NCAA Mascot Litigation?

Florida State's President T.K. Wetherell is making rumblings that it will sue if the NCAA follows through with its prohibition on allowing teams with "hostile or abusive" mascots from entering postseason tournaments:

"We're not going to change the name - that's not an option," Wetherell told the Tallahassee Democrat Friday evening. "We would not do that."

Wetherell, who was angered by the decision, said he had it in his mind "to paint (the Seminole logo) three times as big on the field (at Doak Campbell Stadium)."

The NCAA Executive Committee surprised FSU when it announced the bans on Friday.

Wetherell reiterated comments he made to the Democrat on Wednesday that, in the face of a ban, he would seek legal action against the NCAA. He said that because the NCAA, in his opinion, deviated from its procedures in reaching its decisions, "the first thing the court would do is throw it out based on the NCAA's process."

Wetherell also mentioned that FSU might have grounds for economic restitution.

"I don't foresee any circumstances short of the NCAA reversing this decision that will not put us in court," said Wetherell, whose day included wrist surgery after he fell in the morning. "We've got lawyers looking at it right now."

The same article has this interesting perspective on the issue by Max B. Osceola, Jr., a member of the Tribal Council of the Seminole Tribe of Florida, which has endorsed the use of the Seminole mascot and eas not consulted by the NCAA:

Osceola said the Seminole Tribe of Florida disagrees with the NCAA's decision and determination that FSU's nickname and symbols are "hostile and abusive."


"It's like history - they left the natives out," Osceola said. "They have non-natives telling natives what's good for them or how they should use their name. You have a committee made up of non-natives telling people that they can not use a native name when you have a native tribe - a tribal government, duly elected and constituted - that said they agree with Florida State.

"There are some names, like the NFL team the Washington Redskins - that's derogatory. Those are abusive and hostile but not this."

I have not seen any response to FSU's comments from NCAA headquarters in Indianapolis, Indiana or from NCAA President Myles Brand, former President of the University of Indiana University.


If anyone can illuminate me on the likely nature of FSU's claim here, I would be interested. My impression is that they are thinking about breach of contract, on the basis that the comment that the NCAA failed to follow its own procedures. I could also see trying an antitrust action if the NCAA excludes them from participating in profitable postseason competition on the basis of this particular rule, but it isn't exactly clear to me what that action would look like. Presumably this might collapse into the breach of contract claim, as the antitrust claim presumably would be predicated on the theory that the NCAA exceeded its authority or failed to follow its own procedures. As for civil rights or First Amendment claims, I'm no expert on that, so perhaps Eugene or someone else can provide guidance on that. The NCAA is a private organization, and it has been my understanding that in general the First Amendment would not apply in this context.

So if FSU brings a claim, presumably it would be predicated on its contract with the NCAA. I would be interested in the insights of any readers or other Conspirators on this.


A Hoosier informs me it is properly Indiana University, not University of Indiana. I have corrected the post accordingly.


Leon Sinoff (mail):
What I found particularly interesting, reported by the AP and elsewhere, is the following:

President Myles Brand noted that some schools using the Warrior nickname will not face the ban because they do not use American Indian symbols. One school, the University of North Carolina at Pembroke -- which uses the nickname Braves -- will also be exempted because Brand said the school has historically had a high percentage of students, more than 20 percent, who are American Indians.

I'd love to hear a Conspirator comment on whether this is likely to make the NCAA's case more difficult.
8.11.2005 1:41pm
Leon Sinoff (mail):
I should clarify - the middle paragraph is a direct quote from the news article found here:

As someone without legal training, I find this problematic for the consistency of the NCAA's argument. The very fact that an exemption is possible means that it is not the name, in and of itself, that is offensive. They must now claim that a school can be exempt only if it has a "historically high percentage of American Indian" students, but not if it has a good relationship with the American Indian community (unless they can demonstrate that no other schools did have such a relationship). This seems to be a pretty explicitly race-based argument. However, I understand that the Supreme Court accepted something akin to this "critical mass" reasoning in the Michigan affirmative action cases.
8.11.2005 1:52pm
Jim Rhoads (mail):
Why isn't an Indian Tribe entitled to license it's name and ceremonial paraphernalia to a respectable institution for a fee or publicity, or whatever else of value it may want? I wonder whether the NCAA is willing to give back the licensing fees it has derived for the past 20 years from FSU? Just asking.

