Attorney general says NCAA change is response to nickname lawsuit
GRAND FORKS -- A January vote by NCAA members gives increased authority to the group that enacted the association's 2005 Indian nickname ban to implement similar policies in the future.
Or, maybe the Jan. 12 amendment to the NCAA constitution just clarifies an authority the NCAA executive committee already had.
That question was at the heart of UND's yearlong and multimillion dollar lawsuit against the NCAA over the school's Fighting Sioux nickname.
In legal briefs, UND charged the executive committee overstepped its bounds by adopting the policy banning most American Indian nickname, logos and mascots, without a vote of the full membership, while the NCAA said the committee acted within its authority.
If this amendment had been in place before the nickname ban, UND probably would not have had grounds for a lawsuit, said North Dakota Attorney General Wayne Stenehjem, whose office represented UND in the case.
Stenehjem cited the at-that-point proposed amendment as the major factor influencing him and the State Board of Higher Education to settle the lawsuit in October. He said Thursday that the recent NCAA vote vindicates that decision.
"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."
The executive committee is a 20-member group of college presidents that deals with association-wide issues, according to the NCAA Web site. This vote, taken during the association's annual convention in Nashville, Tenn., gives the committee full authority for "adopting and implementing policies to resolve core issues and other Association-wide matters," according to text on the NCAA Web site.
When UND filed its lawsuit in October 2006, Stenehjem said, the NCAA had not indicated it might amend its constitution.
"I think they initially thought that the executive committee did have the authority (to enact the nickname ban)," Stenehjem said. "We filed our lawsuit and provided some strong legal briefs that led them to conclude our lawsuit had merit, that we were going to win. Then, they said, 'gee, maybe we'd better change the rules in the middle of the game, maybe we'd better change the constitution.'
"Once I was convinced that would happen and that we didn't have the political muscle at the NCAA (to stop it), that's when I decided it was important to try to reach a settlement."
Stenehjem said he'd been told the amendment vote passed with about 99.6 percent of people voting in support.
Against the amendment
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.
A rationale provided for the amendment on the NCAA Web site describes it as a clarification of an authority the executive committee already had rather than an expansion of the committee's authority. Jeno said NCAA officials described the amendment in similar terms before the membership vote.
A separate question-and-answer sheet available on the NCAA Web site states: "This removes the opportunity for adverse litigators to make creative arguments in a court setting challenging the Executive Committee's authority."
Jeno said she respects the executive committee's interest in having clearer lines of authority, but said her opposition to the policy was ideological, not just "sour grapes" about the nickname lawsuit.
"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, she said. "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," she said. "That's not necessarily in the best interest of the association."
Two Herald phone calls to the NCAA's public relations office were not returned Thursday. A request for an e-mailed response also went unanswered.
The UND-NCAA legal settlement requires UND to give up its nickname and Indian head logo in three years if it cannot win the support of both the state's Sioux tribes.
Stenehjem and North Dakota University System officials have said the settlement leaves UND in a stronger position than if the school had simply complied with the NCAA policy. But it appears unlikely the settlement actually will allow UND to retain its nickname.
Leaders of the Standing Rock Sioux Reservation have remained staunchly opposed to the nickname, even renewing their resolution opposing it after the settlement was announced. And university system Chancellor William Goetz has said a pro-nickname vote from the Spirit Lake tribal Council, North Dakota's other Sioux tribe, would be "of little or no value" because it easily could be overturned by a later anti-nickname vote.
Goetz is in the process of forming a committee that may begin the process of retiring the nickname. Whatever the resolution of the nickname debate, Goetz has said, it certainly will be in progress before July, when UND's next president, Robert Kelley, is scheduled to take office.
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