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....

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