Submitted Nicknames

[Siouxperfan7]

NoiseInsideMyHead, you need to start listening to the noise being made by people on this thread.  It really is this simple.  UND signed a settlement that said they will either gain approval from namesake tribes or select a new name if approval is not obtained.  There does not have to be a standing rule in place for them to enforce this.  This rule only applies to the parties listed on the settlement agreement.  IF you think that the NCAA is too busy with other things to be concerend about a small school in podunk North Dakota, you are worng.  They certainly cared enough to fight UND in court.  Again, as stated before, if UND decides to go with no nickname, all the NCAA needs to do is point to the settlement agreement and inform UND they are in breach of contract.  How much time would that take an NCAA lawyer, about 2 minutes in an email?  I think they have time for that. 

[nosidel]

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'm certainly not an attorney, but seems to me that UND's failure to adopt a new nickname would not be a breach of contract. What happens in that circumstance is covered under the terms of the contract (UND goes back on sanctions). No suit for breach would be necessary.

[Shawn-O]

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.

 

Have you been paying attention the last ten years?  Nobody cares!   None of this addresses a real problem, yet here we are!  The noises inside your head have gotten the best of you on this topic.  

[Old Time Hockey]

NoiseInsideMyHead, you need to start listening to the noise being made by people on this thread. It really is this simple. UND signed a settlement that said they will either gain approval from namesake tribes or select a new name if approval is not obtained. There does not have to be a standing rule in place for them to enforce this. This rule only applies to the parties listed on the settlement agreement. IF you think that the NCAA is too busy with other things to be concerend about a small school in podunk North Dakota, you are worng. They certainly cared enough to fight UND in court. Again, as stated before, if UND decides to go with no nickname, all the NCAA needs to do is point to the settlement agreement and inform UND they are in breach of contract. How much time would that take an NCAA lawyer, about 2 minutes in an email? I think they have time for that.

Thanks for your compelling legal opinion! Obviously Noise Inside My Head doesn't listen to the "Know-it-Alls" on this sports rube board.

NoiseInsideMyHead......I agree with your previous posts regarding this topic.

[siouxfan512]

we are talking about a public university of the state funded by my tax dollars are we not? If you want that kind of exclusive voting right you should have attended a private school.

 

So a state funded university should allow its decisions to be impacted by any resident of any of the 49 other states? There needs to be some type of control in the process.

[jdub27]

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.

 

UND is in violation of an agreement that had defined consequences.  The agreement stated that if UND was not in compliance (and replacing the nickname with a new nickname if no tribal approval was received was part of the compliance), they could be placed back on the sanctions list.  Why would the NCAA need to sue to enforce the back-end of an agreement that already spells out everything?  They aren't fighting over anything new.

[jdub27]

So a state funded university should allow its decisions to be impacted by any resident of any of the 49 other states? There needs to be some type of control in the process.

 

You're arguing with a guy who comes from and supports a school where student-athletes think that copying names out of a phone book and placing them on petitions that allow ballot measures to be voted on by the general public is OK.  Controls and accountability are of no concern as shown by the lack of discipline issued to the players. They had clearly been through enough.

[NoiseInsideMyHead]

Have you been paying attention the last ten years?  Nobody cares!   None of this addresses a real problem, yet here we are!  The noises inside your head have gotten the best of you on this topic.  

 

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.

[Siouxperfan7]

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 pretty even further afield from the NCAA's core mission.  I don't see it happening.

 

They don't have to enact any new rules.  That is why it won't be hard for the NCAA to enforce a agreed settlement agreement.  Sure you can speculate that they will do nothing.  But is it really worth the risk? 

[NoiseInsideMyHead]

UND is in violation of an agreement that had defined consequences.  The agreement stated that if UND was not in compliance (and replacing the nickname with a new nickname if no tribal approval was received was part of the compliance), they could be placed back on the sanctions list.  Why would the NCAA need to sue to enforce the back-end of an agreement that already spells out everything?  They aren't fighting over anything new.

 

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.

[NoiseInsideMyHead]

They don't have to enact any new rules.  That is why it won't be hard for the NCAA to enforce a agreed settlement agreement.  Sure you can speculate that they will do nothing.  But is it really worth the risk? 

