NCAA To Sanction UND if School Does Not Adopt New Nickname

[NoiseInsideMyHead]

As I have pointed out in the past, it is far more likely that the NCAA would impose their own sanctions if they believe that UND isn't living up to the Settlement Agreement. They would put UND back on the sanctions list. They would prevent UND from hosting playoff games. They would encourage other schools like Minnesota and Wisconsin to stop scheduling games. It is very unlikely that they would go to court to address the issue. Their actions are written right into the Settlement Agreement. UND would have to be the one to take the issue to court. The reward for the NCAA would not be monetary. UND would not be hurt by the monetary penalty. They would be hurt by the sanctions, the same sanctions that caused UND to give up the Fighting Sioux name in the first place.

 

Sanctioned FOR WHAT?

 

What NCAA rule is being violated?  Is there a "no (alleged) breach of contract" rule?  What is that, a lack of institutional control, or an improper recruiting violation?

 

Please elaborate.  These wildly imaginary and unfounded fears are an embarrassment to the state, and are dragging down the entire cause.

[NoiseInsideMyHead]

UND may have done a lot of things in the settlement agreement, some of them wrong and/or ill-advised (especially in hindsight), but I 100% guaran-freaking-tee you that one thing UND did NOT do was consent to have sanctions imposed for conduct that does not amount to a violation of any NCAA rule.  It's not there.  Keep looking, if you wish.  You're not going to find it.

 

All UND did was agree that if it was using the name without tribal approval in violation of the policy, it would then be back on the sanctions list.

 

No court is going to interpret the settlement agreement otherwise.

 

Flame away, but you know I'm right.

[82SiouxGuy]

Sanctioned FOR WHAT?

 

What NCAA rule is being violated?  Is there a "no (alleged) breach of contract" rule?  What is that, a lack of institutional control, or an improper recruiting violation?

 

Please elaborate.  These wildly imaginary and unfounded fears are an embarrassment to the state, and are dragging down the entire cause.

Have you read the Settlement Agreement? You keep going on and on about it, but it doesn't sound like you have actually read it. In Section 2 d (page 5) it plainly states that if UND does not adopt a new nickname and logo then UND will be returned to the list of institutions subject to the Policy. The Policy refers to the policy against the use of Native American nicknames and imagery that was announced on August 5, 2005. That is the rule being violated, it's actually a clause in a contract between UND and the NCAA, and that is what UND agreed to when they signed the Settlement Agreement. I didn't imagine the Settlement Agreement.

[NoiseInsideMyHead]

Have you read the Settlement Agreement? You keep going on and on about it, but it doesn't sound like you have actually read it. In Section 2 d (page 5) it plainly states that if UND does not adopt a new nickname and logo then UND will be returned to the list of institutions subject to the Policy. The Policy refers to the policy against the use of Native American nicknames and imagery that was announced on August 5, 2005. That is the rule being violated, it's actually a clause in a contract between UND and the NCAA, and that is what UND agreed to when they signed the Settlement Agreement. I didn't imagine the Settlement Agreement.

 

Forest for the trees, my boy, forest for the trees.  The parties clearly did not anticipate at the time the agreement was entered into that "no nickname" was even remotely a possibility.  Therein lies the problem.  To impose sanctions for a rule that is not being violated defies logic and common sense.  The excruciating and painstakingly literal interpretation espoused by you and others is a nullity.  A fiction.

 

There is no way that anyone with a straight face and a shred of common sense can arrive at the conclusion that UND should suffer penalties intended to punish users of NA nicknames when UND is not itself using a NA nickname.  To read the contract that way is absurd.

[82SiouxGuy]

Agree.  The Agreement specifically required UND to pick a new nickname.  The Addendum did not change that, and addressed other, ancillary matters.  As others have noted ad nausem, failure to choose a new nickname in compliance with the Agreement could be considered a breach of the Agreement, and subject UND to the various sanctions the NC$$ has at its disposal. 

 

 

Forest for the trees, my boy, forest for the trees.  The parties clearly did not anticipate at the time the agreement was entered into that "no nickname" was even remotely a possibility.  Therein lies the problem.  To impose sanctions for a rule that is not being violated defies logic and common sense.  The excruciating and painstakingly literal interpretation espoused by you and others is a nullity.  A fiction.

 

There is no way that anyone with a straight face and a shred of common sense can arrive at the conclusion that UND should suffer penalties intended to punish users of NA nicknames when UND is not itself using a NA nickname.  To read the contract that way is absurd.

