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Davidson v. State ex rel North Dakota State Board of Higher Education

April 8, 2010

EUNICE DAVIDSON, JOHN CHASKE, OLIVER GOURD, RENITA DELORME, LAVONNE ALBERTS, FRANK BLACKCLOUD, DEMUS MCDONALD, ALEX YANTON, MEMBERS, COMMITTEE FOR UNDERSTANDING AND RESPECT, PLAINTIFFS AND APPELLANTS
v.
STATE OF NORTH DAKOTA, BY AND THROUGH THE NORTH DAKOTA STATE BOARD OF HIGHER EDUCATION, DEFENDANT AND APPELLEE



Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Michael G. Sturdevant, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

AFFIRMED.

[¶1] Eight members of the Committee for Understanding and Respect ("plaintiffs") appeal from a district court judgment dismissing their action against the State Board of Higher Education to enforce a settlement agreement in a prior lawsuit by the University of North Dakota ("UND") and the Board against the National Collegiate Athletic Association ("NCAA") and to enjoin the Board from shortening the time period for the Spirit Lake Tribe and the Standing Rock Sioux Tribe to consider approving or rejecting UND's use of the "Fighting Sioux" nickname and logo. Because we conclude the district court did not err in interpreting the language of the settlement agreement, we affirm.

I.

[¶2] In August 2005, the NCAA adopted a policy prohibiting member institutions from using or displaying hostile and abusive racial or ethnic nicknames, mascots, or imagery at NCAA championship events. The policy prohibited identified member institutions from bidding and hosting NCAA championship events and from selling nickname, mascot, or imagery related merchandise at NCAA championship venues. The policy also urged member institutions to refrain from scheduling regular season games against institutions identified as subject to the policy. The NCAA identified UND and its Fighting Sioux nickname and logo as a member institution subject to the policy.

[¶3] In October 2006, the Board and UND sued the NCAA, challenging the NCAA's promulgation of the policy and its application of the policy to UND. In October 2007, the parties to that action executed a settlement agreement in which UND recognized the "North Dakota Sioux Tribes . . . have important contributions in determining whether, to what extent and in what manner the `Sioux' name and the `Fighting Sioux' nickname or logo should continue to be used in conjunction with the athletic tradition at UND." The Board and UND agreed to dismiss their claims against the NCAA pertaining to the policy, and the NCAA agreed to provide UND "a period of time until November 30, 2010 (the `Approval Period'), to seek and obtain namesake approval for its nickname and related imagery, during which time the Policy will not apply to UND and UND will not be restricted from hosting and bidding to host championship events for which it otherwise would be eligible to host." The settlement agreement required UND to have "clear and affirmative support" for use of the nickname and logo from both the Spirit Lake Tribe and the Standing Rock Sioux Tribe and provided that if UND obtained tribal support within the approval period, the NCAA policy would not apply to UND unless either of the tribes withdrew or reversed its support for UND's use of the nickname and logo.

[¶4] The settlement agreement required UND to announce the "transition to a new nickname and logo which do not violate the Policy or render UND subject to the Policy, if [i] it is unable to secure namesake approval as set forth in this Agreement prior to the expiration of the Approval Period, or [ii] namesake approval, once provided, is withdrawn." The agreement said, "If UND does not adopt a new nickname and logo, or if the transition to a new nickname and logo is not completed prior to August 15, 2011, then UND will be returned to the list of institutions subject to the Policy." The agreement required UND to continue to solicit the views of the North Dakota Sioux Tribes on the appropriate use of the Sioux name and related imagery in UND athletics. The agreement also stated, "If UND announces a transition to a new nickname and logo at the end of the Approval Period, or at anytime during the Approval Period," the NCAA would remove UND from the list of institutions subject to the NCAA policy and UND would retain any intellectual property or licensing rights to the Fighting Sioux nickname and logo. The agreement required the NCAA to make a public announcement that it did not dispute UND "has indicated that it intends to use the current name and logo with the utmost respect and dignity, and only for so long as it may do so with the support of the Native American community."

[¶5] In April 2009, the members of the Spirit Lake Tribe voted to allow UND to continue using the Fighting Sioux nickname and logo and the Spirit Lake Tribal Council thereafter adopted a resolution granting UND perpetual use of the nickname and logo beginning on October 1, 2009. In May 2009, the Board passed a resolution to retire the Fighting Sioux nickname and logo, effective October 1, 2009, with full retirement completed on August 1, 2010, unless both the Standing Rock Sioux Tribe and the Spirit Lake Tribe gave namesake approval consistent with the settlement agreement for a period of not less than 30 years. As of October 1, 2009, the Standing Rock Sioux Tribe had not voted either to approve or to disapprove UND's use of the nickname and logo.

[¶6] The plaintiffs, enrolled members of the Spirit Lake Tribe, thereafter sued the Board, alleging its proposed termination of the Fighting Sioux nickname and logo before November 30, 2010, violated the settlement agreement and seeking to enjoin the Board from terminating the nickname and logo before November 30, 2010. The plaintiffs claimed the settlement agreement precluded termination of the nickname and logo before November 30, 2010, and the Board was contractually bound to make a good-faith effort to obtain namesake approval from both tribes during that time. The district court granted the plaintiffs' ex parte motion for a temporary restraining order. Before answering the complaint, the Board moved to dismiss the plaintiffs' action and to vacate the temporary restraining order, arguing the plaintiffs lacked standing to challenge the settlement agreement and the Board had authority to terminate the nickname and logo before November 30, 2010.

[¶7] After a hearing, the district court concluded the plaintiffs had standing to sue the Board. The court nevertheless dismissed the plaintiffs' complaint to enjoin the Board, concluding the settlement agreement was not ambiguous and the Board's decision to terminate the nickname and logo before November 30, 2010, did not violate the plain language of the agreement. The court explained there was "nothing in the Settlement Agreement which binds the Board to the continued use of the Fighting Sioux nickname or the pursuit of tribal namesake approval," and under the agreement, "the NCAA simply agreed that it would not enforce its Policy against UND during the Approval Period in order to allow the Board to make an effort to obtain namesake approval until November 30, 2010 if it so chose." The court explained there was nothing in the settlement agreement requiring UND to retain the nickname and logo and the language of the agreement contemplated transition to a new nickname and logo "at any time during the Approval Period." A judgment was entered dismissing the plaintiffs' complaint, and they appealed.

[¶8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The plaintiffs' appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II.

[¶9] The Board argues the district court erred in deciding the plaintiffs have standing to enforce the settlement agreement. The Board claims the plaintiffs do not have standing because they are not parties to the settlement agreement and they are not intended third-party beneficiaries of the agreement. The plaintiffs respond they are third- party beneficiaries of the agreement and they have standing.

[¶10] Under N.D.C.C. § 9-02-04, "[a] contract made expressly for the benefit of a third person may be enforced by that person at any time before the parties thereto rescind it." See Apache Corp. v. MDU Res. Group, 1999 ND 247, ¶¶ 1, 10-11, 603 N.W.2d 891 (affirming dismissal of plaintiffs' action because evidence and language of contract did not show parties expressly contracted for benefit of third party). Because the plaintiffs' status as third-party beneficiaries involves the interpretation of the ...


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