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In a decision that could have far-reaching implications for university athletes, sports fans—and lawyers—the executive committee of the National Collegiate Athletic Association (NCAA) adopted a policy on Aug. 5 prohibiting the display of what it called “hostile and abusive” American Indian mascots, nicknames or imagery at any of its 88 championship events. The policy, scheduled to take effect next February, is the latest development in a cultural battle that has gone from basketball courts to appellate courts. Reaction to the NCAA’s decision was swift, including a threat of legal action from Florida State University and ridicule from Florida Governor Jeb Bush. As universities with American Indian mascots weigh their options, legal scholars ponder whether they really have a legal remedy. Honor or indignity? American Indian groups have criticized the use of such mascots by college and professional teams, including Major League Baseball’s Atlanta Braves and Cleveland Indians and the National Football League’s Washington Redskins. Last month, the U.S. Circuit Court for the District of Columbia reversed a district court and reinstated a suit by American Indians challenging the Redskins’ federal trademarks as disparaging. Pro-Football Inc. v. Harjo, No. 03-7162. Among the 18 colleges and universities affected by the NCAA decision are three major programs that compete at the highest level of collegiate sports, Division I, the University of Illinois (the “Fighting Illini”), the University of Utah (the “Utes”) and Florida State University (the “Seminoles”). While federal court plaintiffs may find the mascots distasteful, some universities argue they are not only a tradition, but an honor to American Indians. “The Seminoles are a noble tribe. They were undefeated and unconquered. That’s why the university chose them as a symbol,” said Michael Cramer, deputy general counsel at Florida State, rejecting the NCAA’s claim that the mascots were hostile and abusive. Cramer, a U.S. Army judge advocate general for 29 years, added that many of the Army’s helicopters were named for American Indians, including the Apache, Comanche and Blackhawk. “I don’t see people claiming the Army’s practice is hostile or abusive,” Cramer added. Off the battlefield Reactions from the affected major universities ranged from threats of litigation to calls for consensus. Florida State President T.K. Wetherell released a statement saying he would “pursue all legal avenues” to overturn the NCAA’s decision. He also retained Barry Richard of the Tallahassee, Fla., office of Greenberg Traurig to represent the university in the matter. Noting that the Seminole Tribe of Florida supports Florida State’s use of the Seminole name and licenses it to the university, Richard called the NCAA’s action, “a classic example of an overzealous effort to protect people who neither need nor want to be protected.” University of Utah Athletic Director Chris Hill said that while the university has no plans for litigation at this time, it would pursue an NCAA appeal “vigorously,” adding, “The NCAA committee does not have a real view of what’s happening on our campus or in our state.” The University of Illinois spokesman Thomas Hardy took a more conciliatory approach, stating that the university would work with the NCAA and that its board of trustees sought a “consensus solution to the Chief Illini tradition.” NCAA spokesman Bob Williams rejected the Florida State and Utah “local issue” argument. Noting that the new policy affected only the NCAA’s national championships and that the universities were free to use their mascots at local games, Williams said, “At a national championship, it’s a national issue, not a local issue.” All three universities said they would pursue NCAA appeals. If they are unsuccessful, Professor Paul Haagen of Duke Law School questions whether the courts offer a remedy. Haagen said that neither the argument that the NCAA failed to follow its own organizational due process rules, nor the argument that the private association lacked authority to enforce the policy, was likely to prevail. He added: “Governor Bush is out front and center, but the legal options don’t look very attractive. It seems more attractive as a political or sports talk- show argument.”

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