Why N.D. settled the nickname suit

There have been a lot of criticisms of the settlement of N.D.’s Sioux nickname lawsuit against the NCAA (from questions about what UND got for $1m to theories about a football cabal conspiring to pressure UND to sacrifice the nickname for a chance to play Big Ten teams). The bottom-line, as many noted at the time, was that UND was suing the NCAA on procedural grounds — UND was asserting that the NCAA executive committee didn’t have the authority to issue the nickname rule — so all the NCAA needed to do to render the lawsuit moot was pass the same rule using proper procedures.

What the State of N.D. knew when it settled, and a lot of fans speculated, is that the NCAA was about to change their rules to formally grant the executive committee such authority.

From Increased Authority (Grand Forks Herald)

“In my estimation, we were going to win the lawsuit,” Stenehjem said, “but this amendment would have mooted that. We would have won the lawsuit in December 2007, and this was enacted January 12, 2008. So, it would have been a short-lived victory.”

Fan predictions that the NCAA membership wouldn’t grant its executive committee such authority, due to fear of their own oxes being next to be gored, proved unfortunately wildly wrong.

Stenehjem said he’d been told the amendment vote passed with about 99.6 percent of people voting in support.

UND faculty NCAA representative Sue Jeno attended the Nashville conference and said she was one of only a handful of representatives to vote against the amendment.

A 2007 NCAA student-athlete handbook lists the number of the association’s member institutions at slightly more than 1,000 spread between the three divisions. If the percentage vote quoted to Stenehjem is correct, that would mean Jeno was one of only about five members to vote against the amendment.

Continuing the lawsuit, given this, would have been throwing good money after bad. Given the inevitable outcome, it’s hard to argue that N.D. should have done anything other than precisely what it did. They put an immediate halt to the rising court expenses and won the valuable settlement concessions of being removed from the hostile and abusive list and being granted additional time, not subject to sanctions, to resolve the issue.

As The Sicatoka said in the “Negotiated Settlement” thread:

The AG, Mr. Stenehjem, did what he could with (what little) he had and based on this he deserves some credit:

At least he got us (temporarily) off the list and some time to look for middle ground.

9 thoughts on “Why N.D. settled the nickname suit”

  1. I, and others, believe the settlement was based just as much on politics as it was on legal issues. To the folks in Bismarck doing the “heavy lifting”, it made no sense to continue the lawsuit when UND athletics and its supporters were no longer united* behind it.

    * The lack of unity happened the minute Minnesota AD Joel Maturi raised the spectre of no football against Minnesota under the “Fighting Sioux” moniker.

  2. You do yourself a disservice, Jim, when you misrepresent the positions that I and others have taken on the Fighting Sioux nickname lawsuit settlement.

    It was quite clear from reading the messages on your board that enthusiasm for keeping the nickname diminished among some UND supporters after Minnesota said it wouldn’t schedule UND in football. Some of them — you included — made the case for changing the name.

    That doesn’t mean a “football cabal” conspired to get rid of the nickname, but it does mean that the political decision to change public policy became easier at that point. Politics had as much to do with why the state chose to settle the lawsuit as the legalities of the case. To believe otherwise is naïve.

    On the day the settlement was announced, Stenehjem admitted that he didn’t know whether the NCAA could make good on its threat to change the rules and render the lawsuit’s outcome moot. In fact, he specifically said, “They could be bluffing.” As it turns out, the NCAA wasn’t bluffing, but nobody knew that for certain at the time.

    Also, you shouldn’t go patting yourself on the back about nobody else’s oxen being gored. That remains to be seen. I believe Sue Juno, UND’s NCAA representative, was correct when she told the Herald:

    “My opposition was because this puts a significant amount of power in a small group of hands for things that affect a very large number of institutions. When there’s a big piece of legislation that would affect the entire association, more people should have an opportunity to address the issue before it becomes a law.

    “Based on our experience with the logo issue, I felt that sometimes legislation gets through in that way when it may or may not have gotten through if it had been brought before the whole assembly. That’s not necessarily in the best interest of the association.”

    Note that the NCAA never did let its members vote on the Executive Committee’s policy against American Indian logos, mascots and imagery, something that Myles Brand insisted that most members wanted. Instead, the members retroactively gave the committee authority it didn’t have at the time the policy was enacted.

    There’s a big difference between allowing the members to vote on a housekeeping measure to tidy up some language and allowing them to vote on the actual policy that got the NCAA sued.

  3. Sicatoka – Thanks for the clarification.

    The article revealed that even a legal win would have been fleeting, and UND Athletics would soon be as harmed by the NCAA sanctions as if the lawsuit had never taken place.

    As UND moved to D-I, the three closest Big Ten schools following the NCAA’s advice of declaring that they would not schedule UND revealed that significantly more harm would continue to befall UND from being on the “wrong side” of the NCAA’s rule. No doubt that was the final nail in the coffin of the will of many to fight on (leading to the lack of unity of support you note).

  4. PCM – Woah, “patting myself on the back about nobody else’s oxen being gored?” If you reread my post, I actually said it was unfortunate that fan predictions that such a measure wouldn’t pass were wildly wrong.

    I agree wholeheartedly that issues such as these ought to go to a vote of the membership, despite the NCAA claiming that the executive committee had this authority all along. I think the expansion of the NCAA executive committee’s authority resulting from the N.D. lawsuit is a very unfortunate outcome.

    I also agree that UND stakeholder support for continuing to keep the name in the face of NCAA sanctions declined as secondary harm from big name, local schools refusing to schedule UND was added to the primary sanctions.

