The grounds for a lawsuit

[IowaBison]

If the NCAA denies UND's appeal regarding the nickname issue on what grounds would the then seeming inevitable lawsuit be made?

[oldralph]

If the NCAA denies UND's appeal regarding the nickname issue on what grounds would the then seeming inevitable  lawsuit be made?

<{POST_SNAPBACK}>

I would guess the first one would be for infringement of a previously existing contract in regards to the NCAA Regionals at the Ralph and the NCAA's dictate concerning the cover-up.

[oldralph]

If the NCAA denies UND's appeal regarding the nickname issue on what grounds would the then seeming inevitable  lawsuit be made?

<{POST_SNAPBACK}>

Then I would have to say the second one would be, ironic as it may seem, a case of discrimination based on name. They are punishing us for having a name they don't approve of, but that has been in use for years. I can see them not allowing new schools to use Indian names or they won't be allowed into the NCAA, but to punish a school that has been free of any type of NCAA scandal disciplined for the name it uses is ludicrous. And then we have to determine why they are penalizing us. Because the name is racist? That is open to interpretation and precendence has been set that it is not deemed racist by all Indians, just by some. We're talking years in the courts on this one. And if the Sioux name is racist, can the Washington Redskins use their name? Can the Cleveland Indians? I wouldn't think so. But I'm not a lawyer and I could be way off base on this, but that's my $.02 worth.

[PCM]

This has been dicussed many times in other threads, but let me count the ways.

If you read UND's appeal and Kupchella's open letter to the NCAA, you'll get a feel for the case UND would make in court. In this NCAA news release, the organization lays out some of its rationale for why it thinks what it did legally okay. It says:

The membership-driven action to apply a diversity and inclusion policy at NCAA championships is not unprecedented. In 2001, the Executive Committee adopted similar provisions regarding schools in states whose flags incorporate the Confederate battle flag. Under those policies, however, schools that earn the right to host championship competition (for example, a Division I baseball or softball regional) may do so. The Native American mascot policy is stricter in that regard, since the Executive Committee believes an institution has more control over its nickname than its home state flag.

For my money, the confederate flag issue isn't even close to being similar to the issue of American Indian nicknames, mascots and imagery, simply because Native Americans routinely use the words and images that the NCAA claims are "hostile and abusive." In contrast, blacks see the confederate flag as a symbol of oppression and intimidation. That's why you won't see a confederate flag flying from the top of the NAACP headquarters, but you will see the Sioux name and warrior image frequently used on reservations.

Those who claim that First Amendment isn't an issue here might be surprised to learn that the NCAA thinks it is.

The Executive Committee adopted the standard of "hostile and abusive" in part from case law. Members cited such language as being applied in civil cases in which decisions were reached on the basis of what "a reasonable person" would find to be hostile or abusive. The "hostile and abusive" standard also is stronger than simply "offensive," which courts have ruled is protected under the freedom of expression.

A court would have to agree with the NCAA that the Sioux nickname and logo are not merely offensive, but also "hostile and abusive" to "a reasonable person." Offensive speech is protected under the constitution. Moving the issue into the realm of "hostile and abusive" is a much more difficult standard to meet.

The Sicatoka pointed out this little gem in the NCAA constitution. The NCAA is fond of quoting the first two lines, but not the third and fourth lines.

2.6 THE PRINCIPLE OF NONDISCRIMINATION [*]The Association shall promote an atmosphere of respect for and

sensitivity to the dignity of every person. It is the policy of the

Association to refrain from discrimination with respect to its

governance policies, educational programs, activities and employment

policies including on the basis of age, color, disability, gender,

national origin, race, religion, creed or sexual orientation. It is the

responsibility of each member institution to determine independently its

own policy regarding nondiscrimination, including on the basis of age,

color, disability, gender, national origin, race, religion, , creed or

sexual orientation. It is the responsibility of each member institution

to determine independently its own policy regarding nondiscrimination.

(Adopted: 1/16/93, Revised: 1/16/00)

Hmm. Could someone argue that the NCAA is violating its own constitution?

[ScottM]

As I've noted earlier, the terms "abusive" and "hostile" probably emanate from Title VII employment cases that dealt with racial and/or gender discrimination or harassment. The NC$$ if it relied on that standard would have to show the use of the name/logo creates a "abusive" or "hostile" environment on campus. This was something even the CCR was unable to do a few years ago.

As Pat noted, the NC$$ is effectively contradicting its own constitution by this rule. Yes, the NC$$ can espouse equality, diversity, etc., but it effectively precludes itself from mandating policy for the schools.

