New Nickname

[The Sicatoka]

Was UND in compliance with the Settlement Agreement on September 24, 2012?

 

Yes, because UND was " ... in transition to a new ... " 

 

Step one was complete -- dropping old

Step two was in process -- wait out state law to 1/1/15

Step three to infinity were in the works or running -- committee after committee after committee

 

 

I believe the NCAA (OK, maybe their legal council) is prudent enough to not force the issue while UND was hamstrung by state law. Again, notice Kelley had all the transition machinery up and running overtly immediately after 1/1/15. 

[mksioux]

Yes, because UND was " ... in transition to a new ... " 

Paragraph 2.d. states:

 

"If UND does not adopt a new nickname and logo or if the transition to a new nickname and logo is not completed prior to August 15, 2011, then UND will be returned to the list of institutions subject to the Policy."  (emphasis mine)

 

So should the original settlement agreement be read literally or not?  Because, you know, I thought that was your whole point.  

[The Sicatoka]

And that goes back to --> Does one party have to enforce terms of a contract immediately?

 

Is there a statute of limitations on when the NCAA may choose to enforce it?

 

It seems perpetual, because if UND were to reinstate "Fighting Sioux" in the year 2102 it's back on the "naughty list". 

 

This is where I'll repeat, I believe the NCAA (OK, maybe their legal council) is prudent enough to not force the issue while UND was hamstrung by state law. Again, notice Kelley had all the transition machinery up and running overtly immediately after 1/1/15. The NCAA may well view that as "good faith" and is holding off. 

[mksioux]

Yes, because UND was " ... in transition to a new ... " 

 

Step one was complete -- dropping old

Step two was in process -- wait out state law to 1/1/15

Step three to infinity were in the works or running -- committee after committee after committee

 

 

I believe the NCAA (OK, maybe their legal council) is prudent enough to not force the issue while UND was hamstrung by state law. Again, notice Kelley had all the transition machinery up and running overtly immediately after 1/1/15. 

Does "completed" mean that it needed only to do one step toward completion?  I'm confused because I thought I had to read the Settlement Agreement literally.  If "new" has to mean "new" then doesn't "completed" have to mean "completed?"  

[mksioux]

And that goes back to --> Does one party have to enforce terms of a contract immediately?

 

Is there a statute of limitations on when the NCAA may choose to enforce it?

 

It seems perpetual, because if UND were to reinstate "Fighting Sioux" in the year 2102 it's back on the "naughty list". 

 

This is where I'll repeat, I believe the NCAA (OK, maybe their legal council) is prudent enough to not force the issue while UND was hamstrung by state law. Again, notice Kelley had all the transition machinery up and running overtly immediately after 1/1/15. The NCAA may well view that as "good faith" and is holding off. 

I'll answer these questions, but I first need to understand your position.  Is your position:

 

a) that UND was in compliance with the Settlement Agreement on Sept. 24, 2012, or 

b) UND was not in compliance with the Settlement Agreement on Sept. 24, 2012, but the NCAA cut UND some slack given the state law prohibiting UND from adopting a new nickname before 1/1/15

[jdub27]

I'll answer these questions, but I first need to understand your position.  Is your position:

 

a) that UND was in compliance with the Settlement Agreement on Sept. 24, 2012, or 

b) UND was not in compliance with the Settlement Agreement on Sept. 24, 2012, but the NCAA cut UND some slack given the state law prohibiting UND from adopting a new nickname before 1/1/15

 

My take: UND was in compliance with the purpose and intent that was the basis for the settlement agreement but due to outside forces beyond their control, the time line portion of it was thrown off.  Because UND continued to show they were working towards transitioning towards a new nickname (and had dropped the previous nickname and logo), the NCAA used its discretion to continue to (at the time) overlook the dates and leave them off the sanctions list knowing that they had the power to put UND back on the sanctions list if things didn't continue to progress. 

 

I get your point about the timeline.  I don't think the NCAA had much to gain by punishing UND for the ND State Legislature's actions and choose not to because UND appeared to be trying to adhere to the intent of the settlement agreement.

[Benny Baker]

"provided the University remains in compliance with the terms of the Settlement Agreement."

