Michael DesRochers

Sports and the Law

Spring’ 06
I. INTRODUCTION

The National Collegiate Athletic Association (NCAA) issued a decision taking

effect on February 1, 2006 prohibiting its members from displaying “mascots, nicknames

or images deemed hostile or abusive in terms of race, ethnicity, or national origin at

championship events controlled by the NCAA.”1 Member institutions with hostile or

abusive mascots must exclude all such names and images from sports teams and

associated groups such as cheerleaders, dance teams and school bands.2 In addition, any

school violating this policy is ineligible to host any NCAA championship event and

institutions awarded championship events prior to this ruling must take reasonable steps

to cover up any hostile or abusive references at those sites.3 The NCAA Executive

Committee went beyond the issued policy, suggesting members refuse to schedule

competition against colleges and universities using offensive and abusive mascots and

imagery.4

Not surprisingly, this new policy elicited mixed reactions among NCAA member

institutions, the NCAA fan base and the groups associated with the targeted mascots. I

intend to look at this situation from several angles. First: What is the history of the

NCAA Executive Committee ruling and what avenues exist under NCAA for institutions

with “hostile and abusive” mascots to challenge the “hostile and abusive”

characterization. Second: If an institution is unsuccessful dealing with the NCAA

1
Press Release, NCAA, NCAA Executive Committee Issues Guidelines for Use of Native American
Mascots at Championship Events (August 5, 2005) available at
http://www2.ncaa.org/portal/media_and_events/press_room/2005/august/20050805_exec_comm_rls.html
2
Id.
3
Id.
4
Id.

1
directly, what potential legal avenues does it have to challenge the NCAA policy in

court? Third: If the NCAA ban is revoked or found to be invalid, what other avenues are

available to individuals or organization concerned with Native American imagery being

used to achieve the same result as the current NCAA policy?

II. HISTORY OF THE MASCOT BAN

Following feedback, from member institutions, to surveys sent out by the NCAA

and a statement regarding the use of American Indian imagery as sports symbols by the

U.S. Commission on Civil Rights, the NCAA began discussing mascots used by member

institutions in April 2001.5 In November 2004, thirty-three schools submitted self-

evaluations to the NCAA to determine the extent and character of the use of Native

American imagery or references on campus. This inquiry by the NCAA focused on the

imagery’s effects under three provisions of the NCAA Constitution:6 Article 2.3, covering

cultural diversity and gender equity; Article 2.4, referencing the principle of

sportsmanship and ethical conduct; and Article 2.6, referencing nondiscrimination.7 The

schools were asked to comment on “how the institution educates student athletes, fans,

and spectators on sportsmanship related to American Indian mascots,” and to describe

their “educational programs and initiatives related to American Indian history and

culture.”8

In June 2005, the NCAA Minority Opportunities and Interest Committee (MOIC)

met in Boston to examine the results of the 2004 self-evaluations, placing each of the

5
Id.
6
2006-2007 NCAA Division 1 Manual, NCAA Constitution Article 2.3, 2.4, 2.6 available at
http://www.ncaa.org/library/membership/division_i_manual/2006-07/2006-07_d1_manual.pdf
7
Press Release, NCAA, NCAA Executive Committee Issues Guidelines for Use of Native American
Mascots at Championship Events (August 5, 2005) available at
http://www2.ncaa.org/portal/media_and_events/press_room/2005/august/20050805_exec_comm_rls.html
8
Rana Cash, The University of West Georgia: School Caves on Braves, Atlanta J.-Const., Oct 3, 2005 at
1A, supra note 66.

2
evaluated schools into five separate categories: (1) institutions requiring no further

review9; (2) institutions favored by the Native Americans in their community10; (3)

institutions having nicknames with offensive imagery11; (4) institutions that provided very

broad responses to the self-evaluations indicating no consideration of changing the

mascot12(basically, institutions who brushed off the survey); (5) one institution to which

the NCAA granted an extension.13

Originally, once an institution was placed on the list of “offensive or abusive”

team names it had no direct remedy. No appeals process to reverse the decision of the

Executive Committee was in place. However, several weeks later, the Executive

Committee approved an appeals process.14

Currently, reviews are sent, in writing, to a staff review committee that considers

all pertinent facts relating to the appealing institution.15 The university may then appeal,

in writing, the staff review committee’s decision to the Executive Committee.16 No set

standard for a successful appeal exists; a central factor is whether the namesake tribe of a
9
NCAA Executive Comm. Subcomm. on Gender and Diversity Issues, Report on References to American
Indians in Intercollegiate Athletics (2005), available at
http://www1.ncaa.org/membership/governance/assoc-wide/executive_ committee/docs/2005/2005-
08/s08a_ec-gender.htm
10
Id. Schools included on this list: Alcorn State University (Braves); Central Michigan University
(Chippewas); Catawba College (Indians); Florida State University (Seminoles); Midwestern State
University (Indians); University of Utah (Utes); and University of North Carolina-Pembroke (Braves). Id.
11
Id. Schools included on this list: University of Pennsylvania (Indians, with a bear mascot named
“Cherokee”); Bradley University (Braves) and Carthage College (Redmen). Id.
12
Id. Schools include: Arkansas State University (Indians); Chowan College (Braves); University of
Illinois-Champaign (Illini); University of Lousiana-Monroe (Indians); McMurry University (Indians);
Mississippi College (Choctaws); Newberry College (Indians); University of North Dakota (Fighting
Sioux); Southeastern Oklahoma State (Savages). Id.
13
Id. College of William and Mary (Tribe) was given an extension. Id.
14
Press Release, NCAA, NCAA Executive Committee Approves Native American Mascot Review Process
(August 19, 2005) available at
http://www2.ncaa.org/portal/media_and_events/press_room/2005/august/20050819_mascotappeal.html
15
Id.
16
Press Release, Statement by NCAA Senior Vice-President for Governance and Membership Bernard
Franklin on University of Illinois, Champaign Review (November 11, 2005) available at
http://www2.ncaa.org/portal/media_and_events/press_room/2005/november/20051111_illinois_mascot_st
mnt.html

3
mascot has formally approved the use of the name and imagery associated with it.17 This

means an institution does not know what it must show the NCAA to be removed from the

“abusive and offensive” list. Florida State,18 Utah,19 and Central Michigan20 successfully

appealed, thereby having their names removed from the offending list. The committee

may also partially grant an appeal, allowing a school to keep the name of the team but

ban the mascot. For example, the University of Illinois continues using the Illini and

