For the last several years, the University of North Dakota (“UND”) and the NCAA have been fighting over the use of UND’s nickname, the Fighting Sioux, and logo. The dispute began when the NCAA enacted a policy to discourage the use of offensive nicknames and logos by member institutions. Many of the institutions at issue complained that their names are not offensive and, ultimately, the NCAA developed a procedure where the universities could retain the allegedly offensive name or mascot (i.e., Chief Osceola of Florida State University). UND, however, was unable to convince the NCAA to allow it to continue to use its revered nickname and filed suit. In 2007, UND and the NCAA settled their dispute by and through a settlement agreement, which indicated that UND would discontinue the use of the Fighting Sioux nickname and logo by August 15, 2011 unless it received approval from North Dakota’s Spirit Lake and Standing Rock Sioux tribes. UND was able to obtain an endorsement from the Spirit Lake tribal leader, but was not able to convince the Stand Rock Sioux’s tribal council to provide the same endorsement.
The UND faithful appear to know the days of the Fighting Sioux nickname are numbered. The North Dakota legislature took matters into its hands and enacted legislation stating UND shall continue to be known as the Fighting Sioux and “If the national collegiate athletic association takes any action to penalize the university of North Dakota for using the fighting Sioux nickname or logo, the attorney general shall consider filing a federal antitrust claim against that association.”
This presents an interesting legal quagmire. If UND continues to use the Fighting Sioux nickname, then it will not be in compliance with NCAA policy and will therefore be unable to host postseason events (i.e., a big disadvantage for the Fighting Sioux hockey team) and will be unable to use the logo during postseason events. On the other hand, if UND ceases use of the name and logo, then it will be in violation of state legislation. This issue, or a similar issue, has been discussed in other legal matters. Specifically, in Miller v. NCAA, the NCAA took a stand against legislation enacted by Nevada relating to due process implications in infractions cases (following the Tarkanian investigation). The NCAA argued in Miller that the codification of legislation that requires the NCAA to enforce its rules differently in one state than another violates the commerce clause of United States Constitution. The Ninth Circuit agreed with the NCAA and held legislation that requires different treatment for schools in one state than in the neighboring state violates the commerce clause. Here, a similar argument could be made. Essentially, the NCAA would have to pick and choose the way it interprets and enforces its policies. If the NCAA is forced to do so, then the Fighting Sioux legislation will likely violate the United States Constitution.
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