Phillips Nizer LLP | Sports Chair Ed Schauder is quoted in <em >Law360</em >: Washington NFL Name Change Puts Focus On Other Teams
This links to the home page
News & Publications
PRACTICE AREAS

Sports Chair Ed Schauder is quoted in Law360: Washington NFL Name Change Puts Focus On Other Teams

07/17/2020

By Zachary Zagger

Law360 (July 14, 2020, 12:08 AM EDT) -- The Washington, D.C., NFL team is dropping the Redskins name and logo after years of resistance to pressure from Native Americans and others who say they are racist, a move that experts say signals a growing societal push to remove Native American names and imagery from sports even as legal efforts to do so have fallen short.

The team confirmed Monday that it will abandon its controversial name and logo after FedEx, which has naming rights to the team's Maryland stadium, FedExField, threatened to pull it out of that deal if the name was not changed. Retailers Amazon, Walmart and Target have also said in recent days that they will stop carrying the team's merchandise with the name and logo.

The move puts additional pressure on other professional sports teams that continue to use Native American-based names or imagery, including the NFL's Kansas City Chiefs, MLB's Cleveland Indians and Atlanta Braves, the NBA's Golden State Warriors, and the NHL's Chicago Blackhawks.

"The only reason we are having this conversation now is the movement from sponsors that are going to pull their support because they don't want to be associated with a derogatory name," said Edward Schauder, a corporate and sports attorney handling licensing and marketing issues with Phillips Nizer LLP. "That is the only reason we now have this urgency."

Other teams across sports are likely starting the process of conducting a name change that must not only win over fans, many of whom are resistant to name changes, but advertisers and other corporate partners as well, Schauder said. It further takes a lot of legal work to acquire the intellectual property to go forward with such a change. 

"If other sponsors decide to put pressure on, say, the Braves or Blackhawks, then there could be a similar discussion that we will have in a couple of months or a couple of years from now," he said. "But it all emanated from the sponsor pressure and the political environment right now. ... Are [other teams] thinking about it a lot more in case that groundswell builds up? 100%."

Native American groups and their attorneys have fought for decades to stop the use of such names and imagery, most notably pushing the U.S. Patent and Trademark Office to revoke the Washington team's registration of a trademark in the name as "disparaging" under the Lanham Act.

However, the U.S. Supreme CourtLee v. Tam  that the Lanham Act's prohibition on "disparaging" trademarks violated the First Amendment because it amounted to discrimination based on unpopular speech, a decision that ultimately preserved the right of the Washington team to use the controversial name.

The Cleveland Indians decided in 2018 to stop using on team uniforms the "Chief Wahoo" logo, a cartoon of a grinning, red-skinned man wearing a feather that was widely criticized as offensive, after facing legal challenges in Canada.

But key to the Washington name change is that it comes amid a broader public outcry for social justice and discussion of how racism is embedded in American culture and its institutions, experts said, increasing pressure on teams across sports to rethink the use of Native American names or imagery.

Fordham University law and ethics professor Mark Conrad said "the beauty of the decision to rename" the Washington team is that it "is due to societal, not legal pressure." Courts, he noted, "have upheld the trademark rights to the term and concluded that the 'disparagement' clause of the Lanham Act was unconstitutional. But the court of public opinion was key."

The Washington team had maintained its current name, originally adopted in 1933, in the face of calls from Native American advocacy groups and others to change the name and its 1970s-era logo depicting the profile of a Native American man.

Opponents of Native American names and imagery in sports have pointed out that many of the names have racist origins and point to studies that show such names have a detrimental impact on Native American communities, particularly youths. Opponents further say Native American-based names lead to fans mocking Native American culture, from dressing up in Native American headdresses to using cheers like the Braves' "Tomahawk Chop." Such arguments are catching on in the court of public opinion, experts said.

"This is a very interesting time in the history of the United States," said Sarah Deer, a lawyer and professor at the University of Kansas School of Public Affairs and Administration. "People are talking about racism, and people are talking about how racism permeates into all aspects of our culture, and I think that there are a lot of people with a lot of power who are finally saying we should dismantle some of this. I think that is what has happened here."

Deer, who is a citizen of the Muscogee (Creek) Nation of Oklahoma, said it's no surprise that the Washington team name change is happening now, given that the name is considered to be particularly derogatory, and said there is going to be growing scrutiny of all Native American names and imagery across professional sports.

"People have the right to say disparaging words. It is not a crime to say the 'N' word or the 'R' word," Deer said, in reference to the Washington team name. "The question is whether or not as a major visible entity that is associated with so many Americans who are fans of football" it is wise to use such terms.

--Editing by Breda Lund.