Fighting Illini nicknames but is prohibited from using the Chief Illiniwek mascot at

NCAA championship events.21 Every above-mentioned institution had the support of the

local tribe in its appeal. Conversely, the University of North Dakota lacks the support of

the local Sioux tribes and its appeal was rejected by the NCAA.22

At first, the ban was incomplete because it failed to address the postseason in

college football, the highest revenue sport. Instead of a tournament, football uses a series

of bowl games not directly controlled by the NCAA. Consequently, the original terms of

the mascot ban were inapplicable to college football. The NCAA Executive Committee

eliminated this loophole by amending the NCAA bylaws to state that all licensed bowl

games must comply with the NCAA principles for the conduct of intercollegiate

17
Id.
18
Steve Wieberg, NCAA allowing Florida State to use its Seminole mascot, USA Today, August, 23, 2005,
available at http://www.usatoday.com/sports/college/2005-08-23-fsu-mascot-approved_x.htm
19
Press Release, Statement by NCAA Senior Vice-President for Governance and Membership Bernard
Franklin on Central Michigan and University of Utah Reviews, (September 2, 2005) available at
http://www2.ncaa.org/portal/media_and_events/press_room/2005/september/20050902_cmu_utah_franklin
stmnt.html
20
Id.
21
Associated Press, NCAA Rejects Illinois’ appeal of mascot ban, (Novemeber 11, 2005) available at
http://sports.espn.go.com/ncaa/news/story?id=2221165
22
Steve Wieberg, NCAA denies UND’s appeal over Fighting Sioux nickname, logo, USA Today,
September, 28, 2005, available at http://www.usatoday.com/sports/college/other/2005-09-28-ncaa-und-
rejection_x.htm

4
athletics.23 As a result, effective in 2006-2007, the NCAA mascot policy will apply to all

bowls licensed by the NCAA.24

Now the NCAA has a system in place to handle every collegiate sport, and

provides member institutions means to challenge inclusion on the “hostile and abusive”

list. However, the appeals process rests solely under the control of the NCAA and

possesses no set standard for a successful appeal. An NCAA member institution has no

appeals route outside the NCAA. There is no built in court oversight nor use of an outside

arbiter. The NCAA controls all of the decision making ability in mascot cases.

The NCAA has also been inconsistent in applying this rule. As an example,

Alcorn State (Braves) had its appeal denied, but North Carolina-Pembroke was allowed

to continue using the same name.25 In the North Carolina-Pembroke case, the NCAA

cited a large percentage of the population, as well as the school founder being Native

American as the reason for its decision.26 On its face, this distinction makes no sense;

either the term “Braves” is hostile and abusive or it is not. Can the definition of “hostile

and abusive” really shift dependent on geographical location? Also, the average NCAA

consumer does not know the composition of the student body at NC-Pembroke. The fan

sees one NCAA institution permitted to use “Braves”, and another forced to change. By

this logic, a predominantly African American school could use “Nigger” as a mascot

because of the student body composition and race of the founder. Is this the type of

message the NCAA should be sending? In addition, currently, the only types of “hostile

23
Press Release, Statement Regarding Licensing Criteria for Division 1-A Postseason Football, (September
20, 2005) available at
http://www2.ncaa.org/portal/media_and_events/press_room/2005/september/20050920_postseason_mascot
_stmt.html
24
Id.
25
See Brown, supra note 160.
26
Id.

5
and abusive” mascots are Native American. Are the only mascots affected Native

American because Native Americans are the only group to complain? If a religious group

complained about the “Blue Devils” or people of Irish heritage complained about “The

Fighting Irish”, would these names suddenly appear on the list? Either the NCAA is only

receiving complaints from Native American groups, or the NCAA only chooses to

address those specific complaints. In either scenario, why should the NCAA single out

this one type of mascot? Does the mascot have to be tied to human groups? What about

animal rights organizations that object to exploiting animals as school mascots? Either

ban every mascot claimed to be offensive, or leave the choice to of mascot to each

individual institution. Either the Native American mascot ban sets the NCAA on a

slippery slope; more groups complaining about mascots in other areas will result in more

bans, or the NCAA has chosen to act in this one particular area, ignoring complaints

about other mascots. If the NCAA is indeed ignoring other complaints, why should

Native American mascots be given special treatment?

The logical inconsistencies in the application of the rule are not the only issue

with the NCCA mascot ban. If an appeal is denied, it is unclear if the institution has any

possible remedy outside the process set by the NCAA. How might a school challenge an

appeal denied by the NCAA?

North Dakota may provide an ideal test case for just this question. The University

of North Dakota recently lost its appeal of the NCAA mascot ban and now must decide

what course of action to take. The first option is simply to change the team name and

logo. While simple, changing the name is a costly option because the school must change

every image on campus and merchandise. For example, Miami of Ohio (formerly the

6
Redskins), changed its name to the Redhawks. The cost for changing the images and

references to the old mascot was approximately one-hundred thousand ($100,000)

dollars.27

North Dakota is in a more precarious position. The potential cost to North Dakota

is greater than most schools. Recently, an alumnus donated money to build a new hockey

arena under the condition the school maintain the use of the “Fighting Sioux” nickname

and logo, threatening to withdraw a one-hundred million dollar donation if the mascot

was changed.28 Furthermore, merchandising and licensing dollars are at stake. Florida

State has reported earnings up to $1.8 million dollars each year from the sale of

merchandise with the Seminole logo. 29 By changing mascots, institutions risk alienating

the current fan base who approve of the current mascot, and face the cost to trademark

and copyrighting the new mascot. This would reduce sales and increase cost overheard,

thereby reducing the revenue generated for the school. Financial factors like

merchandising, alumni donations and the cost to physically change the existing mascot

place the schools in a very difficult position when deciding if and how to challenge the

NCAA.

III. ANTITRUST AND NCAA

Once the appeal is denied by the NCAA, a school such as North Dakota would be

forced to explore other legal remedies. One possible challenge of the mascot ban would

be an antitrust claim under the Sherman Act. Colleges and universities are like any other

sports team, they are selling a product (intercollegiate competition) to the public. Each

institutions works to provide the highest quality product in order to gain the most market

27
Id.
28
Id.
29
King and Springwood, supra note 45, at 145.

7
share. Any rule which affects the ability to conduct this business may be an antitrust

violation.

