NoiseInsideMyHead

WTF. That same security guard yanked that same guy taking a cell phone pic during the on-ice ESPN interview on Thursday.

Well, we have some special programs. Uh, we're doing Shakespeare in the Round again this year, of course. Uh, our political round table, Henry Kissinger will appear. Yasser Arafat is gonna come out, spend a weekend with the kids. Just rap with them. And the kids wanted animals. So this year, we will each stalk and kill our own bear in our private wildlife preserve. But, the real excitement, of course, is gonna come at the end of the summer, during Sexual Awareness Week. We import 200 hookers from around the world, and each of us, armed with only a thermos of coffee and $2,000 cash, tries to visit as many countries as he can and the winner, of course, is named ''King of Sexual Awareness Week'' and is allowed to rape and pillage the neighboring towns until summer ends.

Has there ever been much of a call for a consolation game at the FF?

On the plus side, God I miss the days before "The Bottom Line." That thing has basically ruined watching sports on ESPN.

ESPN3's "Multicam" is tolerable, but it would be infinitely better with clock and scoreboard.

Yet, the enactment of a law by the North Dakota legislature is NOT a defense to breach of contract. Had the NCAA been so inclined, it could have sued UND for failing to adopt a nickname in accordance with the terms of the settlement agreement. The legislatively mandated 'cooling off' period would have explained the breach, but not excused it. I wonder why the NCAA didn't go that route. Hmmm...

"Black and white, clear as crystal."

This is actually a compliment…you're not thinking like a lawyer.

Because the underlying assumption was that no new nickname = Fighting Sioux. This assumption was proven false. It is that simple. The settlement agreement -- like every other contract -- was flawed and in the event of a dispute, will need to be read in accordance with well-established rules of construction. People should not be dazzled by the words on the page; they don't always tell the whole story.

Au contraire. What about UND's monetary damages when it prevails on its claim that the NCAA acted arbitrarily and capriciously and in flagrant disregard of associational rules and bylaws by imposing sanctions on a member for conduct that was not occurring and had not occurred for years?

See above re: damages. Short version -- the NCAA doesn't have any.

The "sanctions list" you describe did not exist in a vacuum. It's not a weapon in the NCAA arsenal that is to be freely wielded. Those sanctions were and are forever tied to specific conduct in violation of NCAA rules. That conduct was utilizing a nickname deemed by the NCAA via its Native American nickname policy to be hostile and abusive. No nickname => no utilization => no list => no sanction. This is simple logic. The contract issue is a red herring; the NCAA's sole remedy would be an action for breach. Punishment for conduct that is not occurring is beneath even the NCAA.

Whether any one of us agrees or not, perceived racism and cultural insensitivity are a real problem and easy to motivate people around (especially those dreaded PC types). That's how and why the NCAA's nickname policy was adopted in the first place. Stand up in opposition and be forever labeled as a knuckle-dragger. Fast forward a few years. Trying to enact a new rule that would require institutions to adopt a nickname is not exactly going to generate much excitement or buzz around the water cooler. There's no race-baiting victimization card to play, and we're getting even further afield from the NCAA's core mission. I don't see it happening.

Fortunately, we have a longstanding tradition in this country of rejecting rules, especially criminal laws and other punitive regulations, that are applied "ex post facto". That's the reason there are grandfather clauses in most every form of regulation, and that's the reason that UND and other schools were given the opportunity to secure tribal approval in order to get a pass on the nickname policy. Associations are interesting creatures. The voting members generally have the power, and the association has to follow its own rules. Could an association adopt a sweeping rule requiring its members to change a specific behavior? Of course, but it would very likely be subject to vigorous debate by the body at large, reflect the will of the majority, and then be implemented over time and with adequate notice for the affected members to act without fear of sanction. The failure of an association to play fair or follow its own rules can expose the association to internal unrest, mass defection, and even civil liability. The NCAA is unique because of the perceived power it wields vis-a-vis college sports. But at the end of the day, its power is limited to the governance that is put forward through its members and elected leadership. Right now I would say the NCAA is the weakest it has been in a long time, mostly due to external pressures and political whims. If the NCAA were to suggest a mandatory nickname rule, I predict that there would be a lot of opposition primarily because it's a poor exercise of the association's awesome responsibilities and it doesn't address a real problem. If passed at all, the final rule would probably even grandfather in existing no-name schools, because it would be fundamentally unfair to apply such a rule retroactively. But that is not where we are right now, and UND need not fret over such a remote possibility.

Because for better or for worse, the NCAA had a rule prohibiting its use by members without tribal approval. It's a status violation. No need to prove harm there, just like the state doesn't need to prove harm when it issues you a speeding ticket. If UND didn't like the rule, it could have quit the association or faced the music. Damages only come in to the picture when you start making legal claims, such as a breach of contract.