The NC-Pembroke exemption reeks of racial discrimination on the basis of a count of the campus' American Indian student composition. By granting the exemption on this basis alone, the NC$$ must effectively demonstrate how this is not racial discrimination when it effectively stated it as its justification.

The terms "abusive" and "hostile" were not defined to the member schools, and effectively are subject to personal interpretation, rather than an objective standard. Anybody with modicum of common sense, their personal sensibilities notwithstanding, should not be able to look at Florida State's use of Chief Osceola, the Chant and the Chop, and somehow determine that they do not fall under the these terms if UND's use of its name/logo do.

Moreover, the NC$$'s own appellate criteria do not limit themselves to tribal permission, as much as the recent exemptions might infer. If the NC$$ is not truly hypocritical, they would take each school's appeals on their own merits, and not hang their hats on the grounds granted to FSU, Utah, etc.

[PCM]

Scott and other legal types, would the State Board of Higher Education's decree that UND must keep the Fighting Sioux nickname and logo play any role in a possible lawsuit? The NCAA says:

The Native American mascot policy is stricter in that regard, since the Executive Committee believes an institution has more control over its nickname than its home state flag.

The Executive Committe can believe whatever it wants, but in North Dakota's case, UND obviously doesn't have any more control over its nickname than the state flag. What gives the NCAA the right to think that UND has the power to disregard or overturn a state government decision?

[PCM]

I think these would be decent arguments if the NCAA was saying instutions had to change their nicknames or logos...

<{POST_SNAPBACK}>

I suppose it could as long as you totally ignore the First Amendment.

[MafiaMan]

I suppose it could as long as you totally ignore the First Amendment.

<{POST_SNAPBACK}>

Why not? It's not like groups don't exist ignoring other amendments (the right of the people to keep and bear arms comes to mind), right?

[ScottM]

I think these would be decent arguments if the NCAA was saying instutions had to change their nicknames or logos...The problem I see with it, though, is that they haven't said that--you can keep them all you want, play your conference schedule, make the playoffs, go to the playoffs, win a national championship, all with the nickname and logo.  You can't host a playoff game or a championship, though, as the NCAA maintains control over those....Isn't this a loophole that the NCAA can exploit in any potential lawsuits?

<{POST_SNAPBACK}>

That is effectively what they are saying with regard to uniforms, etc. worn by representatives of the affected schools. Basically, the NC$$ is saying that if you are good enough to get to the post-season wearing your team's name/logo, you are not good enough to wear the same unis, warm-up gear, etc. during the tourney, unless you're FSU, Utah, UNC-Pembroke or CMU at this point.

As to Pat's other point, I think it would be a very effective argument that the NC$$ is requiring UND to violate a dictate from its governing body, as well as interfering with the business of a sovereign state.

[mksioux]

I'm not really sure how the First Amendment applies here. I've heard many on our side of the argument make that claim. But to show that the first amendment is applicable, don't you need to somehow show "state action"? The NCAA may be a monopoly, but it will be tough argument to convince the court that they are a state actor. I can think of a couple arguments I guess, but it would be like pushing water uphill. I'm not claiming to be an expert in constitutional law (but I did stay in a Holiday Inn Express last night).

Don't get me wrong, I think there are other legal avenues to pursue in court beyond that of the first amendment. Many of them are subtly referenced in UND's appeal and many others have been raised on this board and others.

[Diggler]

But this regulation wouldn't be universal, it would only apply to certain uniforms.

[GCWaters]

But this regulation wouldn't be universal, it would only apply to certain uniforms.

<{POST_SNAPBACK}>

No, it would apply to all unis--no unis would be allowed to display certain types of insignia....I just don't see the first amendment argument flying. Think about public schools--they regulate the heck out of what kinds of clothes can be worn, what kinds of slogans/signs on t-shirts, etc....I also don't think the "sioux is in the public domain" argument will work, either...I'm sure there must be one that will, but these two seem particularly iffy to me...

[Diggler]

No, it would apply to all unis--no unis would be allowed to display certain types of insignia

<{POST_SNAPBACK}>

UNC-Pembrooke is allowed to have Braves on their uniform, but Alcorn State, Chowan College and Bradley are not. How is the ruling being applied to all uniforms? It clearly isn't when one school is allowed to display something while another school is not.

[MafiaMan]

If the NCAA wants to get tough on uniform monstrosities, perhaps it should start with some of the Nike teams in college football. Did anyone see Miami's hideous uniform Monday night? UGH!

[PCM]

I just don't see the first amendment argument flying.