A. Introduction to Antitrust Law

Section (I) of the Sherman Antitrust Act (Act) states:

Every contract, combination in the form of trust or otherwise, or

conspiracy, in restraint of trade or commerce . . . is hereby declared to be illegal.

Every person who shall make any contract or engage in any combination or

conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and,

on conviction thereof, shall be punished by fine . . . or by imprisonment not

exceeding 10 years, or by both said punishments, in the discretion of the court.30

Section 1 of the Act subjects a defendant to both civil and criminal penalties.31 In addition

to these penalties, sections 4 and 16 of the Clayton Act authorizes injunctive relieve if a

plaintiff demonstrates “a significant threat of injury from an impending violation of the

antitrust laws or from a contemporary violation likely to recur.”32 In order to be entitled to

an injunction, the plaintiff must prove the defendant “(1) participated in an agreement

that (2) unreasonably restrained trade in the relevant market” 33

B. Applicable Legal Standard

The initial issue in an antitrust case is determining the applicable standard for

assessing legality: the per se test or the rule-of-reason test.34 The per se standard is

30
Sherman Antitrust Act § 1, 15 U.S.C. § 1 (2000).
31
Id. (outlining civil and criminal penalties).
32
King and Springwood at 126 (quoting Zenith Radio Corp. V Hazeltine Research, Inc., 395 U.S. 100, 130
(1969) and citing Clayton Act § 4, 12 U.S.C. § 15 (2000); Clayton Act § 16, 15 U.S.C. § 26)
33
Worldwide Basketball & Sports Tours, Inc. v. NCAA, 388 F.3d955, 959 (6th Cir. 2004)
34
Licalsi, note 78, at 838.

8
typically employed in matters of price fixing35, market divisions36, or other clearly

anticompetitive behavior that makes review of the specifics of the situation unnecessary.37

In such cases, the “surrounding circumstances make the likelihood of anticompetitive

conduct so great as to render unjustified further examination of challenged conduct.”38

These actions have a “pernicious effect on competition and lack any redeeming virtue”

and consequently, are condemned without further inquiry.39

In cases when the alleged behavior is not obviously anticompetitive, courts apply

a rule-of-reason analysis.40 Under the rule of reason test, the question is whether the

conduct “imposes an unreasonable restraint on competition, taking into account a variety

of factors, including specific information about the relevant business, its condition before

and after the restraint was imposed, and the restraint’s history, nature and effect.”41 A key

issue is whether a pro-competitive justification for the practice exists.

The rule of reason was articulated by Justice Brandeis in Board of Trade of

Chicago v. United States.42 Under this approach, the court attempts to balance the positive

and negative effects of the challenged rule and asks if it increases or decreases the quality

and output of the product.43

Initially, the plaintiff must show the defendant has engaged in conduct producing

an anticompetitive effect.44 If the plaintiff is successful, the defendant must show

35
Neeld v. Nat’l Hockey League, 594 F.2d 1297, 1299 (9th Cir. 1979) (citing United States v. Socony-
Vacuum Oil Co., 310 U.S. 150 (1940)).
36
Addyston Pipe & Steel Co. v. United States, 175 U.S. 211 (1899).
37
White Motor Co. v. United States, 372 U.S. 253 (1963).
38
NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 103-204 (1984) (citing Jefferson Parish
Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 15 n.25 (1984).
39
N. Pac. Ry. Co. v. United States, 356 U.S. 1, 5 (1958).
40
State Oil Co. v. Khan, 522 U.S. 3, 10 (1997)
41
Id.
42
246 U.S. 231 (1918).
43
See Bus. Elecs. Corp. v. Sharp Elecs. Copr., 485 U.S. 717, 725 (1988).
44
Law v. NCAA, 134 F.3d 1010, 1021 (10th Cir. 1998)

9
procompetitive effects of the conduct and the reasonableness of the allegedly restraining

conduct.45 If the defendant fails at this stage, the plaintiff is awarded judgment.46 If the

defendant succeeds, the plaintiff then must show any claimed procompetitive effects

could be achieved by a substantially less restrictive alternative restraint.47 Normally, if the

conduct results in an overall procompetitive effect, it will not be found to violate the

Act.48

In most cases, courts have been unwilling to apply a per se analysis to conduct by

the NCAA (or that of professional sports leagues) stating the NCAA’s “academic” nature

granted a lessened standard of review for antitrust violations.49 The NCAA must have

rules in place which violate antitrust law to allow college athletics to exist.50 Only once

has the Supreme Court addressed the question of the application of the antitrust law to the

NCAA.

In Board of Regents of the University of Oklahoma v. NCAA, the Court looked at

two agreements between the NCAA and ABC and CBS to broadcast live football

games.51 The agreements with these two companies allowed ABC and CBS to fix the

price each team received for its television rights52 and limited the number of times each

team could appear in a national broadcast.53 The Supreme Court noted the contracts

involved both price fixing and restraint on output,54 and resembled past contracts deemed

horizontal restraint-agreements that are almost always disallowed under the Act.55
45
Id.
46
Id.
47
NHL Players’ Ass’n v. Plymouth Whalers Hockey Club, 325 F.3d 712, 718 (6th Cic. 2003)
48
Smith v. Pro Football, Inc., 593 F.2d 1173, 1206 (D.C. Cir. 1978)
49
Bd. of Regents, 468 U.S. at 100-01.
50
Id.
51
Id. at 92-93.
52
Id.
53
Id at 94.
54
Id. at 98.
55
Id.

10
 Normally, horizontal restraint-agreements involving both price fixing and limits

on product output are illegal per se because of the high likelihood they are

anticompetitive.56 The Court though, declined a per se analysis and instead opted for a

rule of reason approach. The Court reasoned that a per se analysis was inappropriate

given the unique nature of the NCAA.57 Some horizontal restraints are necessary for an

athletic competition market to exist.58 For example, the rules which the game is played

under, or having a set number of games for each team to play are required for competition

to exist. Athletic competition is unique because the competitors depend on each other to

produce the product. Two teams are necessary to play one another to create the product.

Thus, some agreements among the parties must exist to allow the competition to occur.

The court recognizes this reality and therefore, applies a lesser standard in this case.