Yes. A contract. Which means that if one party fails to live up to its end, the other party has a legal remedy. The aggrieved party cannot unilaterally impose arbitrary punishment upon the party in breach. This includes declaring that the party is in violation of a rule that is not actually being violated and trying to impose a sanction that would do more harm than good. That would be anarchy, and would turn the rule of law on its head. No, the remedy for breach of contract is a lawsuit. In order to prevail on said lawsuit, the plaintiff must establish (1) the existence of a contract, (2) a breach, and (3) resulting harm. I will go so far as to concede (1) and (2) for the sake of discussion. Which leaves (3). I submit to you that the NCAA is not harmed by UND not having a nickname. In fact, the NCAA has no rule requiring nicknames of any of its members. There is no economic loss to the NCAA. Keep in mind that the NCAA got what it wanted…UND dropped its hostile and abusive nickname and the NCAA has one more member walking in step with its Native American nickname policy. What more could it possibly ask? Let's assume for the moment that the NCAA really was steamed about this. Ignore the fact that the NCAA is already engaged in a fight on countless fronts for its own survival, over such trivial things as: 1. Amateurism and compensation 2. Unionization 3. Player likenesses in video games 4. Player likenesses in broadcasts and DVDs 5. Long-term health effects and medical coverage 6. Having its HQ in the bigoted state of Indiana Let's also assume that the NCAA is willing to spend the time, money and effort necessary to sue UND for breach of contract. It somehow articulates a theory of 'harm' caused by UND's non-adoption of a nickname, and the judge buys it. The judge will be asked to do two things: award damages (i.e., money), and/or order specific performance (i.e., compel UND to follow through on its contractual promise to adopt a new nickname). As a baseline proposition, courts generally prefer not to compel action, especially when such action is not necessary to avoid a greater loss to someone's life, limb, or property. It's messy, and it's hardly the job of the judiciary to tell folks how to conduct their business. That's why lawsuits usually result in an award of money damages. Now, money damages must bear some relation to the actual harm suffered by the plaintiff. Courts are known to award nominal damages in a case that lacks any real economic harm. Where and how is the NCAA harmed here? I just don't see it. The NCAA won. It's nickname policy was vindicated. "Butt-hurt" and injured pride are not compensable. You ask, "What part of [the contract] do people not understand?" I am telling you that this has less to do with the contract and far more to do with the realities - both economic and legal - in which the parties to the contract find themselves. This is not unusual. Very few legal "wrongs" are ever righted. Costs versus benefits. Risks versus rewards. Battles are picked. There are reasons to pick a new name, and not to pick a new name. My point all along has been that fear of the NCAA should not be a driver.

Let me guess…you went to law school with this guy, right?

The list exists solely to punish schools that have a hostile and abusive nickname. The NCAA cannot just make the rules up as they go. The drafters of the settlement agreement never in a million years anticipated that no nickname was a possible outcome. There was merely an underlying assumption that no new nickname = Fighting Sioux, which has been proven false.

This paranoia schtick is so tiring. The NCAA is a lot of things, but they are not stupid. And they are not a boogeyman. They are not going to arbitrarily and capriciously punish an institution for doing nothing wrong. And no, breaching a contract and 'just pissing us off in general' are not punishable by the NCAA. Show me one NCAA sanction levied against a member that is not tied to a violation of an existing rule or bylaw. I'll wait.

Are you serious? We have ridden this merry-go-round before. There is no "naughty list" for having no nickname, because there is no NCAA rule or bylaw being violated. The NCAA's sole remedy is to sue UND for a breach of contract. Period. End of story.

And then what? It's a contract. They would have to sue. They would then have to try and win, and prove damages. On what amounts to a token breach. They will be exposed as petty tyrants. A court is not likely to compel UND to do anything, and monetary damages will be nominal. As in, a dollar. On a good day. This is not a frightening prospect. Why do so many people pee themselves when it comes to the NCAA?

But the NCAA would also have to have something else…damages. An economic incentive to sue. This is where I cringe at the armchair lawyering. What good could the NCAA possibly hope to achieve by trying to enforce this part of the settlement when it already got what it ultimately wanted? It's like sending in a high-priced SEAL team to blow up one last stupid bunker years after your defeated enemy has signed the surrender agreement and disbanded its army. Courts aren't keen on ordering extraordinary relief (which is why money damages are the norm), and ordering a public university to adopt a new nickname just to appease a perverse plaintiff is about as extraordinary as it gets.

I don't think the last chapter has necessarily been written on that. There are going to be logistic challenges with a truly "public" vote that Kelley might not have fully appreciated. If conducted online, the University will have to employ technological safeguards against spamming, spoofing, and ballot-stuffing. Not impossible, but potentially very complicated and expensive. An in-person vote on campus will necessarily favor students, staff, and local residents. Ballots by mail can be directed to particular recipients, whereas a print-at-home and mail-in ballot might be more 'accessible' to a wider population. It may be that vote integrity wins out over unfettered inclusion, despite the somewhat lofty intentions originally declared.

Are people confusing the very open and public call for suggestions with the as-yet undefined "public" vote? I think that would be a mistake. At least until the parameters of the vote are announced.

The criticisms of Kelley are fascinating. What were his options, really? 1. Public vote (however one defines 'public') 2. Small, hand-picked committee 3. Large, hand-picked committee 4. Presidential fiat 5. Inaction (a/k/a practically begging the ND legislature to step in where it is not welcome) Am I missing any? Can anyone honestly make a compelling case for one over the others?