ND legislature and Sioux name

[Yote53]

Re: ND legislature and Sioux name

To JackJD, the named parties in the original settlement was UND and the NDSBoHE. Would it make a difference if a new lawsuit was brought against the NCAA by the State of North Dakota? Meaning can the State be considered a different party than UND and the BOE and therefore have grounds to sue the NCAA?

The way I see it is UND is in an impossible position. Even if UND and the BOE wanted to retire the nickname and logo they cannot do so without breaking state law. They have to have some sort of recourse, don't they.

[Nidaros]

Re: ND legislature and Sioux name

After spending the last few weeks in AZ I thought I would miss reading the stories in the Republic on the AZ state legislature as much as the warm weather down there. Come back to the Dakotas and here is my fix from the Forum.

Now can we get this weather corrected?

Getting the weather corrected? Not a chance, but the AZ legislature has to be interesing.

[Nidaros]

Re: ND legislature and Sioux name

I will pass on further comments. There are some very sticky issues in play and how this comes out? Who knows. Good analysis Hammer and JackJD. You have both help explain what is going on here.

I did hear President Kelly of UND on talk radio yesterday KFGO. He mentioned he had a law now to follow which might explain the licensing agreement that was recently renewed. If the court decides the new law is unconstitutional, seems like UND is open for a law suit from the apparell people who provide the logoed merchandise. They will no doubt want some sort of a settlement.

[JackJD]

Re: ND legislature and Sioux name

No they won't. When the settlement was reached, it included the anti-trust element and the case was dismissed with prejudice. There are a couple posters here that can explain this better than I, but the short version is that the settlement precludes a new anti-trust lawsuit.

A question to JackJD and any other lawyers on the board:...

A couple of caveats:

1. Lack of considered study and analysis. Here I go, spouting off on an issue when my only knowledge of the subject is based only on what I have read in newspapers and on fan message boards. HOWEVER, having recently stayed at a Holiday Inn Express, I forge ahead.

2. I’m nobody’s lawyer in here. No one may rely on what I’m writing for anything more than message board chatter. I presume, and you should too, that other lawyers may disagree with what I have written (and they may be right!). You should assume that there are North Dakota lawyers who are good lawyers, absolutely convinced the legislature’s action is perfectly supportable.

Okay, you’ve been warned. I’ll state my two-cents’ worth.

Hammersmith’s first question involves the concept of whether a court will throw out any new lawsuit because the first one was dismissed with prejudice. The answer to the question is "that appears likely". Many cases are resolved by a settlement followed by a court order or judgment which dismisses the lawsuit, almost always ""with prejudice". That means the controversy cannot be brought up again. Compare that to resolving a matter "without prejudice" which means, as you would expect, that under appropriate circumstances, the controversy could be brought again.
I don’t know for a fact whether the first UND/SBoHE v NCAA dispute was dismissed "with prejudice" but I’d be shocked if it wasn’t. Hammersmith has been a very accurate, factual reporter on many subjects and he notes the prior lawsuit was dismissed with prejudice. I believe him. I’ve never read otherwise.

Hammersmith’s conceptual point is accurate. If a new lawsuit was brought raising issues that were addressed in the prior litigation or raising issues that should have been brought as part of the original litigation, the new lawsuit is subject to being tossed out on at least two concepts: collateral estoppel and/or res judicata. Collateral estoppel is also called "issue preclusion". Res judicata is also called "claim preclusion". Lots of law review articles and court cases discuss those concepts. For purposes of this message board, look up "collateral estoppel" and "res judicata" in Wikipedia. The Wikipedia explanations of those concepts are good summaries of what can be very complex stuff that gives lawyers and judges fits.

There are some related "affirmative defenses" that would also be asserted by the NCAA – one example is the defense of "settlement" which means the same as the word implies: this dispute has been settled and concluded.

If the State of North Dakota brought another suit against the NCAA, you can bet the State’s lawyers will have to be pretty inventive in coming up with issues that try to avoid the consequences of collateral estoppel and res judicata. Can they do that? I don’t know – I think it’s going to be real tough. I suppose there could be some new issue that a court may conclude is viable but I think that’s an uphill battle. I’ve seen some clever lawyering and crafty writing but if I had to bet, I’d bet the new law will have a short life.

Another problem with the new ND law as noted by Hammersmith: it is constitutionally suspect. The legislature has taken action which seems to be in direct conflict with the State’s constitution granting control of higher ed to the SboHE. Now, contrary to conventional wisdom, courts do not go looking for reasons to call legislative acts unconstitutional. Courts will strive to reconcile the actions of the elected legislature with the constitution. Many state supreme courts will review a law with a presumption that the acts of the legislature ARE constitutional. My vantage point is that of a non-resident who is as fascinated watching the goings-on in North Dakota as one would be if a spectacular car accident occurred in front of them...it seems to me the law is at risk of being declared unconstitutional.

Hammersmith raises a point about whether a state can pass a law which voids out an otherwise legal agreement. Actually, there are some instances in which that has been the result of the passage of a law. We’ll see how "active" the North Dakota court wants to be. (Court activism is a fun term: when people agree with the court, those people will say the justices are being strict constructionists – ‘good’ in today’s thinking; but when they disagree with the court, they’ll say the justices are being activists – ‘bad’ in today’s terminology.)

[Prairiehaas]

Re: ND legislature and Sioux name

After spending the last few weeks in AZ I thought I would miss reading the stories in the Republic on the AZ state legislature as much as the warm weather down there. Come back to the Dakotas and here is my fix from the Forum.