Intercollegiate athletics would be impossible without horizontal restraint

agreements for two reasons.59 First, rules affecting the nature of athletic competition, such

as the number of players on a team, equipment, and size of the field are necessary to

provide uniformity to allow two competitors in the market to come together to create the

product.60 Second, horizontal agreements are important to preserve the fundamental

nature of college athletics by ensuring schools do not pay their athletes and also require

them to attend classes, thus keeping the goal of educating student athletes.61

One result of courts recognizing a need for some horizontal agreements for

athletic competition is the rejection of a per se analysis for alleged antitrust violations

involving the NCAA. For example, in Law v. NCAA, an NCAA policy restricting the
56
Id. at 100-01.
57
Id.
58
Id. at 101.
59
Id. at 100-101.
60
Bd. of Regents, 468 U.S. at 101.
61
Id. at 102.

11
salary of part time collegiate basketball coaches was struck down.62 Despite the obvious

price fixing, the 10th Circuit applied a rule of reason analysis. The court did not feel

regulation of the salaries of part-time basketball coaches was required for meaningful

intercollegiate competition and applied a traditional rule of reason analysis, balancing

anticompetitive effects of the salary fixing with procompetitive results.63

Consequently, the analysis of the “mascot ban” will likely use the rule-of-reason

approach, balancing the anticompetitive effects with the procompetitive benefits.

IV. ANTITRUST AND THE MASCOT BAN

The mascot policy eliminating “hostile and abusive mascots” rests on

questionable legal grounds. Under Board of Regents, rules affecting the “quality and

nature” of intercollegiate athletics, satisfy the rule of reason test because such agreements

are required for meaningful intercollegiate competition to exist.64 If a regulation is not

required for meaningful competition to exist, the court tests it by the rule of reason test.65

Under the rule of reason test, a court balances pro and anticompetitive effects.66

In the current case, it seems highly unlikely that a ban on NCAA mascots is

necessary for meaningful intercollegiate competition. The NCAA regulates the rules

employed in each game; the number of scholarships a school is allowed to award,

prohibits the paying of athletes and restricts television appearances by each team. Each of

these rules is seen to effect the “quality and nature” of intercollegiate athletics. I cannot

make an argument to put an institution’s choice of mascot into this category.

Consequently, the likelihood of the policy receiving an immediate pass under the Board

62
Law, 134 F. 3d at 1016, 1024.
63
Id. at 1018-1019
64
Id. at 101.
65
Law, 134 F. 3d at 1016
66
Id.

12
of Regents standards is miniscule. The legality of the mascot ban will be decided under a

traditional rule of reason approach focusing on pro and anticompetitive effects.

A. Anticompetitive

In order for an institution like North Dakota to challenge the NCAA mascot

policy, it must meet the initial burden of showing the conduct results in significant

anticompetitive effects. This requirement is not heavy a burden, and an institution should

have little difficulty in meeting it.

The market is the sale of intercollegiate athletics and every institution is in

competition to generate the most possible revenue. The mascot ban has a decidedly

anticompetitive effect because of economic cost to the institution thereby reducing the

overall profits. While many other NCAA rules have the same impact on an institutions

bottom line, those policies, unlike the mascot ban, can be justified by their

procompetitive impact. The economic expenditures include costs for changing the mascot

and imagery, lost income from licensing and merchandising, intangible economic costs

such brand association built up within the market and the negative publicity generated by

appearing on this list. Also, the cost of physically changing the mascot, including

replacing all apparel for teams, coaches, cheerleaders and bands as well as the logos on

campus facilities is an expense non-offending schools will not have. The estimates for the

hockey arena alone at North Dakota are in the hundreds of thousands of dollars, making

full scale replacement an expensive proposition.67 Institutions also face the potential loss

in revenues from the sale of licensing and merchandise with the mascot logo.68 Schools

are fighting the NCAA ruling because of the overwhelming popularity of their current

67
Brad Wolverton, NCAA Restricts Colleges with Indian Nicknames and Mascots, Chron. Higher Educ.,
Sept 2, 2005 at 65.
68
Bill Vilona, FSU to Sue Over Macots, Pensacola New J., Aug. 6, 2005, at 1A.

13
mascots. As far back as 1992, sale of licensed collegiate merchandise was estimated at

$1.5 billion dollars69, meaning the sale of NCAA merchandise generates significant

revenue for each school. All of above lost revenue reduce the amount of income earned

by the institution, either through the loss of revenue or the increase in costs.

In addition to the direct money losses from changing mascots, the university also

is in position to lose the brand association built up among its fans and national audience.

Any time a company is forced to change logos or mascots, it loses the time, money and

effort spent in developing the goodwill and brand identification associated with the

logo.70 Furthermore, being placed on a list for having a “hostile or abusive” mascot is not

the type of press coverage an institution would like to receive. Forcing the required

changes is anticompetitive because it indirectly affects the earning potential of the

institution, through negative press and the loss of goodwill and brand association built up

in the current mascot.

Furthermore, the school stands to lose revenue directly from the NCAA for

hosting a championship event. During 2002-2003, the NCAA spent over $5 million on

hosts and sponsors for NCAA men’s championship events and an additional $700,000 for

women’s championships.71 Neither of these totals includes NCAA football. The mascot

policy essentially eliminates a group of schools from accessing this revenue stream,

placing them at an immediate financial disadvantage. Money from athletics do more than

build the program; it is funneled back into the institution and used to raise the academic

69
See Bruce C. Kelber, Note, “Scalping the Redskins:” Can Trademark Law Start Athletic Teams Bearing
Native American Nicknames and Images on the Road to Racial Reform?, 17 Hamline L. Rev. 533, 549-50
(1994)
70
See College Report: New Saluki Emblem Makes Its Debut, St. J.-Reg. (Springfield, Ill.), Aug. 12, 2001 at
20.
71
NCAA, analysis of 2003-2004 Division I Championships, available at
http://www1.ncaaa.org/finance/D1_analysis.pdf

14
level for every student in attendance. The better a school’s facilities, the easier it is to

entice recruits leading to increased performance on the field. The money for

championship events is also increasing; the pool of funds for hosting NCAA

championship events grew over 600% in the last ten years.72 Hosting events also provide

a school exposure to alumni (for donations) and athletic recruits who will help the school

generate a quality product in the future.

