NCAA Audacity Cares Not For Your Fighting Sioux Law, North Dakota
by Joel Hollingsworth on Apr 20, 2011 7:30 AM EDT
in Rocky Top Talking Points
Email
Print
Congratulations to the NCAA, which after a century of aspiring to be as seriously over-regulated and under-sensible as your friendly neighborhood government agency, has finally reached the absolute pinnacle of arrogance. NCAA executive vice president Bernard Franklin (hey, remove a few letters from his first name and it's almost like he's a founding father!) recently told the University of North Dakota that a new state law requiring the school to keep its Fighting Sioux nickname and logo "cannot change the NCAA policy" prohibiting it. Yes, they said that.
"But, but, but . . . we're required by law to keep it," says UND. "Don't care," says the NCAA. "There will be legal penalties if we don't," says the Nickname in Dispute. "There will NCAA penalties if you do," says the NCAA. "But it was promulgated by the state legislature, and you're . . . you're the NCAA," says the school. "Aaaand?" #mutualblankstares
Here's the thing. The NCAA rule prohibiting the use of American Indian nicknames, logos, or mascots is based on the premise that such use is considered offensive, but that question, as it relates to the Fighting Sioux anyway, has been hashed out in North Dakota and settled by law. Although the Standing Rock Sioux's tribal council still opposes the nickname, Spirit Lake's tribal members and its tribal council not only approved but actually endorsed it. The "Fighting Sioux Law" passed the North Dakota House and Senate overwhelmingly, and Governor Jack Dalrymple signed it last month.
It's law, and it bears repeating that that law doesn't just permit the school to continue to use the nickname, it requires it.
But the NCAA doesn't care what the law is. It's more concerned about its own rules and agreements, and it's telling UND that it must continue to comply with an October, 2007 contract in which it agreed not to use the nickname unless it received approval from both the Spirit Lake and Standing Rock Sioux tribes. So if UND follows state law in August and uses the nickname, it will be subject to NCAA penalties. And if it doesn't, it will be subject to state legal penalties. Damned if they Sioux, damned if they don't.
I haven't conducted exhaustive research into North Dakota law (and it's not clear under what body of law the October, 2007 agreement is to be construed, anyway), but as a general rule, impossibility of performance and frustration of purpose (this would be more the latter than the former) generally render contracts void. If what you agreed to do by contract is or becomes illegal, you actually have no obligation to do it. In other words, the law trumps the agreement, which is as it should be. It appears from a preliminary search that North Dakota law not only recognizes both doctrines, but has codified them. You'd have to check the cases interpreting that statute to be sure that it's still good law and whether it would apply under this circumstance, but it's there.
The NCAA is full of lawyers (a chief cause of its dysfunction, no doubt), so they may have already looked at this issue and determined that the contract's still valid. It's also possible that Bernard Franklin isn't a lawyer and/or popped off to the media before really thinking things through. My best guess right now is that the October, 2007 contract is void, which would mean that UND is no longer obligated to perform it, that the NCAA no longer owes anything to the Standing Rock Sioux, and that the Standing Rock Sioux was SOL as soon as the bill was signed into law by the governor.
But based on our less-than-idealized relationship with the NCAA lately, it's also quite possible that the NCAA simply cares more about its own morass of incomprehensible rules than it does about North Dakota law.
52 comments
|
0 recs |
Do you like this story?
Comments
There are so many other things the NCAA could be doing right now
Like following through on the situation at Auburn or punishing Ohio State in a reasonable timeframe.
While perhaps not as important in the grand scheme, this seems to fall in a similar category as Congress investigating steroids in baseball while fighting two wars and ignoring other domestic issues. Screw your principles, there are things that actually matter. Get over it.
FTFY
While perhaps not as important in the grand scheme, this seems to fall in a similar category asCongress investigating steroids in baseballthe DOJ shutting down the three biggest online poker sites while fighting two wars and ignoring other domestic issues. Screw your principles, there are things that actually matter. Get over it.
It is by caffeine alone I set my mind in motion. It is by the juice of Coffee that thoughts acquire speed, the teeth acquire stains, stains become a warning. It is by caffeine alone I set my mind in motion.
Wow
You have written this in every blog I have read across the country on this issue! I think the “get over it” has to be addressed to you!
Being a Sioux hater it is easy for you to say, But us that love our Sioux, the team and the name/logo, will not go quietly! So in your own advice, GET OVER IT!!
He's saying the NCAA should get over it, not you.
Reading comprehension FTL.
Correct...I'm telling the NCAA to focus on things that matter
Also, I only post here…so twasn’t me across the interwebs.
