Retiring Chief Illiniwek

The University of Illinois, in a recent move both heralded and reviled, “retired” its 81-year-old mascot “Chief Illiniwek” following the Illini’s last home basketball game of the season. In a controversy that has plagued the University of Illinois for at least the past fifteen years, administration officials finally bowed to pressure applied by the NCAA, deciding to discard the “mascot” that has represented the University since the 1920s.

Supporters of the Chief Illiniwek mascot claim that the white student that dresses in buckskin, native headdress, and face paint pays homage to American Indians in the United States and honors the history and tradition of the original Americans. American Indian groups and other opponents of Chief Illiniwek decry the student mascot as demeaning, derogatory, offensive and disrespectful to Native Americans and their traditions.

In 2005, the NCAA agreed, albeit tepidly, with opponents of American Indian mascots and demeaning imagery by barring any University that makes use of offensive, hostile or abusive American Indian images from hosting any postseason tournaments or events. Thus, the NCAA banned its member institutions from hosting postseason events if it continued to use derogatory or offensive American Indian mascots. The NCAA in so deciding, placed itself in the position of “arbiter of offensiveness” by allowing member institutions to petition the NCAA for exemption from the new policy. Several University’s successfully petitioned the NCAA to allow continued use of American Indian nicknames and logos, including the Florida State Seminoles and the University of Utah Runnin’ Utes, based in part on the local Native American tribe approval of the continued use of the mascot and image.

The University of Illinois “Fighting Illini” and the University of North Dakota “Fighting Sioux” both petitioned the NCAA for exemption and were denied based primarily on the continued derogatory imagery associated with the mascots at those schools, as well as staunch opposition to continued use by local American Indian tribes. In response to the denial of the petitions, lawsuits have been filed against the NCAA by both the University of North Dakota and by two former Illinois students who had previously portrayed Chief Illiniwek. A state district court judge in North Dakota recently entered a preliminary injunction against the NCAA allowing North Dakota to host a home playoff football game this past season. North Dakota claims that the NCAA’s ban breaches contractual relationships with its member institutions and is in violation of antitrust laws. The NCAA plans to vigorously defend its ability to regulate member institution activities. A trial has been set for December 2007.

This running controversy raises several questions of great import: First, since Tarkanian, the NCAA has been afforded nearly carte blanche authority over its member institutions. It is difficult to envision a scenario wherein the NCAA will be found to have exceeded its authority, breached contracts or violated antitrust laws in banning member institutions from hosting postseason events so long as the voluntary member institution continues to use hostile or abusive mascots or logos. Second, if American Indian citizens of the United States are in fact offended, deeply offended, by the mockery of traditions and sacred rituals, why are University administration officials fighting, literally scrapping to continue to offend American Indian citizens? Third, what difference should it make that some American Indian citizens are offended while it is well documented that other Native Americans are not bothered at all by the imagery and in fact claim to be proud of the recognition?

Some argue that the NCAA’s ban is a step in the right direction. Others suggest that the NCAA has been cowardly in not mandating an outright ban against any continued use of American Indian imagery by member institutions. This debate promises to continue for years to come.

And, what is to be made of the continued use of professional sports franchises that cling to American Indian symbols, logos, mascots and images (i.e., Atlanta Braves, Washington Redskins, Chicago Blackhawks, Kansas City Chiefs, Cleveland Indians, etc.)?

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Ron Paul for President

I am supporting Ron Paul for the GOP presidential nomination. I do not agree with Paul on a couple of issues like immigration. But overall, he is the candidate who comes closest to my political outlook.

I doubt he will win against guys like McCain and Giuliani, but I hope he pulls off some grassroots support and gets our viewpoint heard.

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Banning Boo Birds

The Washington Interscholastic Activities Association is considering a rule that would ban booing, negative comments, and offensive chants at high school sporting events.

I previously have written on whether any type of fan "cheering speech" can be regulated or prohibited at college and professional sporting events. My conclusions in those contexts has been (not surprisingly to those who have been reading me the past few months) that such prohibitions violate the freedom of speech. They also are practically unenforceable, at least in a fair, neutral, and even-handed way. And they are a really stupid idea.

As to banning booing and negative comments: This would run afoul of the First Amendment's basic prohibition on rules that discriminate based on "viewpoint"--rules that permit speech on a topic from one point of view while prohibiting speech on the same topic from a different point of view. Allowing me to cheer for and praise Player X on Team A, but prohibiting me from booing or criticizing Player X on Team A obviously discriminates against one point of view--the negative or critical one. Government cannot require people to "keep things positive."

As to offensive chants: This breaks down on the problem of "offensive to whom?" Is the level of acceptable cheering whatever is acceptable to the most sensitive/least tolerant person in the audience? Acceptable to the school administrator? To the usher?

Plus, much offensive speech is subtle enough that those in charge do not actually recognize that it might be offensive. My favorite example (which I always run back to in all my articles) is what happened when Texas Tech played at Kansas in men's basketball in 2004, a game played a few days after Tech Coach Bob Knight's infamous altercation with the university chancellor at a salad bar in Lubbock. During the game, Kansas fans chanted "salad tosser" at Knight and most listeners (including KU Coach Bill Self and university administrators) praised the students for their cleverness. But go look-up the term salad-tosser as a piece of slang. Think the students knew this when they picked out that phrase?