ScottM is an actual attorney. He has shown in the past that he has a good understanding of legal issues. You don't seem to have a very good grasp of the law. You have no idea what the attorneys on either side anticipated or understood at the time of the agreement. It is possible that the NCAA knew that if UND went without a nickname they would have a group of fans trying to keep the Native American nickname alive and in unofficial use. They probably knew that because people at Marquette have tried to keep an old Native American nickname alive long after it was changed. Furthermore, they would like to eliminate the use of such nicknames and imagery as much as possible. Picking an actual new nickname would go further to decrease use of the old nickname than going without a nickname. I think I will go with Scott on this one.

[Siouxphan27]

Aren't We Sued Enough?

[NoiseInsideMyHead]

Takes two to tango, chief. Have your legal eagle buddy Scott explain mutual assent as a predicate to contract formation. Listen to yourself. You would have us believe that UND willingly and knowingly signed on the dotted line when one possible outcome would be the whole enchilada of NA nickname sanctions imposed anew for having no nickname at all? Come on. That's utterly preposterous.

[Fetch]

Again we should have a poll if this thread should continue or just go on & say the same things over & over & over & over & over

[NoiseInsideMyHead]

How else am I going to get to 6k posts?

[82SiouxGuy]

Takes two to tango, chief. Have your legal eagle buddy Scott explain mutual assent as a predicate to contract formation. Listen to yourself. You would have us believe that UND willingly and knowingly signed on the dotted line when one possible outcome would be the whole enchilada of NA nickname sanctions imposed anew for having no nickname at all? Come on. That's utterly preposterous.

Not nearly as preposterous as this entire conversation.

[Cratter]

Again we should have a poll if this thread should continue or just go on & say the same things over & over & over & over & over

This is the thread that never ends, it goes on and on my friends...

[Oxbow6]

So to break the tension and go in a little different direction.......what bothers you more: Cecil the lion being hunted and killed or aborted body parts being sold on the black market by Planned Parenthood?

[fightingsioux4life]

Okay, enough of this bickering over what the legal documents say or don't say. I have taken the time this evening to look up both legal documents in question (both easily obtainable via Google btw). Subsection 2(d) of the 2007 Legal Settlement between the State of North Dakota and the NCAA reads, as follows:

 

Absence of Nickname Approval. Within thirty (30) days from the date of this Agreement, UND will announce that its Athletic Department will transition to a new nickname and logo which do not violate the Policy or render UND subject to the Policy, if (i) it is unable to secure namesake approval as set forth in this Agreement prior to the expiration of the Approval Period, or (ii) namesake approval, once provided, is withdrawn. In the event UND announces a transition to a new nickname and logo which do not violate the Policy, the transition will be completed on or before August 15, 2011, subject to Subsection 2(f) below. 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. In the event UND secures namesake approval but such approval is withdrawn after November 30, 2010, UND shall have one (1) year to complete transition to a new nickname and logo, unless the parties mutually agree to a period of time longer than one (1) year.

 

Please note the highlighted and italicized sentence above: It clearly states that UND must adopt a new nickname and logo or go back on the naughty list. The date was obviously screwed up by Al Carlson and the Legislature's clumsy attempts to save the name and logo. Subsection 2(f) discusses the Native American imagery in REA and BESC and how that impacts UND's eligibility to host NCAA championship events. That subsection was revised in the much referenced September 2012 Addendum to the original Agreement of October 2007. I have included the sections most pertinent to the question at hand:

 

NOW AND THEREFORE: The Agreement is amended as follows:

 

1) Notwithstanding any other provision in the agreement, the parties agree that items currently located at the REA and BESC, specifically those listed in Category 3, Exhibit A, Pictures 33 through 42 of the Settlement Agreement and Mutual Release dated October 25 and 26, 2007, may remain in those facilities indefinitely, and the University of North Dakota will be in full compliance with the Policy and may host championship events in those facilities. However, the carpet shown in Picture 35 will, at the end of its useful life, be replaced with some other material that does not depict a logo or imagery in violation of the Policy. In addition, the signage on the outside of the facility that says “Home of the Fighting Sioux” will be removed as soon after the signing of this Amendment as it is practicable to do so.

 

3) It is further agreed that on the date of signing of this agreement, the University of North Dakota will be removed from any list of institutions not in compliance with the Policy, if it has not already been removed from such list, provided the University remains in compliance with the terms of the Settlement Agreement and this Amendment.

 

Section 1 offered more detail on which parts of REA and BESC need to be changed immediately and which parts can be replaced in the general course of maintenance. This detail was not present in the 2007 Settlement Agreement and thus was spelled out in the Addendum.