 

Funny how you and others keep forgetting that part.  The terms of the settlement stated that UND had to adopt a new nickname.  Any the addendum that was signed states that UND must ramin in compliance with that.  It really is that simple.  Not sure what is so hard to understand about that.

No, but you're misunderstanding it.  To "remain in compliance" means that UND was in compliance with NCAA's policy in September 2012 even when it did not have a nickname.  One cannot "remain in compliance" with a rule if one is not already complying with the rule.  The rule, the settlement agreement, did not contemplate or consider any/grace period after August 15, 2011.  You people are just making up some theory that the NCAA has allegedly allowed UND some sort of quasi-indefinite grace period, and that the NCAA might drop the hammer at any time.

 

Yes, because UND was " ... in transition to a new ... " 

 

Step one was complete -- dropping old

Step two was in process -- wait out state law to 1/1/15

Step three to infinity were in the works or running -- committee after committee after committee

 

 

I believe the NCAA (OK, maybe their legal council) is prudent enough to not force the issue while UND was hamstrung by state law. Again, notice Kelley had all the transition machinery up and running overtly immediately after 1/1/15. 

Absolutely not!  UND was legally prohibiting from doing ANY transition during this time.  I know you know that.  More importantly, you also know that the deadline for a transition, if any, was August 15, 2011.  UND did not make any transition by then; yet, the NCAA agreed that UND was in compliance on September 24, 2012 when it retired "Fighting Sioux".

[Benny Baker]

My take: UND was in compliance with the purpose and intent that was the basis for the settlement agreement but due to outside forces beyond their control, the time line portion of it was thrown off.  Because UND continued to show they were working towards transitioning towards a new nickname (and had dropped the previous nickname and logo), the NCAA used its discretion to continue to (at the time) overlook the dates and leave them off the sanctions list knowing that they had the power to put UND back on the sanctions list if things didn't continue to progress. 

No they weren't.  The only reality is that the state of North Dakota, which UND is a part of, created a law refusing to allow any transition towards a new nickname for three years!

 

I understand that this may just be your "take" but its clearly based upon unsupported assumptions and falsehoods.  But in all of your other posts, your position misinforms all of the posters on this message board.  Stop spreading this myth.

[zonadub]

and I ask the question: is remaining nameless what the student athletes want or what a bunch of old farts want?

[zonadub]

No they weren't.  The only reality is that the state of North Dakota, which UND is a part of, created a law refusing to allow any transition towards a new nickname for three years!

 

I understand that this may just be your "take" but its clearly based upon unsupported assumptions and falsehoods.  But in all of your other posts, your position misinforms all of the posters on this message board.  Stop spreading this myth.

and that is your "take" on the situation. Why are you so adamant that UND remains nameless?

[Benny Baker]

and I ask the question: is remaining nameless what the student athletes want or what a bunch of old farts want?

Regarding student athletes, I know that most of the hockey players are on record as wanting the "Fighting Sioux" name back, if that helps.

[jdub27]

No, but you're misunderstanding it.  To "remain in compliance" means that UND was in compliance with NCAA's policy in September 2012 even when it did not have a nickname.  One cannot "remain in compliance" with a rule if one is not already complying with the rule.  The rule, the settlement agreement, did not contemplate or consider any/grace period after August 15, 2011.  You people are just making up some theory that the NCAA has allegedly allowed UND some sort of quasi-indefinite grace period, and that the NCAA might drop the hammer at any time.

 

Absolutely not!  UND was legally prohibiting from doing ANY transition during this time.  I know you know that.  More importantly, you also know that the deadline for a transition, if any, was August 15, 2011.  UND did not make any transition by then; yet, the NCAA agreed that UND was in compliance on September 24, 2012 when it retired "Fighting Sioux".

 

At what date was UND "in compliance"?  To "remain in compliance" at the date of the addendum (which was only in relation to imagery at the REA and BESC), they would have had to previously be "in compliance".  Yet you also claim that the addendum removed UND from the sanctions list and put them "in compliance".  How can it be both?

 

And because UND was outwardly doing anything that appeared to be transitioning to a new nickname does not mean that there weren't internal workings that were shared with the NCAA.  By publicly moving towards a new nickname, they would have been in violation of the state law.  That doesn't mean there wasn't anything going on within.

