Negotiated Settlement?

[The Whistler]

Its JMHO, but the NCAA has stacked the deck entirely against you: and AFAIK, neither Florida State nor Utah are starting out with this handicap. Nobody has ever told them "once you lose it, you lose it forever" nor have they talked about the approval of TWO tribes.

Well neither Florida State or Utah had a crackerjack like Wayne Stenehjem taking care of business.

[Hayduke]

And I haven't had time to read everything, but from what I can see the two tribes can agree to let you use it on December 1, 2007 and that ends all talk of the "three year period" and as of that date you are on your own. So on December 31, 2007 if one of those two tribes votes to say "we don't like the way you're using it, we take back our permission" you're out of business forever. The year 2010 has become meaningless; and there is no possibilty of a re-vote from the tribes to once again grant permission.

Its JMHO, but the NCAA has stacked the deck entirely against you: and AFAIK, neither Florida State nor Utah are starting out with this handicap. Nobody has ever told them "once you lose it, you lose it forever" nor have they talked about the approval of TWO tribes.

That's a good point, CI.

I don't believe Fla State had to have approval of two tribes.

Did Utah have to have the support of two tribes?

Does this have to do with the idea that there are two official Sioux tribes in the state of North Dakota, while Utah only has one Ute tribe and Florida only has one Seminole tribe in the state? No research done here, just throwing this out there...

[Chief Illiniwek Supporter]

That's a good point, CI.

I don't believe Fla State had to have approval of two tribes.

Did Utah have to have the support of two tribes?

Does this have to do with the idea that there are two official Sioux tribes in the state of North Dakota, while Utah only has one Ute tribe and Florida only has one Seminole tribe in the state? No research done here, just throwing this out there...

No research here either (not even enough to support the original post, as noted) but perhaps, just maybe, the NCAA stops insults at the state line.

I know that its impossible for the San Diego State Aztecs to insult Aztecs because they were originally from Mexico, a good half-hour away from SDSU: and insults seem to be stopped by 19th Century national borders....

[ScottM]

A plain reading of the Settlement implicates measures to be imposed on REA but is not signed by anybody on REA's behalf. (See my earlier comments about non-litigants, such as the tribes, covered by this thing.)

If REA is controlled by an entity not directly addressed in the agreement, such as a non-profit corp or foundation, it's possible REA could refuse to abide by its terms w/o penalty.

[Fetch]

If REA is controlled by an entity not directly addressed in the agreement, such as a non-profit corp or foundation, it's possible REA could refuse to abide by its terms w/o penalty.

I'm hearing you & it may be so - But what does that do for the Hockey Team ? just be ND ? No logo on jerseys ? rest of us call em what we want forever ? & then UND never gets the Ralph ?

[The Whistler]

A plain reading of the Settlement implicates measures to be imposed on REA but is not signed by anybody on REA's behalf. (See my earlier comments about non-litigants, such as the tribes, covered by this thing.)

If REA is controlled by an entity not directly addressed in the agreement, such as a non-profit corp or foundation, it's possible REA could refuse to abide by its terms w/o penalty.

I'm about 100% certain then the teams suffer the sanctions. On the other hand if we would have fought these ridiculous rules and won.....

[UND-Williston]

If UND only starts outreach programs in Spirit Lake and Standing Rock, but does not do the same with the non-Sioux reservations (Turtle Mountain and Fort Berthold) it will make UND look bad and will not help keep the name. Native American programs will need to target all ND tribes for it to appear a buy-out is not being sought.

Also, there was a mention of why Williston State College gets to keep Tetons, 2 year school athletics are not ran by the NCAA...

[The Whistler]

If UND only starts outreach programs in Spirit Lake and Standing Rock, but does not do the same with the non-Sioux reservations (Turtle Mountain and Fort Berthold) it will make UND look bad and will not help keep the name. Native American programs will need to target all ND tribes for it to appear a buy-out is not being sought.

Also, there was a mention of why Williston State College gets to keep Tetons, 2 year school athletics are not ran by the NCAA...

I'm shocked shocked to have you suggest that the powers that be will try to negotiate in secret.

I'm also pretty sure that they won't fool everybody and that the light of day will shine on any secret pacts.

[Chewey]

If Minnesota and Wisconsin won't play us because of the name, fork 'em. Iowa State, Nebraska, Colorado State, Missouri, and many other schools are nearly as close and would play us anyway. The two-faced nature of the UMN and WISCO is almost too much to tolerate. We'll play Central Michigan and whomever else with indian nicknames but not UND?

[GeauxSioux]

From today's editorial page....Settlement showed courage, leadership

The main lawsuit claim by UND was that the NCAA violated its own procedures in passing the anti-nickname policy. Even a court victory could have been undone by the NCAA simply changing its bylaws, which the organization was in the process of doing.

This is the part that convinced me that we may have been able to win the battle, but would ultimately lose the war. For some reason the BTO song "Ain't Seen Nothin' Yet" keeps popping in my head.

[mksioux]

A plain reading of the Settlement implicates measures to be imposed on REA but is not signed by anybody on REA's behalf. (See my earlier comments about non-litigants, such as the tribes, covered by this thing.)

