ST. PAUL, MN - APRIL 07: : : Chris Brown #10 of the Michigan Wolverines shoves Brett Hextall #26 of the North Dakota Fighting Sioux during semifinals of the 2011 NCAA Men's Frozen Four on April 7, 2011 at the Xcel Energy Center in St. Paul, Minnesota. (Photo by Elsa/Getty Images)
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.