 

Section 3 spells out that UND is off of the naughty list if it hadn't already been removed from the naughty list (this was after the nickname law was killed off for good in June 2012). The part of Section 3 that some people are forgetting about is bolded and italicized as follows: provided the University remains in compliance with the terms of the Settlement Agreement and this Amendment. Based on what is in the Addendum, there is nothing in the Addendum that nullifies or changes Subsection 2(d) of the 2007 Settlement Agreement, only the aforementioned Subsection 2(f).

 

Consider the timeline of events that follows:

1. The transition to a new name and logo technically started on December 1, 2010, after Standing Rock refused to let their people vote on this issue.
2. Then the 2011 Legislature passed a law enshrining the Fighting Sioux name and logo into State law.
3. A last-ditch visit to the NCAA in August 2011 prior to the aforementioned August 15, 2011 deadline failed to change their position on the name and logo. Thus, UND went back on the naughty list on August 16, 2011.
4. The North Dakota Legislative Redistricting Session passed a repeal of the nickname law on November 7th, 2011 (SB 2370). The bill also included the "cooling off" period expiring on January 1, 2015. UND comes back off the naughty list.
5. Then SB 2370 was referred to the voters for the June 2012 Primary Election. UND is back on the naughty list.
6. In June 2012, the State of North Dakota voted by a 2 to 1 margin to uphold SB 2370 and to proceed with the retirement of the Fighting Sioux name and logo in that election. Shortly after that, President Kelley resumed the previously aborted retirement process of the old name and logo and the process of transitioning to a new name and logo.
7. The Addendum Agreement was signed by the State of North Dakota and the NCAA in September 2012, which also ensured that UND was off the naughty list again in recognition of the June 2012 election results and UND's subsequent resumption of the retirement/transition process.

So, from December 1, 2010 until right now, UND has been engaged in an on-again, off-again transition to a new name and logo. It is highly unlikely that the NCAA would raise a stink about UND not yet having a new name and logo in place with all the disruptions and micromanaging that UND has been subjected to over the past 5 years.

 

However, if we make it clear that we are not adopting a new name and logo, the NCAA will likely point to this as a violation of Subsection 2(d) of the 2007 Settlement Agreement and then announce that we are back on the naughty list along with Alcorn State. This is what is at stake during the next several months and why "UND/North Dakota" is simply not a feasible option.

Edited July 30, 2015 by fightingsioux4life

[Fetch]

So to break the tension and go in a little different direction.......what bothers you more: Cecil the lion being hunted and killed or aborted body parts being sold on the black market by Planned Parenthood?

How would u like to be the most hated man in the world - I have been a big time hunter most of my life but have never liked big game hunting or killing animals just for trophy's - like it or not hunting has saved more animals than if it were illegal

I am totally against PPH

Brady is a cheater & got caught

& I hate the ncaa

[Hayduke]

Believe it or not, but the NCAA isn't stupid enough to believe that by not adopting a new nickname, UND will not actually be retaining the Fighting Sioux nickname in the absense of a new nickname.

Some people may be gullible...they are not.

Guarantee if no name is chosen, UND will be back in court and found in breach of contract.

It would even be uglier for UND...

And, no, I'm not a lawyer. Just someone blessed with common sense.

[TheEagle]

 

Please note the highlighted and italicized sentence above: It clearly states that UND must adopt a new nickname and logo or go back on the naughty list. 

 

Ummm...no. It says that it must adopt a nickname that "does not violate the policy." Huge difference. I'm not going to get into this much, but I watched an interview with an NCAA representative several months ago, and the dude stated that the UND's nickname was not in accordance to the NCAA's ban on Native American nicknames. Having no nickname would not violate that policy. I'm pretty sure the NCAA doesn't care, but I wouldn't put it past Kelley to try to use with the NCAA as a scapegoat to force a new nickname on UND by publicly insinuating the NCAA might put sanctions back on UND if they don't adopt a new nickname.

 

Here is the statement the NCAA made in 2005 when making the policy. How would having no nickname violate this policy?

 

"Colleges and universities may adopt any mascot that they wish, as that is an institutional matter," said Walter Harrison, chair of the Executive Committee and president at the University of Hartford. "But as a national association, we believe that mascots, nicknames or images deemed hostile or abusive in terms of race, ethnicity or national origin should not be visible at the championship events that we control."

[fightingsioux4life]

Ummm...no. It says that it must adopt a nickname that does not violate the policy. Huge difference. I'm not going to get into this, but I watched an interview with NCAA representative several months ago, and they stated that the NCAA's nickname was not in accordance to the NCAA's ban on Native American nicknames. Having no nickname would not violate that policy.

