Tuesday, November 14, 2006

More on the UND case 

Brad Humphreys notes that the brief that the North Dakota attorney general used to win the temporary injunction last week to continue using the UND logo and mascot is available online. Skip Oliva points out that the North Dakota judge did not think the state had "presented sufficient evidence to establish that enforcement of the [NCAA�s] policy will result in a reduction of competition of the market in general.� So the case to be made is one of breach of contract and breach of good faith rather than an antitrust violation. From the injunction:
The NCAA is correct in its assertion that North Dakota courts generally defer to association rules and decisions, ... The North Dakota Supreme Court has clearly stated that �it is the duty of the courts, regardless of personal views or individual philosophies, to uphold regulations adopted by administrative authorities unless those regulations are clearly arbitrary and unreasonable.� It is for that very reason that this court did not rule immediately after the November 9, 2006 hearing, as suggested by the State. Instead, before ruling on the motion, the court conducted a very deliberate and comprehensive review of all argument and materials presented by both parties. The court notes, however, that the State is challenging the policy as arbitrary and unreasonable. Although the court will not second-guess the wisdom of an association�s rule or policy, it may determine whether that rule or policy comports with the law.
Note that the injunction names our president as the reason for the mascot policy:
On August 4, 2005, the NCAA Executive Committee �adopted a new policy to prohibit NCAA colleges and universities from displaying hostile and abusive racial/ethnic/national origin mascots, nicknames or imagery at any of the Association�s national or regional championship competitions.� The NCAA identified UND as a member institution subject to and affected by the new policy. The policy became effective February 1, 2006, except for the institutions seeking an exemption from its application. The policy had emanated from a request by St. Cloud State University President Roy Saigo that the NCAA consider a resolution stating that the NCAA does not condone the use of Native American logos and nicknames.
And what was "arbitrary and unreasonable"? It's worth noting from footnote 23 of that document that there were originally two avenues of appeal: you could appeal that your particular mascot or image created a hostile or abusive environment or you could appeal the policy decision through a "modified process." Yet the finding of fact in the injunction does not indicate any point at which the modified process is defined or initiated. Instead, after a staff review UND was told only that the review of the facts of the UND logo's creation of a hostile environment could go to the NCAA's Executive Board.

In short, UND argues it has not received due process under the operating rules of the NCAA. It appears there was sufficient merit to the argument, along with substantial damage to UND, to issue the preliminary injunction.