UND's court filings

[PCM]

What kind of an arrangement do the member schools have the NCAA? Is it a contract that is annually renewed? The reason that I ask is because of what occured last season in hockey. Originally the "offending schools" were going to be required to cover any logos if they were hosting events after Feb. 1st. I recall that during the appeal process the NCAA was supposed to respond sometime in January and pushed it back until the end of April. Was this because they had contracts for hosting these events with some of the schools and couldn't require that they cover the logos for contractual reasons? Hence my reason for asking the contract question.

Also, some on this message board have pointed out the committee that mandated this change has overstepped their bounds. If that is the case, can't the membership as a whole vote on an issue such as this or is a vote not in UND's best interest? I realize we are quite possibly past the point of having a vote. Just a question.

UND is saying that the Division II manual that governs the NCAA's DII members is its contract.

The NCAA dropped its requirement that all the logos in the Ralph be covered up for the West Regional playoffs when UND claimed that the NCAA was attempting to modify a pre-existing contract.

And, yes, the membership as a whole could vote in an anti-American Indian nickname policy, but it would require a two-thirds super majority. Keep in mind that four NCAA rules-making committees recommended that the NCAA NOT do that.

If Myles Brand was confident that he could get such a policy passed, he would have done so.

[GeauxSioux]

Thanks for the prompt answers to my questions.

[The Sicatoka]

UND's lawsuit is solely based on the contract between UND and the NCAA. A Judgment in North Dakota is legally enforceable in every state under the US Constitution (full faith and credit clause) - Art IV I think. If UND prevails in the lawsuit, they will receive damages for the NCAA's breach and an injunction preventing them from their sanctions. Jurisdiction follows UND wherever it goes in the US.

There's the answer I'm looking for.

The problem with this suit is that it is only a temporary solution. The NCAA can amend their bylaws if they receive an unfavorable ruling. I think that has already been discussed. I have no idea how difficult it would be for them to do this, but they would have to make it an across the board rule. So if there is no Sioux, there will be no Seminoles, Fighting Irish or any other human moniker/mascot.

Any new legislation has to be approved by the total membership by a 2/3 super-majority vote. (See both Complaint and Brief for the Req. for Temp. Injunction.)

You telling me that every school doesn't have some skeleton in the closet? "Model institution" Wisconsin got an "F" from the Black Coaches Association for its hiring practices and procedures. "Model institution" Iowa (football) and UM-Duluth (hockey) have pink visitor's locker rooms (anti-homosexual bias?). And all those "Devils" at DePaul, Duke, Arizona State .... Any one of those could easily be the next target in this NCAA Executive Committee "catalyst for social change" jihad.

If you're a school and believe you're as pure as the driven snow, and will never be the target of the political 'fad de jour', vote for this; if you're sure that your ox will never be the next to be gored, vote "yes".

But also remember that that "yes" vote may have created some new "non-allies" and that you could be wrong and could be the next target; What is it folks say about "payback" ....

(I won't even get into the discussion of individual institutional control that the NCAA claims to cherish.)

Sicatoka - That will be $500, the bill is in the mail.

So is the check.

[redwing77]

jloos is SO MUCH more qualified than I. (DUH!)

Thanks for your help, jloos!

It's really nice that Sicatoka is able to keep you on retainer on behalf of this message board

[The Sicatoka]

Mentioning "on retainer", ....

Only 8 days until the North Dakota Attorney General and the NCAA's attorneys meet in Northeast Central District Court.

[The Sicatoka]

Thursday is "game day" in State of ND (et al) v. NCAA.

Has the NCAA filed anything with the court yet?

[PCM]

Has the NCAA filed anything with the court yet?

Yes, on Nov. 1. Everyone can read the NCAA's response here.

[ScottM]

Can't say I'm impressed by Defendant's brief, or the firms used. It seems to be a rehash of the NC$$ PR machine. However, it will probably defeat a Motion for Summary Judgment, but I am not so sure about defeating the TRO request.

[southpaw]

i really enjoy number 11 of the affidavit:

"...uniform application of rules is important..."

[BleedGrn]

Seems pretty weak. From what little I did read, the NCAA is saying "we're doing this because we think we are right". On the other hand, UND is coming from a legal point of view.

I foresee rioting in the streets of Grand Forks if UND doesn't win this one!

[BIGSIOUX]

one of the NCAA attorneys is from fargo

[jloos]

one of the NCAA attorneys is from fargo

And a UND Law Grad.

