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Monday, December 29, 2008

The significance of defining sport

I have written on several occasions about how to define sport and what qualifies as sport, a common game among “sports-and-____” academics. A frequent response to these posts has been “so what, what difference does it make?” And, in truth, it is largely an academic exercise and a fun way to make fun of gymnastics, figure skating, and golf. But, courtesy of Matthew Mitten at the Marquette Faculty Blog, it may have practical import after all.

The Wisconsin courts must figure out whether cheerleading is a sport, and a contact sport at that. A high-school cheerleader who fell and suffered severe head injuries while performing a maneuver sued her fellow cheerleader for negligence in failing to spot her properly. The defendant argued that he is immune under a state statute that eliminates liability for negligence (but not reckless or conduct taken with intent to cause injury) for injuries caused "in a recreational activity that includes physical contact between persons in a sport involving amateur teams." The appellate court assumed that cheerleading was a sport and acknowledged the athleticism involved in cheerleading. And, although the court did not mention, there are high-school cheerleading competitions (often seen at midnight on ESPN 8). But the court held that cheerleading was not a contact sport within the meaning of the statute because physical contact between opponents is not an element of the activity, thus the immunity did not apply. The case now is before the Wisconsin Supreme Court, which heard oral argument last fall.

I am troubled by the appellate court's approach (although not the result) because I think it might have unintentionally eliminated from the scope of the immunity activities that plainly are sports that should be covered by the statute but that also do not typically involve physical contact between opponents. The first example is baseball--not much direct physical contact with opponents, only with objects thrown or hit by opponents. So could I sue the opposing pitcher for a negligently thrown beanball? Could I sue a teammate who did not get out of the way when I called for a flyball? Perhaps plays at the plate or on the base paths, involving potential collisions with opposing players, are common enough that baseball would fall within the statute as interpreted.

OK, what about tennis--it is virtually certain that physical contact with my opponent on the other side of the net is in no way part of the game. But would this mean that I could sue my doubles partner if I am injured when I crash into my him (which, frankly, is more likely than crashing into my opponent) because of his negligence? Would this also would mean that I could sue my opponent if I was injured when he negligently hit me with a ball (e.g., serving when I was not ready)? Or track and field--if I am a long-jumper, I expect no physical contact with my opponent. Could I sue him if he jumped before I had a chance to leave the pit and landed on top of me?

The statute was enacted in response to a 1993 Wisconsin Supreme Court decision arising from an injury suffered during a soccer game, so the legislature had true "contact sports" in mind. And the appellate court emphasized that cheerleading is not a contact sport in that way. But baseball, tennis, golf, track, etc., also cannot be classified as contact sports in the same way as soccer. Now maybe this was intentional and the legislature did want to treat contact sports differently from other sports. But if the legislative concern was about not wanting to chill participation in amateur (especially high school) sports (which might come with a standard of care lower than recklessness), liability in any of the situations described above would defeat that purpose. Assuming the legislature did not intend to treat contact and non-contact sports differently, a court might get around this, at least in my baseball and tennis hypos, by reading the statutory term "physical contact" to mean contact with objects propelled by an opponent. And maybe track would fall in because physical contact is at least a possible element of running side-by-side with an opponent. But this is getting somewhat difficult to maintain.

Alternatively, a court might focus on the statutory term "sport" and find a workable definition of that word--exactly what I and others have been doing as a parlor game. My current favorite standard defines sport by four elements:

1) Large motor skills.
2) Simple machines only.
3) Objective scoring or at least the possibility of determining a winner by something other than subjective judging.
4) Competition among contestants.

Cheerleading satisfies ## 1 and 2, but fails # 3 and possibly # 4 (we would need to know more about whether this team participated in competitions). But track, baseball, and tennis--the examples above--satisfy all four criteria. This gets at the result--the cheerleader's claim can go forward--without cutting large swaths of sports out of the statute.

Posted by Howard Wasserman on December 29, 2008 at 08:45 AM in Culture, Law and Politics, Sports | Permalink


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I am of two minds on Title IX, a point I had not thought about until I read your post. On one hand, I would like to combine a "pure" definition of sport with the goals of Title IX. We do that by understanding Title IX to require an equal opportunity of "athletic competition" (or something like that), which includes sports (football) and non-sport athletics (gymnastics). On the other hand, a narrow definition of sport might actually *further* the gender-equity-in-sports goal by preventing schools from offering cheerleading, dance team, and even marching band (activities historically available to female participants, all of which involve competition and some level of large-motor skills) as a way to fulfill its Title IX obligations without having to provide women's lacrosse. Worth thinking about some more, though.