Sounds like some Seminole trial lawyer alums might be interested in a pro bono suit against the NCAA. I'd sure be willing to help even though I am not such an alum.
8.11.2005 1:57pm
Perhaps a civil rights attorney could explain to us the nature of the claim available to individual schools. This seems more of a private-contractual relationship question to me. The NCAA to my knowledge is a private league. Just b/c it implicates public universities is this really going to trigger constitutional scrutiny? I don't know the answer, so any input would be much appreciated.
8.11.2005 2:16pm
Clarification: Is this implicating free speech at all? Is it only an economic issue pertaining to licensing? And if so. . .unfair trade practices, or breach of contract, or on what theory would suit follow?
8.11.2005 2:21pm
David M. Nieporent (www):
It's pretty well established that the NCAA is a private actor. So the only grounds I can imagine are contractual, or perhaps some sort of antitrust action.
8.11.2005 2:48pm
It seems to me, while I don't claim to follow the issue closely, that the courts have generally been quite deferential to the decisions of the NCAA. It is, after all, a private actor.

Maybe there is a contractual issue, but otherwise I don't see what prevents the NCAA from being completely arbitrary and capricious if they choose to. If they say "no one can play in our bowl games if your nickname begins with B," it may be stupid, but is it unconstitutional? I don't see how the NCAA is required to afford due process.
8.11.2005 3:09pm
SL (mail):
As an alum of the University of Utah, whose sports teams are named the "Utes" or "Running Utes" after the Ute indian tribe, I am interested in how this turns out. If the NCAA prevails, we may have to change the name of the University, since "Utah" derives from "Ute". Maybe we will have to end up changing the name of the State as well.
8.11.2005 3:47pm
Cory Olson (mail):
Steve, just to note, the NCAA does not "own" the bowls or control them in any way. In fact, unlike the NCAA Final Four tournament, the NCAA doesn't get any of the revenue from bowl games.
8.11.2005 3:47pm
Matt Thomas (mail) (www):
So since this is a contractual issue, I suppose there is nothing keeping FSU from opting out of the NCAA and setting up their own league to complete with it. What we need is some competition here.
8.11.2005 4:05pm
Buck Turgidson (mail):
Will Notre Dame be forced to reliquish its offensive mascot and name "The Fighting Irish"? It goes far beyond simple warrior association by naming a sports team after a tribe. It actually identifies the tribe as "fighting".
8.11.2005 4:06pm
Buck Turgidson (mail):
...and if you think "The Fighting Irish" is OK, what about "The Fighting Illini"? Note that the latter would be out because of the ban, but not the former.
8.11.2005 4:09pm
Will Collier (mail):
The NCAA has been sued several times in the past (most recently in Alabama) for violating its own procedures. As a private, voluntary organization, it usually wins those cases.

FSU would probably have better luck suing on economic grounds. Florida State almost always hosts regional baseball playoffs, and those have an economic impact on the school and community. The NCAA has effectively banned any future regionals at FSU, for arbitrary reasons. IANAL, but that sounds like more of a reasonable case to me. The NCAA definitely has a monopoly on baseball playoffs, and a near-monopoly on awarding basketball regional sites (give or take the NIT).
8.11.2005 4:14pm
Buck Turgidson (mail):
One more note, in response to Steve: "unconstitutional" is not the same thing as illegal or actionable. Then there are those contractual issues that people have already mentioned. If you were specifically referring to the free speech queries, then "unconstitutional" would apply, but your comment made no reference to the specific issue you were addressing.
8.11.2005 4:15pm
Jaime non-Lawyer:
For what it's worth, an FSU alum told me that they do indeed purcase their Seminole gear from the Seminole tribe, an arrangement that seems to make everyone happy.

