Rob wrote earlier today about a story in the Grand Forks Herald Sunday where they claim that the little benighted people of the Grand Forks and University of North Dakota communities shouldn't fight the NCAA over the Sioux Name because we "will lose." I doubt anybody who still reads the Herald could have missed it as they gave the story the most prominent spot in the best-selling paper of the week. One only has to read the headline, "Courting Disaster", to realize that the Herald has abandoned all impartiality on this issue.
As many of you know the Grand Forks Herald has been campaigning to change the name for a long time. In fact they have been the only institution of any weight in favor of that. Now that the NCAA has made this ridiculous ruling they apparently are going to abandon any journalistic integrity they still had in order to tear down this tradition.
Their article centered around a couple of law professors that frankly I've never heard of. Surprisingly these two professors agree with the editorial board of the Herald. The story starts out:
If UND takes the Fighting Sioux nickname to court, it will lose.
So say two law school professors with a specialty in sports law. The NCAA would prevail in its attempt to have American Indian nicknames, mascots and logos banned from its tournaments, they say.
"Based on precedent, the NCAA would win," said Matt Mitten of Marquette University School of Law.
As soon as I read this story I wrote to an attorney I know to get his legal opinion. This lawyer is very well respected as an attorney in the state where he practices; in addition to being a former Fighting Sioux Letterwinner. He responds to the Herald's story:
First, the press commonly goes to law professors for support of their policies. I have seen literally dozens of worthless opinions by that group, which is uniformly liberal. Lawrence Tribe is consistently quoted by the Washington Post and New York Times since he can be counted on to support their agenda. But perhaps the best example of that, close to home, is the recent attempt by the University of North Dakota Law School to sue a subdivision of itself, the City of Fargo, over the Ten Commandments. UND told everyone they could not lose, but they did, and there was solid law in favor of Fargo and the Ten Commandments in an opinion of the court of appeals for the 5th circuit
well before UND brought the case.
The Herald's "attorney's" go on to say:
A court will not consider whether the Fighting Sioux nickname is hostile or abusive. It will not judge whether UND has been respectful with its use of the nickname or logo. Courts don't want to get involved in the internal governance of any organization.
"The court will not substitute its judgment for the NCAA's judgment," Mitten said. "Because the NCAA is a private organization, the courts will provide a lot of deference to it in making rules, interpreting them and applying them to their members."
UND is a voluntary member of the NCAA. It doesn't have to belong. Plus, it has a voice and role in making policy. "Members of private organizations have to comply with the rules," Mitten said.
In another case, an argument was made that colleges really have no choice but to belong to the NCAA if they want to participate in big-time athletics. "But the Supreme Court rejected that argument," Mitten said.
My attorney friend responds:
Yes, the NCAA is a voluntary organization, but it is not your Saturday afternoon tea club. It is engaged in the entertainment business to the tune of several billions of dollars a year. It is no different from other voluntary organizations, like General Motors or Microsoft. No one has to be a stockholder in GM; my purchase of their shares is totally voluntary. Management of GM owes me, a stockholder, a fiduciary duty, that is, they have to accord me the highest duty of fairness and financial probity.
Perhaps a better analogy is a law firm. Like corporations, partners owe each other a fiduciary duty. If a law partnership decides that the a partner named Frank Smith was to be denied financial benefits because the other partners didn't like his name, Frank would sue their butt off, and he would win, and probably get punitive damages as a means to educate those in power not to do abuse it. Is there any doubt that a judge would compare the law firm's decision that the name Frank Smith was in bad taste to the
standard of what a reasonable man would think? Of course he would, and he would naturally substitute his judgment for the judgment of the other partners in this voluntary organization. Judges do that sort of work every day.
If the law firm reduces Frank Smith's income because of his nasty name, Frank can at least join another law firm or open up his own law office. However, there is only one Final four and Frozen four, which raises serious anti-trust implications, at least to me, and I note, Florida State was about to bring an anti-trust action against the NCAA.
One point that my lawyer friend didn't say but I think is implied is that the College logoed merchandise is a huge business. If the NCAA goes through with their nefarious edict the University of North Dakota will be put into a financial hardship.
Speaking of anti-trust activities; I think while we're at it we should be suing the NCAA for a full share of the tournament money of the Division I tournaments we've participated in. The D-I school are colluding to keep that money for themselves.
I also have to make my own comment about the duties of the NCAA. The lawyers the Herald dug up make a claim that the courts will not interfere with the decisions of the NCAA. In most actions by the NCAA that is true. We need uniform rules to keep the competition fair. That's true whether it's rules for on the court or on the recruiting trail. Certainly one school can't be competitive if they play a school that doesn't follow the academic rules. Rules like this certainly fall under the purview of the NCAA and the courts would not interfere.
What a team calls themselves does not fall under the purview of the NCAA. Certainly the "Fighting Sioux" name doesn't give us any competitive advantage. They are overreaching and they should be socked with punitive damages!
This "article" by the Grand Forks Herald is just another example of the Herald misleading their readers. It's no wonder that they are losing readership. The Herald tell's it's advertisers that there are 210,000 people in it's home area. The Heralds circulation has fallen to about 30,000 or one in seven. The Herald has been through at least two rounds of staff cuts and it still keeps driving away subscribers.
This is the same kind of biased news coverage that we get when the cover politics. When it comes to Kent Conrad they only give the story the way Conrad wants it covered.
Speaking of Kent Conrad what is his position on the Fighting Sioux nickname. Is he still ashamed at how "provincial" his constituency is? Even Byron Dorgan has come out and said the NCAA is overreaching.