B. Procompetitive

If an institution such as the University of North Dakota can present a case that the

mascot policy has anticompetitive effects, the burden shifts to the NCAA to show

procompetitive effects of the policy.73 Here, the NCAA has a problem. On its face, the

mascot policy does not promote competition among its members; instead it only prevents

member institutions from using “hostile and abusive” mascots. The NCAA did not focus

on or mention any procompetitive effects of this policy when drafting the rule, instead

focusing solely on the result.74 This means the NCAA Executive Committee was not

concerned with increasing revenues, nor felt this rule was vital for intercollegiate

competition. Instead it merely was meant to control the behavior of some of the member

institutions.

The NCAA has not presented any argument the mascot ban has procompetitive

effects. The NCAA could argue the elimination of “hostile and abusive” mascot creates a

positive environment for athletes to participate in which would increase the number of

students choosing to participate and boost the overall level of play on the field. Also, the

NCAA Executive Committee encourages universities to not schedule games against

72
Id.
73
Law v. NCAA, 134 F.3d 1010, 1019 (10th Cir. 1998)
74
Gary T. Brown, Policy Applies Core Principles to Mascot Issue, NCAA News Online, Aug .15, 2005,
available at http://www.ncaa.org/wps/portal

15
opponents who use “hostile and abusive” mascots. The elimination of these mascots

would prevent this, and allow athletic directors to choose which teams to schedule based

only on the competitive value. However, there is no evidence of athletic directors

following the suggestion of the NCAA Executive committee to not schedule opponents

with “hostile and abusive” mascots. Also, recently as 2002, 81% of Native Americans

did not believe collegiate or high school teams should stop using Native American

imagery.75 This data suggests the policy will have little positive effect on the current

NCAA fan base and player pool.

The NCAA mascot ban fails under the rule-of-reason test. The policy directly

impacts the revenue generated by member institutions by limiting the availability for

championship locations, preventing teams from hosting championships and preventing

the coinciding cash distributions. Furthermore, it restricts the value of sanctioned teams

intellectually property, creates costs of compliance with the rule, and risks alienating fans

and alumni, both potential sources of revenue. Since the ban provides limited to no

procompetitive effects, it is unlikely the NCAA mascot ban would survive an antitrust

challenge.

V. OTHER LEGAL AVENUES

If we assume the NCAA mascot ban survives an antitrust challenge, what other

avenues would an opponent of a particular mascot pursue to eliminate its use?

A. Trademark

The first approach is to attack the trademark associated with the team logo and

mascot. A plaintiff who eliminates trademark protection allows others to enter the market

and sell unlicensed merchandise with the university logo. Trademark protection normally
75
S.L. Price, The Indian Wars, Sports Illustrated, Mar. 4, 2002 at 66.

16
allows the mark holder to exclude people from the market, thereby maintaining control

over the flow of goods. By eliminating the trademark, a plaintiff provides significant

financial incentive for the larger universities (Florida State for example) to change their

logo and mascot because of the decrease in profit from the sale of merchandise.

Trademark elimination is not a perfect solution, as smaller institutions such as Alcorn

State or Southeastern Oklahoma sell a smaller amount of merchandise; accordingly the

financial incentive to change is not as strong.

This tactic has already been tried on the professional level in a case involving the

Washington Redskins. The Redskin situation serves as a guide for the types of legal

obstacles faced by the opponents of these mascots.

Under Section 2(a) of the Lanham Act, registration is barred for “immoral,

deceptive or scandalous matter; or matter which may disparage or falsely suggest a

connection with persons [or] beliefs . . . or bring them into contempt, or disrepute.”76

Harjo v. Pro-Football, Inc77 provides a roadmap for the evidence and arguments

Trademark Trial and Appeal Board (TTAB) and courts will consider in deciding these

cases.

In Harjo, seven Native American leaders led by Susan Harjo sued to have the

Washington Redskin trademark revoked because of the offensive, humiliating and

degrading nature of the term “Redskin”.78 The case arose from a concentrated effort by

Native American groups to eliminate the use of Native American mascots by sports

teams. Petitioners argued the term “Redskin” must be examined in its historical setting,

and presented evidence of the relationship between Native Americans and Euro-

76
15 U.S.C.A § 1052(a)
77
In Harjo v. Pro-Football, Inc., 1999 WL 435108 (P.T.O 1999),
78
See Harjo, 1999 WL 435108 at 2.

17
Americans.79 Expert testimony was presented, establishing that a pattern of inferiority

existing throughout the 17th, 18th and 19th century.80

Petitioners also presented evidence regarding the current relationship Native

Americans have with other cultures. Experts were called to demonstrate the use of the

term “Redskin” as a racial slur promoting negative stereotypes.81 The seven petitioners in

the case also presented first hand testimony of the current day attitudes reflected towards

Native Americans.82

They also offered their opinions that using the word “redskin” in connection with

the football team did not honor, but instead insulted Native American culture.83 Petitioner

argued that the word itself is offensive, reflecting violent tendencies and qualities of

savagery and oppression.84 This testimony of personal experience by the petitioners was

supported by the testimony of expert linguists regarding the definition and connotation of

the word “redskin.”85 Furthermore, the petitioners presented testimony of a film expert to

help establish society’s overall impression of Native Americans as being violent, savage

and dishonest.86 The goal was to convince the TTAB that the word as a whole raised such

negative images of Native Americans and their culture that it should not be used by a

sports team as a trademark.

In opposition, the respondent argued that when used in connection with a sports

team, the term “redskin” was neutral, not inflammatory, and was meant to honor Native

79
See id. at 14, 26.
80
See id. at 21-22.
81
See id. at 22-23.
82
See id.
83
See id. at 18-19.
84
See id. at 15.
85
See id. at 25.
86
See id. at 27-29.

18
Americans.87 Respondent presented evidence that the term was chosen to reflect the

dedication, courage and pride of the culture and that the team depicts Native Americans

favorably.88 In addition, respondent contended that when used in connection with a sports

team, the current term “redskin” does not rise to the level of crudeness or disparagement

suggested by the petitioner.89 The Respondent also presented linguistic evidence, arguing

that the traditional usage of the term “redskin” was neutral and that it was used mostly as

just a description or slang term.90

Furthermore, respondent presented testimony that the team name refers to the

football team and not to Native Americans, relying heavily on linguistics experts who

claimed that long association with the football team has given the term a new

contemporary meaning.91 This particular respondent argument was essentially a

secondary meaning argument. The mark had been in use so long, people had built an

association between “redskin” and football. In addition, the team argued that it had been

increasingly sensitive to the Washington Redskins fan, and much of the Native American

imagery had been removed.92 The last argument struck me as strange. By changing or

modifying the mascot, the team is in essence admitting a problem with the mascot itself.