<{POST_SNAPBACK}>

Look at the NCAA's own words describing its legal rationale for the policy:

The Executive Committee adopted the standard of "hostile and abusive" in part from case law. Members cited such language as being applied in civil cases in which decisions were reached on the basis of what "a reasonable person" would find to be hostile or abusive. The "hostile and abusive" standard also is stronger than simply "offensive," which courts have ruled is protected under the freedom of expression.

The NCAA recognizes that offensive speech is protected speech under the First Amendment. Hostile and abusive speech is not. That's why the NCAA on Aug. 5 moved the Sioux name and logo out of the category of "offensive" speech and into the category of "hostile and abusive" speech, even though it's a much more difficult standard to meet.

I take this to mean that the NCAA doesn't think it would have much of a case if it went into court arguing that it had the right to ban the use of certain words and images at the public events it hosts because some people found those words and images offensive. I assume that the NCAA's legal counsel told it that "offensive" wasn't good enough, and that the words and images it wants to censor must be "hostile and abusive."

I don't see how it's not about the First Amendment.

[mksioux]

Look at the NCAA's own words describing its legal rationale for the policy:

The NCAA recognizes that offensive speech is protected speech under the First Amendment. Hostile and abusive speech is not. That's why the NCAA on Aug. 5 moved the Sioux name and logo out of the category of "offensive" speech and into the category of "hostile and abusive" speech, even though it's a much more difficult standard to meet.

I take this to mean that the NCAA doesn't think it would have much of a case if it went into court arguing that it had the right to ban the use of certain words and images at the public events it hosts because some people found those words and images offensive. I assume that the NCAA's legal counsel told it that "offensive" wasn't good enough, and that the words and images it wants to censor must be "hostile and abusive."

I don't see how it's not about the First Amendment.

<{POST_SNAPBACK}>

The NCAA may have tailored its policy around First Amendment concepts, but I still don't think the First Amendment truly applies. I don't think the court would rule that the NCAA is a state actor. I think the NCAA unnecessarily used the words "hostile and abusive" when it could have simply used the word "offensive" while enacting the same policy.

It's kind of like Kanye West's idiotic comments the other day. Everyone was quick to shout "First Amendment" and "Freedom of Speech" when defending him, but it had nothing to do with the First Amendment because the government wasn't censoring him in any way. NBC edited the "George Bush doesn't care about black people" comment from airing on the west coast. That's NOT an infringement of the First Amendment because NBC is not the government. If NBC finds it offensive, they can cut it. On the other hand, if the FCC had fined NBC for airing it, then First Amendment concepts probably would have applied. Similary, when the Dixie Chicks made those comments about Bush, the First Amendment did not prevent the public outcry and did not prevent private organizations from refusing to sell their records or refusing to book their concerts. That's similar to how I view the NCAA's decision. If the NCAA finds it offensive (whether they're right or wrong), the First Amendment will not prevent the NCAA from banning it from its tournaments.

[The Sicatoka]

"Since the policy includes references to Indians but not to Vikings or Irish, it discriminates on the basis of race, which is not only wrong but also probably illegal."

"Who is empowered to grant or deny the use of words in the public domain? Who controls the use of Irish, Scandinavians (Vikings), Mountaineers,

[Sioux-cia]

As stated in other threads, if the use of an American Indian name and logo is hostile and abusive 'here' then it is hostile and abusive 'there' regardless of tribal approval or lack of. The NC$$ will be unable to defend this.

My mother (a third generation Mexican-American), and many others from her generation, found the terms 'Chicano' and 'Hispanic' hostile and abusive yet these are 'mainstream' terms. Their 'rights' would not be recognized in a court of law.

The NC$$ may not be mandating Universities to change their names and logos but by not allowing them to host post season games they are creating a economical hardship (this will occur in more ways then the revenue from the post season games such as in the recruiting of top players and coaches) that in essence IS forcing them to change. 'Change or go out of the atheletic activities business.'

[PCM]

The NCAA may have tailored its policy around First Amendment concepts, but I still don't think the First Amendment truly applies.  I don't think the court would rule that the NCAA is a state actor.  I think the NCAA unnecessarily used the words "hostile and abusive" when it could have simply used the word "offensive" while enacting the same policy.

Why would the NCAA "unnecessarily" set itself up to prove a much tougher legal standard? Why even bother citing case law relating to free speech issues if it's not a free speech issue? That makes no sense.

It's kind of like Kanye West's idiotic comments the other day.

No it isn't. West got to say what he wanted to say in public. Nobody stopped him from saying it before he said it. And just because he said it doesn't mean that the news media or anyone else is obligated to repeat it. The media engages in self-censorship every day. It has that right.

