When the Washington Redskins play in the University of Minnesota’s stadium on Nov. 2, will use of the team’s name violate a contract the school has with the Minnesota Vikings?
A U.S. congresswoman insists that it will – and a pair of U-Minn. law professors say she could be right.
The university’s general counsel, however, disagreed.
Much of what’s now driving this discussion is pressure from Minnesota Native American leaders, student organizations and other activists who are organizing what they hope will be the biggest-ever protest of the team’s name at next month’s game.
The debate began in June, when U.S. Rep. Betty McCollum wrote a letter to Vikings owner Zygi Wilf about his team’s game against the Redskins.
With the Vikings’ new stadium still under construction, the team is paying the University of Minnesota $300,000 a game to use its facility. McCollum (D-Minn.) argued to Wilf that use of the Redskins’ team name would violate a university policy that requires the school to provide an environment “free from racism … and other forms of prejudice, intolerance, or harassment.”
In August, university president Eric W. Kaler – who was copied on the letter – responded to McCollum, saying that while he agreed with her belief that the name should be changed, U-Minn.’s facility-use agreement does not allow the school “specific authority over NFL team behaviors or the Minnesota Vikings schedule.”
Since then, another aspect of the agreement has drawn attention. Under “Advertising and Sponsorship Restrictions,” the contract states: “The Vikings shall not take any action or use any language in its use of the Facilities that might reasonably be expected to offend contemporary community standards, such as use of . . . language that might denigrate any class or group of people.”
The law professors – both of whom have an expertise in contracts – had differing opinions on McCollum’s argument about the university policy, but on the second point, they agreed.
“Assuming the majority view is that this is a denigrating name, it seems to be in clear violation of that particular provision of the contract,” said Professor Brian Bix.
His colleague, Professor Carol Chomsky, also said a “decent argument” could be made the contract would be breached if the name is used.
“The clause reads very expansively because it refers to language that ‘might’ (not ‘would’) reasonably be expected to offend, and language that ‘might’ denigrate any class or group of people,” Chomsky said in an e-mail. “And ‘contemporary community standards’ doesn’t necessarily require that there be general agreement about whether such language is offensive; it may be enough if a significant segment of the community would find the use offensive, given the strength of the objections to use of that material (including objections by the President of the University).”
Bill Donohue, the university’s general counsel, disagreed, saying that dictating NFL nicknames was well outside the agreement’s intent.
“For us to somehow assert that the Washington team can’t use its nickname feels like it might have a problem with the First Amendment,” Donohue said.
He noted that the university frequently leases its facilities to bands and political candidates, and school officials don’t regulate what’s said in those venues either.
Donohue dismissed McCollum’s argument about the university policy, calling it “a misreading of the contract and an application of the contract that is not warranted.”
But to the second point, he conceded: “That’s the better argument. I can tell you that.”
Still, he maintained that the school has no recourse.
“I’d go back to the notion,” he said, “that the contract was not intended to control the nicknames of NFL teams.”
While Bix said the university could use the potential breach as leverage to influence the Vikings’ behavior, he doubted that such a violation would lead to anything more than money damages.
“It’s not nothing,” he said, “but it probably wouldn’t be enough to justify ending the contract.”