[Benny Baker]

and that is your "take" on the situation. Why are you so adamant that UND remains nameless?

Just because I'm explaining what a settlement agreement states does not mean I have any preference on what UND does going forward with respect to a new nickname.

 

Since I answered your question, please cite to a post where I have been adamant that UND remain nameless.

 

[Benny Baker]

At what date was UND "in compliance"?  To "remain in compliance" at the date of the addendum (which was only in relation to imagery at the REA and BESC), they would have had to previously be "in compliance".  Yet you also claim that the addendum removed UND from the sanctions list and put them "in compliance".  How can it be both?

 

And because UND was outwardly doing anything that appeared to be transitioning to a new nickname does not mean that there weren't internal workings that were shared with the NCAA.  By publicly moving towards a new nickname, they would have been in violation of the state law.  That doesn't mean there wasn't anything going on within.

"How can it be both?"  I never said the addendum put UND "in compliance".  I did say that the addendum says that UND must "remain in compliance".  By "remain", UND already was in compliance because it retired its nickname.  In other words, UND was in compliance when it retired its nickname.  Again, wasn't that the whole point; i.e., to retire hostile and abusive nicknames?

 

The August 15, 2011 date had come and passed by the time the addendum was signed.  It doesn't matter anymore.  Most importantly, the addendum supersedes and controls the settlement agreement.

[mksioux]

My take: UND was in compliance with the purpose and intent that was the basis for the settlement agreement but due to outside forces beyond their control, the time line portion of it was thrown off.  Because UND continued to show they were working towards transitioning towards a new nickname (and had dropped the previous nickname and logo), the NCAA used its discretion to continue to leave them * off the sanctions list knowing that they could put UND back on the sanctions list if things didn't continue to progress. 

You just drafted a pretty good Recital to the addendum to the Settlement Agreement.  If the NCAA actually shared your understanding of the original settlement agreement, any semi-competent lawyer would have included a similar Recital in the addendum and you just demonstrated that you'd make a better lawyer than the actual lawyers the NCAA employed. That's quite a compliment considering the fact that the NCAA employed three high-priced law firms in this lawsuit and a Fargo attorney who went on to become a judge. 

 

* to quibble just a bit - "continue to leave them off" the list is not accurate.  UND was ON the list when it failed to retire the Sioux name by Aug. 15, 2011 (to refresh your memory, the 2012 west regional games against W. Michigan and Minnesota, the UND hockey team could not wear their Sioux uniforms despite the fact that UND was still the Sioux at that time).  After UND dropped the Fighting Sioux nickname, the NCAA affirmatively took them off of the list (hence, the word "remove" in paragraph 3 of the addendum).  We're not talking about a failure to enforce.  Rather, we're talking about an affirmative act to remove UND from the list.  That makes all the difference in the world.

[mksioux]

At what date was UND "in compliance"?  To "remain in compliance" at the date of the addendum (which was only in relation to imagery at the REA and BESC), they would have had to previously be "in compliance".  Yet you also claim that the addendum removed UND from the sanctions list and put them "in compliance".  How can it be both?

 

And because UND was outwardly doing anything that appeared to be transitioning to a new nickname does not mean that there weren't internal workings that were shared with the NCAA.  By publicly moving towards a new nickname, they would have been in violation of the state law.  That doesn't mean there wasn't anything going on within.

Under my theory, UND was in compliance on Sept. 24, 2012.  Therefore, the NCAA removed UND from the list as part of the addendum and required UND to remain compliance.

 

Under your theory, UND was not in compliance on Sept, 2012.  Yet, the NCAA removed UND from the list anyway, without explanation.  And, for some reason, made that removal from the list contingent on UND remaining in compliance with an agreement they were not in compliance with the day they signed the addendum.

[siouxfan512]

I like how everyone on this thread is apparently a contract lawyer. I think everyone is looking into the specific language too much, and thinks the NCAA really cares more than they do. IMO, they already won their fight; we got rid of the name and logo and despite the contractual language I don't think they care if the University of North Dakota is UND or the UND Norse/Roughriders/Jets/etc.