While it's true that a contract cannot require a party to do something illegal
that only means UND has a defense if the NCAA sues (no pun intended) them for breach. As far as I understand, the NCAA is an association of colleges who have athletic programs. If the member schools decide they don’t want UND a part of their association because of their mascot, they can expel them in the manner provided by their own by-laws. Right? If that’s correct, then it doesn’t look good for UDN. The state of ND may have legislated them right out of the premier collegiate athletic league. It’s a shame the NCAA has their priorities and values so out of whack.
Yeah, they probably should have thought through the ramifications of the law before passing it.
They probably jsut figured “We’ll write it down and say it’s law. That’ll teach them NCAA elites to try to tell us what to call our team.”
by Eyeheartfreedumb on Apr 20, 2011 3:16 PM EDT up reply actions
I think that was more the point
would you rather break state law, or tell the NCAA to go to hell? Does not seem a difficult decision.
"Be polite to everyone you meet, but be prepared to kill anyone"-tc16cav
by otisnixon'sparty on Apr 21, 2011 12:45 AM EDT up reply actions
isn't this a situation
where the conference should get involved as well. The ncaa is supposed to be controlled by the schools, yet it looks like the ncaa is basically punishing a school for not violating the law. I realize UND doesn’t hold much sway, but shouldn’t the conference step in and put pressure on the ncaa. I know it’s a IAA school but isn’t one of the reasons for conference membership a situation like this.
I do disagree with people that say “don’t they have better things to do like nailing Auburn (or Tennessee)?” They don’t. The NCAA is not just one big enforcement investigation division. The guy that’s in charge of sorting mail doesn’t join the enforcement staff because they’re short a man. Like any organization, different people do different things. The Commerce Secretary doesn’t go help the supreme court when Souter is out sick.
I smell an anti-trust lawsuit against the NCAA!
(At least, I hope that’s what I smell. Stupid NCAA.)
That's what I smell as well.
The way I see it if the NCAA imposes sanctions on UND for not changing their name, the school then has a viable cause of action under the Sherman Act. Like it or not, the NCAA has a de facto monopoly over profitable collegiate athletics. I am far from an anti-trust lawyer, however.
"An out of context quote to support my world view." -Some Dead Guy
Which was there first?
The Souix Law or the NCAA saying “no native american nicknames”? It seems I was hearing the NCAA’s position about this at least 20 years ago (though I’m not privy to all of the details here- – hence the questions).
If the NCAA rule came first, then I’d say the Souix Law was stupid to pursue. No one HAS to comply with NCAA rules, just like no one HAS to be a part of the NCAA. I may be way off base, but it seems like: disagreeing with the OWI/DUI driving laws, creating a law that says you must be drunk at all times, and then saying to the police “See, I HAVE to drive drunk. There’s a LAW!”
No one is making them change their name, but they won’t be a member of the NCAA if they don’t. It’s the school’s choice.
by Eyeheartfreedumb on Apr 20, 2011 3:04 PM EDT up reply actions
it doesn't matter when the law came into effect.
the law states requires that they use it as the nickname from the point of its effective date onward
I like orange and I am a dog person
Of course, I suppose you have a point.
I think that the Feds should stop harrasing Pot Shops in states where it’s legalized, so I guess I see where you’re coming from.
by Eyeheartfreedumb on Apr 20, 2011 3:11 PM EDT up reply actions
if this name was actually discrimination then the law would likely be unconstitutional
but I think they would be hard pressed to say that keeping this name is discrimination
I like orange and I am a dog person
I'm sorry, maybe I should have called it an intellectual property law?
Souix is the tribe’s name, and if they people named The Souix don’t want UND to use their name, then why is the school or citizens fighting to crate a law that ignores the Souix wishes and says “You don’t like it? F you guys, we’re going to make it law that people HAVE to call us by your name.”
It’s just really disrespectful, without even getting into the NCAA part of it.
It also seems like people in the Dakotas have been doing this kind of thing in other facets of their societal rules (touchy subjects that I’ll not touch), and it just seems really boorish. Why did they find it necessary to spend state dollars passing such a stupid and unenforcable law anyway?
by Eyeheartfreedumb on Apr 20, 2011 3:27 PM EDT up reply actions
Sounds to me like the people named Sioux wanted UND to use their name
Was this one of the reasons the law was passed in the first place?
by Incipient_Senescence on Apr 20, 2011 3:36 PM EDT up reply actions
Right up above: "Standing Rock Sioux's tribal council still opposes the nickname"
Like I said, I don’t know enough about all of this to really comment (and neither does anyone here, from the sound of things), but as someone who’s part Sioux, I’d say that if a tribal council is willing to go on record as being not happy about it, then maybe the people of North Dakota would want to respect that, but instead they passed a law that made it illegal to respect the Standing Rock Sioux’s wishes.