The team could have argued the change was done to accommodate as many fans as

possible, and despite its contention the trademark was not offensive it was changed to

avoid any possible alienation of the fan base.

The centerpiece of respondent’s arguments focuses on the use of the term

“redskin.” By using it in connection with the football team, it claimed the meaning
87
See id. at 30.
88
See id. at 25.
89
See id. at 24.
90
See id. at 25,27.
91
See id. at 26.
92
See id. at 24.

19
differed from the ethnic meaning of the term.93 Since football is not derogatory to Native

Americans, using the term “Washington Redskin(s)” had little or no negative effect on

their culture.94 The name was picked on a basis of respect, was designed to reflect the

positive aspects of the culture, and was not intended be insulting.95

The TTAB analyzed whether the “redskins” mark comprised disparaging matter

under Section 2(a) of the Lanham Act.96 The TTAB interpreted Section 2(a) to not require

the mark holder to intend to disparage in order to find a violation.97 The TTAB reasoned

intent is very difficult to prove and instead, the analysis focuses on whether the term

could be perceived as disparaging.98 The TTAB uses a two-step test: (1) what was the

likely meaning of the matter in question; and (2) was that meaning was disparaging.99

Before asking if something can be perceived as disparaging, we must have a

definition of the term. The TTAB considered the dictionary definition of “redskin” from

1947, the year the trademark was issued. The TTAB also noted that the likely meaning of

the term under part (1) of the test was not based on the beliefs of American society as a

whole, but instead based on the beliefs of the referenced group.100 In this case, the issue

was the likely meaning of the term Redskin according to Native Americans; the opinion

of the rest of the American public was not taken into consideration. The TTAB specified

the issues in this case pertain to the time period when the registration issued but allowed

evidence from any time period to be considered.

93
See id. at 16.
94
See id.
95
See id. at 24.
96
See id. at 14.
97
See id. at 36.
98
See id. at 36. see also Dough Boy Indus, Inc. v. The Reese Chem. Co., 8 U.S.P.Q. 227, 228 (C.C.P.A
1951)
99
See. Harjo, 199 WL 435108 at 39.
100
See id. at 41.

20
 In determining the meaning of “redskin”, the TTAB considered the evidence

submitted by both the petitioner and the respondent, as well as the dictionary definition.101

The TTAB also took into consideration the secondary meaning built up in conjunction

with the sports team, but did not totally discount the original meaning of the term in

question.102

The TTAB also considered the use of the mark by the team within the

marketplace, looking to the Native American imagery in the logo, mascot, nickname,

fight song, press guide and other promotional material.103 In addition, use among the fans

and newspapers covering the team was analyzed in order to develop a more accurate

picture of the situation surrounding the mark.104 The TTAB noted even if the term has

acquired new meaning, it is still possible for it to maintain the suggestion of Native

American involvement.105 The TTAB point means that even long term mark holders who

have developed secondary meaning may still have the mark challenged because the

secondary meaning will not totally replace the original meaning.

The TTAB looked at the evidence presented by Susan Harjo for the purpose of

establish a pattern of disparaging connotation, both in a historical sense and in an

entertainment setting.106 The board focused on past writing, both fiction and non-fiction,

to determine the past connotation of the word, as well as testimony from Native

Americans about the current view of the term.107

101
See Harjo, 199 WL 435108 at 29.
102
See id.
103
See id.
104
See id. at 41.
105
See id. at 42.
106
See id. at 45-46
107
See. id. at 43.

21
 The TTAB looked back at the Washington franchise’s use of not only the term

“redskin” but also Native American imagery during the team’s history.108 Despite a

gradual shift from Native American imagery to more football centered themes, and a

change in the lyrics to the fight song (Hail to the Redskins), the TTAB was convinced the

term retained its derogatory nature, even when used in conjunction with football and

entertainment services.109

Section 2(a) of the Lanham Act also contains language that would cancel a mark

if it “ may. . . bring the group represented by the mark into contempt, or disrepute.”110The

analysis for the preceding language is very similar to the disparagement analysis. The

TTAB used much of the same evidence and analysis to determine both the nature of the

term “redskin” and whether the mark brought Native Americans into contempt or

disrepute.111

The TTAB considered if the mark was scandalous under Section 2(a) of the

Lanham Act. Again, it uses a two part test asking (1) what is the likely meaning of the

term; and (2) is it scandalous to a composite of the general public.112 Under part one, the

TTAB looked at dictionary definitions, the goods and services associated with the mark,

the manner in which the mark was used in the marketplace in connection with those

goods.113 The questions asked by the TTAB are very similar to the first part of the

disparagement analysis.

The second step in the scandalous analysis focuses on the general public reaction

to the mark. In addition to the historical evidence and dictionary definitions, testimony
108
See id. at 45-46
109
See id.
110
15 U.S.C.A. §1052(a)
111
See Harjo, 1999 WL 435108, at 47 (citing 15 U.S.C.A §1052(a))
112
See id. at 47.
113
See id. at 38.

22
and surveys play a large role in the determination of the general populace’s reaction to the

mark in question.114 Unlike disparagement, this analysis focuses not on the group being

offended, but on the reaction of the general public. A higher burden of proof exists to

show a mark is scandalous to the general public than the standard required to prove

disparagement. The Federal Circuit requires the mark to be “shocking to the sense of

truth”115 in order to meet the standard.116 “Redskin” failed to be “shocking to the sense of

truth” in the Harjo case. The result in Harjo suggests less offensive marks such as tribe

names or general terms such as “Warriors” or “Indians” also would not meet such a

burden.

The TTAB concluded that a substantial portion of the Native American

community would perceive the “redskins” mark as disparaging and ordered its

cancellation.117 Pro-Football responded by filing an appeal in the US District Court in the

District of Columbia pursuant to 15 U.S.C. § 1071(b), challenging the cancellation of the

marks.118 The District Court correctly reversed the TTAB, stating that the decision was

not supported by substantial evidence, and that the petitioners’ claims were barred by the

doctrine of laches.119 Laches is an equitable defense, asserting a party has “slept on its

rights” and no longer is entitled to pursue the original claim. In the current case, the

District Court believed that the “Redskins” mark should have been challenged sooner;

therefore, the petitioners no longer had the opportunity to do so.120

114
See id. at 48.
115
In re Mavety, 31 U.S.P.Q.2d at 1926.
116
See id. at 48.
117
See id. at 42,48.
118
Pro-Football Inc. v. Harjo, 284 F.Supp, 2d 96 (D.D.C. 2003)
119
Harjo, 284 F.Supp. 2d at 145.
120
See id.