 

The NCAA doesn't have an actual opinion on the issue of it would have been a single rule to apply to all schools across the board. The NCAAs entire stance on this issue is nothing more that a PR move to show that they are trying to be sensitive to liberal PC crowd, whild still appeasing their large money making schools. As mentioned earlier, I think their approach to the issue would be that if fans continue to wear Sioux apparel and use the name they will be dissappointed, but it is out of their control and they have done all they can by working with "forcing" the university to retire the name. They will say they cannot control the narrow mindedness of all fans.

 

The NCAA doesn't have morals one way or another, and like I said for them this has been a PR victory to the liberal PC crowd.

[mksioux]

"provided the University remains in compliance with the terms of the Settlement Agreement."

 

Funny how you and others keep forgetting that part.  The terms of the settlement stated that UND had to adopt a new nickname.  Any the addendum that was signed states that UND must ramin in compliance with that.  It really is that simple.  Not sure what is so hard to understand about that.

So the NCAA signed an addendum that removed UND from the list of schools subject to the policy, contingent upon UND remaining in compliance with an agreement UND was not in compliance with on the day the addendum was signed?   Do I have that right?

[The Sicatoka]

 

I'll answer these questions, but I first need to understand your position.  Is your position:

 

a) that UND was in compliance with the Settlement Agreement on Sept. 24, 2012, or 

b) UND was not in compliance with the Settlement Agreement on Sept. 24, 2012, but the NCAA cut UND some slack given the state law prohibiting UND from adopting a new nickname before 1/1/15

 

My answer is c) On September 24, 2012, yes, in compliance, but solely because ... 

 

... UND was " ... in transition to a new ... " 

 

... and the NCAA cut UND some slack given the state law prohibiting UND from adopting a new nickname before 1/1/15.

 

So what do we call that? Quasi-compliance? En route to full compliance (along a slow and narrowed by because of legislature actions)? 

[mksioux]

 

 

 

 

My answer is c) On September 24, 2012, yes, in compliance, but solely because ... 

 

 

... and the NCAA cut UND some slack given the state law prohibiting UND from adopting a new nickname before 1/1/15.

 

So what do we call that? Quasi-compliance? En route to full compliance (along a slow and narrowed by because of legislature actions)? 

 

Sorry, I have no idea what you call that.

 

Seriously, you might be thinking about impossibility or substantial compliance or something like that, none of which apply here.

 

If a state law could trump the settlement agreement, then the original law requiring UND to stay the Fighting Sioux would have gotten UND off the hook.  As we all know, the NCAA didn't give two ________ about that law and placed UND back on the list anyway when UND failed to retire the nickname by Aug. 15, 2011.  Likewise, a state law allowing UND to retire the nickname, but not allowing UND to adopt a new nickname until 1/1/15 wouldn't bring UND into compliance.  UND was either in compliance or not in compliance on September 24, 2012.

[The Sicatoka]

Sorry, I have no idea what you call that.

 

The Road to the Final Compliance.

 

< CBS "Road to Final Four" music here > 

 

[mksioux]

I apologize to most people having to read this for beating a dead horse until its remains are unrecognizable.

 

I just think this myth that UND must adopt a new nickname or go back on the sanctions list has spread far enough and needs to be stopped.  Whether UND adopts a new nickname should be decided on whether its the right move for UND.  There are lots of good reasons to adopt a new nickname.  I prefer certain nicknames over no-nickname, but prefer no-nickname over some of the nicknames that have been floated on this board (particularly the unoriginal ones).  Ultimately, I hope the committee suggest finalists that will at least be acceptable and will allow most people to move on.  

 

A couple parting questions to those that still believe the settlement agreement requires UND to adopt a new nickname:

 

Do you think President Kelley wants a new nickname?  I do.  

 

Don't you think, if it was at all possible, he'd love to pin this on the NCAA and say the settlement agreement requires UND to adopt a new nickname?  I do.  

 

The fact that he has stated no-nickname is an option speaks volumes that it is, in fact, an option.  I don't think he particularly liked saying that.  If there was a reasonable legal interpretation that the NCAA required a new nickname, I believe he would say very publicly that the settlement with the NCAA requires UND to adopt a new nickname and remove himself from being the one to shoot down an option that is very popular in some quarters.