Posted by: Howard Wasserman | Dec 30, 2008 9:31:41 AM

I'm largely in agreement w/ your in-depth analysis of this issue. However, I feel less certain about your requirement #3 regarding the definition of a sport, which necessarily excludes gymnastics and diving--and probably competitive cheerleading. I think it's important to take into account the specific context in which the need to determine whether an activity is a sport arises. For example, shouldn't gymnastics, diving, and competitive cheerleading be characterized as sports for purposes of Title IX (regardless of how they're characterized for purposes of tort liability)?

Posted by: matt | Dec 30, 2008 7:37:12 AM

Funny, I read this here, posted at 8:45 a.m.

Then at The Wall Street Journal's Law Blog I read it posted again at 5:37 p.m.

Sure, it was rewritten a bit differently. But is the WSJ really reading the Marquette Law Faculty Blog, or are they reading PrawsBlawg?

A courtesy link would've been nice, but WSJ and Above the Law seem to steal other people's blog posts without any shame.

Posted by: vap | Dec 29, 2008 11:50:26 PM

Sounds like shooting qualifies. Cheney may have been interested to see this definition.

Posted by: anon | Dec 29, 2008 10:39:20 PM

We have to distinguish between subjective "judging" and objective criteria imperfectly observed. Sport has objective standards for what constitutes a strike or a ball or what constitutes a fumble or when a serve is out. They are subject to some unavoidable subjectivity from the fallibility and perception of the person applying those rules. This is what happened with Ed Hocculi (the example you raise)--what is a fumble is objectively defined, he just perceived the event imperfectly. But that is different from inherently subjective judgments such as "artistic merit" or "style points." The closer we are to the latter, the further we are from sport. To the extent diving purports to be based on particular objective criteria and not just the catch-all of "artistic merit," I happily move it into the sports column.

Posted by: Howard Wasserman | Dec 29, 2008 7:16:02 PM

Requirements 1, 2, and 4 are hard to argue with and number 3 sounds good at first but hold your engines and don't start the horses yet. I have two questions regarding "Objective scoring or at least the possibility of determining a winner by something other than subjective judging."

If the requirement rules out gymnastics, it also rules out diving. And yet, the scoring of a dive is based upon how well its constiuent parts are executed. Where the right number of twists and somersaults completed? Was the entry vertical? Were the legs together? Was the descent close to the board? Through deconstruction, a judge can objectively score each contestants' dives and determine a winner. Admittedly, not purely objective but not fully subjective.

Then again, this past year in the NFL a game was decided based upon a subjective call by a referee who later acknowledged he was wrong. Since the game was decided on a subjective basis and fails reqt 3, was just that game not sport or does it taint all of the NFL?

Posted by: Philip Wuellner | Dec 29, 2008 4:01:50 PM

Dave: I got this definition from a kinisieologist at Michigan. And yes, simple machines eliminates auto and horse racing, while leaving in games with tools such as sticks, wheels, and rackets. Clearly, roller derby qualifies.

Posted by: Howard Wasserman | Dec 29, 2008 1:24:44 PM

Dave: I got this definition from a kinisieologist at Michigan. And yes, simple machines eliminates auto and horse racing, while leaving in games with tools such as sticks, wheels, and rackets. Clearly, roller derby qualifies.

Posted by: Howard Wasserman | Dec 29, 2008 1:21:58 PM

Interesting question, & one that's bugged me since I first saw chess reported in the sports pages and hot dog eating contests on ESPN. I wonder why the "small machines only" limitation--is this designed to exclude car racing? I've always thought its status as a sport was tenuous.

Posted by: Dave | Dec 29, 2008 11:23:32 AM

Figure skating and gymnastics are not sports--they are competitions, athletic encounters, or something. But not sports. In fact, the non-sport nature of those two, along with golf and maybe diving, are what drives this conversation. And pairs figure skating would not be within the statute on any event, because there is no contact with the *other* competitors.

Posted by: Howard Wasserman | Dec 29, 2008 10:46:16 AM

Under your current favorite standard, gymnastics isn't a "sport" because winners are determined on the basis purely of subjective judging. Figure skating is similarly excluded. That seems objectively wrong to me. Granted, for the purpose of this statute, gymnastics seems unlikely to produce injuries caused by negligence of fellow competitors. But pairs figure skating clearly meets the terms of the statute but is excluded from your definition of "sport." I think your definition is not quite right yet.

Posted by: Carrie | Dec 29, 2008 9:47:46 AM

I've always thought the distinguishing feature of a "sport" is the opportunity to play defense or otherwise actively attempt to stop or hinder your opponent's ability to score. This separates basketball, football, tennis, etc. from golf, gymnastics, cheerleading, bowling, etc., which should be called "contests", rather than "sports".

Of course, this takes the requirement of athleticism out of the equation since, by my definition, curling would be considered a sport.

Posted by: Paul Washington | Dec 29, 2008 9:43:11 AM

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