If REA is controlled by an entity not directly addressed in the agreement, such as a non-profit corp or foundation, it's possible REA could refuse to abide by its terms w/o penalty.

In theory, REA could certainly refuse to abide by the terms of the settlement without penalty since REA is not a party to the agreement. But if UND continues to use a non-compliant REA, UND will be penalized. I highly doubt REA would choose not to comply, leaving UND with the decision of either being sanctioned by the NCAA or playing in Purpur Arena.

[Nodaker]

From today's editorial page....[url="http://www.grandforksherald.com/articles/index.cfm?id=55467

[The Whistler]

From today's editorial page....Settlement showed courage, leadershipThis is the part that convinced me that we may have been able to win the battle, but would ultimately lose the war. For some reason the BTO song "Ain't Seen Nothin' Yet" keeps popping in my head.

I think losing the lawsuit even on the technical grounds that our crack legal team chose would be very damaging to the NCAA. At that point it brings them open to all kinds of criticism.

[ScottM]

In theory, REA could certainly refuse to abide by the terms of the settlement without penalty since REA is not a party to the agreement. But if UND continues to use a non-compliant REA, UND will be penalized. I highly doubt REA would choose not to comply, leaving UND with the decision of either being sanctioned by the NCAA or playing in Purpur Arena.

"They" should be thankful Ralph is dead, otherwise UND would probably be playing on an outdoor rink in University Park.

[PCM]

I haven't seen any of the legal geniuses here describe how UND would get around the NCAA changing its bylaws.

Edited October 30, 2007 by PCM

[sprig]

I haven't seen any geniuses here.....

That alone would have covered all threads

[jimdahl]

I don't quite agree with the consensus interpretation of the settlement with regards to REA.

By my reading, one of the biggest concessions of the settlement was the NCAA acknowledgment that UND plays in venues that it doesn't control. I think it said that UND can play it's regular season games in any arena fit for use, but that they wouldn't be able to host NCAA championship events in any arena that doesn't comply.

Therefore, simply playing regular season games in a third-party non-compliant arena was not grounds for the imposition of sanctions. If that's the case and UND does not secure tribal approval, REA can either choose to comply and become eligible for hosting post-season events, or not.

[Taz Boy]

I haven't seen any of the legal geniuses here describe how UND would get around the NCAA changing its bylaws.

Leave the NCAA and go pro. And, not nancy-pants AHL. N-H-L. Beating the Wild in Grand Forks wouldn't be too tough, given how they usually play in their pre-season games up there. I'd like to see Ovechkin try one of his sick moves against The Oshie, fueled by a hostile and abusive crowd of Fighting Sioux fans in the rapid confines of the REA. Better yet, the return of Toews and the Blackhawks vs. the Sioux. Old logo vs new. And, who wouldn't want to see Finley pounding Pronger into the dasher with the Italian Moon ad on it? When the 'Canes come in, we let them win because, hey, it's Commie.

Go Pro, Sioux!

[mksioux]

I think losing the lawsuit even on the technical grounds that our crack legal team chose would be very damaging to the NCAA. At that point it brings them open to all kinds of criticism.

Rather than conclusory disparaging comments, please tell us the viable causes of actions that UND's attorneys didn't plead in the complaint that would have resulted in a complete and total victory against the NCAA instead of on technical grounds. Keep in mind that in the TRO, the Judge ruled that UND was NOT likely to succeed on the merits on the anti-trust count.

[Taz Boy]

I don't quite agree with the consensus interpretation of the settlement with regards to REA.

By my reading, one of the big victories of the settlement was the concession that UND plays in venues that it doesn't control. I think it said that UND can play it's regular season games in any arena fit for use, but that they wouldn't be able to host NCAA championship events in any arena that doesn't comply.

Therefore, simply playing regular season games in a third-party non-compliant arena was not grounds for the imposition of sanctions. If that's the case and UND does not secure tribal approval, REA can either choose to comply and become eligible for hosting post-season events, or not.

To me, that's been a given all along, and so is not at all a concession from the NCAA. They said early in their policy statement that this sanction applied only to post-season NCAA tournament play. If the REA is not elligible for post season NCAA play, then it becomes a recruiting liability.

[jimdahl]

To me, that's been a given all along, and so is not at all a concession from the NCAA. They said early in their policy statement that this sanction applied only to post-season NCAA tournament play. If the REA is not elligible for post season NCAA play, then it becomes a recruiting liability.

I thought under the previous rule, if UND changed its nickname but REA refused to take down its logos, UND would still have been banned from hosting any post-season events as punishment for regularly playing in a facility that features "inappropriate" imagery. Under the new settlement, if that situation arose UND could still host post-season events, just not at REA (e.g. the football team could host a playoff game at the Alerus).

The settlement clearly separates those aspects of naming and imagery that are under UND's direct control from those that aren't for the purpose of applying sanctions. That's why REA was not, and didn't need to be, a party to the settlement agreement.

[Taz Boy]

I thought under the previous rule, if UND changed its nickname but REA refused to take down its logos, UND would still have been banned from hosting any post-season events as punishment for regularly playing in a facility that features "inappropriate" imagery. Under the new settlement, if that situation arose UND could still host post-season events, just not at REA (e.g. the football team could host a playoff game at the Alerus).

