In this year’s Super Bowl, the Kansas City Chiefs defeated the San Francisco 49ers in what was another memorable title game. Like every Super Bowl, the event was highlighted by big plays, a star-studded half-time show, and plenty of “meme-able” moments. However, hidden within the storyline of the weekend were the thousands of Chiefs fans (infamously known for holding the Guinness World Record for crowd noise) who daubed face paint, sung “war-chants”, and aggressively mimicked tomahawk chopping in front of the largest TV football audience of the year, all in support of their team.
North American professional sports, in general, are far from a beacon of political correctness. Vivid imagery of racial stereotypes is strewn throughout the professional sports landscape with teams like the Atlanta Braves, the Edmonton Eskimos, and most famously, the Washington Redskins. In recent years, public scrutiny over their use has attracted a number of noteworthy legal decisions.
In June 2014, the Washington Redskins found themselves at the wrong end of a trademark dispute after the United States Patent and Trademark Office cancelled six of their trademark registrations for “Redskins”. In that case, petitioners sought cancellation of the marks on the ground that the registrations were obtained contrary to Section 2(a), 15 U.S.C. § 1052(a), a provision that prohibits registration of marks that may disparage persons or bring them into contempt or disrepute. The appeal board found that the registrations must be cancelled “because they were disparaging to Native Americans at the respective times they were registered.”
In another similar incident in 2016, ahead of a hotly contested playoff matchup between the Toronto Blue Jays and the Cleveland Indians, Indigenous activist and renowned architect Douglas Cardinal sought an interim and interlocutory injunction against Cleveland preventing them from using, displaying, or broadcasting their team name or logo. Cardinal grounded his claim in the Ontario Human Rights Code, noting that use of the name and logo constituted discrimination against him on the grounds of race, ancestry, colour, ethnic, and national origin. Ultimately, the court ruled against Cardinal and the application was dismissed. However, all was not completely lost. Beginning in the 2019 season, Cleveland formally removed the “Chief Wahoo” logo from all uniforms.
Use of Indigenous names, symbols, and practices in sports is a complicated issue. On one side, there are the fans, who have developed an attachment to the team, its history, and traditions. On the other are Indigenous peoples, who were forced onto reserves, forced to attend residential schools, and forbidden from practicing some of the actions that fans of these teams have adopted. While the leagues and teams will argue that contemporary use of the names and images has shifted towards honouring and respecting Indigenous peoples, a recent study of Twitter commentary has shown otherwise. In an interview with CBC, Jason Black, Fulbright Research Chair at Brock University's Centre for Canadian Studies, explained that “As people see [Indigenous] folks, in particular in stereotyped ways, the less likely they are to do things like reconcile”. "They're less willing to understand Indigenous history or vote for a particular candidate who has Indigenous reform in mind.” And so, a vicious cycle of racism and inaction spreads.
Teams seeking to make meaningful changes in their organizations should be cognizant of the 93 recommendations put forward by the Truth and Reconciliation Commission of Canada (TRC) in 2015. Specifically, Call to Action 92, which calls on the corporate sector to adopt and apply the principles set forth in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This includes meaningful consultation, and free, prior, and informed consent with Indigenous peoples before proceeding with economic developments. In other words, teams need to engage in proper consultation with Indigenous people when it comes to team logos, branding, or any other activity that may reasonably affect them.
A recent fundraiser by True North Sports and Entertainment, owners of the Winnipeg Jets and Manitoba Moose hockey clubs, shed some light on what this might look like in practice. In January, the Winnipeg Jets, along with their minor-league affiliate the Manitoba Moose, unveiled a new special jersey design bearing Indigenous-styled logos. The jerseys were all part of the second annual Winnipeg Aboriginal Sport Achievement Centre (WASAC) Night, and all proceeds from the sales of the jerseys are going towards Indigenous youth activities. Here, the jerseys were not designed by the teams, nor by Adidas (the official jersey sponsor of the NHL), but in consultation with local artist Leticia Spence from Pimicikamak Cree Nation.
Initiatives such as this are important for building stronger relationships in the local community but are also key in the broader reconciliation picture. Had the Cleveland franchise assessed themselves more honestly and humbly in the face of litigation, looked at documents like UNDRIP or the TRC recommendations – the cost-benefit analysis (both commercially, publicly, and morally) would weigh in favour of reconciliation. While it may be a complicated issue, it should not stop teams from doing the right thing and thinking more critically and responsibly about their branding imagery. The rest of the sports world should look to the Jets for leadership in moving toward accountable reconciliation and away from racism.
Written by Alexandre Dumais, IPilogue Editor and JD Candidate at Osgoode Hall Law School. Alexandre is also the Director of Sports, Osgoode Entertainment and Sports Law Association.