The point is that prohibiting "offensive speech" is both over-inclusive and under-inclusive. It is over-inclusive because officials tend to get overly sensitive and thus to over-regulate. It is under-inclusive because more subtle (but not less offensive) examples will be missed.

All that said, the fact that this is occurring at the high school level potentially (likely?) changes the analysis. High schools are able to regulate student expression (certainly in school-sponsored and school-funded activities, if not beyond) in ways that would be unacceptable and impermissible on a college campus or in society at large. This includes prohibiting particular points of view on some subjects from being presented within the school confines.

That is why it is important to consider, First Amendment rules to one side, the stupidity of such policies. Whether or not Washington officials could do this gives way to whether Washington should do this. My answer is they should not.

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Florida Coastal Symposium: The NCAA Enforcement Process

On Thursday March 15th, there will be an in-depth panel discussion at my law school about the practical and theoretical aspects of the NCAA enforcement process. We have invited some of the key players to serve as panelists who are entrenched in the enforcement process: Jo Potuto, Chair of the NCAA Infractions Committee; Jerry Parkinson, one of the committee's two coordinators of appeals; and Rick Evrard, attorney at the firm of Bond, Schoeneck & King. Their bios can be accessed here. The panel will be moderated by my colleague, Professor Nancy Hogshead-Makar, who teaches our Amateur Sports Law course and has a very impressive bio in collegiate athletics as well.

Joe Drape wrote a timely piece in yesterday's edition of The New York Times about the increased hiring of specialized law firms by universities for representation not only with respect to a pending investigation by the NCAA as one might expect, but to actually perform an internal audit and recommend sanctions before the NCAA has even started investigating ("Facing N.C.A.A., the Best Defense Is a Legal Team"). The article features Evrard, who spent seven years as an NCAA investigator, and his law firm, which represents more than 60 colleges and universities on matters of eligibility, compliance and major infractions investigations. Drape makes some interesting observations:

It used to be that the N.C.A.A. caught wind of a problem at a university, investigated and meted out punishment. Now, with a stretched staff and member institutions often feeling wary of the enforcement process, outside firms have become the nexus for law and order in college sports.

....

The N.C.A.A.’s Division I, the major athletics division where the bulk of serious recruiting and academic violations occur, has 325 institutions and 150,000 student-athletes. Yet the enforcement division for major violations has only 29 staff members, with each working on no more than three cases at a time.

....

Athletic directors say a thorough and quiet internal investigation provides an institution with a greater understanding of what went wrong and minimizes the risk of a public relations disaster. Because these lawyers were once a part of the N.C.A.A., they say they understand what punishment fits a particular offense, so they recommend a course of corrective action for the university and penalties it can immediately impose. Although the N.C.A.A.’s infractions committee sometimes adds further restrictions, it rarely rejects the recommended sentence.

According to Evrard: “Some institutions distrust the N.C.A.A. enforcement staff. There is a feeling that the N.C.A.A. is not attuned to the sensitivities of the institution. And some of it is that the N.C.A.A. staff are often young professionals just out of law school, and they are running a case from beginning to end, which, if they were litigators at some firms, they may not be allowed to do for 10 or 12 years.”

To me, Drape's last comment pretty much sums up the purpose for hiring outside law firms to perform internal audits and recommend self-imposed sanctions: The infractions committee "rarely rejects the recommended sentence." And let's face it, cooperation with the NCAA is key. The outside law firm appears to almost act as an intermediary as opposed to the adversarial role typically performed by lawyers. In a previous post, I discussed how universities could benefit from hiring a full time in-house attorney to work exclusively in the athletics department, and this is definitely an area by which in-house attorneys can play a valuable role as well.

UPDATE 3/16/07: Jason Schneider of the Florida Times-Union wrote a great article about the issue ("Firms offer help when schools face legal woes")

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Dean Karnazes Interview

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DVD-Running on the Sun

Running on the Sun is a documentary about the Badwater Ultramarathon which is a 135 mile footrace across Death Valley in the middle of July. Crazy? You bet.

To understand Badwater, you have to understand ultrarunning. These people care less about winning than they do about finishing these sufferfests. Badwater is probably the hottest of these events, but you have other races like the Western States 100 which climb mountainous trails. In order to complete one of these things requires massive amounts of fluids and calories and constant care of the feet. Some ultrarunners even go so far as to have their toenails surgically removed since they usually turn black and fall off anyway.

In Badwater, participants are followed by crew vehicles, and they are basically babied every step of the way. There is always water and food and footcare. If they get too hot, they can cool off in the vehicle. If they get an IV, they are disqualified.

At some point, you have to ask yourself if ultrarunning is even a sport. I don't think it is. To me, it is a stunt akin to mountain climbing. It shouldn't even be called ultrarunning because the participants walk large portions of the course. Finally, I think it is stupid because they risk sickness, injury to vital organs, and even death by doing these things.

To me, ultrarunners are not real runners like the people who train to compete in marathons. Marathoners want to put up a good time. They run the entire distance, and their only support is cups of Gatorade and maybe a shot of energy gel. It's like the difference between a guy who plays basketball, and a guy who enters a contest to see how long he can dribble a basketball. What is the dividing line between sport and stunt? I don't know, but I really believe that Badwater qualifies as a stunt.

Running on the Sun is rather boring unless you are an ultrarunner (which I'm not) or enjoy seeing people lance blisters on their feet. I don't recommend it.

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South Park

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