It is not often you hear a university president blatantly refer to the National Collegiate Athletic Association as "hypocritical" and "stupid," but the events surrounding the University of North Dakota and its athletic program nickname graduated from the realm of the ordinary many years ago. What's left at this point is a striking legal farce, a Catch-22 so bafflingly weird that even a longtime politician can't help but giggle at the irony.
"It is stupid, right?" said Ed Schafer, the interim president at UND and the state's former governor, in a telephone interview with VICE Sports. "At this point, I don't much care what the NCAA says or not."
Here is the background: In 2005, the NCAA placed UND's Fighting Sioux on a list of hostile and abusive nicknames, and threatened sanctions if the school didn't change it. Instead, UND sued to keep its nickname. The two parties reached a settlement in 2007, which outlined a plan for the school to seek approval from the North Dakota Sioux tribes for continued use of the nickname and mark. They didn't get that approval, and so in 2012 state residents voted to drop the Fighting Sioux nickname that had attended UND's sports programs for a generation.
Now, maybe you agree with this decision, maybe you don't, but the point is, UND thought it was finally moving on from what had been a drawn-out and contentious fight. A new nickname, the Fighting Hawks, has been approved and adopted. A new logo is in the process of being designed. People don't particularly like it yet—at a recent UND hockey game the mere mention of "Fighting Hawks" brought on a shower of boos, and chants of "Fighting Sioux Forever"—but that's to be expected, says Schafer, who worked in consumer branding and business before becoming a politician.
It will take years for fans to adapt, and all of this would be fine—if not for the fact that the NCAA settlement has tied the university in knots. That settlement calls for UND to retain sole possession of the rights to the "Fighting Sioux" brand, and in order to prevent other entities from co-opting it, UND has to retain the trademark. And in order to retain the trademark, the school has to use that trademark. So since 2013, the university has been selling a limited amount of Sioux merchandise as part of what it called its Dacotah Legacy Collection. The line's latest run—which rolled out last month and included T-shirts, key chains, and hats—was for sale inside a gift shop at the school's hockey arena (UND is a perennial national hockey power).
So Sioux merchandise is openly being sold simply to satisfy the agreement the school made with the NCAA in order to abandon the nickname in the first place.
"UND is in such a horrible position because of this agreement," said Mike McFeely, a columnist for the Fargo-Moorhead Forum and local radio host. "There's really nothing else they can do."
The usage laws that guide UND's agreement with the NCAA are so murky and complicated that Schafer says the school probably won't know its limits until someone actually sues them. The intellectual property clause of the settlement states that if UND transitions to a new nickname, "the 'Fighting Sioux' nickname and mark shall remain … the sole property of UND and shall not be further assigned, released, abandoned, exercised, or otherwise used." The word "abandoned" appears to be key, because it means that UND can't simply let go of the old nickname and logo. Nor can they just manufacture, say, a single Sioux sweatshirt every few months, because they would need to demonstrate in court that they are meeting federal trademark requirements. They can't merely manufacture the merchandise and not sell it, either, because they need to demonstrate that they made a good-faith effort to market the trademark commercially.
At least for now, the university has no choice: in order to hold on to the trademark—in order to demonstrate "continuous usage"—they have to sell the very merchandise that the NCAA directed them not to sell.
One possible work-around has been suggested: transfer the trademark to one of the Native American tribes in North Dakota, which is permitted by the terms of the settlement. These tribes had been split over the university's usage of the Fighting Sioux nickname in the first place. One of those tribes, Schafer said, would "dig a hole and bury it." The other would probably manufacture and sell as much merchandise as it could, and then the university would find itself in the unusual position of competing against its old self.
"If you transfer it to a tribe and they exploit it, we would be in a situation where we're trying to transfer loyalty to a new brand and be competitive with the old brand," Schafer said. In other words, the Fighting Hawks would literally be competing against the Fighting Sioux in the marketplace.
I asked Schafer if he'd consulted the NCAA at all about this. (The NCAA didn't respond to recent requests for comment from the Associated Press.) He said he hadn't, and that he had no interest in doing so; he said that the NCAA was the organization "who put the squeeze on" in the first place. I asked him if there were any precedent for a similar case, and he mentioned there were a few in the private sector, but nothing quite like this.
And so the university has to wait it out. It's planning to manufacture another round of Sioux merchandise this summer, in order to (hopefully) satisfy ongoing usage requirements. In the long run, though officials have no real idea what all of this will mean. It was already going to take a generation for fans to get over the name change; the ongoing trademark situation only reopens old wounds, over and over, making moving on that much more difficult.
"There's a group of people who still believe in their heart of hearts that the Fighting Sioux nickname is going to come back," McFeely said. "And the university continues to be dragged down by this group of people who won't give up the ghost. And it continues to this day. There's people who don't want to wrap their mind around this idea that it's over."
For now, at least, the university can't let go, not without potentially making matters worse. The whole mess may be hypocritical, but when it comes to situations involving the NCAA, this is nothing new.
Correction: An earlier version of this article paraphrased Schafer describing a campus policy against wearing Fighting Sioux gear in the classroom. Such a policy does not exist, and the piece has been updated to reflect this.