  5. Jim, do you not think that perhaps the reason for the “wildly wrong” predictions might have something to do with the way in which the NCAA went about putting this measure to a vote of its members? The lawsuit was filed in October 2006. The NCAA had an annual meeting in January 2007.

    Why didn’t the organization have its members either vote on the policy or the rule change at the earliest opportunity? That approach would have saved everyone a great deal of time, money and effort because it would have immediately pulled the rug out from under North Dakota’s lawsuit.

    Instead, the NCAA waited for a few months after the settlement and then presented it to the members as a housekeeping matter to tidy up some language. Did the members — other than Sue Juno and perhaps a few others — even realize what they were voting on, what it related to and its potential long-term consequences? Was there any discussion or debate about the measure? Why did the NCAA wait for nearly two months to tell the world that the measure had passed?

    My point was that I doubt that most NCAA members truly understand the Pandora’s box they’ve opened by expanding the authority of the executive committee. Time will tell how far off the predictions really were.

  6. We seem to pretty much be on the same page — I’m certainly not going to argue that the NCAA didn’t operate in a manner to maximize the likelihood of its desired outcome, and as I said above, “I think the expansion of the NCAA executive committee’s authority resulting from the N.D. lawsuit is a very unfortunate outcome.”

  7. Sorry PCM, I think you’re grasping at straws. While the NCAA vote was not a direct referendum by the membership about whether they would have voted for the Indian nickname policy, the overwhelmingly lopsided vote (about 99.9%) should give you a clear indication where the membership stands.

    To put it plainly, if the membership was against what the Executive Committee did with the Indian nickname policy, the vote would have been much different. If the Executive Committee was conerned about the authority of the Executive Committee and about other oxen being gored, the vote would have been much different. It’s just hard for some people to admit that the membership was fine with the Executive Committee having the authority to make policies like the nickname ban.

    Of course the Attorney General couldn’t say with certainty that the vote would go the way it did, but he probably had a pretty good idea. It certainly wasn’t surprising to me.

    I’ll be the first to admit that the decisions by Minnesota, Wisconsin, and Iowa to refuse to schedule UND affected some people’s opinion on the nickname. I’ll admit it affected my opinion. But I think that’s a separate issue than the settlement. I believe the settlement would have happened even if UND had no interest in playing those schools. However, I think the Minnesota/Wisconsin/Iowa policies is a secondary factor, (the NCAA sanctions being the primary factor), for changing the nickname if we are unable to reach a resolution with the tribes (which seems inevitable).

  8. Sorry, mksioux, but I’m not grasping at straws. We’ve had this discussion many times one the board. I’ve asked numerous times why the NCAA didn’t simply put its policy up for a vote of its members and cut North Dakota’s lawsuit off at the legs. I have yet to hear a good explanation as to why an organization that’s “member driven” didn’t allow its members to vote on a policy it claimed all its members favored.

    So, once again, I ask: Why did that NOT happen? If even 80 percent of the members favored the policy, Myles Brand should have had absolutely no reason to put it to a vote. But he didn’t.

    Furthermore, I am merely pointing out that voting on a measure presented at the NCAA annual meeting as a housekeeping matter months after the lawsuit ended is far, far different from putting the anti-nickname policy in front of the members for a vote. As I recall, the discussions about the goring of oxen were in the context of the NCAA putting the policy up for a vote of the members or changing its rules neutralize UND’s legal arguments before the lawsuit ever went to trial. Neither of those occurred. Why?

    I was at the press conference the day the settelement was announced. I listened to what chancellor Goetz said that day and what he’s said on the radio and in the papers since then. It is obvious to me and it should be obvious to anyone who views the situation objectively that between the move to Division I and Minnesota’s refusal to schedule UND in anything but hockey, support for the nickname significantly eroded.

    Even Bruce Smith, who not long ago spoke out strongly in favor of the nickname, made his willingness to change the nickname a key part of his presidential application. And we all know that he continued to enjoy stong support from UND alumini and athletics boosters.

    When that happened, it made absolutely no sense politically to continue the fight legally, which is why Goetz made a point of saying that the settlement represented a change in public policy. Again, anyone who can’t see that the settlement was as much a political decision as a legal decision is simply being naive.

  9. PCM, I’ve stated my theory as to why the NCAA didn’t bring the nickname policy to a vote before the entire membership and it has nothing to do with whether it would have passed. The NCAA likely believed the Executive Committee had the authority to make social change policies and didn’t want to set a precedent of bringing those policies to the membership for a vote. That would have weakened the Executive Committee’s authority to enact future social change policies that will be more controversial than Indian nicknames.

    I’ve conceded that this latest membership vote was not a direct referendum on the nickname policy. But it strains credibility to think that it’s “far, far different”. If the membership thought that the Executive Committee should not have enacted the nickname policy, do you really think that 99.5% of the members would have voted to give it more authority? The bottom line is that neither one of us can definitively prove what would have happened if the nickname policy had gone before the membership, but I think this latest vote speaks volumes and makes it more likely that it would have passed. If you won’t at least concede that much, then there’s no sense in continuing to argue with you about it.

    But whether the nickname policy would have passed a membership vote is beyond the point. The lawsuit was settled because a court victory would have been short-lived. And even if you are correct and the lawsuit was settled because of weakened resolve due to the Minnesota scheduling ban, maybe we should feel fortunate for that weakened resolve. Because if it weren’t for the settlement, UND would have gotten nothing in the end and would be shrpening up its chisels to remove the logos from the tile at REA.

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