Wickham Corwin

Attorney at Law

Conmy Feste, Ltd.

200 Wells Fargo Center

406 Main Ave.

P.O. Box 2686

Fargo, ND 58108-2686

wcorwin@conmylaw.com

Start letter: [WordPerfect] [Word]

Map: Go to map for this address

Download to: [PDA] [PDA with photo] [Contacts]

Law School: University of North Dakota

Admitted in N.D.: 9/22/1976

701-293-9911

Fax: 701-293-3133

Bar I.D.: 03293

Website: http://www.conmylaw.com

[This is a link to a nongoverment site.]

[UND Fan]

And a UND Law Grad.

Wickham Corwin

Attorney at Law

Conmy Feste, Ltd.

200 Wells Fargo Center

406 Main Ave.

P.O. Box 2686

Fargo, ND 58108-2686

wcorwin@conmylaw.com

Start letter: [WordPerfect] [Word]

Map: Go to map for this address

Download to: [PDA] [PDA with photo] [Contacts]

Law School: University of North Dakota

Admitted in N.D.: 9/22/1976

701-293-9911

Fax: 701-293-3133

Bar I.D.: 03293

Website: http://www.conmylaw.com

[This is a link to a nongoverment site.]

I would guess that Mr. Corwin will likely be receiving a bunch of e-mail and letters!!!!!! And, hopefully, he will not be receiving many new clients!!!!!!

[jimdahl]

Seems pretty weak. From what little I did read, the NCAA is saying "we're doing this because we think we are right". On the other hand, UND is coming from a legal point of view.

I foresee rioting in the streets of Grand Forks if UND doesn't win this one!

As someone with absolutely no legal training, I had a very different impression. The affidavits didn't say much, but I found the brief pretty well written.

Big parts of the brief are weak rehashes of UND's hostileness that didn't seem particularly strong or relevant to me, but when the legalese kicks in and case laws starts getting cited in the arguments (beginning around page 23), I found many of their arguments applicable and compelling. Of course, the point of such a thing is only to include the arguments that bolster your case, so the state will undoubtedly fill in the holes with good counter-arguments and precedents of their own.

Their "balance of harms" argument against the injunction basically relies on the association being voluntary, and therefore having every right to self-govern, but UND having no right to host a football game. It's a good argument, but that's what this whole case is about, I guess.

Be sure not to miss exhibits 1, pg. 20, a letter from our very own Mr. LaPointe complaining that he wasn't allowed to distribute merchandise with unlicensed versions of UND's trademarked logos.

[HockeyMom]

Be sure not to miss exhibits 1, pg. 20, a letter from our very own Mr. LaPointe complaining that he wasn't allowed to distribute merchandise with unlicensed versions of UND's trademarked logos.

I wonder why the NCAA only used a portion of that whole story. I've seen a lot more to that thing than what they filed.

[jloos]

This brief is solely against the preliminary injunction, which are very rarely granted. For a preview of the NCAA's future argument they included this footnote:

9 For purpose of this memorandum, the NCAA will assume that North Dakota law applies. However, the NCAA believes Indiana law should apply and reserves the right to assert that argument later in this litigation.

I still think they will try and move the case to Federal Court. Either way it appears they will try and use Indiana law rather than ND law.

I am suprised the NCAA relied so heavily on the letters of zealots and t-shirts made 20 years ago. IMO this will hurt them more than help them.

[The Sicatoka]

A recap of things that came off the pages at me (things in quotes from the NCAA brief):

"Because membership ratification of all governance decisions is highly impractical"

But the DI and DII manuals say:

All regulations governing the administration of intercollegiate athletics appear in the bylaws. The constitution contains only principles for the conduct of intercollegiate athletics and other basic information.

Articles 1 through 6 are the constitution, which consists of information relevant to the purposes of the Association, its structure, its membership and legislative-process information, and the more important principles for the conduct of intercollegiate athletics.

Articles 10 through 23 are the operating bylaws, which consist of legislation adopted by the membership to promote the principles enunciated in the constitution and to achieve the Association

[ScottM]

I'm still amused the Defense relies on "Dr" Stephanie's untested, non-peer reviewed "research", as the well the APA's position statement, rather than on valid research.

I still think they will try and move the case to Federal Court. Either way it appears they will try and use Indiana law rather than ND law.

