a restraint of trade. Where there is a single organization which regulates access to various activities, with no practical alternative, at what point can its actions violate antitrust sanctions? I'm betting that the NCAA's attorneys were the ones telling them not to broaden their restrictions on logos from post-season play to regular seasons. Likely, this was a result of a distinction in NCAA authority as to post-season NCAA sanctioned championships and regular season play which tends to fall under the purview of the conferences. But I bet there were also antitrust considerations. And I also bet the NCAA purchased the NIT basketball tournament not just as a prudent business decision, but in part from a real fear of losing the lawsuit with the NIT.

Anonymous Senator Blutarski -- 6/16/2006 10:15 PM  


I appreciate your comments and you raise interesting points. Voluntary associations, leagues, franchisors, etc. enact all sorts of rules and policies that are going to irritate members and affect operations of each member differently (i.e. NBA dress code; Reggie Bush can't wear number 5; amateur players can't hire agents; the Nike swoosh logo can only be 2 x 2 inches; and Steinbrenner's and Jerry Jones' list of complaints would take too long for me to list.) You ask when does something cross the line into an antitrust issue? -- when it prevents a member (or third party like the NIT) from competing economically in a particular market, for example, restricting coaches' salaries or preventing schools and conferences from selling broadcast rights. If the NCAA prevented UND from selling merchandise with the name and logo, I'd say you're in antitrust.

The NCAA has put schools on notice about this issue for years, and has been encouraging schools to do something about it on their own for years. What do you think the NCAA should have done? You say that you don't like that the local tribes get to decide. If the NCAA subjectively made the decision, my guess is that you would consider that even more egregious.

As far as the legal claim UND is asserting, if they can show that the NCAA treated them differently from other schools in the process (not the outcome) -- and the UND president raises some factual issues in this regard that need to be fleshed out and verified -- then they might have a claim.

Regarding damages (even if successful), here is the president's only statement regarding economic harm:
"Should we stand firm and, with the support of North Dakota tribes, keep our nickname, we will, of course, be able to show substantial financial harm. Since we recently hosted the West Regional Hockey Tournament, it will be easy to show the benefit to the university and to the community almost down to the penny – a benefit we would lose under your policy." First, a tournament in the past doesn't represent any current financial harm. Also, it is unclear whether UND would actually be prevented from hosting a tournament in the future (i.e. maybe the NCAA would let them cover up logos and the name during the tournament). Finally, we're not there yet, so arguably the claim is not ripe for litigation right now.

Look, the issue here (as I stated in my last sentence on the post), is not about the money to UND. There is obviously and understandably a lot of emotion involved and that's what 95% of the president's letter reveals. The president also said that a jury would see it their way; but that's IF it gets to a jury. When you cut straight to the legalities, the NCAA implemented a policy that applies to all members and that it thought would be good for its product and image. Assuming UND was not treated differently in the process, they lose. And a court might even be sympathetic to the fact that it only applies to the postseason, does not prevent UND from participating in the postseason, and does not even require UND to change the nickname or logo.

Blogger Rick Karcher -- 6/17/2006 7:40 AM  

Rick, I think that you are right in that, assuming the lawsuit is not tossed out earlier or the parties settle, it may come down to whether UND was treated differently than the other schools with American Indian nicknames and logos.

If I were the NCAA, I'd have stayed out of this area for now; particularly since I don't believe that a viewer or attendee of a sporting event at UND who is offended by the logo would feel that the NCAA or visiting schools in the competition were the responsible parties.

Twenty years ago, when I was sitting around with friends watching sports and if topic of the NCAA came up, my recollection is that we generally thought the NCAA was a necessary good cop, keeping those evil schools in the Big Twelve and SEC from cheating too much. Now, when the topic of the NCAA comes up among the friends and the fans I'm around (and it certainly comes up much more frequently as a topic), the NCAA's reputation seems to be on par with common perceptions of Microsoft - big, evil and greedy.

Ultimately, I don't think that perception of the NCAA is good for college sports, and, someday, may hurt the NCAA in any legal proceedings. I also believe that the NCAA's overreach in this area of logos and nicknames is a net negative for them in public/fan perception. Your opinion may differ.

Interesting discussion. Thanks.

Anonymous Senator Blutarski -- 6/19/2006 9:07 PM  

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