 

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

[mksioux]

Keep in mind the context of what has happened since 2012:  

 

On February 29, 2012, the NCAA wrote a letter to UND placing UND back on the list of schools subject to the policy.  This letter is available here:

 

http://www.uscho.com/wp-content/uploads/2012/02/2012-02-29_LeBel.pdf

 

After UND subsequently retired the Sioux nickname, the the NCAA took UND off that list.  In fact, in September 2012, UND and NCAA reached a new agreement that revised the original agreement that allowed the Ralph to keep more Sioux logos than the original settlement agreement contemplated.  That agreement is mention in this story (and others), but I've never seen a copy of this revised agreement.

 

http://collegebasketballtalk.nbcsports.com/2012/09/27/ncaa-north-dakota-reach-agreement-on-removal-of-fighting-sioux-imagery/

 

While I've not seen any documentation from September 2012, I think it's relatively clear that it resulted with UND being off the list of schools subject to the sanctions. Thus, this is not a situation where the NCAA just hasn't acted yet to put UND back on the list of schools subject to the policy.  This is not a situation where the NCAA might just be monitoring the situation and choosing to delay enforcement of a right.  Instead, the NCAA acted affirmatively to take UND off the list, while, according to you all, the settlement agreement called for UND to be placed on the list of schools subject to the policy.  Why would the NCAA do this?  And, if they did, they certainly would have reminded UND that they had not completed the transition to a "new nickname" in violation of the settlement agreement and the NCAA would have reserved their rights to place UND back on this list if it didn't soon adopt a new nickname.   Any lawyer worth a dime would have made sure to tell its client to reserve its rights, particularly at a time when they're renegotiating part of the settlement agreement. And, if that happened, I seriously doubt President Kelley would say "no nickname" is an option.  He'd be waiving that 2012 agreement around telling everyone "no nickname" is not an option.  If anyone has any documentation from 2012 after UND was reinstated, I'd love to see it.  I can't find copies anywhere on the internet.  That documentation might shed light on this issue.

 

And for those that want to attack me as delusional and as someone who wants to cling to the Sioux nickname through no nickname, I'm not even firmly in the "no nickname" camp.  I have serious reservations about this process, but given the right nickname, I think a new nickname probably the better way to move forward.  But I like clarity rather than absolutists on this board that take one sentence in isolation and run around like they know everything.  Based on what is publicly known about this issue, it's not as black and white as you people seem to think. 

 

To me, the more valid concern is that, while the NCAA probably never thought about "no nickname" being a permanent option during the settlement agreement or when it removed UND from the list in 2012, it may not like it if "no nickname" is ultimately chosen as a permanent solution. If that happens, the NCAA may try to use the language from the settlement agreement to put UND back on the list.  That's a real concern.  But don't go around pretending you know exactly why the NCAA put that clause in the settlement agreement because you don't. 

 

Finally, for the record, I don't agree with NoiseInsideMyHead's analysis either.  The NCAA does not have to sue UND for damages.  All the NCAA has to do is put UND back on the list and then UND would be the party that be forced to go to court to try and get removed.  Monetary damages have nothing to do with this discussion.

[NoiseInsideMyHead]

Finally, for the record, I don't agree with NoiseInsideMyHead's analysis either.  The NCAA does not have to sue UND for damages.  All the NCAA has to do is put UND back on the list and then UND would be the party that be forced to go to court to try and get removed.  Monetary damages have nothing to do with this discussion.

 

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?  

[jdub27]

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.

 

In the settlement agreement, UND and the NCAA agreed that UND would be subject to sanctions if they did not receive tribal approval or move to a new nickname if they were unable to.  Not sure why you keep adding an extra step about the NCAA suing and monetary damages.  UND isn't in compliance and if they aren't in compliance, they agreed they could be subject to the sanctions.  Almost identical if UND would not have dropped the nickname, they wouldn't be in compliance and the sanctions could be applied.

[Shawn-O]

In the settlement agreement, UND and the NCAA agreed that UND would be subject to sanctions if they did not receive tribal approval or move to a new nickname if they were unable to.  Not sure why you keep adding an extra step about the NCAA suing and monetary damages.  UND isn't in compliance and if they aren't in compliance, they agreed they could be subject to the sanctions.  Almost identical if UND would not have dropped the nickname, they wouldn't be in compliance and the sanctions could be applied.

