Many years ago, as a young parent, one of my children did something that I believed to be irrational. As I began to reprove my child, my wife taught me that what my child perceived was real to her, and I had to treat it accordingly.
Daniel Snyder, together with other owners of the Washington Redskins and the NFL, must begin to accept the reality that the public is branding them as racist.
Snyder believes the team should not have to change its name. He has vowed to fight on, appealing the decision by the Trademark Trial and Appeal Board that the use of the term “Redskins” was disparaging to Native Americans when the marks were registered.
The Washington Redskins have prevailed in similar litigation regarding the use of the trademark in the past, and they may do so again. But, even if they do, they will find that they have won a battle but lost a war fraught with costs.
The reality is that many Americans, including 50 United States senators who represent them, view the use of the term “Redskins” as inappropriate and racist. It can be argued with some force that the government should stay out of this business, but it must be acknowledged that, in some measure, they represent the views of many of their constituents.
Over the two decades of the franchise fighting to retain use of the mark, this public outcry against use of the name, Redskins, has increased. This is not surprising. As a colleague of mine wisely noted, if you were addressing a Native American group and referred to them as Redskins, it is likely that your words would be considered derogatory and racist.
The battle over public opinion is being lost. Snyder and the owners of the Washington Redskins are increasingly being associated with a racist name they choose, through pride or perhaps principle, to maintain. They will soon be branded as racist.
Snyder should learn from the cautionary tale of Donald Sterling and the NBA. For Sterling, the costs of persisting in a battle of this sort are exceedingly high. Sterling will be viewed in history as a racist. The personal and economic costs are similarly significant for Snyder.
Other owners of the Redskins and their sponsors will soon find themselves backtracking rather than running the risk of being branded as part of a franchise that perpetuates a trademark that is perceived to be racist. As reputational costs mount, negative revenue implications will increase.
The Redskins depend on sponsorships and public support. Revenue from those groups will shrink as they assess the risk of being labeled racist. For example, Fred Smith, a co-owner, and Fed-Ex will be under increasing pressure to terminate their sponsorship, which is a major asset in the Redskin portfolio. Other sponsors and owners will follow.
The NFL is equally concerned with implications for its brand. The NFL and sponsors will pressure Snyder to relent. There are surely clauses in the NFL’s contracts and the contracts of sponsors with the Redskins that will permit them, if necessary, to take steps against Snyder, much as the NBA acted against Donald Sterling.
Evidently, Snyder’s lawyer has encouraged him to tone down his statements. It is likely that Snyder is being counseled regarding the costs of persisting in what is increasingly being seen as a futile battle.
Can and will Snyder change direction and save face? Yes. On a personal level, he has a record of philanthropy, and there is no other evidence that he has acted in a racist manner. He also has a track record as a resilient business person.
If, however, Snyder persists in believing that the use of the Redskins mark is non-racist and valuable, he should make an offer to Native American groups to share in the funds they have helped generate by the use of their positive heritage as a part of a historic football franchise. If Native American groups were to accept such an offer, it might strengthen Snyder’s argument that use of the name is neither derogatory nor racist.
Alternatively, and more likely, Snyder can act like the able business person that he is and find a creative, and financially lucrative, way of changing the name. He might, for example, host a reality show that would permit contestants to present the case for various names, with viewers voting on the team’s name. He could reap the benefits of national advertising and argue that the Washington NFL franchise is truly America’s team.
If Snyder and the team owners wait too long, however, exit strategies will become limited and costs will mount. The time to act is now.
Rodney K. Smith is director of the sports law and business program at The Sandra Day O’Connor College of Law, Arizona State University.
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