A federal judge from the District of North Dakota has dismissed a lawsuit brought by members of the Spirit Lake and Standing Rock Sioux tribes against the NCAA, who had sought approximately $10 million from the association and the reversal of an NCAA policy banning the use of American Indian imagery.
The plaintiffs, who were trying to save the University of North Dakota’s Fighting Sioux nickname, had claimed the policy represented a restraint of trade. The court, however, granted the NCAA’s motion to dismiss, holding that the tribes are not participants in the market allegedly restrained by the NCAA.
The debate over the use of Native American mascots and imagery by college and professional athletic teams is more than a decade old. The noise has been loudest in North Dakota, where forces have resisted the NCAA’s mandate that the school discontinue its use of the “Fighting Sioux” nickname, or face severe sanctions.
“Of the 18 schools originally named to the list for having ‘hostile and abusive’ nicknames or mascots by the NCAA, only one has remained in the fight, the University of North Dakota,” University of South Carolina Professors Haylee Uecker Mercado and John Grady recently wrote. “The other 17 universities either changed their mascots or have gained tribal support.”
Legal Twists
“The NCAA has continually denied the school’s use of ‘Fighting Sioux’ because two of the three Sioux tribes in the state oppose the nickname,” wrote Mercado and Grady. “In 2009, the State Board of Higher Education agreed to drop the nickname and UND agreed to phase both the logo and nickname out by 2011.
“But in an unusual legal twist, state lawmakers intervened by passing a law that requires the university to retain the moniker and logo. The Governor signed House Bill 1263, which states that neither UND nor the state Board of Higher Education may take action to discontinue use of the nickname or logo.”
Two months after the professors made their presentation to other sports law professors at a conference, the North Dakota Supreme Court declined to address a Constitutional challenge made by the State Board of Higher Education, which contended that a law requiring UND to keep the nickname improperly intrudes on its authority.
“There are not enough members of this court willing to decide the constitutional issue at this time,” Chief Justice Gerald VandeWalle wrote. “We therefore do not address the constitutional issue, and we decline to enjoin the secretary of state from placing the referendum measure on the June 2012 primary election ballot.”
The Ruling Involving the NCAA
At the outset of the “restraint of trade” case, the court emphasized to observers “what the pending motion is not about. It is not about the wisdom of the NCAA’s policies. It is not about whether or not the ‘Fighting Sioux’ nickname and logo will remain employed by the University of North Dakota. It is not about the collateral consequences that UND might suffer if it continues to use the nickname and logo. … Rather this motion is narrowly drawn to have the Court resolve two preliminary matters: (1) does the court have jurisdiction; and (2) if so, does the Committee have standing to bring these actions?”
The court sided with the NCAA, identifying the plaintiff’s “lack of standing” as “a fatal flaw.”
“Many of the counts are entirely without merit, and the ones that could potentially have been meritorious could only have been properly brought by UND, which was in actual privity with the NCAA,” it wrote. “As a voluntary, private organization, the NCAA was free to implement the policies it saw fit for governing its events, no matter how provident or improvident those policies may have been. None of the plaintiffs are members of the NCAA, and their lack of standing is a fatal flaw in nearly every count dismissed in this Order. More importantly, the Committee has failed to raise a colorable claim under any of the provisions of federal law pled.”
The full opinion can be viewed here: http://legacy.grandforksherald.com/pdfs/ncaa-lawsuit.pdf
