Submitted Nicknames

[Shawn-O]

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?

Back on the naughty list, bye bye home playoff football game.

[NoiseInsideMyHead]

Back on the naughty list, bye bye home playoff football game.

 

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.

[Old Time Hockey]

I posted this in another thread. People keep saying that the NC$$ says that we have to choose a new nickname, however this seems to contradict that, coming from Kelley's mouth. Just wanted to point this out.

Obviously there is a reason that Kelley would make such a statement. Maybe that reason is that many well known and respected alumni have made the comment that staying just North Dakota is more appealing than picking a nickname that few people will rally around. Maybe picking no nickname is the best way to hold onto the rich tradition and history that was built over the decades prior to most of us. If you don't believe me, ask folks like Gino, Roebuck, and Hakstol. I am sure they don't want the University to be named after one of the high schools in town.

[Old Time Hockey]

Back on the naughty list, bye bye home playoff football game.

.

That hasn't been a problem lately! Hopefully Bubba can change that.

[Shawn-O]

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.

 

I don't see it as that cut and dried.  Maybe you're just much smarter than me.   

[fightingsioux4life]

I am well aware of what the settlement agreement says.  I have been for years.  I may have been the first poster to raise this issue the day the settlement agreement was posted online.  Your certainty as to the intention of the parties for the wording of that clause is what I was asking about.

 

There is nothing "obvious" about the intentions of that clause or whether the NCAA would have an issue with UND not having a nickname.  It is entirely possible it was drafted that way because nobody drafting the agreement contemplated UND going without a nickname.

"I am well aware of what the settlement agreement says.....but it just doesn't matter to loyal Fighting Sioux fans like me!"

 

There, I finished your sentence for you.  Of course, the NCAA will spare no expense to stick it to UND if it chooses to follow this very flawed advice.  But I guess some people don't care about that.

[82SiouxGuy]

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.

The remedy is written into the agreement.  If UND does not choose a new nickname and logo they can be returned to the list of institutions subject to the policy.  That means they would treat UND as if they still had the Fighting Sioux nickname in place.  In other words, back on the naughty list.  The NCAA does not need to go to court to put UND back on the list and subject them to the sanctions that the NCAA has in place.  UND would have to sue to be removed from the list.

[NoiseInsideMyHead]

"I am well aware of what the settlement agreement says.....but it just doesn't matter to loyal Fighting Sioux fans like me!"

 

There, I finished your sentence for you.  Of course, the NCAA will spare no expense to stick it to UND if it chooses to follow this very flawed advice.  But I guess some people don't care about that.

 

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.

[NoiseInsideMyHead]

The remedy is written into the agreement.  If UND does not choose a new nickname and logo they can be returned to the list of institutions subject to the policy.  That means they would treat UND as if they still had the Fighting Sioux nickname in place.  In other words, back on the naughty list.  The NCAA does not need to go to court to put UND back on the list and subject them to the sanctions that the NCAA has in place.  UND would have to sue to be removed from the list.

 

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.

[STS]

They didn't put UND back on the list on 8-15-11, why would they now?

[82SiouxGuy]

They didn't put UND back on the list on 8-15-11, why would they now?

It's possible that they gave UND extra time because the state legislature got involved and they wanted to let UND resolve those issues.  It's also possible that their patience may end at some point since the state law is no longer in the way.

[82SiouxGuy]

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.

They can, and have just made up the rules as they go.  But more importantly in this case, the wording in the settlement agreement gives them enough leeway to implement the penalty if they choose.  UND would have to try to fight the penalty in court.  There is no guarantee that UND would win in court no matter what you assume was anticipated by the drafters of the agreement.

[kingranch]

For sure, as an Alumni I have a really strong attachment to the University. Class, Dorms, Fraternity, Band, Sporting Events, Campus, Friends all hold a really special place for me. College was a amazing time that I would not trade for anything. Losing the Sioux name sucked, replacing it sucks too. I hope I have the opportunity to vote No Nickname, BUT regardless of my options, I don't want my vote to be cheapened or watered down, but any random person.

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.

[TheGreatSiouxNation]

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.

Then this is the first complaint against the poor bison being used by the state school.  Let me vote for a new nickname for our little sisters to the south.  See where your argument can go about a public university funded by my tax dollars? 

[NoiseInsideMyHead]

They can, and have just made up the rules as they go.  But more importantly in this case, the wording in the settlement agreement gives them enough leeway to implement the penalty if they choose.  UND would have to try to fight the penalty in court.  There is no guarantee that UND would win in court no matter what you assume was anticipated by the drafters of the agreement.

 

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

 

[kingranch]

Then this is the first complaint against the poor bison being used by the state school.  Let me vote for a new nickname for our little sisters to the south.  See where your argument can go about a public university funded by my tax dollars?

ndsu, a public university, is not being tasked to pick a new nickname. Step back into reality son.

[fightingsioux4life]

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.

Paranoia Schtick?  It's in the freaking agreement, a legal agreement signed in a court of law!  What part of that do people not understand?  

[GDPritch]

He won't and has publicly stated so multiple times. Terrible strawman argument.

The reason a new nickname needs to be chosen is because the majority of those that want no nickname prefer that so they can continue using Fighting Sioux unofficially. If that's not a direct violation of the settlement agreement (debatable) it is certainly against the spirit of it.

I respectfully disagree.  At least w/o a new nickname/logo we can't possibly offend one person...can we?!

[NoiseInsideMyHead]

Paranoia Schtick?  It's in the freaking agreement, a legal agreement signed in a court of law!  What part of that do people not understand?  

 

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.

[90siouxfan]

The greatest marketeer in the world could not market the image on this canvas. 

 

 

That's what UND is trying to market right now.

Seems not too long ago there was some sort of big marketing thing about #8, let's run with that

[zonadub]

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.

So, by your scenario, why drop Fighting Sioux in the first place? How can the NCAA prove harm if the Sioux name is retained?

[Blackheart]

I thought the whole point was that the NCAA is an exclusive club and if you don't abide by their ever changing rules, then you are subject to whatever punishment they decide to levy.

[Oxbow6]

I thought the whole point was that the NCAA is an exclusive club and if you don't abide by their ever changing rules, then you are subject to whatever punishment they decide to levy.

Sounds similar to the Mexican drug cartel.

[NoiseInsideMyHead]

So, by your scenario, why drop Fighting Sioux in the first place? How can the NCAA prove harm if the Sioux name is retained?

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.

[NoiseInsideMyHead]

I thought the whole point was that the NCAA is an exclusive club and if you don't abide by their ever changing rules, then you are subject to whatever punishment they decide to levy.

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.