23
 The decision was then appealed to the Court of Appeals for the D.C. Circuit.121

The Court of Appeals reexamined the use of laches in this case, and found the District

Court could apply the doctrine of laches but erred in its assessment by starting the clock

too early for one of the petitioners who was an infant at the time.122 It then remanded the

case back to the District Court for a reexamination on this point.123 The only practical

effect of the laches decision is that challenges may come at any time. The laches decision

has no impact on the underlying trademark issue.

Despite winning in the Court of Appeals, the decision will have little practical

effect on the underlying trademark issue because the district court can restate its

reasoning regarding the evidence presented to the TTAB in cancelling the mark and still

overrule the TTAB decision.

This case provides an instructive example of what the TTAB or a court would

consider when assessing the validity of a Native American trademark. The questions of

disparagement and scandalous marks are very fact specific inquiries, encompassing a

totality of the circumstances approach. Because the TTAB or a court considers a large

quantity of evidence and the inquiry is largely factual, predicting what arguments and

evidence will be convincing is difficult because every situation possesses an intrinsically

different fact pattern.

The trademark approach may prove unfulfilling for opponents challenging the

marks of Florida State, North Dakota and Alcorn State. “Redskin” strikes me as a more

inflammatory term than “Indians”, or the name of a tribe like the “Seminoles”. The

question of “Redskin” is an extreme example and although the TTAB chose to invalidate

121
Pro-Football Inc. v. Harjo, 514 F.3d 44 (D.C Cir. 2005)
122
Id. at 49-50.
123
Id. at 50

24
the mark, the District Court overturned the decision. The trademark ruling was then not

overturned by the Circuit Court of Appeals. Petitioners looking to challenge less

inflammatory marks would probably meet with an equal lack of success. Even if a

petitioner successfully revoked the trademark of a team, the team may still use the mark.

The only consequence is the team may no longer exclude others from using the mark in

commerce. Financially, it would have an impact because any person could sell

merchandise with the logo. The team would only lose the protections given under the

Lanham Act, but would not be forbidden from continued use of the logo.

B. Title VI of the Civil Rights Act of 1964

If the NCAA is forced to remove the ban on Native American mascots, opponents

of mascots they feel are offensive will be forced to find other methods to induce schools

to change the offending mascots. Title VI of the Civil Rights Act of 1964 (Title VI) is one

possible vehicle.124 Title VI guarantees that no federally funded activity or program may

discriminate “on the ground of race, color, or national origin.”125 The theory is any public

university receiving federal money violates Title VI by using offensive Native American

imagery.126 Similar to the trademark argument, the strategy is that the loss of money will

prompt the university to drop the mascot.127

Administration of Title VI is handled by the Office of Civil Rights (“OCR”)

within the U.S. Department of Education. It is the mission of the OCR to ensure that “no

person in the United States shall on the ground of race, color, or national origin, be

excluded from participation in, be denied the benefits of, or be otherwise subjected to

124
Scott R. Rosner, Legal Approaches to the Use of Native American Logos and Symbols in Sports, 1 Va.
Sports & Ent. L.J. 258 (2002).
125
42 U.S.C. §2000(d) (2000).
126
See Rosner, supra note 46, at 272-273.
127
See id.

25
discrimination under any program or activity receiving Federal financial assistance . . .”128

The OCR is entitled to investigate any complaint alleging that the use of Native American

mascots and imagery creates a hostile educational environment129 in violation of Title

VI.130 The Department of Education may withhold federal funding from any institution

which creates, is responsible for, encourages or fails to remedy any such environment

sufficiently severe, pervasive, or persistent that it interferes with or limits a student’s

ability to participate in or benefit from the services, activities, or privileges provided by

the institutions.131 Enforcement of this provision is dependent on the institution

possessing actual or constructive notice of the situation.132

A violation of Title VI under a hostile environment theory occurs if the OCR finds

that a racially hostile environment existed, the school had actual or constructive notice,

and it failed to correct the situation.133 The OCR will examine the context, nature, scope,

frequency, duration and location of the incidents as well as the people involved.134 The

severity is judged based on a reasonable person of the same age and race as the victim

and typically, the OCR requires more than just isolated incidents.135 Upon finding a

racially hostile environment, the OCR looks to notice. Typically, this standard is easy to

meet. As long as the appropriate school administrators were contacted, or if the school

should have known even absent a complaint, notice will be found.136

128
34 C.F.R 100.1
129
Title VI, 42 U.S.C. §§ 2000d
130
Scott Rosner, Legal Approaches to the Use of Native American Logos and Symbols in Sports, 1 Va.
Sports & Ent. L.J. 258 (2002) at 267.
131
34 C.F.R 100
132
See id.
133
See id. at 267-268.
134
See id. at 268.
135
Id.
136
Id.

26
 On the surface, a Title VI challenge appears to be a promising approach to the

issue of Native American mascots being used by universities. Currently, though, no

success has occurred under a Title VI argument challenging a Native American mascot.

The OCR has addressed this issue twice already: first, at the University of Illinois, using

the Chief Illiniwek mascot and second at a high school in Massachusetts using the

nickname Indians.137 In both cases the OCR found the use of the imagery was not

significantly severe or persistent enough to warrant the finding of a violation.

Furthermore, the Wisconsin Court of Appeals upheld an investigation by the Department

of Public Instruction, which applied the OCR standard, finding “Indians” as a mascot

was not sufficiently severe, pervasive or persistent enough to interfere with the students’

ability to participate in and benefit from school activities.138 Unless a school is an extreme

example of severe use or persistent use of the imagery, it is unlikely the OCR could be

convinced to find a violation present. Accordingly, potential opponents of Native

American mascots and imagery are better served exploring other avenues of remedy.

C. Legislative Solution

An opponent of a school’s mascot could also try to approach the issue from a

legislative point of view, encouraging the state legislature to pass an act banning the use

of such names. Recently, California tried to ban Native American mascots at the high

school level, passing the Racial Mascots Act.139 The bill would have amended the

California Education Code prohibiting the use of “Redskin” mascots at all public

elementary and secondary schools.140 The bill was vetoed by Governor Schwarzenegger

but other states could enact similar laws to achieve the effect of the NCAA mascot ban. If
137
Id. at 269.
138
Munson v. State Superintendent of Pub. Instruction, 577 N.W.2d 387, (Wis. Ct. App. 1998).
139
California Assembly Bill 858 (A.B 858)
140
See Id.