 

This coupled with Kelley and the Committee's public statements that "no nickname is an option" is what I can't reconcile.  

[NoiseInsideMyHead]

In the settlement agreement, UND and the NCAA agreed that UND would be subject to sanctions if they did not receive tribal approval or move to a new nickname if they were unable to.  Not sure why you keep adding an extra step about the NCAA suing and monetary damages.  UND isn't in compliance and if they aren't in compliance, they agreed they could be subject to the sanctions.  Almost identical if UND would not have dropped the nickname, they wouldn't be in compliance and the sanctions could be applied.

 

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.

[jdub27]

This coupled with Kelley and the Committee's public statements that "no nickname is an option" is what I can't reconcile.  

 

Placating the vocal minority? I guess technically it is an option but there are consequences that come with it.  My understanding from people I've talked to is that even if it is a true option, its not a good one.  I don't expect to see it on any final list.

[mksioux]

This coupled with Kelley and the Committee's public statements that "no nickname is an option" is what I can't reconcile.  

Then you're not trying hard enough.

 

The NCAA took UND off the list of schools subject to sanctions in, or around, September 2012 - at a time when UND had dropped the Fighting SIoux nickname, but had not completed a transition to a "new nickname."  That tells me that in September 2012, the NCAA didn't particularly care that UND didn't have a nickname and didn't consider it a violation of the settlement agreement.  And presumably UND has not received anything from the NCAA since that time.  

[Shawn-O]

Placating the vocal minority? I guess technically it is an option but there are consequences that come with it.  My understanding from people I've talked to is that even if it is a true option, its not a good one.  I don't expect to see it on any final list.

 

I'm not saying I have a representative sample, but based on my conversations I'm not so sure it isn't a majority.   

[jdub27]

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.

 

To me it seems that the underlying assumption has more than proven true.  Attendance at any hockey game that UND has played in this year is pretty clear evidence.

 

And don't be dazzled by the words on the page?  They seem to spell out pretty clearly the steps pretty clearly, seems that you are reading much deeper into something that isn't there.  If the NCAA decides tells UND they are in violation of the settlement agreement of either getting tribal approval or moving to a new nickname, therefore they are now subject to agreed upon sanctions, UND doesn't have a leg to stand on.  The NCAA doesn't have to sue to place agreed upon sanctions on UND.  The NCAA doesn't need to sue, doesn't need to prove damages, the agreement already spells it all out. 

[MafiaMan]

Isn't the NCAA too busy investigating cheating within the University of North Carolina basketball program to have time for this nickname stuff?

Oh, wait...

[mksioux]

 I don't expect to see it on any final list.

We can agree on that.  I don't expect "no nickname" to be a finalist.  We just disagree on the reasons why. 

 

If the NCAA decides tells UND they are in violation of the settlement agreement of either getting tribal approval or moving to a new nickname, therefore they are now subject to agreed upon sanctions, UND doesn't have a leg to stand on. 

 

 Why did the NCAA affirmatively take UND off the sanctions list when it was "clearly" in violation of the agreement at the time?  

[NoiseInsideMyHead]

To me it seems that the underlying assumption has more than proven true.  Attendance at any hockey game that UND has played in this year is pretty clear evidence.

 

And don't be dazzled by the words on the page?  They seem to spell out pretty clearly the steps pretty clearly, seems that you are reading much deeper into something that isn't there.  If the NCAA decides tells UND they are in violation of the settlement agreement of either getting tribal approval or moving to a new nickname, therefore they are now subject to agreed upon sanctions, UND doesn't have a leg to stand on.  The NCAA doesn't have to sue to place agreed upon sanctions on UND.  The NCAA doesn't need to sue, doesn't need to prove damages, the agreement already spells it all out. 

 

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

[breakin face]

So did anyone submit any nicknames today?

[siouxfan512]

As much as I love all of this boring legal chatter. My vote would still be to remain "University of North Dakota" "UND" What determines a nickname? North Dakota can be our name, nothing offensive there.