I think removal makes sense, but the court will still have to apply a conflicts of law analysis to determine whether NoDak or Indiana law will govern. I'm surprised this wasn't covered in the contract(s) between UND and the NC$$. I wrote a Law Review Note on this years ago, but am damned if I can remember what I wrote ...

[jloos]

I'm still amused the Defense relies on "Dr" Stephanie's untested, non-peer reviewed "research", as the well the APA's position statement, rather than on valid research.

I think removal makes sense, but the court will still have to apply a conflicts of law analysis to determine whether NoDak or Indiana law will govern. I'm surprised this wasn't covered in the contract(s) between UND and the NC$$. I wrote a Law Review Note on this years ago, but am damned if I can remember what I wrote ...

I find it very strange that there is no "conflicts clause" in the bylaws. Typically large organizations put a clause in their contracts stating that any conflict has to be litigated under X state's laws.

I wrote a Conflicts paper, but I found the subject so boring I also forgot everything I wrote.

Based on the credibility of the affidavits and exhibits, the NCAA has done a very poor job. However, they know UND has a very high burden of proof for getting the prelim injunction.

[LeftyZL]

I'm sure this has been talked about else where, but can anyone explain to me how the pictures of t-shirts in Exhibit 1 relate to anything UND could have done differently to either "educate" or create a less "hostile" and "abusive" relationship with the general public as well as the tribes? I just don't understand that part. I may never either. How does the actions of other school's students or even the general public make UND the so-called "bad guy" in all of this? What could UND have done differently about these T-Shirts? How is it UND's job to regulate another school's students or the general public? To me, personally, the shirts don't even have anything to do with this lawsuit at all.

[Goon]

i really enjoy number 11 of the affidavit:

"...uniform application of rules is important..."

They have already shot that one in the rear by not even following it by letting some schools have their name while others can't .

Interesting point: Page 14 question 5 asks "how does your institution ensure a safe enviornment for all fans including American Indians during athletic contests and other events that the institution's American Indian Mascot, nick name or logo is being used or displayed?

Answer: Even though the events may not be reported to the police there is much anecdotal evidence that students have experienced difficult situations at sporting events, and therefore, no longer attend sporting events.

If you look at the definitiin of Anecdotal evidence: is an informal account of evidence in the form of an anecdote, or hearsay. The term is often used in contrast to scientific evidence, especially evidence-based medicine, which are types of formal accounts. Anecdotal evidence is often unscientific because it cannot be investigated using the scientific method. Misuse of anecdotal evidence is a logical fallacy and is sometimes informally referred to as the "person who" fallacy ("I know a person who..."; "I know of a case where..." etc. Compare with hasty generalization). The problem with arguing based on anecdotal evidence is that anecdotal evidence is not necessarily typical; only statistical evidence can determine how typical something is.

Ok, if it wasn't reported and it can't be measured in my mind it doesn't happen. I hope to god they aren't basing a whole investigation based on hearsay and generalizations.

[Goon]

I'm sure this has been talked about else where, but can anyone explain to me how the pictures of t-shirts in Exhibit 1 relate to anything UND could have done differently to either "educate" or create a less "hostile" and "abusive" relationship with the general public as well as the tribes? I just don't understand that part. I may never either. How does the actions of other school's students or even the general public make UND the so-called "bad guy" in all of this? What could UND have done differently about these T-Shirts? How is it UND's job to regulate another school's students or the general public? To me, personally, the shirts don't even have anything to do with this lawsuit at all.

One shirt is 16 years old. At least find something more current. Ah, there isn't any.

[PCM]

One shirt is 16 years old. At least find something more current. Ah, there isn't any.

Actually, there is. Remember the eBay T-shirt that contained stereotypical references to the Sioux? Somehow, it ended up in the hands of the on-campus activists. But I"m sure that was just a coincidence.

[PCM]

Ok, if it wasn't reported and it can't be measured in my mind it doesn't happen. I hope to god they aren't basing a whole investigation based on hearsay and generalizations.

This is an excellent point because so many of the on-campus incidents fall into the anecdotal category, and I wonder how they'll fly in a court of law. I'm hoping that a judge and juy will place far less emphasis on them than the NCAA did.

[Let'sGoHawks!]

I have lived in GF most of my life and have attended UND for my undergrad and grad degrees. Never have I witnessed a single instance of these "unreported instances". Can this type of "evidence" stand up in court?