27
we assume a public schools’ choice of mascot is commercial speech because it advertises

the school’s athletic team, the First Amendment will apply.

Any such ban on commercial speech raises a First Amendment question. Scott

Rosner states “It is undisputed that team names, symbols, and logos qualify as

commercial speech, as they provide consumers with information about the identity and

quality of sports teams.141 Even though commercial speech receives less protection than

other forms of speech,142 a four-part test was created by the Supreme Court to determine

if such speech receives constitutional protection.143

The question is whether the governmental regulation of the speech is

constitutional. To determine the validity of the regulation, a four part test is employed: (1)

concern lawful activity and not be misleading; (2) is the asserted governmental interest is

substantial; (3) If the answer is “yes” to parts (1) and (2), the regulation must directly

advance the governmental interest asserted, and it must not be more extensive than

necessary to serve the interest.144

In the case of a sports team, part one revolves around the question of whether the

nickname is more likely to deceive than it is to inform about the nature of the product.145

Team names, mascots, logos and other symbols inform the public about the nature of the

team and the product. Opponents could claim that Native American imagery used in

connection with sports teams actually deceives the public about the nature of Native

American people, culture and values. But, the informational nature of the symbol, name

141
Rosner at 258,259.
142
See Bradenburg v. Ohio. 395 U.S. 444, 447 (1969)
143
Central Hudson Gas v. Public Services Comission, 447 U.S.557 (1980)
144
Id. at 563-564.
145
Id.

28
and mascot outweighs this limited possibility of deception, and thus part 1 of the test is

satisfied.

Next, the government must have a substantial interest in the speech regulation.146

Regulating team names, logos and mascots strictly to prohibit purely offensive speech is

not a valid interest. The government must present some other significant interest.147 Two

potential substantial interests are: (1) prevent of racial unrest while improving racial

relations and (2) improvement of self-esteem within the Native American community.

Many commentators believe a connection exists between the use of Native American

imagery and low self-esteem among the Native American community.148 However, such

speculation is not enough to convince a court.149 Substantial, tangible proof is required to

assert a legitimate governmental interest.150 It has been well established that problems

such as poverty, lack of education and health care are rampant throughout the Native

American community; however, a direct connection between these problems and the use

of Native American mascots and imagery by schools is required under the law to uphold

a ban.151 Thus far, no analyst has been able to establish this level of certainty and

causation. The elimination of discrimination in places of public accommodation would

also qualify as a substantial state interest under this test.152 However, as in the Title VI

analysis above, use of Native American mascots is not severe or persistent enough to

meet the discrimination standards.

146
Id. at 564.
147
Cathryn L. Claussen, Ethnic Team Names and Logos – Is There a Legal Solution?, 6 Marq. Sports L.J.
409 (1996), supra nota 1 at 12.
148
Id. at 13.
149
Id.
150
Id. at 12.
151
Id.
152
See Note, supra note 5 at 919.

29
 The analysis for part three is very similar to that in part two. The regulation must

directly advance the substantial government interest.153 As in part two, speculation is not

sufficient; the regulation must alleviate real, provable harms, not merely those suggested

by the data.154

Under the fourth part of the test, the regulation must be tailored as narrowly as

possible to achieve the stated goal.155 Courts apply a reasonableness test in determining

the fit of the regulation to the goal.156 Also, there must not be a less restrictive option

available to achieve the stated result. The current NCAA system, in which a committee

determined which names and logos are offensive, would most likely be overly broad

because of the lack of specific criteria for determining which mascots and images are

offensive. The appeals process may also prove problematic. The appeals process has no

set criteria or standard to which a school can address. The committee decides based on a

totality of the circumstances to grant or deny the appeal without providing the institutions

any guidelines or criteria. The First Amendment argument impacts the legislatures

stepping in and trying to accomplish the same goals as the NCAA did with the mascot

ban. Clearly, any governmental regulation would need to be more structured than the

current NCAA standard to survive under this test.

VI. CONCLUSION

The use of Native American mascots in sports is an issue that is not going to go

away any time soon. On one side, is a major industry (college sports) and many

institutions with strong financial incentives to maintain the Native American logos,

mascots and team names they have used for so long. On the other side, is a very
153
Central Hudson, 447 U.S. at 564.
154
See Note, supra note 5, at 919.
155
Central Hudson, 447 U.S. at 564.
156
See Note, supra note 5 at 920.

30
committed group of individuals who feel deeply offended by the use of such imagery.

Currently, the NCAA ban is in place, but many institutions have had success in winning

appeals. With North Dakota’s recent denial by the NCAA, and considering its strong

financial incentive, it may prove to be the test case to challenge the NCAA rule as an

anti-trust violation. North Dakota has already received a temporary injunction from a

state District Court judge allowing North Dakota continued use of the Fighting Sioux

name and logo without penalty, including hosting an NCAA Division II playoff game in

late November. 157 The matter is scheduled for trial in April 2007. 158 North Dakota is

claiming breach of contract, breach of an implied covenant of good faith and violation of

state antitrust laws.159 If North Dakota is successful, interested parties would have a near

impossible task to force institutions to change their Native American associations when

you consider the inherent weakness in attacking the trademark, arguing discrimination in

places of public accommodation accepting federal money or in a legislative solution. The

only other recourse would be to convince the institutions in question to change on an

individual basis (such as the case at St. John’s University and Syracuse). Considering the

substantial financial issues, this option seems unlikely. The NCAA is and will remain in

the best position to regulate “offensive” Native American mascots but probably cannot do

so because of the anti-trust violations raised by any such regulation. Hail to the Redskins,

because they are here to stay.

157
District judge grants injunction in Fighting Sioux nickname case. CBS SportsLine.com wire reports,
(Nov. 12, 2006) available at http://sportsline.com/collegefootball/story/9797158.
158
Id.
159
Plaintiff’s Memorandum in Support of Motion for Preliminary Injunction at 3-4. North Dakota v. NCAA
(Oct. 6, 2006) available at http://voluntarytrade.org/downloads/7T01_MtnPrelInj.pdf

31