With regards to the use of the Warrior mascot, since when did Warrior exclusively refer to Indians? Did I not get the memo?
8.11.2005 4:16pm
As a Dartmouth alum (formerly the Dartmouth "Indians" and now the Dartmouth "the large color green" or "Big Green") I have been interested in this issue of respect for Native Americans and school mascots for quite a while. Dartmouth was founded as a school for Native Americans and I believe, though this may be a school legend, that to this day Native American students receive free or reduced tuition rates. So I guess Dartmouth might have qualified for the historical exception discussed above.

The effect of this PC name-stripping garbage, if not the intent, is actually quite harmful to the interests of Native Americans. What will be the effect of erasing every popular reference to Native Americans from the popular lexicon? Already, localities throughout the US are re-naming geographical place names with the terms "squaw" or "brave" (supposedly demeaning?). I heard a report just yesterday that NORAD (the defense entity) has mandated the re-naming of all training exercises and traditional unit names that make use of the terms "brave," "warrior," "arrow" and the like.

First racially-insensitive white people drive the indigenous peoples from their lands across this great continent. Then, a century later, racially-oversensitive white people erase (whitewash?) the remaining Native American legacy (evidenced in place names, respectful mascots and the like) from popular usage, supposedly out of respect for Native Americans, but actually just completing the work of their settler ancestors...
8.11.2005 4:32pm
jallgor (mail):
SL - You'll be happy to know that in the article I read, Utah was mentioned as another school that has the official support of the Ute tribe to use the name.
I went to UVA and I heard that 17th century supporters of Charles I are portesting our use of "Cavaliers" as our mascot.
8.11.2005 4:47pm
Jim Rhoads (mail):
As for Florida State, why doesn't it have a claim against the NCAA for tortious interference with its agreement with the Seminole tribe? The Seminole tribe might also have a case (maybe a better one) against the NCAA for tortious interference with its agreement with Florida State.
8.11.2005 5:13pm
Zywicki (mail):
I follow the economics of your argument--what do you see as the substantive cause of action, perhaps breach of contract or antitrust?
8.11.2005 5:25pm
sjpitts (mail):
I have been curious about this. Why isn't it illegal race-based discrimination for the NCAA to allow "Fighting Irish" mascot but not allow a "Fighting Sioux" mascot? It sure seems that way to me. Is there any legal distinction between Irish and Sioux?

Even closer, what is the real distinction between the San Diego State "Aztecs"—which the NCAA allows--- and the Utah "Utes"—which is banned??

I don't know if the schools would have standing to challenge this, but it sure seems like the Seminole Tribe would have a strong basis to complain that the NCAA's action is going to hurt them, and it is solely based on their race.

And come to think of it, I am Irish. Do I have standing to complain?????

8.11.2005 5:35pm
If some schools are treated differently (allowed to keep their Native American mascots) because of the racial makeup of their student bodies, isn't that overt racial discrimination? Wouldn't the schools have standing to sue under the federal civil rights laws based on a negative race-based classification triggered by their association with certain races (in this case, non-Native Americans)?
8.11.2005 6:30pm
Bruce Hayden (mail) (www):
As to NORAD, wonder whether they will have to ultimately change the name of their headquarters away from Cheyenne Mountain (named, obviously, for the local Indian tribe of that name). And then their close relatives, the Araphahoe, have a county named after them, some 60 miles north of there.

I was in and out of Phoenix a couple of years ago when they tried to rename Squaw Peak in honor of a Native-American woman who died in the military in our WoT. Of course, the name of the peak, being a local landmark, had rubbed off on a lot of things around town, including the name of a freeway. Unfortunately, for the liberal governor there, she was unable to effect the actual name of the peak on maps, as that takes a long time, and is apparently controlled by the federal government. So, last I knew, the freeway had been renamed, though a lot of people still refer to it by its old, much shorter, name. So, you have a freeway now named after what a peak will ultimately, maybe one day, be named. A lot of the businesses that had taken their name from the peak had not changed.
8.11.2005 6:39pm
Noah Snyder (mail):
I've heard it reported that although FSU has permission to use the name "Seminoles" from one tribe of Seminoles, they do not have such permision from many other tribes of Seminoles, and that this played a role in the NCAA's decision to include FSU in the list of schools with offensive nicknames.