This is much different. The NCAA is claiming that it can exercise prior restraint to censor words and images that it doesn't like. And you could be right that a court would rule that because the NCAA isn't the government, it can legally censor free expression at its events.

However, UND has already more than hinted that by engaging in this action, the NCAA is opening itself up once again to charges that it's a monopolisitc regulatory body. It's not as if UND can take its puck elsewhere to play for a national championship in collegiate hockey. What happened in the last anti-trust case in which the NCAA was involved? It settled it out of court for millions of dollars by buying its competitor. That tells me the NCAA isn't exactly confident of winning a case in which anti-trust issues are raised.

By the way, there are others considering the First Amendment implications of what the NCAA is trying to do. The Broadcasting and Cable Web site has carried stories on this issue such as this one:

A spokeswoman (for the NCAA) said she did not believe the committee had taken up the issue of whether to encourage the league's broadcast partners to limit their references to the names. It is likely to be an issue, however.

At top sports cable net ESPN, for instance, a spokesman said the network had only recently learned of the decision, but that it would "warrant some discussion going forward."

And this one:

National Collegiate Athletic Association spokesman Bob Williams confirmed Wednesday that the NCAA will encourage broadcast and cable outlets that carry its college sports championships not to use Indian-related team names, including Braves, Indians, Savages, which the NCAA has concluded are "hostile and abusive."

Williams said some already use the school name rather than the team name when calling the action, but that it will ask the rest to follow suit. For its part, an ESPN spokesman said Tuesday that the network would have to at least have a conversation about the issue.

Notice that ESPN isn't happily saying that it will comply with the NCAA's wishes. That's because the media has no problem with voluntarily censoring itself, but when a big organization like the NCAA starts requiring censorship, it's risking a big fight that it probably doesn't want, a fight that it will lose.

[Diggler]

Assuming UND loses the appeal and doesn't take the NCAA to court while keeping the name, does anyone honestly believe that the NCAA won't make another stricter ruling in say five years? By taking them to court, UND prevents this from happening.

[IowaBison]

The NCAA may have tailored its policy around First Amendment concepts, but I still don't think the First Amendment truly applies. I don't think the court would rule that the NCAA is a state actor. I think the NCAA unnecessarily used the words "hostile and abusive" when it could have simply used the word "offensive" while enacting the same policy.

It's kind of like Kanye West's idiotic comments the other day. Everyone was quick to shout "First Amendment" and "Freedom of Speech" when defending him, but it had nothing to do with the First Amendment because the government wasn't censoring him in any way. NBC edited the "George Bush doesn't care about black people" comment from airing on the west coast. That's NOT an infringement of the First Amendment because NBC is not the government. If NBC finds it offensive, they can cut it. On the other hand, if the FCC had fined NBC for airing it, then First Amendment concepts probably would have applied. Similary, when the Dixie Chicks made those comments about Bush, the First Amendment did not prevent the public outcry and did not prevent private organizations from refusing to sell their records or refusing to book their concerts. That's similar to how I view the NCAA's decision. If the NCAA finds it offensive (whether they're right or wrong), the First Amendment will not prevent the NCAA from banning it from its tournaments.

<{POST_SNAPBACK}>

Actually the first amendment, the part about freedom of assembly, allows the NCAA to make stupid rules for its voluntary members.

With the exception of forcing the University to remove depictions of Native Americans, though a binding contract was in place. I have no idea what UND can base its case on.

[PCM]

Actually the first amendment, the part about freedom of assembly, allows the NCAA to make stupid rules for its voluntary members.

Again, all I have to do is read the NCAA's owns words to understand that it thinks there are First Amendment implications here, even if you don't.

[mksioux]

[Diggler]

Maybe because they hastily enacted their policy without a lot of research?  It may not make sense, but that doesn't mean they unnecessarily used First Amendment concepts.

<{POST_SNAPBACK}>

That's their problem then. If they did poor research and accidentally used First Amendment concepts to support their argument, they have to deal with it. Since the door was opened to first amendment concepts, UND surely can use it.

[PCM]

Maybe because they hastily enacted their policy without a lot of research?  It may not make sense, but that doesn't mean they unnecessarily used First Amendment concepts.

<{POST_SNAPBACK}>

I'm assuming that the NCAA has the resources to hire some pretty good lawyers. Charlotte Westerhaus, the NCAA VP for diversity and inclusion, is an attorney and has a journalism degree. I'm thinking that she might have a bit of knowledge about First Amendment issues.