Now can we get this weather corrected?

[joeboo22]

Re: ND legislature and Sioux name

That would be the next stop for this sideshow - UND to hire Charlie Sheen as their PR person for their argument.

"Duh.....Winning?!!"

Seems to me they are fighting a battle they shouldn't be fighting, but rather working to fix and move on.

I'll just go back to something I remember hearing when I was a lot younger. "don't make the NCAA mad"

[MaddogJack]

Re: ND legislature and Sioux name

but I bet if you ask them they will say that they are WINNING the argument

What people have to remember is the NCAA is a group, they can issue the standards and if you don't like it they can go to the NAIA. I'm not a fan of many things the NCAA does but you have to live with them.

That would be the next stop for this sideshow - UND to hire Charlie Sheen as their PR person for their argument.

"Duh.....Winning?!!"

Seems to me they are fighting a battle they shouldn't be fighting, but rather working to fix and move on.

[Hammersmith]

Re: ND legislature and Sioux name

The NAIA has not sponsored hockey since 1984, so the NCAA is the ONLY game in town for college hockey. UND hockey would have a legitimate antitrust argument if this situation drags on and the NCAA proceeds with sanctions.

No they won't. When the settlement was reached, it included the anti-trust element and the case was dismissed with prejudice. There are a couple posters here that can explain this better than I, but the short version is that the settlement precludes a new anti-trust lawsuit.

A question to JackJD and any other lawyers on the board:

If the state tries to bring another anti-trust case against the NCAA(as the new law requires), can the court throw the law out even as they throw the case out because of prejudice? It's fairly clear that the law is unconstitutional(ND) because of the separation of powers in ND, it's illegal because the state can't create a law to void an otherwise legal agreement, and part of it is unenforceable because it requires a lawsuit that can't happen(the prejudice problem). Can a court rule on the first two issues while dealing with the third?

[joeboo22]

Re: ND legislature and Sioux name

The NAIA has not sponsored hockey since 1984, so the NCAA is the ONLY game in town for college hockey. UND hockey would have a legitimate antitrust argument if this situation drags on and the NCAA proceeds with sanctions.

Yeah good point, forgot bout hockey.

[NightHawk78]

Re: ND legislature and Sioux name

What people have to remember is the NCAA is a group, they can issue the standards and if you don't like it they can go to the NAIA. I'm not a fan of many things the NCAA does but you have to live with them.

The NAIA has not sponsored hockey since 1984, so the NCAA is the ONLY game in town for college hockey. UND hockey would have a legitimate antitrust argument if this situation drags on and the NCAA proceeds with sanctions.

[joeboo22]

Re: ND legislature and Sioux name

AP story on the matter:

http://www.argusleader.com/article/20110419/UPDATES/110419080/NCAA-N-D-Fighting-Sioux-nickname-law-doesn-t-change-NCAA-policy?odyssey=tab|topnews|text|Home

but I bet if you ask them they will say that they are WINNING the argument

What people have to remember is the NCAA is a group, they can issue the standards and if you don't like it they can go to the NAIA. I'm not a fan of many things the NCAA does but you have to live with them.

[MinnJack]

Re: ND legislature and Sioux name

AP story on the matter:

http://www.argusleader.com/article/20110419/UPDATES/110419080/NCAA-N-D-Fighting-Sioux-nickname-law-doesn-t-change-NCAA-policy?odyssey=tab|topnews|text|Home

[JackJD]

Re: ND legislature and Sioux name

Just my off-beat sense of humor. Certainly all the news networks can be criticised. It just seems to me Fox newsreaders are a little more likely to say a constitutional law is unconstitutional (okay, English majors, isn't that a non-sequitur?)

[SturgisJeff]

Re: ND legislature and Sioux name

Geez, Sturgis Jeff...little too much Fox news in the diet? Can you give us an example of a constitutional law being found unconstitutional? Or, do you mean there are laws you agree with but an appellate court did not (a pretty safe statement for just about all of us)?

whats wrong with FoxNews. It is no worse than CNN and MSNBC and their "fair and balanced" news. you know the unbiased, non partisan, thrill up my leg channels.

[JackJD]

Re: ND legislature and Sioux name

I don't watch foxnews or even have cable. I get most of my news from Reddit.com, which seems very left leaning.

When Supreme Courts routinely split 5-4 with the usual suspects on each side, I don't think its far-fetched to assume that personal opinions often play a major role in how judges rule on cases.

If personal opinions play a role, the logical conclusion would be that at least some laws get struck down that should be upheld, and laws get upheld that should get struck down.

I was playing with the "constitutional laws are found unconstitutional" comment. If the highest court in the land says a law is unconstitutional, then it isn't constitutional. Or, if the Supremes say a law is constitutional: guess what. What is interpreted as constitutional or unconstitutional can certainly vary based on the makeup of the court, facts of the specific case that brought the controversy to the court, the day and age in which the controversy is considered. Constitutional principles aren't always as set in cement as some would like.

When most of us get upset about a court decision, its because something we like was tossed out or something we didn't like was upheld. In the meantime, a pretty-good university remains embroiled in a controversy when all it probably wants to do is educate its students and provide some entertainment through athletics.

This thread has been about the ND legislative action requiring the saving of the Sioux name for UND. It certainly appears that the legislation flies in the face of a North Dakota constitutional provision. Will the ND Supreme Court get a chance to review the law? Will it work hard to try to figure out a way to uphold the law?

It's tremendous theatre. Glad it's up north and not an issue for our State. And, the bottom line may well be: the NCAA doesn't care.