I'm not sure if this changes much, but it is a relevant fact.
8.11.2005 6:42pm
Bruce Hayden (mail) (www):
I would think that the problem that the NCAA faces with antitrust is that it is, indeed, a monopoly. I am obviously not an expert here, but suspect that it would be quite hard for a school to compete, esp. at a national level, without being a member. I think economic damages may go beyond bowl games (which are apparently not controlled by the NCAA), as schools with nationally ranked teams, as I understand FSU has, make some money off of their sports programs.

But, I agree, that the Seminole Indians probably have the better claim. I would think that they might have some sort of tying claim, as the NCAA could be seen as trying to leverage its control over collegate sports into a social statement that would presumably end up terminating their financial relationship with the school. Yes, this is a stretch - I think the tortuous interference, etc. is probably stronger.
8.11.2005 6:47pm
Jim Rhoads (mail):
It seems like there should be a way to turn the NCAA's arrogant, arbitrary and capricious stupidity into a lucrative cause of action.

After all, we trial lawyers sometimes make dough persuading jurors to award damages for far less arrogantly stupid activities of perfectly respectable businessmen and professionals.
8.11.2005 7:20pm
Mike in Colorado (mail):
Jeeezz! I guess my alma mater, Michigan State, is in for it too. The Spartans were some of the most "hostile and abusive" warriors of all time. They left their old people out in the cold to die! They killed their children for no real reason at all! I guess I ought to be ashamed of myself for attending there.

Where does this end?
8.11.2005 7:51pm
Luckily for Michigan State, the Spartans did not occupy territory now located within the boundaries of the United States of America (which may also explain the difference in treatment for the "Fighting Irish" of Notre Dame, come to think of it). The NCAA's grand poohbah committee of political correctness has already adjudicated the fact that such geographic distinctions are of vital importance for this issue, as they have exonerated San Diego State University's use of "Aztecs" because their mascot represents a "Meso-American culture" rather than a Native American one. Making such distinctions as these indicates why the clowns on this committee are University Presidents--they clearly are able to reason much more clearly than the rest of us bumpkins. And they are well paid for it too.
8.11.2005 8:09pm
Stephen Lindholm (www):
As a mere Swede I'm not qualified to have a strong opinion myself one way or the other, but I will note that my native american friends tend to take offense at the mascots. It's not simply that the names are Indian names, or even inherently offensive names (like the "Redskins" or the "Savages"), but that the school deliberately picked a "fierce" name, thereby playing off a negative stereotype of Indians being barbarians or savages. There's a reason schools are named for Spartans, Panthers, Cougars, Lions, Warriors, etc. Very few are named Banana Slugs, Gophers, etc.

Another example is the Apache webserver program. For a long time, the joke was that it was "a patchy webserver" (i.e. held together with baling wire), which is a bit of a cheesy pun but at some point the original author said no, it was in tribute of the fierce Apache warriors. Well, there you go. An entire culture has been stereotyped and reduced to being bloodthirsty, for really no good reason at all, and the white guy who did it can't understand why people of Apache descent don't thank him for it.

Another thing that native americans tend to be upset about is how our military's bad-ass killing equipment is named after Indian words: Tomahawk, Apache, Comanche, etc.

It doesn't matter that a state is named after an Indian tribe, because it's historically correct. Nobody is trying to rename Utah, Illinois, or the Dakotas.

If it would make it easier, please think about negative stereotypes of jews, hispanic people, etc., and how you might use these stereotypes to label products or organizations. Most every culture, when it was "outside," has been stereotyped in some single-minded way: being craven and greedy, lazy, stupid, etc. Bloodthirsty goes on that list too. Can you think of any other attributes about Apaches other than their "fierceness"? I didn't think so.

I realize it would be rather inflammatory to give examples here, but I trust you have the imagination to come up with some on your own. As tame examples, didn't Aunt Jemima pancake syrup and Cream of Wheat use to have grossly stereotyped "monkeyface" mascots?

This is more direct/personal than the Confederate flag issue, and I have trouble understanding why people who really have no vested interest get so pissy about keeping their mascot.
8.12.2005 5:43am