The settlement clearly separates those aspects of naming and imagery that are under UND's direct control from those that aren't for the purpose of applying sanctions. That's why REA was not, and didn't need to be, a party to the settlement agreement.

I now understand your point. It is still difficult for me to see this as a significant legal win for UND. Getting to use it only for the regular hockey season is OK, but it absolutely needs to be post-season compliant for revenue/recruiting. Not sure if the former is even an option, but I agree it is still technically a concession by the NCAA.

In truth, I do not see how the original policy could have possibly been enforced in that manner. In other words, elimination of all logos/imagery in the REA (i.e. destroying the building) OR discontinue it's use completely as being a requirement for hosting ANY post-season NCAA event in any sport in any venue. Even prior to the lawsuit, I had always thought if UND dropped the nickname and logo, there would be a financially reasonable solution to the REA through arbitration/discussions given the reality of the situation. Rather than a "best practice" understanding, the settlement now formalizes these as specific requirements which can be used as a pass/fail conditions for declaring "non-compliance" at any point later on. In this case, being somewhat "arbitrary" might have been more beneficial to UND.

One more quick point on this...

To me, a big victory in the settlement would have been more along the lines of leaving the REA alone-- no alterations required except for a new ice logo. But, I'm a dreamer...

[The Whistler]

Rather than conclusory disparaging comments, please tell us the viable causes of actions that UND's attorneys didn't plead in the complaint that would have resulted in a complete and total victory against the NCAA instead of on technical grounds. Keep in mind that in the TRO, the Judge ruled that UND was NOT likely to succeed on the merits on the anti-trust count.

Well that IS what the Herald said but it's not how I read the preliminary injunction.

Resolution of the breach of contract claim is uncertain due to what appear

to be inconsistent or incomplete provisions within the NCAA Constitution

and Bylaws. For example, the following issues have already been raised:

What is policy? What is legislation? Can policy be deemed legislation? If

so, under what circumstances? Can NCAA Executive Committee policy be

enforced as association-wide legislation without a vote of its membership?

What is the exact appellate process to be followed under given situations?

Can the Executive Committee usurp the Division II Championship

Committee’s authority and responsibilities for post-season play? Does the

Executive Committee’s responsibility to identify and act upon core issues

include the promulgation of binding policy, or does it mandate the proposal

of suggested legislation to the membership to resolve such issues? Did

the Division II Management Council have the authority or responsibility to

review UND’s appeal? Does the NCAA Constitution or Bylaws allow the

Executive Committee to be the final arbiter of its own decisions? These

are all questions that counsel for both parties will certainly focus upon

during trial for ultimate jury resolution as to whether the NCAA breached

its contractual duties to UND. Several rules of construction will likely apply,

such as the rule that ambiguities in contracts are generally construed

against the drafter. Given these rules, as well as the record showing a

lack of clarity in the NCAA Constitution and Bylaws, the court finds that the

State has met established a substantial likelihood of prevailing on the

merits of the breach on contract claim.

I read that as saying that it was up to us to prove the breach of contract, right? That is in fact the very reason why we have trials.

Update: I hope that that was the right passage to quote. I haven't read the entire opinion which I promise to do later. Still the language in very nearly the same as used by the Herald and I think in context shows that the preliminary injunction did NOT tie our hands.

[engelbunny]

I now understand your point. It is still difficult for me to see this as a significant legal win for UND. Getting to use it only for the regular hockey season is OK, but it absolutely needs to be post-season compliant for revenue/recruiting. Not sure if the former is even an option, but I agree it is still technically a concession by the NCAA.

In truth, I do not see how the original policy could have possibly been enforced in that manner. In other words, elimination of all logos/imagery in the REA (i.e. destroying the building) OR discontinue it's use completely as being a requirement for hosting ANY post-season NCAA event in any sport in any venue. Even prior to the lawsuit, I had always thought if UND dropped the nickname and logo, there would be a financially reasonable solution to the REA through arbitration/discussions given the reality of the situation. Rather than a "best practice" understanding, the settlement now formalizes these as specific requirements which can be used as a pass/fail conditions for declaring "non-compliance" at any point later on. In this case, being somewhat "arbitrary" might have been more beneficial to UND.

One more quick point on this...

To me, a big victory in the settlement would have been more along the lines of leaving the REA alone-- no alterations required except for a new ice logo. But, I'm a dreamer...

I think Jim is correct and this is a concession. Obviously, though, as UND goes D-1, hosting NCAA post season events will no longer be a recruiting issue for basketball, as it will never happen. It really isn't that big of a problem for Hockey either, as UND has only once before hosted a regional and would never be able to host the Frozen Four anyway. But if football playoffs for the Subdivision (old D-1AA) are held at home fields, then this ruling is better for UND. All the Alerus has to do is take the "Sioux" out of the end-zones, and whatever happens at the Ralph is of no consequence.

[The Whistler]

Well I think we can make a good case to host the regionals every five years or so. Certainly attendance and atmosphere was excellent even though it was also hostile and abusive.