Judge Lawrence Jahnke said Thursday he would rule “as soon as possible” on North Dakota’s request for a preliminary injunction to stop the NCAA from enforcing its policy against American Indian nickname, mascots and imagery.
During a hearing in Northeast Central District Court in Grand Forks County, Jahnke heard arguments on North Dakota’s motion for a preliminary injunction against the NCAA. Without the injunction, the University of North Dakota’s Division II football team would be forced to go on the road for the upcoming playoffs, even though it’s poised to qualify under NCAA rules for at least one home game.
Jahnke said he would not make a “knee-jerk reaction” ruling and instead would take time to study briefs filed by North Dakota and the NCAA, as well as conduct independent research on the legal issues presented.
“Obviously, this is a very emotional issue, a very controversial issue and a very sensitive issue,” the judge said in an Associated Press story.
Before the 10 a.m. hearing began, radio reports said a group of 10-15 people was outside the courthouse in Grand Forks holding signs thanking the NCAA and protesting UND’s use of the Fighting Sioux nickname and logo (the school has no mascot).
Even if North Dakota is denied the preliminary injunction it seeks, the lawsuit will likely go on. Jahnke set April 24 as the tentative date for a jury trial to determine if the state will receive a permanent injunction against the NCAA’s policy, as well as unspecified financial damages and attorneys’ costs.
North Dakota Attorney General Wayne Stenehjem is in charge of the lawsuit, which is being funded through donations from alumni and others.
The NCAA policy against the use of America Indian nicknames, mascots and imagery it deems “hostile and abusive” was announced August 2005 by the NCAA Executive Committee. UND’s third and final appeal for exemption from the policy was rejected by the executive committee last April.
The policy prohibits UND from hosting NCAA-sponsored championship events or displaying the school’s Fighting Sioux nickname and logo at those events. On Oct. 6, Stenehjem filed a lawsuit for the state on behalf of UND and the State Board of Higher Education, which mandated that the university use the name and logo.
UND’s football team concludes the regular season in Grand Forks Saturday against the University of South Dakota. The 8-1 Fighting Sioux are highly ranked nationally, contending for the North Central Conference title and are likely to qualify for a home NCAA playoff game, win or lose. The Sioux are 8-0 postseason when playing on their home field at the Alerus Center in Grand Forks.
Last week, the NCAA filed a brief in response to North Dakota’s motion for a preliminary injunction. On Wednesday, the state filed a reply to the NCAA’s brief in which it says “UND will suffer irreparable harm” unless an injunction is issued.
The NCAA says in its filing that “UND’s legal claims and its demand for mandatory injunctive relief fail as a matter of law and should be denied.” The brief cites numerous resolutions by tribes, Native American organizations, groups on UND’s campus and others calling for an end to the university’s use of the Fighting Sioux nickname.
Specifically, the NCAA contends:
• “…the nickname and logo are…subjected to blatant misuse by fans and opponents alike. This unsanctioned use can be vulgar and shocking.”
• “…UND has increased exploitation of the Sioux name and imagery in efforts to entertain fans, recruit student-athletes and otherwise raise money.”
• “UND ignores the harms resulting from 70 years of competing as the ‘Fighting Sioux’ and complains that adoption of a narrowly-tailored anti-discrimination Policy constitutes a breach of its contractual expectations.”
The NCAA says that its policy against the use of American Indian nicknames, imagery and mascots:
• “…is consistent with the principle of institutional autonomy.”
• “…is narrowly tailored to govern only the NCAA’s own championship contests.”
• “…assures that NCAA championship environments, over which it has responsibility and control, are free of racial exploitation and degrading nicknames/images.”
The NCAA contends that it did not breach any contract with UND, but that its executive committee properly “identified a core issue” and “was obligated under the NCAA Constitution to act on behalf of the Association” to further membership interests in the areas of non-discrimination, respect and civility.
According to the organization’s brief, “…failing to take action based on the information presented would have frustrated the expectations of member institutions.”
The NCAA also cites case law and legal precedent in which the courts have refused to overturn decisions, rules and policies of private associations. “The judiciary should not replace the NCAA Executive Committee as the decision-maker on issues of fundamental policies affecting the Association,” the brief states.
North Dakota counters by saying that its lawsuit isn’t about the NCAA’s right to govern itself by passing and implementing rules and policies, but about the organization’s breach of contract with UND by failing to follow procedures outlined in its own constitution and bylaws.
“Courts considering the issue have repeatedly held that the constitution and bylaws of voluntary member associations constitute a contract that is enforceable against both individual members and the association itself,” the state’s brief says. “In fact, courts addressing this question in cases involving the NCAA have determined that the NCAA and its members are in a contractual relationship.”
North Dakota disputes the claim that the association’s championship events “will be marred by the presence of offensive Native American imagery” if the policy is overturned. It points out that exemptions granted by the NCAA will allow the Florida State Seminoles, Central Michigan Chippewa, University of Utah Utes and San Diego State Aztecs to compete in those events.
Because those schools have larger fan bases and potentially larger audiences than UND, the state believes that, “Any ‘harm’ incurred by the presence of the ‘Fighting Sioux’ at NCAA events is minimal compared to the combined impact of these schools’ Native American imagery.”