I personally think there are ways to respect the native heritage of an area, and it’s inarguable that the Sioux are a HUGE part of the history of the Dakotas, so I understand wanting to link a state school to that heritage, but I also think you need to be sensitive to those who you’re taking from (obviously a touchy subject in native american history). I’m sure that if the law also said that Sioux tribes got some revenue from the use of their name, or some other tribute, they’d probably be cool with it. But the law only seems to address those who want the name, and not those to whom the name belongs.
[Whatever, this thread has demonstrated to me that I don’t know enough to keep spouting off. Is there anyone in here that actually LIVES in North Dakota?]
by Eyeheartfreedumb on Apr 20, 2011 3:57 PM EDT up reply actions
also:
“Spirit Lake’s tribal members and its tribal council not only approved but actually endorsed it.” If the people of North Dakota want to respect the Sioux and the two Sioux tribes disagree, what do they do?
Also, I think there’s an extra “in here” in that last sentence. :-p
by Incipient_Senescence on Apr 20, 2011 4:10 PM EDT up reply actions
I would agree that the law is ridiculous
but none of us (including the NCAA) can pick and choose what laws we wish to follow based on such criteria
I like orange and I am a dog person
It’s not that the entire Standing Rock Sioux Tribe opposes the nickname, it’s only a few people, mainly in the council. I know quite a few people from that tribe, and not one of them are against the nickname. It’s that the council won’t hold a vote on the matter. I’m quite sure if they held a vote, they would win on keeping the nickname.
I live in North Dakota
but I’m a Bama fan who just moved to Grand Forks from B’ham. I guess you could count me in the “go investigate Auburn instead of worrying about this nickname” camp but I don’t really care one way or the other. The legislation seemed arrogant to me, but I’m from Alabama and we kind of define batsh*t. So.
Fun fact, though—UND’s original nickname was the Flickertails, and part of the reason they changed to the “Fighting Sioux” back in the 1930s was because the Sioux killed a lot of bison. Bison, of course being the nickname of rival school NDSU.
by maid of dishonor on Apr 21, 2011 12:50 PM EDT up reply actions
Why would anyone think the NCAA should care?
The lawmakers can change North Dakota laws all they want, but the NCAA is a private, voluntary organization and has the right to make rules for its members.
If the NCAA let North Dakota state law dictate its national positions, it would set a horirble precedent, opening the door to every state passing bizarre conflicting laws designed to benefit their athletic programs and override NCAA rules. I can just see some state passing “Law 104.2b (q): Podunk State University must be accepted by the NCAA as a Division I FBS member, anything else notwithstanding.”
There are alternatives out there. UND could quit and join the NAIA, or the USCAA. Sure, they’re piss-poor alternatives, but that’s not the NCAA’s fault.
True, but only to a point. The NCAA can make its own rules for participation in the league, but it can’t require something that’s illegal. It can’t require member institutions to murder their players if they don’t go to class. They can’t require member institutions to accept only white athletes. And so on and so on. They can make whatever contracts they want, but any contract they make that calls for any party to act illegally is likely going to be at least partially unenforceable.
by Joel Hollingsworth on Apr 20, 2011 1:56 PM EDT up reply actions
the NCAA doesn't want to back down
but there is an easy out, they can simply put in a small clause saying that accomodations to its rules may be made when following the rules would require illegal acts. This will not affect their nationwide policy and it is only reasonable given the alternative (requiring schools to commit illegal acts). I agree that the NCAA’s actions are the pinnacle of arrogance.
I like orange and I am a dog person
When did the NCAA make its rule?
If it was before the Souix Law, then UND was the one who was arrogant. If North Dakota thinks it can strong arm any organization into changing an established rule, just because they vote in an arbitrary “law” (when, admittedly, there are Souix in the area who are against the use of the name, which is the whole purpose of the NCAA’s rule) they are mistaken and foolish (“IF”).
by Eyeheartfreedumb on Apr 20, 2011 3:09 PM EDT up reply actions
No, I understand that.
In the next sentence I used the state of North Dakota as the subject. The first sentence was just poorly written.
by Eyeheartfreedumb on Apr 20, 2011 3:12 PM EDT up reply actions
I believe they can though
I do not see how the law is unconstitutional and it is unlikely that the NCAA would have standing to challenge it
I like orange and I am a dog person
I do think the law is rather stupid
but the NCAA cannot require them to do something illegal
I like orange and I am a dog person
Sure they can.
The NCAA can impose any conditions on membership it wishes, just about. UND can choose whether or not to follow them. If they’re forced by law to follow conditions contrary to NCAA rules, the NCAA is under no obligation to allow them to remain members.