 

Here is the statement the NCAA made in 2005 when making the policy. How would having no nickname violate this policy?

 

"Colleges and universities may adopt any mascot that they wish, as that is an institutional matter," said Walter Harrison, chair of the Executive Committee and president at the University of Hartford. "But as a national association, we believe that mascots, nicknames or images deemed hostile or abusive in terms of race, ethnicity or national origin should not be visible at the championship events that we control."

Man, you are cherry picking more than Dave Spehar did for the Gophers back in the day.

[TheEagle]

Man, you are cherry picking more than Dave Spehar did for the Gophers back in the day.

 

How would having no nickname violate the NCAA's policy on Native American nicknames and mascots?

[iluvdebbies]

How would having no nickname violate the NCAA's policy on Native American nicknames and mascots?

The answer most likely will include the word, de facto.

[The Sicatoka]

I'm okay with just North Dakota and I am fine with moving on from Fighting Sioux - the lefties won. BUT the reality is the NCAA says "Vi Have Vays to make your life difficult". They may not be able to do anything about it but as we have experienced they can be clandestine in punishing a school that crosses them.

Don't say that. That says the NCAA would be a grudge-holding group of backstabbers.

Surely Marco Hunt on the ice in Boston, the Marco Hunt UND got kicked out of NCHC officiating, the Marco Hunt that was angry about it and had a grudge against UND, surely that was a fluke, a mere coincidence.

The NCAA forgot all about that history and by pure randomness put Marco Hunt on the ice.

Nothing more. Move along.

[fightingsioux4life]

How would having no nickname violate the NCAA's policy on Native American nicknames and mascots?

Because a legally-binding agreement says so. That trumps any quotes or press clippings you post on here. The last thing the NCAA will tolerate is the Fighting Sioux name and logo living on as an "unofficial" nickname. They are not that stupid. Misguided, yes. Stupid, no.

[The Sicatoka]

If dropping the old name was enough, why is there language included specific to UND about transitioning to a new nickname and logo.

Yes, that does mean UND is unique in the NCAA: We're the only ones with a settlement agreement that includes having a mandate to transition to a new nickname and logo.

[Cratter]

Ummm...no. It says that it must adopt a nickname that "does not violate the policy." Huge difference. I'm not going to get into this much, but I watched an interview with an NCAA representative several months ago, and the dude stated that the UND's nickname was not in accordance to the NCAA's ban on Native American nicknames. Having no nickname would not violate that policy. I'm pretty sure the NCAA doesn't care, but I wouldn't put it past Kelley to try to use with the NCAA as a scapegoat to force a new nickname on UND by publicly insinuating the NCAA might put sanctions back on UND if they don't adopt a new nickname.

 

Here is the statement the NCAA made in 2005 when making the policy. How would having no nickname violate this policy?

 

"Colleges and universities may adopt any mascot that they wish, as that is an institutional matter," said Walter Harrison, chair of the Executive Committee and president at the University of Hartford. "But as a national association, we believe that mascots, nicknames or images deemed hostile or abusive in terms of race, ethnicity or national origin should not be visible at the championship events that we control."

Funny thing your first sentence says "Must adapt a nickname."

Love how people are arguing UND new nickname will be " North Dakota. "

Yeah that makes complete sense.

[Cratter]

If dropping the old name was enough, why is there language included specific to UND about transitioning to a new nickname and logo.

Yes, that does mean UND is unique in the NCAA: We're the only ones with a settlement agreement that includes having a mandate to transition to a new nickname and logo.

Good Question.

It simply doesn't say UND must drop the Sioux name and logo.

University of North Dakota North Dakotans?

[The Sicatoka]

For the lawyer types out there:

You have a client. The senior managing partner of your firm walks into your office and says, "Drop that client of yours immediately. We don't do business with that industry any longer. If you keep the client, the sanction you face is dismissal. If you choose to drop them, you have two weeks to find and to transition to a new client that complies with this new firm policy."

In two weeks, oh junior associate, when asked, you tell the senior managing partner, "I dropped my client."

When asked who your 'new' client is you reply, "I don't have one."

So what will senior managing partner do; what happens next?

They may ask, "Have you tried?"

And if you say yes and can prove it you may get some additional leeway.

But if your response is, "No, and I'm not going to; I'm happy without a client" will you be surprised if you don't face sanction (dismissal) for not following the "find and transition to a new client" agreement you made?