An Ontario court dismissed a celebrated Canadian architect and Indigenous activist's application to ban the Cleveland Indians name and logo from being used in Ontario, just hours ahead of the team's third playoffs game against the Toronto Blue Jays on Monday night.
Douglas Cardinal, who did not appear in court as he is currently in China, launched an application on Friday to temporarily block the American baseball team from wearing their regular jerseys or displaying the logo of Chief Wahoo in any way during their playoff games against the Blue Jays this week in Toronto.
The judge, Thomas McEwan, did not immediately release the reasons for his decision.
The application for an injunction, heard Monday afternoon in Ontario's Superior Court of Justice, also named Major League Baseball, and Rogers Communications, which hosts the games and owns the channel that broadcasts them.
"Someone like Mr. Cardinal ought to be able to watch the game, like every other person in Canada, without suffering from racial discrimination," his lawyer Monique Jilesen, told the court. The use of Cleveland's name and logo constituted discrimination in the provision of a service, defining service as "professional sports entertainment in the Rogers Centre and as broadcast to a national audience," she argued, noting that the size of the audience for a Toronto-Cleveland playoffs game would give an unprecedented audience to the image.
Fans carrying or wearing their own Cleveland merchandise wouldn't be impacted by the injunction as they weren't providing a service, she clarified.
Jilesen said the team could wear their spring training jerseys, which didn't have the "offending" logo on them, instead. And Rogers could stop their on-air personalities from using the Cleveland's full team name during broadcasts and refrain from showing the logo during broadcasts and on the jumbotron during games.
Since Cardinal's lawyers weren't asking for the game to be stopped or for its broadcast to be cancelled, "there would be no loss of enjoyment for any viewers," said Jilesen, adding that "Indigenous people can watch, at a minimum with a reduced amount of discriminatory iconography."
Cardinal, described in the notice of application as a sovereign Anishnaabe elder, has also launched two human rights complaints related to the same issue—one before the Canadian Human Rights Commission and the other before Human Rights Tribunal of Ontario, and the injunction would've been imposed until the end of those proceedings.
Chief Wahoo is a "racist caricature of an Indigenous person," said the notice of application. The logo and the team name constitute discrimination on the grounds of race, ancestry, colour, as well as ethnic and national origin, it argued, calling them an affront to his dignity as an Indigenous person."
In a statement to VICE News, Rogers spokesperson Aaron Lazarus said the company understood that "the Cleveland name and logo is a concern for a number of Canadians."
"The playoff series between the Jays and Cleveland is also significantly important to millions of passionate baseball fans across Canada," he said. "Punishing these fans by blocking the broadcast of the games doesn't seem like the right solution and it would be virtually impossible to broadcast the games without seeing the Cleveland team name and logo on the field, in the stands and in the stadium."
Cardinal's legal bid was the latest in a number of public protests to Cleveland's name and logo. Last week, Blue Jays radio broadcaster Jerry Horwath revealed that he has refused to use the name since a First Nations person wrote to him saying that it was deeply offensive 20 years ago.
Kent Thompson, a lawyer for Rogers Communications, said at the hearing that the injunction would have a "devastating impact" on Toronto businesses, including sports bars and restaurants, since the only way to enforce the ban on the logo and name would be not to broadcast the games at all, and would have "punished millions and millions of Blue Jays fans, innocent victims." Thompson said Rogers would have to strip search Cleveland fans in that city and in Toronto for any Cleveland merchandise, to ensure the logo wasn't caught on camera.
"What if a Rogers sportscaster used the name inadvertently, because they had been using it for years and years?" he said, adding that the person could then face a contempt action. "It's not fair."
Rogers can't control the actions of fans or broadcasters, and they wouldn't be able to avoid showing images of fans wearing or carrying merchandise or the field in Cleveland, which has the logo on it, Thompson continued.
Markus Koehnen, lawyer for Major League Baseball, pointed to instances in which Cardinal had used the word "Indian" to describe himself in news articles.
When the judge interjected to suggest there were differences in the context, Koehnen said, "The word 'Indian' itself, there's nothing derogatory about that word," comparing it to the Vancouver Canucks and the Montreal Canadiens.
"It speaks to a heritage of a country," Koehnen said, also noting that the name and logo were registered trademarks in Canada, protected under freedom of speech.
Jonathan Lisus, lawyer for the Cleveland Indians, argued that a ban would've forced the team to find new jerseys — there are only two that are sanctioned by the MLB style guide, and one player doesn't have the spring training uniform since he's new to the team — and called the attempt a "gotcha injunction," delivered late on a Friday.
"You are being asked to censor constitutionally-protected activity," Lisus said in Monday's hearing. "What we are here today about is controversial speech.
*Story updated 7 PM, October 17.
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