[engelbunny]

A few problems with your reasoning.  A lot of the people that claim to be "honoring" the Sioux tribe by using the name actually know very little about the actual tribes and the history of the people.  It is very difficult to honor someone when you don't know anything about the people that you are honoring.  And I would be willing to bet that most people that claim they are trying to "honor the tribe" would fail a test on the history and customs of the actual Dakota, Lakota and Nakota tribes.  In addition, some of that same group that claim to be "honoring" the Sioux people will start throwing insults at any actual Sioux people that disagree with them.  You don't have to agree with them, but you can't honor a people and insult them at the same time.

Your points are valid, but I am not trying to paint a broad brush by assuming that everyone for the name has honorable intentions.  Certainly many do not.  However, many do; and the University's intent was to honor.  You cannot also not deny that there are many in the Dakota, Lakota, and Nakota tribes that perceived the name to be an honor and they now feel they have been betrayed by the loss of the name.    Finally, I also recognize that others in the Sioux tribes feel strongly in the complete opposite, which is a perfectly valid viewpoint and undeserving of any insult, to say the least. 

 

If UND decides to go the no nickname route, then they must maintain control over the name and logo.  To do otherwise would be a disingenuous farce.  But if UND chooses to implement a new name and logo, the institution is making the definitive statement that going forward they are something other than the "Fighting Sioux",  so what is wrong with gifting the name and the Brien logo to the local tribes.  The gift would be one given in honor, It would certainly put the matter to rest once and for all, and it is completely within UND's right to do so under the settlement agreement.  If the tribes feel that the name is an insult, they can do nothing with it.  If they don't, they can market it.  That would be their business.  You seem to be worried about competition against a new name.  So what?  There is already enough Fighting Sioux merchandise in the hands of "die hards" to last for decades anyway.  And what's wrong with the tribes making money?

[82SiouxGuy]

I apologize to most people having to read this for beating a dead horse until its remains are unrecognizable.

 

I just think this myth that UND must adopt a new nickname or go back on the sanctions list has spread far enough and needs to be stopped.  Whether UND adopts a new nickname should be decided on whether its the right move for UND.  There are lots of good reasons to adopt a new nickname.  I prefer certain nicknames over no-nickname, but prefer no-nickname over some of the nicknames that have been floated on this board (particularly the unoriginal ones).  Ultimately, I hope the committee suggest finalists that will at least be acceptable and will allow most people to move on.  

 

A couple parting questions to those that still believe the settlement agreement requires UND to adopt a new nickname:

 

Do you think President Kelley wants a new nickname?  I do.  

 

Don't you think, if it was at all possible, he'd love to pin this on the NCAA and say the settlement agreement requires UND to adopt a new nickname?  I do.  

 

The fact that he has stated no-nickname is an option speaks volumes that it is, in fact, an option.  I don't think he particularly liked saying that.  If there was a reasonable legal interpretation that the NCAA required a new nickname, I believe he would say very publicly that the settlement with the NCAA requires UND to adopt a new nickname and remove himself from being the one to shoot down an option that is very popular in some quarters.

Or is it possible that the NCAA hasn't given anyone an answer about whether they are going to enforce the "new nickname" portion?  Maybe that's why Kelley hasn't eliminated no nickname as a possibility.  He wouldn't be able to commit either way if the NCAA hasn't answered the question.  And we know that the NCAA is very good at not answering questions if they don't want to answer the question.

[mksioux]

Or is it possible that the NCAA hasn't given anyone an answer about whether they are going to enforce the "new nickname" portion?  Maybe that's why Kelley hasn't eliminated no nickname as a possibility.  He wouldn't be able to commit either way if the NCAA hasn't answered the question.  And we know that the NCAA is very good at not answering questions if they don't want to answer the question.

The addendum is the NCAA's answer to that question, at least from a legal standpoint.  One more time, this isn't simply a case of the NCAA taking no action to enforce a right under the settlement agreement.  This is a case of the NCAA affirmatively removing UND from the list and stating UND was in compliance with the settlement agreement.  If this ended up in court, which I highly doubt it ever would, and even if the court agreed that the original settlement agreement required UND to adopt a new nickname and that no-nickname was not enough - the addendum signed in 2012 would make this a very easy case of waiver.