Again, the corollary to this is, what if the Tennessee legislature passed a law saying U of Tennessee must pay its athletes? That’s also against NCAA rules, and the NCAA would not at all be obligated to keep UT as a member.
by JoeVandalFTW on Apr 20, 2011 6:33 PM EDT up reply actions
MM and I beat you to it
great minds?
by Incipient_Senescence on Apr 20, 2011 7:13 PM EDT up reply actions
laws are made
all the time that curb or change an organizations rules. That’s what laws do.
by Mark Mandingo on Apr 20, 2011 3:15 PM EDT up reply actions
joevandal FTW
Your screen name says how serious to take your garble………..HATER!!
Just to play devil's adovcate
while I think the ncaa is in the wrong on this and they look stupid for requiring a school to break state law because they’re taking a side on an issue which American’s are divided over, what if California were to pass a law mandating a $10,000 dollar a year stipend for college athletes. How would that change our opinions on what the ncaa should do in relationship to state law? Like I said, playing devil’s advocate (pinball machine noise).
I was going to ask something similar
Like, what if it were required that schools give a minimum of 100 football scholarships a year, so as to give the poor disadvantaged folk a better chance at an education.
by Incipient_Senescence on Apr 20, 2011 3:37 PM EDT up reply actions
that is assuming that the all people playing football are disadvantaged
these laws would have to pass some equal protection hurdles that the ND law clearly will not face. It is an interesting question, but I think these things are extremely unlikely. There is also a big difference in the effect of these rules. Laws regarding athlete compensation strike at the whole point of the NCAA—keeping the “student” athletes “amatuer.” The law that the NCAA is currently fighting only affects the NCAA’s authority to require one school to change its team name. This is ancillary (at best) to the NCAA’s goals. I personally believe it has nothing to do with the purpose of the NCAA and I find it odd they appear to be choosing to go down this road.
I like orange and I am a dog person
I guess to answer my own question
I think it depends on whether the situation has any bearing on competitive advantage. If there were a law in California that paid players, every recruit would want to come to California. Or if Montana passed a minimum scholarship law, that would obviously affect it. They should hold their ground.
In a situation where we’re really just talking about being PC (and I mean that not in a Sean Hannity way, but actually trying to make a stand on an issue sort of way) the ncaa should back down. This isn’t a case where most people agree with one side obviously They seem like they’re arguing with the people of the State of North Dakota about an issue the folks up there are battling over themselves and obviously care about.
This smells suspiciously of politics, Joel
35 comments in the offseason?
by _trey_ on Apr 20, 2011 4:57 PM EDT reply actions 1 recs
I’m printing that out and putting it on my wall. Woo.
by Joel Hollingsworth on Apr 20, 2011 9:47 PM EDT up reply actions
This is funny
"I condone fun things" ~~ Cortland Finnegan
Hello ladies. Look at your man, now back to me, now back at your man, now back to me. Sadly, he isn't me.
Kinda funny
That this is such a big deal…when there is an NFL team with the most racist nickname in the history of organized activities. And yes, I am part-Native.
by GhostDance on Apr 20, 2011 7:57 PM EDT via mobile reply actions
true enough
And I thought pretty much everybody ’round these parts was part-Native, but usually a very tiny and hard to document part.
by Incipient_Senescence on Apr 20, 2011 8:24 PM EDT up reply actions
Out of curiosity
and state law notwithstanding, would the NCAA still be acting a fool if UND dropped the “Fighting” part of the name and just be the Sioux?
I don’t know a whole lot about the Sioux other than the Wounded Knee Massacre, but they don’t inspire the war-like tendencies that say the Apache name does. Regardless though, what could be said about just naming them the Sioux?
"I condone fun things" ~~ Cortland Finnegan
Hello ladies. Look at your man, now back to me, now back at your man, now back to me. Sadly, he isn't me.
Also,
To tie this into the University of Tennessee system, UTC was made to change it’s name when I was in school there.
The name we had to change? The Moccasins. A damn shoe was deemed too offensive.
"I condone fun things" ~~ Cortland Finnegan
Hello ladies. Look at your man, now back to me, now back at your man, now back to me. Sadly, he isn't me.
You might know more than I...
But I didn’t think they had to change the, name, just the Cherokee mascot, and they decided to go ahead and get rid of the name as well. I think they could probably be the moccasin shoe and not run afoul of the NCAA, and certainly the snake, but they thought just being the “Mocs” with an ambiguous bird/train mascot was better?
I was in favor of the snake myself.
And so was most of the people I knew.
I think the mockingbird came from the same inept administration that caved to the PC crowd.
"I condone fun things" ~~ Cortland Finnegan
Hello ladies. Look at your man, now back to me, now back at your man, now back to me. Sadly, he isn't me.
Comments For This Post Are Closed
Secondary Sidebar
User Tools
FanPosts
Community blog posts and discussion.
Recent FanPosts
SHOP THE ROCKY TOP TALK STORE
Animated Drive Charts
RTT Classics
